DAMAGES

Arts. 2197- 2235 NEW CIVIL CODE

A.) ACTUAL OR COMPENSATORY

G.R. No. 88694 January 11, 1993

ALBENSON ENTERPRISES CORP., JESSE YAP, AND BENJAMIN MENDIONA, petitioners,

vs.
THE COURT OF APPEALS AND EUGENIO S. BALTAO, respondents.

Puruganan, Chato, Chato & Tan for petitioners.

Lino M. Patajo, Francisco Ma. Chanco, Ananiano Desierto and Segundo Mangohig for private
respondent.

BIDIN, J.:

This petition assails the decision of respondent Court of Appeals in

CA-GR CV No. 14948 entitled "Eugenio S. Baltao, plaintiff-appellee vs. Albenson Enterprises
Corporation, et al, defendants-appellants", which modified the judgment of the Regional Trial Court
of Quezon City, Branch XCVIII in Civil Case No. Q-40920 and ordered petitioner to pay private
respondent, among others, the sum of P500,000.00 as moral damages and attorney's fees in the
amount of P50,000.00.

The facts are not disputed.

In September, October, and November 1980, petitioner Albenson Enterprises Corporation (Albenson
for short) delivered to Guaranteed Industries, Inc. (Guaranteed for short) located at 3267 V. Mapa
Street, Sta. Mesa, Manila, the mild steel plates which the latter ordered. As part payment thereof,
Albenson was given Pacific Banking Corporation Check No. 136361 in the amount of P2,575.00 and
drawn against the account of E.L. Woodworks (Rollo, p. 148).

When presented for payment, the check was dishonored for the reason "Account Closed."
Thereafter, petitioner Albenson, through counsel, traced the origin of the dishonored check. From
the records of the Securities and Exchange Commission (SEC), Albenson discovered that the
president of Guaranteed, the recipient of the unpaid mild steel plates, was one "Eugenio S. Baltao."
Upon further inquiry, Albenson was informed by the Ministry of Trade and Industry that E.L.
Woodworks, a single proprietorship business, was registered in the name of one "Eugenio Baltao".
In addition, upon verification with the drawee bank, Pacific Banking Corporation, Albenson was
advised that the signature appearing on the subject check belonged to one "Eugenio Baltao."

After obtaining the foregoing information, Albenson, through counsel, made an extrajudicial demand
upon private respondent Eugenio S. Baltao, president of Guaranteed, to replace and/or make good
the dishonored check.
Respondent Baltao, through counsel, denied that he issued the check, or that the signature
appearing thereon is his. He further alleged that Guaranteed was a defunct entity and hence, could
not have transacted business with Albenson.

On February 14, 1983, Albenson filed with the Office of the Provincial Fiscal of Rizal a complaint
against Eugenio S. Baltao for violation of Batas Pambansa Bilang 22. Submitted to support said
charges was an affidavit of petitioner Benjamin Mendiona, an employee of Albenson. In said
affidavit, the above-mentioned circumstances were stated.

It appears, however, that private respondent has a namesake, his son Eugenio Baltao III, who
manages a business establishment, E.L. Woodworks, on the ground floor of the Baltao Building,
3267 V. Mapa Street, Sta. Mesa, Manila, the very same business address of Guaranteed.

On September 5, 1983, Assistant Fiscal Ricardo Sumaway filed an information against Eugenio S.
Baltao for Violation of Batas Pambansa Bilang 22. In filing said information, Fiscal Sumaway claimed
that he had given Eugenio S. Baltao opportunity to submit controverting evidence, but the latter
failed to do so and therefore, was deemed to have waived his right.

Respondent Baltao, claiming ignorance of the complaint against him, immediately filed with the
Provincial Fiscal of Rizal a motion for reinvestigation, alleging that it was not true that he had been
given an opportunity to be heard in the preliminary investigation conducted by Fiscal Sumaway, and
that he never had any dealings with Albenson or Benjamin Mendiona, consequently, the check for
which he has been accused of having issued without funds was not issued by him and the signature
in said check was not his.

On January 30, 1984, Provincial Fiscal Mauro M. Castro of Rizal reversed the finding of Fiscal
Sumaway and exonerated respondent Baltao. He also instructed the Trial Fiscal to move for
dismissal of the information filed against Eugenio S. Baltao. Fiscal Castro found that the signature in
PBC Check No. 136361 is not the signature of Eugenio S. Baltao. He also found that there is no
showing in the records of the preliminary investigation that Eugenio S. Baltao actually received
notice of the said investigation. Fiscal Castro then castigated Fiscal Sumaway for failing to exercise
care and prudence in the performance of his duties, thereby causing injustice to respondent who
was not properly notified of the complaint against him and of the requirement to submit his counter
evidence.

Because of the alleged unjust filing of a criminal case against him for allegedly issuing a check which
bounced in violation of Batas Pambansa Bilang 22 for a measly amount of P2,575.00, respondent
Baltao filed before the Regional Trial Court of Quezon City a complaint for damages against herein
petitioners Albenson Enterprises, Jesse Yap, its owner, and Benjamin Mendiona, its employee.

In its decision, the lower court observed that "the check is drawn against the account of "E.L.
Woodworks," not of Guaranteed Industries of which plaintiff used to be President. Guaranteed
Industries had been inactive and had ceased to exist as a corporation since 1975. . . . . The
possibility is that it was with Gene Baltao or Eugenio Baltao III, a son of plaintiff who had a business
on the ground floor of Baltao Building located on V. Mapa Street, that the defendants may have been
dealing with . . . ." (Rollo, pp. 41-42).

The dispositive portion of the trial court 's decision reads:

WHEREFORE, judgment is hereby rendered in favor of plaintiff and against

defendants ordering the latter to pay plaintiff jointly and severally:
 1. actual or compensatory damages of P133,350.00;

2. moral damages of P1,000,000.00 (1 million pesos);

3. exemplary damages of P200,000.00;

4. attorney's fees of P100,000.00;

5 costs.

Defendants' counterclaim against plaintiff and claim for damages against Mercantile
Insurance Co. on the bond for the issuance of the writ of attachment at the instance
of plaintiff are hereby dismissed for lack of merit. (Rollo, pp. 38-39).

On appeal, respondent court modified the trial court's decision as follows:

WHEREFORE, the decision appealed from is MODIFIED by reducing the moral

damages awarded therein from P1,000,000.00 to P500,000.00 and the attorney's
fees from P100,000.00 to P50,000.00, said decision being hereby affirmed in all its
other aspects. With costs against appellants. (Rollo, pp. 50-51)

Dissatisfied with the above ruling, petitioners Albenson Enterprises Corp., Jesse Yap, and Benjamin
Mendiona filed the instant Petition, alleging that the appellate court erred in:

1. Concluding that private respondent's cause of action is not one based on

malicious prosecution but one for abuse of rights under Article 21 of the Civil Code
notwithstanding the fact that the basis of a civil action for malicious prosecution is
Article 2219 in relation to Article 21 or Article 2176 of the Civil Code . . . .

2. Concluding that "hitting at and in effect maligning (private respondent) with an

unjust criminal case was, without more, a plain case of abuse of rights by
misdirection" and "was therefore, actionable by itself," and which "became
inordinately blatant and grossly aggravated when . . . (private respondent) was
deprived of his basic right to notice and a fair hearing in the so-called preliminary
investigation . . . . "

3. Concluding that petitioner's "actuations in this case were coldly deliberate and
calculated", no evidence having been adduced to support such a sweeping
statement.

4. Holding the petitioner corporation, petitioner Yap and petitioner Mendiona jointly
and severally liable without sufficient basis in law and in fact.

5. Awarding respondents —

5.1. P133,350.00 as actual or compensatory damages, even in the

absence of sufficient evidence to show that such was actually
suffered.

5.2. P500,000.00 as moral damages considering that the evidence in

this connection merely involved private respondent's alleged
 celebrated status as a businessman, there being no showing that the
act complained of adversely affected private respondent's reputation
or that it resulted to material loss.

5.3. P200,000.00 as exemplary damages despite the fact that

petitioners were duly advised by counsel of their legal recourse.

5.4. P50,000.00 as attorney's fees, no evidence having been

adduced to justify such an award (Rollo, pp. 4-6).

Petitioners contend that the civil case filed in the lower court was one for malicious prosecution.
Citing the case of Madera vs. Lopez (102 SCRA 700 [1981]), they assert that the absence of malice
on their part absolves them from any liability for malicious prosecution. Private respondent, on the
other hand, anchored his complaint for Damages on Articles 19, 20, and 21 ** of the Civil Code.

Article 19, known to contain what is commonly referred to as the principle of abuse of rights, sets
certain standards which may be observed not only in the exercise of one's rights but also in the
performance of one's duties. These standards are the following: to act with justice; to give everyone
his due; and to observe honesty and good faith. The law, therefore, recognizes the primordial
limitation on all rights: that in their exercise, the norms of human conduct set forth in Article 19 must
be observed. A right, though by itself legal because recognized or granted by law as such, may
nevertheless become the source of some illegality. When a right is exercised in a manner which
does not conform with the norms enshrined in Article 19 and results in damage to another, a legal
wrong is thereby committed for which the wrongdoer must be held responsible. Although the
requirements of each provision is different, these three (3) articles are all related to each other. As
the eminent Civilist Senator Arturo Tolentino puts it: "With this article (Article 21), combined with
articles 19 and 20, the scope of our law on civil wrongs has been very greatly broadened; it has
become much more supple and adaptable than the Anglo-American law on torts. It is now difficult to
conceive of any malevolent exercise of a right which could not be checked by the application of
these articles" (Tolentino, 1 Civil Code of the Philippines 72).

There is however, no hard and fast rule which can be applied to determine whether or not the
principle of abuse of rights may be invoked. The question of whether or not the principle of abuse of
rights has been violated, resulting in damages under Articles 20 and 21 or other applicable provision
of law, depends on the circumstances of each case. (Globe Mackay Cable and Radio Corporation
vs. Court of Appeals, 176 SCRA 778 [1989]).

The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or duty;
(2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Article 20
speaks of the general sanction for all other provisions of law which do not especially provide for their
own sanction (Tolentino, supra, p. 71). Thus, anyone who, whether willfully or negligently, in the
exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries
suffered thereby. Article 21 deals with acts contra bonus mores, and has the following elements: 1)
There is an act which is legal; 2) but which is contrary to morals, good custom, public order, or public
policy; 3) and it is done with intent to injure.

Thus, under any of these three (3) provisions of law, an act which causes injury to another may be
made the basis for an award of damages.

There is a common element under Articles 19 and 21, and that is, the act must be intentional.
However, Article 20 does not distinguish: the act may be done either "willfully", or "negligently". The
trial court as well as the respondent appellate court mistakenly lumped these three (3) articles
together, and cited the same as the bases for the award of damages in the civil complaint filed
against petitioners, thus:

With the foregoing legal provisions (Articles 19, 20, and 21) in focus, there is not
much difficulty in ascertaining the means by which appellants' first assigned error
should be resolved, given the admitted fact that when there was an attempt to collect
the amount of P2,575.00, the defendants were explicitly warned that plaintiff Eugenio
S. Baltao is not the Eugenio Baltao defendants had been dealing with (supra, p. 5).
When the defendants nevertheless insisted and persisted in filing a case — a
criminal case no less — against plaintiff, said defendants ran afoul of the legal
provisions (Articles 19, 20, and 21 of the Civil Code) cited by the lower court and
heretofore quoted (supra).

Defendants, not having been paid the amount of P2,575.00, certainly had the right to
complain. But that right is limited by certain constraints. Beyond that limit is the area
of excess, of abuse of rights. (Rollo, pp.
44-45).

Assuming, arguendo, that all the three (3) articles, together and not independently of each one,
could be validly made the bases for an award of damages based on the principle of "abuse of right",
under the circumstances, We see no cogent reason for such an award of damages to be made in
favor of private respondent.

Certainly, petitioners could not be said to have violated the aforestated principle of abuse of right.
What prompted petitioners to file the case for violation of Batas Pambansa Bilang 22 against private
respondent was their failure to collect the amount of P2,575.00 due on a bounced check which they
honestly believed was issued to them by private respondent. Petitioners had conducted inquiries
regarding the origin of the check, and yielded the following results: from the records of the Securities
and Exchange Commission, it was discovered that the President of Guaranteed (the recipient of the
unpaid mild steel plates), was one "Eugenio S. Baltao"; an inquiry with the Ministry of Trade and
Industry revealed that E.L. Woodworks, against whose account the check was drawn, was
registered in the name of one "Eugenio Baltao"; verification with the drawee bank, the Pacific
Banking Corporation, revealed that the signature appearing on the check belonged to one "Eugenio
Baltao".

In a letter dated December 16, 1983, counsel for petitioners wrote private respondent demanding
that he make good the amount of the check. Counsel for private respondent wrote back and denied,
among others, that private respondent ever transacted business with Albenson Enterprises
Corporation; that he ever issued the check in question. Private respondent's counsel even went
further: he made a warning to defendants to check the veracity of their claim. It is pivotal to note at
this juncture that in this same letter, if indeed private respondent wanted to clear himself from the
baseless accusation made against his person, he should have made mention of the fact that there
are three (3) persons with the same name, i.e.: Eugenio Baltao, Sr., Eugenio S. Baltao, Jr. (private
respondent), and Eugenio Baltao III (private respondent's son, who as it turned out later, was the
issuer of the check). He, however, failed to do this. The last two Baltaos were doing business in the
same building — Baltao Building — located at 3267 V. Mapa Street, Sta. Mesa, Manila. The mild
steel plates were ordered in the name of Guaranteed of which respondent Eugenio S. Baltao is the
president and delivered to Guaranteed at Baltao building. Thus, petitioners had every reason to
believe that the Eugenio Baltao who issued the bouncing check is respondent Eugenio S. Baltao
when their counsel wrote respondent to make good the amount of the check and upon refusal, filed
the complaint for violation of BP Blg. 22.
Private respondent, however, did nothing to clarify the case of mistaken identity at first hand.
Instead, private respondent waited in ambush and thereafter pounced on the hapless petitioners at a
time he thought was propitious by filing an action for damages. The Court will not countenance this
devious scheme.

The criminal complaint filed against private respondent after the latter refused to make good the
amount of the bouncing check despite demand was a sincere attempt on the part of petitioners to
find the best possible means by which they could collect the sum of money due them. A person who
has not been paid an obligation owed to him will naturally seek ways to compel the debtor to pay
him. It was normal for petitioners to find means to make the issuer of the check pay the amount
thereof. In the absence of a wrongful act or omission or of fraud or bad faith, moral damages cannot
be awarded and that the adverse result of an action does not per se make the action wrongful and
subject the actor to the payment of damages, for the law could not have meant to impose a penalty
on the right to litigate (Rubio vs. Court of Appeals, 141 SCRA 488 [1986]).

In the case at bar, private respondent does not deny that the mild steel plates were ordered by and
delivered to Guaranteed at Baltao building and as part payment thereof, the bouncing check was
issued by one Eugenio Baltao. Neither had private respondent conveyed to petitioner that there are
two Eugenio Baltaos conducting business in the same building — he and his son Eugenio Baltao III.
Considering that Guaranteed, which received the goods in payment of which the bouncing check
was issued is owned by respondent, petitioner acted in good faith and probable cause in filing the
complaint before the provincial fiscal.

To constitute malicious prosecution, there must be proof that the prosecution was prompted by a
sinister design to vex and humiliate a person, and that it was initiated deliberately by the defendant
knowing that his charges were false and groundless. Concededly, the mere act of submitting a case
to the authorities for prosecution does not make one liable for malicious prosecution. (Manila Gas
Corporation vs. Court of Appeals, 100 SCRA 602 [1980]). Still, private respondent argues that
liability under Articles 19, 20, and 21 of the Civil Code is so encompassing that it likewise includes
liability for damages for malicious prosecution under Article 2219 (8). True, a civil action for damages
for malicious prosecution is allowed under the New Civil Code, more specifically Articles 19, 20, 26,
29, 32, 33, 35, and 2219 (8) thereof. In order that such a case can prosper, however, the following
three (3) elements must be present, to wit: (1) The fact of the prosecution and the further fact that
the defendant was himself the prosecutor, and that the action was finally terminated with an
acquittal; (2) That in bringing the action, the prosecutor acted without probable cause; (3) The
prosecutor was actuated or impelled by legal malice (Lao vs. Court of Appeals, 199 SCRA 58,
[1991]).

Thus, a party injured by the filing of a court case against him, even if he is later on absolved, may file
a case for damages grounded either on the principle of abuse of rights, or on malicious prosecution.
As earlier stated, a complaint for damages based on malicious prosecution will prosper only if the
three (3) elements aforecited are shown to exist. In the case at bar, the second and third elements
were not shown to exist. It is well-settled that one cannot be held liable for maliciously instituting a
prosecution where one has acted with probable cause. "Probable cause is the existence of such
facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within
the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted. In other words, a suit will lie only in cases where a legal prosecution has been carried
on without probable cause. The reason for this rule is that it would be a very great discouragement
to public justice, if prosecutors, who had tolerable ground of suspicion, were liable to be sued at law
when their indictment miscarried" (Que vs. Intermediate Appellate Court, 169 SCRA 137 [1989]).
The presence of probable cause signifies, as a legal consequence, the absence of malice. In the
instant case, it is evident that petitioners were not motivated by malicious intent or by sinister design
to unduly harass private respondent, but only by a well-founded anxiety to protect their rights when
they filed the criminal complaint against private respondent.

To constitute malicious prosecution, there must be proof that the prosecution was
prompted by a sinister design to vex and humiliate a person, that it was initiated
deliberately by the defendant knowing that his charges were false and groundless.
Concededly, the mere act of submitting a case to the authorities for prosecution does
not make one liable for malicious prosecution. Proof and motive that the institution of
the action was prompted by a sinister design to vex and humiliate a person must be
clearly and preponderantly established to entitle the victims to damages (Ibid.).

In the case at bar, there is no proof of a sinister design on the part of petitioners to vex or humiliate
private respondent by instituting the criminal case against him. While petitioners may have been
negligent to some extent in determining the liability of private respondent for the dishonored check,
the same is not so gross or reckless as to amount to bad faith warranting an award of damages.

The root of the controversy in this case is founded on a case of mistaken identity. It is possible that
with a more assiduous investigation, petitioners would have eventually discovered that private
respondent Eugenio S. Baltao is not the "Eugenio Baltao" responsible for the dishonored check.
However, the record shows that petitioners did exert considerable effort in order to determine the
liability of private respondent. Their investigation pointed to private respondent as the "Eugenio
Baltao" who issued and signed the dishonored check as the president of the debtor-corporation
Guaranteed Enterprises. Their error in proceeding against the wrong individual was obviously in the
nature of an innocent mistake, and cannot be characterized as having been committed in bad faith.
This error could have been discovered if respondent had submitted his counter-affidavit before
investigating fiscal Sumaway and was immediately rectified by Provincial Fiscal Mauro Castro upon
discovery thereof, i.e., during the reinvestigation resulting in the dismissal of the complaint.

Furthermore, the adverse result of an action does not per se make the act wrongful and subject the
actor to the payment of moral damages. The law could not have meant to impose a penalty on the
right to litigate, such right is so precious that moral damages may not be charged on those who may
even exercise it erroneously. And an adverse decision does not ipso facto justify the award of
attorney's fees to the winning party (Garcia vs. Gonzales, 183 SCRA 72 [1990]).

Thus, an award of damages and attorney's fees is unwarranted where the action was filed in good
faith. If damage results from a person's exercising his legal rights, it is damnum absque
injuria (Ilocos Norte Electric Company vs. Court of Appeals, 179 SCRA 5 [1989]).

Coming now to the claim of private respondent for actual or compensatory damages, the records
show that the same was based solely on his allegations without proof to substantiate the same. He
did not present proof of the cost of the medical treatment which he claimed to have undergone as a
result of the nervous breakdown he suffered, nor did he present proof of the actual loss to his
business caused by the unjust litigation against him. In determining actual damages, the court
cannot rely on speculation, conjectures or guesswork as to the amount. Without the actual proof of
loss, the award of actual damages becomes erroneous (Guilatco vs. City of Dagupan, 171 SCRA
382 [1989]).

Actual and compensatory damages are those recoverable because of pecuniary loss — in business,
trade, property, profession, job or occupation — and the same must be proved, otherwise, if the
proof is flimsy and unsubstantiated, no damages will be given (Rubio vs. Court of Appeals, 141
SCRA 488 [1986]). For these reasons, it was gravely erroneous for respondent court to have
affirmed the award of actual damages in favor of private respondent in the absence of proof thereof.

Where there is no evidence of the other party having acted in wanton, fraudulent or reckless, or
oppressive manner, neither may exemplary damages be awarded (Dee Hua Liong Electrical
Equipment Corporation vs. Reyes, 145 SCRA 488 [1986]).

As to the award of attorney's fees, it is well-settled that the same is the exception rather than the
general rule. Needless to say, the award of attorney's fees must be disallowed where the award of
exemplary damages is eliminated (Article 2208, Civil Code; Agustin vs. Court of Appeals, 186 SCRA
375 [1990]). Moreover, in view of the fact that there was no malicious prosecution against private
respondent, attorney's fees cannot be awarded him on that ground.

In the final analysis, there is no proof or showing that petitioners acted maliciously or in bad faith in
the filing of the case against private respondent. Consequently, in the absence of proof of fraud and
bad faith committed by petitioners, they cannot be held liable for damages (Escritor, Jr. vs.
Intermediate Appellate Court, 155 SCRA 577 [1987]). No damages can be awarded in the instant
case, whether based on the principle of abuse of rights, or for malicious prosecution. The questioned
judgment in the instant case attests to the propensity of trial judges to award damages without basis.
Lower courts are hereby cautioned anew against awarding unconscionable sums as damages
without bases therefor.

WHEREFORE, the petition is GRANTED and the decision of the Court of Appeals in C.A. G.R. C.V.
No. 14948 dated May 13, 1989, is hereby REVERSED and SET ASIDE. Costs against respondent
Baltao.

SO ORDERED.

G.R. No. 61516 March 21, 1989

FLORENTINA A. GUILATCO, petitioner,

vs.
CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents.

Nolan R. Evangelista for petitioner.

The City Legal Officer for respondents.

SARMIENTO, J.:

In a civil action 1 for recovery of damages filed by the petitioner Florentina A. Guilatco, the following judgment was rendered against
the respondent City of Dagupan:

xxx

(1) Ordering defendant City of Dagupan to pay plaintiff actual damages in the amount
of P 15,924 (namely P8,054.00 as hospital, medical and other expenses [Exhs. H to
 H-60], P 7,420.00 as lost income for one (1) year [Exh. F] and P 450.00 as bonus). P
150,000.00 as moral damages, P 50,000.00 as exemplary damages, and P 3,000.00
as attorney's fees, and litigation expenses, plus costs and to appropriate through its
Sangguniang Panglunsod (City Council) said amounts for said purpose;

(2) Dismissing plaintiffs complaint as against defendant City Engr. Alfredo G.

Tangco; and

(3) Dismissing the counterclaims of defendant City of Dagupan and defendant City
Engr. Alfredo G. Tangco, for lack of merit. 2

The facts found by the trial court are as follows: 3

It would appear from the evidences that on July 25, 1978, herein plaintiff, a Court
Interpreter of Branch III, CFI--Dagupan City, while she was about to board a
motorized tricycle at a sidewalk located at Perez Blvd. (a National Road, under the
control and supervision of the City of Dagupan) accidentally fell into a manhole
located on said sidewalk, thereby causing her right leg to be fractured. As a result
thereof, she had to be hospitalized, operated on, confined, at first at the Pangasinan
Provincial Hospital, from July 25 to August 3, 1978 (or for a period of 16 days). She
also incurred hospitalization, medication and other expenses to the tune of P
8,053.65 (Exh. H to H-60) or a total of P 10,000.00 in all, as other receipts were
either lost or misplaced; during the period of her confinement in said two hospitals,
plaintiff suffered severe or excruciating pain not only on her right leg which was
fractured but also on all parts of her body; the pain has persisted even after her
discharge from the Medical City General Hospital on October 9, 1978, to the present.
Despite her discharge from the Hospital plaintiff is presently still wearing crutches
and the Court has actually observed that she has difficulty in locomotion. From the
time of the mishap on July 25, 1978 up to the present, plaintiff has not yet reported
for duty as court interpreter, as she has difficulty of locomotion in going up the stairs
of her office, located near the city hall in Dagupan City. She earns at least P 720.00 a
month consisting of her monthly salary and other means of income, but since July
25, 1978 up to the present she has been deprived of said income as she has already
consumed her accrued leaves in the government service. She has lost several
pounds as a result of the accident and she is no longer her former jovial self, she has
been unable to perform her religious, social, and other activities which she used to
do prior to the incident.

Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial Hospital, as well as
Dr. Antonio Sison of the Medical City General Hospital in Mandaluyong Rizal (Exh. I;
see also Exhs. F, G, G-1 to G-19) have confirmed beyond shadow of any doubt the
extent of the fracture and injuries sustained by the plaintiff as a result of the mishap.
On the other hand, Patrolman Claveria, De Asis and Cerezo corroborated the
testimony of the plaintiff regarding the mishap and they have confirmed the existence
of the manhole (Exhs. A, B, C and sub-exhibits) on the sidewalk along Perez Blvd.,
at the time of the incident on July 25, 1978 which was partially covered by a concrete
flower pot by leaving gaping hole about 2 ft. long by 1 1/2 feet wide or 42 cms. wide
by 75 cms. long by 150 cms. deep (see Exhs. D and D-1).

Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly ex-officio
Highway Engineer, City Engineer of the Public Works and Building Official for
Dagupan City, admitted the existence of said manhole along the sidewalk in Perez
 Blvd., admittedly a National Road in front of the Luzon Colleges. He also admitted
that said manhole (there are at least 11 in all in Perez Blvd.) is owned by the National
Government and the sidewalk on which they are found along Perez Blvd. are also
owned by the National Government. But as City Engineer of Dagupan City, he
supervises the maintenance of said manholes or drainage system and sees to it that
they are properly covered, and the job is specifically done by his subordinates, Mr.
Santiago de Vera (Maintenance Foreman) and Engr. Ernesto Solermo also a
maintenance Engineer. In his answer defendant Tangco expressly admitted in par. 7-
1 thereof, that in his capacity as ex-officio Highway Engineer for Dagupan City he
exercises supervision and control over National roads, including the Perez Blvd.
where the incident happened.

On appeal by the respondent City of Dagupan, the appellate court 4 reversed the lower court findings on the
ground that no evidence was presented by the plaintiff- appellee to prove that the City of Dagupan had "control or supervision" over Perez
Boulevard. 5

The city contends that Perez Boulevard, where the fatal drainage hole is located, is a national road that is not under the control or
supervision of the City of Dagupan. Hence, no liability should attach to the city. It submits that it is actually the Ministry of Public Highways
that has control or supervision through the Highway Engineer which, by mere coincidence, is held concurrently by the same person who is
also the City Engineer of Dagupan.

After examination of the findings and conclusions of the trial court and those of the appellate court,
as well as the arguments presented by the parties, we agree with those of the trial court and of the
petitioner. Hence, we grant the petition.

In this review on certiorari, we have simplified the errors assigned by the petitioner to a single issue:
whether or not control or supervision over a national road by the City of Dagupan exists, in effect
binding the city to answer for damages in accordance with article 2189 of the Civil Code.

The liability of public corporations for damages arising from injuries suffered by pedestrians from the
defective condition of roads is expressed in the Civil Code as follows:

Article 2189. Provinces, cities and municipalities shall be liable for damages for the
death of, or injuries suffered by, any person by reason of the defective condition of
roads, streets, bridges, public buildings, and other public works under their control or
supervision.

It is not even necessary for the defective road or street to belong to the province, city or municipality
for liability to attach. The article only requires that either control or supervision is exercised over the
defective road or street. 6

In the case at bar, this control or supervision is provided for in the charter of Dagupan and is
exercised through the City Engineer who has the following duties:

Sec. 22. The City Engineer--His powers, duties and compensation-There shall be a
city engineer, who shall be in charge of the department of Engineering and Public
Works. He shall receive a salary of not exceeding three thousand pesos per annum.
He shall have the following duties:

xxx

(j) He shall have the care and custody of the public system of waterworks and
sewers, and all sources of water supply, and shall control, maintain and regulate the
 use of the same, in accordance with the ordinance relating thereto; shall inspect and
regulate the use of all private systems for supplying water to the city and its
inhabitants, and all private sewers, and their connection with the public sewer
system.

xxx

The same charter of Dagupan also provides that the laying out, construction and improvement of
streets, avenues and alleys and sidewalks, and regulation of the use thereof, may be legislated by
the Municipal Board . 7 Thus the charter clearly indicates that the city indeed has supervision and control over the sidewalk where
the open drainage hole is located.

The express provision in the charter holding the city not liable for damages or injuries sustained by
persons or property due to the failure of any city officer to enforce the provisions of the charter, can
not be used to exempt the city, as in the case at bar.8

The charter only lays down general rules regulating the liability of the city. On the other hand article 2189 applies in particular to the liability
arising from "defective streets, public buildings and other public works." 9

The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision over the said road. But the city can not be excused
from liability by the argument that the duty of the City Engineer to supervise or control the said provincial road belongs more to his functions
as an ex-officio Highway Engineer of the Ministry of Public Highway than as a city officer. This is because while he is entitled to an
honorarium from the Ministry of Public Highways, his salary from the city government substantially exceeds the honorarium.

We do not agree.

Alfredo G. Tangco "(i)n his official capacity as City Engineer of Dagupan, as Ex- Officio Highway
Engineer, as Ex-Officio City Engineer of the Bureau of Public Works, and, last but not the least, as
Building Official for Dagupan City, receives the following monthly compensation: P 1,810.66 from
Dagupan City; P 200.00 from the Ministry of Public Highways; P 100.00 from the Bureau of Public
Works and P 500.00 by virtue of P.D. 1096, respectively." 10 This function of supervision over streets, public
buildings, and other public works pertaining to the City Engineer is coursed through a Maintenance Foreman and a Maintenance
Engineer.11 Although these last two officials are employees of the National Government, they are detailed with the City of Dagupan and
hence receive instruction and supervision from the city through the City Engineer.

There is, therefore, no doubt that the City Engineer exercises control or supervision over the public
works in question. Hence, the liability of the city to the petitioner under article 2198 of the Civil Code
is clear.

Be all that as it may, the actual damages awarded to the petitioner in the amount of P 10,000.00
should be reduced to the proven expenses of P 8,053.65 only. The trial court should not have
rounded off the amount. In determining actual damages, the court can not rely on "speculation,
conjecture or guess work" as to the amount. Without the actual proof of loss, the award of actual
damages becomes erroneous. 12

On the other hand, moral damages may be awarded even without proof of pecuniary loss, inasmuch as the determination of the amount is
discretionary on the court.13 Though incapable of pecuniary estimation, moral damages are in the nature of an award to compensate the
claimant for actual injury suffered but which for some reason can not be proven. However, in awarding moral damages, the following should
be taken into consideration:

(1) First, the proximate cause of the injury must be the claimee's acts.14

(2) Second, there must be compensatory or actual damages as satisfactory proof of the factual basis for damages.15

(3) Third, the award of moral damages must be predicated on any of the cases enumerated in the Civil Code. 16
In the case at bar, the physical suffering and mental anguish suffered by the petitioner were proven. Witnesses from the petitioner's place of
work testified to the degeneration in her disposition-from being jovial to depressed. She refrained from attending social and civic activities.17

Nevertheless the award of moral damages at P 150,000.00 is excessive. Her handicap was not
permanent and disabled her only during her treatment which lasted for one year. Though evidence
of moral loss and anguish existed to warrant the award of damages,18 the moderating hand of the law is called
for. The Court has time and again called attention to the reprehensible propensity of trial judges to award damages without basis,19 resulting
in exhorbitant amounts.20

Although the assessment of the amount is better left to the discretion of the trial court 21 under preceding jurisprudence, the amount of moral
damages should be reduced to P 20,000.00.

As for the award of exemplary damages, the trial court correctly pointed out the basis:

To serve as an example for the public good, it is high time that the Court, through this
case, should serve warning to the city or cities concerned to be more conscious of
their duty and responsibility to their constituents, especially when they are engaged
in construction work or when there are manholes on their sidewalks or streets which
are uncovered, to immediately cover the same, in order to minimize or prevent
accidents to the poor pedestrians.22

Too often in the zeal to put up "public impact" projects such as beautification drives, the end is more important than the manner in which the
work is carried out. Because of this obsession for showing off, such trivial details as misplaced flower pots betray the careless execution of
the projects, causing public inconvenience and inviting accidents.

Pending appeal by the respondent City of Dagupan from the trial court to the appellate court, the
petitioner was able to secure an order for garnishment of the funds of the City deposited with the
Philippine National Bank, from the then presiding judge, Hon. Willelmo Fortun. This order for
garnishment was revoked subsequently by the succeeding presiding judge, Hon. Romeo D. Magat,
and became the basis for the petitioner's motion for reconsideration which was also denied. 23

We rule that the execution of the judgment of the trial court pending appeal was premature. We do
not find any good reason to justify the issuance of an order of execution even before the expiration
of the time to appeal .24

WHEREFORE, the petition is GRANTED. The assailed decision and resolution of the respondent
Court of Appeals are hereby REVERSED and SET ASIDE and the decision of the trial court, dated
March 12, 1979 and amended on March 13, 1979, is hereby REINSTATED with the indicated
modifications as regards the amounts awarded:

(1) Ordering the defendant City of Dagupan to pay the plaintiff actual damages in the
amount of P 15,924 (namely P 8,054.00 as hospital, medical and other expenses; P
7,420.00 as lost income for one (1) year and P 450.00 as bonus); P 20,000.00 as
moral damages and P 10,000.00 as exemplary damages.

The attorney's fees of P 3,000.00 remain the same.

SO ORDERED.

[G.R. Nos. 89404-05. May 22, 1992.]

 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EFREN DEGOMA and MARINO
TABORADA, Defendants, MARINO TABORADA, Defendant-Appellant.

SYLLABUS

1. CRIMINAL LAW; CONSPIRACY; MUST BE PROVED AS THE CRIME ITSELF. — The element of conspiracy
must be proved by the same kind of proof — proof beyond reasonable doubt — necessary to establish the
physical acts constituting the crime itself.

2. ID.; ID.; ID.; MAY BE INFERRED FROM THE ACTS OF ALL THE ACCUSED. — The existence of conspiracy
need not be established by direct evidence; nor is it necessary to prove prior agreement between the
accused to commit the crime charged. Indeed, conspiracy is very rarely proved by direct evidence of an
explicit agreement to commit the crime. Thus, the rule is well-settled that conspiracy may be inferred from
the conduct of the accused before, during and after the commission of the crime, where such conduct
reasonably shows community of criminal purpose or design. In the case at bar, the evidence of conspiracy
between Degoma and Taborada was consistent and clear. Appellant Taborada was penniless at the time of
the robbery and needed some transportation money to go back to Cebu City. Taborada personally knew his
co-accused Degoma and both were seen together immediately prior to the robbery. Both appellant Taborada
and co-accused Degoma entered the premises of the Tagbilaran Friendly Bazaar at the same time, on the
pretext that Degoma would purchase some item in the Bazaar. Appellant Taborada stayed at or near the
door of the Bazaar while his co-accused Degoma went straight to where the cashier of the Bazaar was.
Appellant Taborada grappled with the security guard to wrest possession of the service revolver of the guard
and to keep him preoccupied while his co-accused Degoma divested the Bazaar’s cashier of money at gun-
point. We consider that these circumstances are entirely adequate to show that appellant Taborada acted in
unison with Degoma in implementation of a common design to rob the Tagbilaran Friendly Bazaar.

3. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY
UPHELD ON APPEAL. — The pretension of appellant Taborada that he had merely stood by idly at the
entrance of the Bazaar, does not persuade. The prosecution presented three (3) eye-witnesses all of whom
testified consistently that Taborada had grappled with the slain security guard and had tried to wrestle away
the service revolver of the latter. Like the trial court, we find no reason not to accord credence to the
testimonies of the prosecution eye-witnesses. The defense did not even try to show that those witnesses
were moved by some evil motive falsely to testify against Degoma and Taborada.

4. CRIMINAL LAW; CONSPIRACY; THE ACT OF ONE IS THE ACT OF ALL; CASE AT BAR. — The firmly
established rule is that where conspiracy is shown, the act of one conspirator becomes the act of all the
other conspirators and that the precise extent or modality of participation of each of the conspirators in the
crime becomes secondary. Thus, we believe and so hold that appellant Taborada cannot exculpate himself
from the killing of security guard Parilla which took place by reason or on the occasion of the robbery of the
Tagbilaran Friendly Bazaar by simply disclaiming any knowledge that the co-conspirator would go to the
extent of shooting and killing the Bazaar’s security guard.

5. ID.; ROBBERY WITH HOMICIDE; CRIME CHARACTERIZED BY THE RESULT NOT BY THE INTENT. — The
phrases "on the occasion" and "by reason" of the robbery used by Article 294, paragraph 1 of the Revised
Penal Code, refer to a homicide committed in the course of the robbery, without regard to the robbers’
precise intention or alleged lack of intention to kill another, since it is the result rather than the detailed
circumstances, specific causes or modes of intervention of particular persons in the commission of the crime
that is taken into account in characterizing the crime as robbery with homicide.

6. ID.; CONSPIRACY; A CO-CONSPIRATOR’S LIABILITY IS THE LIABILITY OF A PRINCIPAL NOT THAT OF AN

ACCOMPLICE; CASE AT BAR. — Appellant Taborada argues next that while he may have been a co-
conspirator, he should have been found guilty only as an accomplice because his participation in the crime
did not directly aid in the consummation of that crime. This argument will not detain us for long. In the first
place, as already noted, the precise legal effect of a finding of conspiracy is that each co-conspirator
becomes liable for the acts of the other conspirator(s). Taborada did not try to prevent either the robbery or
the homicide. He did not dissociate or attempt to dissociate himself from the robbery with homicide.
Taborada was simply caught and collared by the police before he could escape from the scene of the crime.
Accordingly, he must be held guilty of robbery with homicide although it was Degoma who had shot security
guard Alexander Parilla in the head and although it was Degoma who had physically spirited away the
dollars and pesos he had extracted at gunpoint from the Bazaar’s cashier. Secondly, appellant Taborada had
cooperated with Degoma in the execution of the crime by a simultaneous act which was material to and
indispensable for the consummation of a crime. Appellant Taborada had engaged the attention of the
security guard by grappling with him and seeking to pin him down, to prevent the security guard from
coming to the aid of the Bazaar’s cashier as Degoma at gun-point took away the Bazaar’s money.
Accordingly, Taborada was not merely an accomplice; he was rather a principal by cooperation.

7. CIVIL LAW; DAMAGES; ACTUAL DAMAGES; MUST BE PROVED BY COMPETENT EVIDENCE. — In delict, the
defendant is liable for all damages which are the natural and probable consequences of the act or omission
complained of. To seek recovery for actual damages, it is necessary to prove with a reasonable degree of
certainty, premised upon competent proof and on the best evidence obtainable by the injured party, the
actual amount of loss. Courts cannot simply assume that damages were sustained by the injured party, nor
can it rely on speculation or guesswork in determining the fact and amount of damages.

8. ID.; ID.; ID.; ID.; CASE AT BAR. — The court a quo’s award of actual damages in the amount of
P87,947.94 is not sustained by a review of the evidence of record. Of the expenses allegedly incurred, the
Court can only give credence to those supported by a receipt and which appear to have been genuinely
incurred in connection with the death, wake or burial of the victim. Thus, the Court cannot take account of
receipts showing expenses incurred before the date of the slaying of the victim; those incurred after a
considerable lapse of time from the burial of the victim and which do not have any relation to the death,
wake or burial of the victim; those incurred for purely aesthetic or social purposes, such as the lining with
marble of the tomb of the victim; those which appear to have been modified to show an increase in the
amount of expenditure, such as by adding a number to increase the purchase value from tens to hundreds;
those expenditures which could not be reasonably itemized or determined to have been incurred in
connection with the death, wake or burial of the victim; those which would nonetheless have been incurred
despite the death, wake or burial of the victim, the death, wake or burial being merely incidental; and those
which were not in fact shouldered by the immediate heirs of the victim, such as plane trips by relatives or
in-laws. Having these as guidelines, the Court puts the gross expenses proved by the immediate heirs of the
victim at P10,175.85.

9. ID.; ID.; ID.; OFF-SET BY ALMS RECEIVED. — The Court off-sets the amount of P6,400.00, representing
the alms received by the heirs of the victim, against the above amount of P10,175.85, representing the
expenses proved, leaving the amount of P3,775.85 as the actual amount of loss sustained by immediate
heirs of the victim.

10. ID.; ID.; MORAL DAMAGES; AWARD THEREOF REDUCED IN CASE AT BAR. — The moral damages in the
amount of P200,000.00 awarded by the court a quo are unexplained and unsupported in the court’s
decision. While moral damages are incapable of pecuniary estimation, the Court, under the circumstances
attending the loss, considers it proper to reduce the amount of the award for moral damages to P10,000.00.

11. ID.; ID.; INDEMNITY FOR DEATH TO RAISED P50,000. — The Court, hereby increases the amount of
indemnity for the death of Alexander Parilla to P50,000.00, in line with present jurisprudence.

DECISION

FELICIANO, J.:

Efren Degoma and Marino D. Taborada were charged with the crime of robbery with homicide. They were
arraigned and after trial, were found guilty beyond reasonable doubt of the crime charged. The dispositive
portion of the decision of the trial court read as follows:
jgc: chanrobles. com.ph

"WHEREFORE, premises considered, on the part of Criminal Case No. 5384, the Court hereby finds both
accused EFREN DEGOMA alias BOY and MARINO TABORADA y DECENA, guilty beyond reasonable doubt of
the crime of ROBBERY WITH HOMICIDE, and accordingly sentenced them to the penalty of reclusion
perpetua, and for both accused to jointly and severally indemnify the owners of Tagbilaran Friendly Bazaar
the sum of P200.00 and the equivalent exchange rate prevailing for US$300.00, indemnify the heirs of the
late Alexander Parilla in the sum of P36,000.00 for his death, P200,000.00 for moral damages, P87,947.94
for actual expenses, P5,000.00 for attorney’s fees for counsel of Parilla, and to pay costs, and subsidiary
imprisonment in case of insolvency." 1
Only Marino Taborada appealed from the judgment of conviction. In his brief, appellant Taborada assigned
the following errors: c ralawnad

"The lower court erred in finding that accused-appellant Marino Taborada is a co-conspirator in the crime of
robbery with homicide.

The lower court erred in convicting accused-appellant of the crime of robbery with homicide and sentencing
him to the penalty of reclusion perpetua." 2

In its decision, the trial court summarized the facts which it found to have been established in the following
manner: jgc:chanro bles. com.ph

". . . [O]n April 12, 1988, at about 6:30 in the evening, the peace and quiet of the City of Tagbilaran was
disturbed by the reported robbery with homicide in one of the big business establishments, the Tagbilaran
Friendly Bazaar. In the course of the commission of the crime, an off-duty but much dedicated policeman in
the person of Pat. Verlito Magallanes was able to collar one of the suspects. Because of the energetic,
publicity-shy, well-trained and equally dedicated Station Commander in the person of P/Lt. Cecilio Quevedo,
the second suspect fell into the custody of the police in the matter of about two hours.

There is no question as to how accused Marino Taborada was taken into police custody. He was the first who
was collared by Pat. Magallanes since Taborada was still grappling with the driver of the store, Ciriaco
Baculi. When he was whisked to the police headquarters, he was immediately interrogated and without
offering any hard resistance, Taborada told the police that his companion in robbing the store was a PC
soldier, Efren Degoma. This fact, therefore, answers the query as to how accuse Efren Degoma was brought
into police custody. With such information from Taborada himself, Station Commander Quevedo then formed
a group to track down Degoma. They sealed all possible exit points and, true enough, the police was also
able to bring Degoma into the hands of the law. Whatever transpired immediately before, during and after
the alleged commission of the crime were well-ventilated by the contending parties as discussed above. chanrobles v irt ual lawl ibra ry

The following facts were conclusively established during the hearings, to wit: chanro b1es vi rt ual 1aw li bra ry

1. The Tagbilaran Friendly Bazaar located along Carlos P. Garcia Avenue, City of Tagbilaran was a victim of
robbery on the evening of April 12, 1988, in the sums of US$300 and P200;

2. During such robbery, the security guard of the store, in the person of Alexander Parilla was shot and
killed with the use of a firearm by one of the robbers;

3. Accused Taborada was apprehended by the police while still grappling with Ciriaco Baculi, the driver of
the store;

4. The police was led to accused Efren Degoma on account of the statements made by accused Taborada."
3

Appellant Taborada presented a different view of the facts. He testified the he had known his co-accused
Efren Degoma for about a month before the shooting of Alexander Parilla, when Degoma was still a member
of the Philippine Constabulary Unit quartered in Camp Lapu-Lapu near Taborada’s house in Cebu City. On 11
April 1988, Degoma invited appellant Taborada to Tagbilaran City, Bohol, at the former’s expense. Taborada
accepted the invitation and stayed with Degoma’s family while in Tagbilaran.

On 12 April 1988, appellant Taborada, while still at Tagbilaran City, asked Degoma to help him raise money
to pay for his return trip to Cebu City. In the late afternoon of that same day, Degoma and appellant
Taborada had a few drinks in a place near the Tagbilaran Friendly Bazaar. Later, on the way to Degoma’s
home, they passed by the Friendly Bazaar. Degoma instructed appellant Taborada to wait for the former by
the door of the Bazaar. While waiting for Degoma, appellant Taborada was, according to him, suddenly
apprehended by the security guard of the Bazaar. Acting on instinct, Taborada continued, he tried to resist
but in the ensuing commotion, a third person intervened with the result that appellant Taborada was thrown
out on the road. While the security guard and the third person were trying to overpower appellant Taborada,
Degoma suddenly shot the security guard, without warning. Appellant Taborada was arrested, but Degoma
escaped. At the Tagbilaran Police Station, Taborada identified Degoma as his companion at the vicinity of
the crime and stoutly maintained that he did not know that his companion, Degoma, would rob the Friendly
Bazaar and much less that he would kill the security guard. Thus, appellant Taborada insists that there was
no conspiracy himself and Degoma and that the prosecution had not adequately proved such conspiracy. chanrobles lawlibrary : rednad

It is, of course, true that the element of conspiracy must be proved by the same kind of proof — proof
beyond reasonable doubt — necessary to establish the physical acts constituting the crime itself. However,
the existence of conspiracy need not be established by direct evidence; not is it necessary to prove prior
agreement between the accused to commit the crime charged. Indeed, conspiracy is very rarely proved by
direct evidence of an explicit agreement to commit the crime. Thus, the rule is well-settled that conspiracy
may be inferred from the conduct of the accused before, during and after the commission of the crime,
where such conduct reasonably shows community of criminal purpose or design. 4

In the case at bar, the evidence of conspiracy between Degoma and Taborada was consistent and clear.
Appellant Taborada was penniless at the time of the robbery and needed some transportation money to go
back to Cebu City. Taborada personally knew his co-accused Degoma and both were seen together
immediately prior to the robbery. both appellant Taborada and co-accuse Degoma entered the premises of
the Tagbilaran Friendly Bazaar at the same time, on the pretext that Degoma would purchase some item in
the Bazaar. Appellant Taborada stayed at or near the door of the Bazaar while his co-accused Degoma went
straight to where the cashier of the Bazaar was. Appellant Taborada grappled with the security guard to
wrest possession of the service revolver of the guard and to keep him preoccupied while his co-accused
Degoma divested the Bazaar’s cashier of money at gun-point. We consider that these circumstances are
entirely adequate to show that appellant Taborada acted in unison with Degoma in implementation of a
common design to rob the Tagbilaran Friendly Bazaar.

The pretension of appellant Taborada that he had merely stood by idly at the entrance of the Bazaar, does
not persuade. The prosecution presented three (3) eye-witnesses all of whom testified consistently that
Taborada had grappled with the slain security guard and had tried to wrestle away the service revolver of
the latter. Like the trial court, we find no reason not to accord credence to the testimonies of the
prosecution eye-witnesses. The defense did not even try to show that those witnesses were moved by some
evil motive falsely to testify against Degoma and Taborada.

Appellant Taborada then argues that, granting arguendo that conspiracy had been adequately shown, he
should not be held accountable for the slaying of the security guard because he (Taborada) had no prior
knowledge that his co-accused Degoma would shoot and kill the security guard.

The firmly established rule is that where conspiracy is shown, the act of one conspirator becomes the act of
all the other conspirators and that the precise extent or modality of participation of each of the conspirators
in the crime becomes secondary.

In People v. Roel Punzalan, 5 the Court said: jgc:chanroble s.com. ph

". . . One who joins a criminal conspiracy in effect adopts as his own the criminal designs of his co-
conspirators; he merges his will into the common felonious intent. A person who embraces a criminal
conspiracy is properly held to have cast his lot with his fellow conspirators and to have taken his chances
that things may go awry and that the offended party may resist or third persons may get killed in the course
of implementing the basic criminal design. To free himself from such criminal liability, the law requires some
overt act on the part of the conspirator, to seek to prevent commission of the second or related felony or to
abandon or dissociate himself from the conspiracy to commit the initial felony. (People v. Salvador, 163
SCRA 574, 580-582 [1988]; People v. Bazar, 162 SCRA 609, 617 [1988]; People v. Escober, 157 SCRA 541,
567 [1988]; People v. Pelagio, 20 SCRA 153, 159-160 [1967])" (Emphasis supplied).

Thus, we believe and so hold that appellant Taborada cannot exculpate himself from the killing of security
guard Parilla which took place by reason or on the occasion of the robbery of the Tagbilaran Friendly Bazaar
by simply disclaiming any knowledge that the co-conspirator would go to the extent of shooting and killing
the Bazaar’s security guard. The phrases "on the occasion" and "by reason" of the robbery used by Article
294, paragraph 1, of the Revised Penal Code, refer to a homicide committed in the course of the robbery,
without regard to the robber’s precise intention or alleged lack of intention to kill another, since it is the
result rather than the detailed circumstances, specific cause or modes of intervention of particular persons in
the commission of the crime that is taken into account in characterizing the crime as robbery with homicide.
6chanrobles. com.ph : vi rtua l law lib rary

Appellant Taborada argues next that while he may have been a co-conspirator, he should have been found
guilty only as an accomplice because his participation in the crime did not directly aid in the consummation
of that crime. This argument will not detain us for long. In the first place, as already noted, the precise legal
effect of a finding of conspiracy is that each co-conspirator becomes liable for the acts of the other
conspirator(s). Taborada did not try to prevent either the robbery or the homicide. He did not dissociated or
attempt to dissociated himself from the robbery with homicide. Taborada was simply caught and collared by
the police before he could escape from the scene of the crime. Accordingly, he must be held guilty of
robbery with homicide although it was Degoma who had shot security guard Alexander Parilla in the head
and although it was Degoma who had physically spirited away the dollars and pesos he had extracted at
gunpoint from the Bazaar’s cashier. Secondly, appellant Taborada had cooperated with Degoma in the
execution of the crime by a simultaneous act which was material to and indispensable for the consummation
of a crime. Appellant Taborada had engaged the attention of the security guard by grappling with him and
seeking to pin him down, to prevent the security guard from coming to the aid of the Bazaar’s cashier as
Degoma at gun-point took away the Bazaar’s money. Accordingly, Taborada was not merely an accomplice;
he was rather a principal by cooperation. 7 We agree with the position taken by the Solicitor General on this
point:jgc:cha nrob les.co m.ph

"The act of [accused] appellant [Taborada] in holding on to the security guard of the said store [Tagbilaran
Friendly Bazaar], the victim Alex Parilla, and grappling with the latter for the possession of his gun is not an
isolated act but a deliberated and planned course of action designed to both accused to enable accused
Efren Degoma to commit the robbery at the cash counter of the store, unhampered by the possible
intervention of the security guard. In fact, [accused] appellant’s aforesaid participation is an integral part of
their plan without which the robbery could not have been consummated. Accused Efren Degoma’s act of
robbing money at the cash counter of the said store by holding the manager, Danny Merchandani, at
gunpoint could not have been made possible were it not for [accused] appellant’s act of neutralizing the
security guard of the sore, so to speak, by grappling with the latter for the possession of the gun."
(Emphasis supplied)

Turning to the civil aspect of the case, the court a quo had overlooked certain evidentiary facts in its award
of damages. In delict, the defendant is liable for all damages which are the natural and probable
consequences of the act or omission complained of. 8 To seek recovery for actual damages, it is necessary
to prove with a reasonable degree of certainty, premised upon competent proof and on the best evidence
obtainable by the injured party, the actual amount of loss. 9 Courts cannot simply assume that damages
were sustained by the injured party, nor can it rely on speculation or guesswork in determining the fact and
amount of damages.

The court a quo’s award of actual damages in the amount of P87,947.94 is not sustained by a review of the
evidence of record. Of the expenses allegedly incurred, the Court can only give credence to those supported
by a receipt and which appear to have been genuinely incurred in connection with the death, wake or burial
of the victim. Thus, the Court cannot take account of receipts showing expenses incurred before the date of
the slaying of the victim; those incurred after a considerable lapse of time from the burial of the victim and
which do not have any relation to the death, wake or burial of the victim; those incurred for purely aesthetic
or social purposes, such as the lining with marble of the tomb of the victim; those which appear to have
been modified to show an increase in the amount of expenditure, such as by adding a number to increase
the purchase value from tens to hundreds; those expenditures which could not be reasonably itemized or
determined to have been incurred in connection with the death, wake or burial of the victim; those which
would nonetheless have been incurred despite the death, wake or burial of the victim, the death, wake or
burial being merely incidental; and those which were not in fact shouldered by the immediate heirs of the
victim, such as plane trips by relatives or in-laws. Having these as guidelines, the Court puts the gross
expenses proved by the immediate heirs of the victim at P10,175.85. 10

The Court off-sets the amount of P6,400.00, representing the alms received by the heirs of the victim, 11
against the above amount of P10,175.85, representing the expenses proved, leaving the amount of
P3,775.85 as the actual amount of loss sustained by immediate heirs of the victim.

The moral damages in the amount of P200,000.00 awarded by the court a quo are unexplained and
unsupported in the court’s decision. While moral damages are incapable of pecuniary estimation, the Court,
under the circumstances attending the loss, considers it proper to reduce the amount of the award for moral
damages to P10,000.00. The Court, however, hereby increases the amount of indemnity for the death of
Alexander Parilla to P50,000.00 in line with present jurisprudence.

WHEREFORE, the Decision of the Regional Trial Court of Tagbilaran, Bohol, Branch 2 in Criminal Case No.
5384 dated 26 December 1988, is hereby MODIFIED to the extent that both accused shall be solidarily liable
only for the amounts of: (a) P3,775.85 as actual damages; (b) P10,000.00 as moral damages; and (c)
P50,000.00 as indemnity for the death of Alexander Parilla. In all other respects, the decision of the trial
court is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

G.R. No. 104774-75 October 8, 1997

ZACARIAS OARDE and PRESENTACION MOLAR, petitioners,

vs.
COURT OF APPEALS, SPOUSES WILFREDO and LOURDES GUERRERO and SPOUSES
ROGELIO and VILMA MOLAR, respondents.

PANGANIBAN, J.:

Trial and appellate courts determine the existence (or nonexistence) of a tenancy relationship on the
basis of the evidence presented by the parties. Certifications of administrative agencies and officers
declaring the existence of a tenancy relation are merely provisional. They are persuasive but not
binding on courts, which must make their own findings.

The Case

This principle is stressed by this Court as it rules on the instant petition for review on certiorari under
Rule 45 of the Rules of Court assailing the February 26, 1992 Decision1 of Respondent Court of
Appeals2 in CA G.R. CV No. 29453-54, the dispositive portion of which reads:3

WHEREFORE, the judgment appealed from is set aside and another one entered as
follows:

In Civil Case No. 7975:

(1) Plaintiff Zacarias Oarde is ordered reinstated as lawful tenant-tiller of Lot 17 of the
Agrarian Reform Project for Barangay Gotob, Camalig, Albay and restored
immediately to the possession thereof.

(2) Defendants Rogelio Molar and Vilma Molar are ordered to pay damages to
plaintiff Zacarias Oarde in the sum of P5,850.00.

The decision of the court a quo dismissing the complaint of Presentacion Molar in
Civil Case No. 7960 is hereby affirmed.

No pronouncement as to costs.

Although Oarde was reinstated as tenant by the Court of Appeals, he is nonetheless dissatisfied and
claims a larger amount of damages. On the other hand, Molar desires to be recognized as a tenant
of private respondents and to be granted damages for her eviction. Hence, this recourse to this
Court.

The Facts
The Court finds that the facts and allegations of the contending parties are fairly recited in the trial
court's decision, viz.:4

The plaintiffs [petitioners herein] seek to enjoin the defendants [private respondents
herein] from removing the former as tenant-tillers of the land in question and are
likewise requesting for damages, as a result of their dislocation from the land.

The following facts are admitted by the parties:

1. Their identity;

2. That the original tenant-tiller of the land was

Francisco Molar, father of the plaintiff Presentacion
Molar, and father-in-law of the other plaintiff Zacarias
Oarde;

3. That the eldest and only son of Francisco Molar is

Basilio Molar;

4. That defendant Rogelio Molar is the grandson of

Francisco Molar, the former being the son of Basilio
Molar;

5. That defendant spouses Wilfredo Guerrero and

Lourdes Guerrero sold the herein involved parcels of
land to the defendant spouses Rogelio Molar and
Vilma Molar sometime in October 1987.

The issue to be determined as per order of the Court dated 15 September 1988 in
Civil Case No. 7975, and order dated 27 June 1988 in Civil Case No. 7960, is
whether plaintiffs in both cases are tenants of defendants in possession of the land
and cannot be ejected therefrom except for cause.

It is the claim of the plaintiffs that they are [tenant-tillers] of the land in question.

Plaintiff Zacarias Oarde, testified that he began to till the land in question on April 29,
1964 when he got married to the daughter of Francisco Molar, and to substantiate his
claim, he presented as one of his witnesses Gregorio Magnaye, an employee of the
Bureau of Lands. He was the Chief of a Survey Team that conducted the survey in
Gotob. The other members were technicians from the DAR.

He testified on cross-examination that in preparing the Summary Lists of the tenant-

tillers in Gotob, Camalig, Albay, they conducted a barrio assembly. They arrived at
the conclusion that certain persons were tilling certain properties owned by other
persons because that was the listing of the DAR technicians (p. 11, tsn, Nov. 16,
1988). Before the survey was conducted, they gathered the tenants together with the
barangay officials and interviewed them if they are the ones cultivating the property.
The ones listed in the Summary Lists were the ones whose names were given by the
barrio officials (p. 13, tsn. Nov. 16, 1988). Based on their survey, Zacarias Oarde
was tilling two lots, Lots 17 and 18. These were the areas pointed to by Pedro
Cervantes (p. 15, tsn. Nov. 16, 1988). (Zacarias, however, when he testified claims
that he is tilling only one lot, Lot 17) Witness Magnaye alleged that as far as the
property being tilled by Zacarias is concerned, information was given by Pedro
Cervantes (p. 19). During the survey, Zacarias Oarde was not around. Zacarias
admitted that when the survey was made, he was not present.

Another witness presented was Gregorio Medina. He was the President of the
Samahang Nayon of Gotob in 1977. He knows the plaintiff Zacarias Oarde because
the latter is a member of the Samahang Nayon. He alleged that he is not very
particular about the land that the farmer-members till, but when they register for
membership, he is informed that they are leaseholders (p. 2, tsn. 8 Dec. 1988). He
signed this Exhibit A, in 1977, when he was called by the DAR personnel to their
office. The document was already prepared. He did not read the contents. He really
does not know if Zacarias was doing the farming all by himself because several
people are tilling the land aside from Zacarias. Zacarias likewise works on the field of
others. He had no hand in the preparation of the lists and he was not present when
the persons included therein signed their names. He likewise did not verify whether
the persons in the list were really farmers of the landholdings as mentioned therein.
He knows for a fact that the former farmer of these lands in question was Francisco
Molar.

Another witness presented was Gil Nabio. He testified that he personally knows
Zacarias Oarde being a neighbor. Zacarias is tilling a land owned by Atty. Wilfredo
Guerrero and saw him working on the field.

The wife, Melicia Oarde, likewise took the witness stand and testified that as tenant-
tillers, they gave the owner's share to Atty. Wilfredo Guerrero.

On the claim of plaintiff Presentacion Molar in Civil Case 7960, she alleged that she
is a tenant-lessee of the land in question previously owned by Atty. Wilfredo
Guerrero. She started tilling the land in 1965. Before, she owned a carabao but sold
it. She caused the land to be worked on "Pakyaw" basis, hiring different persons for
different work. She actually does not till the land (p. 16, tsn. July 11, 1989).

According to Zacarias Oarde who testified in behalf of Presentaction (sic), the latter
began tilling in 1968. She is not married and she only hires laborers to till the land. It
was Francisco Molar who distributed to his children the land they are farming.
Presentacion hires laborers to prepare and plant the land. She does not actually till
the land (p. 18, tsn. May 16, 1989).

Jose Neo, an employee of the DAR, testified that he did not in any way participate in
the preparation of the document presented in evidence. He did not know whether it is
genuine or a tampered one.

On the other hand, defendants in both cases claim that plaintiffs Presentacion Molar
and Zacarias Oarde are not tenant-tillers of the land in question.

Basilio Molar, a witness for the defendants testified that Atty. Wilfredo Guerrero owns
only one parcel of land in Gotob and this was previously farmed by his father
Francisco Molar. After Francisco Molar's death, the land was tilled by witness Basilio
Molar. Presentacion Molar and Zacarias Oarde are only helpers. From the share of
the tenant-tiller Francisco Molar, Presentacion and Zacarias get their share.
 Another witness was Ernesto Nares. He was one of the buyers of the property
together with Rogelio Molar.

On cross-examination he stated that Zacarias Oarde and Presentacion Molar are not
tillers of any land, whether coconut or riceland (p. 6, tsn, Nov. 3, 1989).

Rogelio Molar and defendant Wilfredo Guerrero likewise took the witness stand but
their testimony centered on the denials that Presentacion Molar and Zacarias Oarde
are tenants of the land.

The trial court held that Petitioners Molar and Oarde were not lawful tenants of private respondents.
As noted above, public respondent-affirmed the trial court's ruling in regard to Petitioner Molar, bur
reversed it with respect to Petitioner Oarde. It ordered the reinstatement of Oarde as a tenant and
awarded him damages in the sum of P5,850.00.

Before us, Petitioner Molar prays that she be declared as a lawful tenant, and Petitioner Oarde asks
that the damages awarded to him be increased from P5,850.00 to P13,850.00. Private respondents
do not question the Decision of public respondent.

The Issues

Petitioners list the following assignment of errors in their petition5 and memorandum:6

I. The appellate court erred in not giving credence and probative

value to the official and public documents showing Presentacion
Molar as the registered tenant-tiller of the lot in question.

II. The appellate court erred in notconsidering (sic) substantial facts,

the testimonial evidence and admissions that greatly affected the
result of this case.

III. The appellate court erred in not applying the provsions (sic) of the
New CARP7 Law (RA 6657) and other applicable laws and
jurisprudence favorable to tenant-tiller, Presentacion Molar.

IV. The appellate court erred in not computing correctly the total
share that Zacarias Oarde was deprived of since October 1987 to the
present.

V. The appellate court erred in not awarding actual damages,

attorney's fees, litigation expenses, moral and exemplary damages to
plaintiffs.

To avoid needless repetition, the Court believes that the issues may be condensed into three:

1. Is Petitioner Molar a lawful tenant?

2. Is the award to Petitioner Oarde of P5,850 as his lawful share in the harvests of his tilled land from
October 1987 to May 1991 correct?
3. Are petitioners entitled to moral and exemplary damages as well as attorney's fees and litigation
expenses?

The Court's Ruling

The appeal has no merit.

First Issue: Is Petitioner Molar a

Lawful Tenant-Tiller?

The essential requisites of a tenancy relationship are the following: (1) the parties are the landowner
and the tenant; (2) the subject is agricultural land; (3) there is consent; (4) the purpose is agricultural
production; (5) there is personal cultivation; and (6) there is sharing of harvests. All these must
concur to establish the juridical relationship of tenancy.8

Markedly absent in the case of Petitioner Molar is the element of "personal" cultivation. Both the trial
court and the Court of Appeals found that Molar herself did not actually cultivate the land, nor did her
immediate family or farm household. Instead, she hired other people to do all phases of farm
work.9 Even her co-petitioner testified that she did not actually till the land and that she merely paid
laborers to perform such task. 10 Thus, public respondent aptly held: 11

The trial court noted that Presentacion made inconsistent answers when asked when
she began tilling the land, before she finally declared that she started tilling the
property way back in 1965 (tsn, July 1, 1989). However, the element of personal
cultivation is essential for an agricultural leasehold; that is, that there should be
personal cultivation by the tenant or by his immediate farm household or members of
the family of the lessee or other persons who are dependent upon him for support or
who usually help him in his activities (Evangelista vs. CA, 158 SCRA 41). The law is
explicit in requiring the tenant and his immediate family to work the land (Bonifacio
vs. Dizon, 177 SCRA 294), and the lessee cannot hire many persons to help him
cultivate the land (De Jesus vs. IAC, 175 SCRA 559).

In this case, Zacarias Oarde, testifying for Presentacion Molar, (tsn, May 16, 1989)
declared that Presentacion "does not actually till the land but she pays laborers to till
the land" (p. 12); she is single, owns no working animals, nor farm implements (p.
9). Presentacion herself admitted that she has "the property tenanted on pakyaw
basis' meaning that she hires different persons for harrowing, for plowing, and for
harvesting and that she did not actually till the land, but merely says others "because
(I) am a woman"; she owns a small store (tsn, July 11, 1989, pp. 16-19).

We agree with the trial court that We cannot have a case where a landlord is
divested of his landholding and somebody else is installed to become a new landlord.
(Emphasis supplied.)

We stress that both the respondent appellate court and the trial court found that Petitioner Molar was
not a tenant of Private Respondent Wilfredo Guerrero. Petitioners are in effect asking this Court to
assess the evidentiary basis of the foregoing factual conclusion. This we cannot do. In Fuentes
vs. Court of Appeal, 12 we explained that only questions of law could be raised in a petition for review
on certiorari under Rule 45 of the Rules of Court:

Jurisprudence teaches us that "(a)s a rule, the jurisdiction of this Court in cases
brought to it from the Court of Appeals . . . is limited to the review and revision of
 errors of law allegedly committed by the appellate court, as its findings of fact are
deemed conclusive. As such this Court is not duty-bound to analyze and weigh all
over again the evidence already considered in the proceedings below. This rule,
however, is not without exceptions." 13 The findings of fact of the Court of Appeals,
which are as a general rule deemed conclusive, may admit of review by this Court: 14

(1) when the factual findings of the Court of Appeals

and the trial court are contradictory;

(2) when the findings are grounded entirely on

speculation, surmises, or conjectures;

(3) when the inference made by the Court of Appeals

from its findings of fact is manifestly mistaken, absurd,
or impossible;

(4) when there is grave abuse of discretion in the

appreciation of facts;

(5) when the appellate court, in making its findings,

goes beyond the issues of the case, and such
findings are contrary to the admissions of both
appellant and appellee;

(6) when the judgment of the Court of Appeals is

premised on a misapprehension of facts;

(7) when the Court of Appeals fails to notice certain

relevant facts which, if properly will considered, will
justify a different conclusion;

(8) when the findings of fact are themselves

conflicting;

(9) when the findings of fact are conclusions without

citation of the specific evidence on which they are
based; and

(10) when the findings of fact of the Court of Appeals

are premised on the absence of evidence but such
findings are contradicted by the evidence on record.

Whether Petitioner Molar was a tenant-tiller is a question of fact. Molar has not shown that her case
falls under any of the recognized exceptions to the ironclad rule that only questions of law may be
raised before this Court in a petition for review under Rule 45 of the Rules of Court. 15

In any event, Petitioner Molar submitted the following documentary exhibits to support her claim that
she was a tenant:

Exhibit A Summary List of Rice and Corn Lands

A-1 Signature of defendant Rogelio Molar
 A-2 Signature of the Barangay Captain
A-3 Signature of the President, Samahang Nayon
B Addendum Index Log Sheet
B-1 Lot 17 & 18
C Police Blotter re: complaint of plaintiffs-appellants
C-1 Signature of Jose Segovia, Team Leader, I DAR
D Parcellary Map[p]ing Sheet
E Letter of Atty. Lladoc of DAR to the Station Commander,
Camalig, Albay
G DAR letter to parties re: Mediation Conference.

She adds that she "has been a registered tenant-tiller of Lot 1 since
1977" 16 as evidenced by certifications from a team leader of the Department of Agrarian Reform
(DAR). These documents, she argues, show that she was a tenant of the land in question because
"factual findings of administrative agencies are entitled to great respect and even accorded
finality." 17 Petitioner Molar prays that we give credence to these documents in her favor, in the same
way that the Respondent Court did in favor of Petitioner Oarde. She also contends that Don Pepe
Henson Enterprises vs. Pangilinan 18 is "on all fours" with the present controversy, specifically citing
the following pronouncement of the Court therein:

We also note that private respondents have already been listed as farmer
beneficiaries of the Land Transfer program of the government, as certified by the
Team Office of the Ministry of Agrarian Reform. This fact reaffirms the conclusion of
tenancy reached in this case, and strengthens our view that these tillers of the soil
are to be respected in the cultivation of their landholdings.

We are not impressed by petitioner's reliance on numerous certifications of administrative agencies

that she was a tenant of Lot 1. Assessing the evidence in hand, both lower courts concluded that
Petitioner Molar was not a tenant. The certifications issued by administrative agencies or officers
that a certain person is a tenant are merely provisional and not conclusive on courts, as ruled by this
Court in Cuaño vs. Court of Appeals. 19 citing Puertollano vs. IAC: 20

Secondly, the certification issued by Mr. Eugenio Bernardo of the MAR (Ministry of
Agrarian Reform) is very much like the certifications issued by the Secretary of
Agrarian Reform and other officials of the Ministry and later the Department of
Agrarian Reform concerning the existence of tenancy relationships in respect of
agricultural lands from which persons, who claim to be tenants, are sought to be
ejected. It is well-settled that the findings of or certifications issued by the Secretary
of Agrarian Reform, or his authorized representative, in a given locality concerning
the presence or absence of a tenancy relationship between the contending parties is
merely preliminary or provisional and is not binding upon the courts. Thus,
in Puertollano, et al. v. Hon. Intermediate Appellate Court, et al., this Court held that:

From the foregoing provisions of the law [Section 2 P.D. No. 316 and
Section 2 P.D. No. 1038], it is clear that the trial court cannot take
cognizance of any ejectment case or any other case designed to
harass or remove a tenant in an agricultural land primarily devoted to
rice and corn without first referring the same to the Secretary of
Agrarian Reform or his authorized representative in the locality for
a preliminary determination of the relationship between the
contending parties. If said officer finds that the case is proper for
determination by the court it shall so certify and thence said court
 may assume jurisdiction over the dispute or controversy. Such
preliminary determination of the relationship however, is not binding
upon the court. Said court may after due hearing confirm, reverse or
modify said preliminary determination as the evidence and substantial
merit of the case may warrant. (Emphasis supplied)

Furthermore, these documents were based merely on bare ex parte allegations of different
persons. 21 Even worse, Molar's own witness, Jose Neo, "an employee of DAR," testified that "he did
not in any way participate in the preparation of the document presented in evidence." 22

In Don Pepe Henson Enterprises, cited by petitioners, the conclusion of this Court on the existence
of a tenancy relationship was based on the evidence presented before the trial court and not on the
certifications issued by the DAR; said certifications merely "reaffirm[ed]" and "strengthen[ed]" the
conclusion of the court. In other words, the cited case is inapplicable to the present controversy
because Petitioner Molar has not convinced us that she was a tenant in the first place.

Petitioner Molar further argues that Respondent Court failed to apply the following laws:

1. Section 6, RA 6657 23

2. Section 106, PD 1529 24

3. Section 10, RA 3844 25

4. Section 9, RA 1199 as Amended by RA 2263 26

5. Section 4, PD 583 27

6. Section 12, RA 6389 28

The foregoing provisions enumerate the benefits available to a tenant. Presentation Molar cannot
claim such benefits because, precisely, she failed to prove that she was a tenant at all.

Second Issue: Share of Petitioner Oarde from Harvests

Petitioner Oarde contends that Respondent Court erred in computing the award due him. He claims
it should be P13,850.00, not P5,800.00, representing "the loss of 70 cavans of palay for the period
October 1987 to May 1991 (filing of Brief) priced at P195.00 [each] or a total of P13,850.00,
corresponding to seven (7) harvest seasons for three and one-half years (3 1/2) counted from
October 1987 to May 1991." 29

We are not convinced. A party is entitled to adequate compensation only for duly proved pecuniary
loss actuallysuffered by him or her. Such damages, to be recoverable, must not only be capable of
proof, but must actually be proved with a reasonable degree of certainty. Damages cannot be
presumed or premised on conjecture or even logic. In making an award, courts must point out
specific facts which show a basis for the amount of compensatory or actual damages. 30 The claim of
70 cavans of palay is based on the unsubstantiated allegation that the subject riceland yielded two
harvests a year. We need only to quote the finding of the appellate court to show the folly of Oarde's
peroration on this point: 31
 In their brief, the plaintiff-appellant Oarde seeks actual damages corresponding to
the loss he suffered for failing to get his share of the produce since October 1987 —
alleging that his average share is 10 cavanes. Melicia Oarde testified that since
October 1987, they were not able to get their share of the produce, averaging 10
cavanes of palay (after deducting the landowner's share) for the third planting season
(tsn, Dec. 9, 1988, p. 8). There is no other credible evidence of record pertinent to
the claim of pecuniary loss of 70 cavanes based on the alleged prevailing price of
P184.00 to P197.00 per cavan of palay. Accordingly, the award for actual damages
on the basis of the unlawful dispossession by the vendee defendants Rogelio and
Vilma Molar is calculated at 30 cavanes at the average price of P195.00 prevailing at
that time (not disputed by appellee) or P5,580.00.

Third Issue: Damages, Litigation Costs and Attorney's Fees

Petitioners plead that they were "dispossessed of their landholding" and "compelled to litigate and
incur expenses in the prosecution of this suit," which entitle them to attorney's fees under Article
2208 32 of the Civil Code. Further, they also pray for an award of P6,000.00 as "actual expenses" and
the additional amount of P4,000.00 which they incurred in this appeal. Petitioners claim P10,000.00
as moral damages for their "economic, physical and emotional sufferings" which were the "inevitable
and proximate result of their being ousted from the land without any justifiable cause." They leave to
the sound discretion of this Court their claim for exemplary or corrective damages. 33

Respondent Court denied the claims for "moral and exemplary damages and attorney's fees . . . for
lack of legal and/or factual basis." 34 We find no error in such ruling.

The award of attorney's fees depends upon the circumstances of each case and lies within the
discretion of the court. We scoured the records and, like the Court of Appeals, found no legal, factual
or equitable justification for the award of attorney's fees.

Likewise, we deny the claim for moral and exemplary damages. Aside from the naked allegations of
physical and emotional sufferings, petitioners failed to substantiate their claims. Likewise, exemplary
damages are imposed not to enrich one party or impoverish another, but to serve as a deterrent
against or as a negative incentive to socially deleterious actions. In this case, no harmful act can be
attributed to the private respondents which warrants the award of exemplary damages.

WHEREFORE, the petition is hereby DENIED. The assailed DECISION is AFFIRMED in toto. Costs
against petitioners.

SO ORDERED.

FIRST DIVISION

[G.R. No. 86500. November 21, 1990.]

LEONARDO SALAS, Petitioner, v. COURT OF APPEALS AND ROXAS Y CIA, Respondents.

Pedro N . Belmi for Petitioner.

Hector A . Villacorta for Private Respondent.

Siguion Reyna, Montecillo & Ongsiako collaborating counsel for Private Respondent.
 SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; ONLY QUESTIONS OF LAW MAY BE RAISED;
FACTUAL FINDINGS OF THE APPELLATE COURT, CONCLUSIVE AND BINDING ON THE SUPREME COURT. —
This is a petition for review by certiorari of the decision of the Court of Appeals under Rule 45 of the Rules of
Court. In this proceeding only questions of law may be raised. Petitioner’s claim for damages is a factual
issue which may not be entertained. The findings of facts of the appellate court to the effect that there is no
proof of actual damages are conclusive and binding on this Court.

2. CIVIL LAW; DAMAGES; BURDEN OF PROOF IS ON THE PARTY CLAIMING THE SAME. — Further, the
argument of petitioner that assuming there is no evidence of actual damages, the Court of Appeals should
have asked petitioner to present evidence in this aspect as it is authorized to receive evidence in accordance
with Section 18, P.D. No. 945 and Section 9, B.P. Blg. 129, is untenable. The burden of proof of the
damages suffered is on the party claiming the same. It is the duty of petitioner to present evidence to
support his claim for actual damages. If he failed to do so he has only himself to blame if no award for
actual damages is handed down.

DECISION

GANCAYCO, J.:

The sole issue in this petition concerns the right of a tenant to actual damages upon reinstatement.

On March 31, 1975, petitioner filed an action to be declared the lawful tenant of private respondent with the
Court of Agrarian Relations of Lipa City. On June 6, 1988, the Regional Trial Court of Balayan, Batangas,
which replaced the Court of Agrarian Relations, rendered a decision finding that petitioner was not a bona-
fide tenant of the four (4) hectares of agricultural land formerly tenanted by the father of petitioner.
Nonetheless, private respondent was ordered by the court to pay damages in the amount of P5,000.00 to
petitioner.

Petitioner interposed an appeal to the Court of Appeals wherein in due course a decision was rendered on
November 25, 1985 reversing and setting aside the appealed decision and reinstating petitioner as the
lawful tenant of private respondent in lieu of his deceased father Benigno-Salas, and requiring private
respondent to pay petitioner P5,000.00 as nominal damages and P15,000.00 exemplary damages both to
earn interest until fully paid. 1

As no actual damages were awarded to petitioner, a partial appeal was undertaken by way of this petition to
this Court containing the following allegations:cha nro bles vi rtua lawlib rary chan roble s.com:cha nro bles. com.ph

"A — RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN FINDING AND
CONCLUDING THAT THERE IS NO WAY OF AWARDING ACTUAL DAMAGES AS THERE IS ‘NO BASIS FOR
DETERMINING THE SAME’, NOTWITHSTANDING EXISTENCE OF SUBSTANTIAL EVIDENCE SPREAD ON
RECORD AND CITED IN THE MEMORANDUM OF HEREIN PETITIONER.

B — ASSUMING THAT THERE IS NO SUBSTANTIAL EVIDENCE TO SUPPORT THE AWARD FOR ACTUAL
DAMAGES, RESPONDENT COURT OF APPEALS COMMITTED AN ERROR OF LAW AND/OR GRAVE ABUSE OF
DISCRETION IN FAILING TO COMPLY WITH THE EXPRESS MANDATE OF THE THIRD PARAGRAPH OF
SECTION 18, PD 945, AND SECTION 9, BP BLG. 129, VESTING UPON THE RESPONDENT COURT OF APPEALS
TO TAKE INTO CONSIDERATION ANY ISSUE, QUESTION OR INCIDENT, EVEN IF NOT RAISED, FOR A
COMPLETE AND JUST DISPOSITION OF THE CASE AND AUTHORIZING THE SAID RESPONDENT COURT OF
APPEALS TO TRY AND CONDUCT HEARINGS, RECEIVE EVIDENCE AND PERFORM ANY AND ALL ACTS
NECESSARY TO RESOLVE FACTUAL ISSUES RAISED IN CASES FALLING WITHIN ITS ORIGINAL AND
APPELLATE JURISDICTION, INCLUDING THE POWER TO GRANT AND CONDUCT NEW TRIALS OR FURTHER
PROCEEDINGS IN ORDER THAT FACTUAL BASIS MAY BE OBTAINED AS A BASIS OF DETERMINING THE
AWARD FOR ACTUAL DAMAGES AS PROVIDED FOR UNDER THE FIRST PARAGRAPH OF SECTION 31, REP.
ACT NO. 3844.

C — RESPONDENT COURT OF APPEALS HAVING AWARDED EXEMPLARY DAMAGES OF P15,000.00 PLUS

NOMINAL DAMAGES OF P5,000.00 TO PETITIONER COMMITTED AN ERROR OF LAW IN NOT AWARDING
REASONABLE ATTORNEYS FEES AS PROVIDED FOR UNDER ARTICLE 2208, NEW CIVIL CODE." 2

Petitioner invokes the provisions of Section 31, paragraph 1 of Republic Act No. 3844 which provides: c hanro bles law l ib rary

"It shall be unlawful for the agricultural lessor: chan rob1e s virtual 1aw l ibra ry

(1) To dispossess the agricultural lessee of his landholding except upon authorization of the Court under
Section thirty-six. Should the agricultural lessee be dispossessed of his landholding without authorization
from the Court, the agricultural lessor shall be liable for damages suffered by the agricultural lessee in
addition to the fine or imprisonment prescribed in this Code for unauthorized dispossession. (Emphasis
supplied.)"

On the basis thereof petitioner alleges that he is entitled not only to reinstatement but also to actual
damages. He further claims that proof of damage had been adduced at the trial but was not considered by
the appellate court.

This is a petition for review by certiorari of the decision of the Court of Appeals under Rule 45 of the Rules of
Court. In this proceeding only questions of law may be raised. Petitioner’s claim for damages is a factual
issue which may not be entertained. The findings of facts of the appellate court to the effect that there is no
proof of actual damages are conclusive and binding on this Court.

Further, the argument of petitioner that assuming there is no evidence of actual damages, the Court of
Appeals should have asked petitioner to present evidence in this aspect as it is authorized to receive
evidence in accordance with Section 18, P.D. No. 945 and Section 9, B.P. Blg. 129, is untenable. The burden
of proof of the damages suffered is on the party claiming the same. It is the duty of petitioner to present
evidence to support his claim for actual damages. If he failed to do so he has only himself to blame if no
award for actual damages is handed down.

Nevertheless, under the circumstances of the case the Court concedes that petitioner is entitled to an award
of attorney’s fees which the Court sets at P10,000.00. chanrobles law l ibra ry : red

WHEREFORE, the petition is GRANTED in that the questioned decision is modified by awarding an additional
amount of P10,000.00 as attorney’s fees to be paid by private respondent to petitioner. Costs against
private Respondent.

SO ORDERED.

G.R. No. 161722 July 20, 2006

G.Q. GARMENTS, INC., petitioner,

vs.
ANGEL MIRANDA, FLORENDA MIRANDA and EXECUTIVE MACHINERIES and EQUIPMENT
CORPORATION,respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review on Certiorari for the reversal of the Decision1 of the Court of
Appeals (CA) in CA-G.R. CV No. 45567, as well as its Resolution2 denying the motion for
reconsideration thereof.
Angel Miranda is the registered owner of a 9,646 square meters parcel of land located at Niog,
Bacoor, Cavite ("Property"). The property was covered by Transfer Certificate of Title (TCT) No. T-
606793 of the Registry of Deeds of Cavite.

In 1984, Angelito Miranda, the son of Angel Miranda, established the Executive Machineries and
Equipment Corporation (EMECO), a domestic corporation engaged primarily in the manufacture and
fabrication of rubber rollers. Angelito owned 80% of the stocks of the corporation, while his wife
Florenda owned 10%. That year, Angel entered into a verbal contract of lease over the Property with
EMECO, and allowed it to build a factory thereon. The agreement was on a month-to-month basis,
at the rate of P8,000 per month. EMECO constructed its factory on the property. At the outset,
EMECO paid the monthly rentals. However, after Angelito died on June 21, 1988, EMECO failed to
pay the rentals but still continued possessing the leased premises.

On November 19, 1989, the factory of EMECO was totally razed by fire. In a letter to EMECO dated
June 3, 1991, Angel demanded the payment of accrued rentals in the amount of P280,000.00 as of
May 1991. EMECO was also informed that the oral contract of lease would be terminated effective
June 30, 1991. However, EMECO failed to pay the accrued rentals and to vacate the property.
Another demand letter dated September 27, 1991 was sent to EMECO. It vacated the leased
premises, but the accrued rentals remained unpaid.

Sometime in November 1991, Florenda arrived at the office of petitioner and offered to sublease the
property to Wilson Kho, the Officer-in Charge of the corporation. Florenda showed Kho a purported
copy of a contract of lease4over the said property allegedly executed by Angel in favor of EMECO.
After visiting and viewing the property, Kho agreed to rent the area upon the condition that its true
and registered owner would personally sign the lease contract in his presence. When Florenda failed
to present Angel for said purpose, Kho turned down her proposal.

Later, Kho was able to locate Angel at Noveleta, Cavite and offered, in behalf of petitioner, to lease
the property, as to which Angel agreed. On December 23, 1991, Angel and the corporation,
represented by its Executive Vice-President, Davy John Barlin, executed a contract of lease5 over
the subject property. The lease was for a period of 15 years, commencing on February 1, 1992 until
January 31, 2007 for a monthly rental of P30,000.00. Petitioner paid P90,000.00 representing two
months deposit and advance rental for one month. As lessee, it was authorized to introduce
improvements, structures, and buildings on the property as it may deem necessary and for the
purpose for which it was leased.

Consequently, petitioner secured the following documents: mayor's permit, sanitary permit, business
sticker, and an application for municipal license. Thereafter, it moved into the property with its
equipment, machinery, appliances, supplies, and other construction materials. The construction of a
building and factory in the leased premises commenced.

However, on January 27, 1992, Florenda, together with several armed men who identified
themselves as policemen, forcibly evicted petitioner from the leased premises, claiming that she was
the owner and that the place was already covered by another existing contract of lease. During the
encounter, Florenda and her men took some equipment, machinery and other properties belonging
to petitioner, thereby causing loss and damage to said properties.

In the meantime, Angel secured a copy of the purported contract of lease he allegedly executed in
favor of EMECO. On March 12, 1992, he forthwith filed a complaint for declaration of nullity of the
contract of lease before the Regional Trial Court (RTC) of Makati, Branch 66, docketed as Civil Case
No. 92-699. Angel alleged therein that his signature as lessor in the purported contract was a
forgery. He prayed that judgment be rendered in his favor declaring the said contract null and void.
Meanwhile, petitioner sought the help of the Philippine National Police (PNP). General Gerardo N.
Flores, Deputy Director General and Chief Directorial Staff, issued a Memorandum6 to
Superintendent Wenceslao A. Soberano, Provincial Director of the Cavite PNP Provincial Command,
ordering the latter to prevent his men from interfering with the pending civil case. Petitioner
subsequently regained possession over the leased premises. However, Florenda and her group
were undaunted. They went back to the place and ousted the guards and other personnel manning
the corporation's office, and even removed their equipment, and ransacked anew their raw materials,
electric wire and other valuables inside.

On April 20, 1992, petitioner instituted an action for damages and recovery of possession of the
property before the RTC of Cavite City, Branch 17, with Angel, EMECO and Florenda, as alternative
defendants. The case was docketed as Civil Case No. N-5573. The corporation alleged the following
in its complaint:

VI

That on December 23, 1991, Plaintiff leased from Alternative Defendant ANGEL MIRANDA
the premises just adverted to, for a period of FIFTEEN (15) years, commencing on February
1, 1992 and to expire on January 31, 2007, as evidenced by the Contract of Lease x x x ;

VII

That by the terms of said lease agreement, Plaintiff was to pay to Alternative ANGEL
MIRANDA rentals in the sum of THIRTY THOUSAND PESOS (P30,000) per month, with
SIXTY THOUSAND PESOS (P60,000) as deposit, and THIRTY THOUSAND PESOS
(P30,000) as advance rental, all of which were complied with by Plaintiff;

VIII

That in accordance with the same agreement, Plaintiff was authorized to introduce into the
premises such improvements as it may find necessary;

IX

That Plaintiff took possession of the leased premises and moved thereto its equipments (sic),
machineries, appliances, supplies and kindred items, as well as certain construction
materials necessary for the repairs and improvement of the facilities therein; that, as a matter
of fact, Plaintiff had already commenced the construction of roofs over the concrete
structures in the leased premises;

That, furthermore, Plaintiff secured from the proper authorities all the needful licenses and
permits for its construction and business activities;

XI

That on January 27, 1992, Alternative Defendant FLORENDA MIRANDA, in her behalf and
in representation of Alternative Defendant EMECO, and in the company of armed men,
forcibly evicted Plaintiff from the premises, not only stopping the construction works being
 performed in the premises, but also physically bringing out Plaintiff's equipment,
machineries, and other personalities (sic) of the leased realty;

XII

That the Alternative Defendants just named did the acts just described under the claim that
the premises are either owned by Alternative Defendant FLORENDA MIRANDA or that the
same are covered by [a] still existing lease agreement by and between Alternative
Defendants, the latter claim being evidenced by the Contract of Lease x x x;

XIII

That regardless of the validity of either claim on the part of Alternative Defendants
FLORENDA MIRANDA and EMECO, the same cannot be pleaded in derogation of Plaintiff's
possessory rights over the premises, for the reason that the realty in question is covered by
a torrens certificate in the name of Alternative Defendant ANGEL MIRANDA on which
document third parties have a legally-authorized right to rely (in the first instance), and that in
order to evict Plaintiff from the premises, proper ejectment proceedings would have to be
instituted (in the second instance);

XIV

That under the law, Alternative Defendant ANGEL MIRANDA has the obligation to keep and
maintain Plaintiff in peaceful possession of the leased premises, which obligation said
defendant failed to observe and discharge;

XV

That as a result of the forcible eviction of Plaintiff from the leased property, it suffered
damages not only in terms of destruction and/or impairment of its machineries, equipments
(sic), appliances, personalities, supplies and materials, but also in terms of lost profits and
business opportunities, besmirched reputation, administrative cost overruns, tarnished
goodwill and impairment of credit facilities, the total pecuniary value of which amounts to not
less than TWO MILLION PESOS (P2,000,000);7

It prayed that, after due proceedings, judgment be rendered in its favor, as follows:

1. That upon due notice and hearing, a writ of preliminary mandatory injunction issue,
restoring Plaintiff to the possession of the premises in question;

2. That after trial, judgment issue directing Alternative Defendants, singly or collectively, and
any person or persons claiming right under them to surrender possession of the leased
premises to Plaintiff;

3. That either Defendant, or all of them, be condemned to pay to Plaintiff the sum of TWO
MILLION PESOS (P2,000,000) by way of actual, compensatory, and moral damages;

4. That either Defendant, or all of them, be condemned to pay attorney's fees and litigation
expenses in the sum earlier set forth; and

5, That either Defendant, or all of them, be condemned to pay the costs of this suit;
 6. OTHER RELIEFS and remedies as are just and equitable under the premises are likewise
prayed for.8

On June 25, 1992, Angel and petitioner, as plaintiffs, filed a separate complaint for ejectment against
Florenda before the Municipal Trial Court (MTC) of Bacoor, Cavite, docketed as Civil Case No.
1265. After due proceedings, the court rendered judgment on July 2, 1993, ordering the eviction of
Florenda and all those claiming the property in her behalf. The decision was appealed to the RTC.
However, for failure to pay a supersedeas bond, the decision was executed and Florenda was
evicted from the property.

On November 26, 1993, the RTC rendered judgment in Civil Case No. N-5573, dismissing the
complaint against all the alternative defendants without prejudice. It declared that plaintiff was
entitled to damages, but it had to dismiss the complaint because of the pendency of Civil Case Nos.
92-699 and 92-1265.9

However, the RTC resolved to deny the motion of petitioner prompting it to appeal to the Court of
Appeals. Angel Miranda also appealed the decision, which was docketed as CA-G.R. CV No. 45567.

Meantime, on September 22, 1994, the RTC rendered judgment in Civil Case No. 92-699 in favor of
Angel and declared the contract of lease purportedly executed by him and EMECO void.

In its Brief as appellant in CA-G.R. CV No. 45567, petitioner alleged that:

THE LOWER COURT GRIEVOUSLY ERRED IN FAILING TO AWARD DAMAGES IN

FAVOR OF PLAINTIFF BY DISMISSING THE CASE DESPITE ITS CLEAR FACTUAL
FINDINGS THAT THE LATTER IS ENTITLED TO DAMAGES PRAYED FOR IN THE
COMPLAINT.

THE DISMISSAL OF THE COMPLAINT ON THE GROUND OF "LITIS PENDENTIA" IS

DEVOID OF ANY FACTUAL AND LEGAL BASIS.

II

IN THE SAME VEIN, THE AWARD OF DAMAGES IN THE PRESENT CASE WOULD NOT
PRE-EMPT ANY DECISION THAT MIGHT BE RENDERED IN THE "PENDING CASES."10

It maintained that the trial court erred in dismissing its complaint on the ground of litis pendentia and
in not ordering Angel Miranda to reimburse the P360,000.00 it had paid as rentals for the property.

For his part, Angel averred that the trial court should have dismissed the complaint against him with
prejudice for the reason that there is no allegation in the complaint that he participated, directly or
indirectly, in the forcible ejectment of petitioner from the property, and in the looting and taking of its
properties.11 He insisted that it was Florenda who forcibly evicted the corporation and took its
properties. Thus, he cannot be held responsible for the tortious and wrongful acts of third persons,
as there is no law to that effect. Under Article 1664 of the New Civil Code, he is not obliged to
answer for a mere act of trespass, and the lessee has a direct action against the intruder. He pointed
out that the law unconditionally and unequivocally absolves the lessor from any liability arising from
an act of trespass by a third person. The duty to maintain the lessee in the peaceful and adequate
enjoyment of the lease for the duration of the contract is merely a warranty by the lessor that the
lessee shall not be disturbed in his legal, not physical, possession.

On October 29, 2002, the CA rendered judgment reversing the decision of the RTC. The fallo reads:

WHEREFORE, the judgment appealed from is hereby REVERSED and SET ASIDE and a
new one entered dismissing the complaint with prejudice against Angel Miranda and ordering
Florenda Miranda to pay G.Q. Garments, Inc. the amount of:

1. P300,000.00 as and for nominal damages;

2. P200,000.00 as and for attorney's fees; and

3. To pay the costs of suit.

SO ORDERED.12

The appellate court absolved Angel of any liability due to the absence of evidence showing that he
had participated, directly or indirectly, in the looting of GQ Garment's properties and in forcibly
ejecting the latter from the premises in question. While under Article 1654, paragraph 3, of the New
Civil Code, a lessor is obliged to maintain the lessee in peaceful and adequate enjoyment of the
lease for the entire duration of the contract, the law, however, does not apply to him since the
unlawful acts were caused by a third person or an intruder. Under Article 1664, he is not obliged to
answer for a mere act of trespass which a third person may cause on the use of the thing leased, but
the lessee shall have a direct action against the intruder.

Moreover, the appellate court declared that the warranty of a lessor under Article 1654 of the New
Civil Code extends only to non-disturbance of legal possession and not of physical possession. As
ruled in the case of Bohol, Sr. v. Torres,13 "the duty to maintain the lessee in the peaceful and
adequate enjoyment of the lease for the duration of the contract is merely a warranty that the lessee
shall not be disturbed in his legal, not physical possession." According to the CA, the evidence on
record clearly showed that Florenda disturbed only the physical possession of the leased premises,
and not legal possession. Thus, the complaint with respect to Angel Miranda should be dismissed
with prejudice for lack of cause of action.14

Petitioner moved to have the decision reconsidered on the following grounds:

THE HONORABLE COURT ERRONEOUSLY HELD THAT THE LOSS OF THE ARTICLES
VALUED AT P9,960,000.00 WAS NOT PROVED BY EVIDENCE.

II

THE HONORABLE COURT ERRED IN NOT FINDING DEFENDANT-APPELLANT ANGEL

MIRANDA LIABLE TO HEREIN PLAINTIFF-APPELLANT.15

Petitioner filed a motion for the reconsideration of the decision,16 claiming that it adduced proof that it
sustained actual damages. It claimed that Angel was liable for damages against it for disturbance in
law. It was not just "a mere act of trespass," since Florenda claimed to have a prior contract of lease
with Angel and by virtue of a supposedly legal judicial order, Florenda questioned its (GQ Garment's)
right to enjoy the property and deprived it of possession thereof. Besides, Angel filed an ejectment
suit and an action for the nullity of the contract of lease against Florenda only after it was
dispossessed of the subject property.17

Petitioner averred that Angel was liable for damages under Article 1654(3) of the New Civil Code,
under which, as lessor, he was obliged "to maintain the lessee in the peaceful and adequate
enjoyment of the lease for the entire duration of the contract." It likewise cited De la Cruz vs.
Seminary of Manila18 where it was ruled that in case of legal disturbance, the lessor is liable for
whatever the lessee has lost by virtue of the breach of the contract and that it is the duty of the
lessor to place the lessee in legal possession of the premises and to maintain him in the peaceful
possession of the property during the lifetime of the lease. It insisted that the lessor who fails in the
performance of such obligation must indemnify the lessee for the damages occasioned thereby, the
true measure of damages being the actual loss to the lessee arising from the breach of the contract
on the part of the lessor.

Petitioner averred that it complied fully with its contract of lease and had paid Angel two (2) months
deposit in the amount of P60,000.00; one (1) month advance rental of P30,000.00 and nine (9)
months advance deposit in the amount of P270,000.00 or the total sum of P360,000.00.

On cross-examination, Angel admitted that he received P360,000.00 from petitioner. The plaintiff
asserted that, in the interest of justice and fairness, the trial court should order the defendant to
reimburse the actual damages it suffered and return the amounts of rentals and deposits received,
considering that it failed to "enjoy" the leased premises. To rule otherwise, according to GQ
Garments, would be to sanction the unjust enrichment of one at the expense of another.19

The CA denied the motion.

Petitioner filed the instant petition for review on certiorari on the following issues:

I.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED A MANIFEST

ERROR IN AWARDING DAMAGES TO THE PETITIONER WAY BELOW THAT PRAYED
FOR IN THE COMPLAINT, THUS, TOTALLY DISREGARDING THE EVIDENCE ON
RECORD.

II.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN

NOT FINDING THAT RESPONDENT ANGEL MIRANDA SHOULD LIKEWISE BE HELD
LIABLE FOR DAMAGES TO THE PETITIONER.20

Petitioner asserts that it adduced preponderant evidence that it sustained actual damages when its
equipment and machineries were destroyed, and that such damaged property is valued
at P10,000,000.00. It points out that aside from respondent Florenda Miranda's testimony, it also
adduced in evidence photographs of the damaged property. Respondent Angel Miranda failed to
adduce any evidence to rebut the same. Petitioner also avers that the damages it suffered was not
merely an act of trespass but a disturbance in law for which respondent Angel Miranda is liable. He
violated its right, as lessee; hence, he is liable for damages under Article 1654(3) of the New Civil
Code. To buttress its claim, petitioner cites the ruling of this Court in De la Cruz vs. Seminary of
Manila.21 It insists that respondent Angel Miranda should pay actual damages of P10,000,000.00
and P360,000.00 it had paid to him by way of reimbursement, and prays that the Court render
judgment as follows:

1. Respondents Florenda Miranda and Angel Miranda to pay petitioner, jointly and severally,
actual damages in the sum of P10,000,000.00;

2. Respondent Florenda Miranda to pay petitioner exemplary damages in the amount to be

determined by the Honorable Court;

3. Respondent Angel Miranda to reimburse petitioner the amount of P360,000.00 plus

interest at 12% per annum from the time the complaint was filed until the same is fully paid;

4. Respondent Angel Miranda to pay petitioner moral, exemplary, temperate and nominal
damages for breach of his warranty in the Contract of Lease;

5. Respondents to pay attorney's fees and the costs of suit.

Other reliefs just and equitable under the premises are likewise prayed for.22

Respondents did not file any comment on the petition, and were thus considered to have waived
their right to do so.

The issues are the following: (1) whether respondents are liable to petitioner for the amount
of P10,000,000.00 by way of actual damages; (2) whether respondent Angel Miranda is liable to
reimburse to petitioner the P360,000.00 paid as rentals.

Petitioner asserts that the P10,000,000.00 in actual damages was specifically alleged in its
complaint and that evidence was adduced to prove the same, consisting of the testimonies of
respondent Florenda Miranda and her witnesses to determine the extent of petitioner's damages.

We agree with the ruling of the appellate court that petitioner's claim for actual damages was not
properly substantiated by evidence. The CA correctly ruled as follows:

Considering the above provisions of the law, there is no question that defendant-appellee
Florenda Miranda and/or EMECO should be held accountable for the damage sustained by
plaintiff-appellant due to their willful and wanton disregard of the lease rights of plaintiff-
appellant over the property in question. However, we find that the alleged loss of articles,
machinery and equipment in the total sum of P9,960,000.00 was not proven by clear and
convincing evidence. Other than the bare testimony of Mr. Wilson Kho and the witnesses he
presented, there was no poof as to the existence of these items prior to the taking over of
Florenda over the property in question. The listing of lost items contained in plaintiff-
appellant's Exhibits "I" and "I-1" is self-serving considering that no inventory was made on
the said items prior to its delivery to the premisesin question and that no receipt or
proof of acquisition of these listed items were presented during the trial of the case.23

Under Article 2199 of the New Civil Code, actual damages include all the natural and probable
consequences of the act or omission complained of, classified as one (1) for the loss of what a
person already possesses (daño emergente) and the other, for the failure to receive, as a benefit,
that which would have pertained to him (lucro cesante). As expostulated by the Court:
 Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in
satisfaction of, or in recompense for, loss or injury sustained. They proceed from a sense of
natural justice and are designed to repair the wrong that has been done, to compensate for
the injury inflicted and not to impose a penalty. In actions based on torts or quasi-delicts,
actual damages include all the natural and probable consequences of the act or omission
complained of. There are two kinds of actual or compensatory damages: one is the loss of
what a person already possesses, (daño emergente), and the other is the failure to receive
as a benefit that which would have pertained to him (lucro cesante) (citations omitted).24

The burden of proof is on the party who will be defeated if no evidence is presented on either side.
His burden is to establish his case by preponderance of evidence which means that the evidence, as
whole, adduced by one side, is superior to that of the other. Actual damages are not presumed. The
claimant must prove the actual amount of loss with a reasonable degree of certainty premised upon
competent proof and on the best evidence obtainable. He must point out specific facts that could
afford a basis for measuring whatever compensatory or actual damages are borne. Actual damages
cannot be anchored on mere surmises, speculations or conjectures. As the Court declared:

As stated at the outset, to enable an injured party to recover actual or compensatory

damages, he is required to prove the actual amount of loss with reasonable degree of
certainty premised upon competent proof and on the best evidence available. The burden of
proof is on the party who would be defeated if no evidence would be presented on either
side. He must establish his case by a preponderance of evidence which means that the
evidence, as a whole, adduced by one side is superior to that of the other. In other words,
damages cannot be presumed and courts, in making an award must point out specific facts
that could afford a basis for measuring whatever compensatory or actual damages are
borne.25

The claimants are not, however, mandated to prove damages in any specific or certain amount in
order to recover damages for a substantial amount.26 When the existence of a loss is established,
absolute certainty as to its amount is not required.27 The amount of the damages should be
determined with reasonable certainty. The law does not require that the amount fixed be absolute or
beyond conjectural possibilities. The ascertainment of the amount of damages should be by the
plainest, easiest and most accurate measure which will do justice in the premises.28

The Court further declared that "where goods are destroyed by the wrongful acts of the defendant,
the plaintiff is entitled to their value at the time of the destruction, that is normally, the sum of money
which he would have to pay in the market for identical or essentially similar good plus, in a proper
case, damages for the loss of the use during the period before replacement.29

To be entitled to an award of actual damages, it is necessary to prove the precise amount of the loss
with a reasonable degree of certainty, premised upon competent proof and on the best evidence
obtainable by the injured party to justify such award.30 The award of actual damages cannot be
simply based on the mere allegation of a witness without any tangible claim, such as receipts or
other documentary proofs to support such claim.31 Failing to satisfy the court that petitioner certainly
suffered actual damages, its claim must now fail.

In this case, there is no question that, indeed, petitioner sustained damages because its equipment,
machineries, and other valuables were taken, and its building was destroyed by respondent
Florenda Miranda and her cohorts. Respondent Angel Miranda did not cause the damages
sustained by petitioner's property. However, the only evidence adduced by the petitioner to prove the
value of said property is the testimony of Kho, viz.:
 ATTY. QUIJANO:

Q You said defendant Miranda looted all your items, machinery and other valuables inside
the premises, do you have a list of those which you claimed to [have] been lost and stolen
from the premises?

MR. KHO:

A We have a partial list of the equipment and materials lost.

ATTY. QUIJANO:

May we request that the list be marked as Exhibits I and I-1, respectively.

WITNESS:

The first page represents the items lost on January 27 and the second page, items lost in the
middle of March up the (sic) of June.

COURT:

Mark it. x x x .

xxx xxx xxx

Q Considering that you have been forcibly evicted from the premises, what did you do?

A We seek (sic) the services of M .R. Pamaran Law Office.

Q And do you have any arrangement with said office?

A The agreement is P200,000.00 plus P2,000.00 per appearance, damaged equipment

and loss is P10,000,000.00 and the actual items lost is more than P10,000,000.00 plus
construction materials, P11,000,000.00.

COURT:

Q The actual damage is P10,000,000.00?

A P10,000,000.00, including the building x x x.

(TSN dated 10 July 1992, pp. 26-28, bold ours)32

No other proof was adduced to establish the value or price of the equipment, machineries and
valuables taken by respondent Florenda Miranda, as well as the damage to petitioner's building. The
bare claim of Kho that the petitioner sustained actual damages in the amount of P10,000,000.00 is
utterly insufficient on which to anchor a judgment for actual damages in the amount
of P10,000,000.00; it is speculative and merely a surmise.
The Court notes that respondent Florenda Miranda admitted, when she testified, that she and her
cohorts caused the damages to the property of the petitioner:

ATTY. QUIJANO:

Q When you went to the premises in question, you found out that there were already some
construction going on?

MS. MIRANDA:

A Construction? Not construction but there [were] some machineries inside but not
installed.

xxx xxx xxx

Q There [were] purlins and trusses already in the …?

A No, in the latter part only.

xxx xxx xxx

Q You said that you did not throw their equipment but just pulled it out and transferred it to
another lot. How long did it take you to transfer that?

A The first one it took us one day to be able to pull out or get outside, I think six or
nine machineries and then it was stopped.

Q How did you bring it out?

A By means of forklift.

Q So, you hired a forklift?

A Yes, Sir.

xxx xxx xxx

Q Are all the machineries pulled out?

A On the first time, it wasn't because it was stopped x x x so it took us another, I think a
month or weeks also before we could hire another trucking firm.

Q You mean this truck was hired by Mr. Kho and not by you?

A No, by me.

xxx xxx xxx

Q So, you hired this truck to pull all these machineries out?
 A Yes. x x x (TSN dated 11 June 1993, pp. 20-23 before the RTC, Cavite, emphasis ours)33

With this admission, Florenda Miranda is clearly liable for damages to the equipment, machineries
and building of petitioner.

We agree with the ruling of the CA that respondent Angel Miranda is not liable for damages caused
to petitioner's property. Article 1654 of the New Civil Code reads:

Art. 1654. The lessor is obliged:

(1) To deliver the thing which is the object of the contract in such a condition as to render it fit
for the use intended;

(2) To make on the same during the lease all the necessary repairs in order to keep it
suitable for the use to which it has been devoted, unless there is a stipulation to the contrary;

(3) To maintain the less in the peaceful and adequate enjoyment of the lease for the entire
duration of the contract.

Under the provision, a lessor is obliged to maintain petitioner's peaceful and adequate enjoyment of
the premises for the entire duration of the lease. In case of noncompliance with these obligations,
the lessee may ask for the rescission of the lease contract and indemnification for damages or only
the latter, allowing the contract to remain in force.34

The trespass referred to in Article 1654, paragraph 3, of the New Civil Code, is legal trespass
or perturbacion de mero derecho. The lessor is not liable for the mere fact of a trespass or trespass
in fact (perturbacion de mero hecho) made by a third person of the leased property. The lessee shall
have a direct action against the trespasser and not against the lessor. As explained by the Court, if
the act of trespass is not accompanied or preceded by anything which reveals a really juridic
intention on the part of the trespasser, in such wise that the lessee can only distinguish the material
fact, such a trespass is merely a trespass in fact.35

The duty of the lessor to maintain the lessee in the peaceful and adequate enjoyment of the leased
property for the entire duration of the contract is merely a warranty that the lessee shall not be
disturbed in having legal and not physical possession of the property.36

In this case, the trespass perpetrated by respondent Florenda Miranda and her confederates was
merely trespass in fact. They forcibly entered the property and caused damage to the equipment and
building of petitioner, because the latter refused to enter into a contract of lease with EMECO over
the property upon respondent Florenda Miranda's failure to present respondent Angel Miranda to
sign the contract of lease. It turned out that respondent Florenda Miranda attempted to hoodwink
petitioner and forged respondent Angel Miranda's signature on the contract of lease she showed to
petitioner. It appears that respondent Florenda Miranda tried to coerce the petitioner into executing a
contract of lease with EMECO over the property, only to be rebuffed by the petitioner.

Petitioner cannot rely on the ruling of this Court in De la Cruz v. Seminary of Manila,37 because, in
this case, respondent Angel Miranda had the legal power to place petitioner in the peaceful
possession of the property upon the execution of the contract of lease between him and petitioner; in
fact, actual possession of the property was placed in the hands of petitioner, enabling it to start the
construction of its factory.
It bears stressing that respondent Angel Miranda was not content in adopting a mere passive stance
in the face of respondent Florenda Miranda's act of trespass. He and the petitioner filed a case for
forcible entry against Florenda Miranda; he also succeeded in having the RTC, in Civil Case No. 92-
699, declare the contract of lease which respondent Florenda Miranda showed petitioner as null and
void, with the court's ruling that his signature on the contract was a forgery.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. Cost against the petitioner.

ORDERED.

G.R. No. 111692 February 9, 1996

ALEJANDRO FUENTES, JR., petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

BELLOSILLO, J.:

Still professing innocence and insisting that he is a victim of mistaken identity, petitioner Alejandro
Fuentes, Jr., seeks reversal of the decision of the Court of Appeals affirming his conviction for
murder.1

At four o'clock in the morning of 24 June 1989 Julieto Malaspina together with Godofredo Llames,
Honorio Osok and Alberto Toling, was at a benefit dance at Dump Site, Tudela, Trento, Agusan del
Sur. Petitioner called Malaspina and placed his right arm on the shoulder of the latter saying,
"Before, I saw you with a long hair but now you have a short hair."2 Suddenly petitioner stabbed
Malaspina in the abdomen with a hunting knife. Malaspina fell to the ground and his companions
rushed to his side. Petitioner fled. Before the victim succumbed to the gaping wound on his
abdomen he muttered that Alejandro Fuentes, Jr., stabbed him.3

Dr. Porfirio L. Salubre, the Rural Health Physician who autopsied the cadaver of Julieto Malaspina
on 24 July 1989, reported that death was due to "stab wound at left lumbar region 1-1/2 in. in length
with extracavitation of the small and large intestines."4

Petitioner claims on the other hand that it was his cousin Zoilo Fuentes, Jr., alias "Jonie" who knifed
Malaspina; that when the victim was killed he was conversing with him; that he was compelled to run
away when he heard that somebody with a bolo and spear would "kill all those from San Isidro"
because "Jonie," the killer, was from that place; that since he was also from San Isidro he sought
refuge in his brother's house where he met "Jonie;" that "Jonie" admitted spontaneously that he
stabbed Malaspina because after a boxing match before the latter untied his gloves and punched
him; that as there were many persons milling around the house "Jonie" jumped out and escaped
through the window; that he was arrested at eight o'clock in the morning of 24 June 1989 while he
was in a store in the barangay.5

The Regional Trial Court of Prosperidad, Agusan del Sur, found petitioner guilty of murder qualified
by treachery and imposed on him an indeterminate prison term of ten (10) years and one (1) day
of prison mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as
maximum, to indemnify the heirs of the victim Julieto Malaspina the amount of P50,000.00 and to
pay P8,300.00 as actual damages plus costs.6
The Court of Appeals affirmed the judgment of the trial court; hence, this petition for review.

Petitioner contends that the appellate court erred when it held that petitioner was positively and
categorically identified as the killer of Malaspina, in affirming the judgment of conviction and in
holding petitioner liable for damages to the heirs of the victim.

Petitioner points to an alleged inconsistency between the testimonies of prosecution witnesses

Alberto Toling and Honorio Osok to the effect that they saw petitioner stab Malaspina on the right
lumbar region, and the testimony of the attending physician that the victim was stabbed on the left
lumbar region.

This discrepancy is inconsequential. What is material is that Malaspina was stabbed to death and
that three (3) prosecution witnesses positively identified petitioner as the knife wielder. It must be
stressed that these witnesses had known petitioner for quite some time and never had any personal
misunderstanding nor altercation with the latter as to create any suspicion that they were impelled by
ill motives to falsely implicate him.

That it was another person who committed the offense is too incredible. No less than petitioner's
own witness, Nerio Biscocho who claimed he also saw the killing, testified that Alejandro Fuentes,
Jr., the petitioner, and "Jonie" Fuentes are one and the same person. Thus -

COURT:

Q Who is this Joni Fuentes and Alejandro Fuentes?

A That Joni Fuentes is the same of that or the accused Alejandro Fuentes. I do not know
his real name but he is called as Joni, sir, . . .7

On cross-examination witness Biscocho further admitted that he himself would call petitioner
Alejandro Fuentes, Jr., as "Joni" or "Jonie" Fuentes, as some of his friends did, but victim Malaspina
occasionally called petitioner "Junior".8

Petitioner would make much of the alleged confession of Zoilo Fuentes, Jr., since it is a declaration
against penal interest and therefore an exception to the hearsay rule. The so-called confession of
Zoilo was allegedly given to Felicisimo Fuentes, the uncle of petitioner and Zoilo, who in turn relayed
the matter to P/Sgt. Benjamin Conde, Jr. Felicisimo testified that on 24 June 1989 while he was at
Barangay San Isidro, Zoilo Fuentes, Jr., confessed that he killed Malaspina in "retaliation;" that he
even showed him the knife he used and asked his help in finding a lawyer, in securing bail and, if
possible, in working out a settlement with the relatives of the deceased. The following day however
he learned that the self-confessed killer was gone and that petitioner had been arrested for a crime
he did not commit.9

For his part, Station Commander P/Sgt. Conde, Jr., testified that after the criminal information for
murder was filed on 26 July 1989, petitioner met Felicisimo who informed him of the disclosure by
Zoilo. Conde then advised Felicisimo that if it was true that it was Zoilo who fatally stabbed
Malaspina Felicisimo must persuade Zoilo to surrender. Conde then personally went to Barangay
San Isidro to investigate. There he was told by the townsfolk that Zoilo had already fled.10

One of the recognized exceptions to the hearsay rule is that pertaining to declarations made against
interest. Sec. 38 of Rule 130 of the Rules of Court provides that "(t)he declaration made by a person
deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the
declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable
man in his position would not have made the declaration unless he believed it to be true, may be
received in evidence against himself or his successors in interest and against third persons." The
admissibility in evidence of such declaration is grounded on necessity and trustworthiness.11

There are three (3) essential requisites for the admissibility of a declaration against interest: (a) the
declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the
declarant; and (c) the circumstances must render it improbable that a motive to falsify existed.

In the instant case, we find that the declaration particularly against penal interest attributed to Zoilo
Fuentes Jr. is not admissible in evidence as an exception to the hearsay rule. We are not unaware
of People v. Toledo, 12 a 1928 case, where Justice Malcolm writing for the Court endeavored to
reexamine the declaration of third parties made contrary to their penal interest. In that case, the
protagonists Holgado and Morales engaged in a bolo duel. Morales was killed almost instantly.
Holgado who was seriously wounded gave a sworn statement (Exh. 1) before the municipal
president declaring that when he and Morales fought there was nobody else present. One (1) month
later Holgado died from his wounds. While the Court was agreed that Toledo, who reportedly
intervened in the fight and dealt the mortal blow, should be exonerated on reasonable doubt, the
members did not reach an accord on the admissibility of Exh. 1. One group would totally disregard
Exh. 1 since there was ample testimonial evidence to support an acquittal. The second group
considered Exh. 1 as part of the res gestae as it was made on the same morning when the fight
occurred. A third group, to which Justice Malcolm belonged, opined that the court below erred in not
admitting Exh. 1 as the statement of a fact against penal interest.

For all its attempt to demonstrate the arbitrariness behind the rejection in certain cases of
declarations against penal interest, the Toledo case cannot be applied in the instant case which is
remarkably different. Consider this factual scenario: the alleged declarant Zoilo Fuentes Jr., a cousin
of accused-appellant, verbally admitted to the latter, and later to their common uncle Felicisimo
Fuentes, that he (Zoilo) killed the victim because of a grudge, after which he disappeared. One
striking feature that militates against the acceptance of such a statement is its patent
untrustworthiness. Zoilo who is related to accused-appellant had every motive to prevaricate. The
same can be said of accused-appellant and his uncle Felicisimo. Secondly, we need not resort to
legal rhetorics to find that the admission of such a statement may likewise be, according to Wigmore,
"shocking to the sense of justice." 13 Let us assume that the trial court did admit the statement of Zoilo
and on that basis acquitted accused-appellant. Let us assume further that Zoilo was subsequently
captured and upon being confronted with his admission of guilt readily repudiated the same. There is
nothing, absolutely nothing, that can bind Zoilo legally to that statement.

But more importantly, the far weightier reason why the admission against penal interest cannot be
accepted in the instant case is that the declarant is not "unable to testify." There is no showing that
Zoilo is either dead, mentally incapacitated or physically incompetent which Sec. 38 obviously
contemplates. His mere absence from the jurisdiction does not make him ipso facto unavailable
under this rule. 14 For it is incumbent upon the defense to produce each and every piece of evidence
that can break the prosecution and assure the acquittal of the accused. Other than the gratuitous
statements of accused-appellant and his uncle to the effect that Zoilo admitted having killed
Malaspina, the records show that the defense did not exert any serious effort to produce Zoilo as a
witness. Lest we be misunderstood, the Court is always for the admission of evidence that would let
an innocent declaration of guilt by the real culprit. But this can be open to abuse, as when the
extrajudicial statement is not even authenticated thus increasing the probability of its fabrication; it is
made to persons who have every reason to lie and falsify; and it is not altogether clear that the
declarant himself is unable to testify. Thus, for this case at least, exclusion is the prudent recourse
as explained in Toledo -
 The purpose of all evidence is to get at the truth. The reason for the hearsay rule is that the
extrajudicial and unsworn statement of another is not the best method of serving this
purpose. In other words, the great possibility of the fabrication of falsehoods, and the inability
to prove their untruth, requires that the doors be closed to such evidence.15

The Court of Appeals as well as the trial court correctly determined the crime to be murder qualified
by treachery. The suddenness of the attack, without any provocation from the unsuspecting victim,
made the stabbing of Malaspina treacherous.16 However, the court a quo erred in imposing an
indeterminate prison term of ten (10) years and one (1) day of prison mayor as minimum to
seventeen (17) years and four (4) months of reclusion temporal as maximum. Murder under Art. 248
of The Revised Penal Code is punishable by reclusion temporal in its maximum period to death.
Since aside from treachery qualifying the crime to murder there is no other modifying circumstance
proved, the medium period of the penalty, i.e. reclusion perpetua, should have been imposed on
petitioner.17

Petitioner maintains that assuming that he committed the crime it is error to hold him answerable for
P8,300.00 as actual damages on the basis of the mere testimony of the victim's sister, Angelina
Serrano, without any tangible document to support such claim. This is a valid point. in crimes and
quasi-delicts, the defendant is liable for all damages which are the natural and probable
consequences of the act or omission complained of.18 To seek recovery for actual damages it is
essential that the injured party proves the actual amount of loss with reasonable degree of certainty
premised upon competent proof and on the best evidence available. 19 Courts cannot simply, rely on
speculation, conjecture or guesswork in determining the fact and amount of damages.20

The award by the court a quo of P8,300.00 as actual damages is not supported by the evidence on
record. We have only the testimony of the victim's elder sister stating that she incurred expenses of
P8,300.00 in connection with the death of Malaspina. 21 However, no proof of the actual damages
was ever presented in court. Of the expenses alleged to have been incurred, the Court can only give
credence to those supported by receipts and which appear to have been genuinely expended in
connection with the death of the victim. Since the actual amount was not substantiated, the same
cannot be granted.22

WHEREFORE, the judgment appealed from finding petitioner ALEJANDRO FUENTES JR. guilty of
MURDER and directing him to indemnify the heirs of Julieto Malaspina in the amount of P50,000.00
plus costs is AFFIRMED with the modification that the penalty imposed should be as it is corrected
to reclusion perpetua, and the award of actual damages is deleted.

SO ORDERED.

G.R. No. 116110 May 15, 1996

BALIWAG TRANSIT, INC., petitioner,

vs.
COURT OF APPEALS, SPOUSES ANTONIO GARCIA & LETICIA GARCIA, A & J TRADING,
AND JULIO RECONTIQUE, respondents.

PUNO, J.:p

This is a petition for certiorari to review the Decision1 of the Court of Appeals in CA-G.R. CV-31246 awarding damages in favor of the
spouses Antonio and Leticia Garcia for breach of contract of carriage.2
The records show that on July 31, 1980, Leticia Garcia, and her five-year old son, Allan Garcia,
boarded Baliwag Transit Bus No. 2036 bound for Cabanatuan City driven by Jaime Santiago. They
took the seat behind the driver.

At about 7:30 in the evening, in Malimba, Gapan, Nueva Ecija, the bus passengers saw a cargo
truck parked at the shoulder of the national highway. Its left rear portion jutted to the outer lane, as
the shoulder of the road was too narrow to accommodate the whole truck. A kerosene lamp
appeared at the edge of the road obviously to serve as a warning device. The truck driver, Julio
Recontique, and his helper, Arturo Escala, were then replacing a flat tire. The truck is owned by
respondent A & J Trading.

Bus driver Santiago was driving at an in ordinately fast speed and failed to notice the truck and the
kerosene lamp at the edge of the road. Santiago's passengers urged him to slow down but he paid
them no heed. Santiago even carried animated conversations with his co-employees while driving.
When the danger of collision became imminent, the bus passengers shouted "Babangga tayo!".
Santiago stepped on the brake, but it was too late. His bus rammed into the stalled cargo truck. It
caused the instant death of Santiago and Escala, and injury to several others. Leticia and Allan
Garcia were among the injured passengers.

Leticia suffered a fracture in her pelvis and right leg. They rushed her to the provincial hospital in
Cabanatuan City where she treatment. After three days, she was transferred to the National
Orthopedic Hospital where she was confined for more than a month.3 She underwent an operation
for partial hip prosthesis.4

Allan, on the other hand, broke a leg. He was also given emergency treatment at the provincial
hospital.

Spouses Antonio and Leticia Garcia sued Baliwag Transit, Inc., A & J Trading and Julio Recontique
for damages in the Regional Trial Court of Bulacan.5 Leticia sued as an injured passenger of Baliwag
and as mother of Allan. At the time of the complaint, Allan was a minor, hence, the suit initiated by
his parents in his favor.

Baliwag, A & J Trading and Recontique disclaimed responsibility for the mishap. Baliwag alleged
that the accident was caused solely by the fault and negligence of A & J Trading and its driver,
Recontique. Baliwag charged that Recontique failed to place an early warning device at the corner of
the disabled cargo truck to warn on coming vehicles.6 On the other hand, A & J Trading and
Recontique alleged that the accident was the result of the negligence and reckless driving of
Santiago, bus driver of Baliwag.7

After hearing, the trial court found all the defendants liable, thus:

xxx xxx xxx

In view thereof, the Court holds that both defendants should be held liable; the
defendant Baliwag Transit, Inc. for having failed to deliver the plaintiff and her son to
their point of destination safely in violation of plaintiff's and defendant Baliwag
Transit's contractual relation.

The defendant A & J and Julio Recontique for failure to provide its cargo truck with
an early warning device in violation of the Motor Vehicle Law.8
The trial court ordered Baliwag, A & J Trading and Recontique to pay jointly and severally the Garcia
spouses the following: (1) P25,000,00 hospitalization and medication fee, (2) P450,000.00 loss of
earnings in eight (8) years, (3) P2,000.00 for the hospitalization of their son Allan Garcia, (4)
P50,000.00 moral damages, and (5) P30,000.00 attorney's fee.9

On appeal, the Court of Appeals modified the trial court's Decision by absolving A & J Trading from
liability and by reducing the award of attorney's fees to P10,000.00 and loss of earnings to
P300,000.00, respectively. 10

Baliwag filed the present petition for review raising the following issues:

1. Did the Court of Appeals err in absolving A & J Trading from liability and holding
Baliwag solely liable for the injuries suffered by Leticia and Allan Garcia in the
accident?

2. Is the amount of damages awarded by the Court of Appeals to the Garcia spouses
correct?

We affirm the factual findings of the Court of Appeals.

As a common carrier, Baliwag breached its contract of carriage when it failed to deliver its
passengers, Leticia and Allan Garcia to their destination safe and sound. A common carrier is bound
to carry its passengers safely as far as human care and foresight can provide, using the utmost
diligence of a very cautious person, with due regard for all the circumstances. 11 In a contract of
carriage, it is presumed that the common carrier was at fault or was negligent when a passenger
dies or is injured. Unless the presumption is rebutted, the court need not even make an express
finding of fault or negligence on the part of the common carrier. This statutory presumption may only
be overcome by evidence that the carrier exercised extraordinary diligence as prescribed in Articles
1733 and 1755 of the Civil Code. 12

The records are bereft of any proof to show that Baliwag exercised extra ordinary diligence. On the
contrary, the evidence demonstrates its driver's recklessness. Leticia Garcia testified that the bus
was running at a very high speed despite the drizzle and the darkness of the highway. The
passengers pleaded for its driver to slow down, but their plea was ignored. 13 Leticia also revealed
that the driver was smelling of liquor. 14 She could smell him as she was seated right behind the
driver. Another passenger, Felix Cruz testified that immediately before the collision, the bus driver
was conversing with a co-employee. 15 All these prove the bus driver's wanton disregard for the
physical safety of his passengers, which makes Baliwag as a common carrier liable for damages
under Article 1759 of the Civil Code:

Art. 1759. Common carriers are liable for the death of or injuries to passengers
through the negligence or willfull acts of the former's employees, although such
employees may have acted beyond the scope of their authority or in violation of the
orders of the common carriers.

This liability of the common carriers do not cease upon proof that they exercised all
the diligence of a good father of a family in the selection or supervision of their
employees.
Baliwag cannot evade its liability by insisting that the accident was caused solely by the negligence
of A & J Trading and Julio Recontique. It harps on their alleged non use of an early warning device
as testified to by Col. Demetrio dela Cruz, the station commander of Gapan, Nueva Ecija who
investigated the incident, and Francisco Romano, the bus conductor.

The records do not bear out Baliwag's contention. Col. dela Cruz and Romano testified that they did
not see any early warning device at the scene of the accident. 16 They were referring to the triangular
reflectorized plates in red and yellow issued by the Land Transportation Office. However, the
evidence shows that Recontique and Ecala placed a kerosene lamp or torch at the edge of the road,
near the rear portion of the truck to serve as an early warning
device. 17 This substantially complies with Section 34 (g) of the Land Transportation and Traffic
Code, to wit:

(g) Lights and reflector when parked or disabled. — Appropriate parking lights or
flares visible one hundred meters away shall be displayed at the corner of the vehicle
whenever such vehicle is parked on highways or in places that are not well-lighted
or, is placed in such manner as to endanger passing traffic. Furthermore, every
motor vehicle shall be provided at all times with built-in reflectors or other similar
warning devices either pasted, painted or attached at its front and back which shall
likewise be visible at night at least one hundred meters away. No vehicle not
provided with any of the requirements mentioned in this subsection shall be
registered. (emphasis supplied)

Baliwag's argument that the kerosene lamp or torch does not substantially comply with the law is
untenable. The aforequoted law clearly allows the use not only of an early warning device of the
triangular reflectorized plates variety but also parking lights or flares visible one hundred meters
away. Indeed, Col. dela Cruz himself admitted that a kerosene lamp is an acceptable substitute for
the reflectorized plates. 18 No negligence, therefore, may be imputed to A & J Trading and its driver,
Recontique.

Anent this factual issue, the analysis of evidence made by the Court of Appeals deserves our
concurrence, viz:

xxx xxx xxx

In the case at bar, both the injured passengers of the Baliwag involved in the
accident testified that they saw some sort of kerosene or a torch on the rear portion
of the truck before the accident. Baliwag Transit's conductor attempted to defeat
such testimony by declaring that he noticed no early warning device in front of the
truck.

Among the testimonies offered by the witnesses who were present at the scene of
the accident, we rule to uphold the affirmative testimonies given by the two injured
passengers and give less credence to the testimony of the bus conductor who solely
testified that no such early warning device exists.

The testimonies of injured passengers who may well be considered as disinterested

witness appear to be natural and more probable than the testimony given by;
Francisco Romano who is undoubtedly interested in the outcome of the case, being
the conductor of the defendant-appellant Baliwag Transit Inc.
 It must be borne in mind that the situation then prevailing at the time of the accident
was admittedly drizzly and all dark. This being so, it would be improbable and
perhaps impossible on the part of the truck helper without the torch nor the kerosene
to remove the flat tires of the truck . Moreover, witness including the bus conductor
himself admitted that the passengers shouted, that they are going to bump before the
collision which consequently caused the bus driver to apply the brake 3 to 4 meters
away from the truck. Again, without the kerosene nor the torch in front of the truck, it
would be improbable for the driver, more so the passengers to notice the truck to be
bumped by the bus considering the darkness of the place at the time of the accident.

xxx xxx xxx

While it is true that the investigating officer testified that he found no early warning
device at the time of his investigation, We rule to give less credence to such
testimony insofar as he himself admitted on cross examination that he did not notice
the presence of any kerosene lamp at the back of the truck because when he arrived
at the scene of the accident, there were already many people surrounding the place
(TSN, Aug. 22, 1989, p. 13). He further admitted that there exists a probability that
the lights of the truck may have been smashed by the bus at the time of the accident
considering the location of the truck where its rear portion was connected with the
front portion of the bus (TSN, March 29, 1985, pp. Investigator's testimony therefore
did not confirm nor deny the existence of such warning device, making his testimony
of little probative value. 19

We now review the amount of damages awarded to the Garcia spouses.

First, the propriety of the amount awarded as hospitalization and medical fees. The award of
P25,000.00 is not supported by the evidence on record. The Garcias presented receipts marked as
Exhibits "B-1" to "B-42" but their total amounted only to P5,017.74. To be sure, Leticia testified as to
the extra amount spent for her medical needs but without more reliable evidence, her lone testimony
cannot justify the award of P25,000.00. To prove actual damages, the best evidence available to the
injured party must be presented. The court cannot rely on uncorroborated testimony whose truth is
suspect, but must depend upon competent proof that damages have been actually suffered. 20 Thus,
we reduce the actual damages for medical and hospitalization expenses to P5,017.74.

Second, we find as reasonable the award of P300,000.00 representing Leticia's lost earnings. Before
the accident, Leticia was engaged in embroidery, earning P5,000.00 per month. 21 Her injuries forced
her to stop working. Considering the nature and extent of her injuries and the length of time it would
take her to recover, 22 we find it proper that Baliwag should compensate her lost income for five (5)
years. 23

Third, the award of moral damages is in accord with law. In a breach of contract of carriage, moral
damages are recoverable if the carrier, through its agent, acted fraudulently or in bad faith. 24 The
evidence show the gross negligence of the driver of Baliwag bus which amounted to bad faith.
Without doubt, Leticia and Allan experienced physical suffering, mental anguish and serious anxiety
by reason of the accident. Leticia underwent an operation to replace her broken hip bone with a
metal plate. She was confined at the National Orthopedic Hospital for 45 days. The young Allan was
also confined in the hospital for his foot injury. Contrary to the contention of Baliwag, the decision of
the trial court as affirmed by, the Court of Appeals awarded moral damages to Antonio and Leticia
Garcia not in their capacity as parents of Allan. Leticia was given moral damages as an injured party.
Allan was also granted moral damages as an injured party but because of his minority, the award in
his favor has to be given to his father who represented him in the suit.
Finally, we find the award of attorney's fees justified. The complaint for damages was instituted by
the Garcia spouses on December 15, 1982, following the unjustified refusal of Baliwag to settle their
claim. The Decision was promulgated by the trial court only on January 29, 1991 or about nine years
later. Numerous pleadings were filed before the trial court, the appellate court and to this Court.
Given the complexity of the case and the amount of damages involved, 25 the award of attorney's fee
for P10,000.00 is just and reasonable.

IN VIEW WHEREOF, the Decision of the respondent Court of Appeals in CA-G.R. CV-31246 is
AFFIRMED with the MODIFICATION reducing the actual damages for hospitalization and medical
fees to P5,017.74. No costs.

SO ORDERED.

[G.R. Nos. 111168-69. June 17, 1998]

JOAQUIN E. DAVID, petitioner, vs. COURT OF APPEALS and PEOPLE

OF THE PHILIPPINES, respondents.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals.
Petitioner Joaquin E. David was charged, in two separate informations, with homicide
and frustrated homicide for the fatal shooting of Noel Nora and the serious wounding of
the latters brother, Narciso Nora, Jr., on March 28, 1981, in Malabon, Metro Manila.
After trial, petitioner was found guilty as charged. The dispositive portion of the
decision, dated August 17, 1988, of the Regional Trial Court of Kalookan City reads:[1]

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of
the crime of Homicide under Articles 249 and 64(1) of the Revised Penal
Code, and for the crime of Frustrated Homicide under Articles 249 and 50,
without any mitigating or aggravating circumstance in both cases, and hereby
sentences the accused,

For the crime of Homicide, to suffer an indeterminate sentence of EIGHT (8)

YEARS and ONE (1) DAY of prision mayor medium, as minimum, to
SIXTEEN (16) YEARS of reclusion temporal medium, as maximum;

For the crime of Frustrated Homicide, to suffer an indeterminate sentence of

TWO (2) YEARS and ONE (1) DAY of prision correccional as minimum, to
EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as maximum.
And ordering the accused:

(1) To indemnify the heirs of Noel Nora the sum of -

P30,000.00 for the death of Noel Nora

P37,000.00 for actual damages

P30,000.00 for moral damages

P20,000.00 for and as attorneys fees

or a total sum of P117,000.00;

(2) Further, to indemnify Narciso Nora the sum of -

P8,728.00 for actual damages

P20,000.00 for moral damages

or a total sum of P28,000.00

SO ORDERED.

On appeal, the Court of Appeals, in its decision [2] rendered on October 29, 1992,
modified the sentence after crediting petitioner with the mitigating circumstance of
voluntary surrender:[3]

The penalty prescribed by law for homicide is reclusion temporal. Since there
is one (1) mitigating and no aggravating circumstance, the penalty should be
imposed in the [sic] its minimum period.Applying the Indeterminate Sentence
Law, the range of penalty next lower to that prescribed by the Revised Penal
Code for the offense is prision mayor. For the crime of Homicide, the penalty
is therefore modified to a minimum of 10 years and 1 day of prision mayor to a
maximum of 14 years and 8 months of reclusion temporal.

As to the crime of Frustrated Homicide, the same is likewise modified to a

minimum of 4 years and 1 day of prision correccional to a maximum of 6 years
and 1 day of prision mayor.

WHEREFORE, except for the modifications above indicated, the rest of the
appealed judgment is hereby AFFIRMED in all respects.
SO ORDERED.

On July 29, 1992, the appellate court further modified the sentence on petitioner on
the ground that the evidence did not show that he had a police record or that he was
incorrigible. The dispositive portion of the courts resolution[4] stated:

WHEREFORE, except for the penalties imposed which is hereby modified to

read as follows: 1) for the crime of Homicide with one mitigating circumstance
- the penalty ranging from six (6) years and one (1) day of prision mayor as
minimum and twelve (12) years and one (1) day of reclusion temporal as
maximum; and 2) for the crime of frustrated homicide with one mitigating
circumstance - six (6) months and one (1) day of prision correccional as
minimum to six (6) years and one (1) day of prision mayor as maximum, the
motion for reconsideration is DENIED for lack of merit.

SO ORDERED.

Still not satisfied, petitioner brought this appeal from the decision, as modified, of
the Court of Appeals. Petitioner contends that[5]-
I.

THE PUBLIC RESPONDENT COURT OF APPEALS GRIEVOUSLY

ERRED IN NOT HOLDING THAT THE ELEMENTS OF SELF-DEFENSE
HAVE BEEN ESTABLISHED BY PETITIONER BY EVIDENCE WHICH
IS CLEAR, SUFFICIENT, SATISFACTORY, CREDIBLE, CONVINCING,
COMPETENT AND PERSUASIVE.
II.

THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY

ERRED IN FAILING TO CONSIDER THE EXCULPATORY FACTS IN
FAVOR OF THE PETITIONER WHICH IF DULY CONSIDERED WOULD
HAVE COMPLETELY EXONERATED PETITIONER FROM THE
CRIMES CHARGED.
III.

THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED

IN NOT HOLDING THAT IF THERE WAS NO COMPLETE SELF-
DEFENSE, THEN AT THE VERY LEAST THERE IS IN THIS CASE AN
INCOMPLETE SELF-DEFENSE. STILL, IF PETITIONERS DEFENSE IS
DISBELIEVED, OTHER MITIGATING CIRCUMSTANCES SHOULD BE
APPRECIATED IN PETITIONERS FAVOR.
 IV.

THE DECISION OF THE PUBLIC RESPONDENT COURT OF APPEALS

IS NOT IN ACCORDANCE WITH THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE.

The prosecution evidence in this case is as follows:

On March 28, 1981, at about 10:00 p.m., while the Nora brothers Arturo,
Arnel, Noel and Narciso were walking along Flerida Street in Malabon, Metro
Manila on their way home to Capitan Tiago Street, they saw petitioner near
the compound of his house. Noel Nora, the deceased, confronted him about
derogatory remarks allegedly made by the latter. Petitioner ran to his house to
get a gun. When the Nora brothers reached the intersection of Flerida and
Capitan Tiago Streets, he shouted at them Putang ina ninyo (You sons of a
bitch) and other epithets, and then fired four times at them. One shot hit Noel,
killing him. Another shot hit Narciso Nora on the ankle. Another nearly hit the
zipper of Arturo Nora.

Petitioner claimed self-defense. He alleged that on the night in question, he

went to the corner of Flerida and Capitan Tiago Streets because Noel Nora
had earlier challenged him to a fight. However, upon reaching the place, he
found that Noel had brought along his three (3) brothers and other
companions who ganged up on him. Petitioner claimed that Noel Nora
stabbed him with a knife, hitting him on the left arm and that the group could
have stabbed him several times more had he not been able to dodge their
blows. He said when he tried to run away, the victims brothers held both his
arms while Narciso hit him with a piece of wood on the thighs and buttocks
and the others boxed him on the abdomen. Petitioner said he was able to run
away, but the Nora brothers chased him, shouting, We will enter your house
and we will kill you. Petitioner therefore took the .38 caliber gun of his father
(who was a policeman) from the cabinet on the ground floor of their house.

Petitioner went out of the house. The Nora brothers, who were just five (5)
steps away from the door of their house, ran after seeing that petitioner had a
gun. But after running to the other side of the street, they hurled stones at
petitioner and shouted derogatory words at him. Petitioner claimed he
afterward went inside the compound, but he slipped, whereupon the Nora
brothers advanced toward him. He warned them not to get near, but they kept
coming closer, for which reason petitioner fired at them. Petitioner was then
from four (4) to five (5) meters away from the group. Petitioner afterward went
inside their house and gave the gun to his mother.
 In rejecting petitioners claim of self-defense, the Court of Appeals said:[6]

The bone of contention in this case centers on the issue of self-defense. The
trial court, in denying the same, ruled that since there was no unlawful
aggression immediately preceeding [sic] the shooting of the victims, the claim
of self-defense to justify the acts of the accused is unavailing.

For its part, the appellant contends that the lower court erred in its
appreciation of the evidence and testimony of witnesses relative to the locus
of the shooting incident. The appellant claims that notwithstanding the direct
contradiction made by defense witnesses regarding the locus of the crime, the
same does not in any way diminish the credibility of appellants story and his
claim of self-defense.

The contention is devoid of merit. In this case, the issue with respect to the
locus of the crime is determinative not only of the place of its
commission. More importantly, it is decisive in determining the existence of
unlawful aggression as justification for appellants claim of self-defense.

The facts of the case and the evidence presented during the trial reveal that
the shooting of the victims happened outside the residential compound of the
accused. No matter how the defense try to belabour the issue by claiming in
its reply brief that there were in fact two (2) compounds - the residence of the
accused being a small compound within the bigger compound of his relatives
residence and that the victims were shot inside this big section albeit outside
the residential compound of the accused, the evident fact remains that the
victims were shot not in the vicinity of appellants residence as claimed by the
defense but in the streets, after the accused has taken his fathers gun from
their house. Noteworthy is the testimony of defendants mother to the effect
that:

Court: The Court would like to ask. Was your son outside or inside the gate of
your compound when you went to verify the shots?

Witness: He was about to enter the gate of our compound.

Court: When you say he was about to enter the gate of the compound, he was
coming from the outside of the compound of course?

Witness: He was outside the gate of our compound.

(TSN, 11 November 1987 p. 13)

The accused who claims self-defense must prove its elements clearly and
convincingly. The rationale is because such proceeds from the admission of
the accused that he killed or wounded another, which is a felony, for which he
should be criminally liable unless he established to the satisfaction of the
Court the fact of legitimate defense (Castanares v. Court of Appeals, 92
SCRA 567)

As correctly appreciated by the trial court, the evidence established that there
was in fact no immediate unlawful aggression to warrant the acts of the
accused in shooting the victims. While the accused was indeed mauled and
beaten up by the deceased and his companions, the aggression stopped
when the accused was able to free himself from the assault of the group and
thereafter sought refuge in their house. An act of aggression, when its author
does not persist in his purpose or when he discontinues his attitude to the
extent that the object of his attack is no longer in peril is not unlawful
aggression warranting self-defense (People v. Macariola, 120 SCRA 92)

Having sought refuge in their house after the aggression had ceased, the
accused should have desisted from stepping out of their abode with his
fathers gun. In going after the deceased and his companions after the
unlawful aggression ceased to exist, the act of the accused became retaliatory
in nature, done for the purpose of avenging whatever pain and injuries he had
suffered from the hands of the victims. Consequently, the same cannot be
considered as constituting self-defense for the act to repel the unlawful
aggression must immediately follow such unlawful aggression (US v. Ferrer, 1
Phil. 56).

First. Petitioner contends that the unlawful aggression of the Noras and their group
did not cease and that the finding of the Court of Appeals that it did is contrary to the
evidence, particularly the testimonies of Inocencio Antonio and Florthelito Vergara.
Petitioner omits to mention the testimonies of his two other witnesses, Eduardo
Bartolo and Pilar David, on which the trial court and the Court of Appeals relied for their
finding that there was no longer any unlawful aggression when petitioner shot the
victims. Bartolo testified that on March 28, 1981, he heard shots and the sound of
stones being hurled. When he stepped out of his house to find out what was going on,
he saw petitioner near the gate of their compound, aiming his gun at the Nora
brothers. For her part, Pilar David, mother of petitioner, told the court that because she
heard gunshots, she went to the gate of their compound to see what was going on. She
said she saw petitioner getting inside the gate of the compound.
Another defense witness, Inocencio Antonio, testified that the victims were rushing
toward petitioner when they were at the corner of Flerida and Kapitan Tiago
Streets. Antonio said:
 ATTY. CRESCINI: [Defense Lawyer]
Q Where were those teenagers numbering 5 to 6 at that time that Jake David was about to
fire those two (2) last shots?
A At the corner of Flerida and Kapitan Tiago Streets and they were rushing towards Jake
David, sir.[7]
The testimonies of these witnesses belie petitioners claim that he shot the Nora
brothers because they had come dangerously close to getting inside their house, having
in fact entered their compound. Indeed, only Florthelito Vergara corroborated petitioners
testimony that he shot the victims because they had come close to their house by
getting inside their compound.
The defense tries to explain the contrary testimonies of the witnesses by pointing
out that there are actually two compounds - a big compound fronting Flerida Street,
which is occupied by his uncles houses, and a small one in which petitioners parents
live. It claims that petitioner shot the Noras outside the small, but inside the big,
compound. But, as the Court of Appeals held:[8]

. . . . No matter how the defense try to belabor the issue by claiming in its
reply brief that there were in fact two (2) compounds . . . the evident fact
remains that the victims were shot not in the vicinity of appellants
residence as claimed by the defense but in the streets . . .

Petitioner contends that between the prosecution testimony and his testimony which
is corroborated by two disinterested witnesses for the defense, their testimonies should
be preferred. He cites the ruling in People v. Quiritan:[9]

In a serious charge of murder, the guilt of the accused cannot be

predicated on delayed and even inconclusive testimonies of alleged
eyewitnesses which manifest signs of fabrication.

But, in that case, the delay in producing the witnesses (two years), coupled with the
generally weak and confusing testimonies given by them, showed that their statements
had been concocted. There is nothing to show that the testimonies of prosecution
witnesses in this case were fabricated. The Quiritan case is a very different case from
that at bar.
Findings of the trial court on the credibility of witnesses are entitled to great respect
because it has the opportunity to observe the deportment of the witnesses and their
manner of testifying.[10] The decision of the trial court in this case is notable for its
painstaking analysis of the evidence of the parties. Its conclusion that the prosecution
witnesses were more credible than the defense witnesses should be upheld in the
absence of proof that it has overlooked certain important matters as to the credibility of
the witnesses.
In shooting the victims, petitioner was not acting to protect himself but retaliating for
the insult and physical violence he had received at the hands of the victims and their
group. In retaliation, the aggression that was begun by the injured party has already
ceased when the accused attacks him. In self-defense, the aggression still exists when
the aggressor is injured or disabled by the person making the defense.[11]
In this case, defense witness Inocencio Antonio said that the victims and their
companions were already running away because they saw petitioner armed with a
gun. The unlawful aggression had thus already ceased when the latter fired at them. As
Antonio testified:
ATTY. CRESCINI:
Q: Now, what did those teenagers, do after Jake David fired two (2) warning shots in the air?
A: They were frightened and retreated towards Flerida Street and some at Kapitan Tiago
Street, sir.
Q: How about Jake David, what did he do when those teenagers ran some to Flerida Street
and other [sic] at Kapitan Tiago Street?
A: He advanced up to the corner of Flerida and Capitan Tiago Street, sir.[12]
An act of aggression, when its author does not persist in his purpose, or when he
discontinues his attitude to the extent that the object of his attack is no longer in peril, is
not unlawful aggression warranting self-defense.[13]
Second. Petitioner claims that the appellate court failed to consider exculpatory
facts in his favor.
1. Petitioner claims he was injured and that his injuries, although minor, show that
he was attacked by the Noras, for which reason he filed a complaint for frustrated
homicide against them in the fiscals office.
This fact was not overlooked by the appellate court. However, it found that While
the accused was indeed mauled and beaten up by the deceased and his companions,
the aggression stopped when the accused was able to free himself from the assault of
the group and thereafter sought refuge in his house.[14]
2. Petitioner felt depressed after the shooting. He vomited and could not eat and
had to be hospitalized. These circumstances show that he is not a killer at heart and
certainly not the villain that the lower court pictured him to be. Furthermore, petitioner
was so afraid he had to close his eyes in firing his gun. Proof of this is that Narciso Nora
was only hit at the ankle.
The undisputed fact is that the petitioner fired four shots, one a warning shot and
three others directed at the victims. Two (2) of the three (3) shots directed against the
victims hit their marks. One bullet killed Noel Nora and the other almost killed Narciso
Nora, Jr. If the testimony of the prosecution witnesses is to be believed, the third bullet
almost hit the zipper of Arturo Nora. This fact belies petitioners assertion that he fired
the gun with his eyes closed and only to defend himself.
The fact that one shot hit Noel Nora on the chest, while the other hit Narciso, Jr.
only on the ankle, could be due to petitioners nervousness and unsteady hand, but not
to the fact that he did not really mean to shoot them.
 Petitioner said he fired warning shots even as he warned them not to come near
because, up to the last moment, he did not want to shoot the victims. Both the trial court
and the Court of Appeals gave no weight to this claim, apparently because of the
inconsistency in the testimonies of the defense witnesses. Petitioner said he fired only
one warning shot:
ATTY. CRESCINI:
Q: You declared that when you saw them approaching and taking advantage of your having
slipped, they were armed and you felt very afraid and nervous, what did you do when
you saw them approaching?
WITNESS JOAQUIN DAVID
A: I fired the gun upwards.[15]
But defense witness Inocencio Antonio said petitioner fired two warning shots:
ATTY. CRESCINI:
Q: Now according to you, he came out with a gun and fired two (2) shots, in what direction,
did he fire those two (2) shots?
A: In the air, warning shots.
Q: Now what did those teenagers, do after Jake David fired two (2) warning shots in the air?
A: They were frightened and retreated towards Flerida Street and some at Kapitan Tiago
Street, sir.[16]
Antonio later tried to correct his mistake but in doing so, only succeeded in showing
that he had lied. Testifying again on October 29, 1985, Antonio said:
ATTY. CRESCINI:
Q: You testified during the last hearing that you heard two (2) warning shots on the evening
of March 28, 1981, do you remember that?
A: Yes, sir.
Q: What made you say that there were, I am referring to the first two (2) warning shots, what
made you say that they were warning shots?
A: I remember that I did not hear two (2) shots but only one, sir.
Q: What made you say that the one (1) shot was a warning shot?
A: Because the gun was pointing upward, sir.[17]
The inconsistency in the testimonies of the defense witnesses so undermined their
credibility that both trial court and the Court of Appeals disregarded the testimonies.
3. It is claimed that petitioner is effeminate while in contrast, the deceased Noel
Nora, his brother Lito, and a John Doe were bullies who, even at a very young age, had
already been charged with slight physical injuries in two cases filed in the Municipal
Court of Malabon.
 The purpose is apparently to show the bad moral character and troublesome nature
of the deceased and his brothers, and thereby to show the improbability of the offenses
charged pursuant to Rule 130, 51 of the Revised Rules on Evidence. It is true that
where self-defense is claimed and the character of the slaying is doubtful, evidence of
the violent and dangerous character of the deceased is admissible for the purpose of
determining whether the deceased or the accused was the aggressor. [18] The fact,
however, is that the cases filed against the deceased had been dismissed. No inference
of the violent character of the victims can be drawn from the mere fact that criminal
cases had been filed against one of them.
Third. It is argued that, at any rate, petitioner should have been given credit for
incomplete self-defense. It is not stated what element of self-defense is absent to make
it incomplete. Be that as it may, our finding that there was no longer any unlawful
aggression when petitioner shot the victims rules out the possibility of self-defense,
whether complete or incomplete.
Petitioner further contends that certain mitigating circumstances, besides voluntary
surrender, should have been considered in his favor, to wit: (a) that sufficient
provocation or threat on the part of the offended party immediately preceded the
act;[19] (b) that he acted in the immediate vindication of a grave offense committed
against him;[20] (c) that he acted upon an impulse so powerful as to produce passion or
obfuscation.[21]
The mitigating circumstance of having acted in the immediate vindication of a grave
offense may be appreciated. As the trial court and the Court of Appeals found, the
petitioner had been beaten up by the Noras and their companions. Although the
unlawful aggression had ceased when petitioner shot the Nora brothers, it was
nonetheless a grave offense for the vindication of which petitioner may be given the
benefit of a mitigating circumstance. As petitioners mother testified:[22]
ATTY. RODRIGUEZ: [Private Prosecutor]
Q: Did you ask your son who fired the shots?
A: I told him, Ikaw ba, Jake? I told him, Are you the one? Pinagtulung-tulungan nila po ako
kasi.
But the mitigating circumstances of passion or obfuscation and sufficient
provocation cannot be considered apart from the circumstance of vindication of a grave
offense. These circumstances all arose from one and the same incident, i.e., the attack
on the petitioner by the victims and their companions, so that they should be considered
as one mitigating circumstance.[23]
Nor is the fact that petitioner has not shown himself to be incorrigible a ground for
reducing the penalty on him, as the Court of Appeals held in its resolution on the motion
for reconsideration. This is a ground for suspension of judgment of youthful
offenders, i.e., those over 9 but under 18 years of age,[24] which of course could no
longer be ordered since at the time the trial court rendered its decision petitioner was
already over 18 years of age. Clearly, this is not a mitigating circumstance and should
not be used as basis for reducing the penalty.
 One circumstance not raised by the defense but evident from the record of this case
is minority. In his statement to the police given on April 2, 1981, petitioner gave his
personal circumstances as follows: Joaquin David y Ejercito, 17 taong gulang, 2nd year
college, binata at naninirahan sa 12-C Flerida St., Acacia, Malabon, Metro Manila.[25] At
the hearing on November 11, 1987, petitioners mother stated that he was 16 or 17
years old when the shooting incident happened:
ATTY. RODRIGUEZ:
Q: You know for a fact that your son Jake being only 17 on March . . . .
A: 16 or 17.
Q: Because he was only 16 or 17, as a young man and quite curious, you know for a fact that
sometimes your son got hold of it?
A: I never saw him hold the gun of his father. I never for an instance saw him hold the gun of
his father.[26]
When the petitioner testified on March 11, 1987, he gave his age at that time as 22
years old.[27]
It is thus clear that on March 28, 1981, when the crime was committed, he was only
17 years old. We have held in many cases[28] that if the accused alleges minority and the
prosecution does not disprove his claim by contrary evidence, such allegation can be
accepted as a fact. Thus, in United States v. Bergantino,[29] the accused testified that
she was below 15 when the crime was committed. This was corroborated by her mother
and her husband. No other evidence, such as the baptismal certificate, was presented
to support this claim. The prosecution did not offer any contradictory evidence. This
Court held:

While the evidence upon this point is not entirely satisfactory, yet it is
sufficient to raise a reasonable doubt upon this material question in the
case, to the benefit of which the defendant is entitled.The baptismal
certificate or other evidence of this character would have been much
more satisfactory to the court, and, if obtainable, should have been
introduced. Neither the prosecution nor the defendant saw fit to introduce
such evidence.

Any doubt in respect of the age of the accused is resolved in his favor. In United
States v. Barbicho,[30] it was held:

In regard to the doubt as to whether the accused is over or under 18 years of

age, and in the absence of proof that on the day he committed the crime he
was 18 years old, he must perforce be considered as still under that age, and
therefore, the mitigating circumstance mentioned in paragraph No. 2 of article
9 of the code should be applied in his favor . . . .

In United States v. Agadas,[31] this Court similarly held:

While it is true that in the instant case Rosario testified that he was 17 years of
age, yet the trial court reached the conclusion, judging from the personal
appearance of Rosario, that he is a youth 18 or 19 years old. Applying the rule
enunciated in the case just cited, we must conclude that there exists a
reasonable doubt, at least, with reference to the question whether Rosario
was, in fact, 18 years of age at the time the robbery was committed. This
doubt must be resolved in favor of the defendant. . . .

There are therefore present in this case the privileged mitigating circumstance of
minority and two ordinary mitigating circumstances (voluntary surrender and immediate
vindication of a grave offense). Because of the presence of the privileged mitigating
circumstance of minority, the penalty of reclusion temporal should be reduced by one
degree to prision mayor, pursuant to Art. 68 of the Revised Penal Code. The penalty
of prision mayor should further be reduced to prision correccional because of the
presence of two ordinary mitigating circumstances without any aggravating
circumstance, pursuant to Art. 64, par. 5 of the same Code. Applying the Indeterminate
Sentence Law, petitioner should be made to suffer imprisonment, the minimum of which
should be within the range of arresto mayor and the maximum of which within the range
of prision correccional.
On the other hand, for the crime of frustrated homicide, the penalty imposable for
the consummated crime of homicide should be reduced by one degree, i.e., to prision
mayor. Because of the presence of one privileged mitigating circumstance and two
ordinary mitigating circumstances and no aggravating circumstance, the penalty
of prision mayor should be reduced by two degrees, i.e., to arresto mayor.
With respect to the award of damages, the amount of P30,000 awarded as
indemnity for the death of Noel Nora should be increased to P50,000.00 pursuant to
current rulings.[32] But the award of P37,000.00 for actual damages should be reduced
to P22,000.00. As held in Fuentes, Jr. v. Court of Appeals,[33] only expenses supported
by receipts and which appear to have been actually expended in connection with the
death of the victim should be allowed. The award of actual damages cannot be based
on the allegation of a witness without any tangible document to support such claim. In
this case, only P22,000.00 is supported by a receipt (Exh. X) for funeral expenses.
The amount of moral damages (P30,000.00) and attorneys fees (P20,000.00)
appear to be reasonable and may therefore be allowed.
With respect to the damages awarded for the shooting of Narciso Nora, Jr., the
award of P8,728 as actual damages should be reduced to P1,928.65 as the receipts
(Exhs. Y and Z) presented show the payment of this amount only to the National
Orthopedic Hospital.
The award of P20,000.00 as moral damages appears to be just and reasonable and
therefore should be allowed under the circumstances.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the
MODIFICATION that, for the crime of homicide, the petitioner is sentenced to suffer an
indeterminate penalty of 6 months of arresto mayor, as minimum, to 6 years of prision
correccional, as maximum, and, for the crime of frustrated homicide, he is sentenced to
suffer the penalty of 6 months of arresto mayor.
In addition, petitioner is hereby ordered to pay the following:
1. To the heirs of the deceased Noel Nora, the sums of P50,000.00, as indemnity for
the death of Noel Nora; P22,000.00, as actual damages; P30,000.00, as moral
damages, and P20,000.00, as attorneys fees;
2. The sums of P1,928.65, as actual damages, and P20,000.00, as moral
damages and P20,000.00, as attorneys fees to Narciso Nora, Jr. for wounding the
latter.
SO ORDERED.

G.R. No. 115324 February 19, 2003

PRODUCERS BANK OF THE PHILIPPINES (now FIRST INTERNATIONAL BANK), petitioner,

vs.
HON. COURT OF APPEALS AND FRANKLIN VIVES, respondents.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision1 of the Court of Appeals dated June 25, 1991
in CA-G.R. CV No. 11791 and of its Resolution2 dated May 5, 1994, denying the motion for
reconsideration of said decision filed by petitioner Producers Bank of the Philippines.

Sometime in 1979, private respondent Franklin Vives was asked by his neighbor and friend Angeles
Sanchez to help her friend and townmate, Col. Arturo Doronilla, in incorporating his business, the
Sterela Marketing and Services ("Sterela" for brevity). Specifically, Sanchez asked private
respondent to deposit in a bank a certain amount of money in the bank account of Sterela for
purposes of its incorporation. She assured private respondent that he could withdraw his money
from said account within a month’s time. Private respondent asked Sanchez to bring Doronilla to
their house so that they could discuss Sanchez’s request.3

On May 9, 1979, private respondent, Sanchez, Doronilla and a certain Estrella Dumagpi, Doronilla’s
private secretary, met and discussed the matter. Thereafter, relying on the assurances and
representations of Sanchez and Doronilla, private respondent issued a check in the amount of Two
Hundred Thousand Pesos (₱200,000.00) in favor of Sterela. Private respondent instructed his wife,
Mrs. Inocencia Vives, to accompany Doronilla and Sanchez in opening a savings account in the
name of Sterela in the Buendia, Makati branch of Producers Bank of the Philippines. However, only
Sanchez, Mrs. Vives and Dumagpi went to the bank to deposit the check. They had with them an
authorization letter from Doronilla authorizing Sanchez and her companions, "in coordination with
Mr. Rufo Atienza," to open an account for Sterela Marketing Services in the amount of ₱200,000.00.
In opening the account, the authorized signatories were Inocencia Vives and/or Angeles Sanchez. A
passbook for Savings Account No. 10-1567 was thereafter issued to Mrs. Vives.4

Subsequently, private respondent learned that Sterela was no longer holding office in the address
previously given to him. Alarmed, he and his wife went to the Bank to verify if their money was still
intact. The bank manager referred them to Mr. Rufo Atienza, the assistant manager, who informed
them that part of the money in Savings Account No. 10-1567 had been withdrawn by Doronilla, and
that only ₱90,000.00 remained therein. He likewise told them that Mrs. Vives could not withdraw said
remaining amount because it had to answer for some postdated checks issued by Doronilla.
According to Atienza, after Mrs. Vives and Sanchez opened Savings Account No. 10-1567, Doronilla
opened Current Account No. 10-0320 for Sterela and authorized the Bank to debit Savings Account
No. 10-1567 for the amounts necessary to cover overdrawings in Current Account No. 10-0320. In
opening said current account, Sterela, through Doronilla, obtained a loan of ₱175,000.00 from the
Bank. To cover payment thereof, Doronilla issued three postdated checks, all of which were
dishonored. Atienza also said that Doronilla could assign or withdraw the money in Savings Account
No. 10-1567 because he was the sole proprietor of Sterela.5

Private respondent tried to get in touch with Doronilla through Sanchez. On June 29, 1979, he
received a letter from Doronilla, assuring him that his money was intact and would be returned to
him. On August 13, 1979, Doronilla issued a postdated check for Two Hundred Twelve Thousand
Pesos (₱212,000.00) in favor of private respondent. However, upon presentment thereof by private
respondent to the drawee bank, the check was dishonored. Doronilla requested private respondent
to present the same check on September 15, 1979 but when the latter presented the check, it was
again dishonored.6

Private respondent referred the matter to a lawyer, who made a written demand upon Doronilla for
the return of his client’s money. Doronilla issued another check for ₱212,000.00 in private
respondent’s favor but the check was again dishonored for insufficiency of funds.7

Private respondent instituted an action for recovery of sum of money in the Regional Trial Court
(RTC) in Pasig, Metro Manila against Doronilla, Sanchez, Dumagpi and petitioner. The case was
docketed as Civil Case No. 44485. He also filed criminal actions against Doronilla, Sanchez and
Dumagpi in the RTC. However, Sanchez passed away on March 16, 1985 while the case was
pending before the trial court. On October 3, 1995, the RTC of Pasig, Branch 157, promulgated its
Decision in Civil Case No. 44485, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, judgment is hereby rendered sentencing defendants Arturo J.

Doronila, Estrella Dumagpi and Producers Bank of the Philippines to pay plaintiff Franklin Vives
jointly and severally –

(a) the amount of ₱200,000.00, representing the money deposited, with interest at the legal
rate from the filing of the complaint until the same is fully paid;

(b) the sum of ₱50,000.00 for moral damages and a similar amount for exemplary damages;

(c) the amount of ₱40,000.00 for attorney’s fees; and

(d) the costs of the suit.

SO ORDERED.8

Petitioner appealed the trial court’s decision to the Court of Appeals. In its Decision dated June 25,
1991, the appellate court affirmed in toto the decision of the RTC.9 It likewise denied with finality
petitioner’s motion for reconsideration in its Resolution dated May 5, 1994.10

On June 30, 1994, petitioner filed the present petition, arguing that –
 I.

THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THAT THE TRANSACTION

BETWEEN THE DEFENDANT DORONILLA AND RESPONDENT VIVES WAS ONE OF SIMPLE
LOAN AND NOT ACCOMMODATION;

II.

THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THAT PETITIONER’S BANK

MANAGER, MR. RUFO ATIENZA, CONNIVED WITH THE OTHER DEFENDANTS IN
DEFRAUDING PETITIONER (Sic. Should be PRIVATE RESPONDENT) AND AS A
CONSEQUENCE, THE PETITIONER SHOULD BE HELD LIABLE UNDER THE PRINCIPLE OF
NATURAL JUSTICE;

III.

THE HONORABLE COURT OF APPEALS ERRED IN ADOPTING THE ENTIRE RECORDS OF

THE REGIONAL TRIAL COURT AND AFFIRMING THE JUDGMENT APPEALED FROM, AS THE
FINDINGS OF THE REGIONAL TRIAL COURT WERE BASED ON A MISAPPREHENSION OF
FACTS;

IV.

THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THE CITED DECISION
IN SALUDARES VS. MARTINEZ, 29 SCRA 745, UPHOLDING THE LIABILITY OF AN EMPLOYER
FOR ACTS COMMITTED BY AN EMPLOYEE IS APPLICABLE;

V.

THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION OF THE

LOWER COURT THAT HEREIN PETITIONER BANK IS JOINTLY AND SEVERALLY LIABLE WITH
THE OTHER DEFENDANTS FOR THE AMOUNT OF P200,000.00 REPRESENTING THE
SAVINGS ACCOUNT DEPOSIT, P50,000.00 FOR MORAL DAMAGES, P50,000.00 FOR
EXEMPLARY DAMAGES, P40,000.00 FOR ATTORNEY’S FEES AND THE COSTS OF SUIT.11

Private respondent filed his Comment on September 23, 1994. Petitioner filed its Reply thereto on
September 25, 1995. The Court then required private respondent to submit a rejoinder to the reply.
However, said rejoinder was filed only on April 21, 1997, due to petitioner’s delay in furnishing
private respondent with copy of the reply12 and several substitutions of counsel on the part of private
respondent.13 On January 17, 2001, the Court resolved to give due course to the petition and required
the parties to submit their respective memoranda.14 Petitioner filed its memorandum on April 16, 2001
while private respondent submitted his memorandum on March 22, 2001.

Petitioner contends that the transaction between private respondent and Doronilla is a simple loan
(mutuum) since all the elements of a mutuum are present: first, what was delivered by private
respondent to Doronilla was money, a consumable thing; and second, the transaction was onerous
as Doronilla was obliged to pay interest, as evidenced by the check issued by Doronilla in the
amount of ₱212,000.00, or ₱12,000 more than what private respondent deposited in Sterela’s bank
account.15 Moreover, the fact that private respondent sued his good friend Sanchez for his failure to
recover his money from Doronilla shows that the transaction was not merely gratuitous but "had a
business angle" to it. Hence, petitioner argues that it cannot be held liable for the return of private
respondent’s ₱200,000.00 because it is not privy to the transaction between the latter and
Doronilla.16

It argues further that petitioner’s Assistant Manager, Mr. Rufo Atienza, could not be faulted for
allowing Doronilla to withdraw from the savings account of Sterela since the latter was the sole
proprietor of said company. Petitioner asserts that Doronilla’s May 8, 1979 letter addressed to the
bank, authorizing Mrs. Vives and Sanchez to open a savings account for Sterela, did not contain any
authorization for these two to withdraw from said account. Hence, the authority to withdraw
therefrom remained exclusively with Doronilla, who was the sole proprietor of Sterela, and who alone
had legal title to the savings account.17 Petitioner points out that no evidence other than the
testimonies of private respondent and Mrs. Vives was presented during trial to prove that private
respondent deposited his ₱200,000.00 in Sterela’s account for purposes of its incorporation.18 Hence,
petitioner should not be held liable for allowing Doronilla to withdraw from Sterela’s savings
account. 1a\^ /phi1.net

Petitioner also asserts that the Court of Appeals erred in affirming the trial court’s decision since the
findings of fact therein were not accord with the evidence presented by petitioner during trial to prove
that the transaction between private respondent and Doronilla was a mutuum, and that it committed
no wrong in allowing Doronilla to withdraw from Sterela’s savings account.19

Finally, petitioner claims that since there is no wrongful act or omission on its part, it is not liable for
the actual damages suffered by private respondent, and neither may it be held liable for moral and
exemplary damages as well as attorney’s fees.20

Private respondent, on the other hand, argues that the transaction between him and Doronilla is not
a mutuum but an accommodation,21 since he did not actually part with the ownership of his
₱200,000.00 and in fact asked his wife to deposit said amount in the account of Sterela so that a
certification can be issued to the effect that Sterela had sufficient funds for purposes of its
incorporation but at the same time, he retained some degree of control over his money through his
wife who was made a signatory to the savings account and in whose possession the savings
account passbook was given.22

He likewise asserts that the trial court did not err in finding that petitioner, Atienza’s employer, is
liable for the return of his money. He insists that Atienza, petitioner’s assistant manager, connived
with Doronilla in defrauding private respondent since it was Atienza who facilitated the opening of
Sterela’s current account three days after Mrs. Vives and Sanchez opened a savings account with
petitioner for said company, as well as the approval of the authority to debit Sterela’s savings
account to cover any overdrawings in its current account.23

There is no merit in the petition.

At the outset, it must be emphasized that only questions of law may be raised in a petition for review
filed with this Court. The Court has repeatedly held that it is not its function to analyze and weigh all
over again the evidence presented by the parties during trial.24 The Court’s jurisdiction is in principle
limited to reviewing errors of law that might have been committed by the Court of
Appeals.25 Moreover, factual findings of courts, when adopted and confirmed by the Court of Appeals,
are final and conclusive on this Court unless these findings are not supported by the evidence on
record.26 There is no showing of any misapprehension of facts on the part of the Court of Appeals in
the case at bar that would require this Court to review and overturn the factual findings of that court,
especially since the conclusions of fact of the Court of Appeals and the trial court are not only
consistent but are also amply supported by the evidence on record.
No error was committed by the Court of Appeals when it ruled that the transaction between private
respondent and Doronilla was a commodatum and not a mutuum. A circumspect examination of the
records reveals that the transaction between them was a commodatum. Article 1933 of the Civil
Code distinguishes between the two kinds of loans in this wise:

By the contract of loan, one of the parties delivers to another, either something not consumable so
that the latter may use the same for a certain time and return it, in which case the contract is called a
commodatum; or money or other consumable thing, upon the condition that the same amount of the
same kind and quality shall be paid, in which case the contract is simply called a loan or mutuum.

Commodatum is essentially gratuitous.

Simple loan may be gratuitous or with a stipulation to pay interest.

In commodatum, the bailor retains the ownership of the thing loaned, while in simple loan, ownership
passes to the borrower.

The foregoing provision seems to imply that if the subject of the contract is a consumable thing, such
as money, the contract would be a mutuum. However, there are some instances where a
commodatum may have for its object a consumable thing. Article 1936 of the Civil Code provides:

Consumable goods may be the subject of commodatum if the purpose of the contract is not the
consumption of the object, as when it is merely for exhibition.

Thus, if consumable goods are loaned only for purposes of exhibition, or when the intention of the
parties is to lend consumable goods and to have the very same goods returned at the end of the
period agreed upon, the loan is a commodatum and not a mutuum.

The rule is that the intention of the parties thereto shall be accorded primordial consideration in
determining the actual character of a contract.27 In case of doubt, the contemporaneous and
subsequent acts of the parties shall be considered in such determination.28

As correctly pointed out by both the Court of Appeals and the trial court, the evidence shows that
private respondent agreed to deposit his money in the savings account of Sterela specifically for the
purpose of making it appear "that said firm had sufficient capitalization for incorporation, with the
promise that the amount shall be returned within thirty (30) days."29 Private respondent merely
"accommodated" Doronilla by lending his money without consideration, as a favor to his good friend
Sanchez. It was however clear to the parties to the transaction that the money would not be
removed from Sterela’s savings account and would be returned to private respondent after thirty (30)
days.

Doronilla’s attempts to return to private respondent the amount of ₱200,000.00 which the latter
deposited in Sterela’s account together with an additional ₱12,000.00, allegedly representing
interest on the mutuum, did not convert the transaction from a commodatum into a mutuum because
such was not the intent of the parties and because the additional ₱12,000.00 corresponds to the
fruits of the lending of the ₱200,000.00. Article 1935 of the Civil Code expressly states that "[t]he
bailee in commodatum acquires the use of the thing loaned but not its fruits." Hence, it was only
proper for Doronilla to remit to private respondent the interest accruing to the latter’s money
deposited with petitioner.
Neither does the Court agree with petitioner’s contention that it is not solidarily liable for the return of
private respondent’s money because it was not privy to the transaction between Doronilla and
private respondent. The nature of said transaction, that is, whether it is a mutuum or a commodatum,
has no bearing on the question of petitioner’s liability for the return of private respondent’s money
because the factual circumstances of the case clearly show that petitioner, through its employee Mr.
Atienza, was partly responsible for the loss of private respondent’s money and is liable for its
restitution.

Petitioner’s rules for savings deposits written on the passbook it issued Mrs. Vives on behalf of
Sterela for Savings Account No. 10-1567 expressly states that—

"2. Deposits and withdrawals must be made by the depositor personally or upon his written authority
duly authenticated, and neither a deposit nor a withdrawal will be permitted except upon the
production of the depositor savings bank book in which will be entered by the Bank the amount
deposited or withdrawn."30

Said rule notwithstanding, Doronilla was permitted by petitioner, through Atienza, the Assistant
Branch Manager for the Buendia Branch of petitioner, to withdraw therefrom even without presenting
the passbook (which Atienza very well knew was in the possession of Mrs. Vives), not just once, but
several times. Both the Court of Appeals and the trial court found that Atienza allowed said
withdrawals because he was party to Doronilla’s "scheme" of defrauding private respondent:

XXX

But the scheme could not have been executed successfully without the knowledge, help and
cooperation of Rufo Atienza, assistant manager and cashier of the Makati (Buendia) branch of the
defendant bank. Indeed, the evidence indicates that Atienza had not only facilitated the commission
of the fraud but he likewise helped in devising the means by which it can be done in such manner as
to make it appear that the transaction was in accordance with banking procedure.

To begin with, the deposit was made in defendant’s Buendia branch precisely because Atienza was
a key officer therein. The records show that plaintiff had suggested that the ₱200,000.00 be
deposited in his bank, the Manila Banking Corporation, but Doronilla and Dumagpi insisted that it
must be in defendant’s branch in Makati for "it will be easier for them to get a certification". In fact
before he was introduced to plaintiff, Doronilla had already prepared a letter addressed to the
Buendia branch manager authorizing Angeles B. Sanchez and company to open a savings account
for Sterela in the amount of ₱200,000.00, as "per coordination with Mr. Rufo Atienza, Assistant
Manager of the Bank x x x" (Exh. 1). This is a clear manifestation that the other defendants had been
in consultation with Atienza from the inception of the scheme. Significantly, there were testimonies
and admission that Atienza is the brother-in-law of a certain Romeo Mirasol, a friend and business
associate of Doronilla.1awphi 1.nét

Then there is the matter of the ownership of the fund. Because of the "coordination" between
Doronilla and Atienza, the latter knew before hand that the money deposited did not belong to
Doronilla nor to Sterela. Aside from such foreknowledge, he was explicitly told by Inocencia Vives
that the money belonged to her and her husband and the deposit was merely to accommodate
Doronilla. Atienza even declared that the money came from Mrs. Vives.

Although the savings account was in the name of Sterela, the bank records disclose that the only
ones empowered to withdraw the same were Inocencia Vives and Angeles B. Sanchez. In the
signature card pertaining to this account (Exh. J), the authorized signatories were Inocencia Vives
&/or Angeles B. Sanchez. Atienza stated that it is the usual banking procedure that withdrawals of
savings deposits could only be made by persons whose authorized signatures are in the signature
cards on file with the bank. He, however, said that this procedure was not followed here because
Sterela was owned by Doronilla. He explained that Doronilla had the full authority to withdraw by
virtue of such ownership. The Court is not inclined to agree with Atienza. In the first place, he was all
the time aware that the money came from Vives and did not belong to Sterela. He was also told by
Mrs. Vives that they were only accommodating Doronilla so that a certification can be issued to the
effect that Sterela had a deposit of so much amount to be sued in the incorporation of the firm. In the
second place, the signature of Doronilla was not authorized in so far as that account is concerned
inasmuch as he had not signed the signature card provided by the bank whenever a deposit is
opened. In the third place, neither Mrs. Vives nor Sanchez had given Doronilla the authority to
withdraw.

Moreover, the transfer of fund was done without the passbook having been presented. It is an
accepted practice that whenever a withdrawal is made in a savings deposit, the bank requires the
presentation of the passbook. In this case, such recognized practice was dispensed with. The
transfer from the savings account to the current account was without the submission of the passbook
which Atienza had given to Mrs. Vives. Instead, it was made to appear in a certification signed by
Estrella Dumagpi that a duplicate passbook was issued to Sterela because the original passbook
had been surrendered to the Makati branch in view of a loan accommodation assigning the savings
account (Exh. C). Atienza, who undoubtedly had a hand in the execution of this certification, was
aware that the contents of the same are not true. He knew that the passbook was in the hands of
Mrs. Vives for he was the one who gave it to her. Besides, as assistant manager of the branch and
the bank official servicing the savings and current accounts in question, he also was aware that the
original passbook was never surrendered. He was also cognizant that Estrella Dumagpi was not
among those authorized to withdraw so her certification had no effect whatsoever.

The circumstance surrounding the opening of the current account also demonstrate that Atienza’s
active participation in the perpetration of the fraud and deception that caused the loss. The records
indicate that this account was opened three days later after the ₱200,000.00 was deposited. In spite
of his disclaimer, the Court believes that Atienza was mindful and posted regarding the opening of
the current account considering that Doronilla was all the while in "coordination" with him. That it was
he who facilitated the approval of the authority to debit the savings account to cover any
overdrawings in the current account (Exh. 2) is not hard to comprehend.

Clearly Atienza had committed wrongful acts that had resulted to the loss subject of this case. x x x.31

Under Article 2180 of the Civil Code, employers shall be held primarily and solidarily liable for
damages caused by their employees acting within the scope of their assigned tasks. To hold the
employer liable under this provision, it must be shown that an employer-employee relationship
exists, and that the employee was acting within the scope of his assigned task when the act
complained of was committed.32 Case law in the United States of America has it that a corporation
that entrusts a general duty to its employee is responsible to the injured party for damages flowing
from the employee’s wrongful act done in the course of his general authority, even though in doing
such act, the employee may have failed in its duty to the employer and disobeyed the latter’s
instructions.33

There is no dispute that Atienza was an employee of petitioner. Furthermore, petitioner did not deny
that Atienza was acting within the scope of his authority as Assistant Branch Manager when he
assisted Doronilla in withdrawing funds from Sterela’s Savings Account No. 10-1567, in which
account private respondent’s money was deposited, and in transferring the money withdrawn to
Sterela’s Current Account with petitioner. Atienza’s acts of helping Doronilla, a customer of the
petitioner, were obviously done in furtherance of petitioner’s interests34 even though in the process,
Atienza violated some of petitioner’s rules such as those stipulated in its savings account
passbook.35 It was established that the transfer of funds from Sterela’s savings account to its current
account could not have been accomplished by Doronilla without the invaluable assistance of
Atienza, and that it was their connivance which was the cause of private respondent’s loss.

The foregoing shows that the Court of Appeals correctly held that under Article 2180 of the Civil
Code, petitioner is liable for private respondent’s loss and is solidarily liable with Doronilla and
Dumagpi for the return of the ₱200,000.00 since it is clear that petitioner failed to prove that it
exercised due diligence to prevent the unauthorized withdrawals from Sterela’s savings account, and
that it was not negligent in the selection and supervision of Atienza. Accordingly, no error was
committed by the appellate court in the award of actual, moral and exemplary damages, attorney’s
fees and costs of suit to private respondent.

WHEREFORE, the petition is hereby DENIED. The assailed Decision and Resolution of the Court of
Appeals are AFFIRMED.

SO ORDERED.

G.R. No. 113578 July 14, 1995

SULPICIO LINES, INC., Petitioner,

vs.
The Honorable COURT OF APPEALS and TITO DURAN TABUQUILDE and ANGELINA DE PAZ
TABUQUILDE, respondents.

QUIASON, J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court of the decision
of the Court of Appeals in CA-G.R. CV
No. 32864, which affirmed the decision of the Regional Trial Court, Branch 85, Quezon City in Civil
Case No. Q-89-3048.

The Court of Appeals found:

On October 23, 1988, plaintiff Tito Duran Tabuquilde (hereinafter, "Tito") and his
three-year old daughter Jennifer Anne boarded the M/V Dona Marilyn at North
Harbor, Manila, bringing with them several pieces of luggage.

In the morning of October 24, 1988, the M/V Dona Marilyn, while in transit,
encountered inclement weather which caused huge waves due to Typhoon Unsang.

Notwithstanding the fact that Storm Signal No. 2 had been raised by the PAG-ASA
authorities over Leyte as early as 5:30 P.M. of October 23, 1988 and which signal
was raised to Signal No. 3 by 10 P.M. of the same day, the ship captain ordered the
vessel to proceed to Tacloban when prudence dictated that he should have taken it
 to the nearest port for shelter, thus violating his duty to exercise extraordinary
diligence in the carrying of passengers safely to their destination.

At about the same time, plaintiff-appellee Angelina Tabuquilde (hereinafter,

"Angelina") mother of Jennifer Anne, contacted the Sulpicio Office to verify radio
reports that the vessel M/V Dona Marilyn was missing. Employees of said Sulpicio
Lines assured her that the ship was merely "hiding" thereby assuaging her anxiety.

At around 2:00 P.M. of October 24, 1988, said vessel capsized, throwing plaintiff-
appellee Tito and Jennifer Anne, along with hundreds of passengers, into the
tumultuous sea.

Tito tried to keep himself and his daughter afloat but to no avail as the waves got
stronger and he was subsequently separated from his daughter despite his efforts.

He found himself on Almagro Island in Samar the next day at round (sic) 11:00 A.M.
and immediately searched for his daughter among the survivors in the island, but the
search proved fruitless.

In the meantime, Angelina tried to seek the assistance of the Sulpicio Lines in Manila
to no avail, the latter refusing to entertain her and hundreds of relatives of the other
passengers who waited long hours outside the Manila Office. Angelina spent
sleepless nights worrying about her husband Tito and daughter Jennifer Anne in view
of the refusal of Sulpicio Lines to release a verification of the sinking of the ship.

On October 26, 1988, Tito and other survivors in the Almagro Island were fetched
and were brought to Tacloban Medical Center for treatment.

On October 31, 1988, Tito reported the loss of his daughter, was informed that the
corpse of a child with his daughter's description had been found. Subsequently, Tito
wrote a letter to his wife, reporting the sad fact that Jennifer Anne was dead.
Angelina suffered from shock and severe grief upon receipt of the news.

On November 3, 1988, the coffin bearing the corpse of Jennifer Anne was buried in
Tanauan, Leyte.

On November 24, 1988, a claim for damages was filed by Tito with the defendant
Sulpicio Lines in connection with the death of the plaintiff-appellee's daughter and
the loss of Tito's belongings worth P27,580.00. (Appellees' Brief, pp. 2-4) ( Rollo, pp.
52-54).

On January 3, 1991, the trial court rendered a decision in Civil Case No. Q-89-3048 in favor of the
plaintiffs Tito Duran Tabuquilde and Angelina de Paz Tabuquilde (private respondents herein) and
against defendant Sulpicio Lines, Inc. (petitioner herein) ordering defendant to pay P27,580.00 as
actual damages, P30,000.00 for the death of Jennifer Tabuquilde, P100,000.00 as moral damages,
P50,000.00 as exemplary damages, and P50,000.00 as attorney's fees, and costs.

Petitioner appealed to the Court of Appeals which affirmed the decision of the trial court. Petitioner
then filed a motion for reconsideration which was denied. Hence, this petition.

II
Generally, the findings of fact of the trial court are entitled to great weight and not disturbed except
for cogent reasons (Gatmaitan v. Court of Appeals, 200 SCRA 37 [1991]). One of the accepted
reasons is when the findings of fact are not supported by the evidence (Sandoval Shipyard, Inc. v.
Clave, 94 SCRA 472 [1979]). Corollary to this is the rule that actual or compensatory damages, to be
recovered, must be proved; otherwise, if the proof is flimsy, no damages will be awarded (Dichoso v.
Court of Appeals, 192 SCRA 169 [1990]).

In the case at bench, the trial court merely mentioned the fact of the loss and the value of the
contents of the pieces of baggage without stating the evidence on which it based its findings. There
is no showing that the value of the contents of the lost pieces of baggage was based on the bill of
lading or was previously declared by respondent Tito D. Tabuquilde before he boarded the ship.
Hence, there can be no basis to award actual damages in the amount of P27,850.00.

The Court of Appeals was correct in confirming the award of damages for the death of the daughter
of private respondents, a passenger on board the stricken vessel of petitioner. It is true that under
Article 2206 of the Civil Code of the Philippines, only deaths caused by a crime as quasi delict are
entitled to actual and compensatory damages without the need of proof of the said damages. Said
Article provides:

The amount of damages for death caused by a crime or quasi delict shall be at least
Three Thousand Pesos, even though there may have been mitigating circumstances.
...

Deducing alone from said provision, one can conclude that damages arising
from culpa contractual are not compensable without proof of special damages sustained by the heirs
of the victim.

However, the Civil Code, in Article 1764 thereof, expressly makes Article 2206 applicable "to the
death of a passenger caused by the breach of contract by a common carrier." Accordingly, a
common carrier is liable for actual or compensatory damages under Article 2206 in relation to Article
1764 of the Civil Code for deaths of its passengers caused by the breach of the contract of
transportation.

The trial court awarded an indemnity of P30,000.00 for the death of the daughter of private
respondents. The award of damages under Article 2206 has been increased to P50,000.00 (People
v. Flores, 237 SCRA 653 [1994]).

With respect to the award of moral damages, the general rule is that said damages are not
recoverable in culpa contractual except when the presence of bad faith was proven (Trans World Air
Lines v. Court of Appeals, 165 SCRA 143 [1988]). However, in breach of contract of carriage, moral
damages may be recovered when it results in the death of a passenger (Philippine Rabbit Bus Lines,
Inc. v. Esguerra, 117 SCRA 741 [1982]; Vasquez v. Court of Appeals, 138 SCRA 553 [1985]).

With respect to the award of exemplary damages, Article 2232 of the Civil Code of the Philippines
gives the Court the discretion to grant said damages in breach of contract when the defendant acted
in a wanton, fraudulent and reckless manner (Air France v. Carrascoso, 18 SCRA 155 [1966]).

Furthermore, in the case of Mecenas v. Court of Appeals, 180 SCRA 83 (1989), we ruled that:

. . . . The Court will take judicial notice of the dreadful regularity with which grievous
maritime disasters occur in our waters with massive loss of life. The bulk of our
population is too poor to afford domestic air transportation. So it is that
 notwithstanding the frequent sinking of passenger in our waters, crowds of people
continue to travel by sea. This Court is prepared to use the instruments given to it by
the law for securing the ends of law and public policy. One of those instruments is
the institution of exemplary damages; one of those ends, of special importance in an
archipelagic state like the Philippines, is the safe and reliable carriage of people and
goods by sea. . . . (at p. 100).

A common carrier is obliged to transport its passengers to their destinations with the utmost
diligence of a very cautious person (Laguna Tayabas Bus Co. v. Tiongson, 16 SCRA 940 [1966]).
The trial court found that petitioner failed to exercise the extraordinary diligence required of a
common carrier, which resulted in the sinking of the M/V Dona Marilyn.

The trial court correctly concluded that the sinking of M/V Dona Marilyn was due to gross
negligence, thus:

. . . [i]t is undisputed that Typhoon Unsang entered the Philippine Area of

Responsibility on October 21, 1988. The rain in Metro Manila started after lunch of
October 23, 1988, and at about 5:00 p.m. Public Storm Signal No. 1 was hoisted
over Metro Manila, Signal No. 2 in Leyte and Signal No. 3 in Samar. But at 10:00
o'clock (sic) in the morning of October 23, 1988, Public Storm Signal No. 1 was
already hoisted over the province of Leyte, which is the destination of M/V Dona
Marilyn. This was raised to Signal No. 2 at 4:00 p.m. and Signal No. 3 at 10:00 p.m.
on the same date. The following day, October 24, 1988, at 4:00 a.m. and 10:00 a.m.,
Storm Signal No. 3 remained hoisted in Leyte. At 4 p.m. on October 24, 1988, Storm
Signal No. 3 remained hoisted in Leyte but was reduced to Storm Signal No. 2 (Exh.
G). Signal No. 1 has maximum winds at 60 kph within 36 hours; Signal No. 2 has
maximum winds of from 60 kph to 100 kph within a period of 24 hours; and Signal
No. 3 has maximum winds of 100 kph and above within a period of 12 hours.

Warnings of the storm signal are issued by PAG-ASA thru DZZA, Office of Civil
Defense, Philippine Navy, Coast Guard, Radio Stations, and other offices, every six
(6) hours as soon as a cyclone enters the Philippine Area of Responsibility.

At 10:30 a.m. on October 24, 1988, the vessel was estimated to be between Mindoro
and Masbate, and the center of the typhoon then was around 130 degrees longitude
with maximum winds of 65 kph (Exh. G-3), with a "radius of rough to phenomenal
sea at that time of 450 kms. North and 350 kms. elsewhere; 350 kms. North center
and all throughout the rest" (p. 12, TSN, Lumalda, Feb. 19, 1990).

xxx xxx xxx

In the same manner, (referring to the negligence of the crew of the ship that sank in
Vasquez v. Court of Appeals, 138 SCRA 553 [1985]) the crew of the vessel M/V
Dona Marilyn took a calculated risk when it proceeded despite the typhoon brewing
somewhere in the general direction to which the vessel was going. The crew
assumed a greater risk when, instead of dropping anchor in or at the periphery of the
Port of Calapan, or returning to the port of Manila which is nearer, proceeded on its
voyage on the assumption that it will be able to beat and race with the typhoon and
reach its destination before it (Unsang) passes ( Rollo, pp. 45-47).

The award of attorney's fees by the trial court to respondents is also assailed by petitioner,
citing Mirasol v. De la Cruz, 84 SCRA 337 (1978). In this case, the petitioner filed before the
Municipal Court an action for forcible entry against the private respondent. The said court dismissed
the complaint. On appeal, the Court of First Instance of Camarines Sur sustained the decision of the
lower court, dismissed the appeal and awarded attorney's fees in the sum of not less than P500.00
in favor of private respondent. Upon appeal to us, we deleted the award of attorney's fees because
the text of the appealed decision was bereft of any findings of fact and law to justify such an award.
Moreover, there was no proof, other than the bare allegation of harassment that the adverse party
had acted in bad faith. The aforementioned decision is inapposite to the instant case where the
decision clearly mentions the facts and the law upon which the award of attorney's fees were based.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION that the
award of P27,580.00 as actual damages for the loss of the contents of the pieces of baggage is
deleted and that the award of P30,000.00 under Article 2206 in relation Article 1764 is increased to
P50,000.00.

SO ORDERED.

G.R. No. 152040 March 31, 2006

MARIKINA AUTO LINE TRANSPORT CORPORATION and FREDDIE L. SUELTO, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES and ERLINDA V. VALDELLON, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA)
in CA-G.R. CR No. 16739 affirming the Joint Decision of the Regional Trial Court (RTC) in Criminal
Case No. Q-93-42629 and Civil Case No. Q-93-16051, where Freddie Suelto was convicted of
reckless imprudence resulting in damages to property.

Erlinda V. Valdellon is the owner of a two-door commercial apartment located at No. 31 Kamias
Road, Quezon City. The Marikina Auto Line Transport Corporation (MALTC) is the owner-operator of
a passenger bus with Plate Number NCV-849. Suelto, its employee, was assigned as the regular
driver of the bus.2

At around 2:00 p.m. on October 3, 1992, Suelto was driving the aforementioned passenger bus
along Kamias Road, Kamuning, Quezon City, going towards Epifanio de los Santos Avenue (EDSA).
The bus suddenly swerved to the right and struck the terrace of the commercial apartment owned by
Valdellon located along Kamuning Road.3 Upon Valdellon’s request, the court ordered Sergio
Pontiveros, the Senior Building Inspection Officer of the City Engineer’s Office, to inspect the
damaged terrace. Pontiveros submitted a report enumerating and describing the damages:

(1) The front exterior and the right side concrete columns of the covered terrace were
vertically displaced from its original position causing exposure of the vertical reinforcement.

(2) The beams supporting the roof and parapet walls are found with cracks on top of the
displaced columns.

(3) The 6″ CHB walls at [the] right side of the covered terrace were found with cracks caused
by this accident.
 (4) The front iron grills and concrete balusters were found totally damaged and the later [sic]
beyond repair.4

He recommended that since the structural members made of concrete had been displaced, the
terrace would have to be demolished "to keep its monolithicness, and to insure the safety and
stability of the building."5

Photographs6 of the damaged terrace were taken. Valdellon commissioned Engr. Jesus R. Regal, Jr.
to estimate the cost of repairs, inclusive of labor and painting, and the latter pegged the cost
at P171,088.46.7

In a letter dated October 19, 1992 addressed to the bus company and Suelto, Valdellon demanded
payment of P148,440.00, within 10 days from receipt thereof, to cover the cost of the damage to the
terrace.8 The bus company and Suelto offered a P30,000.00 settlement which Valdellon refused.9

Valdellon filed a criminal complaint for reckless imprudence resulting in damage to property against
Suelto. After the requisite preliminary investigation, an Information was filed with the RTC of Quezon
City. The accusatory portion of the Information reads:

That on or about the 3rd day of October 1992, in Quezon City, Philippines, the said accused, being
then the driver and/or person in charge of a Marikina Auto Line bus bearing Plate No. NVC-849, did
then and there unlawfully, and feloniously drive, manage, and operate the same along Kamias Road,
in said City, in a careless, reckless, negligent, and imprudent manner, by then and there making the
said vehicle run at a speed greater than was reasonable and proper without taking the necessary
precaution to avoid accident to person/s and damage to property, and considering the condition of
the traffic at said place at the time, causing as a consequence of his said carelessness, negligence,
imprudence and lack of precaution, the said vehicle so driven, managed and operated by him to hit
and bump, as in fact it hit and bump a commercial apartment belonging to ERLINDA V.
VALDELLON located at No. 31 Kamias Road, this City, thereby causing damages to said apartment
in the total amount of P171,088.46, Philippine Currency, to her damage and prejudice in the total
amount aforementioned.

CONTRARY TO LAW.10

Valdellon also filed a separate civil complaint against Suelto and the bus company for damages. She
prayed that after due proceedings, judgment be rendered in her favor, thus:

WHEREFORE, it is respectfully prayed of this Honorable Court to issue a writ of preliminary

attachment against the defendants upon approval of plaintiff’s bond, and after trial on the merits, to
render a decision in favor of the plaintiff, ordering the defendants, jointly and severally, to pay –

a) the total sum of P171,088.46 constituting the expenses for the repair of the damaged
apartment of plaintiff, with interests to be charged thereon at the legal rate from the date of
the formal demand until the whole obligation is fully paid;

b) the sum of not less than P20,000.00 each as compensatory and exemplary damages;

c) the sum of P20,000.00 as attorney’s fees and the sum of P1,000.00 for each appearance
of plaintiff’s counsel; and costs of suit;

PLAINTIFF further prays for such other reliefs as may be just and equitable in the premises.11
A joint trial of the two cases was ordered by the trial court.12

The trial court conducted an ocular inspection of the damaged terrace, where defendants offered to
have it repaired and restored to its original state. Valdellon, however, disagreed because she wanted
the building demolished to give way for the construction of a new one.13

During the trial, Valdellon testified on the damage caused to the terrace of her apartment, and, in
support thereof, adduced in evidence a receipt for P35,000.00, dated October 20, 1993, issued by
the BB Construction and Steel Fabricator for "carpentry, masonry, welding job and electrical
[work]."14

Pontiveros of the Office of the City Engineer testified that there was a need to change the column of
the terrace, but that the building should also be demolished because "if concrete is destroyed, [one]
cannot have it restored to its original position."15

Engr. Jesus Regal, Jr., the proprietor of the SSP Construction, declared that he inspected the
terrace and estimated the cost of repairs, including labor, at P171,088.46.

Suelto testified that at 2:00 p.m. on October 3, 1992, he was driving the bus on its way to Ayala
Avenue, Makati, Metro Manila. When he reached the corner of K-H Street at Kamias Road, Quezon
City, a passenger jeepney suddenly crossed from EDSA going to V. Luna and swerved to the lane
occupied by the bus. Suelto had to swerve the bus to the right upon which it hit the side front of the
terrace of Valdellon’s two-door apartment.16 Based on his estimate, the cost to the damage on the
terrace of the apartment amounted to P40,000.00.17 On cross-examination, Suelto declared that he
saw the passenger jeepney when it was a meter away from the bus. Before then, he had seen some
passenger jeepneys on the right trying to overtake one another.18

Architect Arnulfo Galapate testified that the cost of the repair of the damaged terrace amounted
to P55,000.00.19

On April 28, 1994, the trial court rendered judgment finding Suelto guilty beyond reasonable doubt of
reckless imprudence resulting in damage to property, and ordered MALTC and Suelto to pay, jointly
and severally, P150,000.00 to Valdellon, by way of actual and compensatory damages, as well as
attorney’s fees and costs of suit. The fallo of the decision reads:

WHEREFORE, finding the accused FREDDIE SUELTO Y LIWAG guilty beyond reasonable doubt of
the crime of Reckless Imprudence Resulting in Damage to Property, said accused is hereby
sentenced to suffer imprisonment of ONE (1) YEAR.

With respect to the civil liability, judgment is hereby rendered in favor of plaintiff Erlinda Valdellon
and against defendant Marikina Auto Line Transport Corporation and accused Freddie Suelto, where
both are ordered, jointly and severally, to pay plaintiff:

a. the sum of P150,000.00, as reasonable compensation sustained by plaintiff for her

damaged apartment;

b. the sum of P20,000.00, as compensatory and exemplary damages;

c. the sum of P20,000.00, as attorney’s fees; and,

d. the costs of suit.

SO ORDERED.20

MALTC and Suelto, now appellants, appealed the decision to the CA, alleging that the prosecution
failed to prove Suelto’s guilt beyond reasonable doubt. They averred that the prosecution merely
relied on Valdellon, who testified only on the damage caused to the terrace of her apartment which
appellants also alleged was excessive. Appellant Suelto further alleged that he should be acquitted
in the criminal case for the prosecution’s failure to prove his guilt beyond reasonable doubt. He
maintained that, in an emergency case, he was not, in law, negligent. Even if the appellate court
affirmed his conviction, the penalty of imprisonment imposed on him by the trial court is contrary to
law.

In its Brief for the People of the Philippines, the Office of the Solicitor General (OSG) submitted that
the appealed decision should be affirmed with modification. On Suelto’s claim that the prosecution
failed to prove his guilt for the crime of reckless imprudence resulting in damage to property, the
OSG contended that, applying the principle of res ipsa loquitur, the prosecution was able to prove
that he drove the bus with negligence and recklessness. The OSG averred that the prosecution was
able to prove that Suelto’s act of swerving the bus to the right was the cause of damage to the
terrace of Valdellon’s apartment, and in the absence of an explanation to the contrary, the accident
was evidently due to appellant’s want of care. Consequently, the OSG posited, the burden was on
the appellant to prove that, in swerving the bus to the right, he acted on an emergency, and failed to
discharge this burden. However, the OSG averred that the trial court erred in sentencing appellant to
a straight penalty of one year, and recommended a penalty of fine.

On June 20, 2000, the CA rendered judgment affirming the decision of the trial court, but the award
for actual damages was reduced to P100,000.00. The fallo of the decision reads:

WHEREFORE, premises considered, the decision dated April 28, 1994, rendered by the court a quo
is AFFIRMED with the modification that the sum of P150,000.00 as compensation sustained by the
plaintiff-appellee for her damaged apartment be reduced to P100,000.00 without pronouncement as
to costs.

SO ORDERED.21

Appellants filed a Motion for Reconsideration, but the CA denied the same.22

MALTC and Suelto, now petitioners, filed the instant petition reiterating its submissions in the CA: (a)
the prosecution failed to prove the crime charged against petitioner Suelto; (b) the prosecution failed
to adduce evidence to prove that respondent suffered actual damages in the amount
of P100,000.00; and (c) the trial court erred in sentencing petitioner Suelto to one (1) year prison
term.

On the first issue, petitioners aver that the prosecution was mandated to prove that petitioner Suelto
acted with recklessness in swerving the bus to the right thereby hitting the terrace of private
respondent’s apartment. However, the prosecution failed to discharge its burden. On the other hand,
petitioner Suelto was able to prove that he acted in an emergency when a passenger jeepney
coming from EDSA towards the direction of the bus overtook another vehicle and, in the process,
intruded into the lane of the bus.

On the second issue, petitioners insist that private respondent was able to prove only the amount
of P35,000.00 by way of actual damages; hence, the award of P100,000.00 is barren of factual
basis.
On the third issue, petitioner Suelto posits that the straight penalty of imprisonment recommended
by the trial court, and affirmed by the CA, is contrary to Article 365 of the Revised Penal Code.

The petition is partially granted.

On the first issue, we find and so resolve that respondent People of the Philippines was able to
prove beyond reasonable doubt that petitioner Suelto swerved the bus to the right with recklessness,
thereby causing damage to the terrace of private respondent’s apartment. Although she did not
testify to seeing the incident as it happened, petitioner Suelto himself admitted this in his answer to
the complaint in Civil Case No. Q-93-16051, and when he testified in the trial court.

Suelto narrated that he suddenly swerved the bus to the right of the road causing it to hit the column
of the terrace of private respondent. Petitioners were burdened to prove that the damage to the
terrace of private respondent was not the fault of petitioner Suelto.

We have reviewed the evidence on record and find that, as ruled by the trial court and the appellate
court, petitioners failed to prove that petitioner acted on an emergency caused by the sudden
intrusion of a passenger jeepney into the lane of the bus he was driving.

It was the burden of petitioners herein to prove petitioner Suelto’s defense that he acted on an
emergency, that is, he had to swerve the bus to the right to avoid colliding with a passenger jeep
coming from EDSA that had overtaken another vehicle and intruded into the lane of the bus. The
sudden emergency rule was enunciated by this Court in Gan v. Court of Appeals,23 thus:

[O]ne who suddenly finds himself in a place of danger, and is required to act without time to consider
the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he
fails to adopt what subsequently and upon reflection may appear to have been a better method
unless the emergency in which he finds himself is brought about by his own negligence.

Under Section 37 of Republic Act No. 4136, as amended, otherwise known as the Land
Transportation and Traffic Code, motorists are mandated to drive and operate vehicles on the right
side of the road or highway:

SEC. 37. Driving on right side of highway. – Unless a different course of action is required in the
interest of the safety and the security of life, person or property, or because of unreasonable
difficulty of operation in compliance herewith, every person operating a motor vehicle or an animal-
drawn vehicle on a highway shall pass to the right when meeting persons or vehicles coming toward
him, and to the left when overtaking persons or vehicles going the same direction, and when turning
to the left in going from one highway to another, every vehicle shall be conducted to the right of the
center of the intersection of the highway.

Section 35 of the law provides, thus:

Sec. 35. Restriction as to speed.—(a) Any person driving a motor vehicle on a highway shall drive
the same at a careful and prudent speed, not greater nor less than is reasonable and proper, having
due regard for the traffic, the width of the highway, and of any other condition then and there
existing; and no person shall drive any motor vehicle upon a highway at such a speed as to
endanger the life, limb and property of any person, nor at a speed greater than will permit him to
bring the vehicle to a stop within the assured clear distance ahead (emphasis supplied).
In relation thereto, Article 2185 of the New Civil Code provides that "unless there is proof to the
contrary, it is presumed that a person driving a motor vehicle has been negligent, if at the time of
mishap, he was violating any traffic regulation." By his own admission, petitioner Suelto violated the
Land Transportation and Traffic Code when he suddenly swerved the bus to the right, thereby
causing damage to the property of private respondent.

However, the trial court correctly rejected petitioner Suelto’s defense, in light of his contradictory
testimony vis-à-vis his Counter-Affidavit submitted during the preliminary investigation:

It is clear from the photographs submitted by the prosecution (Exhs. C, D, G, H & I) that the
commercial apartment of Dr. Valdellon sustained heavy damage caused by the bus being driven by
Suelto. "It seems highly improbable that the said damages were not caused by a strong impact. And,
it is quite reasonable to conclude that, at the time of the impact, the bus was traveling at a high
speed when Suelto tried to avoid the passenger jeepney." Such a conclusion finds support in the
decision of the Supreme Court in People vs. Ison, 173 SCRA 118, where the Court stated that
"physical evidence is of the highest order. It speaks more eloquently than a hundred witnesses." The
pictures submitted do not lie, having been taken immediately after the incident. The damages could
not have been caused except by a speeding bus. Had the accused not been speeding, he could
have easily reduced his speed and come to a full stop when he noticed the jeep. Were he more
prudent in driving, he could have avoided the incident or even if he could not avoid the incident, the
damages would have been less severe.

In addition to this, the accused has made conflicting statements in his counter-affidavit and his
testimony in court. In the former, he stated that the reason why he swerved to the right was because
he wanted to avoid the passenger jeepney in front of him that made a sudden stop. But, in his
testimony in court, he said that it was to avoid a passenger jeepney coming from EDSA that was
overtaking by occupying his lane. Such glaring inconsistencies on material points render the
testimony of the witness doubtful and shatter his credibility. Furthermore, the variance between
testimony and prior statements renders the witness unreliable. Such inconsistency results in the loss
in the credibility of the witness and his testimony as to his prudence and diligence.

As already maintained and concluded, the severe damages sustained could not have resulted had
the accused acted as a reasonable and prudent man would. The accused was not diligent as he
claims to be. What is more probable is that the accused had to swerve to the right and hit the
commercial apartment of the plaintiff because he could not make a full stop as he was driving too
fast in a usually crowded street.24

Moreover, if the claim of petitioners were true, they should have filed a third-party complaint against
the driver of the offending passenger jeepney and the owner/operator thereof.

Petitioner Suelto’s reliance on the sudden emergency rule to escape conviction for the crime
charged and his civil liabilities based thereon is, thus, futile.

On the second issue, we agree with the contention of petitioners that respondents failed to prove
that the damages to the terrace caused by the incident amounted to P100,000.00. The only
evidence adduced by respondents to prove actual damages claimed by private respondent were the
summary computation of damage made by Engr. Jesus R. Regal, Jr. amounting to P171,088.46 and
the receipt issued by the BB Construction and Steel Fabricator to private respondent for P35,000.00
representing cost for carpentry works, masonry, welding, and electrical works. Respondents failed to
present Regal to testify on his estimation. In its five-page decision, the trial court
awarded P150,000.00 as actual damages to private respondent but failed to state the factual basis
for such award. Indeed, the trial court merely declared in the decretal portion of its decision that the
"sum of P150,000.00 as reasonable compensation sustained by plaintiff for her damaged
apartment." The appellate court, for its part, failed to explain how it arrived at the amount
of P100,000.00 in its three-page decision. Thus, the appellate court merely declared:

With respect to the civil liability of the appellants, they contend that there was no urgent necessity to
completely demolish the apartment in question considering the nature of the damages sustained as
a result of the accident. Consequently, appellants continue, the award of P150,000.00 as
compensation sustained by the plaintiff-appellee for her damaged apartment is an unconscionable
amount.

The damaged portions of the apartment in question are not disputed.

Considering the aforesaid damages which are the direct result of the accident, the reasonable, and
adequate compensation due is hereby fixed at P100,000.00.25

Under Article 2199 of the New Civil Code, actual damages include all the natural and probable
consequences of the act or omission complained of, classified as one for the loss of what a person
already possesses (daño emergente) and the other, for the failure to receive, as a benefit, that which
would have pertained to him (lucro cesante). As expostulated by the Court in PNOC Shipping and
Transport Corporation v. Court of Appeals:26

Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in
satisfaction of, or in recompense for, loss or injury sustained. They proceed from a sense of natural
justice and are designed to repair the wrong that has been done, to compensate for the injury
inflicted and not to impose a penalty. In actions based on torts or quasi-delicts, actual damages
include all the natural and probable consequences of the act or omission complained of. There are
two kinds of actual or compensatory damages: one is the loss of what a person already possesses
(daño emergente), and the other is the failure to receive as a benefit that which would have
pertained to him (lucro cesante).27

The burden of proof is on the party who would be defeated if no evidence would be presented on
either side. The burden is to establish one’s case by a preponderance of evidence which means that
the evidence, as a whole, adduced by one side, is superior to that of the other. Actual damages are
not presumed. The claimant must prove the actual amount of loss with a reasonable degree of
certainty premised upon competent proof and on the best evidence obtainable. Specific facts that
could afford a basis for measuring whatever compensatory or actual damages are borne must be
pointed out. Actual damages cannot be anchored on mere surmises, speculations or conjectures. As
the Court declared:

As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is
required to prove the actual amount of loss with reasonable degree of certainty premised upon
competent proof and on the best evidence available. The burden of proof is on the party who would
be defeated if no evidence would be presented on either side. He must establish his case by a
preponderance of evidence which means that the evidence, as a whole, adduced by one side is
superior to that of the other. In other words, damages cannot be presumed and courts, in making an
award, must point out specific facts that could afford a basis for measuring whatever compensatory
or actual damages are borne.28

The Court further declared that "where goods are destroyed by the wrongful act of defendant, the
plaintiff is entitled to their value at the time of the destruction, that is, normally, the sum of money
which he would have to pay in the market for identical or essentially similar goods, plus in a proper
case, damages for the loss of the use during the period before replacement.29
While claimants’ bare testimonial assertions in support of their claims for damages should not be
discarded altogether, however, the same should be admitted with extreme caution. Their testimonies
should be viewed in light of claimants’ self-interest, hence, should not be taken as gospel truth. Such
assertion should be buttressed by independent evidence. In the language of the Court:

For this reason, Del Rosario’s claim that private respondent incurred losses in the total amount
of P6,438,048.00 should be admitted with extreme caution considering that, because it was a bare
assertion, it should be supported by independent evidence. Moreover, because he was the owner of
private respondent corporation whatever testimony he would give with regard to the value of the lost
vessel, its equipment and cargoes should be viewed in the light of his self-interest therein. We agree
with the Court of Appeals that his testimony as to the equipment installed and the cargoes loaded on
the vessel should be given credence considering his familiarity thereto. However, we do not
subscribe to the conclusion that his valuation of such equipment, cargo, and the vessel itself should
be accepted as gospel truth. We must, therefore, examine the documentary evidence presented to
support Del Rosario’s claim as regards the amount of losses.30

An estimate of the damage cost will not suffice:

Private respondents failed to adduce adequate and competent proof of the pecuniary loss they
actually incurred. It is not enough that the damage be capable of proof but must be actually proved
with a reasonable degree of certainty, pointing out specific facts that afford a basis for measuring
whatever compensatory damages are borne. Private respondents merely sustained an estimated
amount needed for the repair of the roof of their subject building. What is more, whether the
necessary repairs were caused only by petitioner’s alleged negligence in the maintenance of its
school building, or included the ordinary wear and tear of the house itself, is an essential question
that remains indeterminable.31

We note, however, that petitioners adduced evidence that, in their view, the cost of the damage to
the terrace of private respondent would amount to P55,000.00.32 Accordingly, private respondent is
entitled to P55,000.00 actual damages.

We also agree with petitioner Suelto’s contention that the trial court erred in sentencing him to suffer
a straight penalty of one (1) year. This is so because under the third paragraph of Article 365 of the
Revised Penal Code, the offender must be sentenced to pay a fine when the execution of the act
shall have only resulted in damage to property. The said provision reads in full:

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

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

When the execution of the act covered by this article shall have only resulted in damage to the
property of another, the offender shall be punished by a fine ranging from an amount equal to the
value of said damages to three times such value, but which shall in no case be less than 25 pesos.
A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by
simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have
constituted a light felony.

In the imposition of these penalties, the courts shall exercise their sound discretion, without regard to
the rules prescribed in Article 64 (Emphasis supplied).

In the present case, the only damage caused by petitioner Suelto’s act was to the terrace of private
respondent’s apartment, costing P55,000.00. Consequently, petitioner’s contention that the CA erred
in awarding P100,000.00 by way of actual damages to private respondent is correct. We agree that
private respondent is entitled to exemplary damages, and find that the award given by the trial court,
as affirmed by the CA, is reasonable. Considering the attendant circumstances, we rule that private
respondent Valdellon is entitled to only P20,000.00 by way of exemplary damages.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The joint decision of
the Regional Trial Court of Quezon City is AFFIRMED WITH THE MODIFICATION that petitioner
Suelto is sentenced to pay a fine of P55,000.00 with subsidiary imprisonment in case of insolvency.
Petitioners are ORDERED to pay to Erlinda V. Valdellon, jointly and severally, the total amount
of P55,000.00 by way of actual damages, and P20,000.00 by way of exemplary damages.

No pronouncement as to costs.

SO ORDERED.

[G.R. Nos. 132875-76. November 16, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs., ROMEO G.

JALOSJOS, accused-appellant.

DECISION
YNARES-SANTIAGO, J.:

This Court has declared that the state policy on the heinous offense of rape is clear and
unmistakable. Under certain circumstances, some of them present in this case, the offender may
be sentenced to a long period of confinement, or he may suffer death. The crime is an assault on
human dignity. No legal system worthy of the name can afford to ignore the traumatic
consequences for the unfortunate victim and grievous injury to the peace and good order of the
community.[1]
Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral
depravity, when committed against a minor.[2]
In view of the intrinsic nature of the crime of rape where only two persons are usually
involved, the testimony of the complainant is always scrutinized with extreme caution.[3]
 In the present case, there are certain particulars which impelled the court to devote an even
more painstaking and meticulous examination of the facts on record and a similarly
conscientious evaluation of the arguments of the parties. The victim of rape in this case is a
minor below twelve (12) years of age. As narrated by her, the details of the rape are
mesmerically sordid and repulsive. The victim was peddled for commercial sex by her own
guardian whom she treated as a foster father. Because the complainant was a willing victim, the
acts of rape were preceded by several acts of lasciviousness on distinctly separate occasions. The
accused is also a most unlikely rapist. He is a member of Congress. Inspite of his having been
charged and convicted by the trial court for statutory rape, his constituents liked him so much
that they knowingly re-elected him to his congressional office, the duties of which he could not
perform.
Statutory rape committed by a distinguished Congressman on an eleven (11) year old
commercial sex worker is bound to attract widespread media and public attention. In the words
of accused-appellant, he has been demonized in the press most unfairly, his image transmogrified
into that of a dastardly, ogre, out to get his slimy hands on innocent and nave girls to satiate his
lustful desires.[4] This Court, therefore, punctiliously considered accused-appellants claim that he
suffered invidiously discriminatory treatment. Regarding the above allegation, the Court has
ascertained that the extensive publicity generated by the case did not result in a mistrial; the
records show that the accused had ample and free opportunity to adduce his defenses.
This is an appeal from the decision[5] of the Regional Trial Court of Makati, Branch 62, in
Criminal Case Nos. 96-1985 and 96-1986, convicting accused-appellant Romeo Jalosjos of two
(2) counts of statutory rape, and in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-
1992, and 96-1993, for six (6) counts of acts of lasciviousness defined and penalized under
Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, also
known as the Child Abuse Law.
There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996,
96-1997, and 96-1998, where the accused-appellant was acquitted of the charges of acts of
lasciviousness for failure of the prosecution to prove his guilt beyond reasonable doubt.
On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve (12)
for acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in
relation to Section 5(b) of Republic Act No. 7610, were filed against accused-appellant. The
accusatory portion of said informations for the crime of statutory rape state:

In Criminal Case No. 96-1985:

The undersigned, upon prior sworn complaint by the offended party, eleven (11) year
old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of
RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code,
committed as follows:

That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and
within the jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously have carnal knowledge
with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and
prejudice.

CONTRARY TO LAW.[6]

In Criminal Case No. 96-1986:

The undersigned, upon prior sworn complaint by the offended party, eleven (11) year
old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of
RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code,
committed as follows:

That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City, and
within the jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously have carnal knowledge
with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and
prejudice.

CONTRARY TO LAW.[7]

For acts of lasciviousness, the informations[8] under which accused-appellant was convicted
were identical except for the different dates of commission on June 14, 1996; June 15, 1996;
June 16, 1996; June 20, 1996; June 21, 1996; and June 22, 1996, to wit:

The undersigned, upon prior sworn complaint by the offended party, eleven (11)-year
old minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of the crime of
ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of Republic Act
No. 7610, otherwise known as the Special Protection of Children against Abuse,
Exploitation and Discrimination Act, committed as follows:

That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz Towers,
Makati City, Metro-Manila and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design, did then and there wilfully, unlawfully and
feloniously kiss, caress and fondle said complainant's face, lips, neck, breasts, whole
body, and vagina, suck her nipples and insert his finger and then his tongue into her
vagina, place himself on top of her, then insert his penis in between her thighs until
ejaculation, and other similar lascivious conduct against her will, to her damage and
prejudice.

CONTRARY TO LAW.
 In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that on
the different dates, the accused gave the complainant P10,000.00, P5,000.00 and P5,000.00
respectively.
Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence, the
trial court entered a plea of not guilty for him. At the trial, the prosecution presented eight (8)
main witnesses and seven (7) rebuttal witnesses as well as documentary evidences marked as
Exhibits A to EEEE, inclusive of submarkings. The defense, on the other hand presented twenty-
six (26) witnesses. Its documentary evidence consists of Exhibits 1 to 153, inclusive of
submarkings. The records of the case are extremely voluminous.
The Peoples version of the facts, culled mainly from the testimony of the victim, are as
follows:
Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and
almond-shaped black eyes. She grew up in a two-storey apartment in Pasay City under the care
of Simplicio Delantar, whom she treated as her own father. Simplicio was a fifty-six year old
homosexual whose ostensible source of income was selling longganiza and tocino and accepting
boarders at his house. On the side, he was also engaged in the skin trade as a pimp.
Rosilyn never got to see her mother, though she had known a younger brother, Shandro,
who was also under the care of Simplicio. At a very young age of 5, fair and smooth-
complexioned Rosilyn was exposed by Simplicio to his illicit activities. She and her brother
would tag along with Simplicio whenever he delivered prostitutes to his clients. When she turned
9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national known as Mr.
Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for sexual favors.
Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his
office located near Robinsons Galleria. Rosilyn and Simplicio were brought there and introduced
by a talent manager by the name of Eduardo Suarez. Accused-appellant promised to help Rosilyn
become an actress. When he saw Rosilyn, accused-appellant asked how old she was. Simplicio
answered, 10. She is going to be 11 on May 11. Accused-appellant inquired if Rosilyn knows
how to sing. Simplicio told Rosilyn to sing, so she sang the song, Tell Me You Love
Me. Accused-appellant then asked if Rosilyn has nice legs and then raised her skirt up to the
mid-thighs. He asked if she was already menstruating, and Simplicio said yes. Accused-appellant
further inquired if Rosilyn already had breasts. When nobody answered, accused-appellant
cupped Rosilyns left breast.Thereafter, accused-appellant assured them that he would help
Rosilyn become an actress as he was one of the producers of the TV programs, Valiente and Eat
Bulaga.
Simplicio and Suarez then discussed the execution of a contract for Rosilyns movie
career. Accused-appellant, on the other hand, said that he would adopt Rosilyn and that the latter
would have to live with him in his condominium at the Ritz Towers. Before Simplicio and
Rosilyn went home, accused-appellant gave Rosilyn P2,000.00.
The second time Rosilyn met accused-appellant was at his condominium unit, located at
Room 1702, Ritz Towers, Makati City. Accused-appellant and Simplicio discussed the contract
and his plan to finance Rosilyns studies. Accused-appellant gave Simplicio P500.00, thereafter,
Rosilyn, Shandro and Simplicio left.
 The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss
her acting career. Accused-appellant referred the preparation of Rosilyns contract to his lawyer,
who was also present. After the meeting, Simplicio and Rosilyn left. As they were walking
towards the elevator, accused-appellant approached them and gave Rosilyn P3,000.00.
On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-
appellants condominium unit at Ritz Towers. When accused-appellant came out of his bedroom,
Simplicio told Rosilyn to go inside the bedroom, while he and accused-appellant stayed
outside. After a while, accused-appellant entered the bedroom and found Rosilyn watching
television. He walked towards Rosilyn and kissed her on the lips, then left the room
again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio that accused-appellant
kissed her to which Simplicio replied, Halik lang naman.
Rosilyn was left alone in the bedroom watching television. After some time, accused-
appellant came in and entered the bathroom. He came out clad in a long white T-shirt on which
was printed the word, Dakak. In his hand was a plain white T-shirt. Accused-appellant told
Rosilyn that he wanted to change her clothes. Rosilyn protested and told accused-appellant that
she can do it herself, but accused-appellant answered, Daddy mo naman ako. Accused-appellant
then took off Rosilyns blouse and skirt. When he was about to take off her panties, Rosilyn
said, Huwag po. Again, accused-appellant told her, After all, I am your Daddy. Accused-
appellant then removed her panties and dressed her with the long white T-shirt.
The two of them watched television in bed. After sometime, accused-appellant turned off the
lamp and the television. He turned to Rosilyn and kissed her lips. He then raised her shirt,
touched her breasts and inserted his finger into her vagina. Rosilyn felt pain and cried out, Tama
na po. Accused-appellant stopped. He continued to kiss her lips and fondle her breasts. Later,
accused-appellant told Rosilyn to sleep.
The following morning, Rosilyn was awakened by accused-appellant whom she found bent
over and kissing her. He told her to get up, took her hand and led her to the bathroom. He
removed Rosilyns shirt and gave her a bath. While accused-appellant rubbed soap all over
Rosilyns body, he caressed her breasts and inserted his finger into her vagina. After that, he
rinsed her body, dried her with a towel and applied lotion on her arms and legs. Then, he dried
her hair and told her to dress up. Rosilyn put on her clothes and went out of the bathroom, while
accused-appellant took a shower.
Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching
television. When accused-appellant entered the room, he knelt in front of her, removed her
panties and placed her legs on his shoulders.Then, he placed his tongue on her
vagina. Thereafter, he gave Rosilyn P10,000.00 and told his housemaid to take her shopping at
Shoemart. When she returned to the Ritz Towers, Simplicio was waiting for her. The two of
them went home. Rosilyn narrated to Simplicio what accused-appellant did to her, and pleaded
for him not to bring her back to the Ritz Towers. Simplicio told her that everything was alright as
long as accused-appellant does not have sexual intercourse with her.
That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn
to the Ritz Towers. After Simplicio left, accused-appellant removed Rosilyns clothes and dressed
her with the same long T-shirt. They watched television for a while, then accused-appellant sat
beside Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her shirt above her
breasts, and inserted his finger into her vagina. Then, accused-appellant removed his own
clothes, placed his penis between Rosilyns thighs and made thrusting motions until he ejaculated
on her thighs. Thereafter, accused-appellant kissed her and told her to sleep.
The next day, June 16, 1996, accused-appellant roused her from sleep and bathed
her. Again, he rubbed soap all over her body, washed her hair, and thereafter rinsed her body and
dried her hair. While accused-appellant was bathing Rosilyn, he asked her to fondle his penis
while he caressed her breasts and inserted his finger into her vagina. After their shower, accused-
appellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just wait for Simplicio in the
condominium unit. On their way home, Simplicio told Rosilyn that if accused-appellant tries to
insert his penis into her vagina, she should refuse.
At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They
found accused-appellant sitting on the bed in his bedroom. Simplicio told Rosilyn to approach
accused-appellant, then he left.Accused-appellant took off Rosilyns clothes and dressed her with
a long T-shirt on which was printed a picture of accused-appellant and a woman, with the
caption, Cong. Jalosjos with his Toy. They watched television for a while, then accused-
appellant lay beside Rosilyn and kissed her on the lips. He raised her shirt and parted her
legs. He positioned himself between the spread legs of Rosilyn, took off his own shirt, held his
penis, and poked and pressed the same against Rosilyns vagina. This caused Rosilyn pain inside
her sex organ. Thereafter, accused-appellant fondled her breasts and told her to sleep.
When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no
longer around but she found P5,000.00 on the table. Earlier that morning, she had felt somebody
touching her private parts but she was still too sleepy to find out who it was. Rosilyn took a bath,
then went off to school with Simplicio, who arrived to fetch her.
The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00
oclock in the evening in his bedroom at the Ritz Towers. Accused-appellant stripped her naked
and again put on her the long shirt he wanted her to wear. After watching television for a while,
accused-appellant knelt beside Rosilyn, raised her shirt, caressed her breasts and inserted his
finger into her vagina. Then, he clipped his penis between Rosilyns thighs, and made thrusting
motions until he ejaculated. Thereafter, Rosilyn went to sleep.
The next day, June 22, 1996, Rosilyn was awakened by accused-appellant who was kissing
her and fondling her sex organ. She, however, ignored him and went back to sleep. When she
woke up, she found the P5,000.00 which accused-appellant left and gave the same to Simplicio
Delantar, when the latter came to pick her up.
On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-
appellant took photographs of Rosilyn. He asked her to pose with her T-shirt pulled down
thereby exposing her breasts. He also took her photographs with her T-shirt rolled up to the
pelvis but without showing her pubis, and finally, while straddled on a chair facing the backrest,
showing her legs.
Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and
inserted his finger into her vagina. The following morning, she woke up and found the P5,000.00
left by accused-appellant on the table. She recalled that earlier that morning, she felt somebody
caressing her breasts and sex organ.
 On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn
had to wait for accused-appellant, who arrived between 12:00 to 1:00 a.m. He again dressed her
with the long white shirt similar to what he was wearing. While sitting on the bed, accused-
appellant kissed her lips and inserted his tongue into her mouth. He then fondled her breasts and
inserted his finger into her vagina, causing her to cry in pain. Accused-appellant stopped and told
her to sleep.
The next morning, accused-appellant bathed her again. While he soaped her body, he
fondled her breasts and inserted his finger in her vagina. Rosilyn felt pain and shoved his hand
away. After bathing her, accused-appellant had breakfast. Before he left, he gave Rosilyn
P5,000.00. As soon as Simplicio arrived, Rosilyn gave her the money and then they left for
school.
On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant
was waiting in his bedroom. He took off Rosilyns clothes, including her panties, and dressed her
with a long T-shirt similar to what he was wearing. After watching television, accused-appellant
kissed Rosilyn on the lips, inserted his tongue in her mouth and fondled her breasts. Then, he
made Rosilyn lie on the bed, spread her legs apart and placed a pillow under her back. He
inserted his finger in her vagina and mounted himself between her legs with his hands rested on
her sides. After that, he lifted his shirt, then pointed and pressed his penis against her
vagina. Accused-appellant made thrusting motions, which caused Rosilyn pain. Thereafter,
accused-appellant told her to sleep.
In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but
she did not wake up. When she woke up later, she found P5,000.00 on the table, and she gave
this to Simplicio when he came to fetch her.
On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00
p.m. Accused-appellant was about to leave, so he told them to come back later that evening. The
two did not return.
The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their
boarders. Yamie accompanied Rosilyn to the Pasay City Police, where she executed a sworn
statement against Simplicio Delantar. Rosilyn was thereafter taken to the custody of the
Department of Social Welfare and Development (DSWD). The National Bureau of Investigation
(NBI) conducted an investigation, which eventually led to the filing of criminal charges against
accused-appellant.
On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp
Crame. The examination yielded the following results:

EXTERNAL AND EXTRAGENITAL

Fairly developed, fairly nourished and coherent female subject. Breasts are conical
with pinkish brown areola and nipples from which no secretions could be pressed
out. Abdomen is flat and soft

GENITAL
There is moderate growth of pubic hair. Labia majora are full, convex and coaptated
with the pinkish brown labia minora presenting in between. On separating the same
disclosed an elastic, fleshy type hymen, with shallow healed laceration at 3 o'clock
position and deep healed laceration at 8 o'clock position. External vaginal orifice
offers moderate resistance to the introduction of the examining index finger and the
virgin sized vaginal speculum. Vaginal canal is narrow with prominent
rugosities. Cervix is firm and closed.

CONCLUSION:

Subject is in non-virgin state physically.

There are no external signs of application of any form of violence.[9]

During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it
was his brother, Dominador Jun Jalosjos, whom Rosilyn had met, once at accused-appellants
Dakak office and twice at the Ritz Towers. Accused-appellant insisted that he was in the
province on the dates Rosilyn claimed to have been sexually abused. He attributed the filing of
the charges against him to a small group of blackmailers who wanted to extort money from him,
and to his political opponents, particularly Ex-Congressman Artemio Adaza, who are allegedly
determined to destroy his political career and boost their personal agenda.
More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine
Airlines (PAL) 9:40 a.m. flight from Manila to Dipolog. He stayed in Dipolog until June 18,
1996. He submitted in evidence airline ticket no. 10792424,[10] showing that he was on board
Flight PR 165; the said flights passengers manifest,[11] where the name JALOSJOS/RM/MR
appears; and photographs showing accused-appellants constituents welcoming his arrival and
showing accused-appellant talking with former Mayor Hermanico Carreon and Fiscal
Empainado.
Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight
from Manila to Dipolog City. On the same flight, he met Armando Nocom of the Philippine
Daily Inquirer. Upon arrival and after talking to his representatives, he proceeded to his
residence known as Barangay House in Taguinon, Dapitan, near Dakak Beach resort, and spent
the night there.
On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed in
the house of Barangay Captain Mila Yap until 5:30 p.m. Then, together with some friends, he
visited the Rizal Shrine and the Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the
Barangay House in Taguilon.
On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with
his political leaders at the Blue Room of Dakak, which lasted till the afternoon. In the evening,
he went home and slept in the Barangay House.
On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night
in the Barangay House.
 On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach
Resort. The blessing ceremony was officiated by Assistant Parish Priest Adelmo Laput.
On July 3, 1996, he was the guest in the inaguration of the 3rd Engineering District of
Dapitan City. After the mass, he visited the Jamboree site in Barangay Taguilon, Dapitan City.
He further contended that after his arrival in Dipolog on June 28, 1996, there was never an
instance when he went to Manila until July 9, 1996, when he attended a conference called by the
President of the Philippines.
Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of
PAL from Manila to Dumaguete City. From there, he was flown by a private plane to Dipolog,
where he stayed until the President of the Philippines arrived.
To buttress the theory of the defense, Dominador Jun Jalosjos testified that he was the one,
and not accused-appellant, whom Rosilyn met on three occasions. These occurred once during
the first week of May 1996, at accused-appellants Dakak office where Rosilyn and Simplicio
Delantar were introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he
interviewed Rosilyn, and later when Rosilyn and Simplicio followed up the proposed entry of
Rosilyn into the show business.
Dominadors admission of his meetings with Rosilyn on three instances were limited to
interviewing her and assessing her singing and modeling potentials. His testimony made no
mention of any sexual encounter with Rosilyn.
After trial, the court rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond
reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as
principal in the two (2) counts of statutory rape defined and penalized under Article
335 of the Revised Penal Code. He is hereby declared CONVICTED in each of these
cases.

2. Accordingly, he is sentenced to:

2a. suffer the penalty of reclusion perpetua in each of these cases.

2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY
THOUSAND PESOS (P50,000.00) as moral damages for each of the cases.

3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-
1993, the prosecution has proven beyond reasonable doubt the guilt of the accused,
ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of acts of
lasciviousness defined under Article 336 of the Revised Penal Code and penalized
under Section 5 (b) of R.A. 7610 otherwise known as the Child Abuse Law. He is
hereby declared CONVICTED in each of these cases;

4. Accordingly he is sentenced to:

4.a. suffer in each of the cases an indeterminate prison term of from eight (8) years,
eight (8) months and one (1) day of prision mayor in its medium period, as maximum,
to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its
medium period, as maximum;

4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY

THOUSAND (P20,000.00) as moral damages for each of the cases;

5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998,
the prosecution has failed to prove beyond reasonable doubt the guilt of the accused,
ROMEO JALOSJOS y GARCIA, in six (6) counts of acts of
lasciviousness. Therefore, on the ground of reasonable doubt, the accused in these
cases is hereby ACQUITTED.

SO ORDERED.[12]

Hence, the instant appeal. Accused-appellant contends:

A.

THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE

ACCUSED-APPELLANT BASED ON TESTIMONY OF THE PRIVATE
COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF
INCONSISTENCIES AND UNTRUTHS.
B.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE

SIGNIFICANCE OF THE CONFLICTING STATEMENTS GIVEN BY THE
PRIVATE COMPLAINANT.
C.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE

SIGNIFICANCE OF PRIVATE COMPLAINANTS FAILURE TO IDENTIFY
THE ACCUSED-APPELLANT.
D.
 THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE
PRIVATE COMPLAINANT WAS A MINOR LESS THAN TWELVE YEARS
OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.
E.

THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS

COMMITTED AGAINST THE PRIVATE COMPLAINANT.[13]

In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with
utmost caution. The constitutional presumption of innocence requires no less than moral
certainty beyond any scintilla of doubt. This applies with more vigor in rape cases where the
evidence for the prosecution must stand or fall on its own merits and is not allowed to draw
strength from the weakness of the evidence of the defense. As an inevitable consequence, it is the
rape victim herself that is actually put on trial. The case at bar is no exception. Bent on
destroying the veracity of private complainants testimony, the errors assigned by accused-
appellant, particularly the first three, are focused on the issue of credibility.
Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994,
96-1995, 96-1996, 96-1997, and 96-1998, for acts of lasciviousness. According to him, the fact
that the trial court sustained his defense of alibi in the said cases only shows that Rosilyn
concocted her stories and the rest of her testimony ought not to be believed. Stated differently,
accused-appellant urges the application of the doctrine of "falsus in uno falsus in omnibus (false
in part, false in everything).[14]
The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of
law and is in fact rarely applied in modern jurisprudence.[15] Thus, in People v. Yanson-
Dumancas,[16] citing People v. Li Bun Juan,[17] this Court held that:

... In this connection it must be borne in mind that the principle falsus in uno falsus in
omnibus is not an absolute one, and that it is perfectly reasonable to believe the
testimony of a witness with respect to some facts and disbelieve it with respect to
other facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following was
quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23:

18. Testimony may be partly credited and partly rejected. --- Trier of facts are not
bound to believe all that any witness has said; they may accept some portions of his
testimony and reject other portions, according to what seems to them, upon other facts
and circumstances to be the truth Even when witnesses are found to have deliberately
falsified in some material particulars, the jury are not required to reject the whole of
their uncorroborated testimony, but may credit such portions as they deem worthy of
belief. (p. 945)[18]

Being in the best position to discriminate between the truth and the falsehood, the trial
court's assignment of values and weight on the testimony of Rosilyn should be given
credence. Significantly, it should be borne in mind that the issue at hand hinges on credibility,
the assessment of which, as oft-repeated, is best made by the trial court because of its
untrammeled opportunity to observe her demeanor on the witness stand.
On the demeanor and manner of testifying shown by the complainant, the trial court stated:

Guided by the foregoing principles, this court found no reason why it should not
believe Rosilyn when she claimed she was raped. Testimonies of rape victims
especially those who are young and immature deserve full credence (People v.
Liquiran, 228 SCRA 62 (1993) considering that no woman would concoct a story of
defloration, allow an examination of her private parts and thereafter allow herself to
be perverted in a public trial if she was not motivated solely by the desire to have the
culprit apprehended and punished. (People v. Buyok, 235 SCRA 622 [1996]).

When asked to describe what had been done to her, Rosilyn was able to narrate
spontaneously in detail how she was sexually abused. Her testimony in this regard
was firm, candid, clear and straightforward, and it remained to be so even during the
intense and rigid cross-examination made by the defense counsel.[19]

Accused-appellant next argues that Rosilyns direct and redirect testimonies were rehearsed
and lacking in candidness. He points to the supposed hesitant and even idiotic answers of
Rosilyn on cross and re-cross examinations. He added that she was trained to give answers such
as, Ano po?, Parang po, Medyo po, and Sa tingin ko po.
Accused-appellants arguments are far from persuasive. A reading of the pertinent transcript
of stenographic notes reveals that Rosilyn was in fact firm and consistent on the fact of rape and
lascivious conduct committed on her by accused-appellant. She answered in clear, simple and
natural words customary of children of her age. The above phrases quoted by accused-appellant
as uttered by Rosilyn are, as correctly pointed out by the Solicitor General, typical answers of
child witnesses like her.
At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand,
may have given some ambiguous answers, they refer merely to minor and peripheral details
which do not in any way detract from her firm and straightforward declaration that she had been
molested and subjected to lascivious conduct by accused-appellant. Moreover, it should be borne
in mind that even the most candid witness oftentimes makes mistakes and confused
statements. At times, far from eroding the effectiveness of the evidence, such lapses could,
indeed, constitute signs of veracity.[20]
Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in
the five (5) sworn statements executed by Rosilyn as well as in the interviews and case study
conducted by the representatives of the DSWD. In particular, accused-appellant points to the
following documents:
(1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros A.
Carrasco of the Pasay City Police;
 (2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI Agents
Cynthia L. Mariano and Supervising NBI Agent Arlis E. Vela;
(3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996;
(4) DSWD Final Case Study Report dated January 10, 1997.
It must be stressed that rape is a technical term, the precise and accurate definition of which
could not have been understood by Rosilyn. Indeed, without the assistance of a lawyer, who
could explain to her the intricacies of rape, she expectedly could not distinguish in her affidavits
and consequently disclose with proficient exactitude the act or acts of accused-appellant that
under the contemplation of law constitute the crime of rape. This is especially true in the present
case where there was no exhaustive and clear-cut evidence of full and complete penetration of
the victims vagina. It may well be that Rosilyn thought, as any layman would probably do, that
there must be the fullest penetration of the victims vagina to qualify a sexual act to rape.
In People v. Campuhan,[21] we ruled that rape is consummated by the slightest penetration of
the female organ, i.e., touching of either labia of the pudendum by the penis. There need not be
full and complete penetration of the victims vagina for rape to be consummated. There being no
showing that the foregoing technicalities of rape was fully explained to Rosilyn on all those
occasions that she was interviewed by the police, the NBI agents and DSWD social workers, she
could not therefore be expected to intelligibly declare that accused-appellants act of pressing his
sex organ against her labia without full entry of the vaginal canal amounted to rape.
In the decision of the trial court, the testimony on one of the rapes is cited plus the courts
mention of the jurisprudence on this issue, to wit:
Q: You said that when Congressman Jalosjos inserted his finger into your vagina, your back was
rested on a pillow and your legs were spread wide apart, what else did he do?
A: He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari
ko. (underscoring supplied)
Q: And, after doing that: Idinikit-dikit niya yong ari niya sa ari ko; what else did he do?
A: After that, Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko. (underscoring
supplied)
(pp. 23, 25 to 30, TSN, 16 April 1997)

It is well-entrenched in this jurisdiction that rape can be committed even without full
penetration of the male organ into the vagina of the woman. It is enough that there be
proof of the entrance of the male organ within the labia of the pudendum of the female
organ. (People vs. Mangalino, 182 SCRA 329; People vs. Tismo, 204 SCRA 535;
People vs. Bacani, 181 SCRA 393). Penetration of the penis by entry into the lips of
the female organ suffices to warrant a conviction. (People vs. Galimba, G.R. No.
111563-64, February 20, 1996 citing People vs. Abonada, 169 SCRA 530). Hence,
with the testimony of Rosilyn that the accused pressed against (idiniin) and pointed to
(itinutok) Rosilyns vagina his sexual organ on two (2) occasions, two (2) acts of rape
were consummated.[22]
 Moreover, it must be borne in mind that Rosilyns purpose in executing the affidavits on
August 22 and 26, 1996 before the Pasay City Police was to charge Simplicio Delantar, not
accused-appellant. As aptly pointed out by the trial court, it is preposterous to expect Rosilyn to
make an exhaustive narration of the sexual abuse of accused-appellant when he was not the
object of the said complaint.
Additionally, Rosilyns statements, given to the NBI on September 11 and 19, 1996,
concerned mainly the identification of pictures. There was thus no occasion for her to narrate the
details of her sexual encounter with accused-appellant.
As to the interviews and studies conducted by the DSWD, suffice it to state that said
meetings with Rosilyn were specially focused on the emotional and psychological repercussions
of the sexual abuse on Rosilyn, and had nothing to do with the legal actions being prepared as a
consequence thereof. Thus, the documents pertaining to said interviews and studies cannot be
relied upon to reveal every minute aspect of the sexual molestations complained of.
At any rate, the inconsistencies between the affidavits and Rosilyns testimony, if at all they
existed, cannot diminish the probative value of Rosilyns declarations on the witness stand. The
consistent ruling of this Court is that, if there is an inconsistency between the affidavit of a
witness and her testimonies given in open court, the latter commands greater weight than the
former.[23]
In the third assigned error, accused-appellant attempts to impress upon this Court that
Rosilyn gave the name Congressman Romeo Jalosjos as her abuser only because that was the
name given to her by the person to whom she was introduced. That same name, accused-
appellant claims, was merely picked up by Rosilyn from the name plate, plaque, and memo pad
she saw on accused-appellants office desk. Accused-appellant presented his brother, Dominador
Jun Jalosjos, in an attempt to cast doubt on his culpability. It was Dominador Jun Jalosjos who
allegedly met and interviewed Rosilyn at the Dakak office. In advancement of this theory,
accused-appellant cites the fact that out of a total of 16 pictures presented to Rosilyn for
identification, she picked up only 4, which depict Dominador Jun Jalosjos. In the same vein,
accused-appellant claims that the resulting cartographic sketch from the facial characteristics
given by Rosilyn to the cartographer, resembles the facial appearance of Dominador Jun
Jalosjos. Accused-appellant also points out that Rosilyn failed to give his correct age or state that
he has a mole on his lower right jaw.
Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively
and unhesitatingly identified accused-appellant at the courtroom. Such identification during the
trial cannot be diminished by the fact that in her sworn statement, Rosilyn referred to accused-
appellant as her abuser based on the name she heard from the person to whom she was
introduced and on the name she saw and read in accused-appellants office. Verily, a persons
identity does not depend solely on his name, but also on his physical features. Thus, a victim of a
crime can still identify the culprit even without knowing his name. Similarly, the Court, in
People v. Vasquez,[24] ruled that:

It matters little that the eyewitness initially recognized accused-appellant only by face
[the witness] acted like any ordinary person in making inquiries to find out the name
that matched [appellants] face. Significantly, in open court, he unequivocally
identified accused-appellant as their assailant.

Even in the case of People v. Timon,[25] relied upon by accused-appellant to discredit his
identification, this Court said that even assuming that the out-of-court identification of accused-
appellant was defective, their subsequent identification in court cured any flaw that may have
initially attended it.
In light of the foregoing, Rosilyns failure to identify accused-appellant out of the 16 pictures
shown to her does not foreclose the credibility of her unqualified identification of accused-
appellant in open court. The same holds true with the subject cartographic sketch which,
incidentally, resembles accused-appellant. As noted by the trial court, accused-appellant and his
brother Dominador Jalosjos have a striking similarity in facial features. Naturally, if the sketch
looks like Dominador, it logically follows that the same drawing would definitely look like
accused-appellant.
Likewise, Rosilyns failure to correctly approximate the age of accused-appellant and to state
that he has a mole on the lower right jaw, cannot affect the veracity of accused-appellants
identification. At a young age, Rosilyn cannot be expected to give the accurate age of a 56 year-
old person. As to accused-appellants mole, the Solicitor General is correct in contending that said
mole is not so distinctive as to capture Rosilyns attention and memory. When she was asked to
give additional information about accused-appellant, Rosilyn described him as having a
prominent belly. This, to our mind, is indeed a more distinguishing feature that would naturally
catch the attention of an eleven year-old child like Rosilyn.
In his fifth assigned error, accused-appellant insists that the words idinikit,
itinutok, and idiniin-diin, which Rosilyn used to describe what accused-appellant did to her
vagina with his genitals, do not constitute consummated rape. In addition, the defense argued
that Rosilyn did not actually see accused-appellants penis in the supposed sexual contact. In fact,
they stressed that Rosilyn declared that accused-appellants semen spilled in her thighs and not in
her sex organ.
Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that,
assuming that his penis touched or brushed Rosilyns external genitals, the same is not enough to
establish the crime of rape.
True, in People v. Campuhan,[26] we explained that the phrase, the mere touching of the
external genitalia by the penis capable of consummating the sexual act is sufficient to constitute
carnal knowledge, means that the act of touching should be understood here as inherently part of
the entry of the penis into the labia of the female organ and not mere touching alone of the mons
pubis or the pudendum. We further elucidated that:

The pudendum or vulva is the collective term for the female genital organs that are
visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen,
the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that
becomes hairy after puberty, and is instantly visible within the surface. The next layer
is the labia majora or the outer lips of the female organ composed of the outer convex
surface and the inner surface. The skin of the outer convex surface is covered with
hair follicles and is pigmented, while the inner surface is a thin skin which does not
have any hairs but has many sebaceous glands. Directly beneath the labia majora is
the labia minora. Jurisprudence dictates that the labia majora must be entered for rape
to be consummated, and not merely for the penis to stroke the surface of the female
organ. Thus, a grazing of the surface of the female organ or touching the mons pubis
of the pudendum is not sufficient to constitute consummated rape. Absent any
showing of the slightest penetration of the female organ, i.e., touching of either labia
of the pudendum by the penis, there can be no consummated rape; at most, it can only
be attempted rape, if not acts of lasciviousness.[27]

In the present case, there is sufficient proof to establish that the acts of accused-appellant
went beyond strafing of the citadel of passion or shelling of the castle of orgasmic potency, as
depicted in the Campuhan case, and progressed into bombardment of the drawbridge [which] is
invasion enough,[28] there being, in a manner of speaking, a conquest of the fortress of
ignition. When the accused-appellant brutely mounted between Rosilyns wide-spread legs,
unfetteredly touching, poking and pressing his penis against her vagina, which in her position
would then be naturally wide open and ready for copulation, it would require no fertile
imagination to belie the hypocrisy claimed by accused-appellant that his penis or that of someone
who looked like him, would under the circumstances merely touch or brush the external genital
of Rosilyn. The inevitable contact between accused-appellants penis, and at the very least, the
labia of the pudendum of Rosilyn, was confirmed when she felt pain inside her vagina when
the idiniin part of accused appellants sex ritual was performed.
The incident on June 18, 1996 was described by Rosilyn as follows:
PROS. ZUNO:
Q. And, after kissing your lips; after kissing you in your lips, what else did he do?
A. After that, he was lifting my shirt.
Q. Now, while he was lifting your shirt, what was your position; will you tell the court?
A. I was lying, sir.
Q. Lying on what?
A. On the bed, sir.
Q. And, after lifting your shirt, what else did he do?
A. He spread my legs sir.
Q. And, after spreading your legs apart; what did he do?
A. After that, he lifted his shirt and held his penis.
Q. And while he was holding his penis; what did he do?
A. He pressed it in my vagina.
ATTY. FERNANDEZ:
May we request that the vernacular be used?
A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.
PROS. ZUNO:
May I respectfully move that the word: idinikit-dikit niya ang ari niya sa ari ko, be incorporated?
Q. And while he was doing that; according to you, idinikit-dikit niya ang ari niya sa ari mo; what did
you feel?
A. I was afraid and then, I cried.
Q. Will you tell the Court why you felt afraid and why you cried?
A. Because I was afraid he might insert his penis into my vagina.
Q. And, for how long did Congressman Jalosjos perform that act, which according to you, idinikit-
dikit niya yong ari niya sa ari ko?
COURT:
Place the Tagalog words, into the records.
A. Sandali lang po yon.
Q. What part of your vagina, or ari was being touched by the ari or penis?
xxxxxxxxx
Q. You said that you felt I withdraw that question. How did you know that Congressman Jalosjos was
doing, idinikit-dikit niya yung ari niya sa ari ko?
A. Because I could feel it, sir.
Q. Now, you said you could feel it. What part of the vagina in what part of your vagina was
Congressman Jalosjos, according to you, idinikit-dikit niya yong ari niya sa ari mo?
A. In front of my vagina, sir.
Q. In front of your vagina? O.K.; will you tell the Court the position?
Will you describe the position of Congressman Jalosjos when he was doing that. Idinikit-dikit niya sa
ari ko?
A. Ide-demonstrate ko po ba?
FISCAL ZUNO:
Q. Can you demonstrate?
xxxxxxxxx
A. He was holding me like this with his one hand; and was holding his penis while his other hand, or
his free hand was on the bed.
xxxxxxxxx
PROS. ZUNO:
Now, according to you, you dont know how to say it; or what was done to you. Now, will you tell the
Court how can you describe what was done to you?
A. After he dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito.
Q. O.K. you said itinutok niya ito; what else did he do?
PROS. ZUNO:
She is now trying to describe.
COURT:
Translate.
A. He seems to be parang idinidiin po niya.
Q. Now, what did you feel, when according to you; as I would quote: parang idinidiin niya?
A. Masakit po.
Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya?
COURT:
Q. Sabi mo itinutok. Nakita mo bang itinutok?
A. I saw him na nakaganuon po sa ano niya.
PROS. ZUNO:
Q. O.K., clarify. You said nakaganuon siya what do you mean by nakaganuon siya?
A. He was holding his penis, and then, that was the one which he itinutok sa ari ko.
PROS. ZUNO:
Q. And, when you said idinidiin po niya; to which you are referring? What is this idinidiin niya?
A. Idinidiin niya ang ari niya sa ari ko.
Q. And what did you feel when you said: he was idinidiin niya ang ari niya sa ari ko?
A. Masakit po.
COURT:
The answer is masakit po.
Proceed.
PROS. ZUNO:
Q. Where did you feel the pain?
A. Inside my ari po. (Sa loob po ng ari ko.)
xxxxxxxxx
PROS. ZUNO:
Q. And then, after that, what else did he do
A. After that, he touched my breast, sir.
Q. And, after touching your breast, what did he do?
A. And after that I felt that he was (witness demonstrating to the court, with her index finger, rubbing
against her open left palm)
 Q. And after doing that, what else did he do?
A. After that, he instructed me to go to sleep.
xxxxxxxxx
A. I put down my clothes and then, I cried myself to sleep, sir.
Q. Why did you cry? Will you tell the court, why did you cried after putting down your clothes?
A. Because I felt pity for myself.
(Naaawa po ako sa sarili ko.)
x x x x x x x x x.
(Emphasis supplied.)[29]
Even the July 20, 1996 encounter between Rosilyn and accused-appellant would not tax the
sketchy visualization of the nave and uninitiated to conclude that there was indeed penile
invasion by accused-appellant of Rosilyns labia. On that occasion, accused-appellant was
similarly ensconced between the parted legs of Rosilyn, except that, this time, Rosilyn was
conveniently rested on, and elevated with a pillow on her back while accused-appellant was
touching, poking and pressing his penis against her vagina. Topped with the thrusting motions
employed by accused-appellant, the resulting pain felt by Rosilyn in her sex organ was no doubt
a consequence of consummated rape.
The pertinent portions of Rosilyns account of the July 20, 1996 incident is as follows:
PROS. ZUNO:
xxxxxxxxx
Q. The moment when Cong. Jalosjos inserted his finger into your vagina, what was your position?
INTERPRETER:
The witness is asking he (sic) she has to demonstrate?
FISCAL ZUNO:
Q. Ipaliwanag mo lang?
A. My back was rested on a pillow and my legs were spread apart.
Q. You said that when Congressman Jalosjos inserted his finger into your vagina, your back was
rested on a pillow and your legs were spread wide apart, what else did he do?
A. He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko.
Q. And what did you feel when he was doing that which according to you and I would quote in
Tagalog: idinikit-dikit niya yong ari niya sa ari ko?
A. I was afraid sir.
Q. And, after doing that: idinikit-dikit niya yong ari niya sa ari ko, what else did he do?
A. After that, itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko.
 Q. You said: Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin niya yong ari
niya sa ari ko; Now, while he was doing that act, what was the position of Congressman Jalosjos?
A. His two (2) hands were on my side and since my legs were spread apart; he was in-between them,
and doing an upward and downward movement.
(Witness demonstrated a pushing, or pumping movement)
Q. For how long did Congressman Jalosjos perform that act, pushing or pumping movement while his
penis, or ang ari niya ay nakatutok at idinidiin-diin yong ari niya sa ari mo?
A. I dont know.
Q. And what did you feel when Congressman Jalosjos was making that movement, pushing, or
pumping?
A. I felt pain and then I cried.
Q. Where did you feel the pain?
A. Inside my vagina, sir.
x x x x x x x x x.[30]
The childs narration of the rape sequence is revealing. The act of idinikit-dikit niya was
followed by itinutok niya xxx at idiniin-diin niya. The idiniin-diin niya was succeeded
by Masakit po. Pain inside her ari is indicative of consummated penetration.
The environmental circumstances displayed by the graphic narration of what took place at
the appellants room from June 14 to June 16 and June 21 to June 22, 1996 are consistent with the
complainants testimony which shows that rape was legally consummated.
In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs
close together --- which, although futile, somehow made it inconvenient, if not difficult, for the
accused-appellant to attempt penetration. On the other hand, the ease with which accused-
appellant herein perpetrated the sexual abuse, not to mention the absence of time constraint,
totally distinguishes the instant case from Campuhan. Here, the victim was passive and even
submissive to the lecherous acts of accused-appellant. Thus, even assuming that his penis then
was flaccid, his act of holding, guiding and assisting his penis with his one hand, while touching,
poking and pressing the same against Rosilyn's vagina, would surely result in even the slightest
contact between the labia of the pudendum and accused-appellant's sex organ.
Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the
alleged sexual assault at bar, the defense argued that it is highly improbable and contrary to
human experience that accused-appellant exercised a Spartan-like discipline and restrained
himself from fully consummating the sexual act when there was in fact no reason for him not to
do so. In the same light, the defense likewise branded as unnatural the testimony of Rosilyn that
accused-appellant contented himself with rubbing his penis clipped between her thighs until he
reached orgasm and desisted from fully penetrating her, when Rosilyn was then entirely at his
disposal.
The defense seems to forget that there is no standard form of behavior when it comes to
gratifying ones basic sexual instinct. The human sexual perversity is far too intricate for the
defense to prescribe certain forms of conduct. Even the word perverse is not entirely precise, as
what may be perverse to one may not be to another. Using a child of tender years who could
even pass as ones granddaughter, to unleash what others would call downright bestial lust, may
be utterly nauseating and repulsive to some, but may peculiarly be a festive celebration of
salacious fantasies to others. For all we know, accused-appellant may have found a distinct and
complete sexual gratification in such kind of libidinous stunts and maneuvers.
Nevertheless, accused-appellant may not have fully and for a longer period penetrated
Rosilyn for fear of perpetrating his name through a child from the womb of a minor; or because
of his previous agreement with his suking bugaw, Simplicio Delantar, that there would be no
penetration, otherwise the latter would demand a higher price. This may be the reason why
Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is bad if accused-appellant
inserts his penis into her sex organ, while at the same time ordering her to call him if accused-
appellant would penetrate her. Such instance of penile invasion would prompt Simplicio to
demand a higher price, which is, after all, as the Solicitor General calls it, the peculiarity of
prostitution.
The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on her
thighs and not in her vagina, only proves that there was no rape. It should be noted that this
portion of Rosilyns testimony refers to the June 15 and 21, 1996 charges of acts of
lasciviousness, and not the rape charges. In any event, granting that it occurred during the twin
instances of rape on June 18 and July 20, 1996, the ejaculation on the victims thighs would not
preclude the fact of rape.
There is no truth to the contention of the defense that Rosilyn did not see the penis of
accused-appellant. As can be gleaned from the above-quoted portions of the transcripts, Rosilyn
unequivocally testified that accused-appellant held his penis then poked her vagina with it. And
even if she did not actually see accused-appellants penis go inside her, surely she could have felt
whether it was his penis or just his finger.
We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at
the time the rape complained of occurred. To bolster the declaration of Rosilyn that she was then
eleven years old, the prosecution presented the following documents:
(1) Rosilyns birth certificate showing her birthday as May 11, 1985;[31]
(2) Rosilyns baptismal certificate showing her birthday as May 11, 1985;[32]
(3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11, 1985 to
Librada Telen as the mother;[33]
(4) Marked pages of the Cord Dressing Room Book;[34]
(5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and her parents
(Librada Telen and Simplicio Delantar) patient file number (39-10-71);[35]
(6) Record of admission showing her parents patient number (39-10-71) and confinement at the
Jose Fabella Memorial Hospital from May 5-14, 1985.[36]
It is settled that in cases of statutory rape, the age of the victim may be proved by the
presentation of her birth certificate. In the case at bar, accused-appellant contends that the birth
certificate of Rosilyn should not have been considered by the trial court because said birth
certificate has already been ordered cancelled and expunged from the records by the Regional
Trial Court of Manila, Branch 38, in Special Proceedings No. 97-81893, dated April 11,
1997.[37] However, it appears that the said decision has been annulled and set aside by the Court
of Appeals on June 10, 1999, in CA-G.R. SP No. 45289. The decision of the Court of Appeals
was appealed to this Court by petition for review, docketed as G.R. No. 140305. Pending the
final outcome of that case, the decision of the Court of Appeals is presumed valid and can be
invoked as prima facie basis for holding that Rosilyn was indeed eleven years old at the time she
was abused by accused-appellant.
However, even assuming the absence of a valid birth certificate, there is sufficient and
ample proof of the complainants age in the records.
Rosilyns Baptismal Certificate can likewise serve as proof of her age. In People v.
Liban,[38] we ruled that the birth certificate, or in lieu thereof, any other documentary evidence
that can help establish the age of the victim, such as the baptismal certificate, school records, and
documents of similar nature, can be presented.
And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn
are inadmissible to prove her age, the Master List of Live Births and the Cord Dressing Book of
Dr. Jose Fabella Memorial Hospital where Rosilyn was born are sufficient evidence to prove that
her date of birth was May 11, 1985. These documents are considered entries in official records,
admissible as prima facie evidence of their contents and corroborative of Rosilyns testimony as
to her age.
Thus, Rule 130, Section 44, of the Rules of Court states:

Entries in official records. --- Entries in official records made in the performance of
his duty by a public officer of the Philippines, or by a person in the performance of a
duty especially enjoined by law, are prima facieevidence of the facts therein stated.

In Africa v. Caltex, et al., (Phil), Inc., et al.,[39] the Court laid down the requisites for the
application of the foregoing rule, thus:
(a) That the entry was made by a public officer, or by another person specially enjoined by law
to do so;
(b) That it was made by the public officer in the performance of his duties or by such other
person in the performance of a duty specially enjoined by law; and
(c) That the public office or the other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or through official information.
In order for a book to classify as an official register and admissible in evidence, it is not
necessary that it be required by an express statute to be kept, nor that the nature of the office
should render the book indispensable; it is sufficient that it be directed by the proper authority to
be kept. Thus, official registers, though not required by law, kept as convenient and appropriate
modes of discharging official duties, are admissible.[40]
Entries in public or official books or records may be proved by the production of the books
or records themselves or by a copy certified by the legal keeper thereof.[41] It is not necessary to
show that the person making the entry is unavailable by reason of death, absence, etc., in order
that the entry may be admissible in evidence, for his being excused from appearing in court in
order that public business be not deranged, is one of the reasons for this exception to the hearsay
rule.[42]
Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,[43] mandates
hospitals to report and register with the local civil registrar the fact of birth, among others, of
babies born under their care.Said Decree imposes a penalty of a fine of not less that P500.00 nor
more than P1,000.00 or imprisonment of not less than three (3) months nor more than six (6)
months, or both, in the discretion of the court, in case of failure to make the necessary report to
the local civil registrar.
Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section 44,
of the Rules of Court, it is clear that the Cord Dressing Room Book where the fact of birth, name
of the mother and other related entries are initially recorded, as well as the Master List of Live
Births of the hospital, are considered entries in official record, being indispensable to and
appropriate modes of recording the births of children preparatory to registration of said entries
with the local civil registrar, in compliance with a duty specifically mandated by law.
It matters not that the person presented to testify on these hospital records was not the
person who actually made those entries way back in 1985, but Amelita Avenante, the records
custodian of the hospital in 1995. To reiterate, these records may be proved by the presentation
of the record itself or by a certified copy or the legal keeper thereof. Proof of the unavailability
of the person who made those entries is not a requisite for their admissibility. What is important
is that the entries testified to by Avenante were gathered from the records of the hospital which
were accomplished in compliance with a duty specifically mandated by law.
Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital
are admissible as evidence of the facts stated therein.
The preparation of these hospital documents preceded that of the birth and baptismal
certificates of Rosilyn. They establish independent and material facts prepared by unbiased and
disinterested persons under environmental circumstances apart from those that may have
attended the preparation of the birth and baptismal certificates. Hence, these hospital records, to
reiterate, are sufficient to support the testimony of Rosilyn as to her age.
Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of
Rosilyn are false and that he merely made them up, particularly her date of birth, was correctly
disregarded by the trial court.It should be noted that the criminal charges for child abuse filed by
Rosilyn against him was the direct cause of his incarceration. This raises a possibility that
Simplicio falsely testified in the present case, to get even with Rosilyn.
Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito
Intruzo because the defense failed to prove that they were knowledgeable as to the circumstances
of Rosilyns birth. Their testimonies consist mainly of observations tending to show that Rosilyns
appearance belie her claim that she was born on May 11, 1985.
In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July
2, and July 3, 1996 (Criminal Cases Nos. 96-1994, 96-1995, 96-1996, and 96-1997,
respectively), the trial court acquitted accused-appellant on the ground of reasonable doubt as the
defense was able to prove that accused-appellant was not in Manila but either in Dipolog or
Dapitan City at the time the lascivious acts were supposedly committed. The evidence of the
defense established that accused-appellant flew to Dipolog on June 28, 1996, and stayed there
until July 9, 1996.
In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness
allegedly committed both in the early mornings of June 19 and July 21, 1996, Rosilyn merely
testified that she felt somebody touching her private part but failed to identify the person who
was performing those lecherous acts as she was too sleepy to wake up. Hence, accused-appellant
was likewise acquitted in these cases on the ground of reasonable doubt.
With respect, however, to the acts of lasciviousness committed in the morning of June 15
and 22, 1996, and in the evening of June 14, 15, 18, and 21, 1996, as well as the rape perpetrated
on June 18, 1996 and July 20, 1996, accused-appellant failed to account for his whereabouts. A
careful review of the pertinent transcript of stenographic notes reveals that accused-appellant did
not give any testimony as to where he was at the time these crimes were committed. Clearly,
therefore, the trial court correctly disregarded his unsubstantiated defense of denial, which
cannot prevail over his positive identification by Rosilyn as the culprit.
As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996,
accused-appellant claimed that it was impossible for him to have committed the same because he
flew to Dipolog on that day. The records disclose, however, that accused-appellants flight was at
9:40 a.m. The possibility, therefore, of accused-appellants having performed the lascivious acts
on the victim before he went off to the airport is not at all precluded. For his failure to prove the
physical impossibility of his presence at the Ritz Towers in the morning of June 16, 1996, when
the sexual abuse of Rosilyn was committed, his defense of alibi must fail.
Article III, Section 5 of Republic Act No. 7610, states:

Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who
for money or profit, or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are
deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:

xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse; Provided, That when the
victim is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious conduct when the victim is under twelve
(12) years of age shall be reclusion temporal in its medium period; x x x . (Emphasis
supplied.)
 In People v. Optana,[44] the Court, citing the case of People v. Larin,[45] explained the elements of
the offense of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected other
sexual abuse.

3. The child, whether male or female, is below 18 years of age.

A child is deemed exploited in prostitution or subjected to other sexual abuse, when

the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or
any other consideration; or (b) under the coercion or influence of any adult, syndicate
or group. Under RA 7610, children are persons below eighteen years of age or those
unable to fully take care of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of their age or mental disability or
condition.

Lascivious conduct is defined under Article XIII, Section 32 of the Implementing Rules and
Regulation of R.A. 7610, as follows:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a
person.

In the case at bar, accused-appellants acts of kissing Rosilyn on the lips, fondling her breast,
inserting his finger into her vagina and placing his penis between her thighs, all constitute
lascivious conduct intended to arouse or gratify his sexual desire. Hence, the trial court correctly
convicted accused-appellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law,
in Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, charging
him with the above-described lascivious acts.
The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the
victim is below 12 years of age, is reclusion temporal in its medium period.
The records show that on at least nine (9) separate occasions, the accused-appellant inserted
his finger into the complainants vagina. These insertions took place in 1996. A year later,
Congress enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not apply to this
case but it indicates state policy on rape. The Revised Penal Code is now amended to read as
follows:

Article 266-A. Rape; When and How Committed. Rape is committed

1. By a man who have carnal knowledge of a woman under any of the following
circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present.

2. By any person who, under any of the circumstances mentioned in paragraph 1

hereof, shall commit an act of sexual assault by inserting his penis into another
persons mouth or anal orifice or any instrument or object, into the genital or anal
orifice of another person. (Emphasis supplied.)

Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now
classifies the crime as an offense against persons. Any public prosecutor, not necessarily the
victim or her parents, can prosecute the case.
The penalties for the crime of rape in the light of various circumstances, which are now set
forth and contained in Article 266-B of the Revised Penal Code, have also been increased.
Considering that there are neither mitigating nor aggravating circumstance, the trial court
correctly imposed on accused-appellant the maximum penalty of fifteen (15) years, six (6)
months and twenty (20) days of reclusion temporal, which is within the medium period
of reclusion temporal medium, pursuant to our ruling in Dulla v. Court of
Appeals.[46] Notwithstanding that R.A. 7610 is a special law, accused-appellant may enjoy a
minimum term of the indeterminate sentence to be taken within the range of the penalty next
lower to that prescribed by the Code.[47] However, the trial court erroneously fixed the minimum
term of the indeterminate sentence at eight (8) years, eight (8) months and one (1) day of prision
mayor in its medium period. In the aforesaid case of Dulla,[48] we held that the penalty next lower in
degree to reclusion temporal medium is reclusion temporal minimum, the range of which is from twelve (12) years
and one (1) day to fourteen (14) years and eight (8) months. Hence, for violation of Article III, Section 5 (b) of R.A.
7610, accused-appellant shall suffer the indeterminate sentence of twelve years (12) and one (1) day of reclusion
temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as
maximum.

At the time of commission of the crimes complained of herein in 1996, statutory rape was
penalized under Section 11 of R.A. 7659, which amended Article 335 of the Revised Penal
Code, to wit:

When and how rape is committed. --- Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua. xxx.

In statutory rape, mere sexual congress with a woman below twelve years of age
consummates the crime of statutory rape regardless of her consent to the act or lack of it. The
law presumes that a woman of tender age does not possess discernment and is incapable of
giving intelligent consent to the sexual act. Thus, it was held that carnal knowledge of a child
below twelve years old even if she is engaged in prostitution is still considered statutory
rape. The application of force and intimidation or the deprivation of reason of the victim
becomes irrelevant. The absence of struggle or outcry of the victim or even her passive
submission to the sexual act will not mitigate nor absolve the accused from liability.[49]
In the case at bar, the prosecution established beyond reasonable doubt that accused-
appellant had carnal knowledge of Rosilyn. Moreover, the prosecution successfully proved that
Rosilyn was only eleven years of age at the time she was sexually abused. As such, the absence
of proof of any struggle, or for that matter of consent or passive submission to the sexual
advances of accused-appellant, was of no moment. The fact that accused-appellant had sexual
congress with eleven year-old Rosilyn is sufficient to hold him liable for statutory rape, and
sentenced to suffer the penalty of reclusion perpetua.
As to accused-appellant's civil liability, the amount of moral damages awarded by the trial
court for each count of acts of lasciviousness under Section 5 (b) of R.A. 7610 should be
increased from P20,000.00 to P50,000.00.[50] On the other hand, the award of the amount of
P50,000.00 as moral damages for each count of statutory rape was correct.
In People v. Lor,[51] citing the cases of People v. Victor,[52] and People v. Gementiza,[53] we
held that the indemnity authorized by our criminal law as civil indemnity ex delicto for the
offended party, in the amount authorized by the prevailing judicial policy and aside from other
proven actual damages, is itself equivalent to actual or compensatory damages in civil law. Said
civil indemnity is mandatory upon finding of the fact of rape; it is distinct from and should not be
denominated as moral damages which are based on different jural foundations and assessed by
the court in the exercise of sound judicial discretion.[54] Hence, accused-appellant should be
ordered to pay the offended party another P50,000.00 as civil indemnity for each count of rape
and acts of lasciviousness.
WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal
Case Nos. 96-1985 and 96-1986 finding accused-appellant Romeo Jalosjos guilty beyond
reasonable doubt of two counts of statutory rape, and sentencing him to suffer the penalty
of reclusion perpetua for each count, is AFFIRMED. Likewise, the appealed Decision of the
Regional Trial Court of Makati, Branch 62 in Criminal Case Nos. 96-1987, 96-1988, 96-1989,
96-1990, 96-1992, and 96-1993, finding accused-appellant guilty beyond reasonable doubt of
acts of lasciviousness in six counts, is AFFIRMED with MODIFICATIONS. As modified,
accused-appellant is sentenced to suffer, for each count of acts of lasciviousness, the
indeterminate penalty of twelve years (12) and one (1) day of reclusion temporal, as minimum,
to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as
maximum. Further, accused-appellant is ordered to pay the victim, Ma. Rosilyn Delantar, the
additional amount of P50,000.00 as civil indemnity for each count of statutory rape and acts of
lasciviousness. Finally, the award of moral damages for each count of acts of lasciviousness is
increased to P50,000.00.
SO ORDERED.

G.R. No. 128285 November 27, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO PLANA alias "CATONG" EDGARDO PERAYRA, RENE SALDEVEA and RICHARD
BANDAY,defendant-appellants.

PER CURIAM:

This is an automatic review of the decision of the Regional Trial Court, Branch 15 of Roxas City in
Criminal Case No. 4659 finding accused-appellants Antonio Plana, Edgardo Perayra, Rene
Saldevea and Richard Banday guilty beyond reasonable doubt of the crime of Rape with Homicide
and imposing upon them the supreme penalty of Death.

The Information filed against accused-appellants reads:

That on or about 10:30 o'clock in the morning of September 23, 1994, at Brgy. Cubi,
Dumarao, Capiz, and within the jurisdiction of this Court, the above-named accused did, then
and there, wilfully and feloniously, and by conspiring and helping one another, gang-up and
have carnal knowledge of HELEN PIROTE [should read Helen Perote] against her will, and,
thereafter, by means of cruelty which augmented her suffering, did, then and there, strike,
mangle and stab said HELEN PIROTE several times with both blunt and sharp-edged
weapons thereby inflicting upon her serious multiple wounds causing massive hemorrhage
which resulted to [sic] her death.1

At their arraignment, accused-appellants pleaded not guilty. During the trial, the prosecution
presented as its witnesses Dr. Ricardo Betita, Jr., Felix Lagud, Rene Bustamante, Antonio Mendoza,
Amalia Rafael, Linda Perote and Romeo de la Torre Diaz. Their testimonies, taken together,
establish that:

On September 26, 1994, the victim, Helen Perote, was found dead by her brother and the police in
Brgy. Cobe, Dumarao, Capiz. The body was in prone position and was already in an advance state
of decomposition. Per the post mortem examination conducted by Dr. Ricardo Betita, Rural Health
Officer of Cuartero, Capiz, the victim sustained the following injuries:

1. Clean edges stab wound 2x5 cm left anterior chest.

2. Avulsion with irregular edges wound 8x12 cm middle chest area.

3. Avulsion of the nose and upper lip portion/area.

4. Clean edges wound or stab wound 2x5 cm epigastric area.

 5. Clean edges stab wound 2x5 cm left hypogastric area.

6. Clean edges stab wound 2x5 cm hypogastric area.

7. Clean edges stab wound 2x5 cm left posterior upper back.

8. Clean edges stab wound 2x5 cm mid upper portion of the back.

9. Clean edges stab wound 2x5 cm left posterior back level of 8th ribs.

10. Clean edges stab wound 2x5 cm left back level of left lumbar area.

11. Clean edges wound 2x5 cm middle low back area.

12. Clean edges wound 2x5 cm right low back area at level of lumbar area.

13. Clean edges wound 2x5 cm left gluteal area near the anus.

14. Vagina: Introitus can easily insert 2 fingers/Hymen with laceration 3 and 9 o'clock (old
laceration) and on the state of decomposition.

The most probable cause of death was massive hemorrhage or blood loss secondary to
multiple stab wound[s].2

When he took the witness stand, Dr. Betita described the fourteen (14) wounds inflicted on the victim
as follows: Wound No. 1 was located just above the left breast of the victim. It was seven (7) to nine
(9) centimeters deep. It was a fatal wound as it hit the heart of the victim. Wound No. 2 was located
in the middle chest area of the victim. Wound No. 3 was an avulsion on the nose and upper lip.
There was also a missing tooth. The wound could have been caused by a hard object or that the
victim fell with her face hitting the ground. Wound No. 4 was a stab wound located at the upper part
of the abdomen. It was seven (7) centimeters deep and was probably caused by a knife or a bladed
instrument. Wound No. 5 was a stab wound located at the left side above the pubis area. Wound No.
6 was a stab wound located above the pubis area also. It was seven (7) to ten (10) centimeters
deep. The urinary bladder and the uterus could have been hit by this wound. Wound No. 7 was a
stab wound and located at the right scapular area of the body. With a depth of seven (7)
centimeters, the wound hit the lungs of the victim. Wound No. 8 was a stab wound and located at the
upper back portion. It could have affected the spinal cord causing paralysis. Wound No. 9 was a fatal
stab would located at the left posterior back level of the 8th rib. The wound could have affected the
spinal cord, the lungs and the abdominal "aorta." Wound No. 10 was located at the left lumbar area
which could have hit the kidney of the victim. Wound No. 11 was located at the middle low back
area. Wound No. 12 was located at the middle portion of the back just above the right lumbar area.
Wound No. 13 was located near the anus. The wound was inflicted with the victim facing downward
or the assailant was at the back of the victim. Finally, Entry No. 14 was the laceration on the hymen
of the victim's sexual organ.3

According to Dr. Betita, the victim died more than seventy-two (72) hours already before the police
authorities found her body.4

On September 23, 1994, or three (3) days before the victim's body was found, at around 10:30 in the
morning, Felix Lagud was walking at the feeder road in Barangay Cobe, Dumarao, Capiz. He just
came from his farm in Alipasyawan, Dumarao and was on his way home to Poblacion Ilawod. A
movement at about fifty meters to his left side caught his attention. He saw three persons who
seemed to be wrestling. He came nearer so he would be able to see them more clearly. From about
a distance of twenty (20) meters, he saw the three men holding a girl while another man was on top
of her. The girl was being raped and she was later stabbed. Frightened that the assailants would see
him, Lagud ran away. He intended to go straight home but when he passed by the house of Porferio
Haguisan, the latter invited him for a "milagrosa." Lagud obliged and stayed at the house of his
"kumpare" until 2:00 in the morning.5

On September 26, 1994, while he was in Ungon Ilaya, Lagud heard that a girl was found dead in
Barangay Cobe. It was the same place where, three days earlier, he saw the four men gang up on
the girl. He wanted to go to the place but he was told that the foul smell coming from the
decomposed body already permeated the place. He later learned that the deceased was Helen
Perote.6

In his affidavit,7 as well as in his testimony in court, Lagud identified accused-appellants Plana,
Perayra and Saldevea as the three men who were holding the girl while their fourth companion was
raping her. At the time of the incident, he did not yet recognize the fourth man who was on top of the
girl. However, when he saw accused-appellants at the municipal hall where they were brought when
they were arrested on September 26, 1994, he identified the fourth man to be accused-appellant
Banday.8

Rene Bustamante corroborated in part the testimony of Lagud. Between 10:30 to 11:00 in the
morning of September 23, 1994, Bustamante was looking for his carabao. He found it near the
fishpond owned by accused-appellant Saldevea in Barangay Cobe. Bustamante was tugging the
carabao when he heard the sound of men laughing. When he looked back, he saw accused-
appellant Saldevea, who was then shirtless, pull up his pants. Accused-appellant Saldevea were
with three other men. They were washing their hands on the fishpond. Bustamante recognized one
of them to be accused-appellant Perayra. Bustamante proceeded to his home in Barangay Ungon,
Ilaya, Dumarao, Capiz.9

On September 25, 1994, Bustamante was in their house with his wife and children. His mother-in-
law, Linda Perote, arrived looking for her daughter Helen. The wife of Bustamante is the older sister
of Helen. They learned that Helen had been missing since September 23, 1994. She was supposed
to go to the house of her other sister, Susan, but she (Helen) never reached the latter's place. They
began to search for her. On September 26, 1994, they found her lifeless body with no clothes on but
her panty. There were already maggots infesting her body. Bustamante confirmed in open court that
accused-appellants were the men that he saw on September 23, 1994 near the place where the
body of Helen was found.10

Antonio Mendoza, barangay captain of Barangay Hambad, Dumarao, Capiz and storeowner,
narrated during the hearing that on September 23, 1994, at past 8:00 in the morning, accused-
appellants arrived at his store. They bought two bottles of ESQ whisky and proceeded to drink the
liquor. Accused-appellants were drinking in Mendoza's store until almost 10:00 in the morning.
Thereafter, they left bringing with them the one-half full bottle of whisky that they did not consume.11

Two days after that incident, on September 25, 1994, Porferio Haguisan and members of the
Regional Security of the Armed Forces (RSAF) came to see Mendoza to ask him if he saw accused-
appellants. Mendoza told them that accused-appellants were in his store in the morning of
September 23, 1994. Haguisan and the police left. The following day, Mendoza heard that Helen's
body was found dead near the fishpond owned by the brother of accused-appellant Saldevea. The
place is approximately 500 meters away from Mendoza's store.12
The last person who talked with the victim was her older sister Amalia Rafael. In the morning of
September 23, 1994, Helen went to see Amalia to tell her that they were going to have a "milagrosa"
in the house of their other sister, Susan. Amalia instructed Helen to go ahead. Helen then left to
proceed to Susan's house. Going there, Helen would usually pass by the railway track and the
feeder road. After Helen left, Amalia followed her to their sister's house. Amalia took the same route
passing by the railway track and feeder road. On her way, Amalia met accused-appellants on the
feeder road near the fishpond. At the time, she only knew accused-appellants Plana and Perayra.
She noticed that the four men were not wearing any shirts but only their denim pants. They were
obviously drunk as their faces were red and they walked in a zigzag manner. Amalia saw that
accused-appellant Plana had a knife tucked in his waist.13

There were already many people when Amalia arrived at Susan's house. However, Helen was
nowhere to be found. Amalia did not stay long there as she only got food. On September 25, 1994,
while she was working in the ricefield, their mother, Linda, came. She told Amalia that Helen had not
come home. They then went to see Helen's classmates to ask them if they knew where she went. All
they knew is that she went to a "milagrosa." On September 26, 1994, they found the body of Helen
near the fishpond of accused-appellant Saldevea in Barangay Cobe, Dumarao, Capiz. Helen was
then only eighteen years old.14

The Chief of Police of Dumarao Police Station, Romeo dela Torre Diaz, received report of Helen's
disappearance in the afternoon of September 25, 1994. Later in the evening, he granted clearance
to the 601st Mobile Force Company to conduct the search. The following day, upon hearing that the
body of Helen was already found, Diaz went to the station of the 601st Mobile Force Company.
Accused-appellants, who were already there, were turned over to him for investigation. Thereafter,
Diaz went to the place where Helen's body was found in Barangay Cobe.15

Linda Perote, the victim's mother, described on the witness stand the shock, grief and anguish that
she felt upon learning of her daughter's death. She averred that the family spent almost fifty
thousand pesos (P50,000.00) for Helen's wake and burial.16

Upon the other hand, accused-appellants interposed the defense of denial and alibi. Their account of
their activities on that fateful day of September 23, 1994 is as follows:

At around 7:30 in the morning, accused-appellants had "lomi" in the eatery owned by Eddie Pendon.
After eating, they accompanied accused-appellant Saldevea to the public market to buy fish. From
the public market, they all boarded a tricycle to go to Barangay Bugnay. When they alighted the
tricycle, they may barangay captain Tony Mendoza. Mendoza boarded the tricycle while accused-
appellants proceeded to Mendoza's store. Accused-appellants bought two bottles of whisky from the
store. They drank the liquor at said store until past 10:00 in the morning.17

Thereafter, accused-appellants Plana and Banday had to leave behind accused-appellants

Saldevea and Perayra to go to the house of Plana's aunt and uncle, Vicente and Felomina Docutan.
They reached the house of the Docutans at around 10:30 in the morning. It only took them a couple
of minutes to get there by foot. Accused-appellants Plana and Banday were tasked to cook the
chicken for the celebration that night. Also at the house of the Docutan couple was Nolan Obena.
Accused-appellants Plana and Banday stayed there until 9:00 in the evening. Accused-appellant
Banday slept over at the house of accused-appellant Plana since he (accused-appellant Banday)
lived quite far.18

For their part, after accused-appellants Plana and Banday left the store, accused-appellants Perayra
and Saldevea proceeded to the house of the latter's sister-in-law, Monina Saldevea. Accused-
appellant Saldevea cooked the fish that they earlier bought in the public market. They then had
lunch and after eating, they slept. Accused-appellant Perayra slept until 4:00 in the afternoon.
Accused-appellant Saldevea woke up earlier and was soon outside the house plowing the field.
Accused-appellant Perayra went home at 4:30 in the afternoon.19

To buttress their defense of denial and alibi, accused-appellants further accounted for their activities
on the days subsequent to September 23, 1994. Accused-appellant Plana claimed that he spent the
day gathering wood on September 24, 1994. The following day, he just stayed at their house but in
the afternoon, he played basketball with accused-appellant Perayra and their friends. Later in the
evening, at about 11:00, certain members of the RSAF came to the house of accused-appellant
Plana. Accused-appellant Perayra was still there because he slept over at said house. The RSAF
questioned them if they saw a girl named Helen Perote. They answered no. Accused-appellants
Plana and Perayra then accompanied the law enforcers to see a certain "Lando." The authorities
inquired from Lando if there was a woman who boarded his "bering" transportation. Lando answered
in the negative. Accused-appellants Plana and Perayra were then instructed by the police to go to
the police detachment. Since it was already late, accused-appellants Plana and Perayra asked if
they could just go there in the morning of the following day.20

Accused-appellant Perayra averred that he stayed at his house the whole day of September 24,
1994. The following day, he went to the house of accused-appellant Plana in the afternoon. They
agreed to meet later in the evening at the wake in the house of the Igaras family. They left the wake
at 10:00 in the evening. Accused-appellant Perayra decided to spend the night at the house of
accuse-appellant Plana. At 11:00 in the evening, they were awakened by the brother of accused-
appellant Plana. They were informed that members of the RSAF were outside the house looking for
them. Accused-appellant Perayra was brought in front of the house while accused-appellant Plana
was brought at the back. Accused-appellant Perayra was asked of his whereabouts on September
23, 1994.21

Accused-appellant Banday recounted that he left the house of accused-appellant Plana early
morning of September 24, 1994. He slept there the night before after they had dinner at the house of
the Docutans. He never left his house on September 24 and 25, 1994. On September 26, 1994, he
received word that the police chief wanted to ask him questions. He thus went to the police
detachment as instructed. He did not see the other accused-appellants when he arrived at the
detachment. The authorities began interrogating him. They wanted him to confess to the killing and
raping of Helen. When he refused, they punched him. Later in the afternoon, the four accused-
appellants were brought to the municipal hall in Dumarao, Capiz. They were placed under detention
there.22

Aside from accused-appellants, the defense presented other witnesses, namely, Julia Barrientos,
Nolan Obena, Igleserio Farinas, Rolando Naelgas and Monina Saldevea. Barrientos tried to refute
the allegation of prosecution witness Felix Lagud that he saw accused-appellants rape and stab
Helen in Barangay Cobe. Barrientos testified that on September 23, 1994, at 10:00 in the morning,
on her way to the public market, she saw Lagud sitting on the bench outside his house. Lagud was
then selling "amakan," hence, he could not have seen what he claimed he saw.23

Obena corroborated the alibi of accused-appellants Plana and Banday that from 10:30 in the
morning to 8:00 in the evening of September 23, 1994, they were at the house of the Docutan
couple.24 Farinas, a basket vendor, said during his testimony that he saw accused-appellant Plana
and his two companions at around 10:30 in the morning of that fateful day. They passed by the
house of Ronie Saldevea, brother of accused-appellant Saldevea, where Farinas was buying
baskets. He (Farinas) even had a short conversation with accused-appellant Plana. Farinas saw
accused-appellant Plana and his companions head towards Barangay Cobe.25 Naelgas corroborated
the testimony of Obena. Naelgas saw Obena when the latter bought baskets from Ronie. He
(Naelgas) affirmed that accused-appellants Plana and Banday passed by the house of Ronie. They
came from the direction of the nearby high school and went down the hill going to Barangay Cobe.26

Monina Saldevea, sister-in-law of accused-appellant Saldevea, corroborated the alibi of accused-

appellants Saldevea and Perayra. She attested that on September 23, 1994, accused-appellants
Saldevea and Perayra arrived at her house at 10:30 in the morning. They had their lunch there.
Accused-appellant Saldevea helped prepare the same. Accused-appellant Perayra stayed at the
house of Monina until 4:30 in the afternoon when he went home. On the other hand, accused-
appellant Saldevea did not leave the house until September 25, 1994. The following day, he went to
the detachment after he was informed by accused-appellant Perayra that the authorities wanted to
investigate them for the death of Helen Perote.27 Edith Perayra, mother of accused-appellant
Perayra, averred that in the morning of September 23, 1994, her son asked permission from her to
go to the public market. He told her that he was going there with accused-appellant Saldevea. When
he got home at 5:00 in the afternoon, he told his mother that he ate lunch at the house of Monina
Saldevea with accused-appellant Saldevea. Accused-appellant Perayra did not leave their house
except to buy cigarettes in the afternoon of September 25, 1994. The following day, at 6:00 in the
morning, accused-appellant Perayra reported to the police detachment after he learned that the
authorities wanted to ask him questions. At the detachment, he was surprised to learn that he was
one of the suspects in the rape-slaying of Helen. Accused-appellants were all brought to the
municipal hall in Dumarao, Capiz where they were detained.28

Lagud was called again to the witness stand by the prosecution to rebut the testimony of Julia
Barrientos, witness for the defense. Lagud admitted that he knows Barrientos but denied seeing her
on September 23, 1994. According to Lagud, Barrientos' claim that she saw him selling "amakan" on
that date is not true because he had already stopped said business in 1992.29

On November 23, 1996, after due trial, a judgment was rendered by the trial court finding accused-
appellants guilty beyond reasonable doubt of the crime of rape with homicide. The trial court
imposed upon them the supreme penalty of death. The dispositive portion of the trial court's decision
reads:

WHEREFORE, finding accused ANTONIO PLANA, EDGARDO PERAYRA, RENE

SALDEVEA and RICHARD BANDAY guilty beyond reasonable doubt of the complex crime
of Rape with Homicide as defined and punished under Art. 335 of the Revised Penal Code,
as amended by Rep. Act No. 7659, judgment is hereby rendered sentencing them to suffer
the supreme penalty of DEATH and, likewise, ordering them to pay jointly and severally the
heirs of the victim, Helen Perote, twenty five thousand pesos (P25,000.00) as actual
damages and fifty thousand pesos (P50,000.00) as civil liability.

SO ORDERED.30

In their appeal brief, accused-appellants assail their conviction alleging that the trial court committed
the following errors:

a. The trial court erred in not appreciating the defense of alibi/denial put up by the appellants
they had nothing to do with the commission of the crime as their testimonies and their
witnesses, individually and collectively taken together, showed with clarity and beyond doubt
they were not at the scene of the crime and did not commit the offenses charged.

b. The trial court erred in not censuring the actuation of the police authorities in detaining
appellants without benefit of Court filed information nor judicial order of detention as well as
 violation of their constitutional rights during their so-called custodial invitation and
interrogation.

c. The trial court erred in not appreciating the inconsistencies and inherent
weaknesses/improbabilities of the testimonies of prosecution's witness which showed tons of
doubt of appellant's guilt entitling them to acquittal.31

Accused-appellants vigorously deny that they committed the rape and killing of Helen. They maintain
that their testimonies, taken together with that of the other defense witnesses, show that they were
not at the scene of the crime. In other words, they fault the trial court for not giving credence to their
defense of alibi. Corollarily, they point out the alleged inconsistencies and improbabilities in the
testimonies of the witnesses for the prosecution. Accused-appellants likewise denounce as violative
of their constitutional rights their detention without, at the time, a judicial order or an information filed
in court.

After a careful review of the evidence on record, the Court is constrained to affirm the judgment of
conviction of accused-appellants.

The first and last issues raised by accused-appellants shall be addressed jointly as they both involve
the assessment of the witnesses' credibility. It is well-entrenched in this jurisdiction that findings of
the trial court on the credibility of witnesses and their testimonies are entitled to the highest respect
and will not be disturbed on appeal in absence of any clear showing that the trial court overlooked,
misunderstood or misapplied some facts of circumstances of weight and substance which would
have affected the result of the case. The trial court is in a better position to decide the question of
credibility, having seen and heard the witnesses themselves and observed their behavior and
manner of testifying.32

In this case, the trial court correctly gave credence to the positive identification of accused-
appellants as the assailants of Helen by Felix Lagud. His testimony was straightforward, direct and
consistent:

PUBLIC PROSECUTOR:

Q Mr. Lagud, where were you at about 10:30 o'clock in the morning on September 23,
1994?

A I was walking at the feeder road of barangay Cobe, Dumarao, Capiz.

Q Where were you headed to?

A Going home to Poblacion Ilawod.

Q And this Poblacion Ilawod is also of Dumarao, Capiz?

A Yes, sir.

Q Where have you been?

A I came from Alipasyawan, Dumarao, Capiz, visiting my farm.

Q This Alipasyawan is also of Dumarao, Capiz?

A Yes, sir.

Q While walking in barangay road of Barangay Cobe, Dumarao, Capiz, was there
anything unusual that attracted or called your attention?

A Yes, ma'm.

Q What was the unusual incident that called your attention?

A I saw that as if there were wrestling.

Q On which part of the barangay road where you were walking that you saw there
seems to be wrestling persons?

A On my left side.

Q Now, how far were you from the very spot where you saw there seems to be
wrestling persons?

A 50 meters. About 50 meters.

Q Now, when you saw this what did you do?

A I came near so that I could see it clearly.

Q How near did you approached that spot, Mr. Witness?

A About twenty (20) meters.

Q Now, upon reaching that distance from the spot where you said you saw persons who
seems to be wrestling what did you see?

A I saw three (3) persons holding the one who is being raped and one person was on
the top of the girl.

Q Now, did you recognized these three (3) persons whom you saw were holding the
victim?

A Yes, sir.

Q Who were these three (3) persons holding still the victim?

A Antonio Plana, Edgardo Perayra and Rene Saldevea.

Q Now, before that incident that you saw have you already known these three (3)
persons you have identified who have been holding the girl, one of them was actually raping
—

ATTY. BARRERA:
 I object to the term actual raping. There is still no proof that there was any rape, was
holding the girl only. He has not yet given testimony involving rape.

COURT:

Witness may answer.

A These three (3) persons I have already known them because we have gone together
in a drinking session and I also passed by Cobe.

PUBLIC PROSECUTOR:

Q Now, if these (3) persons are inside the courtroom, will you please go down from the
witness stand and tap the should of these three (3)?

ATTY. BARRERA:

I request as he taps each of them he should mention the name.

A (Witness came down from the witness stand and tapped the shoulder of Antonio
Plana, next as Rene Saldevea and another persons he named as Edgardo Perayra.

PUBLIC PROSECUTOR CONTINUING:

Q Now, what else did you see?

A The first, at first I saw the three persons holding the victim and the other one is on top
of the victim. Later, I saw that the one who is on top of the girl raised his hand and stabbed
the victim.

Q Now, what happened after you saw that the one on top of the victim stabbed the
victim?

A Because I was afraid, I ran away because they might also see me.

Q Now, where did you proceed after you got frightened of what you saw?

A Going home to Poblacion Ilawod, Dumarao, Capiz.

Q Were you able to immediately go home?

A I was not able to go home because when I passed by the house of Porferio Haguisan,
he saw me and he invited me because it was their Milagrosa.

Q How long did you stay in the house of your Compare Porferio?

A I stayed there long. I went home already 2:00 o'clock.

xxx xxx xxx

 PUBLIC PROSECUTOR:

Q Now, what did you do when you heard that a person was found there a dead person
was found in that very place where you saw the accused on September 23, 1994, holding
and raping?

A I went to the Municipal Hall because I also heard that the accused were apprehended
and I went there and I saw and recognized them.

COURT:

Q You mean to tell us Mr. Witness that on September 26, 1994, when the dead body
was found in the feeder road of Cobe, you went to the Municipal Hall because the accused
was arrested, is that what you mean?

A Yes, sir.

PUBLIC PROSECUTOR:

Q What time have you gone to the Municipal Hall?

A Noon time.

Q Now, who was the dead person that was found in that spot?

A Helen Perote.

Q When this victim was still alive, have you any occasion to know her?

A Yes, I know her.

Q Now, how about the fourth man who was on top of the girl and whom you saw also
stabbed the girl on the morning of September 23, 1994, did you recognize him?

A On that incident I do not know him but when I saw him at the Municipal Hall I know
him because they were also together.

Q And did you know who this fourth man was when you went to the Municipal Hall?

A Yes, sir, Richard Banday.

Q If he is inside the courtroom will you please go down from the witness stand and tap
the shoulder of Richard Banday?

A (Witness went down from the witness stand and tapped the shoulder of a person who,
when asked answered his name as Richard Banday).33

Lagud remained unwavering and consistent even when he was under the grueling cross-
examination by accused-appellants' counsel:
ATTY. BARRERA:

Q At that distance of 50 meters as you said from the place where you saw persons as if
wrestling there was no obstruction to your view?

A There were grasses and trees not so tall.

Q Now, would you agree with me that the place, I withdraw that. The place where you
were and the area where you saw persons as if wrestling which is the elevated portion?

A On the place where I was.

Q So, your portion being elevated you would agree with me that you can see the place
where there are persons appearing to be wrestling because it was at the lower portion am I
correct?

A Not so clear because there were grasses and that is why I went near.

Q How were you able to identify the three (3) persons, namely, Plana, Saldevea and
Perayra?

A When I came near that is the time that I recognized them.

Q Now, you said that you came nearer to the place where persons were wrestling and
you said you were 20 meters from them but when measured it was actually 12 meters. The
question is, why did you approach the place where you saw persons wrestling?

A I went near so that it would be clear to me and I can recognize and confirm as to what
they are doing.

Q You want to tell the Court that it was out of curiosity that you approached the area
where you saw persons appearing to be wrestling?

A Yes, that is what I plan.

Q You were not afraid instead you were curious isn't it?

A I was afraid that is why when I went near I also crouched.

Q Just answer my question. Were you afraid or you were curious that is why you
approached the place where persons appeared to be wrestling.

COURT:

Compañero, if you have any correction just make a manifestation, just make it
formal.

ATTY. BARRERA:

I am sorry, your honor.

COURT:

Proceed.

A Just for curiosity sake.

ATTY. BARRERA:

Q Now, at a distance of 12 meters you recognized three (3) persons holding the arms
and leg of the one lying and another person on top of the woman lying is that it?

A Yes, sir.

Q And at that distance of 12 meters you identified the three persons as the herein
accused, Plana, Perayra, and Saldevea whom you met according to you for three times at
the store of Antonio Mendoza, is that correct?

A Yes, sir.

Q Now, 12 meters distance from the place where you were sitting up to the place where
you pointed at is the area where you identified the accused holding and another one on top
of the person lying, there was no obstruction from the area from the place where you were to
the area where you saw?

A It was clear because it was near.

Q As a matter of fact the only vegetation you can find in the premises from where you
were meters away from the area where you saw what you are telling this Court as green
grass?

A Yes, sir. Short grasses.

Q And you identified only three persons holding not the one lying, you said it was Plana,
Perayra and Saldevea, and you do not know the person on top of the person lying, who was
covered on top by a man, was he a man or a woman?

A I think it was a girl because I heard voices like that of a woman.

Q You think it was a girl. At a distance of 12 meters and you said it was clear to your
view can you not identify the person lying and covered by one on top of as a woman?

A It is not clear because it was covered by a person on top.

Q Definitely, you told the Court you do not know who was the person on top of the one
lying, am I correct at that very moment?

A Yes, sir.,

PUBLIC PROSECUTOR:
 Your honor, the translation is I did not yet know him.

ATTY. BARRERA:

Q What part of his body that person who was on top you saw?

A From his head to his back.

Q You did not see his face?

A No, sir.

Q What was he actually doing when you saw him for the first time?

A He was on top of the girl.

PUBLIC PROSECUTOR:

There is a continuation, your honor, he said "naga".

A He was on top of the girl and he was —

COURT:

He was what? You say it?

A He is forcing that his will penetrate.

Q What was that he wanted to have it penetrated?

A His organ.

Q Did the Court get you right that you said you saw — you set properly. Make it of
record that witness has been uneasy when being cross-examined. Don't make any
undesirable — you sit properly. Now, did the Court get you right that the man whom you saw
at the top of the person lying was turning his back towards you?

A I saw his head and back and he was not on the back view but side view.

PUBLIC PROSECUTOR:

May I interpret. And his back was not actually against me but he was somewhat side
view position upon me.

COURT:

Q Did he have his clothes on when he was on top of the person lying?

A No, sir.
Q You mean to tell us that he was naked throughout?

A His pants was lowered down.

Q Was he naked up?

A Yes, sir.

Q At that distance can you see his organ?

A I cannot see but as if he is trying to force because his back was also moving.

Q So actually you did not see his organ that he was trying to have it penetrated?

A No, sir.

Q Did you see the organ of that woman lying down?

A No, sir.

ATTY. BARRERA:

Q Now, so, did the man on top of that woman — person lying whom you said was a girl
had her pants you said lowered up to where?

A Up to about his knees.

Q And the woman at the time you said the man was trying to force his organ penetrate
that of a person lying was that person lying struggling or what was that person lying doing?

A She was struggling and she was held by three persons.

Q Alright, tell us, you identified Antonio Plana what was he holding at that moment you
said you saw?

A The right foot of the girl.

Q How about Perayra?

A On the left foot.

PUBLIC PROSECUTOR:

I think not, foot, it is the leg (witness indicating a little above the ankle).

A Left lower part of the leg.

ATTY. BARRERA:

Q And Rene Saldevea, what part was he holding, if any according to you?
A Two (2) hands (witness raising his two hands above his head closed together).

Q And at that position as you described none of the four (4) persons including the three
you identified covered the mouth of the person lying?

A I cannot tell because I cannot see.

Q You mean at a distance of 12 meters you cannot see if the mouth of the person lying
was covered or not?

A I cannot see because she was covered by the person lying on top of her.

Q You have not heard any sound or voice emanating from the person lying?

A I heard voices but it was not clear.

Q Now, that voices you heard what were the nature of those voices?

A As if pleading.

Q You wanted to tell us that the voice you heard was the crying or moaning or —

PUBLIC PROSECUTOR:

Your honor, the witness has already described the nature of the voices as if pleading.

ATTY. BARRERA:

I am trying to clarify what — was it moaning, crying or saying something vocal.

A Crying.

Q You did not hear any word being uttered?

A The words was (sic) not clear.

Q Now, the person lying (who is) whose pleading you heard was she moving or was
she moving her body or any part of her body?

A She was moving but she was held by three persons.

Q Now, you said that the person on top of that woman lying has his pants lowered up to
his knee, on the other hand, the person lying did you see if she was totally naked or she had
something on or you have not seen it?

A On his top was naked but her pants was lowered on the left leg. The pants was
already taken on the right leg, the pants was not taken off.

Q So that the person lying was not totally naked at the time you saw it?
A As to her body she was naked but only the pants on the right side was not taken off.

Q So at the moment because the upper part of the body had no clothes except portion
of the right leg that still retains the pants you would know that it was a woman lying on the
ground is that it?

A Yes, sir.

Q And at that point of time while the three accused, Plana, Perayra, and Saldevea were
holding the hands of the girl and the other one on to of her, can you tell this Court if these
four (4) persons while doing those things as you described were conversing or uttered any
word?

A I heard voices but it was not clear.

Q You mean you heard voices being made by persons you saw?

A Yes, sir.

Q And you would like to tell the Court that at a distance of 12 meters from where you
were you never heard audibly the words coming from their voices?

A I cannot understand because their voices were low.

Q Were they laughing?

A I have not noticed.

Q So, you did not notice if they were laughing?

A No, sir.

Q You did not hear if they were shouting at one another?

A No, sir.

Q You did not hear any of them saying go ahead, we follow also?

A No, sir.

Q Now, and later you said you saw a person on top of that girl pulled a knife and
stabbed that person lying whom you said was a girl is that it?

A Yes, sir.

Q Considering that that person on top of that victim had dress over and had his pants
on top of his knee how did he stabbed that victim whom you said was a woman?

A I noticed that but I do not know where he get (sic) the knife but I noticed that he just
raised his hand.
 Q Not one of the three (3) whom you identified gave him the knife except that you only
saw that person on top of that woman all of a sudden having a knife and stabbing is that it?

A Yes, sir.

Q Now, is that person on top of the woman stabbing that woman did you hear any or
uttered by that man stabbing that woman?

A I did not notice the words he uttered.

PUBLIC PROSECUTOR:

Your honor, there is a continuation on the answer, I did not notice if he uttered any
word because immediately I ran away.

ATTY. BARRERA:

Anyway, let it stay in the record.

COURT:

Proceed.

ATTY. BARRERA:

Q By the way, how many times (did) you saw that man on top of the woman stabbed
that woman?

A That was the first time when he raised his hand and stabbed her then I ran away.

Q And so, you did not notice him how many times that person stabbed the woman?

A No, sir.

Q At the time she was stabbed did you hear any voice being uttered.

A I heard as if there was a sound like a moan then I ran away.34

The testimony of Lagud positively identifying accused-appellants as the perpetrators of the dastardly
crime was corroborated in its material points by the testimonies of the other prosecution witnesses.
The prosecution had sufficiently established that accused-appellants were together and were
drinking liquor at the early morning of September 23, 1994; Lagud saw them along the feeder road in
Barangay Cobe raping a girl and later one of them stabbed her; Bustamante saw them boisterously
laughing near the fishpond where the body of Helen was found; Rafael confirmed that Helen took
that route on the way to their sister's house for the "milagrosa;" Rafael met accused-appellants, who
were all drunk, along the feeder road while she was on her way to her sister's house and; when it
was found on September 26, 1994, Helen's body had already been lifeless for more than seventy-
two hours.
In light of the positive identification and the other strong corroborative evidence, the trial court
properly gave scant consideration to accused-appellants' defense of denial and alibi. Alibi is
concededly one of the weakest defenses in criminal cases. It cannot prevail over, and is worthless in
the face of, positive identification by credible witnesses that the accused perpetrated the crime.35

Aside from accused-appellants who expectedly gave self-serving testimonies, the defense presented
other witnesses, mainly relatives of accused-appellants, to establish that they were not at the scene
of the crime at the time of its commission. Unfortunately, alibi becomes less plausible when it is
corroborated by friends and relatives who may then not be impartial witnesses.36 On the other hand,
the defense failed to impute any ill motive on the part of the prosecution witnesses to testify falsely
against accused-appellants.

Moreover, accused-appellants' defense of alibi cannot be given credence considering that they
themselves admit their proximity to the scene of the crime at the time that it occurred. Accused-
appellants Plana and Banday claimed that they were at the time at the house of accused-appellant
Plana's relatives in Barangay Cobe. Accused-appellants Saldevea and Perayra insisted that they
were then in the house of Monina Saldevea in Barangay Cobe. It must be noted that the rape and
killing of Helen was committed in the feeder road also in Barangay Cobe.

For alibi to prosper, the following must be established: (a) the presence of accused-appellant in
another place at the time of the commission of the offense and; (b) physical impossibility for him to
be at the scene of the crime.37Accused-appellants miserably failed to satisfy these requisites.
Considering that they admit that they were all in Barangay Cobe, where Helen was raped and
subsequently killed, it cannot be said that it was physically impossible for them to have committed
the crime.

Accused-appellants tried to discredit Lagud by making much of the fact that he did not immediately
disclose what he witnessed to the authorities. This contention hardly destroys the testimony of
Lagud and his credibility as a witness. As Lagud explained on cross-examination, he was afraid that
accused-appellants would harm him had they known that he saw them commit the crime.38 Besides,
as consistently held by this Court, there is no standard form of the human behavioral response to a
startling or frightful experience and delay in bringing up the matter to the authorities do not destroy
the veracity and credibility of the testimony offered. The Court takes judicial notice of some people's
reluctance to be involved in criminal trials. Failure to volunteer what one knows to law enforcement
officials does not necessarily impair a witness' credibility.39

In obvious attempt to evade the capital penalty of death, accused-appellants opine that granting
arguendo that they are guilty of any crime, the crime is only murder because the rape of Helen
allegedly had not been sufficiently established. This argument is untenable. The evidence on record
indubitably establish that, while the other accused-appellants forcibly held Helen, accused-appellant
Banday had carnal knowledge of her. Thereafter, they killed her. Lagud categorically testified on this
fact.40 The findings of the medico-legal corroborate Lagud's testimony, thus:

Q In entry No. 14, vagina, introitus can easily insert 2 fingers/Hymen with lacerations 3
and 9 o'clock (old laceration) and on the state of decomposition. In that state of
decomposition of the victim how were you able to determine the laceration of the hymen of
the said victim?

A Actually, what I did I asked help from the owner of the Funeral Homes to spread the
thigh of the victim so that I can easily see the inside of the vagina. Upon opening, I can easily
insert my two fingers because of that I tried to spread the vaginal canal I saw three (3)
 lacerations, I have also seen blood clotting in that area but one reason that I can easily insert
may two (2) fingers is because the victim was already in the state of decomposition.

xxx xxx xxx

Q Doctor, you said it could have been caused by the laceration that you found which is
6x9, in what or what could have caused the vaginal laceration?

A In the vagina, the laceration in the hymen is caused only by sexual intercourse. If the
female is a virgin, it could have been caused by sexual intercourse.41

In fine, accused-appellants' guilt for the crime of rape with homicide had been proved beyond
reasonable doubt in this case. Further, the trial court rightly appreciated the existence of conspiracy
among the accused-appellants. Their individual acts, taken as a whole, revealed that they shared a
common design to rape and kill Helen. They acted in unison and cooperation to achieve the same
unlawful objective.42 The principle that the act of one is the act of all is applicable to accused-
appellants in this case.

With respect to the second issue raised by accused-appellants, i.e., they were detained without
judicial order and prior to the filing of the information, suffice it to say, that they already waived their
right to question the irregularity, if any, in their arrest.43 Accused-appellants respectively entered a
plea of "not guilty" at their arraignment.44 By so pleading, they submitted to the jurisdiction of the trial
court, thereby curing any defect in their arrest, for the legality of an arrest affects only the jurisdiction
of the court over their persons.45

Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, reads:

Art. 335 When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

1. By using force and intimidation;

2. . . .;

3. . . . .

xxx xxx xxx

Whey by reason or on occasion of the rape, a homicide is committed, the penalty shall be
death.

xxx xxx xxx

Accused-appellants' guilt for the crime of rape with homicide having been established beyond
reasonable doubt, the imposition of the penalty of death upon them is warranted. Four members of
the Court maintain their position that Republic Act No. 7659, insofar as it prescribes the death
penalty, is unconstitutional; nevertheless they submit to the ruling of the Court, by majority vote, that
the law is constitutional and the death penalty should be accordingly imposed.

However, there is need to modify the damages awarded to the heirs of Helen by the trial court. In
addition to the sum of P25,000.00 as actual damages, the trial court awarded to the heirs of Helen
the sum of P50,000.00 as civil indemnity. This amount should be increased in consonance with
prevailing jurisprudence 46 fixing the civil indemnity in cases of rape with homicide at P100,000.00.
The Court, likewise, finds it proper to award the sum of P50,000.00 as moral damages. The award of
moral damages may be made to the heirs of the victim in a criminal proceeding without need of
proof. The fact that they suffered the trauma of mental or physical and psychological sufferings
which constitute the basis for moral damages under the Civil Code are too obvious to still require
recital thereof at trial.47

WHEREFORE, the decision of the Regional Trial Court, Branch 15, Roxas City finding accused-
appellants Antonio Plana, Edgardo Perayra, Rene Saldevea and Richard Banday, guilty of Rape
with Homicide under Article 335 of the Revised Penal Code, as amended by Republic act No. 7659,
and imposing upon them the supreme penalty of Death is AFFIRMED with the MODIFICATION that
said accused-appellants are hereby ordered, jointly and severally, to pay the heirs of Helen Perote
the amounts of P100,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as
actual damages.

Let the records of this case be forwarded to the Office of the President upon finality of this decision
for possible exercise of executive clemency in accordance with Article 83 of the Revised Penal
Code, as amended by Section 25 of Republic Act No. 7659.

SO ORDERED.

G.R. No. 137457 November 21, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROSAURO SIA y DICHOSO, JOHNNY BALALIO y DEZA, JIMMY PONCE y TOL and JOHN DOE
@ PEDRO MUÑOZ (at large), accused-appellants.

YNARES-SANTIAGO, J.:

Christian Bermudez was beaten to death and the taxicab he was driving was taken by the
assailants. His lifeless body, wrapped in a carton box, was recovered several days later in a
fishpond in Meycauayan, Bulacan. For the felonies, the above-named accused were indicted for
violation of R.A. 6539, otherwise known as the Anti-Carnapping Law, and Murder in two (2) separate
Informations, to wit:

Criminal Case No. Q-95-63962 for Violation of the Anti-Carnapping Law:

That on or about August 23, 1995, in the City of Quezon, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, herein accused, conspiring, confederating and
mutually helping one another did then and there willfully, unlawfully and feloniously take,
steal, and carry away one (1) motor vehicle described as Toyota Tamaraw FX; Motor No.
2C-2983302; Chassis No. CF50-0014375; Plate No. NYT-243, owned by BIENVENIDO
CRUZ, killing the driver Christian Bermudez in the process, to the damage and prejudice of
the registered owner thereof and the heirs of Christian Bermudez.

CONTRARY TO LAW.1
 Criminal Case No. Q-95-63963 for Murder:

That on or about 23 August 1995, in the City of Quezon, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused with intent to kill
qualified by treachery, evident premeditation, taking advantage of superior strength,
employing means to weaken the defense or of means of persons to insure or afford impunity,
conspiring, confederating and mutually helping one another, did then and there willfully,
unlawfully and feloniously attack, assault and use violence upon the person of CHRISTIAN
BERMUDEZ by beating him on the head and other parts of the body, thereby causing his
death.

CONTRARY TO LAW.2

At the arraignment, only Johnny Balalio y Deza and Jimmy Ponce y Tol appeared and pleaded "Not
Guilty."3 The third accused, Rosauro Sia y Dichoso, escaped from police custody while on the way to
the hospital for treatment.4As a consequence, the two (2) cases were subsequently consolidated and
jointly tried against accused Johnny Balalio and Jimmy Ponce only.

After trial, the court a quo rendered judgment against both accused imposing upon them the
supreme penalty of Death, thus:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused

Johnny Balalio and Jimmy Ponce GUILTY beyond reasonable doubt as principals by
conspiracy of violation of R.A. No. 6539, as amended and hereby sentences them to suffer
the penalty of DEATH.

Accused are likewise adjudged jointly and severally [liable] to pay to Agripina Bermudez, the
mother of the deceased Christian Bermudez the sums of:

a. P50,000.00 as compensatory damages for the death of Christian Bermudez;

b. P200,000.00 as burial and other expenses incurred in connection with the death of
Christian; and

c. P3,307,199.60 (2/3 x [80-27] x 300 per day x 26 days (excluding Sundays) x 12

months) representing the loss of earning capacity of Christian Bermudez as taxi
driver.

Costs against accused.

The cases of accused Rosauro Sia who escaped from custody before he was arraigned and
as against Peter Doe who was never apprehended and whose identity has never been
known are hereby ordered ARCHIVED, subject to activation when they are arrested and
brought before the bar of justice.

SO ORDERED.5 itc-alf

On automatic review before this Court, accused-appellants raised the lone assigned error that:

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANTS FOR VIOLATION

OF RA 6539 (ANTI-CARNAPPING LAW) SOLELY ON THE BASIS OF THE EXTRA-JUDICIAL
CONFESSIONS OF ACCUSED ROSAURO SIA AND JIMMY PONCE (EXHIBITS C AND D,
RESPECTIVELY) WHICH ARE INADMISSIBLE IN EVIDENCE.6

The facts as summed up by the trial court are as follows: itc-alf

The vehicle claimed as carnapped is registered in the name of complainant Bienvenido C.

Cruz of No. 1125 Primero de Mayo Street, Tondo, Manila7 and operated as a taxi being Unit
2 of KIRBEE TAXI and bearing the following description:

Toyota Tamaraw
Make/Type : FX Wagon
Motor Number : 2-C 2983302
Chassis No. : CF 50-0014375
Plate No. : NYT-243
Color : Maroon

The said taxi was taken from the garage and driven by its regular driver, Christian Bermudez,
the alleged murder victim at about 6:00 a.m. on August 23, 1995. The taxi was last seen at
the vicinity of the Pegasus Night Club in Quezon City at about 10:30 p.m. on the said date
with an unidentified passenger who surfaced later as the accused Rosauro Sia, whose true
name is allegedly Antonio Labrador (Mang Tony) and who resides at San Francisco Del
Monte. Accused Rosauro Sia appears to have gypped driver Christian Bermudez to service
him the following day (August 24, 1995) in the morning and to be paid P150.00 per hour
which was apparently accepted because Rosauro gave instructions to accused Johnny
Balalio and Jimmy Ponce to wait for him (Christian) that following morning. When Christian
returned to Sia's residence in San Francisco Del Monte that morning, he was told to come
back in the afternoon because that was the instruction given him by accused Rosauro Sia.
When Christian returned in the afternoon in the Sia residence, he was asked to get inside.
As soon as he alighted from the Tamaraw FX taxi he was driving, his hands were tied by
Johnny Balalio and was handed to a certain "Pedro", the accused Peter Doe who has not
been arrested and who told Johnny Balalio and Johnny (sic) Ponce "Ako na'ng bahala dito".
Christian was taken to accused Rosauro and shortly afterwards, the latter was seen lugging
with him a big carton box from which blood was dripping. Accused Jimmy Ponce saw
Rosauro hand the carton-wrapped lifeless body of Christian inside the carnapped FX taxi.
Before leaving with the lifeless body of Christian loaded in the taxi, accused Sia gave
P3,000.00 each to Jimmy Ponce, Johnny Balalio and "Pedro" and admonished them not to
say anything about what happened. The ring taken from Christians8 was given to accused
Jimmy Ponce by Rosauro Sia.

On August 26, 1995, the lifeless body of Christian Bermudez was found and retrieved from a
fishpond in Meycauayan, Bulacan. This fact was broadcast over the radio and, after hearing
the same, Agripina Bermudez went to see the lifeless body retrieved from the fishpond and
confirmed it to be that of Christian, whom she claims is her eldest son who was earning
about P650.00 a day as a taxi driver.

Photographs were taken on the carton-wrapped body of Christian including one position
which shows the latter's body.9

Dr. Benito Caballero, Medico Legal Officer of Bulacan, conducted a postmortem examination
of the deceased body of Christian and found that the latter's death was due to shock caused
by massive external and intracranial hemorrhage on account of multiple lacerations on the
 head and fracture of the skull due to use of hard object, possibly iron, for which he issued
certificates of death and postmortem death certificate.10

In the meantime, Bienvenido Cruz, the owner of the carnapped vehicle, reported to the police
authorities in Camp Crame the loss of his taxi.11 On September 21, 1995, at about 10:30
p.m., the carnapped taxi was intercepted being driven by accused Rosauro Sia, who was
immediately placed in custody of the anti-carnapping authorities. While in custody, Rosauro
Sia managed to escape but he was recaptured on November 15, 1995 by the manhunt team
created for that purpose. As accused Rosauro Sia claimed that he bought the hot car from
his co-accused Johnny Balalio and Jimmy Ponce, the latter were picked up from their
residence in Baseco, Isla Tawid, Port Area, Tondo, Manila and investigated. Sworn
Statement of the accused Rosauro Sia and Jimmy Ponce were taken12 narrating their
respective participations such as Sia's instruction to Jimmy to guard his (Sia's) gate to deter
passersby from snooping around and describing what transpired inside Sia's residence at
San Francisco Del Monte when Christian was tied and killed. The Sworn Statement of
Bienvenido Cruz, owner of the missing vehicle, was likewise taken. On the basis of the
sworn statements of accused Rosauro Sia and Jimmy Ponce, Dr. Benito Caballero,
Provincial Health Officer of Bulacan, together with the Certificate of Registration of the FX
Taxi and the Death and Postmortem Certificates mentioned heretofore, the Special
Operations Unit, Traffic Management Command, PNP, Camp Crame, referred the matter to
the authorities of the Department of Justice who, after finding probable cause in the
preliminary investigation, filed these cases of Violation of R.A. 6539, as amended, and of
Murder against the above-named accused which were consolidated together in this Branch
for joint trial.13

In their lone assigned error, accused-appellants contend in sum that the extra-judicial confessions of
accused Rosauro Sia and Johnny Balalio, which the trial court heavily relied upon, are inadmissible
in evidence since they were executed in violation of their right to counsel. Specifically, accused-
appellants argue that the said extra-judicial statements are inadmissible because they were obtained
without compliance with the requirements of the law for their admissibility.14

The Solicitor General agrees, stating that during the custodial investigation, Ponce and Sia were not
assisted by counsel as required by the Constitution. The trial court's finding that Sia and Ponce were
assisted by Prosecutor Pormento when they executed their extra-judicial confessions did not meet
the requirement of the law. The Solicitor General further contends that, during his testimony, Ponce
vehemently denied having voluntarily executed his alleged statement; rather, he maintained that he
was coerced to sign the same and that he did not even know its contents.

Extra-judicial confessions must conform to the requirements of the Constitution.15 Indeed, a

suspect's confession, whether verbal or non-verbal when taken without the assistance of counsel
without a valid waiver of such assistance regardless of the absence of such coercion or the fact that
it had been voluntarily given,16 is inadmissible in evidence,17 even if appellant's confession were
gospel truth.18

Be that as it may, the inadmissibility of the extra-judicial statements of Sia and Ponce will not
absolve accused-appellants from criminal liability because, as pointed out by the Solicitor General,
there still is independent evidence to establish their authorship of the victim's killing on the occasion
of the carnapping. The Solicitor General asserts that while there was no prosecution witness who
positively identified accused-appellants as particeps criminis, their culpability was nonetheless
proven through circumstantial evidence.

We agree.
Direct evidence of the commission of the crime is not the only matrix wherefrom a court may draw its
conclusions and findings of guilt.19 The rules on evidence20 and case law sustain the conviction of the
accused through circumstantial evidence when the following requisites concur: (1) there must be
more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3)
the combination of all circumstances is such as to produce a conviction beyond reasonable doubt of
the guilt of the accused.21

A circumspect scrutiny of the testimonies of the witnesses of both prosecution and defense shows
adequate evidentiary bases to establish the aforementioned circumstances. @lawphil.net

First, when the police apprehended accused Rosauro Sia while he was in possession of the
carnapped vehicle, he immediately pointed to accused-appellants as his accomplices in taking away
the victim's vehicle.22 Notably, accused-appellants claimed to have met Sia for the first time on
August 24, 1995, when Sia supposedly passed by them looking for a certain person. They saw Sia
for the second time on November 15, 1995, when Sia and some policemen came to their place to
arrest them. If accused-appellants did not actually participate in the perpetration of the crime, it
certainly defies reason why Sia would implicate them in so serious an offense when they were
practically strangers to him. In this regard, it must be borne in mind that the fact that a witness may
have been a co-conspirator in the commission of the offense is not in itself sufficient to dilute the
credibility of or, much less, be a ground to disregard altogether his testimony.23 Indeed:

By way of exception, the testimony of a co-conspirator may, even if uncorroborated, be

sufficient as when it is shown to be sincere in itself, because given unhesitatingly and in a
straightforward manner, and is full of details which by their nature could not have been the
result of deliberate afterthought.24

Second, defense witness Porferio Fernando testified that accused-appellants were with Rosauro Sia
from August 25-28, 1995.25 When accused-appellants came back on August 28, 1995; they informed
him that they were to guard a bodega owned by Sia, which contained a carnapped vehicle.26 This
testimony of Fernando confirms the fact that accused-appellants were in the company of Rosauro
Sia during that critical period when the crime was perpetrated.

Third, upon his arrest, accused-appellant Jimmy Ponce voluntarily surrendered to the police
authorities a ring,27admittedly belonging to the victim.28 It is a well-settled rule that when a person is
found in possession of a thing taken in the doing of a recent wrongful act, he is presumed to be the
taker and doer of the whole act.29 Thus, when property stolen is found in the possession of a person
who is unable to give a satisfactory explanation of his possession thereof, he may be deemed to
have committed the crime of theft of said property.30 More apropos to the peculiar facts prevailing
herein is the case of People v. Prado,31 where we stated:

In the absence of an explanation of how one has come into the possession of stolen effects
belonging to a person wounded and treacherously killed, he must necessarily be considered
the author of the aggression and death of the said person and of the robbery committed on
him.

The application of this presumption validly applies to a case of carnapping for, indeed, the concept of
unlawful taking in theft, robbery and carnapping is the same and, had it not been for the enactment
of the Anti-Carnapping Act, the unlawful taking of the motor vehicle would certainly fall within the
purview of either theft or robbery.32
All told, the Court finds no reason to reverse the ruling of the court a quo insofar as the crimes were
committed. What remains to be determined is the propriety of the penalty imposed on accused-
appellants.@lawphil .net

In connection with the penalty imposed, the Solicitor General invites the Court's attention to the
erroneous imposition by the trial court of death on the accused-appellants. He points out that while
the sentence was meted upon a finding that the aggravating circumstances of treachery, abuse of
superior strength and evident premeditation attended the commission of the crime, these were not
duly established in the case at bar.

The observation is well-taken. Qualifying and aggravating circumstances which are taken into
consideration for the purpose of increasing the degree of the penalty imposed must be proven with
equal certainty as the commission of the act charged as criminal offense.33

With regard to alevosia, there is treachery when the offender commits any of the crimes against
persons, employing means, methods or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the defense which the offended
party might make.34 Treachery is considered present when: (1) there is employment of means of
execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the
means or method of execution was deliberately or consciously adopted by the culprit.35 For treachery
to be appreciated, it must be present and seen by the witness right at the inception of the
attack.36 Where no particulars are known as to how the killing began, its perpetration with treachery
cannot merely be supposed.37

In this case, there was neither a description of how the attack was commenced — whether it was
sudden, unexpected and whether the victim was caught totally unaware — nor has there been a
showing that the method of execution in the commission of the crime was consciously or deliberately
adopted by the malefactors. To reiterate, alevosia cannot be established where no particulars are
known regarding the manner in which the aggression was carried out or how it developed.38 It must
be based on positive or conclusive proof, not mere suppositions or speculations,39 and must be
proved as clearly and as convincingly as the killing itself.40

Similarly, the elements of evident premeditation must be established with equal certainty as the
criminal act itself before it can be appreciated as a qualifying circumstance.41 These elements are:
(1) the time when the accused determined to commit the crime; (2) an overt act manifestly indicating
that they clung to their determination to commit the crime; and (3) a sufficient lapse of time between
the decision to commit the crime and the execution thereof to allow the accused to reflect upon the
consequences of their act.42 The essence of evident premeditation is that the execution of the
criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal
intent within a space of time sufficient to arrive at a calm judgment.43

In this case, there is no showing that the killing of Christian Bermudez was the product of cool
thought and reflection. There is absolutely no showing how and when the plan was hatched or how
long a time had elapsed before the crime was carried out. On the contrary, what appears very much
evident is that he was killed on the occasion of the carnapping itself. Without such evidence, mere
presumptions and inferences, no matter how logical and probable, will not suffice to warrant the
appreciation of this qualifying circumstance of evident premeditation.44

Abuse of superior strength cannot likewise be appreciated. In People v. Flores,45 this Court pointed
out that this aggravating circumstance necessitates the showing of the relative disparity in physical
characteristics, usually translating into the age, gender, the physical size and the strength of the
aggressor and the victim. There is no proof that accused-appellant utilized any notorious inequality
to his advantage. In other words, mere superiority in number is not enough to constitute superior
strength.46

To be appreciated as a qualifying circumstance, what should be considered is not that there were
three or more assailants of one victim, but whether the aggressors purposely took advantage of their
combined strength in order to consummate the offense.47 In this case, the prosecution did not
present any direct proof that there was a deliberate intent on the part of accused-appellants to take
advantage of the obvious inequality of force between them and the victim.

In the absence of any qualifying or aggravating circumstances which would merit the imposition of
death, the proper imposable penalty should be reclusion perpetua, pursuant to Section 14 of R.A.
No. 6539, viz:

Penalty for Carnapping — Any person who is found guilty of carnapping, as the term is
defined in Section Two of this Act, shall, irrespective of the value of the motor vehicle taken,
be punished by imprisonment of not less than fourteen years and eight months and not more
than seventeen years and four months, when the carnapping is committed without violence
or intimidation of persons, or force upon things; and by imprisonment for not less than
seventeen years and four months and not more than thirty years, when the carnapping is
committed by means of violence against or intimidation of any person, or force upon things;
and the penalty of reclusion perpetua to death shall be imposed when the owner, driver or
occupant of the carnapped motor vehicle is killed or raped in the course of the commission of
the carnapping or on the occasion thereof. (Italics ours)

On the other hand, Article 63 (2) of the Revised Penal Code states: itc-alf

Rules for the application of indivisible penalties. — In all cases in which the law prescribes a
single indivisible penalty, it shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the commission of the deed. @law phil.net

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the
following rules shall be observed in the application thereof:

xxx xxx xxx

2. When there are neither mitigating nor aggravating circumstances in the commission of the
deed, the lesser penalty shall be applied.itc-alf

Anent the civil indemnity award, this Court finds the amount of P50,000.00 as death indemnity
proper, following prevailing jurisprudence,48 and in line with controlling policy.49 The award of civil
indemnity may be granted without any need of proof other than the death of the victim.50 Though not
awarded by the trial court, the victim's heirs are likewise entitled to moral damages, pegged at
P50,000.00 by controlling case law,51 taking into consideration the pain and anguish of the victim's
family52 brought about by his death.53

However, the award of P200,000.00 as burial and other expenses incurred in connection with the
death of the victim must be deleted. The records are bereft of any receipt or voucher to justify the
trial court's award of burial and other expenses incurred in connection with the victim's death. The
rule is that every pecuniary loss must be established by credible evidence before it may be
awarded.54 Credence can be given only to claims which are duly supported by receipts or other
credible evidence.55
The trial court was correct in awarding damages for loss of earning capacity despite the non-
availability of documentary evidence.56 Damages representing net earning capacity have been
awarded by the Court based on testimony in several cases.57 However, the amount of the trial court's
award needs to be recomputed and modified accordingly.

In determining the amount of lost income, the following must be taken into account: (1) the number
of years for which the victim would otherwise have lived; and (2) the rate of the loss sustained by the
heirs of the deceased. The second variable is computed by multiplying the life expectancy by the net
earnings of the deceased, meaning total earnings less expenses necessary in the creation of such
earnings or income less living and other incidental expenses. Considering that there is no proof of
living expenses of the deceased, net earnings are computed at fifty percent (50%) of the gross
earnings.58 The formula used by this Court in computing loss of earning capacity is:

Net Earning = [2/3 x (80 - age at time of death) x

Capacity (gross annual income -
reasonable and necessary living
expenses)]59

In this case, the Court notes that the victim was 27 years old at the time of his death and his mother
testified that as a driver of the Tamaraw FX taxi, he was earning P650.00 a day.60 Hence, the
damages payable for the loss of the victim's earning capacity is computed thus:

Gross Annual = P650 x 261 working days in a

Earnings = year
P169,650.00
Net Earning = 2/3 x (80-27) x [P169,650.00 -
Capacity = P84,825.00]
= 35.33 x 84,825.00
P2,996,867.20

Based on the foregoing computation, the award of the trial court with regard to lost income is thus
modified accordingly.

WHEREFORE, the decision of the Regional Trial Court of Quezon City, Branch 85, in Criminal
Cases No. Q-95-63963, finding accused-appellant guilty beyond reasonable doubt of violation of
Republic Act No. 6539 (The Anti-Carnapping Law) is AFFIRMED with MODIFICATIONS. Accused-
appellants are SENTENCED to suffer the penalty of reclusion perpetua; and are ORDERED, jointly
and severally, to pay the heirs of the victim Christian Bermudez the sum of P50,000.00 as civil
indemnity, the sum of P50,000.00 as moral damages, and the sum of P2,996,867.20 representing
lost earnings. The award of P200,000.00 as burial and other expenses is DELETED for lack of
substantial proof.

SO ORDERED. itc-alf

G.R. No. 95582 October 7, 1991

DANGWA TRANSPORTATION CO., INC. and THEODORE LARDIZABAL y

MALECDAN, petitioners,
vs.
COURT OF APPEALS, INOCENCIA CUDIAMAT, EMILIA CUDIAMAT BANDOY, FERNANDO
CUDLAMAT, MARRIETA CUDIAMAT, NORMA CUDIAMAT, DANTE CUDIAMAT, SAMUEL
CUDIAMAT and LIGAYA CUDIAMAT, all Heirs of the late Pedrito Cudiamat represented by
Inocencia Cudiamat, respondents.

Francisco S. Reyes Law Office for petitioners.

Antonio C. de Guzman for private respondents.

REGALADO, J.:

On May 13, 1985, private respondents filed a complaint 1 for damages against petitioners for the
death of Pedrito Cudiamat as a result of a vehicular accident which occurred on March 25, 1985 at
Marivic, Sapid, Mankayan, Benguet. Among others, it was alleged that on said date, while petitioner
Theodore M. Lardizabal was driving a passenger bus belonging to petitioner corporation in a
reckless and imprudent manner and without due regard to traffic rules and regulations and safety to
persons and property, it ran over its passenger, Pedrito Cudiamat. However, instead of bringing
Pedrito immediately to the nearest hospital, the said driver, in utter bad faith and without regard to
the welfare of the victim, first brought his other passengers and cargo to their respective destinations
before banging said victim to the Lepanto Hospital where he expired.

On the other hand, petitioners alleged that they had observed and continued to observe the
extraordinary diligence required in the operation of the transportation company and the supervision
of the employees, even as they add that they are not absolute insurers of the safety of the public at
large. Further, it was alleged that it was the victim's own carelessness and negligence which gave
rise to the subject incident, hence they prayed for the dismissal of the complaint plus an award of
damages in their favor by way of a counterclaim.

On July 29, 1988, the trial court rendered a decision, effectively in favor of petitioners, with this
decretal portion:

IN VIEW OF ALL THE FOREGOING, judgment is hereby pronounced that Pedrito Cudiamat
was negligent, which negligence was the proximate cause of his death. Nonetheless,
defendants in equity, are hereby ordered to pay the heirs of Pedrito Cudiamat the sum of
P10,000.00 which approximates the amount defendants initially offered said heirs for the
amicable settlement of the case. No costs.

SO ORDERED. 2

in CA-G.R. CV No. 19504 promulgated on August 14,

Not satisfied therewith, private respondents appealed to the Court of Appeals which, in a decision 3

1990, set aside the decision of the lower court, and ordered petitioners to pay private respondents:

1. The sum of Thirty Thousand (P30,000.00) Pesos by way of indemnity for death of the
victim Pedrito Cudiamat;

2. The sum of Twenty Thousand (P20,000.00) by way of moral damages;

3. The sum of Two Hundred Eighty Eight Thousand (P288,000.00) Pesos as actual and
compensatory damages;

4. The costs of this suit. 4

 hence this petition with the central issue herein
Petitioners' motion for reconsideration was denied by the Court of Appeals in its resolution dated October 4, 1990, 5

being whether respondent court erred in reversing the decision of the trial court and in finding
petitioners negligent and liable for the damages claimed.

It is an established principle that the factual findings of the Court of Appeals as a rule are final and
may not be reviewed by this Court on appeal. However, this is subject to settled exceptions, one of
which is when the findings of the appellate court are contrary to those of the trial court, in which case
a reexamination of the facts and evidence may be undertaken. 6

In the case at bar, the trial court and the Court of Appeal have discordant positions as to who between the petitioners an the victim is guilty of
negligence. Perforce, we have had to conduct an evaluation of the evidence in this case for the prope calibration of their conflicting factual findings and
legal conclusions.

The lower court, in declaring that the victim was negligent, made the following findings:

This Court is satisfied that Pedrito Cudiamat was negligent in trying to board a moving vehicle, especially with one of his hands holding an umbrella. And, without having given the driver or the conductor any indication
that he wishes to board the bus. But defendants can also be found wanting of the necessary diligence. In this connection, it is safe to assume that when the deceased Cudiamat attempted to board defendants' bus, the
vehicle's door was open instead of being closed. This should be so, for it is hard to believe that one would even attempt to board a vehicle (i)n motion if the door of said vehicle is closed. Here lies the defendant's lack
of diligence. Under such circumstances, equity demands that there must be something given to the heirs of the victim to assuage their feelings. This, also considering that initially, defendant common carrier had made
overtures to amicably settle the case. It did offer a certain monetary consideration to the victim's heirs. 7

However, respondent court, in arriving at a different opinion, declares that:

From the testimony of appellees'own witness in the person of Vitaliano Safarita, it is evident that the subject bus was at full stop when the
victim Pedrito Cudiamat boarded the same as it was precisely on this instance where a certain Miss Abenoja alighted from the bus.
Moreover, contrary to the assertion of the appellees, the victim did indicate his intention to board the bus as can be seen from the testimony
of the said witness when he declared that Pedrito Cudiamat was no longer walking and made a sign to board the bus when the latter was
still at a distance from him. It was at the instance when Pedrito Cudiamat was closing his umbrella at the platform of the bus when the latter
made a sudden jerk movement (as) the driver commenced to accelerate the bus.

Evidently, the incident took place due to the gross negligence of the appellee-driver in prematurely stepping on the accelerator and in not waiting for the passenger to first secure his seat especially so when we take
into account that the platform of the bus was at the time slippery and wet because of a drizzle. The defendants-appellees utterly failed to observe their duty and obligation as common carrier to the end that they should
observe extra-ordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them according to the circumstances of each case (Article 1733, New Civil Code). 8

After a careful review of the evidence on record, we find no reason to disturb the above holding of the Court of Appeals. Its aforesaid findings are
supported by the testimony of petitioners' own witnesses. One of them, Virginia Abalos, testified on cross-examination as follows:

Q It is not a fact Madam witness, that at bunkhouse 54, that is before the place of the incident, there is a crossing?
 A The way going to the mines but it is not being pass(ed) by the bus.

Q And the incident happened before bunkhouse 56, is that not correct?

A It happened between 54 and 53 bunkhouses. 9

The bus conductor, Martin Anglog, also declared:

Q When you arrived at Lepanto on March 25, 1985, will you please inform this Honorable Court if there was anv unusual incident that
occurred?

A When we delivered a baggage at Marivic because a person alighted there between Bunkhouse 53 and 54.

Q What happened when you delivered this passenger at this particular place in Lepanto?

A When we reached the place, a passenger alighted and I signalled my driver. When we stopped we went out because I saw an umbrella
about a split second and I signalled again the driver, so the driver stopped and we went down and we saw Pedrito Cudiamat asking for help
because he was lying down.

Q How far away was this certain person, Pedrito Cudiamat, when you saw him lying down — from the bus how far was he?

A It is about two to three meters.

Q On what direction of the bus was he found about three meters from the bus, was it at the front or at the back?

A At the back, sir. 10 (Emphasis supplied.)

The foregoing testimonies show that the place of the accident and the place where one of the passengers alighted were both between Bunkhouses 53
and 54, hence the finding of the Court of Appeals that the bus was at full stop when the victim boarded the same is correct. They further confirm the
conclusion that the victim fell from the platform of the bus when it suddenly accelerated forward and was run over by the rear right tires of the vehicle,
as shown by the physical evidence on where he was thereafter found in relation to the bus when it stopped. Under such circumstances, it cannot be
said that the deceased was guilty of negligence.

The contention of petitioners that the driver and the conductor had no knowledge that the victim would ride on the bus, since the latter had supposedly not manifested his intention to board the same, does not merit consideration. When
the bus is not in motion there is no necessity for a person who wants to ride the same to signal his intention to board. A public utility bus, once it stops, is in effect making a continuous offer to bus riders. Hence, it becomes the duty of
the driver and the conductor, every time the bus stops, to do no act that would have the effect of increasing the peril to a passenger while he was attempting to board the same. The premature acceleration of the bus in this case was a
breach of such duty. 11

It is the duty of common carriers of passengers, including common carriers by railroad train, streetcar, or motorbus, to stop their conveyances a reasonable length of time in order to afford passengers an opportunity to board and enter,
and they are liable for injuries suffered by boarding passengers resulting from the sudden starting up or jerking of their conveyances while they are doing so. 12
Further, even assuming that the bus was moving, the act of the victim in boarding the same cannot be considered negligent under the circumstances. As clearly explained in the testimony of the aforestated witness for petitioners,
Virginia Abalos, th bus had "just started" and "was still in slow motion" at the point where the victim had boarded and was on its platform. 13

An ordinarily prudent person would have made

It is not negligence per se, or as a matter of law, for one attempt to board a train or streetcar which is moving slowly. 14

the attempt board the moving conveyance under the same or similar circumstances. The fact that
passengers board and alight from slowly moving vehicle is a matter of common experience both the
driver and conductor in this case could not have been unaware of such an ordinary practice.

The victim herein, by stepping and standing on the platform of the bus, is already considered a
passenger and is entitled all the rights and protection pertaining to such a contractual relation.
Hence, it has been held that the duty which the carrier passengers owes to its patrons extends to
persons boarding cars as well as to those alighting therefrom. 15

Common carriers, from the nature of their business and reasons of public policy, are bound to observe extraordina diligence for the safety of the passengers transported by the according to all the circumstances of each case. 16
A
common carrier is bound to carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence very cautious persons, with a due regard for all the
circumstances. 17
It has also been repeatedly held that in an action based on a contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible to pay the damages sought by
the passenger. By contract of carriage, the carrier assumes the express obligation to transport the passenger to his destination safely and observe extraordinary diligence with a due regard for all the circumstances, and any injury that
might be suffered by the passenger is right away attributable to the fault or negligence of the carrier. This is an exception to the general rule that negligence must be proved, and it is therefore incumbent upon the carrier to prove that it
has exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the Civil Code. 18

Moreover, the circumstances under which the driver and the conductor failed to bring the gravely injured victim immediately to the hospital for medical
treatment is a patent and incontrovertible proof of their negligence. It defies understanding and can even be stigmatized as callous indifference. The
evidence shows that after the accident the bus could have forthwith turned at Bunk 56 and thence to the hospital, but its driver instead opted to first
proceed to Bunk 70 to allow a passenger to alight and to deliver a refrigerator, despite the serious condition of the victim. The vacuous reason given by
petitioners that it was the wife of the deceased who caused the delay was tersely and correctly confuted by respondent court:

... The pretension of the appellees that the delay was due to the fact that they had to wait for about twenty minutes for Inocencia Cudiamat to get dressed deserves scant consideration. It is rather scandalous and
deplorable for a wife whose husband is at the verge of dying to have the luxury of dressing herself up for about twenty minutes before attending to help her distressed and helpless husband. 19

Further, it cannot be said that the main intention of petitioner Lardizabal in going to Bunk 70 was to inform the victim's family of the mishap, since it was not said bus driver nor the conductor but the companion of the victim who informed

In fact, it was only after the refrigerator was unloaded that one of the passengers thought
his family thereof. 20

of sending somebody to the house of the victim, as shown by the testimony of Virginia Abalos again,
to wit:

Q Why, what happened to your refrigerator at that particular time?

A I asked them to bring it down because that is the nearest place to our house and when I
went down and asked somebody to bring down the refrigerator, I also asked somebody to
call the family of Mr. Cudiamat.

COURT:

Q Why did you ask somebody to call the family of Mr. Cudiamat?

A Because Mr. Cudiamat met an accident, so I ask somebody to call for the family of Mr.
Cudiamat.
 Q But nobody ask(ed) you to call for the family of Mr. Cudiamat?

A No sir. 21
With respect to the award of damages, an oversight was, however, committed by respondent Court of Appeals in computing the actual damages based on the gross income of the victim. The rule is that the amount recoverable by the
heirs of a victim of a tort is not the loss of the entire earnings, but rather the loss of that portion of the earnings which the beneficiary would have received. In other words, only net earnings, not gross earnings, are to be considered, that
is, the total of the earnings less expenses necessary in the creation of such earnings or income and minus living and other incidental expenses. 22

We are of the opinion that the deductible living and other expense of the deceased may fairly and reasonably be fixed at P500.00 a month or P6,000.00 a year. In adjudicating the actual or compensatory damages, respondent court
found that the deceased was 48 years old, in good health with a remaining productive life expectancy of 12 years, and then earning P24,000.00 a year. Using the gross annual income as the basis, and multiplying the same by 12 years,
it accordingly awarded P288,000. Applying the aforestated rule on computation based on the net earnings, said award must be, as it hereby is, rectified and reduced to P216,000.00. However, in accordance with prevailing
jurisprudence, the death indemnity is hereby increased to P50,000.00. 23

WHEREFORE, subject to the above modifications, the challenged judgment and resolution of respondent Court of Appeals are hereby AFFIRMED in
all other respects.

SO ORDERED.

G.R. Nos. 137514-15 January 16, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
WILFREDO PANABANG Y BUSNAG, accused-appellant.

VITUG, J.:

It could have indeed been a merry evening for three men unwinding from the rigors of a working day
had not for a single bullet that claimed the life of one of them.

On the night of 04 September 1997, Police Chief Inspector Romeo Castro Astrero of Sison,
Pangasinan, was shot to death. Wilfredo B. Panabang was charged with murder, coupled with illegal
possession of firearm, before the Regional Trial Court, Branch 46, of Urdaneta City. Two separate
accusatory Informations, docketed Criminal Case No. U-9528 and Criminal Case No. U-9529,
respectively, were filed.

"Criminal Case No. U-9528

"That on or about September 4, 1997, in the evening at Poblacion Central, municipality of

Sison, province of Pangasinan and within the jurisdiction of this Honorable Court, the above-
named accused armed with an Armalite Rifle with intent to kill, treachery and evident
premeditation, did, then and there wilfully, unlawfully and feloniously shoot Police Chief
Inspector Romeo Castro Astrero, inflicting upon him a fatal gunshot wound which caused the
instantaneous death of said Police Chief Inspector Romeo Castro Astrero, to the damage
and prejudice of his heirs.

"CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659."1

"Criminal Case No. U-9529

"That on or about September 4, 1997, in the evening at Poblacion Central, municipality of

Sison, province of Pangasinan and within the jurisdiction of this Honorable Court, the above-
 named accused did then and there wilfully, unlawfully and feloniously have in his possession,
control and custody one (1) Armalite Rifle with ammunitions, without first securing the
necessary permit/license to possess the same, which firearm was used in shooting to death
one Police Chief Inspector Romeo Castro Astrero.

"CONTRARY to P.D. 1866 as amended by R.A. 8294."2

The accused pled "not guilty" to both charges when arraigned on 24 September 1998. A joint
hearing commenced at which the prosecution and the defense recited and submitted their respective
cases before the trial court.

Jaime Opilas, a mechanic, owned a motorshop adjoining his house located at the Poblacion Central
of Sison, Pangasinan. On 04 September 1997, around 7:25 p.m., Opilas was having a drink in his
house with Romeo C. Astrero, the former Chief of Police of Sison, Pangasinan, and a certain Ladio
(also referred to as "Eladio" in the transcript of stenographic notes). While the affair was in progress,
there was a sudden burst of gunfire. Opilas heard Astrero say, "I was hit." The gunfire came from the
southern portion of the house and punctured, with three bullet holes, the northwest portion of the
kitchen wall. Turning his head to see where the gunshots had come from, Opilas saw the accused,
from a distance of approximately three meters away, move backwards in a stooping position and
holding a "baby" armalite rifle with its nozzle still pointed to their direction. Opilas promptly took the
.45 caliber pistol from Astrero's clutch bag and began to chase the fleeing accused. In no time, the
latter disappeared into the darkness. Astrero was declared dead on arrival when rushed to the
Rosario District Hospital in Pangasinan by Opilas and some companions.

Noli Salvatierra, a 23-year old tricycle driver, testified that the accused was his last passenger on the
evening of 04 September 1997. Donning a brown jacket, the accused requested to be brought to
Arnes Restaurant, and from there the accused proceeded to Opilas Repair Shop located along the
highway of Poblacion Central, Sison, Pangasinan.

Dr. Mario L. Duque, a resident physician of the Rosario District Hospital in Pangasinan, conducted
the following day an autopsy on the victim's cadaver. In his autopsy report, marked Exhibit "G," he
stated that Astrero's cause of death was "severe internal bleeding due to injured major pulmonary
vessels and pulmonary toleotasis due to injured lung secondary to gunshot."3 Testifying, he declared
that the deceased victim sustained one gunshot wound, and the bullet penetrated his right lung
pulmonary artery which caused massive bleeding in the thoracic cavity.

Dr. Arturo Llavore, a medico-legal officer of the National Bureau of Investigation (NBI), made his own
autopsy of the victim's remains on 13 September 1997 and executed Autopsy Report No. 97-53-
P.4 He concluded that the cause of the victim's death was "hemathorax, right, severe, secondary to
gunshot wound, chest, posterior." He recovered a deformed copper-jacketed bullet, approximately
20 cms., above the right elbow and behind the upper third of the fractured humenes. The slug was
fired from a 5.56 mm. Armalite rifle. It was subsequently referred to the Firearms Investigation
Division (FID) of the NBI for ballistic examination.

NBI Ballistician Marcos P. Libunao examined the deformed copper-jacketed slug extracted from the
victim's body and corroborated Dr. Llavore's testimony that the bullet had been fired from a 5.56 mm
firearm.

SPO2 Jovencio Fajarito, a member of the Philippine National Police ("PNP"), stationed in Sison,
Pangasinan, undertook an investigation on the death of Astrero. He interrogated Noli Salvatierra, the
tricycle driver, who informed him that he drove the accused to the scene of the incident at Barangay
Cauringan on the night of the killing. He said that, on 27 October 1997, Sgt. Colombres submitted to
him pieces of evidence consisting of empty shells of M16,5an envelope,6 and the sketch of the crime
scene.7

SPO2 Romulo Colombres, a police investigator detailed at Barangay Paldit, Sison Sub-Station,
Pangasinan, testified that on 04 September 1997, approximately 7:25 p.m., he received a report on
the shooting incident. He at once repaired to the scene of the shooting incident and recovered four
empty shells fired from a M16 Armalite rifle. The shells were subsequently turned over to Chief
Investigator SPO2 Fajarito.

Police Inspector Leopoldo Rivera, the PNP Chief of Police, in Sison, Pangasinan, testified that,
together with SPO2 Colombres, he went to the crime scene. He instructed the latter to take
photographs, including the trajectory of slugs, around the area.

Police Inspector Romeo Diagan took the statement of Jaime Opilas. In the course of his
investigation, he learned that the accused had boarded the tricycle driven by Noli Salvatierra on the
night of the killing.

Jaime Astrero, the 67-year old father of the victim, stated that the latter's wife, Dolores Astrero, had
spent a total of P184,748.00 for the wake and burial of his son, adding that the victim, a police
officer, was receiving a monthly income of P12,000.00.

SPO4 Rodrigo Escaño, a PNP member detailed at the Firearms and Explosives Unit in Camp
Crame, attested that, upon verification from the available records in his office, the accused was not a
duly licensed or registered holder of firearm of any kind and caliber.

It was the turn of the defense to present its evidence.

Avelino Tarona, one of the "boarders" of the accused at Camp 7, Montesillo Rd., Baguio City,
testified that he saw the accused leave the house at about eight to nine o'clock in the morning of 04
September 1997 and return at around 7:30 p.m. while he was still watching "Esperanza" on
television.

Lyn Soriano, whose in-laws used to be the neighbors of the accused, stated that, about seven
o'clock in the evening, she bumped into the accused and his wife Marina Saldaen at a jeepney
terminal near Camp 7. After an exchange of casual greetings, the couple left but not before she
heard them say that they had just finished playing mahjong.

Virginia Morales testified that the accused was a mahjong acquaintance since 1995. She said that
on 04 September 1997, about one o'clock in the afternoon, the accused arrived at the Zarate
Building, Burnham Park, Baguio City, to play mahjong. The latter left, together with his wife, at seven
o'clock that evening.

Pedro Eserio stated that from two o'clock until five o'clock in the afternoon on 04 September 1997,
he was playing mahjong with the accused and other players at the Zarate Building. He gave up his
seat when Philip Domingo arrived and took his place at the table. He saw the accused playing the
game until seven o'clock in the evening.

Rosita Galang said that Atty. and Mrs. Gacayan, Adel and Pedro Eserio, Virgie Morales, and the
accused were already at the Zarate Building when he arrived at past two o'clock in the afternoon of
04 September 1997. She said that the accused and his wife Marina Panaba left the place at seven
o'clock in the evening.1âwphi1.nêt
Lauro Gacayan, a practicing lawyer, testified that on 04 September 1997, approximately 1:30 p.m.,
he drove his wife to Zarate building where he saw the accused playing the game of tong-its.
Gacayan left the building at three o'clock in the afternoon to fetch his daughter from school and
came back at past seven o'clock to fetch his wife.

The accused was a policeman until his separation from the service in 1986. He claimed that, on the
morning of 04 September 1997, he did some cleaning-up in his house at Camp 7, Montesillo Rd.,
Baguio City, before proceeding to Camp Allen to visit his sickly parents. He stayed at his parents'
house until about noon. Right after taking his lunch in the nearby Kambingan House, he went to
Zarate Building where he played mahjong. He left the building at seven o'clock in the evening with
his wife. He insisted that he was not personally acquainted with the deceased victim whose name he
came to know only after being "zeroed" in as the suspect in the killing.

On 03 February 1999, the trial court handed down a guilty verdict; it adjudged:

"WHEREFORE, the Court finds WILFREDO PANABANG guilty beyond reasonable doubt of
the crime of MURDER aggravated by treachery and use of unlicensed firearm. The Court
hereby sentences him to suffer the penalty of DEATH to be implemented in the manner
provided by law; to pay the heirs of the victim the sum of P184,748.00 as actual damages,
plus P500,000.00 for compensatory and moral damages and P20,000.00 as exemplary
damages and all accessories of the law.

"Accused Wilfredo Panabang, in CRIM. CASE NO. U-9529, for Illegal Possession of
Firearm, is hereby acquitted considering that the use of an unlicensed firearm shall be
treated only as an aggravating circumstance.

"The Branch Clerk of Court is hereby ordered to transmit the record of this case to the
Honorable Supreme Court for automatic review.

"The Warden, Bureau of Jail Management and Penology (BJMP), Urdaneta District Jail,
Urdaneta City, is hereby ordered to transmit the living person of Wilfredo Panabang, with
proper escort, to the National Bilibid Prisons, Muntinlupa City, as soon as possible."8

The accused assails his conviction and, in this automatic review of his case, contends that the lower
court has gravely erred in convicting him of murder and sentencing him to death on the basis of what
he terms to be the incredible testimony of the prosecution witnesses.

The Court has closely reviewed appellant's case; while it affirms the judgment of conviction, given
the circumstances, however, it must reduce the sentence of death to reclusion perpetua.

The basic challenge posed by appellant is focused on the credibility of the witnesses presented at
the trial. Jurisprudence is too well settled that this particular issue lies within the province of trial
courts to resolve. Trial courts have the means, more than an appellate tribunal can have, to evaluate
conflicting testimony and to assess who is a credible witness and who is not, what is reality and what
is falsehood, or what is candid and what is disguised. Just recently, the Court has reiterated:

"x x x Repeatedly, the Court has called attention to the fact that it is the trial court which can
be afforded the unique opportunity to observe the witnesses on the stand. The manner
witnesses testify - the hesitant pause, the nervous voice, the undertone, the befuddled look,
the honest gaze, the modest blush, or the guilty blanch - is a significant indicum in aptly
assigning value to testimonial evidence."9
It is easy to understood then why the Court, quite often, would say that it would only disturb on
appeal the findings by a trial court on the credibility of witnesses just upon a clear showing that it has
overlooked, misunderstood, or misapplied some facts or circumstances of weight or substance
which can affect the result of the case.10 No such exceptional showing exists in the case at bar as to
warrant a reversal of the rule.

The eyewitness account of Jaime Opilas was plain and consistent on material points. He testified:

"FISCAL MENESES:

On September 4, 1997, at around 7:25 in the evening, do you remember where you
were, Mr. Witness?

"A We were inside our kitchen, sir.

"Q In relation to your place of residence, where is your kitchen located, Mr. Witness?

"A At the ground floor of my house, sir.

"Q How about your Auto Repair Shop?

"A Just in front of my house, sir.

"Q You said that 'we were in the kitchen on September 4, 1997 at 7:25 in the evening,'
can you tell the Honorable Court your companions at that time?

"A Major Astrero, myself and a certain Ladio, a customer of mine, sir.

"Q On said date and time, what were you doing and your companions?

"A We were drinking Tanduay at that time, sir.

"x x x xxx xxx

"COURT:

When you say you were drinking, you mean to say you were drinking with Astrero
and Ladio?

"A Yes, sir.

"x x x xxx xxx

"Q In relation to the four cardinal directions, where were you situated at that time, to what
direction were you facing, Mr. Witness?

"A I was facing east, sir.

"Q How about Major Astrero?

"A He was facing west, sir.

"Q About your companion Ladio, where was he?

"A He was facing north, sir.

"Q And you were also seated in front of a table, drinking, is that correct?

"A Yes, sir.

"Q At that time, do you remember of an unusual incident that happened?

"A There was, sir. There was a burst of automatic fire which sounds 'prak.'

"Q What happened next, Mr. Witness, when you heard automatic fire?

"A I heard Major Astrero telling me, 'I was hit.'

"Q What else did you observe after you heard burst of automatic gunfire?

"A I saw a person moving backward in a 'paupo' position, sir.

"COURT:

Is that squatting position?

"A Yes, sir.

"FISCAL MENESES:

In relation to your position, how far was that person that you saw moving backwards
in a squatting position?

"A More or less three meters, sir.

"COURT:

Away from you?

"A Yes, sir.

"Q About from Astrero?

"A The same distance, sir.

"x x x xxx xxx

"FISCAL MENESES:
 Can you identify that person if you will see that person in public?

"A Yes, sir.

"Q Can you please look around the courtroom and stand up and tell us if that person
whom you saw on said date and time is here, tell us?

"A Yes, sir, he is here.

"Q Can you please step down from the witness stand and tap the shoulder to signify?

"A (Witness steps down from the witness stand and tapped the shoulder of a person
seated on one of the benches inside the courtroom).

"COURT:

Who is that person?

"A Willie Panabang, sir."11

"PROSECUTOR DUMLAO

Mr. Witness, immediately thereafter, what did you see?

"A After the sound of that gunburst 'prak' I noticed a person holding a long firearm
moving backward, sir.

"Q Mr. Witness, will you please describe before this Honorable Court that person holding
a long firearm immediately after the sound of gunburst 'prak'?

"A (Witness demonstrating) The man was moving backward in stooping position holding
the firearm and when he stood up I was able to recognize him.

"Q Now, when that man Mr. Witness, stood up, how far were you to him?

"A More or less three (3) meters, sir.

"Q Now, how were you able to recognize that man since it was already evening of
September 4, 1997?

"A I am familiar to that person, sir.

"COURT:

Familiar with the man holding a gun?

"A Yes, sir, I was familiar to the man and when he stood up I was able to recognize him.

"PROSECUTOR DUMLAO
 You said you were able to recognize him, if that man holding that gun is here in the
courtroom, can you please point to him?

"A That man, sir. (Witness is pointing to the man [seated] in the courtroom and when
asked his name, he answered Wilfredo Panabang.)

"x x x xxx xxx

"COURT:

You mean to say the gunburst came from the back of Romeo Astrero?

"A Yes, sir.

"PROSECUTOR DUMLAO:

Going back with that man whom you recognized as the accused in this case who
was in stooping position, how long a time was it when he was already there after you
heard the gunburst?

"A I noticed that person in stooping position after the gunburst, sir.

"COURT:

You saw the man in stooping position, where was the muzzle of the gun directed?

"A The muzzle of the gun was directed to the place where we were, sir."12

Similarly, the declaration of Noel Salvatierra before the court had all the hallmarks of a credible and
honest testimony. He was straightforward and categorical.

"PROS. DUMLAO:

"Q Could you describe that male person that boarded your tricycle that time between
6:30 to 7:00 in the evening of September 4, 1997?

"A Yes, sir. The hair is falling down at his forehead and that he is tall.

"Q You said he is tall. What is the proximate height?

"A 5'5'' or more.

"Q How about his attire that evening?

"A Wearing brown jacket, sir.

"Q Aside from this person wearing brown jacket, could you describe more?

"A No more, sir.

 "Q How about his face.

"A The face is oblong.

"COURT:

"Q Can you recognize that person if you see him now?

"A Yes, sir.

"PROS. DUMLAO:

"Q Please do so if he is inside the courtroom.

"A (Witness pointed to a person inside the courtroom and when asked his name, he
answered Wilfredo Panabang.)

"x x x xxx xxx

"Q When you arrived at the Arnes Restaurant, what did this person do if he did anything?

"A He paid me and then he alighted from my tricycle.

"Q Where did he proceed, if you know?

"A He went in front of the repair shop of Opilas."13

No ill motive or reason was shown to discredit the testimony of Opilas and Salvatierra or to indicate
that these witnesses would have falsely implicated appellant. What he could only bewail was that
Opilas, when subjected to an initial investigation by SPO2 Fajarito, did not immediately identify the
assailant, and that Salvatierra missed by about 5" the height of appellant.

The Court has steadfastly ruled that the initial reluctance of a witness to a gruesome crime to at
once disclose the identity of the offender is quite common and would not generally impair his
credibility.14 Indeed, fear of reprisal, threat or intimidation, kinship or relationship, the trouble of being
involved in criminal investigations, and like circumstances, can easily silence an ordinary man until
good conscience finally overtakes his own concern and overcomes his apprehensions.15 Nor should
the apparent lack of precision with which Salvatierra described the height of the accused significantly
diminish the importance of his declarations. The most honest witness may at times make mistakes
but such lapses do not necessarily destroy the integrity of the testimony when so taken as a whole.16

The court a quo correctly held that treachery had qualified the killing to murder. The suddenness of
the attack, apparently without any provocation on the part of the victim, who was merrily drinking
with Opilas and Ladio and who did not have the slightest inkling of the fate that would befall him,
should sufficiently demonstrate the treacherous nature of the aggression. The accused
surreptitiously positioned himself at the back of the victim, aimed his gun, and without any warning,
shot the latter at close to pointblank. Indubitably, the execution of the attack made it impossible for
the victim to defend himself.17
Treachery or alevosia exists when the offender commits any of the crimes against person,
employing means, methods, or forms in the execution thereof, without risk to himself arising from the
defense which the offended party might make.18

Appellant's alibi, even with the corroborating claims of the witnesses presented by the defense, must
fail in the light of the unimpeacheable declarations of Opilas and Salvatierra.19 Truth is gauged
essentially by the quality of testimony rather than by the number of witnesses presented.20 But most
importantly, appellant has failed to satisfy the element of physical impossibility of a credible alibi, a
requirement that relates to the distance between the place where the accused actually is when the
crime transpired and the place where such crime is committed, as well as the facility of access
between the two places.21 Baguio City is just about an hour's drive from Sison, Pangasinan. Where
there is even the least chance for the accused to be present at the crime scene, his alibi would
seldom hold water.22

While evident premeditation was alleged in the information, it was not, however, shown in evidence
by the prosecution. Three elements should concur for a finding of evident premeditation, to wit: (1)
the time when the offender determined to commit the crime; (2) an act manifestly indicating that the
culprit had clung to his determination; and (3) a sufficient lapse of time between the determination
and the execution to allow the accused to reflect upon the consequences of his act.23 None of these
elements were adequately established.

Indemnification for loss of earning capacity partakes of the nature of actual damages which must be
duly proven.24 A self-serving statement, being unreliable, is not enough.25 The father of the victim has
testified on the latter's monthly income of P12,000.00. But for lost income to be recovered, there
must likewise be an unbiased proof of the deceased's average, not just gross, income. An award for
lost earning capacity refers to the net income of the deceased, i.e., his total income net of
expenses.26 The trial court has awarded P184,748.00 compensation for medical, burial, and other
expenses. The award must be reduced to P70,248.00s which is the only amount that has been
substantiated. A recovery of actual damages requires proof, with a reasonable degree of certainty,
premised upon competent proof and on the best evidence obtainable by the injured party,28 on the
amount actually expended in connection with the death of the victim.29 It may be useful to recall the
holding of this Court in People vs. Degoma:30

"x x x Of the expenses allegedly incurred, the Court can only give credence to those
supported by receipt and which appear to have been genuinely incurred in connection with
the death, wake or burial of the victim. Thus, the Court cannot take account of receipts
showing expenses incurred before the date of the slaying of the victim; those incurred after a
considerable lapse of time from the burial of the victim and which do not have any relation to
the death, wake or burial of the victim; those incurred for purely aesthetic or social purposes,
such as the lining with marble of the tomb of the victim; those which appear to have been
modified to show an increase in the amount of expenditure, such as by adding a number to
increase the purchase value from tens to hundreds; those expenditures which could not be
reasonably itemized or determined to have been incurred in connection with the death, wake
or burial of the victim; those which would nonetheless have been incurred despite the death,
wake or burial of the victim, the death, wake or burial being merely incidental."31

Consistent with prevailing jurisprudence, the heirs of the deceased are entitled to the amount of
P50,000.00 by way of civil indemnity for the death of the victim without need of further proof of
damages.32 With respect to moral damages, care must attend its award in order to avoid any
excessive expression of sympathy on the victim lest the real rationale for an award of such
damages, essentially one of indemnity or reparation, is inadvertently missed.33Accordingly, the award
of moral damages made by the trial court of P500,000.00 must be reduced to the more reasonable
sum of P50,000.00, an amount that also accords with prevailing jurisprudence. The attendance of
treachery in the killing of the victim justifies, consistently with the Court's ruling in People vs.
Catubig,34 the award of P20,000.00 exemplary damages made by the trial court. 1âw phi 1.nêt

Although the prosecution was able to establish that the crime of illegal possession of firearm under
Presidential Decree No. 1866 had been committed, Republic Act No. 8294,35 however, amended that
decree, which would now merely consider the use of an unlicensed firearm as an aggravating
circumstance in murder or homicide and not as a separate offense.36 Fortunately for the accused, the
use of an unlicensed firearm in the killing of Romeo Astero, not having been alleged in the
accusatory information for murder, could not be used as an aggravating circumstance as to warrant
the imposition of the death penalty against appellant.

WHEREFORE, the Court AFFIRMS the decision of the trial court with MODIFICATION. The Court
finds accused Wilfredo Panabang y Busnag guilty beyond reasonable doubt for the murder of
Romeo Astrero and sentences him, conformably with Article 248 of the Revised Penal Code, to
suffer the penalty of reclusion perpetua. The accused is further ordered to pay to the heirs of the
victim the amounts of P50,000.00 death indemnity, P50,000.00 moral damages, P70,248.00 actual
damages, and P20,000.00 exemplary damages. Costs de oficio.

SO ORDERED.

G.R. No. 161909 April 25, 2012

PHILTRANCO SERVICE ENTERPRISES, INC., Petitioner,

vs.
FELIX PARAS AND INLAND TRAILWAYS, INC., AND HON. COURT OF
APPEALS, Respondents.

DECISION

BERSAMIN, J.:

In an action for breach of contract of carriage commenced by a passenger against his common
carrier, the plaintiff can recover damages from a third-party defendant brought into the suit by the
common carrier upon a claim based on tort or quasi-delict. The liability of the third-party defendant is
independent from the liability of the common carrier to the passenger.

Philtranco Service Enterprises, Inc. (Philtranco) appeals the affirmance with modifications by the
Court of Appeals (CA) of the decision of the Regional Trial Court (RTC) awarding moral, actual and
temperate damages, as well as attorney’s fees and costs of suit, to respondent Felix Paras (Paras),
and temperate damages to respondent Inland Trailways, Inc. (Inland), respectively the plaintiff and
the defendant/third-party plaintiff in this action for breach of contract of carriage, upon a finding that
the negligence of the petitioner and its driver had caused the serious physical injuries Paras
sustained and the material damage Inland’s bus suffered in a vehicular accident.

Antecedents

The antecedent facts, as summarized by the CA, are as follows:

Plaintiff-appellant [respondent] Felix Paras (Paras for brevity), who hails from Cainta, Rizal is
engaged in the buy and sell of fish products. Sometime on 08 February 1987, on his way home to
Manila from Bicol Region, he boarded a bus with Body No. 101 and Plate No. EVE 508, owned and
operated by Inland Trailways, Inc. (Inland for brevity) and driven by its driver Calvin Coner (Coner for
brevity).

At approximately 3:50 o’clock in the morning of 09 February 1987, while the said bus was travelling
along Maharlika Highway, Tiaong, Quezon, it was bumped at the rear by another bus with Plate No.
EVB 259, owned and operated by Philtranco Service Enterprises, Inc. (Philtranco for brevity). As a
result of the strong and violent impact, the Inland bus was pushed forward and smashed into a cargo
truck parked along the outer right portion of the highway and the shoulder thereof. Consequently, the
said accident bought considerable damage to the vehicles involved and caused physical injuries to
the passengers and crew of the two buses, including the death of Coner who was the driver of the
Inland Bus at the time of the incident.

Paras was not spared from the pernicious effects of the accident. After an emergency treatment at
the San Pablo Medical Center, San Pablo City, Laguna, Paras was taken to the National Orthopedic
Hospital. At the latter hospital, he was found and diagnosed by Dr. Antonio Tanchuling, Jr. to be
affected with the following injuries: a) contusion/hematoma; b) dislocation of hip upon fracture of the
fibula on the right leg; c) fractured small bone on the right leg; and d) close fracture on the tibial
plateau of the left leg. (Exh. "A", p. 157, record)

On 04 March 1987 and 15 April 1987, Paras underwent two (2) operations affecting the fractured
portions of his body. (Exhs. "A-2" and "A-3", pp. 159 and 160 respectively, record)

Unable to obtain sufficient financial assistance from Inland for the costs of his operations,
hospitalization, doctors’ fees and other miscellaneous expenses, on 31 July 1989, Paras filed a
complaint for damages based on breach of contract of carriage against Inland.

In its answer, defendant Inland denied responsibility, by alleging, among others, that its driver Coner
had observed an utmost and extraordinary care and diligence to ensure the safety of its passengers.
In support of its disclaimer of responsibility, Inland invoked the Police Investigation Report which
established the fact that the Philtranco bus driver of [sic] Apolinar Miralles was the one which
violently bumped the rear portion of the Inland bus, and therefore, the direct and proximate cause of
Paras’ injuries.

On 02 March 1990, upon leave of court, Inland filed a third-party complaint against Philtranco and
Apolinar Miralles (Third Party defendants). In this third-party complaint, Inland, sought for
exoneration of its liabilities to Paras, asserting that the latter’s cause of action should be directed
against Philtranco considering that the accident was caused by Miralles’ lack of care, negligence and
reckless imprudence. (pp. 50 to 56, records).

After trial, the RTC (Branch 71) in Antipolo, Rizal rendered its judgment on July 18, 1997,1 viz:

WHEREFORE, third-party defendant Philtranco and Apolinar Miralles are hereby ordered to pay
plaintiff jointly and severally, the following amounts:

1.₱54,000.00 as actual damages;

2.₱50,000.00 as moral damages;

3.₱20,000.00 as attorney’s fees and costs.

SO ORDERED.

All the parties appealed to the CA on different grounds.

On his part, Paras ascribed the following errors to the RTC, to wit:

I. THE TRIAL COURT ERRED IN HOLDING THAT ONLY THIRD-PARTY DEFENDANT-

APPELLANT PHILTRANCO IS LIABLE FOR THE DAMAGES SUFFERED BY APPELLANT
PARAS.

II. THE TRIAL COURT ERRED IN NOT HOLDING APPELLANT INLAND TRAILWAYS INC.
TO BE JOINTLY AND SEVERALLY LIABLE FOR THE DAMAGES SUFFERED BY PARAS.

III. THE TRIAL COURT ERRED IN NOT AWARDING UNEARNED INCOME AS

ADDITIONAL ACTUAL DAMAGES SUFFERED BY APPELLANT PARAS AS HIS
PHYSICAL DISABILITY IS PERMANENT IN NATURE.

IV. THE TRIAL COURT ERRED IN NOT AWARDING EXEMPLARY DAMAGES IN FAVOR
OF APPELLANT PARAS.

On the other hand, Inland assigned the following errors to the RTC, namely:

THE TRIAL COURT ERRED WHEN IT FAILED TO AWARD DAMAGES UNTO THE THIRD PARTY
PLAINTIFF NOTWITHSTANDING CLEAR FINDING THAT:

‘It is clear from the evidence that the plaintiff sustained injuries because of the reckless, negligence,
and lack of precaution of third party defendant Apolinar Miralles, an employee of Philtranco.’

AND, COMPLETELY DISREGARDED THE UNCONTROVERTED ORAL AND DOCUMENTARY

EVIDENCES ESTABLISHING THE EXTENT AND DEGREE OF DAMAGES SUSTAINED BY THE
THIRD PARTY PLAINTIFF.

Lastly, Philtranco stated that the RTC erred thuswise:

THE COURT A QUO MISERABLY ERRED IN AWARDING ACTUAL DAMAGES GREATER

THAN WHAT WAS ALLEGED IN THE COMPLAINT ITSELF, AND EVEN MUCH MORE
GREATER THAN WHAT WERE PROVED DURING THE TRIAL, HENCE, PERPETUATING
UNJUST ENRICHMENT.

II

THE COURT A QUO SERIOUSLY ERRED IN AWARDING MORAL DAMAGES TO A

CAUSE OF ACTION OF CULPA-CONTRACTUAL EVEN WITHOUT ANY EVIDENCE OF
GROSS BAD FAITH; HENCE, CONTRARY TO THE ESTABLISHED DOCTRINE IN THE
CASES OF PHIL. RABBIT BUS LINES VS. ESGUERRA; SOBERANO VS. BENGUET
AUTO LINE AND FLORES VS. MIRANDA.

III
 THE COURT A QUO MISERABLY ERRED IN HOLDING THAT MIRALLES WAS THE ONE
AT FAULT MERELY ON THE STRENGHT OF THE TESTIMONY OF THE POLICE
INVESTIGATOR WHICH IS IN TURN BASED ON THE STATEMENTS OF ALLEGED
WITNESSES WHO WERE NEVER PRESENTED ON THE WITNESS STAND.

IV

THE COURT A QUO COMMITTED A GRIEVOUS ERROR IN DISREGARDING THE

TESTIMONY OF APPELLANTS’ WITNESSES WHO TESTIFIED AS TO THE DEFENSE OF
EXERCISE OF DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF
EMPLOYEES PURSUANT TO ART. 2180, LAST PARAGRAPH, NEW CIVIL CODE.

On September 25, 2002, the CA promulgated its decision,2 disposing:

WHEREFORE, in consideration of the foregoing premises, the assailed decision dated 18 July
19(9)7 is perforce affirmed with the following modifications:

1. Third party defendants-appellants Philtranco and Apolinar Miralles are ordered to pay
plaintiff-appellant Felix Paras jointly and severally the following amounts:

a) ₱1,397.95 as actual damages;

b) ₱50,000.00 as temperate damages;

c) ₱50,000.00 as moral damages; and

d) ₱20,000.00 as attorney’s fees and costs of suit.

2. On the third party plaintiff-appellant Inland’s claims, the third party defendant-appellants
Philtranco and Apolinar Miralles are hereby ordered to pay the former (Inland) jointly and
severally the amount of ₱250,000.00 as and by way of temperate damages.

SO ORDERED.

The CA agreed with the RTC’s finding that no trace of negligence at the time of the accident was
attributable to Inland’s driver, rendering Inland not guilty of breach of contract of carriage; that faulty
brakes had caused Philtranco’s bus to forcefully bump Inland’s bus from behind, making it hit the
rear portion of a parked cargo truck; that the impact had resulted in considerable material damage to
the three vehicles; and that Paras and others had sustained various physical injuries.

Accordingly, the CA:– (a) sustained the award of moral damages of ₱50,000.00 in favor of Paras
pursuant to Article 2219 of the Civil Code based on quasi-delict committed by Philtranco and its
driver; (b) reduced the actual damages to be paid by Philtranco to Paras from ₱54,000.00 to
₱1,397.95 because only the latter amount had been duly supported by receipts; (c) granted
temperate damages of ₱50,000.00 (in lieu of actual damages in view of the absence of competent
proof of actual damages for his hospitalization and therapy) to be paid by Philtranco to Paras; and
(d) awarded temperate damages of ₱250,000.00 under the same premise to be paid by Philtranco to
Inland for the material damage caused to Inland’s bus.

Philtranco moved for reconsideration,3 but the CA denied its motion for reconsideration on January
21, 2004.4
 Issues

Hence, this appeal, in which the petitioner submits that the CA committed grave abuse of discretion
amounting to lack of jurisdiction in awarding moral damages to Paras despite the fact that the
complaint had been anchored on breach of contract of carriage; and that the CA committed a
reversible error in substituting its own judgment by motu proprio awarding temperate damages of
₱250,000.00 to Inland and ₱50,000.00 to Paras despite the clear fact that temperate damages were
not raised on appeal by Paras and Inland.

Ruling

The appeal lacks merit.

The Court does not disturb the unanimous findings by the CA and the RTC on the negligence of
Philtranco and its driver being the direct cause of the physical injuries of Paras and the material
damage of Inland.

Nonetheless, we feel bound to pass upon the disparate results the CA and the RTC reached on the
liabilities of Philtranco and its driver.

1.

Paras can recover moral damages

in this suit based on quasi-delict

Philtranco contends that Paras could not recover moral damages because his suit was based on
breach of contract of carriage, pursuant to which moral damages could be recovered only if he had
died, or if the common carrier had been guilty of fraud or bad faith. It argues that Paras had suffered
only physical injuries; that he had not adduced evidence of fraud or bad faith on the part of the
common carrier; and that, consequently, Paras could not recover moral damages directly from it
(Philtranco), considering that it was only being subrogated for Inland.

The Court cannot uphold the petitioner’s contention.

As a general rule, indeed, moral damages are not recoverable in an action predicated on a breach of
contract. This is because such action is not included in Article 2219 of the Civil Code5 as one of the
actions in which moral damages may be recovered. By way of exception, moral damages are
recoverable in an action predicated on a breach of contract: (a) where the mishap results in the
death of a passenger, as provided in Article 1764,6 in relation to Article 2206, (3),7 of the Civil Code;
and (b) where the common carrier has been guilty of fraud or bad faith,8 as provided in Article
22209 of the Civil Code.

Although this action does not fall under either of the exceptions, the award of moral damages to
Paras was nonetheless proper and valid. There is no question that Inland filed its third-party
complaint against Philtranco and its driver in order to establish in this action that they, instead of
Inland, should be directly liable to Paras for the physical injuries he had sustained because of their
negligence. To be precise, Philtranco and its driver were brought into the action on the theory of
liability that the proximate cause of the collision between Inland’s bus and Philtranco’s bus had been
"the negligent, reckless and imprudent manner defendant Apolinar Miralles drove and operated his
driven unit, the Philtranco Bus with Plate No. 259, owned and operated by third-party defendant
Philtranco Service Enterprises, Inc."10 The apparent objective of Inland was not to merely subrogate
the third-party defendants for itself, as Philtranco appears to suggest,11 but, rather, to obtain a
different relief whereby the third-party defendants would be held directly, fully and solely liable to
Paras and Inland for whatever damages each had suffered from the negligence committed by
Philtranco and its driver. In other words, Philtranco and its driver were charged here as joint
tortfeasors who would be jointly and severally be liable to Paras and Inland.

Impleading Philtranco and its driver through the third-party complaint filed on March 2, 1990 was
correct. The device of the third-party action, also known as impleader, was in accord with Section
12, Rule 6 of the Revised Rules of Court, the rule then applicable, viz:

Section 12. Third-party complaint. – A third-party complaint is a claim that a defending party may,
with leave of court, file against a person not a party to the action, called the third-party defendant, for
contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim.12

Explaining the application of Section 12, Rule 6, supra, the Court said in Balbastro v. Court of
Appeals,13 to wit:

Section 12 of Rule 6 of the Revised Rules of Court authorizes a defendant to bring into a lawsuit any
person "not a party to the action . . . for contribution, indemnity, subrogation or any other relief in
respect of his opponent's claim." From its explicit language it does not compel the defendant to bring
the third-parties into the litigation, rather it simply permits the inclusion of anyone who meets the
standard set forth in the rule. The secondary or derivative liability of the third-party is central —
whether the basis is indemnity, subrogation, contribution, express or implied warranty or some other
theory. The impleader of new parties under this rule is proper only when a right to relief exists under
the applicable substantive law. This rule is merely a procedural mechanism, and cannot be utilized
unless there is some substantive basis under applicable law.

Apart from the requirement that the third-party complainant should assert a derivative or secondary
claim for relief from the third-party defendant there are other limitations on said party’s ability to
implead. The rule requires that the third-party defendant is "not a party to the action" for otherwise
the proper procedure for asserting a claim against one who is already a party to the suit is by means
of counterclaim or cross-claim under sections 6 and 7 of Rule 6. In addition to the aforecited
requirement, the claim against the third-party defendant must be based upon plaintiff's claim against
the original defendant (third-party claimant). The crucial characteristic of a claim under section 12 of
Rule 6, is that the original "defendant is attempting to transfer to the third-party defendant the liability
asserted against him by the original plaintiff."

Accordingly, the requisites for a third-party action are, firstly, that the party to be impleaded must not
yet be a party to the action; secondly, that the claim against the third-party defendant must belong to
the original defendant; thirdly, the claim of the original defendant against the third-party defendant
must be based upon the plaintiff’s claim against the original defendant; and, fourthly, the defendant
is attempting to transfer to the third-party defendant the liability asserted against him by the original
plaintiff.14

As the foregoing indicates, the claim that the third-party complaint asserts against the third-party
defendant must be predicated on substantive law. Here, the substantive law on which the right of
Inland to seek such other relief through its third-party complaint rested were Article 2176 and Article
2180 of the Civil Code, which read:

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. (1902a)

Article 2180. The obligation imposed by article 2176 is demandable not only for one’s own acts or
omissions, but also for those of persons for whom one is responsible.

xxx

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

The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damage. (1903a)

Paras’ cause of action against Inland (breach of contract of carriage) did not need to be the same as
the cause of action of Inland against Philtranco and its driver (tort or quasi-delict) in the impleader. It
is settled that a defendant in a contract action may join as third-party defendants those who may be
liable to him in tort for the plaintiff’s claim against him, or even directly to the plaintiff.15 Indeed, Prof.
Wright, et al., commenting on the provision of the Federal Rules of Procedure of the United States
from which Section 12, supra, was derived, observed so, to wit:16

The third-party claim need not be based on the same theory as the main claim. For example, there
are cases in which the third-party claim is based on an express indemnity contract and the original
complaint is framed in terms of negligence. Similarly, there need not be any legal relationship
between the third-party defendant and any of the other parties to the action. Impleader also is proper
even though the third party’s liability is contingent, and technically does not come into existence until
the original defendant’s liability has been established. In addition, the words ‘is or may be liable’ in
Rule 14(a) make it clear that impleader is proper even though the third-party defendant’s liability is
not automatically established once the third-party plaintiff’s liability to the original plaintiff has been
determined.

Nor was it a pre-requisite for attachment of the liability to Philtranco and its driver that Inland be first
declared and found liable to Paras for the breach of its contract of carriage with him.17 As the Court
has cogently discoursed in Samala v. Judge Victor:18

Appellants argue that since plaintiffs filed a complaint for damages against the defendants on a
breach of contract of carriage, they cannot recover from the third-party defendants on a cause of
action based on quasi-delict. The third party defendants, they allege, are never parties liable with
respect to plaintiff s claim although they are with respect to the defendants for indemnification,
subrogation, contribution or other reliefs. Consequently, they are not directly liable to the plaintiffs.
Their liability commences only when the defendants are adjudged liable and not when they are
absolved from liability as in the case at bar.

Quite apparent from these arguments is the misconception entertained by appellants with respect to
the nature and office of a third party complaint.

Section 16, Rule 6 of the Revised Rules of Court defines a third party complaint as a "claim that a
defending party may, with leave of court, file against a person not a party to the action, called the
third-party defendant, for contribution, indemnification, subrogation, or any other relief, in respect of
his opponent’s claim." In the case of Viluan vs. Court of Appeals, et al., 16 SCRA 742 [1966], this
Court had occasion to elucidate on the subjects covered by this Rule, thus:

... As explained in the Atlantic Coast Line R. Co. vs. U.S. Fidelity & Guaranty Co., 52 F. Supp. 177
(1943:)

‘From the sources of Rule 14 and the decisions herein cited, it is clear that this rule, like the
admiralty rule, ‘covers two distinct subjects, the addition of parties defendant to the main cause of
action, and the bringing in of a third party for a defendant’s remedy over’. xxx

‘If the third party complaint alleges facts showing a third party’s direct liability to plaintiff on the claim
set out in plaintiff’s petition, then third party ‘shall’ make his defenses as provided in Rule 12 and his
counterclaims against plaintiff as provided in Rule 13. In the case of alleged direct liability, no
amendment (to the complaint) is necessary or required. The subject-matter of the claim is contained
in plaintiff's complaint, the ground of third party’s liability on that claim is alleged in third party
complaint, and third party’s defense to set up in his answer to plaintiff's complaint. At that point and
without amendment, the plaintiff and third party are at issue as to their rights respecting the claim.

The provision in the rule that, ‘The third-party defendant may assert any defense which the third-
party plaintiff may assert to the plaintiffs claim,’ applies to the other subject, namely, the alleged
liability of third party defendant. The next sentence in the rule, ‘The third-party defendant is bound by
the adjudication of the third party plaintiffs liability to the plaintiff, as well as of his own to the plaintiff
or to the third-party plaintiff applies to both subjects. If third party is brought in as liable only to
defendant and judgment is rendered adjudicating plaintiff's right to recover against defendant and
defendant’s rights to recover against third party, he is bound by both adjudications.That part of the
sentence refers to the second subject. If third party is brought in as liable to plaintiff, then third party
is bound by the adjudication as between him and plaintiff. That refers to the first subject. If third party
is brought in as liable to plaintiff and also over to defendant, then third party is bound by both
adjudications. xxx

Under this Rule, a person not a party to an action may be impleaded by the defendant either (a) on
an allegation of liability to the latter; (b) on the ground of direct liability to the plaintiff-; or, (c) both (a)
and (b). The situation in (a) is covered by the phrase "for contribution, indemnity or subrogation;"
while (b) and (c) are subsumed under the catch all "or any other relief, in respect of his opponent’s
claim."

The case at bar is one in which the third party defendants are brought into the action as directly
liable to the plaintiffs upon the allegation that "the primary and immediate cause as shown by the
police investigation of said vehicular collision between (sic) the above-mentioned three vehicles was
the recklessness and negligence and lack of imprudence (sic) of the third-party defendant Virgilio
(should be Leonardo) Esguerra y Ledesma then driver of the passenger bus." The effects are that
"plaintiff and third party are at issue as to their rights respecting the claim" and "the third party is
bound by the adjudication as between him and plaintiff." It is not indispensable in the premises that
the defendant be first adjudged liable to plaintiff before the third-party defendant may be held liable
to the plaintiff, as precisely, the theory of defendant is that it is the third party defendant, and not he,
who is directly liable to plaintiff. The situation contemplated by appellants would properly pertain to
situation (a) above wherein the third party defendant is being sued for contribution, indemnity or
subrogation, or simply stated, for a defendant's "remedy over".19
It is worth adding that allowing the recovery of damages by Paras based on quasi-delict, despite his
complaint being upon contractual breach, served the judicial policy of avoiding multiplicity of suits
and circuity of actions by disposing of the entire subject matter in a single litigation.20

2.

Award of temperate damages was in order

Philtranco assails the award of temperate damages by the CA considering that, firstly, Paras and
Inland had not raised the matter in the trial court and in their respective appeals; secondly, the CA
could not substitute the temperate damages granted to Paras if Paras could not properly establish
his actual damages despite evidence of his actual expenses being easily available to him; and,
thirdly, the CA gravely abused its discretion in granting motu proprio the temperate damages of
₱250,000.00 to Inland although Inland had not claimed temperate damages in its pleading or during
trial and even on appeal.

The Court cannot side with Philtranco.

Actual damages, to be recoverable, must not only be capable of proof, but must actually be proved
with a reasonable degree of certainty. The reason is that the court "cannot simply rely on
speculation, conjecture or guesswork in determining the fact and amount of damages," but "there
must be competent proof of the actual amount of loss, credence can be given only to claims which
are duly supported by receipts."21

The receipts formally submitted and offered by Paras were limited to the costs of medicines
purchased on various times in the period from February 1987 to July 1989 (Exhibits E to E-35,
inclusive) totaling only ₱1,397.95.22 The receipts by no means included hospital and medical
expenses, or the costs of at least two surgeries as well as rehabilitative therapy. Consequently, the
CA fixed actual damages only at that small sum of ₱1,397.95. On its part, Inland offered no definite
proof on the repairs done on its vehicle, or the extent of the material damage except the testimony of
its witness, Emerlinda Maravilla, to the effect that the bus had been damaged beyond economic
repair.23 The CA rejected Inland’s showing of unrealized income worth ₱3,945,858.50 for 30 months
(based on alleged average weekly income of ₱239,143.02 multiplied by its guaranteed revenue
amounting to 55% thereof, then spread over a period of 30 months, the equivalent to the remaining
40% of the vehicle’s un-depreciated or net book value), finding such showing arbitrary, uncertain and
speculative.24 As a result, the CA allowed no compensation to Inland for unrealized income.

Nonetheless, the CA was convinced that Paras should not suffer from the lack of definite proof of his
actual expenses for the surgeries and rehabilitative therapy; and that Inland should not be deprived
of recourse to recover its loss of the economic value of its damaged vehicle. As the records
indicated, Paras was first rushed for emergency treatment to the San Pablo Medical Center in San
Pablo City, Laguna, and was later brought to the National Orthopedic Hospital in Quezon City where
he was diagnosed to have suffered a dislocated hip, fracture of the fibula on the right leg, fracture of
the small bone of the right leg, and closed fracture on the tibial plateau of the left leg. He underwent
surgeries on March 4, 1987 and April 15, 1987 to repair the fractures.25 Thus, the CA awarded to him
temperate damages of ₱50,000.00 in the absence of definite proof of his actual expenses towards
that end. As to Inland, Maravilla’s testimony of the bus having been damaged beyond economic
repair showed a definitely substantial pecuniary loss, for which the CA fixed temperate damages of
₱250,000.00. We cannot disturb the CA’s determination, for we are in no position today to judge its
reasonableness on account of the lapse of a long time from when the accident occurred.26
In awarding temperate damages in lieu of actual damages, the CA did not err, because Paras and
Inland were definitely shown to have sustained substantial pecuniary losses. It would really be a
travesty of justice were the CA now to be held bereft of the discretion to calculate moderate or
temperate damages, and thereby leave Paras and Inland without redress from the wrongful act of
Philtranco and its driver.27 We are satisfied that the CA exerted effort and practiced great care to
ensure that the causal link between the physical injuries of Paras and the material loss of Inland, on
the one hand, and the negligence of Philtranco and its driver, on the other hand, existed in fact. It
also rejected arbitrary or speculative proof of loss. Clearly, the costs of Paras’ surgeries and
consequential rehabilitation, as well as the fact that repairing Inland’s vehicle would no longer be
economical justly warranted the CA to calculate temperate damages of ₱50,000.00 and
₱250,000.00 respectively for Paras and Inland.

There is no question that Article 2224 of the Civil Code expressly authorizes the courts to award
temperate damages despite the lack of certain proof of actual damages, to wit:

Article 2224. Temperate or moderate damages, which are more than nominal but less than
compensatory damages, may be recovered when the court finds that some pecuniary loss has been
suffered but its amount cannot, from the nature of the case, be proved with certainty.

The rationale for Article 2224 has been stated in Premiere Development Bank v. Court of Appeals28 in
the following manner:

Even if not recoverable as compensatory damages, Panacor may still be awarded damages in the
concept of temperate or moderate damages. When the court finds that some pecuniary loss has
been suffered but the amount cannot, from the nature of the case, be proved with certainty,
temperate damages may be recovered. Temperate damages may be allowed in cases where from
the nature of the case, definite proof of pecuniary loss cannot be adduced, although the court is
convinced that the aggrieved party suffered some pecuniary loss.

The Code Commission, in explaining the concept of temperate damages under Article 2224, makes
the following comment:

In some States of the American Union, temperate damages are allowed. There are cases where
from the nature of the case, definite proof of pecuniary loss cannot be offered, although the court is
convinced that there has been such loss. For instance, injury to one’s commercial credit or to the
goodwill of a business firm is often hard to show with certainty in terms of money. Should damages
be denied for that reason? The judge should be empowered to calculate moderate damages in such
cases, rather than that the plaintiff should suffer, without redress from the defendant’s wrongful act.

3.

Paras’ loss of earning capacity

must be compensated

In the body of its decision, the CA concluded that considering that Paras had a minimum monthly
income of ₱8,000.00 as a trader he was entitled to recover compensation for unearned income
during the 3-month period of his hospital confinement and the 6-month period of his recovery and
rehabilitation; and aggregated his unearned income for those periods to ₱72,000.00.29 Yet, the CA
omitted the unearned income from the dispositive portion.

The omission should be rectified, for there was credible proof of Paras’ loss of income during his
disability. According to Article 2205, (1), of the Civil Code, damages may be recovered for loss or
impairment of earning capacity in cases of temporary or permanent personal injury. Indeed,
indemnification for damages comprehends not only the loss suffered (actual damages or damnum
emergens) but also the claimant’s lost profits (compensatory damages or lucrum cessans).30 Even so,
the formula that has gained acceptance over time has limited recovery to net earning capacity;
hence, the entire amount of ₱72,000.00 is not allowable. The premise is obviously that net earning
capacity is the person’s capacity to acquire money, less the necessary expense for his own
living.31 To simplify the determination, therefore, the net earning capacity of Paras during the 9-month
period of his confinement, surgeries and consequential therapy is pegged at only half of his
unearned monthly gross income of ₱8,000.00 as a trader, or a total of ₱36,000.00 for the 9-month
period, the other half being treated as the necessary expense for his own living in that period.

It is relevant to clarify that awarding the temperate damages (for the substantial pecuniary losses
corresponding to Paras’s surgeries and rehabilitation and for the irreparability of Inland’s damaged
bus) and the actual damages to compensate lost earnings and costs of medicines give rise to no
incompatibility. These damages cover distinct pecuniary losses suffered by Paras and Inland,32 and
do not infringe the statutory prohibition against recovering damages twice for the same act or
omission.33

4.

Increase in award of attorney’s fees

Although it is a sound policy not to set a premium on the right to litigate,34 we consider the grant to
Paras and Inland of reasonable attorney’s fees warranted. Their entitlement to attorney’s fees was
by virtue of their having been compelled to litigate or to incur expenses to protect their interests,35 as
well as by virtue of the Court now further deeming attorney’s fees to be just and equitable.36

In view of the lapse of a long time in the prosecution of the claim,37 the Court considers it reasonable
and proper to grant attorney’s fees to each of Paras and Inland equivalent to 10% of the total
amounts hereby awarded to them, in lieu of only ₱20,000.00 for that purpose granted to Paras.

5.

Legal interest on the amounts awarded

Pursuant to Eastern Shipping Lines, Inc. v. Court of Appeals,38 legal interest at the rate of 6% per
annum accrues on the amounts adjudged reckoned from July 18, 1997, the date when the RTC
rendered its judgment; and legal interest at the rate of 12% per annum shall be imposed from the
finality of the judgment until its full satisfaction, the interim period being regarded as the equivalent of
a forbearance of credit.

WHEREFORE, the Court AFFIRMS WITH MODIFICATION the decision of the Court of Appeals
promulgated on September 25, 2002, by ordering PHILTRANCO SERVICE ENTERPRISES, INC.
and APOLINAR MIRALLES to pay, jointly and severally, as follows:

1. To Felix Paras:

(a) ₱1,397.95, as reimbursement for the costs of medicines purchased between

February 1987 and July 1989;

(b) ₱50,000.00 as temperate damages;

 (c) ₱50,000.00 as moral damages;

(d) ₱36,000.00 for lost earnings;

(e) 10% of the total of items (a) to (d) hereof as attorney’s fees; and

(f) Interest of 6% per annum from July 18, 1997 on the total of items (a) to (d) hereof
until finality of this decision, and 12% per annum thereafter until full payment.

2. To Inland Trailways, Inc.:

(a) ₱250,000.00 as temperate damages;

(b) 10% of item (a) hereof; and

(c) Interest of 6% per annum on item (a) hereof from July 18, 1997 until finality of this
decision, and 12% per annum thereafter until full payment.

3. The petitioner shall pay the costs of suit.

SO ORDERED.

G.R. No. 133541 April 14, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
RICKY QUIMZON, appellant.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the
decision1 dated December 17, 1997 of the Regional Trial Court of Tacloban City, Branch 16, in
Criminal Case No. Bn-92-7-2924, finding appellant Ricky Quimzon2 guilty of murder and imposing
upon him the penalty of reclusion perpetua.

In an Information dated July 28, 1992, appellant and three other persons, namely Salvacion
Lacsarom, Canoto Cabero3 and Edgardo Detona4 were charged with the crime of murder allegedly
committed as follows:

That on or about the 7th day of March, 1992, in the Municipality of Burauen, Province of
Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and helping one another with treachery and abuse of
superior strength, with intent to kill, did, then and there willfully, unlawfully, and feloniously
attack, assault, strike, stab and wound one Marlo Casiong with short bolos locally known as
‘pisao’ which accused provided themselves for the purpose, thereby hitting and inflicting
upon the said Marlo Casiong with fatal wounds on the different parts of his body which
caused his death shortly thereafter.
 Contrary to law.5

Appellant "surrendered" to the police authorities on August 18, 19946 while his other co-accused
remain at-large. When arraigned on September 28, 1994, appellant, with the assistance of counsel,
entered a plea of not guilty to the crime charged.7 Thereafter, trial ensued.

The evidence for the prosecution established the following facts:

On the night of March 7, 1992, victim Marlo Casiong, his sister Emolyn Casiong, and one
Rommel Redoña were at the social hall of Burauen, Leyte attending a benefit dance. Around
11:30 of the same evening, while dancing with one Salvacion Lacsarom, Marlo accidentally
bumped his cousin, herein appellant Ricky Quimzon. Emolyn and Rommel, who were then
dancing with each other and were about one meter away from Marlo and Salvacion,
witnessed the incident. Thereafter, while the dance continued, Salvacion held Marlo’s hand
and invited him to go outside the dance hall as she had something important to tell him.
Thereupon, Marlo asked Emolyn to stay put because he was coming back. Feeling
apprehensions about it, Emolyn and Rommel followed Salvacion and Marlo as they went out
of the dance hall. Emolyn noticed that Canoto Cabero, Edgardo Detona and appellant Ricky
also went out of the hall in a hurried manner thereby overtaking them (Emolyn and Rommel).
Outside the social hall, Emolyn heard Salvacion say "ito na" then saw her push Marlo
towards the group of Canoto, Edgardo and Ricky. Canoto then grabbed Marlo by the wrist
and repeatedly stabbed him with a short bolo locally known as pisao. Edgardo followed suit
by stabbing Marlo twice at the back. Despite being wounded, Marlo was able to get away
from Canoto and Edgardo and walked fast towards the nearby health center. Marlo was
about to reach the gate of the health center when Ricky, who was behind Marlo, held the
latter’s hands. Marlo tried to free himself from the clutches of Ricky but in the course of his
struggle he fell down. Thereupon, Ricky rode on the back of Marlo and repeatedly stabbed
him on his back. Emolyn and Rommel shouted for help prompting an unidentified person to
throw stones and utter, "that is enough". Thereafter, Canoto, Edgardo and Ricky fled. With
the help of some persons, Emolyn brought Marlo to the Burauen General Hospital but Marlo
died before reaching the hospital.8

In denying criminal liability, appellant interposed the defense of alibi. He claims that he does not
know Salvacion Lacsarom, Canoto Cabero and Edgardo Detona. He denies that he stabbed Marlo
Casiong. Appellant testified, as follows: He could not have been at the scene of the crime when the
incident happened as he was in Barangay Patag attending another benefit dance. He arrived at
Barangay Patag around 7 o’clock in the evening of March 7, 1992 and stayed there until 7 o’clock of
the following morning. Barangay Patag is 18 kilometers away from the poblacion of Burauen where
Marlo was killed and can only be reached by riding a horse or a carabao or by hiking for five hours.
He only came to know of the death of Marlo when he went to the poblacion of Burauen. He was
included as one of the accused because he refused to testify in favor of the prosecution.9

Alfredo Rellesiva, then Barangay Chairman of Barangay Patag, Burauen, Leyte; and Mauro
Lobriquinto, then second Barangay Councilor of Barangay Candag-on, corroborated appellant’s
alibi.10

After trial, the court a quo rendered the assailed decision, the dispositive portion of which reads as
follows:

WHEREFORE, premises considered, the evidence of the prosecution having proven the guilt
of the accused beyond reasonable doubt, the Court hereby renders the conviction of the
accused Ricky Quimzon of the crime of Murder punished under Article 248 of the Revised
 Penal Code. The crime currently is punishable by RA 7659 classifying Murder as heinous
crime to which the death penalty is to be imposed.

However, the crime was committed on March 7, 1992 and the effectivity of RA 7659 is
January 1994. This act therefore cannot apply in the case at bench.

Two qualifying circumstances are alleged in the Information; namely, treachery and abuse of
superior strength. However, the latter circumstance is absorbed by the former.

There is no other aggravating nor mitigating circumstance. The penalty therefore to be

applied is reclusion perpetua being the medium of the penalty from minimum which is the
maximum of reclusion temporal to death.

The accused is therefore sentenced to suffer an imprisonment of Reclusion Perpetua.

On the civil aspect, the defense admitted the expenses incurred for the wake and burial of
the victim and neither did he controvert the moral damages suffered by the mother of the
victim. The accused is ordered to pay the sum of P53,000.00 as actual expenses for the
wake and burial, and P75,000.00 as moral damages payable to the mother of the victim
Erlinda Casiong.

The Philippine National Police and the NBI are urged to exert efforts to bring the at large co-
accused to justice for their complicity in the crime. Furnish them a copy. Meanwhile, until
they are placed under the custody of the law, archived the case.

SO ORDERED.11

Hence, the present petition with the following Assignment of Errors.

IT IS SUBMITTED BY THE APPELLANT THAT THE REGIONAL TRIAL COURT OF BURAUEN,

LEYTE ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME OF MURDER WITHOUT A
CORPUS DELICTI.

II

IT IS SUBMITTED BY THE APPELLANT THAT THE REGIONAL TRIAL COURT OF BURAUEN,

LEYTE ERRED IN GIVING CREDENCE TO THE TESTIMONY OF EMOLYN CASIONG THE LONE
PROSECUTION EYE WITNESS, LEADING TO THE CONVICTION OF APPELLANT ON THE
CRIME CHARGED IN THE ABOVE ENTITLED CASE.12

In support of his first assigned error, appellant contends that the testimony of prosecution witness
Dr. Adelaida Asperin on the report of the autopsy conducted on the body of the victim Marlo Casiong
was designed to prove the corpus delicti. Appellant, however, claims that Dr. Asperin is incompetent
to testify, as she was not the one who personally examined the body. Instead, it was a certain Dr.
Amparo Villanueva who conducted the autopsy on the body of Marlo Casiong. Appellant asserts that
the trial court should have regarded the testimony of Dr. Asperin as inadmissible for being hearsay;
and, in the absence of such testimony, the prosecution would not have been able to prove
the corpus delicti.
A review of the oral and documentary evidence presented before the trial court reveals that it was
indeed Dr. Amparo Villanueva, not Dr. Adelaida Asperin, who conducted the autopsy taken on the
body of Marlo Casiong. As the attending physician, Dr. Villanueva was the one who signed the
autopsy report.13 In fact, Dr. Asperin herself admitted in her testimony that she never saw the victim,
Marlo Casiong, and that it was Dr. Villanueva who conducted the autopsy and was the one who
prepared the autopsy report.14 However, Dr. Villanueva died before the prosecution was able to
present her as witness.

Nonetheless, even if Dr. Asperin is an incompetent witness as to the autopsy report and her
testimony could not have probative value for being hearsay, we still find that the prosecution was
able to sufficiently establish by competent evidence the corpus delicti in the instant case.

Corpus delicti is defined as the body, foundation or substance upon which a crime has been
committed, e.g. the corpse of a murdered man.15 It refers to the fact that a crime has been actually
committed.16 Corpus delicti does not refer to the autopsy report evidencing the nature of the wounds
sustained by the victim nor the testimony of the physician who conducted the autopsy or medical
examination.17 It is made up of two elements: (a) that a certain result has been proved, for example,
a man has died and (b) that some person is criminally responsible for the act.18

Proof of corpus delicti is indispensable in prosecutions for felonies and offenses.19 While the autopsy
report of a medico legal expert in cases of murder or homicide is preferably accepted to show the
extent of the injuries suffered by the victim, it is not the only competent evidence to prove the injuries
and the fact of death.20 It may be proved by the testimonies of credible witnesses. Even a single
witness’ uncorroborated testimony, if credible, may suffice to prove it and warrant a conviction
therefor.21

Based on the foregoing jurisprudence, it is clear that the testimony of Dr. Asperin is not
indispensable in proving the corpus delicti. Even without her testimony, the prosecution was still be
able to prove the corpus delicti by establishing the fact that the victim died and that such death
occurred after he was stabbed by appellant and his co-accused. These facts were established by the
testimony of prosecution witness Emolyn Casiong.22

The question that remains, therefore, is whether the trial court erred in giving credence to Emolyn’s
testimony over and above the testimonies of the defense witnesses.

In his second assigned error, appellant questions Emolyn’s credibility as a witness by pointing out
that Emolyn did not execute an affidavit regarding the events that she allegedly witnessed on March
7, 1992; that she did not present herself as a witness during the preliminary investigation conducted
by the Municipal Trial Court of Burauen, and that she only appeared as a witness when the case
was already being tried before the trial court. Appellant posits that Emolyn’s delay, which consisted
in her failure to execute an affidavit and her belated appearance as a witness, puts the
trustworthiness of her testimony in serious doubt.

We are not persuaded by appellant’s arguments.

When the credibility of witnesses is in issue, appellatte courts generally defer to the findings of the
trial court, considering that the latter is in a better position to decide the question, having heard the
witnesses themselves and observed their deportment and manner of testifying during the trial.23

It is doctrinally settled that the assessment of the credibility of a witness is a function that is best
discharged by the trial judge whose conclusion thereon is accorded much weight and respect that
will not be disturbed on appeal unless a material or substantial fact has been overlooked or
misappreciated which if properly taken into account could alter the outcome of the case.24

After going over the records of the case, we find no compelling reason to disturb the findings of the
trial court with respect to the credibility of Emolyn. Contrary to appellant’s assertion, we find that she
took no delay in relating the killing of her brother to the police authorities. Emolyn testified that
shortly after the killing of her brother, she submitted herself for investigation before the police
authorities of Burauen, Leyte. However, the chief of police informed her that she could not execute
an affidavit because she is a sister of the victim, but if the court would need her, then she can
execute an affidavit. Unschooled on the rules on evidence, it is but natural for Emolyn to have readily
accepted the explanation of the chief of police. In her direct examination, she testified, thus:

Q Now, shortly after the killing of your brother were you investigated by the police in
connection with the killing of your brother?

A We were investigated by the Chief of Police of Burauen, Leyte.

Q When you said ‘we’, to whom are you referring?

A Me and Rommel Redoña because we were the companions of my brother Marlo Casiong.

Q It is clear now that only you and Rommel Redoña were the companions of Marlo Casiong
on that fateful evening?

A Yes sir.

Q In the course of your investigation by the Chief of Police of Burauen relative to the killing of
your brother, was that investigation conducted on your person reduced into writing?

A The Chief of Police told me that when needed I might be investigated by the Court, I was
not asked to execute an affidavit, it was only Rommel Redoña who executed an affidavit.

Q So no affidavit was made by the police when you were investigated?

A None because the Chief of Police informed me that Rommel Redoña would only be the
one to execute an affidavit but if the Court would need me then I will execute an affidavit
because I am a sister of the victim and I may not be allowed.25

And on her cross-examination, to wit:

Q Being the witness will you tell us were you the one who reported this incident to the
police?

A My mother.

Q Being an alleged eye witness did you submit yourself for investigation by the police?

A My affidavit was not prepared because according to the chief of police of Burauen, Leyte I
cannot have my affidavit because I am the sister of the victim and only Rommel Redoña was
prepared.
 Q Sister of whom?

A Marlo Casiong.

....

COURT:

Q Who is the police who said because you are the sister of the victim you cannot have an
affidavit?

A The Chief of Police Nuevarez, the one who prepared the affidavit of Rommel was sir
Juanico.

ATTY SAY:

Q Will you still insist that Nuevarez refused to take your affidavit because you are a sister of
the victim?

A Yes, sir.

Q Even if we present Nuevarez in the witness stand you will still insist?

A Yes, sir.

Q Is it not a fact that your affidavit could not be taken because you were still in Manila?

A I was in Burauen, Leyte when that incident occurred.

Q But one thing is you have been in Manila?

A I went to Manila in 1994 already I went after Rommel Redoña.

Q The deceased Marlo Casiong was a very close, aside from being your brother you were
very closely associated with him?

A Yes, sir.

Q And you want to do anything for him?

A I will do everything because I was there when the incident took place.26

As to her apparent delay in testifying, Emolyn explained that she would not have appeared as a
witness if Rommel Redoña testified. However, she clarified that she only appeared as a witness
when the case was being tried by the trial court because she was left with no choice but to testify in
place of Rommel Redoña who told her that he no longer wanted to be a witness because he was
being threatened by appellant, to wit:

Q What was your purpose in going after Rommel Redoña in Manila?

A Because a subpoena reached us informing us that the one who killed my brother had
already been apprehended and because he was one of the eye witness I have to fetch him in
Manila and I even went there twice and my mother went there third time, only last November.

Q Do you know the reason why he went to Manila despite the fact that he is one of the
witnesses in this case?

A When I went to Manila I met him and he told me Molin I really cannot testify because I
have been threatened by Ricky and company.

...

RE-CROSS BY ATTY. SAY:

Q Now since Rommel Redoña refused to testify you have to testify despite the fact that you
were told by the chief of police Nuevarez that you cannot testify in this case being a sister of
the victim?

A The chief of police there Nuevarez told me that if ever I will be needed by this Court I could
testify but only, my affidavit cannot be prepared then because I was the sister.

Q Then how did you know that the court needed your testimony?

COURT:

Q Were you subpoenaed by the Court?

A No.

ATTY. SAY:

Q So it was not the court actually required your testimony because you did not receive
subpoena?

A I did not receive any subpoena but Rommel Redoña whom I met many times was firm that
he cannot testify because he would be killed by the accused and because it was only the
three of us, Rommel, myself and the victim who went to the dance.

Q It is only reason why you testified in this case because Rommel Redoña has manifested
that he will not testify?

A Yes, sir.

COURT:

Q So if Rommel Redoña would have testified in Court you do not need to testify?

A I will not anymore because I have no affidavit.

Q It was your lawyer Atty. Adaza who adviced you to testify in this case?
 A He did not, because we could not find any other witness I have to testify.

Q Your lawyer did not advice you to testify?

A No, Your Honor.

Q Your lawyer did not say that you are not qualified to testify in this case because you are a
sister?

A No, Your Honor.

Q So you are testifying to substitute only the testimony of Rommel Redoña?

A Yes, your Honor, because Rommel Redoña did not want to testify anymore and we could
not find any other witness and since I was with them when the incident occurred, I testified
here.27

Moreover, we agree with the observation of the Office of the Solicitor General (OSG) that the
apparent delay in Emolyn’s appearance as a witness is explained by the fact that while a complaint
against appellant and his co-accused was filed as early as May 7, 1992, the case was archived
because all the accused remained at-large.28 It was only on August 18, 1994 that appellant was
arrested, which sufficiently explains why Emolyn was only able to appear as a witness on February
21, 1995.

Appellant further attacks the veracity of Emolyn’s testimony by calling our attention to some
purported inconsistencies and improbabilities in her account of the events that took place prior to
and during the stabbing of Marlo. Appellant contends: It could not have been possible for Emolyn to
overhear the conversation that took place between Salvacion and Marlo while they were dancing
because the music was loud, the beat was fast and furious, and Emolyn was engrossed in her
dancing. It was impossible for Emolyn to hear Edgardo Detona, Canoto Cabero and appellant ask
permission from their respective dancing partners before going out of the dance hall because
Emolyn went out of the dance hall ahead of them. Emolyn failed to accurately recall the sequence of
events that led to the stabbing of Marlo. She could not have witnessed Marlo’s stabbing as she
admitted that it was dark where the incident took place.

We are not convinced by appellant’s contentions.

First, it is not improbable for Emolyn to overhear the conversation between Salvacion and Marlo
while they were dancing because she (Emolyn) testified that she was just one meter away from
Salvacion and Marlo at that time. The fact that they were dancing, that the music is loud and that
there is another couple between them and her does not discount the possibility that she could have
heard them talking. Given the above circumstances, it is expected of Salvacion and Marlo to have
raised their voices in order to hear each other, which then enabled Emolyn to hear their
conversation.

Second, while Emolyn admitted that she and Rommel started to go out of the dance hall ahead of
Edgardo, Canoto and appellant, she sufficiently explained that she was able to hear the three men
talk to their respective partners because she was still near them when they asked permission from
their partners. Emolyn explained thus:
 Q How about Canuto Cavero when he went out together with Ricky Quimson, Edgardo
Detuna, did Canuto Cavero also leave his partner?

A He told his partner to wait for a while because he will be going out.

Q How about Edgardo Detuna he also left his partner when he went out?

A He also told his partner to wait for a while because he will be going out.

Q And likewise, Ricky Quimson also told his partner to wait for a while because he will be
going out?

A Yes.

Q So, in other words the three gentlemen Canuto Cavero, Edgardo Detuna and Ricky
Quimson left their partners because they will be going out for a while?

A Yes.

Q You are sure of that, you cannot be mistaken?

A I will not be mistaken.

Q You are very sure because you heard each one of them, Canuto Cavero, Edgardo Detuna,
and Ricky Quimson left their respective partners and told them, ‘Wait because I am going out
for a while’, you cannot be mistaken.

A Yes because we were close to each other.29

As to who went ahead of whom, Emolyn satisfactorily explained as follows:

Q In other words it is very clear that after Salvacion Lacsarom and your brother left you
immediately followed because you were were deeply alarmed leaving inside the hall Edgardo
Detuna, Canuto Cavero and Ricky Quimson?

A Edgardo Detuna and Canuto Cavero were already outside ahead of us.

Q Do you mean to tell us that Edgardo Detuna and Canuto Cavero left the hall ahead of
Salvacion Lacsarom and Marlo Casiong?

A The two, Canuto Cavero and Edgardo Detuna were able to reach outside ahead of Marlo
Casiong and Salvacion Lacsarom because they walked fast.

Q But the fact is, Salvacion Lacsarom and Marlo Casiong left the dancing hall ahead of
everybody?

A They went out ahead but they were overtaken by Canuto Cavero and Edgardo Detuna.

Q So it is not correct to say that you were the one who immediately followed Salvacion
Lacsarom and Marlo Casiong because according to you Edgardo Detuna and Canuto
 Cavero followed Salvacion Lacsarom and Marlo Casiong, you were not the one who
immediately followed the pair but Edgardo Detuna and Canuto Cavero, is that correct?

A No because Edgardo Detuna and Canuto Cavero were faster and they went out the
shorter way while I followed Marlo Casiong and Salvacion Lacsarom who took a little slower
in going out.

...

Q How about Ricky Quimson, was he still dancing when you immediately followed Salvacion
Lacsarom and Marlo Casiong outside?

A He was already outside the dancing hall because he followed Canuto Cavero and Edgardo
Detuna.

Q But he was behind Edgardo Detuna and Canuto Cavero?

A Yes.30

Third, we find that the alleged probabilities and inaccuracies committed by Emolyn in recounting the
events that took place prior to and during the stabbing of Marlo refers to trivial matters that do not
refer to material points and do not detract from Emolyn’s clear and positive testimony that she saw
appellant and the other accused stab and kill her brother.

Settled is the rule that inconsistencies in the testimony of prosecution witnesses with respect to
minor details and collateral matters do not affect either the substance of their declaration, their
veracity, or the weight of their testimony.31 In fact, such minor flaws may even enhance the worth of
a testimony, for they guard against memorized falsities.32

Fourth, while Emolyn testified that it was dark inside the dance hall, it is also clear from her
testimony that the stabbing took place outside the hall and there were fluorescent bulbs near the
places where Marlo was stabbed by Canoto, Edgardo and appellant. When cross-examined, she
testified as follows:

Q How many times did you meet the accused in dances?

A Several times because we meet at dances whenever there is one.

Q This incident happened outside the dancing hall, is that correct?

A Yes.

Q But the alleged bumping of Ricky Quimson by Marlo Casiong happened inside the dancing
hall?

A Yes.

Q And it happened while the dance was going on?

A The dance was in progress but the four of them went out.33
Emolyn testified further:

Q What kind of light was illuminating the dancing hall?

A Fluorescent bulbs.

Q How many fluorescent lamps were there?

A There were two outside and one was at the gate of the health center and one at the gate of
the dancing hall.

Q How far was the nearest fluorescent lamp where the first stabbing of the victim was made?

A Witness points to a distance which indicated 4 meters when measured.

Q How high was the fluorescent lamp from the ground?

A About 2 meters and 35 cms. high from the floor.

Q At the health center where Marlo Casiong was attacked by Ricky Quimson, how far was
the fluorescent light?

A Witness points to a distance which indicated 4 meters when measured.

Q How about the lamp from the ground, how high?

A The same height, about 2 meters and 35 cms. from the ground.34

We have held that kerosene lamp, flashlight, even moonlight or starlight may, in proper situations, be
considered sufficient illumination.35 In the instant case, the fluorescent bulbs situated near the places
where appellant and his companions attacked Marlo enabled Emolyn to witness the killing of her
brother.

Thus, we reiterate the well-entrenched rule that in assessing the credibility of witnesses, the factual
findings of the trial court should be respected. The judge a quo was in a better position to pass
judgment on the credibility of witnesses, having personally heard them when they testified and
observed their deportment and manner of testifying.36

Appellant interposes the defense of alibi. However, alibi, like denial, is an inherently weak defense
as it is easy to concoct and difficult to prove.37 While appellant’s testimony is corroborated by
defense witness Rellesiva and Lobriquito, the trial court correctly gave more probative weight to the
lone testimony of prosecution witness Emolyn who positively identified appellant as one of the
perpetrators of the crime.

Appellant’s defense of alibi fails in the face of Emolyn’s positive identification of him as one of her
brother’s killers. Positive identification destroys the defense of alibi and renders it impotent,
especially where such identification is credible and categorical.38 The defense of denial is unavailing
when placed astride the undisputed fact that there is positive identification of the felon.39
We affirm the trial court’s finding that there was treachery in the killing of Marlo. There is treachery
when the offender commits any of the crimes against the person, employing means, methods or
forms in the execution thereof which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make.40 The essence of treachery is
the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of
any real chance to defend himself and thereby ensuring its commission with no risk to the
aggressor.41 In the present case, Marlo accepted Salvacion’s invitation for them to go outside the
dance hall on the impression that the latter has something important to tell him. He has no inkling of
any impending danger on his life as he even told his sister, Emolyn, to wait for him because he will
be coming back.42 Outside the dance hall, as soon as Salvacion pushed Marlo towards them, Canoto
and Edgardo immediately attacked him without warning, inflicting wounds on the front and back
portions of his body with the use of bolos. Although this initial assault on Marlo was frontal it may still
be considered treacherous because the attack was sudden and unprovoked. There is no evidence
showing that the attack was preceded by any exchange of words or any untoward incident between
the assailants and Marlo, sufficient to warn Marlo of the impending attack on him. The mode of
execution was in such a manner that Marlo was left with no opportunity to repel the attack or avoid it.
Moreover, he was unarmed while all three assailants were carrying deadly weapons. The treachery
continued when appellant held the hands of Marlo as the latter was running away from the initial
stabbings of Canoto and Edgardo, rode on Marlo’s back when the latter fell down and repeatedly
stabbed Marlo who had already been rendered weak by the multiple stab wounds inflicted by
Edgardo and Canoto. Appellant attacked Marlo from behind and repeatedly stabbed Marlo when he
was already in a defenseless position.

In any criminal prosecution, the only requisite is that the prosecution proves the guilt of the accused
beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof
that, excluding the possibility of error, produces absolute certainty. Moral certainty only is required,
or that degree of proof which produces conviction in an unprejudiced mind.43

Hence, we uphold the trial court’s judgment declaring appellant guilty of murder beyond reasonable
doubt. The attendant circumstance of treachery qualified the killing to murder as defined under
paragraph 1, Article 248 of the Revised Penal Code. Since treachery attended the killing, abuse of
superior strength alleged in the Information is absorbed by said circumstance.44

Aside from abuse of superior strength, no other aggravating circumstance was alleged and proved
by the prosecution.

In a criminal case, an appeal throws open the entire case wide open for review, and the appellate
court can correct errors, though unassigned, that may be found in the appealed judgment.45

It appears in the Commitment Order, dated August 14, 1994, issued by the Municipal Trial Judge of
the Municipal Trial Court of Burauen, Leyte, that appellant "voluntarily surrendered to SPO1 Josefino
Agustin of PNP Burauen, Leyte on August 18, 1994".46 An examination of the records reveals that it
can not be considered as a mitigating circumstance. For the mitigating circumstance of voluntary
surrender to be appreciated, the accused must satisfactorily comply with three requisites: (1) he has
not been actually arrested; (2) he surrendered himself to a person in authority or the latter’s agent;
and (3) the surrender is voluntary. There must be a showing of spontaneity and an intent to
surrender unconditionally to the authorities, either because the accused acknowledges his guilt or he
wishes to spare them the trouble and expense concomitant to his capture.47

The "surrender" of appellant was far from being spontaneous and unconditional. The warrant of
arrest is dated June 17, 1992 and all the accused, including appellant, remained at-large, which
prompted the Executive Judge of the Regional Trial Court of Palo, Leyte to archive the case.48 It took
appellant two years before he finally "surrendered" to the police. In between said period, appellant,
through counsel, filed a Motion to Fix Bail Bond49 without surrendering his person to the jurisdiction
of the trial court. Records do not reveal that the motion had been acted upon by the trial court. This
act of appellant may be considered as a condition set by him before he surrenders to proper
authorities, thus preventing his subsequent act of surrendering from being considered as a mitigating
circumstance.

Moreover, we noted in the Motion to Fix Bail Bond, filed on July 9, 1992, that counsel for appellant
alleged that appellant "is barely 15 years of age". When appellant was called to the witness stand on
August 2, 1996, or four years thereafter, appellant asserted that he was 21 years old. The stabbing
incident took place on March 7, 1992, thus placing appellant to be 17 years old, a minor, when he
committed the crime. The records do not show that the prosecution refuted appellant’s minority; and
absent any evidence to the contrary, the trial court should have applied in favor of appellant the
benefits under Article 68 of the Revised Penal Code, to wit:

Art. 68. Penalty to be imposed upon a person under eighteen years of age. –

...

2. Upon a person over fifteen and under eighteen years of age the penalty next lower
than that prescribed by law shall be imposed, but always in the proper
period. (Emphasis supplied)

Under Article 248 of the Revised Penal Code, the perpetrator of the crime of Murder shall be
punished by reclusion perpetua to death. Applying the express provision of the aforequoted Article
68 and pursuant to Article 61, paragraph 2, of the same Code, to wit:

Art. 61. Rules of graduating penalties. - . . .

1. When the penalty prescribed for the felony is single and indivisible, the penalty
next lower in degree shall be that immediately following that indivisible penalty in the
respective graduated scale prescribed in Article 71 of this Code.

...

the imposable penalty is reclusion temporal or 12 years and 1 day to 20 years.

Considering the actual penalty to be imposed upon appellant, as prescribed by law, is not reclusion
perpetua or death, appellant is entitled to the application of the Indeterminate Sentence Law.50 Thus,
from the penalty of reclusion temporal, one degree lower is prision mayor or 6 years and 1 day to 12
years from which will be drawn the MINIMUM period of the indeterminate sentence; while pursuant
to paragraph 2, Article 64 of the Revised Penal Code, in the absence of any modifying circumstance,
the penalty prescribed by law should be imposed in its medium period, or anywhere between 14
years, 8 months and 1 day to 17 years and 4 months, as the MAXIMUM period of the indeterminate
sentence.

We now come to the civil liability of appellant.

As to actual damages, we find that the evidence presented by the prosecution do not adequately
provide a concrete basis for the amount of ₱53,000.00 awarded by the trial court to the victim’s
mother, Erlinda Casiong. She testified that her family incurred expenses amounting to ₱50,206.00,
during the wake and burial of her son. As proof, she presented seven official receipts amounting to
₱4,490.00 only.51 Other evidence consisting of small pieces of paper which were properly identified
by Erlinda as having been signed by the persons from whom she bought the merchandise that were
used or consumed during Marlo’s wake and burial, amounting to ₱4,020.0052 may be considered
competent evidence and admitted under Section 22, Rule 132 of the Rules of Court.53 Thus, the
prosecution was able to prove only a total of ₱8,510.00. The other receipts presented were not
properly identified and therefore inadmissible under the Rules of Court.

Nonetheless, in our recent rulings, we have held that in cases where the heirs of the victim failed to
prove their claim for actual damages, but have shown that they have suffered pecuniary loss by
reason of the death of the victim, an award of ₱25,000.00 by way of temperate damages is justified
in lieu of an award of actual or compensatory damages.54 In People vs. Villanueva,55 we held that in
cases where actual damages was proven by receipts during the trial but said damages amounted to
less than ₱25,000.00, as in the present case, the award of temperate damages in the amount of
₱25,000.00 is justified in lieu of said actual damages. The rationale for such an award of temperate
damages is that it would be anomalous and unfair for the heirs of the victim, who by presenting
receipts, tried and succeeded in proving actual damages but in an amount less than ₱25,000.00, to
be placed in a worse situation than those who might not have presented any receipts at all but would
be entitled to ₱25,000.00 for temperate damages.56

Erlinda Casiong testified that her son was single when he died;57 that she felt sad when her son was
killed.58 We find her testimony sufficient to sustain the trial court’s award of moral damages but we
reduce the amount of ₱75,000.00 to ₱50,000.00 in line with current jurisprudence.59

Erlinda Casiong further testified that her son was working as a helper in a passenger bus.60 The
indemnification for loss of earning capacity partakes of the nature of actual damages which must be
duly proved.61 In the absence of competent evidence to prove how much the victim was earning, the
heirs of the victim are not entitled thereto.

The trial court did not award civil indemnity. In consonance with prevailing jurisprudence, we award
the amount of ₱50,000.00 to the heirs of Marlo Casiong as civil indemnity for his death. The amount
is awarded without need of proof other than appellant’s commission of the crime which resulted in
the death of the victim.62

WHEREFORE, the decision of the Regional Trial Court of Tacloban City (Branch 15) is AFFIRMED
with MODIFICATIONS. Appellant Ricky Quimzon is found GUILTY beyond reasonable doubt of the
crime of MURDER and after applying The Indeterminate Sentence Law, and there being no
modifying circumstance, he is sentenced to suffer imprisonment, from eight (8) years and one (1)
day of prision mayor as MINIMUM up to fourteen (14) years and ten (10) months of reclusion
temporal as MAXIMUM. He is ordered to pay Erlinda Casiong, the mother of the deceased Marlo
Casiong, the amounts of ₱50,000.00 as civil indemnity for the victim’s death; ₱25,000.00 as
temperate damages; and ₱50,000.00 as moral damages.

Costs de oficio.

SO ORDERED.

[G.R. No. 141217. September 26, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. EUSEBIO
DUBAN y DOMINGO @ JUN, appellant.

DECISION
CARPIO-MORALES, J.:

From the decision of the Regional Trial Court, Branch 18, Manila finding
[1]

appellant Eusebio Duban y Domingo guilty beyond reasonable doubt of

murder for the killing of Dionisio Barboza (the victim) and sentencing him to
suffer the penalty of reclusion perpetua, he comes to this Court on appeal.
In an information dated October 28, 1997, appellant was indicted as
[2]

follows:

That on or about October 9, 1997 at 11:00 am, in the City of Manila, Philippines, the
said accused did then and there willfully, unlawfully and feloniously, with intent to
kill and with treachery and evident premeditation, attack, assault and use personal
violence upon DIONISIO BARBOZA by then and there striking him with a stone at
the back of his head, thereby causing traumatic head injury which cause (sic) his death
thereafter.

Contrary to law.

Upon arraignment on November 18, 1997, appellant, assisted by

[3]

counsel de oficio, entered a plea of not guilty. Thereafter, trial on the merits
ensued.
On October 9, 1997, at 11:00 a.m., appellant admittedly hurled at the
victim a stone estimated to weigh one kilo, hitting the victim at the right rear
portion of his head and ear, causing him to fall on the ground
unconscious. The victim died hours later after he was brought to the Jose
Reyes Memorial Medical Center.
Appellant claimed self-defense, however. The prosecution claimed
otherwise, alleging that it was plain murder.
From the evidence of the prosecution, the following version is
established. While prosecution witness Dionisio Poquiz, a jeepney driver, was
outside his house at Ramon Magsaysay Boulevard, Sta. Mesa, Manila, the
victim, a coconut vendor, passed by, pushing a cart loaded with
coconuts. Poquiz bought coconut juice and repaired to the rear seat of his
parked jeepney where he sat. As Poquiz was drinking the coconut juice,
appellant approached the victim who was standing and waiting for a customer
beside his cart. When appellant, a jeepney barker, was about a meter away
from the victim, he suddenly hurled the stone which hit the right rear portion of
his head and ear. Appellant then speedily left, foiling Poquizs attempt to
apprehend him.
The postmortem examination conducted on the victim by Dr. Ravell
Ronald R. Baluyot of the National Bureau of Investigation Medico-Legal
Division showed the following findings:

Cyanosis, lips and nailbeds.

Blood, oozing from right ear.
Lacerated wound, stellate 2.6 x 1.5 cms., scalp, post-auricular area, right.
Scalp Hematoma, right, extensive.
Fracture, skill bones: middle and posterior fossae, linear, right.
Intracranial hemorrhage: Epidural, right parietal area; Subdural and
subarachnoid right cerebral hemisphere, extensive.
Visceral organs, congested.
Stomach, contains a small amount of brownish fluid. (Underscoring
[4]

supplied)
Upon the other hand, appellant detailed his self-defense as follows:
At about 12:00 noon of October 9, 1997, after alighting from a jeepney at
the de la Fuente jeepney station, as he was walking on his way home, a
jeepney driver whose name he no longer remembers, asked him to drink
liquor with him. He declined the invitation as he had not yet eaten. The drunk
companion of the driver (the victim) whom he met for the first time got a glass
of gin, however, and echoed the offer, but he just the same declined it,
prompting the victim to throw the contents of the glass at his face.
Appellant thus shouted invectives at the victim who then took a bolo from
the jeepney which he tried to hit him with, but which he (appellant) was able to
evade.
[ATTY. OSORIO:]
Q: So what did you do when that somebody tried to hit you but missed it (sic)?
A: They were inside the jeepney at the time drinking and they alighted from the jeep.
COURT
Q: How about you what did you do?
A: I also got off from the jeep and I evaded the blows of the bolo aimed at me.[5]

Continuing, appellant claimed that as the victim ran after him, he ran
around the jeepney because there was an obstruction. Appellant thus took a
stone placed under the tire of the jeep and with his right hand he threw it at
the victim while the latter was approaching him at a distance of about 3
meters. The stone hit the victim on the [r]ight side of his head, thus causing
[6]

him to fall down. Appellant thereafter ran away and went home.
Brushing aside appellants claim of self-defense, the trial court found him
guilty beyond reasonable doubt of murder by Decision of November 15, 1999,
the dispositive portion of which is quoted verbatim:

WHEREFORE, the Court finds the accused, Eusebio Duban y Domingo, guilty
beyond reasonable doubt of the crime of murder under Article 248 of the Revised
Penal Code and hereby sentences him to suffer the penalty of reclusion perpetua with
all the accessory penalties provided by law and to pay the costs.

On the civil liability of the accused, the Court further sentences him to pay the legal
heirs of the victim, Dionisio Barboza, moral and nominal damages in the respective
sums of P200,000.00 and P70,000.00, and an additional sum of P50,000.00, for the
loss of the victims life with interest thereon at the legal rate of 6% per annum from
today until fully paid.

SO ORDERED.

Hence, the present appeal anchored on the following assigned errors: [7]

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT

WHEN HIS GUILT HAS NOT BEEN PROVEN BEYOND REASONABLE
DOUBT.

ASSUMING ARGUENDO THAT ACCUSED-APPELLANT IS GUILTY, THE

TRIAL COURT ERRED IN CONVICTING HIM WITH THE CRIME OF MURDER
WHEN THE QUALIFYING CIRCUMSTANCE OF TREACHERY HAS NOT
BEEN PROVEN BEYOND REASONABLE DOUBT. (Underscoring supplied)

Appellant contends that the testimony of eyewitness Poquiz, even if he

was not shown to have been actuated by any improper motive, is full of
improbabilities, hence, it cannot prevail over his (appellants) testimony. [8]

Appellant cites Poquizs testimony that he (appellant) was one arms length
away from the victim as was Poquiz from the victim. If that were the case,
appellant argues, there would have been no need for him to throw the stone at
the victim and Poquiz could have easily apprehended him (appellant).
[9]

Whether Poquiz estimated the correct distance from where he was in

relation to where appellant and the victim were is immaterial, however,
appellant having himself admitted throwing the stone at the victim.
 Admittedly, Poquiz was not prompted by ill motive to falsely testify against
appellant, hence, his testimony should be entitled to full faith and credit. [10]

Additionally, by appellants account, he, who is right-handed, threw the

[11]

stone at the victim who was about 3 meters away, while the latter was facing
and approaching him with a bolo. But the victim was admittedly hit at the
right rear portion of the head, a fact confirmed by the above-stated result of
[12]

the postmortem examination of the victim. As thus observed by the trial court,
appellants version cannot be believed. For, it is highly improbable that the
victim could be hit at the right rear portion of his head if he and appellant
were facing each other and appellant threw the stone with his right hand, or [13]

that the victim could be hit at the same right rear portion of his head if he were
chasing appellant.
Neither can appellants claim that the victim was very drunk and armed
with a bolo be believed. The result of the postmortem examination of the
victim gave no indication that he was drunk. As for the claim that the victim
was armed with a bolo, why appellant did not take the bolo, if indeed he had,
after the victim fell down on being hit, is contrary to human experience. For an
innocent man under similar circumstances would naturally take it with him to
prove his claim of self-defense. Such course of action is fatal to such claim of
appellant. And so is his running away from the scene of the incident, for a
[14]

truly innocent person would normally report the matter to the police. But [15]

appellant did not. Instead, he immediately fled.

And while appellant claimed during direct examination that he told his side
of the incident when he was arrested two weeks later, the police progress
[16]

report accomplished on his arrest shows that he, after being apprised of his
[17]

constitutional rights and of the charge against him, opted to remain silent.
Persons who act in legitimate defense of their persons or rights invariably
surrender themselves to the authorities and describe fully and in all candor all
that has happened with a view to justify their acts. But appellant did not.
[18]

In fine, appellants version of the incident and his actuations soon after do
not speak of his innocence.
The trial court did not err thus in not crediting appellants claim of self-
defense. Neither did it err in appreciating the presence of treachery in the
killing.
The essence of treachery is that the attack is deliberate and without
warning, done in a swift and unexpected manner of execution, affording the
hapless and unsuspecting victim no chance to resist or escape. In the case
[19]
at bar, the victim was standing and selling coconut, totally oblivious of any
[20]

impending harm when appellant suddenly threw the stone from behind him.
There is no doubt then that appellant is guilty of murder, penalized under
Article 248 of the Revised Penal Code, as amended by Republic Act No.
7569. There being neither mitigating nor aggravating circumstance, the lesser
penalty of reclusion perpetua was correctly imposed by the trial court,
pursuant to Article 63(2) of the Revised Penal Code. [21]

As to the civil aspect of the case, in line with prevailing jurisprudence, the
award of indemnity to the heirs of the victim in the amount of P50,000.00 is
affirmed, it being awarded without need of proof other than the fact that a
crime was committed resulting in the death of the victim and that the accused
was responsible therefor. [22]

As for the award by the trial court of moral damages to the legal heirs of
the victim in the amount of P200,000.00, not only is the amount exorbitant,
there is also no evidence to show that the legal heirs of the victim suffered any
mental anguish or serious anxiety arising from the victims death.
The award of P70,000.00 for nominal damages must be deleted for lack of
factual and legal basis.
This Court notes that while Rolly Barboza, the victims brother, testified that
the victims family incurred medical and funeral expenses in the amount
of P65,000.00, he, in support thereof, presented a list of expenses. Only
[23]

substantiated and proven expenses, however, or those that appear to have

been genuinely incurred in connection with the death, wake or burial of the
victim will be recognized in court. A list of expenses is not considered a
[24]

competent proof and cannot replace the official receipts necessary to justify
the award of actual damages. Neither can the funeral contract submitted in
[25] [26]

evidence by the prosecution be sufficient, it not being proof that what was
stipulated therein was eventually paid. [27]

Nonetheless, where no sufficient proof of actual damages is presented in

the trial court (or when the actual damages proven is less than P25,000.00),
the amount of P25,000.00 as temperate damages may be awarded, it being
reasonable to presume that when death occurs, the family of the victim
necessarily incurs expenses for the wake and funeral. [28]

Under Article 2206 of the Civil Code, the heirs of the victim are entitled to
indemnity for loss of earning capacity. Ordinarily, documentary evidence is
necessary for the purpose. By way of exception, testimonial evidence may
suffice if the victim was either (1) self-employed, earning less than the
minimum wage under current labor laws, and judicial notice may be taken of
the fact that in the victims line of work, no documentary evidence is available;
or (2) employed as a daily-wage worker earning less than the minimum wage
under current labor laws. In the case at bar, however, while the victims
[29]

brother testified that the victim earned P300.00, he did not indicate whether
the same referred to the victims hourly, daily, monthly or annual income. [30]

Indemnification for loss of earning capacity partakes of the nature of actual

damages which must be duly proven by competent proof and the best
[31]

obtainable evidence thereof. [32]

Exemplary damages must be awarded too in accordance with Article 2230

of the Civil Code, the qualifying circumstance of treachery being present. [33]

Finally, the award by the trial court of interest on damages at the legal rate
of 6% per annum is in accordance with Article 2211 of the Civil Code which
states that in crimes and quasi-delicts, interest as part of damages may, in
proper cases, be adjudicated in the discretion of the court, and none has been
shown that there has been abuse in the exercise thereof. [34]

WHEREFORE, the decision of the Regional Trial Court of Manila, Branch

18, finding appellant EUSEBIO DUBAN y DOMINGO guilty beyond
reasonable doubt of Murder and sentencing him to suffer the penalty
of reclusion perpetua is hereby AFFIRMED. The civil aspect of the case is
MODIFIED to read as follows: Appellant is hereby ORDERED to pay the heirs
of Dionisio Barboza the amounts of P50,000.00 as civil indemnity for his
death, P25,000.00 as temperate damages, and P25,000.00 as exemplary
damages, with legal interest to be paid at SIX PERCENT (6%) on the amount
due computed from the promulgation of the decision of the trial court on
November 15, 1999.
SO ORDERED.
G.R. No. 145993 June 17, 2003

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
RUFINO MALLARI y ILAG, Appellant.

DECISION

DAVIDE, JR., C.J.:

In its decision of 16 June 2000, in Criminal Case No. 9621-B, the Regional Trial Court, Branch 25, of
Biñan, Laguna, convicted appellant RUFINO MALLARI y ILAG of murder and sentenced him to
suffer the penalty of death for having fatally bumped Joseph Galang with an Isuzu Canter Elf truck.
On 12 December 1996, an information1 for Murder was filed against Rufino, the accusatory portion of
which reads:

That on or about July 7, 1996, in the Municipality of Sta. Rosa, Province of Laguna, Philippines, and
within the jurisdiction of this Honorable Court, accused Rufino Mallari y Ilag, with intent to kill, with
evident premeditation, treachery and with the use of motor vehicle, did then and there willfully,
unlawfully, and feloniously hit and bump with his driven Brand New Isuzu Canter Elf with conduction
sticker number 33 LAB one Joseph Galang, thereby inflicting [on] him mortal wounds on the head
which directly cause[d] his death, to the damage and prejudice of his surviving heirs.

That the crime was committed by means of a motor vehicle as a qualifying circumstance.

CONTRARY TO LAW.

At his arraignment, Rufino pleaded not guilty to the crime charged. At the trial on the merits, the
prosecution presented as witnesses Liza Galang, Edgar Bawar, and Dr. Erwin Escal; while the
defense presented Rufino himself, Myrna Mallari, Dr. Divina Palarca, and Dr. Escal.

Liza Galang testified that on 7 July 1996 at around 4:00 p.m., her common-law husband Joseph
admonished Rufino and his brothers Ino and Felix Mallari not to drive fast while passing by Joseph’s
house. Rufino and his brothers, who were then hot-tempered, challenged Joseph to a fight. The
latter just ignored the challenge; and, instead he and his own brothers Radi and Manny asked
apology from Rufino.2

Later that afternoon, while Joseph and Liza were watching a basketball game at the barangay
basketball court, Rufino and his brothers, who were then carrying bladed weapons, arrived and
attempted to stab Joseph; but Joseph was able to run away. When they were not able to catch up
with him, Rufino boarded and drove the truck parked near the basketball court and continued
chasing Joseph until the truck ran over the latter, which caused his instantaneous death.3

Liza further testified that at the time of his death, Joseph was 37 years old. He was a foreman in a
construction firm with a daily income of ₱350 and also a carpenter and mason with a daily income of
₱250. She spent less than ₱20,000 for the coffin, tomb, funeral, and other expenses during the wake
of Joseph.4

Edgar Bawar, a friend of Joseph, testified that at 6:24 p.m. on 7 July 1996, while Joseph was
watching a basketball game, Rufino and his brothers Ino and Felix, who were carrying bladed
weapons, arrived and chased Joseph. Joseph ran away, and Rufino pursued him with the truck.
Upon catching up with him, Rufino bumped Joseph, as a result of which the latter died on the spot.5

Dr. Erwin Escal testified that the cause of death of Joseph, as stated in the Medico-Legal
Report,6 was "[c]rushing injury on the head secondary to vehicular accident." Joseph’s head was
deformed with multiple skull fractures and lacerations and brain tissue evisceration.7

The defense had a different story. Rufino testified that on 7 July 1996 at around 6:30 p.m., while he
was driving a truck at a speed of eighty kilometers per hour, with his wife Myrna seated on the
passenger side, he saw Joseph on the road about four meters away from him. Rufino, who was then
on his way to the garage to park the truck, blew thrice the horn. But Joseph went to the middle of the
road and threw stones, which went through the windshield and hit Rufino on the chest. As a result
thereof, Rufino lost control of the truck, and ran over Joseph. Because of fear, Rufino did not alight
from the truck; instead, he proceeded to the municipal hall of Sta. Rosa, Laguna, where he
surrendered and was immediately detained.8
Myrna Mallari testified that prior to the incident in question, she saw Joseph at the basketball court.
He was apparently drunk and was carrying a "balisong." Much to her consternation, he gave her a
dagger look. Myrna reacted by simply crying and going inside her house. She corroborated Rufino’s
testimony that while Rufino was driving the truck, Joseph threw stones, which went through the
windshield and hit the chest of Rufino.9 As a result of which, Rufino had chest pains and vomited
blood while in detention.

Dr. Divina Palarca testified that she examined Rufino on 29 October 1996 and found him to be
suffering from pulmonary tuberculosis, which possibly could have afflicted him six months prior to its
discovery.10 Dr. Escal confirmed the testimony of Dr. Palarca, as in fact, it was he who diagnosed the
illness of Rufino.11

The trial court gave full credence to the testimonies of prosecution witnesses Liza Galang and Edgar
Bawar that Rufino deliberately bumped Joseph. Appreciating the qualifying circumstance of use of
motor vehicle, it convicted Rufino of murder and sentenced him to suffer the death penalty and to
pay the victim’s heirs ₱100,000 as compensatory damages; ₱75,000 as moral damages; ₱50,000 as
exemplary damages; and costs.12

The case is now before us on automatic review pursuant to Article 47 of the Revised Penal Code, as
amended.

In his Appellant’s Brief, Rufino imputes to the trial court the following errors:

… IN FINDING THAT THE INCIDENT WHICH KILLED JOSEPH GALANG WAS DONE BY
ACCUSED-APPELLANT WITH CRIMINAL INTENT AND MALICE.

II

… IN CONSIDERING THE USE OF A MOTOR VEHICLE AS A QUALIFYING CIRCUMSTANCE IN

THE IMPOSITION OF THE DEATH PENALTY.

III

… IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER.13

We note that in his prayer in the Appellant’s Brief, Rufino seeks his acquittal of the crime of murder,
or in the alternative, his conviction for homicide only. In his discussion of his first and second
assignments of error, however, Rufino does not seek his acquittal but merely the downgrading of his
crime from murder to homicide on the grounds that no evident premeditation was proved and that
the motor vehicle was merely incidental to the commission of the crime. In his third assignment of
error, Rufino argues that voluntary surrender should have been appreciated as a mitigating
circumstance in his favor, considering that after the bumping incident, he proceeded to the municipal
hall of Sta. Rosa, Laguna, where he was immediately detained.

In its Appellee’s Brief, the Office of the Solicitor General (OSG) seeks the affirmance of Rufino’s
conviction but argues that the penalty to be imposed on him should be reclusion perpetua only
because of the presence of the mitigating circumstance of voluntary surrender.
In view of the diametrically opposed versions of the prosecution and the defense, the resolution of
the present case hinges on the credibility of the witnesses who had come forward to testify. We have
long recognized that the assessment of the credibility of witnesses and their testimonies lies within
the province and competence of the trial court because it has the direct opportunity to observe the
witness’ attitude, demeanor, deportment, and manner of testifying,14 all of which aid in determining
whether the witness is telling the truth or merely prevaricating. Thus, the trial court’s evaluation of
the credibility of witnesses is accorded great weight and respect and even finality by appellate
courts15 unless some fact or circumstance of weight and substance which could affect the result or
disposition of the case was ignored, misapplied, misunderstood, or overlooked by the trial court or
when the finding of fact was reached arbitrarily or capriciously.16 We find no cogent reason to disturb
the trial court’s assessment of the credibility of the witnesses and its factual findings as to what
actually happened, the same being amply supported by evidence.

Neither the prosecution nor the defense disputes two important facts: one, Joseph died instantly
after he was hit by the truck; and second, the truck was driven by Rufino. There being no question
on the identity of the person responsible for Joseph’s death, what is left to be resolved is whether
Rufino deliberately bumped Joseph with the truck he was driving.

The antecedent events show that, indeed, Rufino deliberately ran over Joseph. At around 4:00 p.m.
of 7 July 1996, when Rufino passed by Joseph’s house while driving the truck, he got angry when
Joseph admonished him not to drive at high speed in front of Joseph’s house. Rufino, already in a
fighting mood, challenged Joseph to a fight, but the latter just ignored it. To put an end to the
argument, Joseph and his brothers apologized to Rufino.

Apparently, Rufino was not appeased by the apology and continued to harbor ill-feelings against
Joseph. Rufino got the chance to vent his anger not long thereafter. At around 5:30 p.m., while
Joseph was watching a basketball game at the basketball court located beside Rufino’s house,
Rufino and his brothers Ino and Felix, carrying with them bladed weapons, attempted to stab
Joseph. But before they could do it, Joseph was able to run away. They chased Joseph, but were
unable to catch up with him. Instead of giving up on his evil design, Rufino went back to the
basketball court, boarded the truck parked nearby, and resumed his pursuit of Joseph. Upon seeing
Joseph on the road, Rufino hit him with the truck.

We note that the testimonies of Liza and Edgar were consistent with their respective sworn
statements,17 which they gave to the police investigator in the morning of 8 July 1996. Considering
that less than twenty-four hours had elapsed from the time of the bumping incident, Liza and Edgar
could not have concocted a story to pin down Rufino for the death of Joseph. Thus, there is no
reason to doubt the veracity of the sworn statements and the testimonies of Liza and Edgar.

Moreover, the defense has not shown any reason why Edgar, who corroborated Liza’s testimony
about the incident, would perjure himself to pin down Rufino. Absent any evidence showing any
reason or motive for the prosecution witnesses to perjure, the logical conclusion is that no such
improper motive exists, and their testimonies are thus worthy of full faith and credit.18

In comparison, Rufino and Myrna gave inconsistent testimonies. Myrna wanted the court to believe
that her husband was in no way at fault by stating that Rufino was driving at a slow pace,19 while
Rufino himself declared that he was driving at a speed of eighty kilometers per hour.20 Myrna’s
attempt to cover up the misdeed of her husband is obvious; hence, the integrity of her declarations
becomes questionable.

Rufino himself made inconsistent statements. At first, in the course of the direct examination, Rufino
declared that prior to the bumping incident he saw Joseph pass by his house, walking in a zigzag
manner.21 This testimony was an attempt to give credence to his allegation that Joseph was drunk,
which was why he threw stones at the truck for no reason at all. But when he was asked during his
cross-examination about his altercation with Joseph earlier that fateful day, Rufino made a complete
turnaround and declared that he saw Joseph for the first time at the place where he was run over.22

Moreover, the testimonies of Rufino and Myrna do not inspire belief for being improbable and not in
accord with human experience. It is axiomatic that for testimonial evidence to be credible, it should
come not only from the mouth of a credible witness, but should also be credible, reasonable, and in
accord with human experience.23

According to Rufino, he saw Joseph when the truck was four meters away from the latter and he
blew his horn three times. This is altogether unbelievable. At a speed of eighty kilometers per hour, a
four-meter distance could easily be covered by the truck in a split second, and there would be no
time for the driver to blow the horn before the impact. Much less could there be time for a person on
the road to pick up a stone and hurl the same to an oncoming truck. Thus, it is simply impossible that
Joseph was able to hurl a stone at the truck before he was run over.

Neither can we believe Rufino’s testimony that he first saw Joseph on the road when the truck was
just four meters away from him. According to Rufino, the road was clear because only Joseph and
the truck he was driving were on the road. He testified as follows:

Q Mr. Witness, when you saw for the first time Joseph Galang along the road, there was no other
vehicle from [the] opposite direction where you were heading?

A None, sir.

Q So that your driven vehicle and Joseph Galang were the only [ones] in that road?

A Yes, sir.

Q And the road could accommodate two (2) ten wheeler trucks?

A Yes, sir.

Q And you said likewise that when you first saw Joseph Galang, he was about four (4) meters away
from your driven vehicle?

A Yes, sir.24

From Rufino’s own testimony, it appears that his view was unobstructed. He could have seen
Joseph from afar and could therefore have avoided bumping the latter had he really wanted to.

Obviously, the stone-throwing incident was concocted by the defense as a last ditch effort to have
Rufino absolved from his criminal act. Unlike the prosecution witnesses who executed their sworn
statements on the morning after the subject incident, Rufino’s sworn statement25 was executed only
on 15 August 1996, or more than one month after the incident. Thus, Rufino had enough time to
reflect and come up with a plot. Unfortunately for him, the story he concocted is so incredible that we
are not inclined to believe it.

To prove that Rufino’s driving ability was adversely affected by his illness, the defense presented a
medical certificate26 stating that Rufino was treated at the Sta. Rosa Community Hospital for "Minimal
PTB, Bilateral with partial collapse of Right Upper Lobe" on 1 November 1996, or almost four months
after the bumping incident. That certificate is not competent evidence to prove that at the time,
Rufino was already suffering from pulmonary tuberculosis. But even granting arguendo that Rufino
was already suffering from said illness at the time of the incident, there is no evidence that it had
affected his driving ability to the extent that Rufino was no longer able to control the vehicle he was
driving.

In view of the foregoing, we affirm the trial court’s finding that Rufino deliberately bumped Joseph
with the truck he was driving.

Rufino’s culpability having been resolved, we now come to the penalty to be imposed. The trial court
imposed the death penalty on the ground that the qualifying circumstance of use of motor vehicle is
present. Rufino, however, argues that the use of a motor vehicle was only incidental, considering
that he resorted to it only to enable him to go after Joseph after he failed to catch up with the latter.
The fallacy of this argument is obvious.

The evidence shows that Rufino deliberately used his truck in pursuing Joseph. Upon catching up
with him, Rufino hit him with the truck, as a result of which Joseph died instantly. It is therefore clear
that the truck was the means used by Rufino to perpetrate the killing of Joseph.

The case of People v. Muñoz27 cited by Rufino finds no application to the present case. In the said
case, the police patrol jeep was merely used by the accused therein in looking for the victim and in
carrying the body of the victim to the place where it was dumped. The accused therein shot the
victim, which caused the latter’s death. In the present case, the truck itself was used to kill the victim
by running over him. 1âwphi 1

Under Article 248 of the Revised Penal Code, a person who kills another "by means of a motor
vehicle" is guilty of murder. Thus, the use of motor vehicle qualifies the killing to murder.28 The
penalty for murder is reclusion perpetua to death. Since the penalty is composed of two indivisible
penalties, we shall apply Article 63(3) of the Revised Penal Code, which reads:

3. When the commission of the act is attended by some mitigating circumstances and there is no
aggravating circumstance, the lesser penalty shall be applied.

In the present case, the aggravating circumstances of evident premeditation and treachery, which
were alleged in the information, were not proved. What was proved was the mitigating circumstance
of voluntary surrender through the testimonies of Rufino and Myrna, which were not rebutted by the
prosecution.

We have held that for voluntary surrender to be appreciated as a mitigating circumstance, the
following requisites must concur: (1) the offender had not been actually arrested; (2) the offender
surrendered himself to a person in authority or to an agent of a person in authority; and (3) the
surrender was voluntary.29 A surrender is considered voluntary if it is spontaneous and shows the
intention of the accused to submit himself unconditionally to the authorities because he either
acknowledges his guilt or wishes to save the government the trouble and expense necessarily
included for his search and capture.30 All these requisites are present in this case.

In view of the absence of an aggravating circumstance and the presence of one mitigating
circumstance, reclusion perpetua, not death, should be the penalty to be imposed on Rufino.

We now discuss the damages to be awarded.

The trial court’s award of ₱100,000 compensatory damages is erroneous because it was without
basis. The records show that the prosecution presented only two receipts, for the amounts of
₱9,00031 and ₱20032 representing payment for the casket and funeral services, and the niche,
respectively, or a total of ₱9,200. Only expenses supported by receipts and which appear to have
actually been expended in connection with the death of the victim should be allowed for actual
damages.33 Hence, the award of ₱100,000 should be reduced to ₱9,200.

We sustain the court’s award of moral damages but at a reduced rate of ₱50,000, consistent with
recent jurisprudence. In cases of violent death, moral damages is awarded even in the absence of
proof because an untimely and violent death invariably brings about emotional pain and anguish on
the part of the victim’s family.34 In addition, the amount of ₱50,00035 as indemnity for the death of
Joseph should be awarded to his heirs.

The award of exemplary damages is proper in view of the qualifying aggravating circumstance of
use of a motor vehicle. However, the amount of ₱50,000 awarded by the trial court should be
reduced to ₱25,000 pursuant to current case law.

Finally, we note that the prosecution offered the testimony of the victim’s widow on the age and daily
income of her husband, without supporting the same with documentary evidence.

The rule is that documentary evidence should be presented to substantiate a claim for damages for
loss of earning capacity. By way of exception, damages therefore may be awarded despite the
absence of documentary evidence provided that there is testimony that the victim was either (1) self-
employed earning less than the minimum wage under current labor laws, and judicial notice may be
taken of the fact that in the victim’s line of work no documentary evidence is available; or (2)
employed as a daily-wage worker earning less than the minimum wage under current labor laws.36

There is no showing that the victim was self-employed or employed as a daily-wage worker with an
average daily income of less than the minimum wage provided under the labor laws in force at the
time of his death. In the absence of such proof, the exception cannot be applied to this case. Hence,
no award for loss of earning capacity can be granted in favor of the victim’s heirs.

WHEREFORE, the appealed decision of the Regional Trial Court, Branch 25, of Biñan, Laguna, in
Criminal Case No. 9621-B convicting appellant RUFINO MALLARI y ILAG of the crime of murder is
hereby AFFIRMED with the following modifications:

1. The penalty is reduced from death to reclusion perpetua;

2. The award of exemplary damages in the amount of ₱50,000 is reduced to ₱25,000, and
the awards of actual and moral damages are reduced to ₱9,200 and ₱50,000, respectively;
and

3. Appellant Rufino Mallari y Ilag is further ordered to pay the heirs of Joseph Galang an
indemnity ex delictoin the amount of ₱50,000.

Costs de oficio.

SO ORDERED.

G.R. Nos. 116224-27 March 28, 2003

PEOPLE OF THE PHILIPPINES, appellee,
vs.
DONATO CARAIG, appellant.

DAVIDE, JR., C.J.:

Appellant Donato Caraig challenges the consolidated decision1 dated 28 April 1994 of the Regional
Trial Court of Quezon City, Branch 88, finding him guilty beyond reasonable doubt of (1) three
counts of murder in Criminal Cases Nos. Q-88-684 to Q-88-686 for the death of Melencio Castro, Jr.,
Roberto Raagas, and Placido Agustin; and (2) frustrated murder in Criminal Case No. Q-88-687 for
the mortal wounding of Edmundo Diaz.

Initially, only a certain Rolando Laomoc and four Does were charged in the separate informations in
Criminal Cases Nos. Q-88-684 to Q-88-687. The informations, however, were subsequently
amended to substitute the names of Richard Doe and Roger Doe with Renato Laxamana and
Donato Caraig. The trial court approved the amendments in its Order of 28 February 1989.2

The Amended Information for Murder in Criminal Case No. Q-88-684 reads:

"The undersigned Assistant City Prosecutor accuses ROLANDO LAOMOC Y CABE,

DONATO CARAIG Y GARCIA, RENATO LAXAMANA and TWO (2) DOES, the latter whose
true names and whereabouts have not as yet been ascertained, of the crime of MURDER,
committed as follows":

That on or about the 5th day of October 1988, in Quezon City, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring
together and confederating with and mutually helping each other, with intent to kill,
with evident premeditation and treachery, did, then and there, willfully, unlawfully and
feloniously attack, assault and employ personal violence upon the person of one
MELENCIO CASTRO Y PASCUA, JR., by then and there shooting him with a gun,
hitting him on the different parts of the body, thereby inflicting upon him serious and
mortal wounds, which were the direct and immediate cause of his death, to the
damage and prejudice of the heirs of said Melencio P. Castro, Jr., in such amount as
may be awarded under the provisions of the New Civil Code.3

The informations for murder in Criminal Cases Nos. Q-88-685 and Q-88-686 are similarly worded,
except as to the victims who were Roberto Raagas and Placido Agustin, respectively.4

The information for frustrated murder in Criminal Case No. Q-88-687 reads:

"That on or about the 5th day of October 1988, in Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together,
confederating with and mutually helping each other, with intent to kill, with evident
premeditation and treachery, did, then and there, willfully, unlawfully and feloniously attack,
assault and employ personal violence upon the person of one EDMUNDO DIAZ Y DE DIOS,
by then and there shooting him with a gun, hitting him on the different parts of his body,
thereby inflicting upon him serious and mortal injuries, the offenders thus performing the acts
of execution which would produce death as a consequence, but which nevertheless did not
produce it by reason or causes independent of the wills of the perpetrators, that is, the timely
medical intervention given to the latter, to the damage and prejudice of the said offended
party in such amount as may be awarded under the provisions of the New Civil Code."5
Laomoc was arrested, while the warrants for the arrest6 of Laxamana and Caraig were returned
unserved.

On 9 November 1988, Laomoc was arraigned and pleaded not guilty.7 Trial proceeded as against
him. However, on 31 May 1989, on motion of the prosecution and with Laomoc’s consent, the trial
court ordered the provisional dismissal and archival of the cases as against him on the ground of
insufficiency of evidence. But later, on 28 October 1991, the prosecution filed a motion to revive all
the cases as against Laomoc.8 In its Order of 4 December 1991, the trial court granted the motion
and issued a warrant for the arrest of Laomoc.9 The latter, however, has remained at large.10

Meanwhile, or on 18 July 1991, Caraig was arrested in Cavite.11 Upon arraignment, he entered a
plea of not guilty in each case.12 The trial then proceeded as against him.

The prosecution’s principal witness was Edmundo Diaz. He testified that at around 11:00 p.m. on 4
October 1988, he, together with Roberto Raagas, Melencio Castro Jr., and Placido Agustin went to
the Orchids Beerhouse in Quezon City, in front of Ali Mall, Cubao. As they were leaving the
beerhouse at past midnight or in the early morning of 5 October 1988, Caraig confronted them
(sinita) whether they were military men. They did not answer.13 A rumble or fight suddenly ensued
between his group and Caraig. It was a brief scuffle. Caraig then ran back to the Orchids
Beerhouse.14 Thereafter, Edmundo and his companions rode on a Rocalex taxi. They were chased,
however, by an old 1976 model white Galant car, which eventually blocked the taxi along 12th
Avenue and P. Tuazon St., Quezon City, about 100 meters from the Orchids Beerhouse.15 Caraig,
Laxamana, and Laomoc alighted from the Galant car. Each of them held a .45 caliber gun, which
they simultaneously fired upon Edmundo and his companions.16 While the hail of bullets went on,
Edmundo played dead. He then heard somebody utter: "Pare, tama na yan. Patay na lahat ang mga
iyan." When the car left, he asked the people who gathered around the scene to bring him to a
hospital, where he underwent treatment for eighteen days. 17

Another prosecution eyewitness, Danilo Javier, corroborated Edmundo’s story. Danilo testified that
at around 10:00 p.m. of 4 October 1988, he was at the Orchids Beerhouse drinking beer with several
companions, namely, Caraig, Laxamana, and a certain Lando.18 Later in the night, a commotion took
place at the beerhouse exit. From there, Caraig re-entered the beerhouse shouting that someone
had taken his gun. All the men in their table rushed towards the exit. Caraig, Laxamana, and Lando
got into a car and chased a taxi.19

From the street pavement, Danilo observed that the taxi was moving rather slowly away from the
beerhouse. The car blocked the taxi. Laxamana pointed a .45 caliber gun at the person inside the
right side of the taxi, while Caraig went to the left side of the taxi. Then somebody handed over a .9
mm. gun to Caraig. When he received the gun, Caraig suddenly fired it upon the passengers in the
taxi. Laxamana followed suit. A person tried to get out of the taxi, but Laxamana grabbed him and
shot him in the head. Danilo claimed that he was about twenty-five meters from the scene of the
incident.20

Prosecution witness SPO4 Lino Banaag, one of the policemen who responded to the shooting
incident, declared that he found the dead body of Roberto Raagas on the passenger’s seat beside
the driver, that of Placido Agustin at the passenger’s seat at the back, and that of Melencio Castro
Jr. on the pavement beside the taxi. The victims were identified through their identification cards. He
also found empty shells and slugs of .45 caliber and .9 mm. firearms around the taxi. Banaag was
also informed by the other police officers that an injured person, whom they were able to identify as
Edmundo Diaz, was brought to the Quirino Memorial Hospital. There, they took Edmundo’s
statement.21
Dr. Valentin Bernales, medico-legal officer of the National Bureau of Investigation, testified that he
conducted an autopsy on the bodies of the three victims. He found that the cause of the death of
Roberto Raagas was hemorrhage secondary to gunshot wounds resulting to shock.22 He opined that
from the location of the gunshot wounds it could be gleaned that when the victim was fired upon he
was stooping forward and sitting. He approximated that the bullets came from a .9 mm. to a .45
caliber gun.23 His autopsy on Placido Agustin’s cadaver revealed that the cause of his death was
also hemorrhage secondary to gunshot wounds resulting to shock.24 The body sustained eleven
wounds. The varying measurements of the entrance wounds disclosed that the firearms used were a
.9 mm. to .45 mm. caliber range. On the cadaver of Melencio Castro Jr., Dr. Bernales testified that
he found two gunshot wounds. The first was located on the head at the back portion, right side and
directed forward slightly downward and medially to the left. It involved the brain, the skull bone, and
exited on the auxillary area or at the back on the left side. The second was directed backward,
downward and laterally; it involved the lungs and exited on the back portion of his scapula.25

Dr. Alberto Capuno, a resident surgeon at the Quirino Memorial Medical Center, testified that he
treated Edmundo Diaz for three gunshot wounds. These wounds perforated the chest, stomach, and
leg and were fatal.26

The wives of the dead victims testified on the civil aspect of the crime.

Mrs. Ruth Agustin testified that her husband was 37 years old at the time of his death. Her husband
was an employee of the Social Security System receiving a monthly salary of P5,000. She and her
children had suffered mental anguish and torture and financial setback as a result of her husband’s
untimely demise. She spent around P150,000 for the funeral of her husband.27

Mrs. Rhodora Raagas testified that her husband was 40 years old at the time of his death. He was
the President of Sinclair Security and Allied Services, a family-owned corporation, with a monthly
compensation of P30,000. Mrs. Raagas claimed to have spent more than P100,000 for funeral
expenses. She said that she and her children were at a loss and in a state of shock as a
consequence of her husband’s death.28

Mrs. Merle Loria-Castro testified that her husband was 36 years old at the time of his death. He was
a taxi driver of New Rocalex with an average earning of P500 per day or P7,500 a month. She spent
a total of P19,900 for the burial of her husband.29

The defense presented as its sole witness appellant Caraig, who was still a member of the Philippine
Constabulary (PC) when the incident in question happened. He recalled that on the night of 4
October 1988, he went to the Orchids Beerhouse to look for Rolando Laomoc, a driver of the service
vehicle of the PC. Caraig was with Laxamana, another member of the PC. They used their service
car, a 1979 white Galant. They found Laomoc and joined him in drinking beer with twelve other
persons, one of whom he recognized as prosecution witness Danilo Javier. Later, he gave the car
keys to Laomoc and excused himself from the group, as he wanted to go back to the barracks.30

When Caraig stepped out of the beerhouse, a man whom he later identified as prosecution witness
Edmundo Diaz approached him and asked whether he was a member of the PC. Caraig replied in
the affirmative. Edmundo countered that he was a member of the Criminal Investigation Service
(CIS). Caraig then asked for identification or proof of Edmundo’s claim, but the latter remarked, "CIS
‘to. Makulit ka." Ignoring Edmundo this time, Caraig proceeded to the street pavement.31

Suddenly, Edmundo poked a gun at Caraig’s side. But Caraig merely turned his back against
Edmundo. The latter then hit him with a gun on his left eyebrow and lips. Suddenly, the companions
of Edmundo ganged up on him, held his arms, and hit him on the different parts of his body. They
took his service pistol. After almost ten minutes, he was able to kick the side of a parked car, and
they all fell down. He forthwith ran towards the beerhouse and told his companions that his service
pistol was grabbed from him. His companions scampered towards the exit of the beerhouse.32

Caraig was aided by Laxamana while he walked towards the exit. He pointed to Laomoc the taxi
where his assailants rode. Laomoc and his companions rode in the Galant car and chased the taxi.
Laxamana and Caraig were still at the street pavement when they saw the taxi passengers
exchange gunfire with those riding in the Galant car. The gunfire ceased when the car blocked the
taxi. Caraig was shocked with what he saw, and he remained rooted from his vantage point for one
or two minutes. After the gunfight, he noticed his pistol service on the ground, got it, and later rode in
the car with Laxamana and Laomoc back to their headquarters.33

Caraig denied that he was one of the assailants. He also claimed that Danilo Javier was still in the
beerhouse when the chase started, and arrived at the scene only when everything was over.34

In its challenged decision, the trial court found that the prosecution established with moral certainty
that Caraig was one of the assailants who shot the victims. The testimonies of the prosecution
witnesses were clear, straightforward, and convincing as opposed to the testimony of the defense
witness, which consisted merely of denial and alibi. These defenses cannot prevail over the positive
identification of Caraig by eyewitnesses Edmundo Diaz and Danilo Javier, as well as the
documentary, physical, and other testimonial evidence offered by the prosecution. The trial court
appreciated treachery and conspiracy in the commission of the crime. It then decreed:

WHEREFORE, premises considered accused Donato Caraig is found Guilty beyond

reasonable doubt of the three counts of murder for the deaths of Melencio Castro, Roberto
Raagas and Placido Agustin and sentenced to serve the penalty of reclusion perpetua for
each of the offense and ordered to pay the heirs of Melencio Castro the sum of P19,900 for
burial expenses, P50,000 for indemnity and P100,000 for moral damages; to pay the heirs of
Roberto Raagas the sum of P140,000 for burial expenses, P50,000 for indemnity and
P500,000 for moral damages [and] to pay the heirs Placido Agustin the sum of P150,000 for
burial expense, P50,000 for indemnity and P300,000 for moral damages.

Accused is likewise found guilty beyond reasonable doubt of the offense of frustrated murder
for the mortal wounding of Edmundo Diaz and sentenced to serve the penalty of eight (8)
years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months
and one (1) day of reclusion temporal as maximum, and to pay the cost.35

Caraig seasonably appealed to us from the judgment of conviction.

For causes hereunder discussed, the disposition of these cases was delayed.

On 26 September 1994, we accepted the appeal in these cases but required the clerk of court of the
trial court to explain why the records of the cases transmitted were incomplete, and directed him to
require the stenographers concerned to submit the transcripts of stenographic notes (TSNs).

In our resolution of 23 November 1994, we noted the Compliance of the clerk of court, who
explained that a part of the records were irretrievably lost and that he required the stenographers to
submit to the trial court their copies of the TSNs.

Except for Mirasol Ramos, the stenographers submitted the TSNs. Mirasol Ramos was the
stenographer who took down the stenographic notes of the 1 February 1989 hearing, specifically the
testimony of Dr. Jose Albert Capuno and part of the testimony of Merle Castro. Despite diligent
efforts to do so, Mirasol’s whereabouts could not be located. Finally, our Office of Administrative
Services reported that she had been officially dropped from the rolls. Thus, in our resolution of 12
February 1997, we required the parties to manifest whether the TSNs for the 1 February 1989
hearing could be dispensed with.

It also appeared that Caraig’s counsel of record, Atty. Phytagoras Oliver, was no longer holding
office in the address given in the records. We then required Caraig to manifest whether he was
willing to be represented by a counsel de oficio. It took Caraig some time to submit his manifestation.
So on 18 April 1997, we appointed Atty. Fortunato Gupit, Jr., as his counsel de oficio.

In its Compliance with our 12 February 1997 Resolution, the Office of the Solicitor General (OSG)
manifested that it was inclined to dispense with the TSNs in question. On the other hand, in his
Compliance filed on 18 July 1997, Atty. Gupit maintained that if he would be "compelled to take a
stand, he ha[d] to state that the missing transcript should not be dispensed with because the
accused on appeal is entitled to due process in its full spectrum, no more and no less."

Thus, in our Resolution of 11 August 1997, we required the trial court to retake the testimonies of Dr.
Jose Albert Capuno and Merle Castro. The retaking of the testimony was, however, delayed for a
number of reasons. Finally, on 9 August 2001, we received the letter dated 20 July 2001 of Judge
Abednego Adre, then Presiding Judge of Branch 88 of the RTC of Quezon City, informing us that the
testimony of Dr. Capuno was retaken on 13 September 2000 and the TSNs thereof were transmitted
to us on 8 March 2001 by registered mail. Judge Adre also stated that Merle Castro had been
missing and efforts to locate her had proved futile; hence, her testimony could not be retaken.

On 3 September 2001, we required the parties to manifest whether they were willing to dispense
with the TSNs of the testimony of Merle Castro. In its Manifestation, the OSG answered in the
affirmative. Atty. Gupit, on the other hand, manifested that the TSNs of the testimony of Merle Castro
could be dispensed with only if the facts sought to be proved by her testimony would be disregarded.
The Court noted the manifestation of the parties.

In his Appellant’s Brief filed on 1 April 2002, Caraig asserts that the trial court erred in (a) believing
the alleged eyewitnesses’ testimonies of Edmundo Diaz and Danilo Javier; (b) discarding his
defense of alibi and denial; (c) finding the existence of a conspiracy and treachery; (d) finding as
established beyond reasonable doubt the criminal charges filed against him; and (e) ordering him to
pay damages.

Caraig emphasizes that Edmundo Diaz and Danilo Javier are not credible witnesses because it took
them quite some time, i.e., three years from the time of the incident, before they testified in court. He
then boldly asserts that his conviction is based on mere gut feeling, as the proverbial "axe which has
to fall on someone" did fall on him by his convenient presence at the place and time when the crime
was committed.

In the Appellee’s Brief filed on 26 August 2002, the OSG counters that the trial court committed no
errors in these cases. The trial court correctly rejected the defenses of alibi and denial, which could
not outweigh Edmundo Diaz’s positive identification of Caraig as one of those who peppered with
bullets the taxi that carried the victims to their death, and Edmundo to his near death. This
identification was corroborated by Danilo Javier, who was one of Caraig’s drinking buddies at the
beerhouse.

On Caraig’s attempt to diminish the credibility of the eyewitnesses’ accounts on the ground that they
were reluctant witnesses, the OSG maintains that the initial reticence of prosecution witnesses for
fear of reprisal is not uncommon. Such observation is supported by jurisprudence and explained in
these cases, as Caraig was a PC member at the time of the incident. The OSG likewise agrees with
the trial court’s appreciation of treachery and conspiracy.

After a careful review of the records of the cases and the evidence adduced by the parties, we agree
with the OSG. The trial court’s decision was not based on gut feeling. The proverbial axe falling on
someone did fall on Caraig on the basis of the evidence duly established at the trial.

The prosecution proved beyond reasonable doubt that Caraig, in conspiracy with his co-assailants,
killed Roberto Raagas, Placido Agustin, and Melencio Castro Jr. and almost killed Edmundo Diaz.
They used the Galant PC service car to pursue the victims, who were riding on a Rocalex taxi, and
to block the path of the taxi. They alighted from the car and then used their .45 caliber and .9 mm.
service guns to pepper the taxi and the victims with bullets, and they left them for dead. Only
Edmundo Diaz escaped from the carnage because of timely medical treatment and attention.

The foregoing acts undoubtedly showed unanimity in design, intent, and execution of the attack on
the part of Caraig and his co-assailants. They performed specific acts with closeness and
coordination as to unmistakably indicate a common purpose and design to bring about the death of
the victims. Conspiracy among Caraig and his co-assailants was thus established with moral
certainty.

Conspiracy may be shown through circumstantial evidence; deduced from the mode and manner in
which the offense was perpetrated; or inferred from the acts of the accused pointing to a joint
purpose and design, a concerted action, and a community of interest.36 It was not even necessary to
show that all the conspirators actually hit and killed the victims.

Caraig wants to impress us that he was merely a horrified spectator of the gruesome events that
unfolded before him. We are not persuaded. His version is incredible and must be rejected in light of
his positive identification as one of the assailants, as well as the categorical and straightforward
testimony of the prosecution witnesses. His bare and uncorroborated denial amounted to nothing
more than a negative and self-serving evidence unworthy of weight in law.37

Caraig cannot fault the prosecution witnesses’ initial reluctance to testify. It is not uncommon for a
witness to a crime to show some reluctance about getting involved in a criminal case. The natural
reticence of most people to get involved is of judicial notice. It is understandable for a witness to fear
for his safety,38 especially in this case where PC men were involved in the commission of the crime.
Such initial reticence does not affect the witnesses’ credibility.39 Besides, their delay in testifying was
principally caused by the delay in the trial caused by, among other things, Caraig’s success in
avoiding the service of the warrant of arrest. It was only in 1991 when he was finally arrested.

We also agree with the OSG and the trial court on the finding of treachery. There is treachery when
the offender employs means, methods, or forms in the execution of any of the crimes against
persons that tend directly and especially to ensure its execution without risk to himself arising from
the defense which the offended party might make.40 Two elements must therefore concur: (1) the
means of execution employed gives the person attacked no opportunity to defend himself or
retaliate; and the (2) the means of execution was deliberately or consciously adopted.41

The attack upon the victims in these cases was attended by treachery. Per Danilo Javier’s
testimony, the taxi on which the victims were riding was moving slowly away from the beerhouse
when Caraig and his co-assailants pursued it and then blocked its path. The interception took place
at less than 100 meters away from the beerhouse. Since the victims were inside the taxi, they had
no chance to fight back or defend themselves. The number of the victims’ individual wounds and
their relative positions when found dead by the police emphasized further the essence of treachery.
The means, method, and form of the attack in this case were, therefore, consciously adopted and
effectively forestalled the victims from employing a defense against their attackers.

Accordingly, as correctly found by the trial court, Caraig should be held liable for three counts of
murder and one count of frustrated murder.

And now on the civil liability of Caraig.

In awarding in favor of the heirs of Roberto Raagas the amount of P140, 000 for burial expenses, the
trial court relied on Exhibits "A" and "A-1," which are merely lists of expenses written on a PCIBank
check booklet.42 It based the award for burial expenses in the amount of P19,900 in favor of the heirs
of Melencio Castro Jr. on Exhibits "C "(receipt issued by Memorial Homes), "D"(list of expenses),
and "D-1"(Affidavit of Adjudication).43 Notably, these exhibits were presented during the trial of the
cases against Laomoc on 14 December 1988 and 1 February 1989 before appellant Caraig was
arrested. They were not among the documentary evidence offered in evidence during the trial of the
consolidated cases against Caraig.44 Hence, they cannot be considered as evidence against him.

Besides, a list of expenses cannot replace receipts when the latter should have been issued as a
matter of course in business transactions.45 Neither can the mere testimonies of the victims’ widows
Ruth Agustin, Rhodora Raagas, and Merle Castro in the consolidated cases against Caraig justify
the awards for funeral or burial expenses. It is necessary for a party seeking the award of actual
damages to produce competent proof or the best evidence obtainable to justify such award. Only
substantiated and proven expenses, or those that appear to have been genuinely incurred in
connection with the death, wake, or burial of the victim will be recognized in court. 46Nonetheless, in
line with People v. Carillo,47 reiterated in People v. Bonifacio,48 we shall award nominal damages in
the amount of P10,000 for each group of heirs of the victims, since they clearly incurred funeral
expenses.

Anent the awards for moral damages, the same must be sustained in addition to the awards of civil
indemnity. Ruth Agustin and Rhodora Raagas testified on the mental anguish they and their children
suffered as a consequence of the death of their respective husbands.

As to Merle Castro, it is unfortunate that the TSNs of her testimony in the cases against Caraig were
irretrievably lost and could not anymore be reproduced, and her testimony could not be retaken.
Moreover, the decision of the trial court did not mention of a testimony on her moral suffering. What
remained in the records is the TSN of her testimony during the trial of Laomoc, where she declared
that she experienced "difficulties in life" as a consequence of Melencio’s death and that she and her
children missed him so much. However, this testimony was not adopted in the cases against Caraig;
hence, it cannot be taken into consideration for purposes of determining the civil liabilities of Caraig.
Nevertheless, conformably with People v. Carillo,49 People v. Panela,50 and People v.
Panado,51 where we reconsidered our policy on moral damages and held that an award therefor is
mandatory and does not require allegation and proof other than the death of the victim, we uphold
the award of moral damages in favor of Melencio’s heirs even granting that there is no allegation and
proof of their emotional suffering. We reiterate what we said in People v. Panado:

Unlike in the crime of rape, we grant moral damages in murder or homicide only when the
heirs of the victim have alleged and proved mental suffering. However, as borne out by
human nature and experience, a violent death invariably and necessarily brings about
emotional pain and anguish on the part of the victim’s family. It is inherently human to suffer
sorrow, torment, pain and anger when a loved one becomes the victim of a violent or brutal
killing. Such violent death or brutal killing not only steals from the family of the deceased his
precious life, deprives them forever of his love, affection and support, but often leaves them
 with the gnawing feeling that an injustice has been done to them. For this reason, moral
damages must be awarded even in the absence of any allegation and proof of the heirs’
emotional suffering. Verily Hilda and her son Louie Gee would forever carry the emotional
wounds of the vicious killing of a husband and a father. With or without proof, this fact can
never be denied; since it is undisputed, it must be considered proved.52

The amounts of moral damages awarded for each group of the deceased’s heirs are, however,
reduced to P50,000 in accordance with current jurisprudence.53

We also observe that there was testimonial evidence by the widows of Placido Agustin, Roberto
Raagas, and Melencio Castro Jr. on their respective husbands’ monthly compensation and age at
the time of death. The trial court, however, was silent on the indemnity for loss of earning capacity
under Article 2206 of the Civil Code. In view of the testimonial evidence on the loss of earning
capacity, we deem it necessary to make a pronouncement on the matter.

The rule is that documentary evidence should be presented to substantiate a claim for damages for
loss of earning capacity. By way of exception, damages therefor may be awarded despite the
absence of documentary evidence, provided that there is testimony that the victim was either (1)
self-employed earning less than the minimum wage under current labor laws, and judicial notice may
be taken of the fact that in the victim’s line of work no documentary evidence is available; or (2)
employed as a daily-wage worker earning less than the minimum wage under current labor laws.54

The testimonial evidence shows that Placido Agustin, Roberto Raagas, and Melencio Castro Jr.
were not self-employed or employed as daily-wage workers earning less than the minimum wage
under the labor laws existing at the time of their death. Placido Agustin was a Social Security
System employee who received a monthly salary of P5,000. Roberto Raagas was the President of
Sinclair Security and Allied Services, a family owned corporation, with a monthly compensation of
P30,000. Melencio Castro Jr. was a taxi driver of New Rocalex with an average daily earning of
P500 or a monthly earning of P7,500. Clearly, these cases do not fall under the exceptions where
indemnity for loss of earning capacity can be given despite lack of documentary evidence.
Therefore, for lack of documentary proof, no indemnity for loss of earning capacity can be given in
these cases.

On a final note, moral damages in the amount of P50,000 should also be awarded to Edmundo Diaz.
He testified that he was treated for eighteen days at the hospital for the injuries he sustained. He
also showed the scars of said wounds on his chest, left foot, knee, and the back of his leg.55 As
stated earlier, Dr. Alberto Capuno, the physician who treated Edmundo, testified that these wounds
were fatal.56 The fact that he sustained nearly fatal wounds for which he was treated for eighteen
days at the hospital constituted the trauma of physical, psychological, and moral sufferings on which
the award for moral damages under Article 2219(1) of the Civil Code could be based. Moral
damages can be awarded without the need for pleading or proof of the basis thereof if it is too
obvious to still require the recital thereof.57 The physical suffering of Edmundo is quite obvious to still
direct him to recount the same.

WHEREFORE, the appealed Decision of the Regional Trial Court of Quezon City, Branch 88, in
Criminal Cases Nos. Q-88-684 to Q-88-687 is hereby AFFIRMED. Appellant DONATO CARAIG is
found guilty of three (3) counts of murder and of frustrated murder, and SENTENCED to suffer the
penalty of reclusion perpetua in each of the first three cases and an indeterminate penalty of eight
(8) years and one day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal, as maximum, in the fourth case. The awards of civil indemnity
decreed by the trial court for the heirs of Roberto Raagas, Placido Agustin, and Melencio Castro Jr.
are affirmed. The awards for burial expenses are, however, deleted for lack of documentary proof,
and in lieu thereof, an award for nominal damages in the amount of P10,000 is hereby adjudged in
favor of each group of heirs of the deceased victims. The award of moral damages is reduced to
P50,000 for each group of the heirs of the deceased. Appellant is likewise ordered to pay Edmundo
Diaz moral damages in the amount of P50,000.

Costs de oficio.

SO ORDERED.

[G.R. No. 159636. November 25, 2004]

VICTORY LINER, INC., petitioner, vs. ROSALITO GAMMAD, APRIL

ROSSAN P. GAMMAD, ROI ROZANO P. GAMMAD and DIANA
FRANCES P. GAMMAD, respondents.

DECISION
YNARES-SANTIAGO, J.:

Assailed in this petition for review on certiorari is the April 11, 2003
decision of the Court of Appeals in CA-G.R. CV No. 63290 which affirmed
[1]

with modification the November 6, 1998 decision of the Regional Trial Court
[2]

of Tuguegarao, Cagayan, Branch 5 finding petitioner Victory Liner, Inc. liable

for breach of contract of carriage in Civil Case No. 5023.
The facts as testified by respondent Rosalito Gammad show that on
March 14, 1996, his wife Marie Grace Pagulayan-Gammad, was on board an [3]

air-conditioned Victory Liner bus bound for Tuguegarao, Cagayan from

Manila. At about 3:00 a.m., the bus while running at a high speed fell on a
ravine somewhere in Barangay Baliling, Sta. Fe, Nueva Vizcaya, which
resulted in the death of Marie Grace and physical injuries to other
passengers. [4]

On May 14, 1996, respondent heirs of the deceased filed a complaint for [5]

damages arising from culpa contractual against petitioner. In its answer, the [6]

petitioner claimed that the incident was purely accidental and that it has
always exercised extraordinary diligence in its 50 years of operation.
After several re-settings, pre-trial was set on April 10, 1997. For failure to
[7] [8]

appear on the said date, petitioner was declared as in default. However, on [9]

petitioners motion to lift the order of default, the same was granted by the
[10]

trial court. [11]

 At the pre-trial on May 6, 1997, petitioner did not want to admit the
proposed stipulation that the deceased was a passenger of the Victory Liner
Bus which fell on the ravine and that she was issued Passenger Ticket No.
977785. Respondents, for their part, did not accept petitioners proposal to pay
P50,000.00. [12]

After respondent Rosalito Gammad completed his direct testimony, cross-

examination was scheduled for November 17, 1997 but moved to December
[13]

8, 1997, because the parties and the counsel failed to appear. On December
[14]

8, 1997, counsel of petitioner was absent despite due notice and was deemed
to have waived right to cross-examine respondent Rosalito. [15]

Petitioners motion to reset the presentation of its evidence to March 25,

1998 was granted. However, on March 24, 1998, the counsel of petitioner
[16]

sent the court a telegram requesting postponement but the telegram was
[17]

received by the trial court on March 25, 1998, after it had issued an order
considering the case submitted for decision for failure of petitioner and
counsel to appear. [18]

On November 6, 1998, the trial court rendered its decision in favor of

respondents, the dispositive portion of which reads:

WHEREFORE, premises considered and in the interest of justice, judgment is hereby

rendered in favor of the plaintiffs and against the defendant Victory Liner,
Incorporated, ordering the latter to pay the following:

1. Actual Damages -------------------- P 122,000.00

2. Death Indemnity --------------------- 50,000.00
3. Exemplary and Moral Damages----- 400,000.00
4. Compensatory Damages ---------- 1,500,000.00
5. Attorneys Fees ------------ 10% of the total amount granted
6. Cost of the Suit.

SO ORDERED. [19]

On appeal by petitioner, the Court of Appeals affirmed the decision of the

trial court with modification as follows:

[T]he Decision dated 06 November 1998 is hereby MODIFIED to reflect that the
following are hereby adjudged in favor of plaintiffs-appellees:

1. Actual Damages in the amount of P88,270.00;

2. Compensatory Damages in the amount of P1,135,536,10;

3. Moral and Exemplary Damages in the amount of P400,000.00; and

4. Attorneys fees equivalent to 10% of the sum of the actual, compensatory,

moral, and exemplary damages herein adjudged.

The court a quos judgment of the cost of the suit against defendant-appellant is hereby
AFFIRMED.

SO ORDERED. [20]

Represented by a new counsel, petitioner on May 21, 2003 filed a motion

for reconsideration praying that the case be remanded to the trial court for
cross- examination of respondents witness and for the presentation of its
evidence; or in the alternative, dismiss the respondents
complaint. Invoking APEX Mining, Inc. v. Court of Appeals, petitioner
[21] [22]

argues, inter alia, that the decision of the trial court should be set aside
because the negligence of its former counsel, Atty. Antonio B. Paguirigan, in
failing to appear at the scheduled hearings and move for reconsideration of
the orders declaring petitioner to have waived the right to cross-examine
respondents witness and right to present evidence, deprived petitioner of its
day in court.
On August 21, 2003, the Court of Appeals denied petitioners motion for
reconsideration. [23]

Hence, this petition for review principally based on the fact that the
mistake or gross negligence of its counsel deprived petitioner of due process
of law. Petitioner also argues that the trial courts award of damages were
without basis and should be deleted.
The issues for resolution are: (1) whether petitioners counsel was guilty of
gross negligence; (2) whether petitioner should be held liable for breach of
contract of carriage; and (3) whether the award of damages was proper.
It is settled that the negligence of counsel binds the client. This is based
on the rule that any act performed by a counsel within the scope of his general
or implied authority is regarded as an act of his client. Consequently, the
mistake or negligence of counsel may result in the rendition of an unfavorable
judgment against the client. However, the application of the general rule to a
given case should be looked into and adopted according to the surrounding
circumstances obtaining. Thus, exceptions to the foregoing have been
recognized by the court in cases where reckless or gross negligence of
counsel deprives the client of due process of law, or when its application will
result in outright deprivation of the clients liberty or property or where the
interests of justice so require, and accord relief to the client who suffered by
reason of the lawyers gross or palpable mistake or negligence. [24]

The exceptions, however, are not present in this case. The record shows
that Atty. Paguirigan filed an Answer and Pre-trial Brief for petitioner. Although
initially declared as in default, Atty. Paguirigan successfully moved for the
setting aside of the order of default. In fact, petitioner was represented by Atty.
Paguirigan at the pre-trial who proposed settlement for P50,000.00. Although
Atty. Paguirigan failed to file motions for reconsideration of the orders
declaring petitioner to have waived the right to cross-examine respondents
witness and to present evidence, he nevertheless, filed a timely appeal with
the Court of Appeals assailing the decision of the trial court. Hence,
petitioners claim that it was denied due process lacks basis.
Petitioner too is not entirely blameless. Prior to the issuance of the order
declaring it as in default for not appearing at the pre-trial, three notices (dated
October 23, 1996, January 30, 1997, and March 26, 1997, ) requiring
[25] [26] [27]

attendance at the pre-trial were sent and duly received by petitioner. However,
it was only on April 27, 1997, after the issuance of the April 10, 1997 order of
default for failure to appear at the pre-trial when petitioner, through its finance
and administrative manager, executed a special power of
attorney authorizing Atty. Paguirigan or any member of his law firm to
[28]

represent petitioner at the pre-trial. Petitioner is guilty, at the least, of

contributory negligence and fault cannot be imputed solely on previous
counsel.
The case of APEX Mining, Inc., invoked by petitioner is not on all fours
with the case at bar. In APEX, the negligent counsel not only allowed the
adverse decision against his client to become final and executory, but
deliberately misrepresented in the progress report that the case was still
pending with the Court of Appeals when the same was dismissed 16 months
ago. These circumstances are absent in this case because Atty. Paguirigan
[29]

timely filed an appeal from the decision of the trial court with the Court of
Appeals.
In Gold Line Transit, Inc. v. Ramos, the Court was similarly confronted
[30]

with the issue of whether or not the client should bear the adverse
consequences of its counsels negligence. In that case, Gold Line Transit, Inc.
(Gold Line) and its lawyer failed to appear at the pre-trial despite notice and
was declared as in default. After the plaintiffs presentation of evidence ex
parte, the trial court rendered decision ordering Gold Line to pay damages to
the heirs of its deceased passenger. The decision became final and executory
because counsel of Gold Line did not file any appeal. Finding that Goldline
was not denied due process of law and is thus bound by the negligence of its
lawyer, the Court held as follows

This leads us to the question of whether the negligence of counsel was so gross and
reckless that petitioner was deprived of its right to due process of law. We do not
believe so. It cannot be denied that the requirements of due process were observed in
the instant case. Petitioner was never deprived of its day in court, as in fact it was
afforded every opportunity to be heard. Thus, it is of record that notices were sent to
petitioner and that its counsel was able to file a motion to dismiss the complaint, an
answer to the complaint, and even a pre-trial brief. What was irretrievably lost by
petitioner was its opportunity to participate in the trial of the case and to adduce
evidence in its behalf because of negligence.

In the application of the principle of due process, what is sought to be safeguarded

against is not the lack of previous notice but the denial of the opportunity to be heard.
The question is not whether petitioner succeeded in defending its rights and interests,
but simply, whether it had the opportunity to present its side of the controversy.
Verily, as petitioner retained the services of counsel of its choice, it should, as far as
this suit is concerned, bear the consequences of its choice of a faulty option. Its plea
that it was deprived of due process echoes on hollow ground and certainly cannot
elicit approval nor sympathy.

To cater to petitioners arguments and reinstate its petition for relief from judgment
would put a premium on the negligence of its former counsel and encourage the non-
termination of this case by reason thereof. This is one case where petitioner has to
bear the adverse consequences of its counsels act, for a client is bound by the action of
his counsel in the conduct of a case and he cannot thereafter be heard to complain that
the result might have been different had his counsel proceeded differently. The
rationale for the rule is easily discernible. If the negligence of counsel be admitted as a
reason for opening cases, there would never be an end to a suit so long as a new
counsel could be hired every time it is shown that the prior counsel had not been
sufficiently diligent, experienced or learned.[31]

Similarly, in Macalalag v. Ombudsman, a Philippine Postal Corporation

[32]

employee charged with dishonesty was not able to file an answer and position
paper. He was found guilty solely on the basis of complainants evidence and
was dismissed with forfeiture of all benefits and disqualification from
government service. Challenging the decision of the Ombudsman, the
employee contended that the gross negligence of his counsel deprived him of
due process of law. In debunking his contention, the Court said
Neither can he claim that he is not bound by his lawyers actions; it is only in case of
gross or palpable negligence of counsel when the courts can step in and accord relief
to a client who would have suffered thereby. If every perceived mistake, failure of
diligence, lack of experience or insufficient legal knowledge of the lawyer would be
admitted as a reason for the reopening of a case, there would be no end to controversy.
Fundamental to our judicial system is the principle that every litigation must come to
an end. It would be a clear mockery if it were otherwise. Access to the courts is
guaranteed, but there must be a limit to it.

Viewed vis--vis the foregoing jurisprudence, to sustain petitioners

argument that it was denied due process of law due to negligence of its
counsel would set a dangerous precedent. It would enable every party to
render inutile any adverse order or decision through the simple expedient of
alleging gross negligence on the part of its counsel. The Court will not
countenance such a farce which contradicts long-settled doctrines of trial and
procedure. [33]

Anent the second issue, petitioner was correctly found liable for breach of
contract of carriage. A common carrier is bound to carry its passengers safely
as far as human care and foresight can provide, using the utmost diligence of
very cautious persons, with due regard to all the circumstances. In a contract
of carriage, it is presumed that the common carrier was at fault or was
negligent when a passenger dies or is injured. Unless the presumption is
rebutted, the court need not even make an express finding of fault or
negligence on the part of the common carrier. This statutory presumption
may only be overcome by evidence that the carrier exercised extraordinary
diligence.[34]

In the instant case, there is no evidence to rebut the statutory presumption

that the proximate cause of Marie Graces death was the negligence of
petitioner. Hence, the courts below correctly ruled that petitioner was guilty of
breach of contract of carriage.
Nevertheless, the award of damages should be modified.
Article 1764 in relation to Article 2206 of the Civil Code, holds the
[35] [36]

common carrier in breach of its contract of carriage that results in the death of
a passenger liable to pay the following: (1) indemnity for death, (2) indemnity
for loss of earning capacity, and (3) moral damages.
In the present case, respondent heirs of the deceased are entitled to
indemnity for the death of Marie Grace which under current jurisprudence is
fixed at P50,000.00. [37]
 The award of compensatory damages for the loss of the deceaseds
earning capacity should be deleted for lack of basis. As a rule, documentary
evidence should be presented to substantiate the claim for damages for loss
of earning capacity. By way of exception, damages for loss of earning
capacity may be awarded despite the absence of documentary evidence
when (1) the deceased is self-employed earning less than the minimum wage
under current labor laws, and judicial notice may be taken of the fact that in
the deceaseds line of work no documentary evidence is available; or (2) the
deceased is employed as a daily wage worker earning less than the minimum
wage under current labor laws. [38]

In People v. Oco, the evidence presented by the prosecution to recover

[39]

damages for loss of earning capacity was the bare testimony of the
deceaseds wife that her husband was earning P8,000.00 monthly as a legal
researcher of a private corporation. Finding that the deceased was neither
self-employed nor employed as a daily-wage worker earning less than the
minimum wage under the labor laws existing at the time of his death, the
Court held that testimonial evidence alone is insufficient to justify an award for
loss of earning capacity.
Likewise, in People v. Caraig, damages for loss of earning capacity was
[40]

not awarded because the circumstances of the 3 deceased did not fall within
the recognized exceptions, and except for the testimony of their wives, no
documentary proof about their income was presented by the prosecution.
Thus

The testimonial evidence shows that Placido Agustin, Roberto Raagas, and Melencio
Castro Jr. were not self-employed or employed as daily-wage workers earning less
than the minimum wage under the labor laws existing at the time of their
death. Placido Agustin was a Social Security System employee who received a
monthly salary of P5,000. Roberto Raagas was the President of Sinclair Security
and Allied Services, a family owned corporation, with a monthly compensation of
P30,000. Melencio Castro Jr. was a taxi driver of New Rocalex with an average
daily earning of P500 or a monthly earning of P7,500. Clearly, these cases do not
fall under the exceptions where indemnity for loss of earning capacity can be given
despite lack of documentary evidence. Therefore, for lack of documentary proof, no
indemnity for loss of earning capacity can be given in these cases. (Emphasis
supplied)

Here, the trial court and the Court of Appeals computed the award of
compensatory damages for loss of earning capacity only on the basis of the
testimony of respondent Rosalito that the deceased was 39 years of age and
a Section Chief of the Bureau of Internal Revenue, Tuguergarao District Office
with a salary of P83,088.00 per annum when she died. No other evidence
[41]

was presented. The award is clearly erroneous because the deceaseds

earnings does not fall within the exceptions.
However, the fact of loss having been established, temperate damages in
the amount of P500,000.00 should be awarded to respondents. Under Article
2224 of the Civil Code, temperate or moderate damages, which are more than
nominal but less than compensatory damages, may be recovered when the
court finds that some pecuniary loss has been suffered but its amount can not,
from the nature of the case, be proved with certainty.
In Pleno v. Court of Appeals, the Court sustained the trial courts award of
[42]

P200,000.00 as temperate damages in lieu of actual damages for loss of

earning capacity because the income of the victim was not sufficiently proven,
thus

The trial court based the amounts of damages awarded to the petitioner on the
following circumstances:

As to the loss or impairment of earning capacity, there is no doubt that Pleno is an

ent[re]preneur and the founder of his own corporation, the Mayon Ceramics
Corporation. It appears also that he is an industrious and resourceful person with
several projects in line, and were it not for the incident, might have pushed them
through. On the day of the incident, Pleno was driving homeward with geologist
Longley after an ocular inspection of the site of the Mayon Ceramics Corporation. His
actual income however has not been sufficiently established so that this Court cannot
award actual damages, but, an award of temperate or moderate damages may still be
made on loss or impairment of earning capacity. That Pleno sustained a permanent
deformity due to a shortened left leg and that he also suffers from double vision in his
left eye is also established. Because of this, he suffers from some inferiority complex
and is no longer active in business as well as in social life. In similar cases as in
Borromeo v. Manila Electric Railroad Co., 44 Phil 165; Coriage, et al. v. LTB Co., et
al., L-11037, Dec. 29, 1960, and in Araneta, et al. v. Arreglado, et al., L-11394, Sept.
9, 1958, the proper award of damages were given.

We rule that the lower courts awards of damages are more consonant with the factual
circumstances of the instant case. The trial courts findings of facts are clear and well-
developed. Each item of damages is adequately supported by evidence on record.

Article 2224 of the Civil Code was likewise applied in the recent cases
of People v. Singh and People v. Almedilla, to justify the award of
[43] [44]

temperate damages in lieu of damages for loss of earning capacity which was
not substantiated by the required documentary proof.
 Anent the award of moral damages, the same cannot be lumped with
exemplary damages because they are based on different jural
foundations. These damages are different in nature and require separate
[45]

determination. In culpa
[46]
contractual or breach of contract, moral
damages may be recovered when the defendant acted in bad faith or was
guilty of gross negligence (amounting to bad faith) or in wanton disregard
of contractual obligations and, as in this case, when the act of breach of
contract itself constitutes the tort that results in physical injuries. By special
rule in Article 1764 in relation to Article 2206 of the Civil Code, moral
damages may also be awarded in case the death of a passenger results from
a breach of carriage. On the other hand, exemplary damages, which are
[47]

awarded by way of example or correction for the public good may be

recovered in contractual obligations if the defendant acted in wanton,
fraudulent, reckless, oppressive, or malevolent manner. [48]

Respondents in the instant case should be awarded moral damages to

compensate for the grief caused by the death of the deceased resulting from
the petitioners breach of contract of carriage. Furthermore, the petitioner failed
to prove that it exercised the extraordinary diligence required for common
carriers, it is presumed to have acted recklessly. Thus, the award of
[49]

exemplary damages is proper. Under the circumstances, we find it reasonable

to award respondents the amount of P100,000.00 as moral damages and
P100,000.00 as exemplary damages. These amounts are not excessive. [50]

The actual damages awarded by the trial court reduced by the Court of
Appeals should be further reduced. In People v. Duban, it was held that only
[51]

substantiated and proven expenses or those that appear to have been

genuinely incurred in connection with the death, wake or burial of the victim
will be recognized. A list of expenses (Exhibit J), and the contract/receipt for
[52]

the construction of the tomb (Exhibit F) in this case, cannot be considered

[53]

competent proof and cannot replace the official receipts necessary to justify
the award. Hence, actual damages should be further reduced to
P78,160.00, which was the amount supported by official receipts.
[54]

Pursuant to Article 2208 of the Civil Code, attorneys fees may also be
[55]

recovered in the case at bar where exemplary damages are awarded. The
Court finds the award of attorneys fees equivalent to 10% of the total amount
adjudged against petitioner reasonable.
Finally, in Eastern Shipping Lines, Inc. v. Court of Appeals, it was held
[56]

that when an obligation, regardless of its source, i.e., law, contracts, quasi-
contracts, delicts or quasi-delicts is breached, the contravenor can be held
liable for payment of interest in the concept of actual and compensatory
damages, subject to the following rules, to wit

1. When the obligation is breached, and it consists in the payment of a sum of money,
i.e., a loan or forbearance of money, the interest due should be that which may have
been stipulated in writing. Furthermore, the interest due shall itself earn legal interest
from the time it is judicially demanded. In the absence of stipulation, the rate of
interest shall be 12% per annum to be computed from default, i.e., from judicial or
extrajudicial demand under and subject to the provisions of Article 1169 of the Civil
Code.

2. When an obligation, not constituting a loan or forbearance of money, is breached,

an interest on the amount of damages awarded may be imposed at the discretion of the
court at the rate of 6% per annum. No interest, however, shall be adjudged on
unliquidated claims or damages except when or until the demand can be established
with reasonable certainty. Accordingly, where the demand is established with
reasonable certainty, theinterest shall begin to run from the time the claim is made
judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be
so reasonably established at the time the demand is made, the interest shall begin to
run only from the date the judgment of the court is made (at which time the
quantification of damages may be deemed to have been reasonably ascertained). The
actual base for the computation of legal interestshall, in any case, be on the amount
finally adjudged.

3. When the judgment of the court awarding a sum of money becomes final and
executory, the rate of legal interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 12% per annum from such finality until its
satisfaction, this interim period being deemed to be by then an equivalent to a
forbearance of credit. (Emphasis supplied).

In the instant case, petitioner should be held liable for payment of interest
as damages for breach of contract of carriage. Considering that the amounts
payable by petitioner has been determined with certainty only in the instant
petition, the interest due shall be computed upon the finality of this decision at
the rate of 12% per annum until satisfaction, per paragraph 3 of the aforecited
rule.[57]

WHEREFORE, in view of all the foregoing, the petition is PARTIALLY

GRANTED. The April 11, 2003 decision of the Court of Appeals in CA-G.R.
CV No. 63290, which modified the decision of the Regional Trial Court of
Tuguegarao, Cagayan in Civil Case No. 5023, is AFFIRMED with
MODIFICATION. As modified, petitioner Victory Liner, Inc., is ordered to pay
respondents the following: (1) P50,000.00 as indemnity for the death of Marie
Grace Pagulayan-Gammad; (2) P100,000.00 as moral damages; (3)
P100,000.00 as exemplary damages; (4) P78,160.00 as actual damages; (5)
P500,000.00 as temperate damages; (6) 10% of the total amount as attorneys
fees; and the costs of suit.
Furthermore, the total amount adjudged against petitioner shall earn
interest at the rate of 12% per annum computed from the finality of this
decision until fully paid.
SO ORDERED.
B.) MORAL DAMAGES

G.R. No. 104576 January 20, 1995

MARIANO L. DEL MUNDO, petitioner,

vs.
HON. COURT OF APPEALS, JOSE U. FRANCISCO and GENOVEVA V. ROSALES, respondents.

VITUG, J.:

Mariano Del Mundo ("Del Mundo") impugns in this petition for review on certiorari the 07th April 1989
decision 1 of the Court of appeals which has affirmed, with modification, the 29th June 1984
decision2 of the Regional Trial Court of Quezon City ordering him, together with the Republic
Planters bank ("RPB"), inter alia, to pay jointly and severally herein private respondents, the spouses
Jose Francisco and Genoveva Francisco ("Franciscos"), the sum of P200,000.00 by way of actual
and moral damages, as well as P6,000.00 of attorney's fees, plus litigation expenses.

The Franciscos are the owners of a parcel of land, with an area of 38,010 square meters, situated in
Barrio Anilao, Municipality of Mabini, Province of Batangas, covered by and described in Original
Certificate of title ("OCT") No. 0-3267 of the Registry of deeds of Batangas. Del Mundo, on the other
hand, is the operator of a dive camp resort adjacent to the property.

Sometime in June of 1980, Del Mundo, on the other hand, is the operator of a dive camp resort
adjacent to the property.

Sometime in June of 1980, Del Mundo proposed a corporate joint venture with the Franciscos for the
development of the latter's property. The corporation (to be named the "Anilao Development
Corporation") would have a capital stock of One Million (P1,000,000.00) Pesos to be subscribed
equally between Del Mundo and the Franciscos. To cover the proposed subscription of the
Franciscos, Del Mundo assured the couple that he could get from them a P125,000.00 loan secured
by the realty.3

The Franciscos executed a special power of attorney ("SPA"), dated 25 July 1980,4 in favor of Del
Mundo authorizing him to obtain a bank loan. The SPA, in part, provided:

1. To negotiate for a loan with any bank or financial institution, in such amount or
amounts as our said attorney-in-fact may deem proper and expedient and under
such terms and conditions as he may also deem proper and convenient;

2. To sign, execute and deliver by way of first mortgage in favor of said bank or
financial institution on our property situated in Anilao, Mabini, Batangas, . . .

3. To receive and receipt for the proceeds of the loan, and to sign such other papers
and documents as may be necessary in connection therewith;

GIVING AND GRANTING unto our said attorney-in-fact full power and authority as
we might or could do if personally present and acting in person, and hereby
CONFIRMING all that our said attorney-in-fact may lawfully do under and by virtue of
these presents.
Only the duplicate copy of the SPA was given to Del Mundo by the Francisco. The latter kept the
original copy but agreed to have it delivered to Del Mundo once he would have been able to firm up
the P125,000.00 financing to cover their (the Franciscos) proposed subscription.5 Aside from the
special power of attorney, the Franciscos, who were then about to depart for abroad,6 turned over to
Del Mundo the physical possession of the real property along with its existing facilities and
equipment.

Del Mundo proceeded to the Republic Planters Bank ("RPB") to apply for the loan. After the loan
application was approved, Del Mundo executed a deed of real estate mortgage over the Franciscos'
property to secure a P265,000.00 loan. The mortgage, however, could not be annotated on the
owner's copy of OCT NO. 0-3267, then in the possession of the Development Bank of the
Philippines ("DBP") which had a previous mortgage lien on it. To obtain said owner's copy, the RPB
agreed to assume, and thereafter paid, Franciscos' outstanding indebtedness to the DBP. The latter,
despite the payment, refused to release the owner's copy of the certificate of title due to Franciscos'
objection.7 In order to allow the release of the loan proceeds, Del Mundo submitted additional
collaterals. The RPB then withdrew its previous payment to the DBP of P22,621.75, and the
P265,000.00 loan was forthwith released to Del Mundo.8

The joint venture did not materialize. The Franciscos wrote a demand letter addressed to Del Mundo
for the payment of rentals for the use of their property at the rate of P3,000.00 a month (totalling
P42,000.00) and for the return of the equipment taken by Del Mundo from the bodega of the
Franciscos valued at P15,000.00.9

Since Del Mundo failed to settle with the Franciscos, the latter sued Del Mundo, along with the RPB,
for annulment of the mortgage, as well as for damages, before the Regional Trial Court of Quezon
City. The Franciscos asserted that Del Mundo made use of their property for his sole benefit and
purpose, and that the use of the property could not have been availed by Del Mundo himself had it
not been for the latter's proposal to put up the joint venture. After trial, the trial court rendered
judgment, dated 29 June 1984, 10 in favor of the Franciscos thusly:

(1) Declaring the real estate mortgage (Exh. E) executed by defendant Mariano Del
Mundo in favor of defendant Republic Planters Bank on January 10, 1981, null and
void ab initio;

(2) Declaring the unauthorized payments made by defendant Republic Planters Bank
to the Development Bank of the Philippines for the account of plaintiffs as null and
void;

(3) Ordering defendant Mariano L. del Mundo to pay to plaintiffs the sum of
P42,000.00 as reasonable rental payment for the use and occupancy of plaintiffs'
property, plus P15,000.00 representing the value of equipment taken by said
defendant from plaintiffs;

(4) Ordering defendants jointly and severally, to pay to plaintiffs the sum of
P200,000.00 as actual and moral damages, plus P6,000.00 as attorney's fees and
litigation expenses, plus costs;

(5) Ordering plaintiffs to reimburse defendant Republic Planters Bank the sum of
P67,000.00;

(6) Dismissing defendants' counterclaims for lack of merit. 11

Both parties appealed the decision to the Court of Appeals. While the appeal was pending, Jose
Francisco died; he was substituted by his heirs. On 07 April 1989, the court of Appeals rendered its
now assailed decision 12 which decreed:

WHEREFORE, the appealed decision is hereby AFFIRMED in all respects subject to

the modification that plaintiff-appellants be absolved of any liability to appellant
bank. 13

On its assumption that the decision had already become final and executory, the Court of Appeals
made an entry of judgment on 28 September 1989. 14 Thus, RPB, sometime in October 1990, paid
Genoveva Francisco and the substituted heirs the amount of P209,126.00, the extent to which RPB
was held to be jointly and solidarily liable with Del Mundo conformably with the appellate court's
decision (affirming that of the trial court). 15 The Franciscos acknowledged the payment and
manifested that "(t)he only amount not satisfied . . . (was) the amount due solely from defendant
Mariano L. Del Mundo" pursuant to that portion of the judgment —

3) Ordering defendant Mariano L. Del Mundo to pay plaintiffs the sum of P42,000.00
as reasonable rental payment for the use and occupancy of plaintiff's property, plus
P15,000.00 representing the value of equipment taken by said defendant from
plaintiffs; 16

When Del Mundo learned, for the first time, that a writ of execution pursuant to the appellate court's
decision was sought to be implemented against his property on 09 October 1990, he filed on the
very next day, or on 10 October 1990, an urgent manifestation with motion to lift the entry of
judgment against him alleging non-service of the assailed decision. 17 The appellate court acted
favorably on Del Mundo's motion and, "in the interest of justice," 18 he was also allowed to file his own
for reconsideration. He did in due time. 19

After Del Mundo's motion for reconsideration was denied on 18 March 1992, the present petition was
seasonably instituted assigning three alleged errors; viz:

A.

RESPONDENT C.A. ERRED IN AFFIRMING THE TRIAL COURT'S FINDING THAT

PRIVATE RESPONDENTS HAVE A CAUSE OF ACTION AGAINST PETITIONER
DESPITE THE TOTAL ABSENCE OF DAMAGE ON THE PART OF PRIVATE
RESPONDENTS.

B.

RESPONDENT C.A. ERRED IN AFFIRMING THE TRIAL COURT'S DECISION

DESPITE THE FACT THAT SAID DECISION DOES NOT STATE THE FACTS AND
THE LAW ON WHICH IT IS BASED IN GROSS VIOLATION OF SEC. 9, X OF THE
1973 CONSTITUTION THEN IN FORCE AND EFFECT.

C.

RESPONDENT C.A. ERRED IN AFFIRMING THE TRIAL COURT'S DECISION

ORDERING PETITIONER AND CO-DEFENDANT REPUBLIC PLANTERS BANK
("RPB") TO PAY PRIVATE RESPONDENTS, JOINTLY AND SEVERALLY, THE
 SUM OF p200,000.00 AS ACTUAL AND MORAL DAMAGES PLUS ATTORNEY'S
FEES, AND COSTS/EXPENSES OF LITIGATION.

We see partial merit in the petition.

In its 29th June 1984 decision, the trial court, after summarizing the conflicting asseverations of the
parties, went on to discuss, and forthwith to conclude on, the kernel issue of the case in just two
paragraphs, to wit:

The evidence disclose that defendant RPB executed said mortgage with del Mundo,
although the original of said special power-of-attorney and the original of the owner's
duplicate certificate of title was not presented to it and without requiring its
registration. Under the circumstances, the mortgage to defendant RPB was
irregularity executed, justifying annulment of said mortgage in its favor.

However, the evidence disclose that plaintiffs has received the sum of P45,000.00
from del Mundo, and the sum of P22,300.00 was paid to DBP (Exh. F) and applied to
plaintiffs' previous loan with DBP, as part of an agreement between plaintiffs and del
Mundo, or a total of P67,300.00. Plaintiffs are, therefore, duty bound to make
reimbursement of said amount to RPB, as they cannot be allowed to enrich
themselves at RPB's expense and prejudice. 20

After that brief disquisition, the trial court disposed of the case by ordering Del Mundo and RPB, inter
alia, jointly and severally to pay the Franciscos the sum of P200,000.00 as actual and moral
damages, P6,000.00 as attorney's fees, and litigation expenses plus costs.

It is understandable that courts, with their heavy dockets and time constraints, often find themselves
with little to spare in the preparation of decisions to the extent most desirable. We have thus pointed
out that judges might learn to synthesize and to simplify their pronouncements. 21 Nevertheless,
concisely written such as they may be, decisions must still distinctly and clearly express, at least in
minimum essence, its factual and legal bases. 22

The two awards — one for actual damages and the other for moral damages — cannot be dealt with
in the aggregate; neither being kindred terms nor governed by a coincident set of rules, each must
be separately identified and independently justified. A requirement common to both, of course, is
that an injury must have been sustained by the claimant. The nature of that injury, nonetheless,
differs for while it is pecuniary in actual or compensatory damages, 23 it is, upon the other hand, non-
pecuniary in the case of moral damages. 24

A party is entitled to an adequate compensation for such pecuniary loss actually suffered by him as
he has duly proved. 25 Such damages, to be recoverable, must not only be capable of proof, but must
actually be proved with a reasonable degree of certainty. 26 We have emphasized that these
damages cannot be presumed, 27 and courts, in making an award must point out specific facts which
could afford a basis for measuring whatever compensatory or actual damages are borne. 28

Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such
as physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and
social humiliation. These damages must be understood to be in the concept of grants, not
punitive 29 or corrective30 in nature, calculated to compensate the claimant for the injury
suffered.31 Although incapable of exactness and no proof of pecuniary loss is necessary in order that
moral damages may be awarded, the amount of indemnity being left to the discretion of the court,32 it
is imperative, nevertheless, that (1) injury must have been suffered by the claimant, and (2) such
injury must have sprung from any of the cases expressed in Article 2219 33 and Article 2220 34 of the
civil Code. A causal relation, in fine, must exist between the act or omission referred to in the Code
which underlies, or gives rise to, the case or proceeding, on the one hand, and the resulting injury,
on the other hand; i.e., the first must be the proximate cause and the latter the direct consequence
thereof.

A judicious review of the records in the case at bench, indeed, fails to show that substantial legal
basis was shown to support the herein questioned collective award for the questioned damages. We
are, therefore, constrained to disregard them.

As regards the other issues raised by petitioner, the findings of the appellate court, involving such as
they do mainly factual matters that are not entirely bereft of substantial basis, must be respected and
held binding on this Court.

In passing, we have taken note of the fact that the RPB, itself a judgment co-debtor in solidum with
Del Mundo, did not join the latter in this appeal. The Court, accordingly, cannot here and now make
any pronouncement on the effects of said bank's payment to Del Mundo under and by virtue of the
appellate court's appealed decision.

WHEREFORE, the decision of the Court of Appeals is accordingly MODIFIED by deleting the award
of P200,000.00 for actual and moral damages. In all other respects, the appealed decision is
AFFIRMED. No costs.

SO ORDERED.

[G.R. No. 139268. September 3, 2002]

PHILIPPINE TELEGRAPH & TELEPHONE CORPORATION and LOUIE

CABALIT, petitioners, vs. HON. COURT OF APPEALS and
LOLITA SIPE ESCARA, respondents.

DECISION
VITUG, J.:

Assailed in the instant petition of the Philippine Telegraph & Telephone

Corporation (PT&T) and Louie Cabalit is the judgment of the Court of Appeals
in CA G.R. CV No. 48313, promulgated on 15 March 1999, which has
affirmed with modification the decision of the Regional Trial Court of Makati
awarding damages to respondent Lolita Sipe Escara.
The facts were synthesized by the appellate court in its decision under
review.
On July 13, 1990, Felicitas B. Sipe, a resident of Surralah, South Cotabato, remitted to
her sister-in-law, Lolita Sipe Escara, two telegraphic money orders through the
facilities of Philippine Telegraph and Telephone Company (PT&T, for brevity). The
money orders, one for P2,000.00 and the other for P1,000.00, originated from Marbel,
South Cotabato, and were transmitted to the Cubao branch of PT&T. Plaintiff was
then studying for a doctoral degree in Education at the University of the Philippines
(U.P., for brevity), Diliman, Quezon City and was residing in one of its dormitories,
the Ipil Residence Hall. According to the plaintiff, the money was sent for the purpose
of paying for her tuition fee for one semester at the U.P.; paying for her fare to go
back to Cotabato to enable her to complete the requirements for a job promotion; and
paying for the cost of the medical consultation of her son who is sick of diabetes.

On July 22, 1990, plaintiffs husband sent her a telegram advising her to inform him if
she has received a remittance of P3,000.00. She made several phone calls to PT&T to
inquire about the money but was told that no money was transmitted in her favor. On
August 10, 1990, plaintiff sent her husband a telegram to inform him of her non-
receipt of the money. On August 18, 1990, plaintiffs husband again sent her a
telegram instructing her to claim at the PT&T Cubao branch the money transmitted on
July 13, 1990.

On August 20, 1990, plaintiff went to the PT&T office to inquire about the remittance
in her favor. Since Louie Cabalit, the branch cashier, was not around, plaintiff was
constrained to return the next day. It was only in the afternoon of August 21, 1990,
that she was able to talk to Louie Cabalit about the remittance. Cabalit looked into his
records, after which, the branch security guard informed plaintiff that no money was
transmitted to her. Upon plaintiffs request, Cabalit issued a certification that no
telegraphic money order in favor of plaintiff was received from Surralah by
PT&T. Nevertheless, Cabalit told her that he would re-examine his records to
determine whether a remittance was made in her name.

Subsequently, Cabalit informed plaintiff that the money being claimed by her did not
come from Surralah but from Marbel, South Cotabato. On August 22, 1990, an
attempt was made by PT&T to deliver the telegraphic money order at plaintiffs
dormitory but she was not around. On September 10, 1990, plaintiff received from
PT&T two checks representing the amount remitted to her. However, plaintiff was not
able to encash the checks at once because the bank did not have a clearance from
PT&T. Finally, on September 14, 1990, plaintiff was able to encash the checks.

Aggrieved by the delay in the delivery of the remittance, plaintiff filed a complaint for
damages against PT&T and Louie Cabalit. In her complaint, she alleged that the delay
was the cause of her failure to enroll for one semester at the U.P.; to complete her
requirements for a job promotion; and to bring her son to the doctor for medical
consultation. On November 29, 1994, the lower court rendered the questioned
decision, the dispositive portion of which reads:

`WHEREFORE, this Court renders judgment in favor of the plaintiff and against the
defendants, ordering the defendants, jointly and severally, to pay the plaintiff:

`1. The sum of P100,000.00 in actual/compensatory damages;

`2. The sum of P50,000 in moral damages;

`3. The sum of P10,000.00 in exemplary damages;

`4. No attorneys fees awarded being a pro bono publica case; and

`5. To pay costs of suits. [1]

Petitioners appealed the decision of the trial court to the Court of

Appeals. The appellate court affirmed the decision with modification. Finding
to be inadequate the evidence submitted by respondent Lolita Sipe Escara to
prove pecuniary loss suffered by her, the Court of Appeals deleted the award
of actual damages. The appellate court, however, sustained the award of
moral and exemplary damages in favor of private respondent, ratiocinating
thusly:

Article 1170 of the Civil Code provides that `those who in the performance of their
obligations are guilty of fraud, negligence, or delay and those who in any manner
contravene the tenor thereof, are liable for damages. In the case at bar, appellant
PT&T, for a fee, undertook to send plaintiff two telegraphic money orders in the sum
of P3,000.00. Appellant, however, failed to deliver the money to plaintiff immediately
after the money order was transmitted to its Cubao branch. It was only on September
14, 1990, or almost two months from transmittal that plaintiff was finally able to have
her money.

We find PT&T negligent when it did not take steps to ensure the prompt delivery of
the money to plaintiff from the time the checks were issued in her favor. It is quite
clear that PT&T did not act with any sense of urgency but with indifference and
nonchalance with respect to plaintiffs case. First of all, after Louie Cabalit endorsed
the two checks to the dispatch section of PT&T and subsequently took an emergency
leave, the personnel at the Cubao branch did not exert enough effort to effect the
delivery of the money. In fact, the Cubao branch wired its Marbel branch only on
August 3, 1990 to request for the complete address of the recipient from the
sender. Apparently, it took them eighteen days to realize that the address of the
recipient was insufficient.

Furthermore, the claim of PT&T that it made several attempts to deliver the money
between July 17, 1990 and August 3, 1990 is open to doubt because there is no proof
showing to what extent PT&T endeavored to locate the plaintiff. Francisco Dumlao,
administrative officer of the Registrars Office of U.P., testified that the addressee of
letters or telegrams labeled only as `U.P. Diliman, is located by referring to the
records of currently enrolled students under the active file or to the records of its
alumni under the inactive file. It appears that PT&T did not attempt to inquire from
the Registrars Office regarding plaintiffs whereabouts since it obviously failed to
draw the inference that the University of the Philippines is a school with facilities that
can be of assistance in locating its own students.[2]

In the instant appeal, petitioners would strongly urge that the appellate
court be reversed in awarding moral and exemplary damages to respondent
Lolita Escara with the latters failure to present evidence that she had suffered
wounded feelings, serious anxiety, and mental anguish or that the act she had
ascribed to petitioners was done in bad faith, or in wanton, fraudulent,
oppressive or malevolent manner. Private respondent, however, would insist
that the clearly established culpable conduct of petitioners warranted the
award of both moral and exemplary damages.
There is merit in the petition.
The breach of an obligation because of fraud, negligence or delay or of a
contravention by any means of the tenor of that obligation does open the
defaulting obligor to possible liability for damages.The right to those damages
and the extent of their recovery would depend on the kind and nature of the
damages and the manner in which the injury causing it is brought about.
The Court of Appeals was correct in deleting the award made by the trial
court of actual damages where proof of pecuniary loss, in an action based
on culpa contractual, is essential. Finding the evidence to be wanting in this
respect, the appellate court did not err in its judgment.
In the case of moral damages, recovery is more an exception rather than
the rule. Moral damages are not punitive in nature but are designed to
compensate and alleviate the physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar harm unjustly caused to a person. In order that an
award of moral damages can be aptly justified, the claimant must be able to
satisfactorily prove that he has suffered such damages and that the injury
causing it has sprung from any of the cases listed in Articles 2219 and [3]
2220 of the Civil Code. Then, too, the damages must be shown to be the
[4] [5]

proximate result of a wrongful act or omission. The claimant must establish

the factual basis of the damages and its causal tie with the acts of the
defendant. In fine, an award of moral damages would require, firstly,
evidence of besmirched reputation or physical, mental or psychological
suffering sustained by the claimant; secondly, a culpable act or omission
factually established; thirdly, proof that the wrongful act or omission of the
defendant is the proximate cause of the damages sustained by the claimant;
and fourthly, that the case is predicated on any of the instances expressed or
envisioned by Article 2219 and Article 2220 of the Civil Code. In culpa
contractual or breach of contract, particularly, moral damages may be
recovered when the defendant has acted in bad faith or is found to be guilty of
gross negligence (amounting to bad faith) or in wanton disregard of his
contractual obligation.[6]

In the case at bar, the appellate court itself did not see any clear indication
of bad faith or gross negligence amounting to bad faith on the part of
petitioners. It would be error to make an award of moral damages to private
respondent merely because petitioner corporation was unable to effect
immediate delivery of the money sent through it in two money orders, one for
P2,000.00 and the other for P1,000.00. Indeed, it would appear that the
address given by the sender was merely and vaguely stated to be U.P.
Diliman Quezon City. So, also, when private respondent went to the office of
petitioner PT&T to inquire about the money order she erroneously mentioned
it to have been sent from Surralah, South Cotabato. It was only upon
verification made by petitioners that the latter were able to discover that the
money transfers did originate, not, however, from Surralah, but from Marbel,
South Cotabato. Given all the circumstances found by the appellate court, the
delay of less than two months in the remittance to private respondent of the
amounts due her could hardly be said as being constitutive of bad faith or
gross negligence amounting to bad faith.
Neither can the award of exemplary damages be sustained. Exemplary
damages are not recoverable as a matter of right. Although such damages
[7]

need not be proved, plaintiff must first show that he is entitled to moral,
temperate, or compensatory damages before a court can favorably consider
an award of exemplary damages. In contracts and quasi-contracts,
[8]

specifically, exemplary damages may be justified if the defendant is shown to

have acted in a wanton, fraudulent, reckless, oppressive, or malevolent
manner. Petitioner corporation might have been remiss in the prompt delivery
[9]

of the sums sent through it to respondent; however, the Court would be

hardput to say that such delay under the facts obtaining can be described as
being wanton, fraudulent, reckless, or oppressive in character.
Still, of course, petitioner corporation is not totally free from liability. It may
have had good reasons, but it has not been able to overcome thereby its
burden to prove a valid excuse, for the breach of agreement such as by
proving, among other possible legal grounds, fortuitous event to account for
its failure. The breach would have justified a recovery of actual damages but,
there being no adequate proof of pecuniary loss found by the appellate court,
such damages cannot be awarded. Neither moral nor exemplary damages
have been justified, as hereinbefore explained, as to warrant any recovery
thereof. The Court thus is left with two alternative possibilities an award of
temperate or moderate damages or an award of nominal damages.
Temperate or moderate damages may only be given if the court finds that
some pecuniary loss has been suffered but that its amount cannot, from the
nature of the case, be proved with certainty. The factual findings of the
[10]

appellate court that respondent has failed to establish such pecuniary loss or,
if proved, cannot from their nature be precisely quantified precludes the
application of the rule on temperate or moderate damages. The result comes
down to only a possible award of nominal damages. Nominal damages are
adjudicated in order that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or recognized and not for the
purpose of indemnifying the plaintiff for any loss suffered by him. The court
[11]

may award nominal damages in every obligation arising from any source
enumerated in article 1157 of the Civil Code or, generally, in every case
where property right is invaded.
In the instant case, for the violation of the right of private respondent to
receive timely delivery of the money transmitted through petitioner corporation
an award of nominal damages is appropriate.An amount of P20,000.00 by
way of nominal damages, considering all that private respondent has had to
go through, is in the Courts view reasonable and fair.
There is, however, neither enough factual nor adequate legal basis to hold
petitioner Louie Cabalit, PT&Ts branch cashier, solidarily liable with petitioner
corporation.
WHEREFORE, the instant petition is GRANTED. The appealed decision is
reversed and set aside and, in its stead, petitioner Philippine Telegraph &
Telephone Corporation is ordered to pay respondent Lolita Sipe Escara the
sum of P20,000.00 by way of nominal damages. Costs against petitioner
corporation.
SO ORDERED.
G.R. No. 148923. August 11, 2005

VICENTE LAMIS and SANDIGAN PROTECTIVE & INVESTIGATION AGENCY, INC., Petitioners,
vs.
DAVID Y. ONG, Respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is a petition for review on certiorari filed by Vicente Lamis and Sandigan Protective &
Investigation Agency, Inc. assailing the Decision1 dated March 13, 2001 of the Court of Appeals and
its Resolution dated June 28, 2001 in CA-G.R. CV No. 61034, entitled "David Y. Ong, petitioner,
versus Vicente Lamis and Sandigan Protective & Investigation Agency, Inc., respondents."

The facts as shown by the records are:

Sandigan Protective and Investigation Agency, Inc. (Sandigan), petitioner, was the security agency
providing security services at the Manila Chinese Cemetery. The visiting hours were at 6:00 a.m. to
6:00 p.m. Sandigan instructed the security guards not to allow any one to enter the cemetery from
6:00 p.m. to 6:00 a.m.

On September 20, 1994, Vicente Lamis, also a petitioner, was the guard assigned at the south gate
of the cemetery for the 6:00 p.m. to 6:00 a.m. slot.

Around 3:00 in the morning, a Mitsubishi Lancer, with a PSM 679 plate, driven by David Y. Ong,
herein respondent, arrived at the south gate of the cemetery. He beeped his car and continued doing
so, but Lamis did not open the gate. Eventually, he went outside the gate and informed respondent
that being beyond visiting hours, he cannot enter the cemetery. Suddenly, respondent accelerated
the speed of his car, trying to enter the cemetery. This irked Lamis. He closed the gate and took a
shot gun entrusted to him by one of the roving guards.

About thirty minutes thereafter, respondent’s car returned at full speed toward the closed gate where
Lamis was standing. He fired a warning shot but respondent did not stop his car. Lamis fired another
warning shot. Respondent then alighted from his car. Seeing it was closed, he got inside the car, but
before he could do so, Lamis shot him, hitting his right arm, left hip, and right waist. He managed to
drive to the Chinese General Hospital where he was examined and treated. Thereafter, the hospital
guard reported the incident to the police who immediately conducted an investigation.

Petitioner Sandigan conducted its own investigation but did not turn over to the police the firearm
used by Lamis.

Subsequently, Sandigan paid Lamis’ mother the amount spent for his medical expenses. Meanwhile,
he was given another job but he absented from work without leave. Thus, he was suspended and
eventually dismissed from the service.

On March 16, 1994, respondent filed with the Regional Trial Court, Branch 45, Manila a complaint
for frustrated homicide against Lamis, docketed as Criminal Case No. 94-J-27836.
Later, or on March 31, 1995, respondent also filed a complaint for damages against both petitioners,
docketed as Civil Case No. 95-73446. On March 20, 1998, the trial court rendered a Decision, the
dispositive portion of which reads:

"WHEREFORE, premises considered, the defendants Vicente Lamis and Sandigan Protective &
Investigation Agency, Inc. are ordered to pay jointly and solidarily to plaintiff the following amounts:

1. Five Hundred Thousand Pesos (₱500,000.00) as moral damages;

2. Three Hundred Thousand Pesos (₱300,000.00) as exemplary damages;

3. Fifty Thousand Pesos (₱50,000.00) as attorney’s fees, and;

4. The costs of suit.

The respective counterclaims of the defendants are dismissed for lack of merit.

SO ORDERED."2

On appeal, the Court of Appeals rendered the assailed Decision affirming the trial court’s judgment,
holding that:

xxx

"We do not agree with the appellants (now petitioners).

xxx

Indeed, the acts of appellant Lamis were not the result of negligence but were deliberate and
intentionalconstituting, as they were, delictual acts for which he was even charged of
‘Frustrated Homicide’ in ‘People versus Vicente Lamis, Criminal Case No. 94-J-27836’
(Exhibit ‘H’). Hence, we agree with the court a quo that appellant Lamis’ plea of having acted in
complete self-defense in shooting the appellee with two (2) guns and, hence, not civilly liable to the
appellee, is barren of merit.

xxx

The appellants fault the court a quo for not giving approbation to appellant Lamis’ plea of having
acted in self-defense. But, then, case law has it that the findings of facts of the trial court, its
calibration of the testimonial evidence of the parties, the probative weight accorded by the court a
quo of the evidence of the parties and its conclusions anchored on its findings, are accorded by the
Appellate Court, high respect, if not, conclusive effect, because of the unique advantage of the trial
court of observing, at close, range, the demeanor and conduct of the witnesses as they regale the
court with their respective testimonies.

xxx

Our Supreme Court expostulated in ‘Maria A. Dulay, et al. versus Court of Appeals, et al., 293
SCRA 720’ that the law is not limited, in scope, to acts or omissions resulting from negligence. It
also includes acts committed with negligence and acts that are voluntary and intentional, whether
such acts are delictual or not and whether or not the defendant is prosecuted in a criminal case
independently and separately from the civil action instituted by the aggrieved party for the recovery
of damages against the offending party x x x.

xxx

The next issue that comes to fore is whether or not appellant Sandigan mustered the requisite
quantum of evidence to prove that it exercised due diligence of a good father of a family in the
selection and its supervision of its employees to prevent damage/injuries.

xxx

In the present recourse, appellant Sandigan failed to discharge its burden. The appellant relied
solely on a copy of its Rules and Regulations, Exhibit ‘1’, and the testimony of Salvador Manansala
to discharge its burden.

xxx

Appellant Sandigan’s utter neglect was made more pronounced when it failed to adduce in evidence
any copy of its Report on the shooting incident involving appellant Lamis. Neither did it surrender to
the police authorities the .38 caliber gun and shotgun used by appellant Lamis in shooting the
appellee.

xxx

The appellants, however, plead that the awards for damages be reduced because of the flagrant
violation by the appellee of the curfew imposed by the management of the cemetery. We are not
inclined to agree to appellant’s plea. We find and consider the awards by the court a quo reasonable
in the light of the factual milieu in the present recourse."

Petitioner filed a motion for reconsideration but the Appellate Court denied the same in its Resolution
dated June 28, 2001.

Hence, the instant petition for review on certiorari raising the following issues:

"I

WHETHER, CONSIDERING THE EVIDENCE ON RECORD, THE COURT OF APPEALS

CORRECTLY DISMISSED PETITIONER LAMIS’ PLEA OF SELF-DEFENSE.

II

WHETHER THE COURT OF APPEALS CORRECTLY HELD PETITIONER SANDIGAN LIABLE

DESPITE THE FACT THAT SANDIGAN EXERCISED DUE DILIGENCE IN THE SELECTION AND
SUPERVISION OF ITS SECURITY GUARDS.

III

WHETHER THE COURT OF APPEALS, DESPITE LACK OF BASIS TO SUPPORT ANY FINDING
OF LIABILITY AGAINST PETITIONERS, CORRECTLY AWARDED DAMAGES IN FAVOR OF
RESPONDENT."
Anent the first and second issues, petitioners contend that the Court of Appeals erred in ruling that:
(a) petitioner Lamis did not act in self-defense, and (b) petitioner Sandigan failed to prove that it
exercised due diligence in the selection and supervision of its security guards.

The first two issues are obviously questions of fact. Certainly, such matters mainly require a
calibration of the evidence or a determination of the credibility of the witnesses presented by the
parties and the existence and relevancy of specific surrounding circumstances, their relation to each
other and to the whole, and the probabilities of the situation.3

The well-entrenched rule is that questions of fact may not be the subject of an appeal
by certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, as this recourse is
generally confined to questions of law.4 Under the said Rule, the jurisdiction of this Court over cases
brought to it is limited to the review and rectification of errors of law committed by the lower court.

Moreover, it is doctrinally settled that where the trial court’s factual findings are adopted and
affirmed by the Court of Appeals, as in this case, the same are final and conclusive and may not be
reviewed by this Court.5 It bears emphasis that in the appreciation of evidence, the Appellate Court
accords due deference to the trial court’s factual findings because the latter had the opportunity to
observe the demeanor of the witnesses when they testified during the trial and, therefore, is in a
better position to determine their credibility.6 Thus, we find no compelling reason to overturn the
factual findings and conclusion of law by the Court of Appeals relative to the first and second issues.

With respect to the third issue, petitioners maintain that there is no legal basis for the trial court’s
award of damages.

As earlier stated, the trial court found that Lamis’ act of shooting the respondent was "deliberate and
intentional," hence, both petitioners are jointly and solidarily liable to respondent for damages.

Article 2176 of the Civil Code provides that "Whoever by an act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the damage done. x x x." The
obligation imposed by this Article is "demandable not only for one’s own wrongful acts or omissions,
but also for those persons for whom one is responsible."7 Thus, petitioner Sandigan, being the
employer of petitioner Lamis, is likewise liable for damages caused by the latter.8

As stated earlier, petitioner Sandigan already paid the medical expenses (or actual damages)
incurred by respondent.

We find, however, that the trial court erred in awarding to respondent moral damages in the sum of
₱500,000.00, exemplary damages of ₱300,000.00 and attorney’s fee in the amount of ₱50,000.00.
These amounts are quite excessive. We have held that although the trial court is given the discretion
to determine the amount of such damages, the appellate court may modify or change the amount
awarded when it is inordinate,9 as in this case.

It bears stressing that the award of moral damages is meant to compensate the claimant for any
physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury unjustly caused by the defendant’s wrongful
acts.10 Although incapable of pecuniary estimation, the amount must somehow be proportional to
and in approximation of the suffering inflicted.11 Moral damages are not intended to impose a
penalty to the wrongdoer,12 neither to enrich the claimant at the expense of the defendant.13 There is
no hard-and-fast rule in determining what would be a fair and reasonable amount of moral damages,
since each case must be governed by its own peculiar facts. Trial courts are given discretion in
determining the amount, with the limitation that it should not be palpably and scandalously
excessive.14 We hold that an award to respondent of ₱30,000.00, instead of ₱500,000.00, as moral
damages is reasonable.

Likewise, we are convinced that the award of exemplary damages should be reduced from
₱300,000.00 to ₱25,000.00. Such damages are imposed not to enrich the claimant and impoverish
the defendant but to serve as a deterrent against, or as a negative incentive to curb, socially
deleterious actions.15

Finally, an award of ₱20,000.00 as attorney’s fee is deemed sufficient considering that the suit
involved is merely for damages. Attorney’s fee may be awarded when a party is compelled to litigate
or incur expenses to protect his interest by reason of an unjustified act of the other party,16 as in the
present case.

WHEREFORE, the petition is DENIED. The assailed Decision dated March 13, 2001 and Resolution
dated June 28, 2001 of the Court of Appeals in CA-G.R. CV No. 61034 are AFFIRMED with
MODIFICATION in the sense that petitioners are ordered to pay respondent (a) ₱30,000.00 as moral
damages, (b) ₱25,000.00 as exemplary damages, and (c) ₱20,000.00 as attorney’s fee. Costs
against petitioners.

SO ORDERED.

G.R. No. L-64515 June 22, 1984

R & B SURETY & INSURANCE CO., INC., petitioner,

vs.
THE INTERMEDIATE APPELLATE COURT and ANGELINA USON, respondents.

Raul A. Mora for petitioner.

Celedonio Tiongson for respondents.

GUTIERREZ, JR., J.:

This is a petition for review on centiorari, seeking to set aside the decision of the in Intermediate
Appellate Court which awarded the private respondent moral and exemplary damages plus
attorney's fees, after finding that the petitioner acted in bad faith in filing an action against said
respondent.

The facts are stated in the desision of the appellate court:

xxx xxx xxx

... On January 3, 1969, defendant Maria Isabel Diaz was granted a loan of
P20,000.00 by the Philippine National Bank. To secure the repayment of the loan,
Maria Isabel Diaz submitted a surety bond (Exh. B) of plaintiff R & B Surety &
Insurance Co., Inc. for the sum of P20,000.00 in favor of the Philippine National
Bank. In turn, defendants executed an indemnity agreement with the chattel
mortgage (Exh. C) to indemnify the plaintiff surety "for any damage, prejudice, loss,
costs, payments, advances and expenses of whatever kind and nature, including
 attorney's fees, which the corporation may, at any time, become liable for, sustain or
incur as a consequence of having executed the above-mentioned Bond, its renewals,
extensions, or substitutions and said attorney's fees not to be less than twenty (20%)
per cent of the total amount claimed by the corporation in each action, the same to
be due, demandable and payable, irrespective of whether the case is settled
judicially or extra-judicially and whether the amount has been actually paid or not."

Maria Isabel Diaz did not file her answer to the complaint or the crossclaim of
defendant Angelina Uson, and she was declared in default in both cases. Defendant
Eliseo Santos filed his answer to the complaint wherein he admits signing the
indemnity agreement but claims that "all the time he thought he was and actually
intended to be a character witness only." In his counterclaim, he asks for attorney's
fees, expenses of litigation and other damages in unspecified amounts against the
plaintiff. Defendant Angelina Uson filed a separate answer, stating her signatures
appearing on the indemnity agreement are all forgeries. By way of counterclaim
against the plaintiff, she asks for P100,000.00 as moral damages and a sum
equivalent to 25% of the amount of damages she may recover as and for counsel
fees. By way of crossclaim against defendant Maria Isabel Diaz, she asks for the
payment of moral damages and attorney's fees in like amounts for forging or causing
to be forged her signature in the indemnity agreement.

After due trial, judgment was rendered by the Court of First Instance the dispositive
portion of which reads as follows:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff

and against the defendants Maria Isabel Diaz and Eliseo Santos,
ordering them, jointly and severally, to pay the former the sum of
P20,000.00, with interest thereon at the rate of 13-l/2% from January
16, 1974, the date when plaintiff paid the Philippine National Bank; a
sum equal to 20% thereof as and for attorney's fees; and the costs of
suit. The complaint is dismissed as against the defendant Angelina
Uson.

The counterclaims of the defendants Eliseo Santos and Angelina

Uson are hereby dismissed.

xxx xxx xxx

Respondent appealed the dismissal of her counterclaim. On April 29, 1982, the Intermediate
Appellate Court** modified the decision of the lower court and ordered the plaintiff-appellee R & B
Surety and Insurance Co., Inc. R & B), to pay "the sum of P100,000.00 as moral damages, twenty
five (25%) per cent of said amount as attorney's fees and P10,000.00 as exemplary damages ..." on
a finding that R & B acted in bad faith when it filed the action against defendant-appellant Uson. A
motion for reconsideration was filed by R & B but the same was denied. Hence, this petition.

Petitioner R & B assigns the following errors:

1. The respondent appellate Court has committed grievous error in drawing from the established
facts a conclusion that herein Petitioner is guilty of bad faith and negligence, and, therefore liable to
private respondent for moral and exemplary damages, attomey's fees and costs;
2. The respondent appellate Court has committed grave error in over- riding legal presumptions of
law by and with conjectural, illogical, flimsy and misleading deductions not supported by the
established facts;

3. The respondent appellate Court has awarded a kind of damage (exemplary damage) which is not
within the contemplation of the pleadings and which, even the private respondent had not conceived
and asked for; and

4. Generally, the respondent appellate Court had rendered a decision which, in a way, is not in
accord with law or with the applicable decisions of this Honorable Supreme Court.

The only issue raised in the above assignments of errors is whether or not, on the basis of the
evidence found in the records, the respondent court correctly adjudged the petitioner guilty of bad
faith and negligence in filing the complaint against respondent Uson sufficiently to warrant an award
of moral and exemplary damages and attorney's fees in the total amount of P135,000.00.

The appellate court tried to justify the award by stating:

The plaintiff did not appeal from the findings of the lower court that the signatures
appearing in the indemnity agreement (Exh. C), purporting to be those of Miss Uson,
are all forgeries, which meant that some other person, upon the inducement of Maria
Isabel Diaz, signed the names of Uson in said Exhibit C. This could only be done if
Exhibit C was signed in the absence of the representative of the plaintiff corporation,
or because the corporation entrusted blank copies or forms of the indemnity
agreement to Maria Isabel Diaz to be signed and accomplished. Herein lies the
plaintiff's bad faith. The perpetration of the forgeries was made possible due to the
negligence of plaintiff. Yet, the plaintiff presented Crisoforo Lopez, its Assistant
Manager, who had the temerity to claim that Miss Uson signed Exhibit C. On top of
all this is the uncontradicted testimony of Uson that before the case was filed in court
she personally informed Atty. Armando Abad, an official of plaintiff, that the
signatures appearing to be hers in Exhibit C are forgeries (pp. 13-15, t.s.n., Nov. 6,
1974). Plaintiff's negligence is also demonstrated by its omission to request, as
required of it by Commonwealth Act No. 465, otherwise known as the Residence
Certificate Law, Uson, if she was really present, to exhibit her latest residence
certificate before it signed said indemnity agreement. This circumstance likewise
shows that Uson was not present during the execution of Exhibit C.

Petitioner contends that bad faith and negligence cannot be deduced from the fact that it handed out
blank forms of the indemnity agreement to Maria Isabel Diaz for her and her co-signatories to
accomplish without any representative from the petitioner corporation being present and to return the
same to the latter already duly notarized. Petitioner also maintains that neither can bad faith be
presumed from the fact that it pursued the filing of an action against Uson notwithstanding the fact
that the latter had already informed petitioner beforehand that her signatures on the said agreement
were forged.

We find merit in the petition.

While petitioner might have been negligent in not verifying the authenticity of the signatures in the
indemnity agreement, still the same does not amount to bad faith as to justify the award of damages
and the conclusion that the act of filing the complaint against respondent Uson amounts to malicious
prosecution In filing the action, the petitioner was only protecting its business interests by trying to
recover the amount it had already paid to the Philippine National Bank.
In a long line of cases, we have consistently ruled that in the absence of a wrongful act or omission
or of fraud or bad faith, moral damages cannot be awarded and that the adverse result of an action
does not per se make the action wrongful and subject the actor to the payment of damages, for the
law could not have meant to impose a penalty on the right to litigate. (Salao v. Salao, 70 SCRA 86,
87, citing Barreto v. Arevalo, 99 Phil. 771, 779; Herrera v. Luy Kim Guan, 110 Phil. 1020, 1028;
Heirs of Justina v. Gustilo, 61 O.G. 6959; Castillo v. Castillo, 95 SCRA 68; Mirasol v. De la Cruz, 84
SCRA 342, 343; citing Pacific Merchandising Corporation v. Diestro Logging Development
Corporation, 34 SCRA 704; Octot v. Ybañez 111 SCRA 84, 85; citing Ong Yiu v. Court of Appeals,
91 SCRA 223 and Inhelder Corporation v. Court of Appeals, 122 SCRA 584-585, citing
Buenaventura v. Sto. Domingo, 103 Phil. 239). lwphl@itç

In the case at bar, the act of filing the complaint against respondent Uson was not at all motivated by
ill will or by any desire to vex and humiliate the respondent. This can be gleaned from the fact that
after the termination of the case before the trial court, the petitioner did not appeal the dismissal of
the case against the respondent even though it knew that it would have a greater chance of
collecting what it paid for if all the defendants were adjudged to pay the amount in the indemnity
agreement especially since the main signatory to the agreement had already been declared in
default and was nowhere to be found.

We agree with the trial court in its finding that:

As regards Uson's counterclaim against the plaintiff, the evidence does not support a
finding that the filing of the complaint against this defendant was done in bad faith
and with malice. The plaintiff, it must be assumed was guided solely by the records in
its possession in the firing of this case and it cannot be faulted if the defendant Uson
was impleaded as a defendant since her name appears in the indemnity agreement
and other supporting papers. It must be borne in mind that this case was filed more
than four years after the said document was executed and, considering the volume of
business done by the plaintiff of the same nature, defendant Angelina Uson was only
a name as far as it is concerned.

Neither can bad faith be presumed from the fact that inspite of the respondent's declaration outside
the court that her signatures were forged, the petitioner still included her in the complaint. There is
no reason why such declaration should be given full faith and credit by herein petitioner as to totally
exclude respondent from the complaint. It is natural for a prospective defendant to deny any
participation or involvement in the subject matter of the litigation. Precisely, the very purpose of
going to trial was to ascertain whether or not her signatures were indeed forged. And as stated
earlier, the mere fact that an action is later found to be based on an erroneous ground does not per
se make its initiator guilty of bad faith and liable for damages, much less in the amount of
P110,000.00. Sound principles of justice and public policy demand that persons shall have free
resort to courts of law for redress of wrongs and vindication of their rights without fear of later on
standing trial for damages should their actions lose ground. (Inhelder Corporation v. Court of
Appeals, supra citing Buenaventura v. Sto. Domingo, 103 Phil. 239). In one case, we held that the
award of moral and exemplary damages was uncalled for on the ground that the petitioner had not
acted with malice, fraud or in bad faith despite the fact that petitioner in instituting the action, solely
relied on a letter of the accounting firm which it knew was still unverified, undetailed, and incomplete.
(Panay Electric Co., Inc. v. Court of Appeals, 119 SCRA 459). We reiterate the reminder to lower
courts "to guard against the award of exhorbitant damages that are way out of proportion to the
environmental circumstances of a case and which time and again, this Court has reduced or
eliminated. Judicial discretion granted to the courts in the assessment of damages must always be
exercised with balanced restraint and measured objectivity." Inhelder Corporation v. Court of
Appeals, supra). In the case at bar, even if the respondent were entitled to damages, the award of a
total amount of P135,000.00 as damages and attorney's fees was entirely way out of proportion.
In any case, we hold that the award of damages was erroneous. Moral damages are emphatically
not intended to enrich a complainant at the expense of a defendant; they are awarded only to enable
the injured party to obtain means, diversion or amusements that will serve to alleviate the moral
suffering he has undergone, by reason of the defendants culpable action. In other words, the award
of moral damages is aimed at a restoration, within the limits of the possible of the spiritual status quo
ante, and it must be proportionate to the suffering inflicted. (Grand Union Supermarket, Inc. v.
Espino, Jr., 94 SCRA 966, citing the concurring and dissenting opinion of Justice J.B.L. Reyes in
Pangasinan Transportation Company, Inc. v. Legaspi, 12 SCRA 598) In the absence of a wrongful
act or omission or of fraud or bad faith, petitioner cannot be adjudged to pay moral damages. The
award of exemplary damages and attorney's fees are likewise untenable for they can only be given
in case the petitioner acted in a wanton, fraudulent, reckless, oppressive or malevolent manner and
if the action instituted by it was clearly unfounded and so untenable as to amount to gross and
evident bad faith. (See Ong Yiu v. Court of Appeals, supra and Mirasol v. De la Cruz, supra, citing
Rizal Surety & Insurance Co. v. Court of Appeals, 20 SCRA 61). The records are bereft of proof to
support any finding of bad faith on the part of the petitioner.

WHEREFORE, the petition is GRANTED. The decision of the Intermediate Appellate Court is hereby
REVERSED and SET ASIDE and the decision of the Court of First Instance of Manila, Branch XVI is
REINSTATED and AFFIRMED in toto.

SO ORDERED.

G.R. No. 126363 June 26, 1998

THE CONGREGATION OF THE RELIGIOUS OF THE VIRGIN MARY, petitioner,

vs.
THE COURT OF APPEALS and SPOUSES JEROME and TERESA PROTASIO, respondents.

MARTINEZ, J.:

Petitioner, The Congregation Of The Religious Of The Virgin Mary, has filed this petition for
review on certiorari, urging us to reverse the decision 1 of the Court of Appeals dated
September 12, 1996, in CA-G.R. CV No. 43311, entitled "SPS. JEROME and TERESA
PROTASIO, Plaintiffs-Appellees, versus, THE RELIGIOUS OF THE VIRGIN MARY, Defendant-
Appellant." The decision affirmed the judgment of the Regional Trial Court of Davao City in
Civil Case No. 29,960-91, ordering the petitioner to return the possession of the disputed land
to the respondents-spouses and to pay them damages.

The facts of this case, as found by the respondent court, 2 are as follows:

On December 26, 1964, Gervacio Serapio, the grandfather of herein respondents-spouses

Jerome and Teresa Protasio, sold to herein petitioner, the Congregation of the Religious of
the Virgin Mary, two (2) lots identified as Lot No. 5-A and Lot No. 5-C which were covered by
TCT Nos. 14834 and 14835, respectively. In between Lot No. 5-A and Lot No. 5-C is Lot No. 5-
B. Petitioner did not buy it when it was offered for sale by Gervacio Serapio. In 1978, Gervacio
died and his estate consisting of several parcels of land was settled extra-judicially among
his heirs.

In October of 1989, respondents-spouses purchased Lot No. 5-B from the heirs of Gervacio
Serapio. Accordingly, TCT No. 148595 was issued in their name. Sometime in November of
1989, respondents-spouses had the subject Lot No. 5-B surveyed and they discovered that
664 square meters of their 858 square meters property was fenced and occupied by
petitioner. They also found out that a building for the boys' quarters and a portion of
petitioner's gymnasium were constructed inside Lot No. 5-B. The encroachment by petitioner
on respondents-spouses land was made without the latter's knowledge and consent. Despite
repeated demands by respondents-spouses, petitioner failed and refused to (1) restore to the
spouses possession of the encroached property; (2) demolish the improvements constructed
thereon, and (3) pay damages and back rentals. Thus, on September 23, 1991, a complaint for
recovery of possession of real property damages, back rentals and attorney's fees was filed
by respondents-spouses against the petitioner. The complaint was docketed as Civil Case
No. 20,960-91 of the Regional Trial Court of Davao City, Branch 15. In answer to the
complaint, petitioner admitted that it occupies part of the litigated property but averred that
Lot No. 5-B was supposed to be a road lot that would give their Lots 5-A and 5-C means of
entry and egress to the public road and, therefore, was beyond the commerce of man.
Petitioner further claims that respondents-spouses, as successors-in-interest of Gervacio
Serapio, have the obligation to respect the perpetual use of Lot No. 5-B ceded to it by
Serapio.

After trial on the merits, the trials court rendered judgment in favor of respondents-spouses
and against the petitioner. It rejected petitioner's claim of being a builder in good faith of the
improvements it introduced on the disputed lot of respondents-spouses. The dispositive
portion of the decision dated July 30, 1993 reads:

WHEREFORE, judgment is rendered ordering the defendant (now petitioner):

1. To vacate the part of the plaintiffs' (now respondents-spouses') lot covered

by TCT No. 148595 it is presently occupying and to peaceably return the
possession to the plaintiffs at its own expense.

2. To demolish the buildings and improvements it introduced on the lot of the

plaintiffs at its own expense.

3. To pay on hundred thousand pesos (P100,000.00) as moral damages.

4. To pay back rentals of fifteen thousand pesos (P15,000.00) with legal

interests to be computed from January 31, 1991 until fully paid.

5. To pay one hundred thousand pesos (P100,000.00) as attorney's fees, four

thousand pesos (P4,000.00) as litigation expenses and the costs of suit.

SO ORDERED. 3

Upon appeal by petitioner to the respondent court, the latter affirmed in toto the judgment of
the trial court.

Still dissatisfied, petitioner now comes to us via the present petition, assailing the
respondent court's decision on the following grounds:

I
 THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING THAT
PRIVATE RESPONDENTS' ANCESTOR, GERVACIO SERAPIO, HAD CEDED TO
THE PETITIONER THE PERPETUAL USE OF LOT 5-B.

II

THE PUBLIC RESPONDENT GRIEVOUSLY IGNORED THE EVIDENCE ON

RECORD AND ERRED IN NOT HOLDING THAT PRIVATE RESPONDENTS'
CLAIM HAD CLEARLY BEEN BARRED BY LACHES.

III

THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION

WHEN IT AWARDED ACTUAL DAMAGES IN THE FORM OF BACK RENTALS
WITHOUT PROOF TO SUPPORT THE SAME.

IV

THE PUBLIC RESPONDENT COMMITTED GAVE ABUSE OF DISCRETION IN

AWARDING MORAL DAMAGES TO PRIVATE RESPONDENTS —

(A) IN THE ABSENCE OF A PRAYER FOR THE AWARD NOR PROOF OF THE
SAME.

(B) IN THE FACE OF EVIDENCE CLEARLY SHOWING THAT PRIVATE

RESPONDENTS WERE PURCHASERS IN BAD FAITH. 4

The above-quoted errors allegedly committed by the respondent court call for a review of its
findings of facts. As a general rule, the re-examination of the evidence submitted by the
contending parties during the trial of case is not a function that this Court normally
undertakes inasmuch as the findings of facts of the respondent court are generally binding
and conclusive on the Supreme Court. 5 The jurisdiction of this Court in a petition for review
on certiorari under Rule 45 of the Revised Rules of Court is limited to reviewing only errors of
law, 6 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 misapprehension of facts. 7

Petitioner contends that its case should be treated as an exception to the said general rule
since the respondent court "overlooked certain relevant facts not disputed by the parties,
which if properly considered, would justify a different conclusion." 8

Let us examine these "relevant facts" which the respondent court allegedly overlooked when
it rendered the assailed decision.

First. Petitioner maintains that Gervacio Serapio, the original owner of the land in question
(Lot 5-B), had in his lifetime represented, committed and warranted that the said lot would be
for petitioner's perpetual use as a road lot, it being the only access to the public road for Lot
5-A and 5-C, and to each other. 9

In support of this posture, petitioner cited the document entitled "Agreement Of Purchase
And Sale" 10dated July 8, 1959, executed between Gervacio Serapio and petitioner, which
Agreement shows a sketch attached thereto as Annex "A" 11 indicating the locating of the two
(2) lots subject of the Agreement and two (2) proposed roads, the Simeon de Jesus St. and
Padre Faura St. (which is the disputed Lot B). Petitioner argues that "without that map
(sketch) and the implicit assurance that goes with it, there could not have been a sale." 12

There is nothing significant in the said sketch which would justify a reversal of the findings
and conclusions reached by the respondent court. It is merely a sketch of the location of the
two (2) lots subject of the sale. There is no express or implied agreement in said annex
containing the sketch which would confirm petitioner's claim that Geronimo Serapio "had
ceded to the petitioner the perpetual use of Lot 5-B." If petitioner's claim was true, then the
same could have easily been inserted as an additional agreement between the parties. That it
was not made so, only shows that petitioner's claim is nothing but a mere conjecture, which
has zero evidentiary weight. Section 9, Rule 130 of the Revised Rules of Court provides in
part that where, as here, "the terms of an agreement have been reduced to writing, it is
considered as containing all the terms agreed upon and there can be, between the parties
and their successors in interest, no evidence of such terms other than the contents of the
written agreement." Simply put, any oral evidence of an agreement should be excluded when
after all, the existing agreement is already in writing. 13 Thus, we are not prepared to disturb
the following findings and conclusions of the respondent court:

Appellant first argues that the original owner of the subject land, Gervacio
Serapio, had intended, represented and warranted that the same would be for
its perpetual; use as a road lot. Involving as it does a transmission of real
rights, this claim should be based on something more concrete than bare
allegations and speculations. In the instant case, however, there is notably no
concrete evidence supporting appellant's claim.

Appellant would have Us believe that the map attached to the Agreement of
Purchase and Sale between it and Gervacio Serapio, containing as it does the
proposed roads in the area, implicitly carries the assurance that Gervacio
Serapio had made with respect to said proposed roads.

Even the most careful perusal of the map attached to the Agreement of
Purchase and Sale between appellant and Gervacio Serapio, however, does
not reveal anything other than that it merely shows the location of the lots
subject of such Agreement. Indeed, from the Agreement itself, it is clear that
said map was attached simply to identify the location of the lots covered by the
Agreement; and that reference to the map was simply as follows —

. . ., the SELLER by these presents PROMISE TO SELL to said

BUYER, these portions of land more particularly identified and
designated as Lot Nos. "A" and "C"in the sketch hereto
attached and marked as Annex "A," . . . (Exh. 16, Agreement of
Purchase and Sale) [Emphasis ours]

There being no provision in the Agreement, whatsoever, regarding the subject

lot, or the grant of its use unto appellant, We cannot now accept appellant's
bare allegations on Gervacio Serapio's representation and warranty that the
subject land would be for its perpetual use as a road lot. At any rate, it has
been ruled that in case of doubt in the provisions of the Deed of Sale, the least
transmission of rights should prevail (Gacos vs. Court of Appeals, 212 SCRA
8).
 The rest of appellant's arguments in support of its claim regarding perpetual
use of the subject land as a road lot are nothing but mere speculations which,
as We have stressed, cannot suffice for Us to uphold any transmission of real
rights. Being painfully bereft of concrete evidence, said claim of appellant
must be brushed aside. 14

Even if we were to accept as true petitioner's stance that Lot 5-B was intended by Gervacio
Serapio as a road right of way for petitioner's perpetual use, still a grant of a right of way in
favor of petitioner does not legally entitle it to occupy part of the said lot which is registered
in repondents-spouses' name, more so to introduce permanent improvements thereon such
as a gymnasium and a boys' quarters/dormitory.

Thus, what is actually at issue here is not whether the petitioner could use Lot 5-B in
question as a road, but rather whether the petitioner could legally possess/occupy part of the
said lot. This is, in fact, the only issue as agreed upon by the contending parties during the
pre-trial conference of this case before the trial court. 15 As discussed earlier, petitioner has
no right whatsover to possess and construct permanent structures on the questioned land
owned by respondent-spouses. Petitioner admits in its answer to the complaint that it
introduced improvement on the subject lot without the consent and knowledge of
respondent-spouses. 16 It is thus a builder in bad faith. Again, we find no reversible error in
the following ruling of the respondent court:

Which leads us to a discussion of whether or not appellant was in bad faith in

introducing improvements on the subject land. It cannot be denied that
appellant never gained title to the subject land as it admits to not having
purchased the said lot (TSN, p. 81, November 9, 1992). Neither has appellant
successfully shown any right to introduce improvements on the said land (its
claim of grant of perpetual use of the same as a road lot and its right to build
on a right of way both having been rejected above). This being so, it follows
that appellant was a builder in bad faith in that, knowing that the land did not
belong to it and that it had no right to build thereon, it nevertheless caused the
improvements in question to be erected.

Next, appellant claims that granting that it was in bad faith appellees and their
predecessors-in-interest were equally guilty of bad faith in allowing the
construction of the improvements. This bad faith on the part of the appellees
and their predecessors-in-interest should, however, have been proved at the
hearing below, for in the absence of such proof, it must be presumed that with
the unlawful trespass upon the subject land, the building were commenced
thereon without the knowledge and consent of the owners thereof (Rivera vs.
Archbishop of Manila, 40 Phil. 717). Again, We find such proof absent in the
instant case. 17

Second. Petitioner contends that the respondent court struck down its defense of laches
"with a grossly erroneous and unfair declaration that since the private respondents
themselves did not sleep on their rights, there could be no laches." 18 Suffice it to state that
no evidence was presented by petitioner during the trial to prove that the improvements
constructed on the subject property were made during the lifetime of Gervacio Serapio, nor
that Serapio, his heirs or respondents-spouses were aware of, much less tolerated, the said
structures so as to make them guilty of laches proper:
 Neither are We convinced by appellant's argument that appellee's claim is
barred by laches. In Olizon vs. Court of Appeals, 236 SCRA 148, the Supreme
Court once again defined laches —

. . . as the failure or neglect, for an unreasonable and

unexplained length of time, to do that which by exercising due
diligence could or should have been done earlier: it is
negligence or omission to assert a right within a reasonable
time, warranting a presumption that the party entitled to assert it
either has abandoned it or declined to assert it.

Here, the improvements introduced by appellant were finished in 1988. In

November 1989, a month after appellees purchased the subject lot, they had
the same surveyed, after which they immediately sought to inform the
appellant about the encroachment they had discovered (TSN, pp. 8-11, August
26, 1992). Thereafter, on October 26, 1990, appellees, through their lawyer, sent
a demand letter to appellant regarding the matter, followed by another demand
letter dated January 31, 1991. Finally the Complaint was filed on September 23,
1991. All told, We do not find laches to have set in to effectively bar appellees
from the claims contained in their Complaint. By any indication, the lapse of a
mere three (3) years from the time the improvements were constructed up to
the time of the filing of the Complaint cannot be construed as sufficient to hold
the complainant as barred by laches. Especially so since during the interim,
appellees were diligent in having the subject land surveyed and in sending
demand letter to appellant. 19

Third. Petitioner claims that the respondent court committed grave abuse of discretion when
it awarded respondents-spouses actual damages in the form of back rentals of P15,000.00 a
month, plus the legal rate of interest, to be reckoned from January, 1991, without proof to
support the same. We have examined the respondents-spouses' complaint and the testimony
of respondent Jerome Protasio on the matter of back rentals prayed for in the complaint, and
we find no factual basis how such award was arrived at. Thus, we have to discard such award
of damages. A party is entitled to an adequate compensation for such pecuniary loss actually
suffered by him as he has duly prove. 20 Such damages, to be recoverable, must not only be
capable of proof, but must actually be proved with a reasonable degree of certainty. 21 These
damages cannot be presumed, 22 and the courts in making such award of damages must point
out specific facts which could afford a basis for measuring whatever compensatory or actual
damages are borne. 23

Fourth. We also agree with the petitioner that the respondent court should not have awarded
respondents-spouses moral damages of P100,00.00 simply because their complaint did not
specifically ask for such relief. Moral damages must be disallowed when it is not specifically
prayed for in the complaint. 24 It is elementary that in order that moral damages may be
awarded, there must be pleading and proof of moral suffering, mental anguish, fright and the
like, 25 both of which are absent in this case.

Finally. We further agree with the petitioner that the award of attorney's fees of P100,000.00
should be eliminated for lack of factual basis and legal justification. The only evidence to
support respondents-spouses' claim for attorney's fees is the testimony of Jerome Protasio
to effect that his agreement with the law firm handling his case is that he is obligated to pay
"25% of the obligation receivable . . ." 26 That is all. Both the trial court and respondent Court
of Appeals likewise did not cite specific factual basis to justify the award of attorney's fees,
which is in violation of the proscription against the imposition of a penalty on the right to
litigate. 27 As we enunciated in Refractories Corporation of the Philippines vs. Intermediate
Appellate Court: 28

. . . The award of attorney's fees is the exception rather than the general rule
and counsel's fees is not to be awarded every time a party wins a suit. The
discretion of the court to award attorney's fees under Article 2208 of the Civil
Code "demand factual, legal and equitable justification, without which the
award is a conclusion without a premise, its basis being improperly left to
speculation and conjecture." In all events, the court must state the reason for
the award of attorney's fees.

WHEREFORE, the decision of the respondent Court of Appeals dated September 12, 1996, in
CA-G.R. CV No. 43311, is hereby MODIFIED in the sense that the awards of back rentals,
moral damages and attorney's fees are hereby DELETED. In all other respects, the assailed
decision is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

[G.R. No. 99301. March 13, 1997]

VICTOR KIERULF, LUCILA H. KIERULF and PORFIRIO LEGASPI,

petitioners, vs. THE COURT OF APPEALS and PANTRANCO
NORTH EXPRESS, INCORPORATED, respondents.

[G.R. No. 99343. March 13, 1997]

PANTRANCO NORTH EXPRESS, INCORPORATED, petitioner, vs.

VICTOR KIERULF, LUCILA H. KIERULF and PORFIRIO
LEGASPI, respondents.

DECISION
PANGANIBAN, J.:

How much moral, exemplary and actual damages are victims of vehicular
accidents entitled to?
In G.R. No. 99301, the victims of the vehicular mishap pray for an increase
in the award of damages, over and above those granted by the appellate
court. In this case, the husband of the victim of the vehicular accident claims
compensation/damages for the loss of his right to marital consortium which,
according to him, has been diminished due to the disfigurement suffered by
his wife. In G.R. No. 99343, the transport company, which owned the bus that
collided with the victims' pickup truck, asks for exoneration by invoking an
alleged fortuitous event as the cause of the mishap.
Petitioners in both cases assail the Decision, dated March 13, 1991, in
[1]

CA-GR CV No. 23361 of the Court of Appeals, Sixth Division ordering the [2]

following:[3]

"For reasons indicated and in the light of the law and jurisprudence applicable
to the case at bar, the judgment of the trial court is hereby modified as
follows:

Under the first cause of action, the defendant is hereby ordered to pay Lucila H.
Kierulf the following:

(1) For actual damages incurred for hospitalization, medical case (sic)
and doctor's fees, the sum of P241,861.81;

(2) For moral damages the sum of P200,000.00;

(3) For exemplary damages the amount of P100,000.00.

Under the second cause of action, to pay Victor Kierulf, by way of

indemnification damage to the Isuzu Carry All with plate No. UV PGS 798,
the amount of P96,825.15.

Under the third cause of action, to pay Porfirio Legaspi the following:

(1) For moral damages in the amount of P25,000.00;

(2) To reimburse the plaintiff the amount of P6,328.19 for actual damages
incurred in the treatment and hospitalization of the driver Porfirio
Legaspi.

The defendant is further ordered to pay the amount of P50,000.00 as fair and
reasonable attorney's fees.
And to pay the costs of suit."
Respondent Court of Appeals modified the decision of the Regional Trial
Court of Quezon City, Branch 92, rendered on May 24, 1989 in Civil Case
[4]
No. Q-50732 for damages. The dispositive portion of the said decision is
quoted below: [5]

"WHEREFORE, in view of the foregoing, judgment is hereby rendered

against the defendant, ordering Pantranco to pay:

Under the First Cause of Action

1. In favor of plaintiff Lucila H. Kierulf actual damages in the

amount on ONE HUNDRED SEVENTY FOUR THOUSAND
ONE HUNDRED and 77/100 (P174,100.77) PESOS;
2. To pay said plaintiff moral damages in the amount of ONE
HUNDRED THOUSAND and 00/100 (P100,000.00) PESOS;
3. To pay exemplary damages in the amount of TEN THOUSAND
and 00/100 (P10,000.00) PESOS.
Under the Second Cause of Action
1. To pay plaintiff Victor Kierulf the amount of NINETY SIX
THOUSAND EIGHT HUNDRED TWENTY FIVE and 15/100
(P96,825.15) PESOS by way of indemnification for the
damages to the Isuzu Carry All with plate No. UV PGS 796
registered in his name.
Under the Third Cause of Action
1. To pay the plaintiff spouses by way of reimbursement for actual
damages incurred for the treatment of injuries sustained by their
driver Porfirio Legaspi in the amount of SIX THOUSAND
THREE HUNDRED TWENTY EIGHT and 19/100 (P6,328.19)
PESOS; and
2. To pay plaintiff Porfirio Legaspi moral damages in the amount of
TEN THOUSAND and 00/100 (P10,000.00) PESOS.
Defendant is further ordered to pay the amount of P25,000.00 for and
as attorney's fees, and to pay costs.
All other claims and counterclaims are dismissed."

The Facts

The following may be culled from the undisputed factual findings of the
trial court and Respondent Court of Appeals:
The initial investigation conducted by Pfc. D.O. Cornelio disclosed that at about 7:45
p.m. of 28 February 1987, the Pantranco bus, bearing plate number AVE-845 (TB PIL
86), was traveling along Epifanio de los Santos Avenue (EDSA) from Congressional
Avenue towards Clover Leaf, Balintawak. Before it reached the corner of Oliveros
Drive, the driver lost control of the bus, causing it to swerve to the left, and then to fly
over the center island occupying the east-bound lane of EDSA. The front of the bus
bumped the front portion of an Isuzu pickup driven by Legaspi, which was moving
along Congressional Avenue heading towards Roosevelt Avenue. As a result, the
points of contact of both vehicles were damaged and physical injuries were inflicted
on Legaspi and his passenger Lucila Kierulf, both of whom were treated at the
Quezon City General Hospital.The bus also hit and injured a pedestrian who was then
crossing EDSA.

Despite the impact, said bus continued to move forward and its front portion rammed
against a Caltex gasoline station, damaging its building and gasoline dispensing
equipment.

As a consequence of the incident, Lucila suffered injuries, as stated in the medical

report of the examining physician, Dr. Pedro P. Solis of the Quezon City General
[6]

Hospital. The injuries sustained by Lucila required major surgeries like "tracheotomy,
open reduction, mandibular fracture, intermaxillary repair of multiple laceration" and
prolonged treatment by specialists. Per medical report of Dr. Alex L. Castillo, Legaspi
also suffered injuries.[7]

The front portion of the pickup truck, owned by Spouses Kierulf, bearing plate
number UV PGS 798, was smashed to pieces. The cost of repair was estimated
at P107,583.50.

Pantranco, in its petition, adds that on said day, the abovementioned bus
[8]

was driven by Jose Malanum. While cruising along EDSA, a used engine
differential accidentally and suddenly dropped from a junk truck in front of the
bus. Said differential hit the underchassis of the bus, throwing Malanum off his
seat and making him lose control of said bus. The bus swerved to the left, hit
the center island, and bumped the pickup of the spouses.

The Issues

Spouses Kierulf and their driver Legaspi raise the following assignment of
errors in this appeal: [9]

"A
 The respondent court of appeals erred in awarding only P200,000.00
and P25,000.00 as and for moral damages for the petitioners Kierulf and
Legaspi respectively when it should at least have been P1,000,000.00
and P100,000.00 respectively.
B
The respondent court of appeals erred in awarding only P100,000.00 to the
petitioners Kierulf and nothing to petitioner Legaspi as and for exemplary
damages when it should have at least been P500,000.00 and P50,000.00
respectively.
C

The respondent court of appeals erred in not awarding any amount for the lost
income due to the petitioner Lucila H. Kierulf.
D
The respondent court of appeals erred in not awarding the amount
of P107,583.50 for the damages sustained by the Isuzu carry-all pick-up truck.
E
The respondent court of appeals erred in not awarding any legal interest on the
sums awarded."
On the other hand, Pantranco raises the following assignment of errors: [10]

4.1 The Honorable Court of Appeals erred in holding that the driver of
Pantranco was negligent;
4.2 The Honorable Court of Appeals erred in holding that the proximate cause
of the accident was the negligence of Pantranco and not a fortuitous event;
and
4.2 (sic) The Honorable Court of Appeals erred in awarding excessive
damages."
In sum, Spouses Kierulf and Legaspi argue that the damages awarded
were inadequate while Pantranco counters that they were astronomical,
bloated and not duly proved. [11]

The Court's Ruling

First Issue: Negligence and Proximate Cause Are Factual Issues

 Even on appeal, Pantranco insists that its driver was not negligent and
that the mishap was due to a fortuitous event. February 28, 1987, the date of
the incident, was a Saturday; hence, driving at the speed of 40-50 kilometers
per hour (kph) was prudent. It contends that the proximate cause was the
accidental dropping of a used engine differential by a junk truck immediately
ahead of the bus. [12]

As to what really caused the bus to careen to the opposite lane of EDSA
and collide with the pickup truck driven by Legaspi is a factual issue which this
Court cannot pass upon. As a rule, the jurisdiction of this Court is limited to
the review of errors of law allegedly committed by the appellate court. This
Court is not bound to analyze and weigh all over again the evidence already
considered in the proceedings below. [13]

Although the Court may review factual issues in some instances, the [14]

case at bar does not fall under any one of them. The fact that there is no
conflict between the findings of the trial court and respondent Court bolsters
our position that a review of the facts found by respondent Court is not
necessary. There being no conflict between the findings of the Court of
[15]

Appeals and the trial court that gross negligence was the real cause of the
collision, we see no reason to digress from the standard rule.
We quote with concurrence the factual findings of the appellate and trial
courts, showing that the accident was, contrary to the belief of Pantranco, the
result of the gross negligence of its driver. To wit: [16]

"The vehicular accident was certainly not due to a fortuitous event. We agree
with the trial court's findings that the proximate cause was the negligence of
the defendant's driver, such as: (1) Driving at that part of EDSA at 7:45 P.M.
from Congressional Avenue towards Clover Leaf overpass in the direction of
Balintawak at 40-50 kph is certainly not a manifestation of good driving habit
of a careful and prudent man exercising the extraordinary diligence required
by law. Traffic in that place and at that time of the day is always heavy. (2)
Losing control of the wheel in such a place crowded with moving vehicles,
jumping over the island which separates the East bound from the West bound
lane of EDSA indicate that the defendant's bus was traveling at a speed limit
beyond what a prudent and careful driver is expected of, if such driver were
exercising due diligence required by law. (3) Finally, crossing over the island
and traversing the opposite lane and hitting an oncoming vehicle with such
force as to smash the front of such vehicle and finally being forced to stop by
bumping against a Caltex service station -- all show not only negligence, but
recklessness of the defendant's driver. (4) If defendant's driver was not driving
fast, was not recklessly negligent and had exercised due care and prudence,
 with due respect to human life and to others travelling in the same place, the
driver could have stopped the bus the moment it crossed the island, and
avoided crossing over to the other lane and bumping against vehicles
travelling in opposite direction. The defendant's driver did not take any
evasive action and utterly failed to adopt any measure to avoid injuries and
damage to others because he 'lost control of the bus', which was like a
juggernaut, let loose in a big crowd, smashing everything on its path."

Second Issue: Moral Damages

Complainants aver that the moral damages awarded by Respondent Court

are "clearly and woefully not enough." The established guideline in awarding
moral damages takes into consideration several factors, some of which are
the social and financial standing of the injured parties and their wounded
[17]

moral feelings and personal pride. The Kierulf spouses add that the
[18]

Respondent Court should have considered another factor: the loss of their
conjugal fellowship and the impairment or destruction of their sexual life. [19]

The spouses aver that the disfigurement of Lucila's physical appearance

cannot but affect their marital right to "consortium" which would have
remained normal were it not for the accident. Thus the moral damages
awarded in favor of Lucila should be increased to P1,000,000.00, not only for
Lucila but also for her husband Victor who also suffered "psychologically." A
California case, Rodriguez vs. Bethlehem Steel Corporation, is cited as [20]

authority for the claim of damages by reason of loss of marital consortium, i.e.
loss of conjugal fellowship and sexual relations. [21]

Pantranco rebuts that Victor's claim of moral damages on alleged loss of

consortium is without legal basis. Article 2219 of the Civil Code provides that
only the person suffering the injury may claim moral damages. Additionally, no
evidence was adduced to show that the consortium had indeed been impaired
and the Court cannot presume that marital relations disappeared with the
accident.[22]

The Courts notes that the Rodriguez case clearly reversed the original
common law view first enunciated in the case of Deshotel vs. Atchison, that [23]

a wife could not recover for the loss of her husband's services by the act of a
third party. Rodriguez ruled that when a person is injured to the extent that
he/she is no longer capable of giving love, affection, comfort and sexual
relations to his or her spouse, that spouse has suffered a direct and real
personal loss. The loss is immediate and consequential rather than remote
and unforeseeable; it is personal to the spouse and separate and distinct from
that of the injured person.
Rodriguez involved a couple in their early 20s, who were married for only
16 months and full of dreams of building a family of their own, when the
husband was struck and almost paralyzed by a falling 600-pound pipe. The
wife testified how her life had deteriorated because her husband became a
lifelong invalid, confined to the home, bedridden and in constant need of
assistance for his bodily functions; and how her social, recreational and
sexual life had been severely restricted. It also deprived her of the chance to
bear their children. As a constant witness to her husband's pain, mental
anguish and frustration, she was always nervous, tense, depressed and had
trouble sleeping, eating and concentrating. Thus, the California court awarded
her damages for loss of consortium.
Whether Rodriguez may be cited as authority to support the award of
moral damages to Victor and/or Lucila Kierulf for "loss of consortium,"
however, cannot be properly considered in this case.
Victor's claim for deprivation of his right to consortium, although argued
before Respondent Court, is not supported by the evidence on record. His
wife might have been badly disfigured, but he had not testified that, in
consequence thereof, his right to marital consortium was affected. Clearly,
Victor (and for that matter, Lucila) had failed to make out a case for loss of
consortium, unlike the Rodriguez spouse. Again, we emphasize that this claim
is factual in origin and must find basis not only in the evidence presented but
also in the findings of the Respondent Court. For lack of factual basis, such
claim cannot be ruled upon by this Court at this time.

Third Issue: No Consideration of Social and Financial Standing in this

Case

The social and financial standing of Lucila cannot be considered in

awarding moral damages. The factual circumstances prior to the accident
show that no "rude and rough" reception, no "menacing attitude," no
"supercilious manner," no "abusive language and highly scornful reference"
was given her. The social and financial standing of a claimant of moral
damages may be considered in awarding moral damages only if he or she
was subjected to contemptuous conduct despite the offender's knowledge of
his or her social and financial standing.
[24]

Be that as it may, it is still proper to award moral damages to Petitioner

Lucila for her physical sufferings, mental anguish, fright, serious anxiety and
wounded feelings. She sustained multiple injuries on the scalp, limbs and
ribs. She lost all her teeth. She had to undergo several corrective operations
and treatments. Despite treatment and surgery, her chin was still numb and
thick. She felt that she has not fully recovered from her injuries. She even had
to undergo a second operation on her gums for her dentures to fit. She
suffered sleepless nights and shock as a consequence of the vehicular
accident. In this light and considering further the length of time spent in
[25]

prosecuting the complaint and this appeal, we find the sum of P400,000.00 as
moral damages for Petitioner Lucila to be fair and just under the
circumstances.

Fourth Issue: Exemplary Damages

Complainants also pray for an increase of exemplary damages

to P500,000.00 and P50,000.00 for Spouses Kierulf and Legaspi,
respectively. This prayer is based on the pronouncement of this Court
in Batangas Transportation Company vs. Caguimbal that "it is high time to
[26]

impress effectively upon public utility operators the nature and extent of their
responsibility in respect of the safety of their passengers and their duty to
exercise greater care in the selection of drivers and conductors x x x."
Pantranco opposes this, for under Article 2231 of the Civil Code,
"exemplary damages may be granted if the defendant acted with gross
negligence." And allegedly, gross negligence is sorely lacking in the instant
case.
Exemplary damages are designed to permit the courts to mould behavior
that has socially deleterious consequences, and its imposition is required by
public policy to suppress the wanton acts of an offender. However, it cannot
[27]

be recovered as a matter of right. It is based entirely on the discretion of the

court. Jurisprudence sets certain requirements before exemplary damages
[28]

may be awarded, to wit: [29]

"(1) (T)hey may be imposed by way of example or correction only in

addition, among others, to compensatory damages, and cannot be
recovered as a matter of right, their determination depending upon the
amount of compensatory damages that may be awarded to the claimant;
(2) the claimant must first establish his right to moral, temporate,
liquidated or compensatory damages; and
 (3) the wrongful act must be accompanied by bad faith, and the award
would be allowed only if the guilty party acted in a wanton, fraudulent,
reckless, oppressive or malevolent manner."
The claim of Lucila has been favorably considered in view of the finding of
gross negligence by Respondent Court on the part of Pantranco. This is made
clear by Respondent Court in granting Lucila's claim of exemplary damages: [30]

"(P)ublic utility operators like the defendant, have made a mockery of our
laws, rules and regulations governing operations of motor vehicles and have
ignored either deliberately or through negligent disregard of their duties to
exercise extraordinary degree of diligence for the safety of the travelling
public and their passengers. x x x ."
To give teeth to this warning, the exemplary damages awarded to
Petitioner Lucila is increased to P200,000.00. The fact of gross negligence
duly proven, we believe that Legaspi, being also a victim of gross negligence,
should also receive exemplary damages. Under the facts proven, the Court
awards him P25,000 as exemplary damages.

Fifth Issue: Loss of Earnings as a Component of Damages

Lost income in the amount of P16,500.00 is also claimed by Legaspi

stating that his "whole future has been jeopardized." This, in turn, is not
[31]

rebutted by Pantranco.
It should be noted that Respondent Court already considered this when it
stated that the award of P25,000.00 included compensation for "mental
anguish and emotional strain of not earning anything with a family to
support." Moral damages, though incapable of pecuniary estimation, are in the
category of an award designed to compensate the claimant for actual injury
and are not meant to enrich complainant at the expense of defendant. [32]

We find, however, the claim of Legaspi to be duly

substantiated. Pantranco failed to rebut the claim of Porfirio that he had been
incapacitated for ten (10) months and that during said period he did not have
any income. Considering that, prior to the accident, he was employed as a
driver and was earning P1,650.00 a month, his claim for P16,500.00 as
compensation for loss of earning capacity for said period is amply supported
by the records and is demandable under Article 2205 of the Civil Code.
[33] [34]

Complainants contend that Lucila is also entitled to damages for "loss or

impairment of earning capacity in cases of temporary or permanent personal
injury" under Article 2205 of the Civil Code.Notably, both the trial court and
public respondent denied this prayer because of her failure to produce her
income tax returns for the years 1985 and 1986, notwithstanding the
production of her 1983 and 1984 income tax returns.
Pantranco opposes the above claim for loss of earning capacity on the
ground that there is no proof "that for the two years immediately preceding the
accident Lucila was indeed deriving income from some source which was cut
off by the accident."
[35]

We agree with the findings of Respondent Court that Lucila's claim of loss
of earning capacity has not been duly proven. The alleged loss must be
established by factual evidence for it partakes of actual damages. A party is
entitled to adequate compensation for such pecuniary loss actually suffered
and duly proved. Such damages, to be recoverable, must not only be capable
of proof, but must actually be shown with a reasonable degree of
certainty. We have emphasized that these damages cannot be presumed, and
courts in making an award must point out specific facts which can serve as
basis for measuring whatever compensatory or actual damages are
borne. Mere proof of Lucila's earnings consisting of her 1983 and 1984
[36]

income tax returns would not suffice to prove earnings for the years 1985 and
1986. The incident happened on February 28, 1987. If indeed Lucila had been
earning P50,000.00 every month prior to the accident, as she alleged, there
are evidentiary proofs for such earnings other than income tax returns such
as, but not limited to, payroll receipts, payments to the SSS, or withholding tax
paid every month. Sad to say, these other proofs have not been presented,
and we cannot presume that they exist on the strength of the word of Lucila
alone.

Sixth Issue: Reduction of Actual Damages on the Pickup Based on an

Estimate

Complainants contend that the reduction of 10% from the written estimate
of the cost of repairs by the trial court is pure speculation. Pantranco
[37]

opposes this by pointing out that judicial notice is made by respondent Court
of the propensity of motor repair shops to exaggerate their estimates. [38]

An estimate, as it is categorized, is not an actual expense incurred or to be

incurred in the repair. The reduction made by respondent court is reasonable
considering that in this instance such estimate was secured by the
complainants themselves.
 Epilogue

This Court cannot remind the bench and the bar often enough that in order
that moral damages may be awarded, there must be pleading and proof of
moral suffering, mental anguish, fright and the like. While no proof of
pecuniary loss is necessary in order that moral damages may be awarded, the
amount of indemnity being left to the discretion of the court, it is nevertheless
[39]

essential that the claimant should satisfactorily show the existence of the
factual basis of damages and its causal connection to defendant's acts. This
[40]

is so because moral damages, though incapable of pecuniary estimation, are

in the category of an award designed to compensate the claimant for actual
injury suffered and not to impose a penalty on the wrongdoer. In Francisco [41]

vs. GSIS, the Court held that there must be clear testimony on the anguish
[42]

and other forms of mental suffering. Thus, if the plaintiff fails to take the
witness stand and testify as to his/her social humiliation, wounded feelings
and anxiety, moral damages cannot be awarded. In Cocoland Development
Corporation vs. National Labor Relations Commission, the Court held that
[43]

"additional facts must be pleaded and proven to warrant the grant of moral
damages under the Civil Code, these being, x x x social humiliation, wounded
feelings, grave anxiety, etc., that resulted therefrom."
Moral damages are awarded to enable the injured party to obtain means,
diversions or amusements that will serve to alleviate the moral suffering
he/she has undergone, by reason of the defendant's culpable action. Its [44]

award is aimed at restoration, as much as possible, of the spiritual status quo

ante; thus, it must be proportionate to the suffering inflicted. Since each case
[45]

must be governed by its own peculiar circumstances, there is no hard and fast
rule in determining the proper amount. The yardstick should be that the
amount awarded should not be so palpably and scandalously excessive as to
indicate that it was the result of passion, prejudice or corruption on the part of
the trial judge. Neither should it be so little or so paltry that it rubs salt to the
[46]

injury already inflicted on plaintiffs.

WHEREFORE, premises considered, the petition for review in G.R. No.
99301 is PARTIALLY GRANTED, while that of Pantranco North Express, Inc.,
in G.R. No. 99343 is DISMISSED. The Decision appealed from
is AFFIRMED with MODIFICATION. The award of moral damages to Lucila
and Legaspi is hereby INCREASED to P400,000.00 and P50,000.00
respectively; exemplary damages to Lucila
is INCREASED to P200,000.00. Legaspi is awarded exemplary damages
of P50,000.00. The amount of P16,500.00 as actual or compensatory
damages is also GRANTED to Legaspi. All other awards of Respondent Court
of Appeals are AFFIRMED. Pantranco shall also PAY legal interest of 6% per
annum on all sums awarded from the date of promulgation of the decision of
the trial court, May 24, 1989, until actual payment.
SO ORDERED.

[G.R. No. 145712. September 24, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICTOR

HATE, accused-appellant.

DECISION
YNARES-SANTIAGO, J.:

This is an appeal from the decision of the Regional Trial Court of

[1]

Sorsogon, Branch 52, in Criminal Case No. 98-4583, convicting accused-

appellant Victor Hate of the crime of Murder and sentencing him to suffer the
penalty of reclusion perpetua and to pay the heirs of the victim the sum of
P50,000.00 as civil indemnity and P15,000.00 as reasonable actual expenses
and to pay the cost.
The Information against accused-appellant reads:

That on or about 12:00 midnight of December 31, 1997, at barangay Central,

municipality of Casiguran, province of Sorsogon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with treachery and
evident premeditation armed with bladed weapon, did then and there, wilfully,
unlawfully and feloniously, attack, assault and stab one MARCIAL DIO, inflicting
upon him a fatal injury which caused his death, to the damage and prejudice of his
legal heirs.

CONTRARY TO LAW. [2]

Upon arraignment on June 4, 1998, accused-appellant, assisted by

counsel de parte, entered a plea of not guilty. Thereafter, trial ensued. The
prosecution presented the following witnesses: (1) Bernardo Palacio; (2)
Joselito Esmea; (3) Dr. Antonio Lopez; and (4) Remedios Dio.
On the other hand, the defense presented accused-appellant and Zoraida
Barbiran.
 The facts as narrated by the eyewitness presented by the prosecution are
as follows:
At about midnight of December 31, 1997, Bernardo Palacio was walking
from the church of Casiguran, Sorsogon towards the transportation terminal
with Marcial Dio on his left side, Joselito Esmea on his right side and one
Dante ahead of them. Suddenly, Marcial Dio cried, I was hit. Bernardo
immediately turned to his left side and saw accused-appellant stab the victim
from behind with a sharp instrument. Accused-appellant thereafter ran
away. He was able to identify the accused-appellant because the latter stared
at him and a beam of flashlight shone on his face. The victim was brought to
the Sorsogon Provincial Hospital. Bernardo then went to Cogon, Casiguran,
Sorsogon with Joselito Esmea to tell the victims parents what had happened. [3]

Joselito Esmea corroborated the testimony of Bernardo Palacio and

further testified that they chased accused-appellant for about two meters but
they stopped because stones were pelted at them; and that he signed a
[4]

sworn statement before Judge Rica H. Lacson.

Dr. Antonio Lopez, the doctor who performed the surgical operation on the
victim and issued the corresponding death certificate, testified that the victim
died at 5:10 in the morning of January 1, 1998 and the immediate cause of
death was aspiration of gastric content secondary to stab wound in the lumbar
area which is considered a vital organ. [5]

Remedios Dio, the mother of the victim, testified on the damages they
suffered caused by the untimely demise of their son. [6]

For his defense, accused-appellant denied authorship of the crime. He

alleged that at around 10:00 in the evening of December 31, 1997, he stayed
at the house of his uncle, Rommel Grecia, at Logger, Casiguran, Sorsogon
because he was suffering from stomachache. At around 2:00 in the morning,
he requested that he be brought to the house of his sister, Zoraida Barbiran. [7]

Zoraida Barbiran testified that Rommel Grecia brought her brother,

accused-appellant, to her house. She gave him leblon, a medicine for
stomach pains, and hot water. After several hours, accused-appellant was
relieved, but he stayed in her house until 7:00 in the morning of January 1,
1998. [8]

After trial, judgment was rendered against the accused-appellant, the

dispositive portion of which reads:

WHEREFORE, premises considered, the Court finds accused Victor Hate guilty
beyond reasonable doubt of the crime of Murder, defined and penalized under Article
248 of the Revised Penal Code with the qualifying circumstance of treachery, the
Court hereby sentences him to an imprisonment of Reclusion Perpetua and to pay the
heirs of Marcial Dio the sum of Fifty Thousand (P50,000.00) Pesos, Philippine
currency, as civil indemnity without subsidiary imprisonment in case of insolvency, to
reimburse the heirs of the victim the amount of P15,000.00 as reasonable actual
expenses and to pay the cost.

Accused being detained, his detention shall be credited in full in the service of his
sentence.

SO ORDERED. [9]

In this appeal, accused-appellant raises the lone issue of:

WHETHER THE EVIDENCE ADDUCED BY THE PROSECUTION HAS

SATISFIED THE TEST OF GUILT BEYOND REASONABLE DOUBT,
IRRESPECTIVE OF THE DEFENSE OF ALIBI OR DENIAL INTERPOSED BY
THE ACCUSED-APPELLANT WHICH IS INHERENTLY THE WEAKEST OF
ALL DEFENSES.

Accused-appellant asserts that the prosecutions witnesses failed to

properly identify the perpetrator of the crime because the locus criminis was
dark and the assailant ran away when Palacio focused the flashlight on
him. Furthermore, both Bernardo Palacio and Joselito Esmea were not
familiar with the assailants name.
The issue of whether or not appellant was in fact identified by the
prosecution eyewitnesses is anchored on the issue of credibility. It is well-
entrenched in this jurisdiction that factual findings of the trial court on the
credibility of witnesses and their testimonies are entitled to the highest respect
and will not be disturbed on appeal in the absence of any clear showing that
the trial court overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance that would have affected the result of
the case. Having seen and heard the witnesses themselves and observed
their behavior and manner of testifying, the trial court was in a better position
to decide the question of credibility. [10]

A thorough review of the records of the instant case shows that there is no
reason to deviate from the trial courts evaluation and assessment of the
credibility of witnesses. The trial court did not err in giving credence to the
testimony of the prosecutions witnesses that they were able to identify
accused-appellant as the perpetrator of the crime. We do not doubt the
identification of accused-appellant considering that the place was not so
dark, and Bernardo Palacio was able to focus the beam of his flashlight on
[11]

the face of accused-appellant. Moreover, his distance from accused-

[12]

appellant was less than a meter. Bernardo Palacios testimony is further

[13]

bolstered by Dr. Antonio Lopezs testimony to the effect that the victim
sustained one stab wound at the back. A detailed testimony acquires greater
weight and credibility when confirmed by autopsy findings. [14]

We are likewise not persuaded by accused-appellants claim that Bernardo

Palacio and Joselito Esmea did not know his real name at the time of the
alleged crime. The records reveal that although it was the police who supplied
the name of accused-appellant; it was done after Bernardo Palacio described
the facial features of the perpetrator. Thus, he stated on cross examination: [15]

Atty. Gojol:

xxxxxxxxx
q. And who told you his name?
a. The policeman.
Court:
q. Why did that policeman tell you his name?
a. Because I described the facial feature of the assailant to the police.
q. So it was the police who told you that it was Victor Hate?
a. Yes, sir.
q. When was that Victor Hate presented to you?
a. After two weeks, after he was arrested.
On re-direct examination, Bernardo Palacio clarified how he was able to
[16]

identify the accused-appellant, thus:

Atty. Gerona:

xxxxxxxxx
q. That person you saw during the arraignment who, according to you, was the same person
you saw at the police station, was he also the same person you saw who stabbed
Marcial Dio?
a. Yes, sir.
q. Even without a flashlight, could you recognize Victor Hate to be the one you saw when you
turned your back as the one who stabbed Marcial?
a. I really recognized him because it was not so dark.
q. How near were you to him when you stared at each other?
a. Less than a meter.
 q. What is the facial feature of Victor Hate, what do you remember most which you told the
police?
a. He is dark with curly hair and with thick eyebrows.
Accused-appellant failed to show that prosecution witnesses were
prompted by any ill-motive to falsely testify or wrongfully accuse him of so
grave a crime of murder. The Court adheres to the established rule that in the
absence of any evidence to show that the witness was actuated by any
improper motive, his identification of the assailant should be given full faith
and credit. [17]

Moreover, the witnesses need not know the names of the accused as long
as they recognize their faces. What is important is that the witnesses are
positive as to the perpetrators physical identification from the witnesses own
personal knowledge. [18]

As regards the inconsistencies between the testimony and the sworn

statement executed by Joselito Esmea before the police as to what happened
to Erwin Enano, suffice it to say that affidavits are generally not prepared by
the affiants themselves but by others, and affiants are only made to sign
them. Certain discrepancies between declarations made in the affidavit and
those made at the witness stand seldom discredit the declarant. To be sure, [19]

even without the testimony of Joselito Esmea, the testimony of Bernardo

Palacio is sufficient to convict the accused.
Accused-appellants defense of alibi fails to overthrow the straightforward
accounts of the credible prosecution eyewitnesses and his positive
identification as the perpetrator of the murder of Marcial Dio. We agree with
the trial court that the defense of alibi is inherently a weak defense and cannot
prevail over the positive testimony of the witnesses that the accused-appellant
committed the crime. [20]

The trial court correctly appreciated treachery as a qualifying circumstance

in the killing of the victim. The essence of treachery is the sudden and
unexpected attack by an aggressor on an unsuspecting victim, depriving the
latter of any real chance to defend himself, thereby ensuring its commission
without risk to the aggressor, without the slightest provocation on the part of
the victim. In the case at bar, accused-appellant stabbed the victim at the
[21]

back and at a place which was not so illuminated. There was no provocation
on the part of the victim as he just had finished hearing Mass and the incident
happened so fast. Clearly, the victim was in no position to defend himself and
to repel the attack of accused-appellant.
Hence, the trial court was correct in convicting accused-appellant of the
crime of Murder. Under Article 248 of the Revised Penal Code, the penalty for
Murder is reclusion perpetua to death. The lesser of the two indivisible
penalties shall be imposed considering that there are no other attendant
circumstances. [22]

The award of actual damages amounting to P15,000.00 was not duly

proven by the prosecution. In awarding said damages, the trial court merely
relied on the list of expenses presented by Remedios Dio. The list of
[23]

expenses cannot replace receipts when the latter should have been issued as
a matter of course in business transaction. Only substantiated and proven
expenses, or those that appear to have been genuinely incurred in connection
with the death, wake or burial of the victim will be recognized in court. Thus,
[24]

the award of actual damages must be deleted for lack of competent

proof. However, as the heirs of the victim incurred medical and funeral
[25]

expenses, we deem it proper to award P10,000.00 by way of nominal

damages so that a right which has been violated may be recognized or
vindicated. [26]

In People v. Ciron, the Court held that the unlawful killing of a person,
[27]

which may either be murder or homicide, entitles the heirs of the deceased to
moral damages without need of independent proof other than the fact of death
of the victim. Thus, an award of P50,000.00 is proper and reasonable under
current case law. [28]

Finally, an award of exemplary damages in the amount of P25,000.00 is in

order, in view of the attendance of the qualifying circumstance of
treachery. In People v. Catubig, we held that in criminal cases, exemplary
[29]

damages in the amount of P25,000.00 is recoverable if there is present an

aggravating circumstance, whether qualifying or ordinary, in the commission
of the crime. [30]

WHEREFORE, in view of all the foregoing, the Decision of the Regional

Trial Court of Sorsogon, Branch 52, in Criminal Case No. 98-4583, convicting
accused-appellant Victor Hate of the crime of Murder and sentencing him to
suffer the penalty of reclusion perpetua is AFFIRMED with MODIFICATION as
to damages. Accused-appellant is ordered to pay the heirs of the victim the
amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages,
P25,000.00 as exemplary damages, and P10,000.00 as nominal
damages. The award of actual damages in the amount of P15,000.00 is
DELETED for lack of sufficient basis. Cost de oficio.
SO ORDERED.

G.R. No. 102723-24 June 19, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDUARDO CABALLES and REYNALDO MABINI, accused, EDUARDO CABALLES, appellant.

PANGANIBAN, J.:

This Court is appalled at the unabated commission of heinous crimes in our country. Particularly
disheartening is the high incidence of rape perpetrated day by day in urban and rural areas alike.

In this ponencia, the Court finds occasion to clarify existing jurisprudence on the grant of damages in
the crime of rape, which is likewise applicable to the crimes of murder, homicide and parricide. Civil
indemnity in the amount of P50,000.00 (consistent with prevailing jurisprudence) is automatically
granted to the offended party, or his/her heirs in case of the former's death, without need of further
evidence other than the fact of the commission of any of the aforementioned crimes. Moral and
exemplary damages may be separately granted in addition to indemnity. Moral damages can be
awarded only upon sufficient proof that the complainant is entitled thereto in accordance with Article
2217 of the Civil Code, while exemplary damages can be imposed if the crime was committed with
one or more aggravating circumstances duly proven. The amounts thereof shall be at the discretion
of the courts.

In the case before us, Appellant Eduardo Caballes is charged with two (2) counts of rape allegedly
committed in concert with Co-accused Reynaldo Mabini against Miguela Baculi in the evening of
September 26, 1987. The two Amended Complaints, both dated October 26, 1987, sworn to by the
victim and certified by 4th Asst. Fiscal Rodulfo G. Ugsad, indicted the accused as follows:

That on or about the 26th day of September, 1987, at about 8:00 P.M., in the City of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, conniving and confederating together and mutually helping each other, took
turns in having sexual intercourse with the complainant by the use of force and
intimidation, that is, while accused Eduardo Caballes was having sexual intercourse
with the complainant, accused Reynaldo Mabini who at that time was pointing a knife
at the complainant pulled Eduardo on top of the complainant, did then and there
wilfully, unlawfully and feloniously have carnal knowledge of the complainant against
her will. 1

And,

That on or about the 26th day of September, 1987, at about 8:00 P.M., in the City of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, conniving and confederating together and mutually helping each other, to
wit: while the two accused hold (sic) her body by the use of force, violence and
intimidation, accused Reynaldo Mabini hold (sic) her hands and pointing a knife at
her, pressing her to the ground, accused Eduardo Caballes did then and there
wilfully, unlawfully and feloniously have carnal knowledge of the complainant against
her will, and inflicting upon her the following physical injuries:

CONTUSSION (sic) 1 x 1 CM (R) INFRAORBITAL; CONTUSSION

(sic) 1 x l CM (R) ARM P/3 ANTERIOR; LINEAR ERUTHEMA (sic) 1
CM CLAVICULAR (L) MEDIAL 3rd-LINEAR ERYTEMA (sic) (L) CM
 (R) SUBMANDIBULAR, LINEAR ABRASION 0.5 CM (L) UPPER LIP
MUCOSA. 2

The accused, with the assistance of their counsel de parte, 3 both entered a plea of not guilty during
their arraignment on January 13, 1988. 4 Trial ensued in due course in the consolidated
cases. 5 Thereafter, on July 16, 1991, Judge Priscila S. Agana of the Regional Trial Court of Cebu,
Branch 24, rendered judgment 6 convicting both accused of two counts of rape. The dispositive
portion of the assailed Decision is quoted hereinbelow:

THEREFORE, IN VIEW OF ALL THE FOREGOING PREMISES, accused Eduardo

Caballes is hereby sentenced twice to suffer the penalty of RECLUSION
PERPETUA. With respect to accused Reynaldo Mabini, he is hereby sentenced
twice to suffer an imprisonment ranging from twelve (12) years ofprision mayor as
minimum to eighteen (18) years of reclusion temporal as maximum, after
appreciating minority in his favor. Moral and exemplary damages to be paid jointly
and severally by the accused, in the sums of FIFTY THOUSAND PESOS
(P50,000.00) and FIFTY THOUSAND PESOS (P50,000.00) respectively, are hereby
awarded to the private complainant Miguela Baculi. 7

The Facts

Version of the Prosecution

The prosecution relied heavily on the testimony of the private complainant, Miguela Baculi, twenty-
five (25) years of age and married. According to Miguela, on Septembers 8 26, 1987, while on her
way home from work about 7:30 p.m., she was accosted by Accused Eduardo Caballes and
Reynaldo Mabini. She recognized both because they had been her neighbors at Sambag 4,
Guadalupe, Cebu City for the past eight years. Upon confronting her, Mabini covered her mouth and
pointed a knife at her while Caballes held her hands. They led her to a secluded area where they
initially molested her. She was able to wriggle herself free and run for a short distance but her
abductors caught up with her. She was slapped, punched and strangled before she was brought to
another secluded and dark area farther away. While Mabini held her hands and pointed a knife at
her, Caballes raised her skirt and removed her underwear. She was forced to lie down. Caballes
next took off his own trousers and underwear, mounted Miguela and inserted his erect penis into her
vagina. After satisfying his lust, Caballes exchanged positions with Mabini who likewise violated her
chastity against her will. Thereafter, Miguela was escorted towards her home by the accused. Mabini
threatened to kill her if she reported the incident to the police. After parting from her attackers, the
rape victim went home but, not finding her husband, proceeded to the house of his relatives, the
spouses Bernardo and Juanita Jumaoas, to whom she related her shameful experience. It was the
spouses Jumaoas who reported the rape to the police which led to the arrest of the accused that
same evening. 9

Miguela was thereafter examined at the Cebu City Medical Center. The medical doctor who
examined her genitalia found her cervix "hyperemic, with edema of the anterior lip" which might have
been caused by trauma or forced contact resulting in the rupture of the capillaries, hyperemia and
edema. Sperm analysis yielded negative result, but the doctor explained that there might have been
no ejaculation or it might have happened outside the vagina. 10 The victim was further observed to
have suffered contusions below her right eye and on her right arm just below the shoulder, possibly
caused by a blunt object applied with force or a fistic blow, and linear erythema (redness) on the
clavicle (collarbone), possibly caused by force applied to induce choking. 11

Version of the Defense

In their respective testimonies, both accused admitted having had sexual intercourse with Miguela
successively in the same evening of September 26, 1987. But they gave contradicting versions.
According to Accused Eduardo Caballes, he and Co-accused Reynaldo Mabini attended a dance-
affair in the neighboring barrio that evening. They had consumed about nine or ten bottles of Red
Horse beer when they saw Miguela Baculi a few meters away. Reynaldo approached her. From
where he was sitting, Eduardo saw his co-accused pulling the arm of Miguela who in turn appeared
to be resisting. He approached both and asked what the commotion was about. Miguela expressed
her surprise why Reynaldo was pulling her; the latter said that he wanted to tell her something.
Eduardo convinced Miguela to walk along with them so they could talk. Miguela allegedly went
voluntarily with them. After a distance of about twenty (20) meters, Eduardo told Miguela that he
liked her and asked if he could touch her. Miguela replied that she already had a husband. Eduardo
assured her that nobody would know. She did not resist when he kissed and embraced her. He then
went to gather some banana leaves which they used as a mat. Then they undressed themselves
and had sex, while Reynaldo waited about five (5) meters away. Thereafter, at the suggestion of
Eduardo, Miguela allegedly agreed to have sex with Reynaldo also. Both accused later walked
Miguela to the corner of the road leading to her house. Before parting ways, she allegedly even
agreed to meet with them again if nobody would learn about their tryst. Eduardo further testified that
he did not know why Miguela filed rape charges against them. 12

The testimony in court of the other accused, Reynaldo Mabini, was delayed for sometime because
he was observed to be suffering from mental disorder. The Psychiatric Evaluation Report of Dr.
Renato D. Obra of the Southern Islands Medical Center, Cebu City, however, indicated that he was
capable of facing trial. 13 Mabini scantly declared that in the evening of September 26, 1987, he drank
beer and Añejo rum with Eduardo Caballes. At around 8:00 p.m., they saw Miguela pass by. The
accused admitted that he made a "quick intimidation" of Miguela with the use of a knife, and thus
succeeded in having sexual intercourse with her against her will. 14

The Trial Court's Decision

In weighing the credibility of the witnesses, the court a quo declared:

. . . the Court is inclined to believe the testimony of the victim Miguela Baculi to be
credible and convincing. No Filipino woman would herself (sic) and be exposed to
public ridicule by concocting and inventing a story that she was raped. It would be a
great shame on her part if what she has told the court is not true. And it must be
noted that in this case Miguela Baculi was crying when she narrated in court her sad
story. She told the court how she was accosted by the two accused, Mabini pointing
a knife at her and gagging her mouth with his hands and Caballes holding her hands.
And then the accused dragged her to a secluded place but on the way she was able
to free herself. Unfortunately though, she was caught by the accused only a few
faces (sic) and through force and intimidation she was brought to a secluded place
where she was raped one at a time by the two accused. 15

With respect to the defense witnesses, the trial court characterized their testimonies this wise:

. . . the testimony of accused Caballes cannot be given any importance at all for it
runs counter to the normal course of human nature. For the court cannot believe him
when he testified that Miguela Baculi consented to his having sexual intercourse with
her. Considering that Miguela is a decent, virtuous and a happily married woman, it
would be hard to imagine, nay impossible for her to give her consent to have sexual
intercourse with a man who conveyed to her his love for the first time and who was
drunk at the time. Moreso (sic), to have carnal knowledge with men one after another
 voluntarily in the presence of each other accused (sic). The court is inclined to
believe that accused Caballes did not tell the truth.

And to top it all, the other accused Reynaldo Mabini admitted that he raped Miguela
Baculi. Although a medical certificate (Exhibit 2-Mabini) was presented and
submitted in court regarding the mental capacity of the accused to stand trial,
nevertheless the attneding (sic) physicial (sic) recommended that accused is (sic)
ready to stand trial. 16

The court a quo further ruled that both accused had conspired in the commission of the offense,
observing that "the two accused planned to commit the crime of rape before complainant showed up
and they both executed the heinous act exactly as planned." It thus held that two counts of rape
were committed by each of the accused.

In addition, the trial court held that the crime was "aggravated by the fact that both accused are
relatives of the victim's husband . . . , the commission was planned and premiditated (sic) after the
accused finished drinking liquor, with abuse of superior strength and use of a knife, in an uninhabited
place and during nighttime." 17

From the above decision, only Eduardo Caballes appealed. 18

Issues

In his appeal brief, 19 Appellant Caballes attributes the following alleged errors upon the trial court:

The trial court erred in finding the accused-appellant guilty beyond reasonable doubt
of the crime of rape.

II

The trial court erred in finding that the accused had pre-planned the alleged act of
rape before the complainant showed up and they both executed the heinous act
exactly as planned.

III

The trial court erred in finding that the crime of rape was more aggravated by the fact
that both accused are relatives of the victim's husband and their neighbor.

IV

The trial court erred in awarding moral and exemplary damages to be paid jointly and
severally by the accused in the sum of FIFTY THOUSAND PESOS (P50,000.00)
AND FIFTY THOUSAND (P50,000.00) respectively. 20

In questioning the sufficiency of the prosecution evidence, Accused- appellant Caballes points to the
absence of laceration and sperm in the victim's vagina, negating forced penetration. Neither could he
and his co-accused have preplanned their advances on Miguela considering that they only chanced
upon her and were under the influence of liquor. With the above circumstances, appellant avers that
at most he could be held guilty only of attempted rape with physical injuries. Furthermore, appellant
contends that for relationship to be appreciated as aggravating, it is the victim who should be related
by consanguinity to the perpetrator of the act. Finally, citing this Court's 1990 decision in People
vs. Timbang, 21 indemnity due the rape victim should not exceed P20,000.00. 22

The Solicitor General, on the other hand, asserts that the private complainant's testimony alleging
she was raped is sufficient to convict appellant and his co-accused of the offense charged. A
married woman will not publicly admit that she had been sexually abused by two men unless that is
the truth. Moreover, the contusions on different parts of the complainant's body support her
allegation that force was applied on her by her offenders to make her submit to their abject sexual
desires. Besides, the absence of spermatozoa in the complainant's sexual organ does not negate
the commission of rape since it is penetration, however slight, that consummates rape. 23 In addition,
the Solicitor General opines that there was conspiracy between the two accused since, while one
was ravishing the victim, the other was holding her hands and vice versa, thereby facilitating the
commission of rape. 24

The Court's Ruling

The appeal has no merit.

First Issue: Sufficiency of Prosecution Evidence

The law provides that carnal knowledge of a woman under any of the following instances constitutes
rape: (1) when force or intimidation is used; (2) when the woman is deprived of reason or otherwise
unconscious; and (3) when she is under twelve (12) years of age. 25

It is important to note that both accused admitted having had sexual congress with the private
complainant. Appellant claims though that said complainant copulated with him voluntarily. However,
the medical findings on the victim, which included contusions on various parts of her body, belie
appellant's claim. Rather, they support Miguela's declarations that she was manhandled by the
accused before and during her molestation.

It is well-settled that the absence of spermatozoa in the victim's vagina does not necessarily negate
the commission of rape. 26 Neither is the existence of laceration indispensable. What is essential is
that there be penetration of the sexual organ no matter how slight. 27 In the instant case, the victim
gave a spontaneous, positive and unclouded picture of how appellant, with the help of his co-
accused, disgustingly consummated the rape:

Q Now, considering that after you were molested the accused forced
(you) to stand up and brought you to a far secluded place, what
happened next when you arrived (at) that place?

A Mabini grabbed my hands and pointed a knife at me while Caballes

raised my skirt and took off my pantie (sic).

Q Considering that you were being held by the accused Mabini and
(he was) pointing a knife at you while this accused Caballes was
removing your pantie (sic), what happened next?

A They forced me to lie down on the ground.

 Q Now, after you were forced to lie down on the ground, what
happened next?

A Mabini lay at my side and pointed a knife at my neck while he was

grabbing my hands and Caballes took off his trouser and his brief and
expose(d) his organ.

Q After Caballes exposed his organ, what did he do with that?

xxx xxx xxx

A He penetrated me with his organ forcefully without my consent. 28

Q Now, what was accused Caballes doing while he was inserting his
sex organ to your sex organ?

A He made a (sic) push and pull movements. 29

On the basis of the above testimony, there was penetration of the victim's sexual organ. Forced
coitus is further corroborated by the findings of the physician who examined Miguela on the very
evening after the sexual abuse was consummated. In his examination of the victim's genitalia, Dr.
Gilberto Magallon of the Cebu City Medical Center said that the cervix was "hyperemic with edema
of the anterior lip." 30 He added that such condition of the cervical layer was not normal for a woman,
and explained that the probable cause thereof was trauma resulting from forced contact applied on
the affected part. 31 Gathering from the testimony of the victim, the forceful "push and pull
movements" of appellant could well have been the cause of hyperemia in her sexual organ. Clearly
then, appellant committed the felony under the first circumstance, i.e., with the use of force and
intimidation.

Indeed, no young woman of decent repute would publicly expose herself to the shame and
embarrassment of admitting having been sexually abused by two men successively within each
other's full view if such were not the truth. 32 No ulterior motive was offered by the appellant to explain
why Miguela would falsely charge him with the serious offense. Neither did appellant attempt to
explain the disparity between his testimony and that of his co-accused, a disparity which supported
the victim's contentions. The only logical conclusion is that no other reason impelled the complaining
witness to come to court than to seek justice for the dastardly crime committed against her
virtue. 33 Even her sole testimony which is credible suffices to make a conviction, 34 for when a
woman says that she has been raped, she almost always says it all. 35

Finally, it is doctrinal that the evaluation by the trial court of the testimony of a witness is generally
accorded great respect because of its direct opportunity to observe the witness' demeanor on the
stand and to determine whether she is telling the truth. Such assessment is generally binding on this
Court except when the same was reached arbitrarily or when the trial court overlooked,
misunderstood or misapplied some facts or circumstances of weight and substance which could
have affected the disposition of the case. 36 None of these exceptions is found in the instant case.

Second Issue: Attendance of Aggravating Circumstances

No Evident Premeditation
We find merit in the contention of accused-appellant that the trial court wrongly concluded that the
sexual assault was planned and premeditated. For evident premeditation to be appreciated, it is
necessary that the prosecution prove the following elements: (1) the time when the accused decided
to commit the crime; (2) an overt act showing that the accused clung to their determination to commit
the crime; and (3) the lapse of a period of time between the decision and the execution of the crime
sufficient to allow the accused to reflect upon the consequences of the act. 37 The prosecution,
however, failed to establish with clear and convincing evidence the attendance of any of these
elements which cannot be inferred merely from conjectures and suppositions.

Degree of Relationship Between

the Parties Not Aggravating

In order that the alternative circumstance of relationship may be taken into consideration in the
imposition of the proper penalty, the offended party must either be the (a) spouse, (b) ascendant, (c)
descendant, (d) legitimate, natural or adopted brother or sister, or (e) relative by affinity in the same
degree, of the offender. 38 The complaining witness simply stated that accused-appellant was related
to her husband through their grandparents. 39 And although appellant admitted being related with the
private complainant's husband, he said that he was a third-degree cousin of the former's
grandmother. 40 Neither the prosecution nor defense counsel attempted to clarify the witnesses'
statements. We cannot positively conclude from such bare declarations that appellant is an
ascendant or descendant by affinity of the complainant. It seems rather doubtful that the relationship
between the offended party and the offender falls within the statutorily defined concept of
relationship determinative of the penalty to be imposed. Since the degree of relationship was not
clearly established to be one of those provided for by law, we cannot use such circumstance against
the accused.

Abuse of Superior Strength, Nighttime,

and Uninhabited Place

The trial court further said that the crime was also aggravated by "abuse of superior strength and
use of a knife, in an uninhabited place and during nighttime." 41 Scouring the evidence on record, we
do not find any evidence by the prosecution to support the unexplained conclusion of the trial court.

The prosecution merely showed that the crime was committed at nighttime and in an uninhabited
place. These circumstances, by themselves, do not aggravate the offense. Nighttime 42 and
uninhabited place, 43 to be appreciated, must have been purposely sought and taken advantage of in
order to facilitate the commission of the offense. There is nothing in the records, however, to show
that appellants had deliberately chosen or used these circumstances to their advantage.

Furthermore, the trial court erred in appreciating the aggravating circumstance of abuse of superior
strength. Although the trial court did not elaborate on the basis of its conclusion, it relied apparently
on the finding that the crime was committed by two persons who also used a knife to terrorize the
victim into submission. We cannot sustain this view. The use of a knife or the commission of the
crime by two persons cannot be considered as generic aggravating circumstances in rape, for they
are included as an integral part of the crime. Article 335 of the Revised Penal Code provides that
"[w]henever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death." (Emphasis supplied.)

Third Issue: Damages

The trial court ordered the two accused separately to pay P50,000.00 as moral and exemplary
damages to the victim. In effect, the trial court imposed the amount of P25,000.00 as exemplary
damages and another P25,000.00 as moral damages for each count of rape.

The trial court correctly awarded moral damages to the victim, pursuant to Articles 2217 and 2219 of
the Civil Code. Miguela testified in court that as a consequence of the vicious and detestable act
perpetrated upon her by the accused, she suffered from depression, shock and sleepless
nights. 44 The award of exemplary damages is not justified, however, in view of the failure of the
prosecution to prove one or more aggravating circumstances. 45

In view of the above discussion, the amount of moral damages should be increased to P50,000.00
for each count of rape, but the award of exemplary damages should be deleted.

The trial court further erred in not granting civil indemnity to the private complainant which, as we
explained at the outset, is automatically imposed upon the accused without need of proof other than
the fact of the commission of the offense. Indemnity of P50,000.00 should, therefore, be reckoned
for each count of rape committed by the accused.

In the exercise of our discretion, and since an appeal in a criminal case throws the whole case open
for review, it is proper for this Court to impose additional damages upon appellant. Appellant is
therefore liable for the increased amount of P50,000.00 as moral damages for each count of rape.
He is additionally liable to Miguela Baculi in the amount of P100,000.00 as indemnity for the two
counts of rape committed against her.

The same cannot apply, however, in the case of Reynaldo Mabini who did not appeal his conviction.
Additional penalties cannot prejudice him, but modifications to the judgment beneficial to him are
considered in his favor. 46Because of the deletion of the award of exemplary damages, he is only
liable, jointly and severally with Appellant Caballes, for the sum of P50,000.00 as moral damages for
the two counts of rape as adjudged by the trial court. Moreover, he is not affected by the increase in
the amount of the said award. In the same vein that the additional moral damages can no longer be
imposed upon Reynaldo Mabini, so we cannot order him to pay civil indemnity.

Article 335 of the Revised Penal Code provides that whenever the crime of rape is committed by two
or more persons, the penalty shall be reclusion perpetua to death. Considering that appellant is
answerable for two counts of rape, we find no error in the imposition by the trial court of the double
penalty of reclusion perpetua upon him. 47

WHEREFORE, all premises considered, the assailed Decision of the trial court convicting Appellant
Eduardo Caballes of the crime of rape on two counts and sentencing him to reclusion perpetua for
each count is hereby AFFIRMED subject to the modification that, in addition to his joint and several
liability with Accused Eduardo Mabini for P50,000.00 as moral damages imposed by the trial court,
appellant shall further pay the following amounts to Miguela Baculi:

1. Additional amount of P25,000.00 as moral damages for each count of rape, or a total of
P50,000.00; and

2. Civil indemnity in the amount of P50,000.00 for each count of rape or a total of P100,000.00.

SO ORDERED.

THIRD DIVISION
QUEZON CITY GOVERNMENT G.R. No. 150304
and Engineer RAMIR J. TIAMZON,
Petitioners, Present:
Panganiban, J.,
Chairman,
Sandoval-Gutierrez,
- versus - Corona,
Carpio Morales, and
Garcia, JJ
Promulgated:
FULGENCIO DACARA,
Respondent. June 15, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

DECISION

PANGANIBAN, J.:

T
he review of cases under Rule 45 of the Rules of Court is limited
to errors of law. Unless there is a showing that the findings of the
lower court are totally devoid of support or are glaringly
erroneous, this Court will not analyze or weigh evidence all over
again. Under the circumstance, the factual findings and
conclusions of the Court of Appeals affirming those of the trial courts will
be conclusive upon the Supreme Court. Furthermore, well-entrenched is
the rule that points of law, theories, issues and arguments not brought to
the attention of the trial court cannot be raised for the first time on appeal
or certiorari. Finally, this Court reiterates the principle that moral damages
are designed to compensate the claimant for actual injury suffered, not to
impose a penalty on the wrongdoer. Hence, absent any definite finding as
to what they consist of, the alleged moral damages suffered would become
a penalty rather than a compensation for actual injury suffered.

The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of

Court, assailing the February 21, 2001 Decision [2] and the October 9, 2001
Resolution[3] of the Court of Appeals (CA) in CA-GR CV No. 29392. The
challenged Decision disposed as follows:

WHEREFORE, premises considered, the Decision dated June

29, 1990 in Civil Case No. Q-88-233 should be AFFIRMED, with
costs against the appellants.[4]

The assailed Resolution denied petitioners Motion for

Reconsideration.

The Facts

The CA summarized the facts in this manner:

Sometime on February 28, 1988 at about 1:00 A.M., Fulgencio

Dacara, Jr., son of Fulgencio P. Dacara, Sr. and owner of 87 Toyota
Corolla 4-door Sedan with Plate No. 877 (sic), while driving the said
vehicle, rammed into a pile of earth/street diggings found at
 Matahimik St., Quezon City, which was then being repaired by the
Quezon City government. As a result, Dacarra (sic), Jr. allegedly
sustained bodily injuries and the vehicle suffered extensive damage
for it turned turtle when it hit the pile of earth.

Indemnification was sought from the city government (Record, p.

22), which however, yielded negative results. Consequently,
Fulgencio P. Dacara (hereinafter referred to as FULGENCIO), for
and in behalf of his minor son, Jr., filed a Complaint (Record, p. 1)
for damages against the Quezon City and Engr. Ramir Tiamzon, as
defendants, before the Regional Trial Court, National Capital Judicial
Region, Branch 101, Quezon City, docketed as Civil Case No. Q-88-
233. FULGENCIO prayed that the amount of not less
than P20,000.00 actual or compensatory damages, P150,000.00
moral damages, P30,000.00 exemplary damages, and P20,000.00
attorneys fees and costs of the suit be awarded to him.

In an Answer with Affirmative and/or Special Defenses (Record, p.

11), defendants admitted the occurrence of the incident but alleged
that the subject diggings was provided with a moun[d] of soil and
barricaded with reflectorized traffic paint with sticks placed before or
after it which was visible during the incident on February 28, 1988 at
1:00 A.M. In short, defendants claimed that they exercised due care
by providing the area of the diggings all necessary measures to
avoid accident. Hence, the reason why Fulgencio Dacara, Jr. fell into
the diggings was precisely because of the latters negligence and
failure to exercise due care.[5]

After trial on the merits, the Regional Trial Court (RTC), Branch 101,
Quezon City, rendered its Decision[6] dated June 29, 1990. The evidence
proffered by the complainant (herein respondent) was found to be
sufficient proof of the negligence of herein petitioners. Under Article 2189
of the Civil Code,[7] the latter were held liable as follows:
 WHEREFORE, premises above considered, based on the
quantum of evidence presented by the plaintiff which tilts in their
favor elucidating the negligent acts of the city government together
with its employees when considered in the light of Article 2189,
judgment is hereby rendered ordering the defendants to indemnify
the plaintiff the sum of twenty thousand pesos as
actual/compensatory damages, P10,000.00 as moral
damages, P5,000.00 as exemplary damages, P10,000.00 as
attorneys fees and other costs of suit.[8]

In their appeal to the CA, petitioners maintained that they had observed
due diligence and care in installing preventive warning devices, and that it
was in fact the plaintiff who had failed to exercise prudence by driving too
fast to avoid the diggings. Moreover, the lower court allegedly erred in
using Article 2189 of the Civil Code, which supposedly applied only to
liability for the death or injuries suffered by a person, not for damage to
property.

Ruling of the Court of Appeals

The CA agreed with the RTCs finding that petitioners negligence was

the proximate cause of the damage suffered by respondent.[9] Noting the

failure of petitioners to present evidence to support their contention that

precautionary measures had indeed been observed, it ruled thus:

 x x x. Sadly, the evidence indicates that [petitioners] failed to show
that they placed sufficient and adequate precautionary signs at
Matahimik Street to minimize or prevent the dangers to life and limb
under the circumstances. Contrary to the testimony of the witnesses
for the [petitioners], namely Engr. Ramir Tiamzon, Ernesto Landrito
and Eduardo Castillo, that there were signs, gasera which was
buried so that its light could not be blown off by the wind and
barricade, none was ever presented to stress and prove the
sufficiency and adequacy of said contention.[10]
Further upholding the trial courts finding of negligence on the part of
herein petitioners, the CA gave this opinion:
x x x. As observed by the trial court, the negligence of
[petitioners] was clear based on the investigation report of Pfc.
William P. Villafranca stating to the effect that the subject vehicle
rammed into a pile of earth from a deep excavation thereat without
any warning devi[c]e whatsoever and as a consequence thereof,
Dacara, Jr. lost control of his driven car and finally turned-turtle
causing substantial damage to the same. As a defense against
liability on the basis of quasi-delict, one must have exercised the
diligence of a good father of a family which [petitioners] failed to
establish in the instant case.[11]

Whether Article 2189 is applicable to cases in which there has been

no death or physical injury, the CA ruled in the affirmative:
x x x. More importantly, we find it illogical to limit the liability to
death or personal injury only as argued by appellants in the case at
bar applying the foregoing provisions. For, injury is an act that
damages, harms or hurts and mean in common as the act or result
of inflicting on a person or thing something that causes loss, pain,
distress, or impairment. Injury is the most comprehensive, applying
to an act or result involving an impairment or destruction of right,
health, freedom, soundness, or loss of something of value.[12]
 Hence, this Petition.[13]

Issues

Petitioners raise the following issues for our consideration:

1. The Honorable Court of Appeals decided a question of

law/substance contrary to applicable law and jurisprudence when it
affirmed the award of moral damage suit (sic) the amount
of P10,000.00.

2. The Honorable Court of Appeals decided a question of

law/substance contrary to applicable law and jurisprudence when it
affirmed the award of exemplary damage sin (sic) the amount
of P5,000.00 and attorneys fee in the [a]mount of P10,000.00.

3. The Honorable Court of Appeals gravely erred and/;or (sic) had

acted with grave abuse of discretion amounting to lack and/or
excess of jurisdiction when it refused to hold that respondents son in
the person of Fulgencio Dacara, Jr. was negligent at the time of
incident.[14]

Because the issues regarding the liability of petitioners for moral and

exemplary damages presuppose that their negligence caused the vehicular

accident, we first resolve the question of negligence or the proximate cause

of the incident.
 The Courts Ruling

The Petition is partly meritorious.

First Issue:
Negligence

Maintaining that they were not negligent, petitioners insist that they

placed all the necessary precautionary signs to alert the public of a roadside

construction. They argue that the driver (Fulgencio Dacara Jr.) of

respondents car was overspeeding, and that his own negligence was

therefore the sole cause of the incident.

Proximate cause is defined as any cause that produces injury in a

natural and continuous sequence, unbroken by any efficient intervening

cause, such that the result would not have occurred otherwise.[15] Proximate

cause is determined from the facts of each case, upon a combined

consideration of logic, common sense, policy and precedent.[16]

What really caused the subject vehicle to turn turtle is a factual issue that

this Court cannot pass upon, absent any whimsical or capricious exercise of

judgment by the lower courts or an ample showing that they lacked any

basis for their conclusions.[17] The unanimity of the CA and the trial court

in their factual ascertainment that petitioners negligence was the proximate

cause of the accident bars us from supplanting their findings and

substituting these with our own. The function of this Court is limited to

the review of the appellate courts alleged errors of law. It is not required to

weigh all over again the factual evidence already considered in the

proceedings below.[18]Petitioners have not shown that they are entitled to

an exception to this rule.[19] They have not sufficiently demonstrated any

special circumstances to justify a factual review.

That the negligence of petitioners was the proximate cause of the accident

was aptly discussed in the lower courts finding, which we quote:

Facts obtaining in this case are crystal clear that the accident of
February 28, 1988 which caused almost the life and limb of
Fulgencio Dacara, Jr. when his car turned turtle was the existence of
a pile of earth from a digging done relative to the base failure at
Matahimik Street nary a lighting device or a reflectorized barricade
or sign perhaps which could have served as an adequate warning to
motorist especially during the thick of the night where darkness is
pervasive.

Contrary to the testimony of the witnesses for the defense that there
were signs, gasera which was buried so that its light could not be
 blown off by the wind and barricade, none was ever presented to
stress the point that sufficient and adequate precautionary signs
were placed at Matahimik Street. If indeed signs were placed
thereat, how then could it be explained that according to the report
even of the policeman which for clarity is quoted again, none was
found at the scene of the accident.

xxxxxxxxx

Negligence of a person whether natural or juridical over a particular

set of events is transfixed by the attending circumstances so that the
greater the danger known or reasonably anticipated, the greater is
the degree of care required to be observed.

xxxxxxxxx

The provisions of Article 2189 of the New Civil Code

capsulizes the responsibility of the city government relative to the
maintenance of roads and bridges since it exercises the control and
supervision over the same. Failure of the defendant to comply with
the statutory provision found in the subject-article is tantamount to
negligence per se which renders the City government liable. Harsh
application of the law ensues as a result thereof but the state
assumed the responsibility for the maintenance and repair of the
roads and bridges and neither exception nor exculpation from
liability would deem just and equitable.[20] (Emphasis supplied)

Petitioners belatedly point out that Fulgencio Jr. was driving at the
speed of 60 kilometers per hour (kph) when he met the accident. This
speed was allegedly well above the maximum limit of 30 kph allowed on
city streets with light traffic, when not designated through streets, as
provided under the Land Transportation and Traffic Code (Republic Act
4136). Thus, petitioners assert that Fulgencio Jr., having violated a traffic
regulation, should be presumed negligent pursuant to Article 2185[21] of the
Civil Code.[22]

These matters were, however, not raised by petitioners at any time

during the trial. It is evident from the records that they brought up for the
first time the matter of violation of RA 4136 in their Motion for
Reconsideration[23] of the CA Decision dated February 21, 2001. It is too
late in the day for them to raise this new issue. It is well-settled that points
of law, theories or arguments not brought out in the original proceedings
cannot be considered on review or appeal.[24] To consider their belatedly
raised arguments at this stage of the proceedings would trample on the
basic principles of fair play, justice, and due process.[25]

Indeed, both the trial and the appellate courts findings, which are
amply substantiated by the evidence on record, clearly point to petitioners
negligence as the proximate cause of the damages suffered by respondents
car. No adequate reason has been given to overturn this factual conclusion.

Second Issue:
Moral Damages

Petitioners argue that moral damages are recoverable only in the instances
specified in Article 2219[26] of the Civil Code. Although the instant case is
an action for quasi-delict, petitioners contend that moral damages are not
recoverable, because no evidence of physical injury were presented before
the trial court.[27]

To award moral damages, a court must be satisfied with proof of the

following requisites: (1) an injury -- whether physical, mental, or
psychological -- clearly sustained by the claimant; (2) a culpable act or
omission factually established; (3) a wrongful act or omission of the
defendant as the proximate cause of the injury sustained by the claimant;
and (4) the award of damages predicated on any of the cases stated in
Article 2219.[28]

Article 2219(2) specifically allows moral damages to be recovered for

quasi-delicts, provided that the act or omission caused physical injuries.
There can be no recovery of moral damages unless the quasi-delict resulted
in physical injury.[29] This rule was enunciated in Malonzo v. Galang[30] as
follows:
x x x. Besides, Article 2219 specifically mentions quasi-delicts
causing physical injuries, as an instance when moral damages may
be allowed, thereby implying that all other quasi-delicts not resulting
in physical injuries are excluded, excepting of course, the special
torts referred to in Art. 309 (par. 9, Art. 2219) and in Arts. 21, 26, 27,
28, 29, 30, 32, 34 and 35 on the chapter on human relations (par.
10, Art. 2219).

In the present case, the Complaint alleged that respondents son Fulgencio

Jr. sustained physical injuries. The son testified that he suffered a deep cut
on his left arm when the car overturned after hitting a pile of earth that had

been left in the open without any warning device whatsoever.

It is apparent from the Decisions of the trial and the appellate courts,

however, that no other evidence (such as a medical certificate or proof of

medical expenses) was presented to prove Fulgencio Jr.s bare assertion of

physical injury. Thus, there was no credible proof that would justify an

award of moral damages based on Article 2219(2) of the Civil Code.

Moreover, the Decisions are conspicuously silent with respect to the

claim of respondent that his moral sufferings were due to the negligence of

petitioners. The Decision of the trial court, which summarizes the

testimony of respondents four witnesses, makes no mention of any

statement regarding moral suffering, such as mental anguish, besmirched

reputation, wounded feelings, social humiliation and the like.

Moral damages are not punitive in nature, but are designed to compensate
and alleviate in some way the physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury unjustly inflicted on a
person.[31] Intended for the restoration of the psychological or
emotional status quo ante, the award of moral damages is designed to
compensate emotional injury suffered, not to impose a penalty on the
wrongdoer.

For the court to arrive upon a judicious approximation of emotional

or moral injury, competent and substantial proof of the
suffering experienced must be laid before it. Essential to this
approximation are definite findings as to what the supposed moral damages
suffered consisted of; otherwise, such damages would become a penalty
rather than a compensation for actual injury suffered.[32]

Furthermore, well-settled is the rule that moral damages cannot be awarded

-- whether in a civil[33] or a criminal case[34] -- in the absence of proof of
physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, or similar
injury.[35] The award of moral damages must be solidly anchored on a
definite showing that respondent actually experienced emotional and mental
sufferings. Mere allegations do not suffice; they must be substantiated by
clear and convincing proof.[36]

Third Issue:
Exemplary Damages

Petitioners argue that exemplary damages and attorneys fees are not
recoverable. Allegedly, the RTC and the CA did not find that petitioners
were guilty of gross negligence in the performance of their duty and
responsibilities.[37]
 Exemplary damages cannot be recovered as a matter of
right.[38] While granting them is subject to the discretion of the court, they
can be awarded only after claimants have shown their entitlement to moral,
temperate or compensatory damages.[39] In the case before us, respondent
sufficiently proved before the courts a quo that petitioners negligence was
the proximate cause of the incident, thereby establishing his right to actual
or compensatory damages. He has adduced adequate proof to justify his
claim for the damages caused his car. The question that remains, therefore,
is whether exemplary damages may be awarded in addition to compensatory
damages.

Article 2231 of the Civil Code mandates that in cases of quasi-delicts,

exemplary damages may be recovered if the defendant acted with gross
negligence.[40] Gross negligence means such utter want of care as to raise a
presumption that the persons at fault must have been conscious of the
probable consequences of their carelessness, and that they must have
nevertheless been indifferent (or worse) to the danger of injury to the
person or property of others.[41] The negligence must amount to a reckless
disregard for the safety of persons or property. Such a circumstance
obtains in the instant case.

A finding of gross negligence can be discerned from the Decisions of

both the CA and the trial court. We quote from the RTC Decision:
Sad to state that the City Government through its
instrumentalities have (sic) failed to show the modicum of
 responsibility, much less, care expected of them (sic) by the
constituents of this City. It is even more deplorable that it was a case
of a street digging in a side street which caused the accident in the
so-called premier city.[42]

The CA reiterated the finding of the trial court that petitioners

negligence was clear, considering that there was no warning
device whatsoever[43] at the excavation site.

The facts of the case show a complete disregard by petitioners of any

adverse consequence of their failure to install even a single warning device

at the area under renovation. Considering further that the street was dimly

lit,[44] the need for adequate precautionary measures was even greater. By

carrying on the road diggings without any warning or barricade, petitioners

demonstrated a wanton disregard for public safety. Indeed, the February

28, 1988 incident was bound to happen due to their gross negligence. It is
clear that under the circumstances, there is sufficient factual basis for a

finding of gross negligence on their part.

Article 2229 of the Civil Code provides that exemplary damages may

be imposed by way of example or correction for the public good. The

award of these damages is meant to be a deterrent to socially deleterious

actions.[45] Public policy requires such imposition to suppress wanton acts

of an offender.[46] It must be emphasized that local governments and their

employees should be responsible not only for the maintenance of roads

and streets, but also for the safety of the public. Thus, they must secure

construction areas with adequate precautionary measures.

Not only is the work of petitioners impressed with public interest;

their very existence is justified only by public service. Hence, local

governments have the paramount responsibility of keeping the interests of

the public foremost in their agenda. For these reasons, it is most disturbing

to note that the present petitioners are the very parties responsible for

endangering the public through such a rash and reckless act.

WHEREFORE, the Petition is hereby PARTLY GRANTED. The

Decision of the Court of Appeals is AFFIRMED, with
the MODIFICATION that the award of moral damages is DELETED.
No costs.

SO ORDERED.

G.R. No. 168101 February 13, 2006

PEOPLE OF THE PHILIPPINES, Appellee,
vs.
GREGORIO CORPUZ Y ESPIRITU, Appellant.

DECISION

PER CURIAM:

We have before Us yet one more account of how a young girl, deprived of the attentions of a mother
gone to work in foreign shores, is attacked and betrayed by the one other person she should have
been able to depend on for solace, protection and love.

This is an appeal from the decision of the Regional Trial Court (RTC) dated 19 July 1999, Branch 08,
Aparri, Cagayan, in Criminal Case No. 08-974 finding the herein appellant, Gregorio Corpuz y
Espiritu, guilty beyond reasonable doubt of raping his 13-year-old daughter, Juvilie Corpuz y
Antonio, sentencing him to die by lethal injection, and ordering him to pay the victim ₱100,000.00 in
moral damages and ₱100,000.00 in exemplary damages.

The records of this case were originally transmitted to us on automatic review. However,
conformably with our Decision in People of the Philippines v. Efren Mateo y Garcia1 modifying
Sections 3 and 10 of Rule 122, Section 13 of Rule 124, Section 3 of Rule 125 of the Revised Rules
on Criminal Procedure and any other rule insofar as they provide for direct appeals from the RTC to
the Supreme Court in cases where the penalty imposed is death, reclusion perpetua or life
imprisonment, we referred the case and its records to the Court of Appeals2 for appropriate action
and disposition.

On 08 April 2005, the Court of Appeals rendered a Decision,3 the dispositive portion of which reads:

WHEREFORE, the Judgment dated 19 July 1999 of the Regional Trial Court, Second Judicial
Region, Branch 08, Aparri, Cagayan, in Criminal Case No. 08-974, finding accused-appellant
Gregorio Corpuz guilty beyond reasonable doubt of qualified rape and sentencing him to suffer the
DEATH penalty is hereby AFFIRMED with MODIFICATION in the sense that he is ordered to pay
the victim, Juvilie Corpuz, ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages, and
₱25,000.00 as exemplary damages.

The antecedent facts are as follows:

At the time of the incident, Juvilie, then 13, and her two sisters, Grace, aged 12, and Cheryl, aged 9,
were living with their father, herein appellant Gregorio Corpuz y Espiritu, in a two-bedroom bungalow
in Palagao, Gattaran, Cagayan. The girls’ mother had been working as a domestic helper in
Hongkong since May 1995.

Juvilie and her sister Grace used to sleep in one room, while the youngest sister Cheryl slept with
their father Gregorio in the other room. For two successive nights sometime prior to the night in
question, Juvilie felt somebody fondling her breast and caressing her private parts, even inserting a
forefinger inside her. On the second night, she caught her father doing it. She confronted him, but he
denied it, explaining that his presence in the room was allegedly to put arsenic rat poison.

On the night of 16 November 1996, Juvilie was awakened by a fist blow to her stomach. When she
reported the matter to her father, he claimed he had also been hit in his stomach, and advised her
and Grace to sleep in the other room with him and Cheryl, which they did the following night. Juvilie
laid down on one side of the mat while Gregorio laid on the other. Her sisters laid between them,
with Grace beside Juvilie and Cheryl beside Gregorio.

At around 11:00 in the evening of 17 November 1996, Juvilie was awakened by pain she felt in her
private parts. She felt and saw the shape of a man on top of her with his penis inside her. Her
panties had been removed, and her skirt raised. She pushed and hit the man, and shouted
"Okinnam bastos a laklakayan uleg, baboy" (Vulva of your mother, dirty old man, snake, pig)! The
man moved hurriedly to the other side of the mat and said "Pakawanennac anakko, tag-taginep ko
lang daydiay" (Forgive me my daughter, I was only dreaming).

Her two sisters, awakened by the shout, ran out of the room in fear. Juvilie was left inside the room
crying. Her father prevented her from leaving the room, saying "padasen iti rumuar ta adda
mapasama kenca" (try to go outside and something will happen to you). He also threatened her with
harm if she told anyone what had happened.

Juvilie’s shout had also been heard by her uncles, Rogelio and Walter Antonio, brothers of her
mother, whose houses were only about ten meters away from Juvilie’s. They immediately went to
Juvilie’s house, but hearing nothing further to arouse their suspicions, they went back to their own
homes.

In the afternoon of the following day, Juvilie slipped out of her house while Gregorio was cooking
and told Rogelio what her father had done to her. Rogelio reported the matter to their barangay
captain, who advised him to inform the police. Since Gregorio was almost constantly with Juvilie, it
was only on 27 November 1996 that she was able to report the rape to the police, where she
executed a sworn statement.

Juvilie was examined by Dr. Nida Rosales, the Municipal Health Officer of Gattaran, Cagayan. Dr.
Rosales observed one completely healed and two incompletely healed lacerations in Juvilie’s
hymen. The doctor also noted that Juvilie’s vagina admitted one finger with ease. When asked for
the possible cause of the lacerations, she replied that a hard object, such as an erect penis, could
have caused the said lacerations.4

On 20 March 1997, on the basis of a complaint filed by Juvilie Corpuz y Antonio, an Information5 was
filed before the RTC, Branch 08, Aparri, Cagayan, docketed as Criminal Case No. 08-974, charging
the herein appellant with the crime of qualified rape, thus:

That on or about November 17, 1996, in the municipality of Gattaran, province of Cagayan, and
within the jurisdiction of this Honorable Court, the above-named accused, being then the father
(parent) of the offended party, with lewd design, and by the use of force and intimidation, did then
and there willfully, unlawfully and feloniously have carnal knowledge of said Juvilie Corpuz y
Antonio, a woman under eighteen (18) years of age, all against her will and consent.

On 21 May 1997, the accused-appellant, with the assistance of counsel de oficio, pleaded "Not
Guilty" to the crime charged.6 Trial thereafter proceeded.

The prosecution presented four witnesses: Rogelio and Walter Antonio, Dr. Rosales, and the private
complainant herself.

The defense presented the lone testimony of Gregorio. On the stand, he claimed that he loved his
children very much. He alleged that on the night of 17 November 1996, he pushed Juvilie’s leg hard
against the wall, which was why she woke up and shouted. Thereafter, the case was submitted for
decision.
On 25 June 1999, the trial court issued an order7 stating:

The Presiding Judge was in the process of preparing a decision when he noticed that there is
variance between the offense charged and that proved.

In order to avoid the miscarriage of justice, the Trial Prosecutor is hereby directed to amend the
Information to conform with the evidence, specifically, that the rape was committed while the woman
is unconscious instead of by the use of force and intimidation. He is directed to do so within ten (10)
days.

Thus, on 13 July 1999, the prosecutor filed the following Amended Information:8

That on or about November 17, 1996, in the municipality of Gattaran, province of Cagayan, and
within the jurisdiction of this Honorable Court, the above-named accused, being then the father
(parent) of the offended party, with lewd design, and while the offended party was asleep and
unconscious, did then and there willfully, unlawfully and feloniously have carnal knowledge of said
Juvilie Corpuz y Antonio, a woman under eighteen (18) years of age, all against her will and
consent.

On 05 August 1999, the trial court promulgated the decision finding the accused-appellant guilty
beyond reasonable doubt of the crime of rape.9 In giving credence to the evidence adduced by the
prosecution, it explained thus:

It has been truly said that rape is so easy to charge and so difficult to defend. The logic is not quite
difficult to apprehend. It is usually committed when nobody is present to witness the same. However,
Filipino culture attaches an indelible stigma to the reputation of one who has been raped. An
accusation for rape is thus not made with indifference, but with much deliberation, usually only after
consultation with relatives and the family council.

"Art. 335. When and how rape is committed. – Rape is committed by having carnal knowledge of a
woman under any of the following circumstances.

"1. By using force or intimidation;

"2. When the woman is deprived of reason or otherwise unconscious; and

"3. When the woman is under twelve years of age or is demented.

xxxx

"The death penalty shall be imposed if the crime of rape is committed with any of the following
attendant circumstances:

"1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, sanguinity or affinity within the third civil degree, or the common-law spouse of the
parent of the victim x x x.

The elements are carnal knowledge thru force or intimidation, when the woman is deprived of reason
or unconscious, or when the woman is under 12 or demented.
We are satisfied that there was carnal knowledge by accused of private complainant while the latter
was asleep on 17 November 1996. This is corroborated by finding of prosecution witness Dr. Nida
Nolasco-Rosales, Municipal Health Officer of Gattaran Town, Gattaran, Cagayan who conducted a
physical examination of the complainant Juvilie Corpuz on 28 November 1996. Her findings viz:

"Incomplete healed laceration at 2:00 [o’clock] position

"Complete healed laceration at 6:00 [o’clock] position

"Incomplete healed laceration at 9:00 [o’clock] position

"Genitalia admits one finger with ease"

On the witness box, on questioning by the Court, she testified that on 17 November 1996 witness-
complainant did not yet have a boyfriend. The testimony of her maternal uncles Rogelio and Walter
Antonio partly corroborates complainant’s testimony. Both uncles testified hearing complainant cry
on the evening of 17 November 1996 when the rape happened.

Accused himself when testifying admitted that on that evening, complainant cried when he pushed
her legs hard, which hit the wall. His reason for pushing – that complainant’s legs touched his in their
sleep is incredible considering that the former and the latter were at extreme ends of the mat with
Cheryl and Grace between them. While accused testified that complainant moves in her sleep, that
is not a sufficient explanation why he had to push her legs hard causing her to cry. Further, accused
did not deny that complainant uttered the words "ukinam, bastos a laklakayan, uleg, baboy" during
the incident when she discovered it was her father who was on top of her. On that occasion he said
"Pakawanennac anakko, tag-taginep ko lang daydiay" (meaning "forgive me my daughter, I was only
dreaming". Accused did not explain this.

Sleep is akin to "unconscious (ness)". It falls within its ambit.

Complainant is accused’s daughter. She was barely 13 years old on 17 November 1996. Accused
did not deny that complainant (his daughter) was aged 13.10

In his brief, the appellant assigns the following errors:

I.

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE
ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND
REASONABLE DOUBT DESPITE THE PRIVATE COMPLAINANT’S HIGHLY DOUBTFUL
POSITIVE IDENTIFICATION OF HER ALLEGED ABUSER.

II.

THE COURT A QUO ERRED IN ORDERING THE AMENDMENT OF THE INFORMATION

TO CONFORM TO THE EVIDENCE ADDUCED BY THE PROSECUTION

In assailing Juvilie’s credibility, the appellant claims that since the rape of Juvilie took place inside
the bedroom with the lights switched off, and Juvilie was initially asleep when she was violated, it
was extremely unlikely that she was able to identify her assailant.
The Court of Appeals correctly disposed of the appellant’s arguments.

The pernicious consequences to both accused and offended party require that utmost care be taken
in the review of a decision involving conviction of rape.11 In such cases, we are guided by three
principles: (1) an accusation for rape can be made with facility; it is difficult to prove but more difficult
for the accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape
where only two persons are usually involved, the testimony of the complainant must be scrutinized
with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits,
and cannot be allowed to draw strength from the weakness of the evidence for the defense.12

In rape cases, the accused may be convicted solely on the basis of the testimony of the victim,
provided that such testimony is credible, natural, convincing and consistent with human nature and
the normal course of things.13

If her testimony meets the test of credibility, such is sufficient to convict the accused. The credibility
of the victim is almost always the single most important issue to hurdle. In this regard, the trial judge
is in the best position to assess the credibility of the complainant, having personally heard her and
observed her deportment and manner of testifying during the trial. Absent any showing that the trial
judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would
affect the result of the case, or that the judge acted arbitrarily, the trial judge’s assessment of
credibility deserves the appellate court’s highest respect.14

Here, the Court of Appeals agreed in the trial judge’s assessment of Juvilie’s credibility, and
observed that she was direct, unequivocal, convincing and consistent in answering the questions
propounded to her. We concur.

Juvilie testified as follows:

Q - Now, while you were there inside the room of your father on November 17, 1996, at around
11:00 o’clock was there anything unusual that took place?

A - There was, Your Honor.

Q - What was the incident?

A - My father raised my dress and removed my panty, and went on top of me.

Q - What kind of dress [were] you wearing?

A - Skirt, Your Honor.

Q - What about the other?

A - T-shirt, Your Honor.

Q - And you said your father removed your panty?

A - Yes, Your Honor.

Q - Did you already know that your panty was remove[d] and your shirt was raised, do you know
who removed them?
A - Not yet, Your Honor.

Q - And after that, what did you do when your t-shirt was raised and your panty was removed?

A - I pushed him, and boxed him for several times and grabbed him, Your Honor.

Q - Did you already know that was your father?

A - Not yet, Your Honor.

Q - Was the light close[d]?

A - Yes, Your Honor.

Q - What about your two sisters, what were they doing?

A - They were still sleeping, Your Honor.

xxxx

Fiscal Cortes:

Q - Aside from removing panty, what else did your fater do?

A - I felt his penish (sic) penetrated, sir.

Court:

Q - Were you asleep when your t-shirt was raised and your panty was removed?

A - Yes, Your Honor.

Q - And were you still asleep when you felt something inside your genital?

A - Yes, Your Honor.

Q - And then what did you do after that?

A - I felt pain and I pushed him sir, for several times and I even shouted the words "Ukinam bastos a
laklakayan uleg, baboy."

Q - When you felt pain, you pushed the one on top of you, you boxed him, you grabbed him, why do
you know already who it was?

A - Yes, Your Honor.

Q - That was when you shouted?

A - Yes, Your Honor.

Q - Were you already awake when somebody raised your skirt?

A - Not yet, Your Honor.

Q - When somebody removed your panty you [were] awake?

A - Not yet, Your Honor.

Fiscal Cortes:

Q - When your father inserted his penish (sic) to your vagina were you already awake?

A - Yes, sir.

Court:

Q - Can you recall what particular sensation awake you?

A - Yes, sir.

Q - Why?

A - When I felt pain that awakened me.

xxxx

Fiscal Cortes:

xxxx

Q - How did you know that it was your father when according to you the light was off?

A - Because my father uttered the word[s] "pakawanen nak anakko tagtaglinep ko lang daydiay"
which means forgive me my daughter I was only dreaming.

Court:

Q - When your father asked you for forgiveness was his pants on?

A - I do not know, Your Honor, because it was still dark at that time.

Q - But he was no longer on top of you?

A - No more, Your Honor.

Court: Continue.

Fiscal Cortes:
Q - Where was your father then when he uttered those words?

A - He was beside of (sic) Cheryl, sir.

Q - When you woke up because of the pain, [were] your two sisters also awoke or were they still
sleeping?

A - Yes, sir.

Q - After your father went to the side of your sister Cheryl, what happened next?

A - My two sisters went outside the room because they were frightened, sir.

Court:

Q - How about you?

A - I stayed in the bedroom, Your Honor.

Q - With your father?

A - Yes, Your Honor.

Q - And what happened after that?

A - When my two sisters were already outside the room and I was also inside the room and my
father threatened me if I will report I will also die.15

The testimony of child-victims are normally given full weight and credit, since when a woman, more
so if she is a minor, says that she has been raped, she says in effect all that is necessary to show
that rape was committed. Youth and immaturity are generally badges of truth and sincerity. No
woman, least of all a child, would concoct a story of defloration, allow an examination of her private
parts and subject herself to public trial or ridicule if she has not, in truth, been a victim of rape and
impelled to seek justice for the wrong done to her.16

Moreover, Juvilie’s testimony is corroborated by the medical findings of the examining physician.
Where a victim’s testimony is corroborated by the physical findings of penetration, there is sufficient
basis for concluding that sexual intercourse did take place. A rape victim’s account is sufficient to
support a conviction for rape if it is straightforward, candid and corroborated by the medical findings
of the examining physician,17 as in the present case.

We come now to the accused-appellant’s claim that the prosecution failed to establish the identity of
the perpetrator with certitude since the room was dark and it was not shown to have been properly
illuminated.

It is highly inconceivable that complainant would not recognize her own father, with whom she had
been living for a long time. We have held that it is the most natural reaction for victims of criminal
violence to strive to see the appearance of their assailant and observe the manner in which the
crime was committed. Most often, the face and body movements of the assailants create a lasting
impression which cannot be easily erased from their memory.18The impression becomes more
profound where the malefactor is the victim's own father.19 Also, Juvilie categorically testified that it
was her father who raped her. It is unthinkable, if not completely preposterous, that a daughter
would concoct a story of rape against her father, taking to mind the reverence and respect for elders
that is too deeply ingrained in Filipino children.20 It is well-settled that a categorical and positive
identification of an accused, without any showing of ill-motive on the part of the eyewitness testifying
on the matter, prevails over alibi and denial, which are negative and self-serving evidence
undeserving of real weight in law unless substantiated by clear and convincing evidence.21

Juvilie was also able to identify her abuser through his voice. As efficiently summed up by the Court
of Appeals:

On the night of 17 November 1996, Juvilie was awakened by the pain she felt when her abuser
inserted his penis inside her vagina. Upon waking and finding a man on top of her, she repeatedly
pushed and hit her assailant. She shouted at him, "ukinam bastos a laklakayan uleg, baboy."

The man laying on top of her hastily moved to the other side of the mat from where Juvilie slept. He
then uttered, "pakawanen nak anako tagtaginep ko lang daydiay." She recognized his voice as that
of her father.

Identification of an accused by his voice has been accepted particularly in cases where, such as in
this case, the witness has known the malefactor personally for so long and so intimately. In People
v. Calixto, the Supreme Court has given credence to the blindfolded rape victim’s identification of the
accused, a barriomate, by his voice. Also, in an earlier case, the Supreme Court has said:

"x x x [C]omplainant’s identification of the appellant was not based solely on the latter’s physical
defect, but by his voice as well, when he warned complainant, ‘Flor, keep quiet.’ Although
complainant did not see appellant’s face during the sexual act because the house was dark,
nevertheless, no error could have been committed by the complainant in identifying the voice of the
accused, inasmuch as complainant were neighbors."

Pitted against the positive, straightforward and unequivocal testimony of the victim – Juvilie – the
mere denial by the accused-appellant that he raped his daughter cannot prevail.

Denial is inherently a weak defense. It cannot prevail over positive identifications, unless buttressed
by strong evidence of non-culpability. Denials are self-serving negative by strong evidence which
cannot prevail over the positive, straightforward and unequivocal testimony of the victim. When the
offended parties are young and immature girls from the ages of twelve to sixteen, courts are inclined
to lend credence to their version of what transpired, considering not only their relative vulnerability
but also the shame and embarrassment to which they would be exposed by court trial if the matter
about which they testified is not true.

The accused-appellant next contends that the trial court’s order to amend the information as to the
mode of commission of the rape – from "by force and intimidation" to "while the offended party was
asleep or unconscious" – is not sanctioned by the Rules on Criminal Procedure.

However, this issue has already been directly addressed in People v. Abiera,22 and later in People v.
Atienza,23where we upheld the conviction for rape committed under one mode when the information
alleged another.

In Atienza, therein accused-appellant contended that the trial court erred in finding him guilty of rape
under par. (2), Art, 335, i.e., rape of a woman who was deprived of reason, including those with the
mental capacity of a child below twelve (12) years old, when the Information charged him with rape
committed through force and intimidation as defined in par. (1), Art. 335. Atienza cited the earlier
case of Abiera, wherein we held thus:

The appellant maintains that he cannot be convicted of rape committed under one mode when the
information alleged another mode. He cites the case of People v. Pailano, where this Court held that
to convict the appellant on the finding that he had committed rape while the victim was unconscious
or otherwise deprived of reason — and not through force and intimidation, which was the method
alleged — would violate his constitutional right to be informed of the nature and cause of the
accusation against him.

That case works against the appellant. In Pailano, this Court impliedly recognized that an accused
charged with rape through one mode of commission may still be convicted of the crime if the
evidence shows another mode of commission provided that the accused did not object to such
evidence. The Court said:

It may be argued that although initially deficient, the criminal complaint was deemed corrected when
the prosecution introduced evidence on the complainant's mental condition and the defense did not
object, thereby waiving the procedural defect. Even so, the charge has not been adequately
established.

The prosecution presented evidence to show that Abiera had carnal knowledge of the complainant
when by means of force, violence and intimidation, he boxed her in the stomach, causing her to lose
consciousness, after which he violated her. When Alma regained consciousness, the outrage had
already been committed. Her deshabille, her bleeding vagina, the near-naked man beside her — all
these reasonably indicated that Abiera had deflowered Alma while she was unconscious. The
defense did not object to the presentation of evidence to establish all these circumstances.

The Pailano case is different from the case at bar because it has been proven that Abiera had carnal
knowledge of Alma after rendering her unconscious. Pailano was acquitted because it was not
established that he used force and intimidation upon the complainant or that the girl was mentally
deficient.24

In the case at bar, the appellant never raised any objection when the prosecution showed another
mode of commission of the crime charged as alleged in the original information. Nor did he interpose
any objections after the judge issued his order of 25 June 1999 directing the trial prosecutor to
amend the information to conform with the evidence and before he rendered judgment.

Be that as it may, the amendment of the information did not affect the crime committed by the
appellant, that is, qualified rape. In cases of incestuous rape, force or intimidation need not even be
proven. The overpowering moral influence of the father over the daughter takes the place of violence
and offer of resistance required in rape cases committed by an accused unrelated to the
victim.25 Consequently, his conviction is in order.

Having determined that rape was indeed committed by Gregorio against Juvilie, we come now to the
question of the appropriate imposable penalty under the circumstances.

The death penalty is imposed if the crime of rape is committed with the attendance of certain
circumstances, one of these being when the victim is under eighteen years of age and the offender
is a parent, ascendant, stepparent, guardian, relative by consanguinity and affinity within the third
civil degree, or the common-law spouse of the parent of the victim.
Gregorio’s paternity was alleged in the information and duly proven in the course of the trial. He was
duly identified as such by Rogelio Antonio,26 Juvilie’s maternal uncle and close neighbor, by Juvilie
herself,27 and admitted by the appellant during direct examination.28

Juvelie’s minority was also alleged in the information and duly proven during trial, in the course of
which her birth certificate was offered in evidence.29 Appellant himself also expressly and clearly
testified as to her age under direct examination.30

We have consistently held that the concurrence of the minority of the victim and her relationship to
the offender is a special qualifying circumstance which increases the penalty, and must be properly
alleged in the information because of the accused’s right to be informed of the nature and cause of
the accusation against him.31 Juvilie’s minority and her relationship with Gregorio having been duly
established by evidence, the death penalty was correctly imposed upon the appellant.

WHEREFORE, the Decision of the Court of Appeals of 08 April 2005 affirming the Decision dated 19
July 1999 of the Regional Trial Court, Branch 08, Aparri, Cagayan in Criminal Case No. 08-974,
finding accused-appellant Gregorio Corpuz guilty beyond reasonable doubt of qualified rape and
sentencing him to suffer the DEATH penalty with the MODIFICATION that he is ordered to pay the
victim, Juvilie Corpuz, ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages, and
₱25,000.00 as exemplary damages, is hereby AFFIRMED.32

In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act
7659, upon finality of this Decision, let the records of this case be forwarded forthwith to the Office of
the President for possible exercise of executive clemency.

SO ORDERED.

G.R. Nos. 118757 & 121571 October 19, 2004

ROBERTO BRILLANTE, petitioner,

vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

DECISION

TINGA, J.:

Good name in man and woman, dear my Lord,

Is the immediate jewel of their souls:
Who steals my purse steals trash; ‘tis
Something, nothing;…
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.

- Shakespeare: Othello, III, iii, 155.

Every man has a right to build, keep and be favored with a good name. This right is protected by law
with the recognition of slander and libel as actionable wrongs, whether as criminal offenses or
tortious conduct.
In these consolidated petitions for review on certiorari,1 petitioner Roberto Brillante (Brillante), also
known as Bobby Brillante, questions his convictions for libel for writing and causing to be published
in 1988 an open letter addressed to then President of the Republic of the Philippines Corazon C.
Aquino discussing the alleged participation of Atty. Jejomar Binay (Binay), then the "OIC
Mayor"2 and a candidate for the position of Mayor in the Municipality (now City) of Makati, and Dr.
Nemesio Prudente (Prudente), then President of the Polytechnic University of the Philippines, in an
assassination plot against Augusto Syjuco (Syjuco), another candidate for Mayor of Makati at that
time.

On January 7, 1988, Brillante, then a candidate for the position of Councilor in Makati, held a press
conference at the Makati Sports Club which was attended by some 50 journalists. In the course of
the press conference, Brillante accused Binay of plotting the assassination of Syjuco. He further
accused Binay of terrorism, intimidation and harassment of the Makati electorate. Brillante also
circulated among the journalists copies of an open letter to President Aquino which discussed in
detail his charges against Binay.3

Several journalists who attended the press conference wrote news articles about the same. Angel
Gonong, a writer for the People’s Journal, wrote a news article entitled "Binay Accused of Plotting
Slays of Rivals." It was cleared for publication by Max Buan, Jr. (Buan), and Luis Camino (Camino),
Editor-in-Chief and News Editor, respectively, of the People’s Journal. Gloria Hernandez
(Hernandez) wrote a similar article entitled "Binay Slay Plan on Syjuco" which was cleared for
publication by Augusto Villanueva (Villanueva) and Virgilio Manuel (Manuel), Editor-in-Chief and
News Editor, respectively, of the News Today.4

The open letter was subsequently published under the title "Plea to Cory--Save Makati" in
newspapers such as thePeople’s Journal, Balita, Malaya and Philippine Daily Inquirer.5 The pertinent
portions of the open letter read:

4. We have received reports that Atty. Binay and his group are plotting the assassination of
Mr. Augusto "Bobby" Syjuco, now frontrunner in the Makati mayoralty race.

These reports are:

1. On December 14, 1987, Atty. Binay and Dr. Nemesio Prudente, president of the
Polytechnic University of the Philippines (PUP), met at Puerto Azul in Cavite with,
among others, a Commander Luming, a Major Rafael Nieva, and a commander
Francis Baloloy. Subject of the meeting was "Winning the Election at all Costs."

xxx xxx xxx

3. On December 17, 1987, Dr. Prudente, Atty. Binay and others including some
unidentified government officials discussed operation "Dirty Fingers" after the
ASEAN Summit Meeting. The operation involves terrorism, the use of public school
teachers, the threat to kill or hurt political ward and precinct leaders not supporting or
opposed to Atty. Binay, and to use these as samples to show rivals that his group is
capable of doing so, the planting of his squads in places close to potential targets,
the mobilization of "marshals" who will bring firearms and to ferry hitmen to target
points. The "marshals" will also be used as "pointers" and to shelter the hitmen after
accomplishing or performing their missions.

xxx xxx xxx

 4. On December 8, 1987, a certain Emilio Anecito, tagged as a hitman in the group of Dr.
Prudente, has been specifically assigned to assassinate Mr. Syjuco, Aniceto has been
described as Iranian mestizo looking, about five (5) feet in height, fair complexioned curly
haired, sporting a mustache, and fairly built bodily. He is said to be a silent person and
supposedly has a perfect score in hit missions assigned to him.

xxx xxx xxx

5. On December 10, 1987, it was reported that Major Rafael Nieva had been assigned to
work with Mr. Aniceto, Nieva’s background report is that he:

xxx xxx xxx

c. Was hired by Dr. Prudente as security officer and personal bodyguard.

d. Is a notorious killer used by the PUP forces and only his employer can control or
stop him.6

As a result of the publication of the open letter, Binay filed with the Makati fiscal’s office four
complaints for libel against Brillante, as the author of the letter; Gonong, Buan and Camino for
writing and publishing the news article on Brillante’s accusations against him in the People’s
Journal;7 Hernandez, Villanueva and Manuel for writing and publishing a similar news article in
the News Today;8 and for publishing the open letter, Buan and Camino of the People’s Journal;9 and
Arcadio A. Sison (Sison) as President of A. Sison and Associates, an advertising agency.10

Francisco Baloloy (Baloloy), who was identified in the open letter as among the persons who
attended the meeting organized by Binay and Prudente to plan the assassination of Syjuco, likewise
filed a criminal complaint for libel against Brillante, Domingo Quimlat (Quimlat), Publisher and Editor-
in-Chief of Balita, and Sison as President of A. Sison and Associates.11

Subsequently, five Informations for libel against Brillante were filed with the Regional Trial Court
(RTC) of Makati.

Similarly, on January 15, 1988, Prudente filed four complaints for libel against Brillante and the
editors and publishers of the newspapers where the open letter was published. On January 16,
1989, four Informations for libel were filed against Brillante and several co-accused with the RTC of
Manila. Brillante’s co-accused in these cases were: (i) Buan, Editor-in-Chief of the People’s
Journal;12 (ii) Amado P. Macasaet (Macasaet), Publisher, and Noel Albano (Albano), Editor, of
the Malaya;13 (iii) Sison, Public Relations Officer and Federico D. Pascual (Pascual), Publisher and
Executive Editor of the Philippine Daily Inquirer;14 and (iv) Sison, Public Relations Officer and
Quimlat, Publisher and Editor-in-Chief of Balita.15

Buan was not included in the trial of the cases in the RTC-Manila because he eluded arrest and was
not arraigned. The charges against Pascual and Quimlat were dropped upon motion of the Assistant
Prosecutor. The charges against Macasaet and Albano were also eventually dismissed upon motion
of the prosecution. Only Brillante and Sison remained as accused.16 Both pleaded not guilty to the
charges against them.

On January 25, 1993, the RTC-Manila acquitted Sison but found Brillante guilty of libel on four
counts. The dispositive portion of the trial court’s Decision in the consolidated cases reads:
 WHEREFORE, judgment is rendered pronouncing accused Bobby Brillante, also known as
Roberto Brillante, guilty beyond reasonable doubt on four (4) counts, as author or writer, of
LIBEL defined under Article 353 of the Revised Penal Code and penalized under Article 355
of the same code, and sentencing him in each count to the indeterminate penalty of FOUR
(4) MONTHS of arresto mayor, as minimum, to TWO (2) YEARS of prision mayor, as
maximum, and to pay a fine of ₱2,000.00 with subsidiary imprisonment in case of insolvency
at the rate of ONE (1) DAY for every ₱8.00 that he is unable to pay, but which subsidiary
imprisonment shall not exceed EIGHT (8) months.

Accused Bobby Brillante is ordered to pay the private offended party, Dr. Nemesio Prudente,
the total sum of ₱1,000,000.00 in these four (4) cases for moral damages which the latter
suffered.

Accused Arcadio Sison is acquitted in the two cases against him, his guilt of the charges
against him not having been established beyond reasonable [doubt].

Two-third (2/3) of the costs is assessed against accused Bobby Brillante while the remaining
one-third (1/3) is charged de oficio.17

Subsequently, Brillante appealed the Decision of the RTC-Manila to the Court of Appeals.18 Brillante
contended that when the Informations in Criminal Cases No. 89-69614 to 17 were filed by the
prosecutor on January 16, 1989, the offense had already prescribed because more than one year
had elapsed since the publication of the open letter on January 10, 11 and 12, 1988. He also
averred that the open letter which he wrote and caused to be published was not defamatory and was
without malice. Brillante also claimed that the publication is considered privileged communication.
Finally, he argued that he is entitled to equal protection of the laws and should be acquitted of the
offenses charged like his co-accused.19

On September 27, 1994, the Court of Appeals promulgated its Decision in CA-G.R. No.
14475 affirming the decision of the RTC-Manila. The appellate court held that the offense of libel had
not yet prescribed because the one-year prescription period should be reckoned from the time that
the private complainant Prudente filed his complaint with the fiscal’s office on January 15, 1988 and
not when the Informations were filed by the prosecutor on January 16, 1989. The Court of Appeals
added that under Section 1, Rule 110, which took effect during the pendency of the cases against
Brillante, the institution of the complaint before the fiscal’s office or the courts for preliminary
investigation interrupts the prescriptive period of the offense charged. It held that being a procedural
rule, Section 1, Rule 110, applies to the cases against Brillante.20

The Court of Appeals further held that the RTC-Manila did not err in finding that Brillante had
committed libel against Prudente. It explained that the open letter, when read in its entirety, gives the
impression that Prudente is part of a purported criminal conspiracy to kill Syjuco. According to the
appellate court, the open letter is a malicious defamation which produced in the minds of the readers
Brillante’s intent and purpose to injure the reputation of Prudente, thereby exposing him to public
hatred, contempt and ridicule.21 The Court of Appeals rejected Brillante’s argument that the open
letter may be considered privileged communication because the evidence does not show that
Brillante wrote and published it out of a legal, moral or social duty.22

The appellate court also debunked Brillante’s allegation that he was denied the equal protection of
the laws because while the charges against his co-accused were dropped, those against him were
not. According to the appellate court, he and his co-accused are not similarly situated because he
was convicted of libel upon a finding that there existed evidence beyond reasonable doubt to sustain
his conviction. In contrast, the charges against his co-accused were dismissed and their guilt was
not proven beyond reasonable doubt.23

Brillante’s contention that his conviction for libel on four counts gave rise to double jeopardy because
under our jurisdiction protection against double jeopardy may be invoked only for the same offense
or identical offenses was also overruled by the appellate court. It held that each and every
publication of the same libel constitutes a separate distinct offense and the charge for one instance
of publication shall not bar a charge for subsequent and separate publications.24

Brillante filed a Motion for Reconsideration of the decision of the Court of Appeals, but the motion
was denied in a Resolution dated January 19, 1995.25

In the meantime, Brillante was likewise convicted for libel on five counts by the RTC-Makati in
Criminal Cases Nos. 88-1410, 88-1411, 88-1412, 88-3060 and 89-721. The dispositive portion of
the Decision dated March 22, 1993 of the RTC-Makati reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Cases Nos. 88-1410, 88-1411, 88-1412, 88-3060 and 89-721, finding
accused Bobby Brillante, also known as Roberto Brillante, GUILTY beyond
reasonable doubt of the offense of libel charged in each of these five (5) cases, and
sentencing him in each of the cases to suffer imprisonment of FOUR (4) MONTHS
of arresto mayor, as minimum, to TWO (2) YEARS prision correccional, as
maximum, and to pay fine, likewise in each of these (5) cases, of Four Thousand
(₱4,000.00) Pesos, Philippine Currency, with subsidiary imprisonment in case of
insolvency pursuant to Article 39, paragraph 1, of the Revised Penal Code.

2. As to moral damages, said accused is also ordered to pay complainant, Jejomar

C. Binay, the sum of One Million Pesos (₱1,000,000.00), Philippine Currency, in all
the four (4) charges (Crim. Cases Nos. 88-410, 88-1411, 88-1412 and 89-721),
considering the latter’s professional and political standing in society, he being a
lawyer and former Governor of the Metro Manila Commission as well as director of
various government agencies.

3. As to moral damages, said accused is also ordered to pay complainant, Francisco

Baloloy, the sum of Fifty Thousand Pesos (₱50,000.00), Philippine Currency, in
Criminal Case No. 88-3060.

4. In Criminal Cases Nos. 88-1410 and 88-1412, ACQUITTING accused Max Buan,
Jr., Angel Gonong and Louie Camino, of the two charges against them on the ground
that their guilt has not been proven beyond reasonable doubt.

5. In Criminal Case No. 88-1411 (except for accused Brillante) ordering the same
ARCHIVED on the ground that the other accused herein, Gloria Hernandez, Augusto
Villanueva and Virgilio Manuel, have not been brought to the jurisdiction of this Court;
let alias warrant issue for their arrest.

6. In Criminal Cases Nos. 88-3060 and 89-721, likewise ordering the same
ARCHIVED ONLY WITH RESPECT TO accused Arcadio Sison, who has not been
brought to the jurisdiction of this Court; let alias warrant issue for his arrest.
 7. In all these cases, ordering accused Bobby Brillante, also known as Roberto
Brillante, to pay the proportionate costs.

SO ORDERED.26

Brillante appealed the Decision of the RTC-Makati to the Court of Appeals,27 raising essentially the
same arguments in his appeal in CA-G.R. CR No. 14475.

On February 28, 1995, the Court of Appeals rendered its Decision in CA-G.R. CR No. 15174
affirming the decision of the RTC-Makati. It held that the filing of the complaint before the fiscal’s
office interrupts the period of prescription because Article 91 of the Revised Penal Code did not
make any distinction whether the complaint is filed in court for preliminary investigation or for trial on
the merits, because the filing of the complaint for preliminary investigation is the initial step of
criminal proceedings. It added that it would be unfair to deprive the injured party of the right to obtain
vindication on account of delays which are not within his control.28

The appellate court also ruled that the open letter cannot be considered privileged communication
because it contains libelous matter and was circulated to the public. Citing U.S. v. Galeza,29 it held
that while it is the right and duty of a citizen to file a complaint regarding a misconduct on the part of
a public official, such complaint must be addressed solely to the officials having jurisdiction to inquire
into the charges.30

Lastly, the Court of Appeals sustained the trial court’s observation that unlike Brillante, his co-
accused editors and publishers could not be held liable for libel because the news reports regarding
the January 7, 1988 press conference which were published in their respective newspapers
sufficiently informed the readers that the reference to Binay’s involvement in the assassination plot
were allegations made by Brillante during the press conference and that said allegations were
reported for the sole purpose of informing the public of the news regarding the candidates adverted
to in the report.31

Brillante filed a Motion for Reconsideration of the appellate court’s decision, but the motion was
denied in a Resolution dated August 17, 1995.32

Thereafter, Brillante filed the present Petitions for Review on March 13, 1995 in G.R. No. 118757
and on October 10, 1995 in G.R. No. 121571. In G.R. No. 118757, he raises the following
arguments:

THE OFFENSE OF LIBEL CHARGED IN THE INFORMATION (sic) HAD ALREADY

PRESCRIBED WHEN THE SAID INFORMATION (sic) WAS FILED.

II

HE IS NOT GUILTY OF LIBEL HE IS CHARGED WITH, BECAUSE THE LETTER HE

CAUSED TO BE PUBLISHED WAS WRITTEN AND PUBLISHED WITHOUT ANY MALICE
[N]OR MALICIOUS INTENT TO MALIGN THE PERSON, HONOR AND REPUTATION OF
THE COMPLAINANT [PRUDENTE/BINAY] BUT SOLELY FOR THE JUSTIFIED AND
HONEST PURPOSE OF BRINGING TO THE ATTENTION OF ALL AUTHORITIES
CONCERNED THE REPORTS THEREIN MENTIONED FOR APPROPRIATE ACTION.
WHERE THERE IS NO MALICE, THERE IS NO LIBEL.
 III

IN TRUTH, PUBLICLY KNOWN PARAMILITARY ACTIVITIES OF COMPLAINANT, DR.

NEMESIO PRUDENTE, ALREADY IN OPERATION LONG BEFORE JANUARY 12, 1988,
INDICATE THAT HE WAS NOT INCAPABLE OF NOURISHING VIOLENT INTENTIONS
AGAINST THE POLITICAL OPPONENTS OF MAYOR BINAY.

IV

MOREOVER, CONSIDERING THAT THE MATTER REFERRED TO IN THE LETTER

INDUBITABLY RELATES TO THE ELECTION CAMPAIGN THEN GOING ON AS WELL AS
THE PARTICIPATION OF PETITIONER AND COMPLAINANT THEREIN, WHATEVER IS
CONTAINED IN SAID LETTER CAN AT MOST BE NO MORE THAN A POLITICAL LIBEL,
WHICH IS NOT PUNISHABLE.

WE EARNESTLY URGE THAT THIS PROPOSITION BE ENUNCIATED AS A

FUNDAMENTAL PRINCIPLE IN THE LAW ON LIBEL.

IN THE REMOTE POSSIBILITY THAT THIS HONORABLE COURT MAY PERCEIVE ANY
CRIMINAL LIBEL IN THIS CASE, THE PENALTY IMPOSED UPON PETITIONER IS
CRUEL AND EXCESSIVE, PARTICULARLY, AS TO THE AMOUNT OF DAMAGES
AWARDED TO COMPLAINANT.33

In G.R. No. 121571, he makes the following assignments of error:

THE OFFENSE HAD PRESCRIBED

II

THE PUBLICATION WAS A PRIVILEGED COMMUNICATION

III

THE PUBLICATION WAS MADE WITHOUT MALICE

IV

IT MAY, AT MOST, ALSO BE CONSIDERED A POLITICAL LIBEL WHICH IS NOT

PUNISHABLE

THE DECISION VIOLATES PETITIONER’S RIGHT TO EQUAL PROTECTION OF THE

LAWS

VI
 THE PENALTY IS CRUEL AND EXCESSIVE34

With respect to the issue of prescription, Brillante anchors his claim on the Court’s ruling in People v.
Tayco35 that the prescriptive period of a crime is interrupted only upon the filing of the complaint in
court and not the filing thereof with the fiscal’s office. According to Brillante, the ruling in People v.
Olarte36 did not modify the doctrine in Taycobecause in Olarte, the Court referred to a complaint filed
"in court," not in the "fiscal’s office." The ruling in Franciscov. Court of Appeals37 that a complaint
filed with the fiscal’s office also interrupts the prescriptive period of a criminal offense allegedly
cannot overturn the ruling in Olarte because the latter was decided by the Court En
Banc while Francisco was decided by a mere division of the Court.38

It is further asserted by Brillante that the rule in the 1985 Rules on Criminal Procedure that the filing
of the criminal complaint with the fiscal’s office interrupts the prescriptive period, cannot be applied
retroactively to the cases against him because it impairs his vested right to have the cases against
him dismissed on the ground of prescription.39 In addition, he claims that Section 6(b), Rule 3 of the
1985 Rules on Criminal Procedure which states that "[t]he pendency of a petition for suspension of
the criminal action still undergoing preliminary investigation in the fiscal’s office shall interrupt the
prescriptive period for filing the corresponding complaint of information" supports his position that
prior to the amendment of the Rules on Criminal Procedure in 1985, the prevailing rule was that only
the filing of the complaint or information in court tolls the prescriptive period for a criminal offense.40

Brillante denies that he is liable for libel for causing to be published his open letter implicating Binay,
Prudente and their associates in a planned assassination of Syjuco as well as election-related
terrorism, and in uttering remarks against Binay and his associates during the January 7, 1988 press
conference. According to Brillante, his statements and utterances were privileged communication
because he made them public out of a legal, moral and social duty to safeguard the sanctity of the
elections to be held on January 18, 1988, and to avoid the unnecessary loss of life.41 Since his
statements were privileged communication, malice cannot be presumed from them.42Brillante adds
that at the time he made the statements, he honestly believed that they were true. Citing an
American case, Bays v. Hunt,43 he contends that where there is an honest belief in the truth of the
charges made, and the publication is in good faith, one is not responsible even for publishing an
untruth.44

It is further asserted by Brillante that since Binay, the subject of the allegedly defamatory statements
is a public figure, his (Brillante’s) comments affecting Binay’s reputation is constitutionally protected
speech.45

Brillante also urges the Court to reverse his convictions, reasoning that at most, what he may have
committed is "political libel" which should exempt him form criminal liability, considering that election
campaigns can become very heated and candidates from rival camps often make charges and
countercharges which are offensive to the name, honor and prestige of their opponents. He
contends that statements made by a candidate against his rivals, although derogatory, are for the
purpose of convincing the electorate to prevent suspicious characters from holding public office. In
essence, he posits the view that "political libel" should be deemed constitutionally protected
speech.46

Brillante likewise argues that the multiple publication rule, i.e., that each publication constitutes one
offense of libel,should not have been applied to him, considering the factual background of the open
letter and the statements uttered by him during the press conference.47
Anent the issue of equal protection, Brillante contends that he should have been acquitted like his
co-accused Angel Gonong who wrote the news article in the People’s Journal regarding the January
7, 1988 press conference and Buan and Camino who were the editors of that publication.48

The Solicitor General filed a Comment on each of the petitions.

The Solicitor General insists that the one-year prescriptive period for libel should be reckoned from
the date of filing of the complaints with the office of the prosecutor as clarified by the Court
in Olarte and Francisco and as stated in the 1985 Rules on Criminal Procedure, as amended in
1988, which applies to the complaints filed against Brillante as of October 1988.49

On the issue of libel, the Solicitor General insists that Brillante’s statements in the open letter clearly
impute upon Prudente and Binay a criminal conspiracy to assassinate Syjuco.50 The Solicitor
General also maintains that contrary to Brillante’s claims, the open letter cannot be considered
privileged communication because it was published without justifiable motives and it was circulated
for the information of the general public instead of addressing the letter solely to the authorities who
had the power to curb the dangers alleged by Brillante in the letter.51

The Solicitor General disagrees with Brillante’s contention that his statements are constitutionally
protected because they are criticisms of official conduct and deal with public figures. According to
the Solicitor General, the record shows that Brillante did not have enough basis to pass off his
accusations as true considering that he admitted to relying on unnamed "intelligence sources."52

It is also argued by the Solicitor General that Brillante’s statements cannot be exempt from criminal
liability on the ground that such statements were "political libel." Brillante’s claim, the Solicitor
General asserts, has no basis in law or jurisprudence.53

With respect to the issue of equal protection, the Solicitor General avers that Brillante cannot be
acquitted like his co-accused publishers, editors and writers because their alleged participation in the
commission of the libel are different from Brillante who is the author of the libelous statements. The
writers of the news reports were only narrating what took place during the January 7, 1988 press
conference, and wrote the news articles to inform the public of Brillante’s statements. In the case of
the editors and publishers who published the open letter, they indicated in their respective
publications that the open letter was a paid advertisement. The publication of the news reports in the
newspapers was also done to inform the public of what transpired during the January 7, 1988 press
conference.54

The Solicitor General further argues that the penalty imposed upon Brillante is not excessive but is in
accordance with law, which considers one publication of a libelous statement as a distinct offense
from another publication of the same statement.55

Thus, the Solicitor General prays that Brillante’s petitions be denied.56

Brillante thereafter filed a Reply to each of the Solicitor General’s Comments. The replies reiterate
Brillante’s arguments in his petitions.57

The Court is tasked to resolve the following issues: (1) whether the offense of libel had already
prescribed when the Informations were filed with the RTC-Manila and RTC-Makati; (2) whether
Brillante is guilty beyond reasonable doubt of libel; (3) whether Brillante was denied the equal
protection of the laws; and (4) whether the penalty imposed upon him is excessive.
Save for the issue on the amount of moral damages, there is no merit in the petitions.

With respect to the issue of prescription, the fourth paragraph of Article 90 of the Revised Penal
Code provides that the "crime of libel or other similar offenses shall prescribe in one year." In
determining when the one-year prescriptive period should be reckoned, reference must be made to
Article 91 of the same code which sets forth the rule on the computation of prescriptive periods of
offenses:

Computation of prescription of offenses.—The period of prescription shall commence to run

from the day on which the crime is discovered by the offended party, the authorities, or their
agents, and shall be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the accused being
convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him.

The aforequoted provision expressly states that prescriptive period shall be interrupted by the filing
of the complaint or information. The meaning of the phrase "shall be interrupted by the filing of the
complaint or information" in Article 91 has been settled in the landmark case of People v.
Olarte,58 where the Court settled divergent views as to the effect of filing a complaint with the
Municipal Trial Court for purposes of preliminary investigation on the prescriptive period of the
offense. The Court therein held that the filing of the complaint for purposes of preliminary
investigation interrupts the period of prescription of criminal responsibility. It explained thus:

…the filing of the complaint with the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the period of
prescription of the criminal responsibility, even if the court where the complaint or information
is filed can not try the case on its merits. Several reasons buttress this conclusion: first, the
text of Article 91 of the Revised Penal Code, in declaring that the period of prescription "shall
be interrupted by the filing of the complaint or information" without distinguishing whether the
complaint is filed in the court for preliminary examination or investigation merely, or for action
on the merits. Second, even if the court where the complaint or information is filed may only
proceed to investigate the case, its actuations already represent the initial step of the
proceedings against the offender. Third, it is unjust to deprive the injured party the right to
obtain vindication on account of delays that are not under his control. All that the victim of the
offense may do on his part to initiate the prosecution is to file the requisite complaint.

And it is no argument that Article 91 also expresses that the interrupted prescription "shall
commence to run again when such proceedings terminate without the accused being
convicted or acquitted," thereby indicating that the court in which the complaint or information
is filed must have the power to convict or acquit the accused. Precisely, the trial on the
merits usually terminates in conviction or acquittal, not otherwise. But it is in the court
conducting a preliminary investigation where the proceedings may terminate without
conviction or acquittal, if the court should discharge the accused because no prima
facie case had been shown.59

Thereafter, the Court in Francisco v. Court of Appeals60 clarified that the filing of the complaint with
the fiscal’s office also suspends the running of the prescriptive period of a crime:

As is a well-known fact, like the proceedings in the court conducting a preliminary investigation, a
proceeding in the Fiscal's Office may terminate without conviction or acquittal.

As Justice Claudio Teehankee has observed:

 To the writer's mind, these reasons logically call with equal force, for the express overruling
also of the doctrine in People vs. Tayco, 73 Phil. 509, (1941) that the filing of a complaint or
denuncia by the offended party with the City Fiscal's Office which is required by law to
conduct the preliminary investigation does not interrupt the period of prescription. In
chartered cities, criminal prosecution is generally initiated by the filing of the complaint or
denuncia with the city fiscal for preliminary investigation. In the case of provincial fiscals,
besides being empowered like municipal judges to conduct preliminary investigations, they
may even reverse actions of municipal judges with respect to charges triable by Courts of
First instance . . ..61

There is no conflict in the pronouncements of the Court in Olarte and Francisco as Brillante
erroneously suggests. Olarte laid down the doctrine that a complaint filed for purposes of preliminary
investigation tolls the running of the prescriptive period of a criminal offense. The criminal complaint
for libel in that case was filed, for the purpose of preliminary investigation, with the Justice of the
Peace Court in Pozorrubio, Pangasinan. Hence, in setting the doctrine, the Court referred to the
"filing of the complaint in the Municipal Court."62 The question of whether the doctrine laid down
in Olarte also applies to criminal complaints filed with the prosecutor’s office was settled
in Francisco. Specifically, the Court in Francisco amplified the Olarte doctrine when it categorically
ruled that the filing of a complaint with the fiscal’s office suspends the running of the prescriptive
period of a criminal offense.

Thus, the Court of Appeals committed no reversible error in ruling that the offense of libel had not yet
prescribed when the informations against Brillante and his co-accused were filed in the RTC-Manila
and RTC-Makati.

Neither did the appellate court err in sustaining Brillante’s conviction for libel.

Libel is defined under Article 353 of the Revised Penal Code as "a public and malicious imputation of
a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit or contempt of a natural or juridical person, or
to blacken the memory of one who is dead."

To be liable for libel, the following elements must be shown to exist: (a) the allegation of a
discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the
person defamed; and (d) existence of malice.63

There could be no dispute as to the existence of the first three elements of libel in the cases at bar.

An allegation made by a person against another is considered defamatory if it ascribes to the latter
the commission of a crime; the possession of a vice or defect, whether real or imaginary; or any act,
omission, condition, status or circumstance which tends to dishonor or discredit or put him in
contempt, or which tends to blacken the memory of one who is dead.64 Brillante’s statements during
the January 7, 1988 press conference and in the open letter explicitly referred to reprehensible acts
allegedly committed by Binay, Prudente and their associates, such as the use of goons to threaten
Binay’s opponents in the election and the plotting of Syjuco’s assassination.

The element of publication was likewise established. There is publication if the defamatory material
is communicated to a third person, i.e., a person other than the person to whom the defamatory
statement refers.65 In the cases at bar, it was proven that Brillante uttered defamatory statements
during the press conference attended by some fifty journalists and caused the open letter to be
published in several newspapers, namely, News Today, People’s Journal, Balita,
Malaya and Philippine Daily Inquirer.
Further, Brillante himself admitted that he named Binay, Prudente and their associates as the
persons who participated in the planning of the election-related terrorism and the assassination of
Syjuco not only in his open letter but also during the press conference.

Thus, the determination of Brillante’s culpability for libel hinges on the question of whether his
statements were made with malice.

Malice is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and
speaks not in response to duty, but merely to injure the reputation of the person defamed; it implies
an intention to do ulterior and unjustifiable harm.66 It is present when it is shown that the author of the
libelous remarks made such remarks with knowledge that it was false or with reckless disregard as
to the truth or falsity thereof.67

Article 354 of the Revised Penal Code states, as a general rule, that every defamatory imputation is
presumed to be malicious, even if true, if no good intention and justifiable motive is shown.68

As an exception to the rule, the presumption of malice is done away with when the defamatory
imputation qualifies as privileged communication.69

Privileged communication may either be absolutely privileged or conditionally privileged. The Court
in Orfanel v. People of the Philippines70 differentiated absolutely privileged communication from
conditionally privileged communication in this manner:

…A communication is said to be absolutely privileged when it is not actionable, even if its

author acted in bad faith. This class includes statements made by members of Congress in
the discharge of their functions as such, official communications made by public officers in
the performance of their duties, and allegations or statements made by the parties or their
counsel in their pleadings or motions or during the hearing of judicial proceedings, as well as
the answers given by witnesses in reply to questions propounded to them, in the course of
said proceedings, provided that said allegations or statements are relevant to the issues, and
the answers are responsive or pertinent to the questions propounded to said witnesses.
Upon the other hand, conditionally or qualifiedly privileged communications are those
which, although containing defamatory imputations, would not be actionable unless made
with malice or bad faith.71 (Emphasis supplied.)

Conditionally or qualifiedly privileged communications are those mentioned in, Article 354 of the
Revised Penal Code, to wit:

1. A private communication made by a person to another in the performance of any legal,

moral, or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative, or other official proceedings which are not of confidential nature, or of any
statement, report, or speech delivered in said proceedings, or of any act performed by public
officers in the exercise of their functions.72

Brillante claims that he wrote the open letter and uttered the statement complained of during the
January 7, 1988 press conference out of a social duty to disclose to all concerned the dangers to
which he and his fellow candidate Syjuco were exposed in view of the concerted actions of Binay
and Prudente.73 In effect, he argues that his defamatory statements and utterances fall under Article
354, No. 1 and are in the nature of privileged communication; hence, malice cannot be presumed
but must be established beyond reasonable doubt.
The Court is not convinced.

In order to prove that a statement falls within the purview of a qualifiedly privileged communication
under Article 354, No. 1, the following requisites must concur: (1) the person who made the
communication had a legal, moral, or social duty to make the communication, or at least, had an
interest to protect, which interest may either be his own or of the one to whom it is made; (2) the
communication is addressed to an officer or a board, or superior, having some interest or duty in the
matter, and who has the power to furnish the protection sought; and (3) the statements in the
communication are made in good faith and without malice.74

With respect to the first requisite, the Court in U.S. v. Cañete75 clarified that the interest sought to be
protected by the person making the communication need not be his own, but may refer to an interest
shared by the other members of society.

It may therefore be argued that Brillante’s statements, which according to him were made in order to
protect himself and Syjuco as Binay’s rivals in the 1988 elections, as well as to protect the electorate
from possible acts of terrorism by Binay, Prudente and their associates and from casting their votes
for undeserving candidates, satisfy the first requisite.

However, as the Solicitor General noted, Brillante’s statements were based merely on unconfirmed
intelligence reports. His belief in such intelligence reports hardly justifies the publication of such
serious imputations against his political rivals. As a journalist and as a candidate for public office,
Brillante should have known that it is necessary to further verify the truth or at least the reliability of
the intelligence reports before making them public. His hasty publication thereof negates the
existence of good faith and justifiable motives.

The pronouncement of the Court in U.S. v. Galeza76 is enlightening:

…Every communication is privileged which is made in good faith with a view to obtain
redress for some injury received or to prevent or punish some public abuse. The privilege
should not be abused. If such communication be made maliciously and without probable
cause, the pretense under which it is made, instead of furnishing a defense, will aggravate
the case of the defendant. And a party will be taken to have acted maliciously if he eagerly
seizes on some slight and frivolous matter, and without any inquiry into the merits, without
even satisfying himself that the account of the matter that has reached him is correct, hastily
concludes that a great public scandal has been brought to light which calls for the immediate
intervention of the people…. (Citations omitted.)77

It is, however, the absence of the second element of a privileged communication that unequivocally
negates the characterization of Brillante’s statements as privileged communication. The law requires
that for a defamatory imputation made out of a legal, moral or social duty to be privileged, such
statement must be communicated only to the person or persons who have some interest or duty in
the matter alleged, and who have the power to furnish the protection sought by the author of the
statement.

In the cases at bar, although the open letter was primarily addressed to then President Aquino, the
communication thereof was not limited to her alone. It was also published in several newspapers of
general circulation and was thus made known to the general public. Even if the interest sought to be
protected belongs not just to Brillante but to the public in general, certainly, the general public does
not have the power to remedy the alleged dangers sought to be prevented by Brillante in publishing
the open letter or in uttering similar statements during the January 7, 1988 press conference.
Brillante employed the shotgun approach to disseminate the information which essentially destroyed
the reputations of the complainants. His lack of selectivity is indicative of malice and is anathema to
his claim of privileged communication.

In Daez v. Court of Appeals,78 Daez was charged with libel for publishing a letter which accused the
Mayor of Meycauayan, Bulacan of corruption. The letter addressed to the Mayor was sent not only to
him but also to the Municipal Court, Municipal Council and Chief of Police of Meycauayan, Bulacan.
Daez contended therein that he was not guilty of libel because he was not motivated by malice or ill-
will in publishing the letter, but rather, he did it out of good intentions and a social duty to bring about
reforms in the administration of the municipal government of Meycauayan, Bulacan. The Court
affirmed his conviction for libel and held:

…The goodness of the intention is not always sufficient by itself to justify the publication of
an injurious fact; thus the goodness of the end is not a sufficient motive to warrant the
employment of illicit means to obtain it. The existence of justifiable motives is a question
which has to be decided by taking into consideration not only the intention of the author of
the publication but all the other circumstances of each particular case…. A communication
made bona fide upon any subject matter in which the party communicating has an interest,
or in reference to which he has a duty, is privileged, if made to a person having a
corresponding interest or duty, although it contained criminatory matter which without this
privilege would be slanderous and actionable. However, a written letter containing libelous
matter cannot be classified as privileged when it is published and circulated among the
public….As a rule, it is the right and duty of a citizen to make a complaint of any misconduct
on the part of public officials, which comes to his notice, to those charged with supervision
over them. Such a communication is qualifiedly privileged and the author is not guilty of libel.
The rule on privilege, however, imposes an additional requirement. Such complaints should
be addressed solely to some official having jurisdiction to inquire into the charges, or power
to redress the grievance or has some duty to perform or interest in connection therewith. In
the instant case, none of the persons to whom the letter was sent, was vested with the power
of supervision over the mayor or the authority to investigate the charges made against the
latter. (Citations omitted.)79

Thus, the Court agrees with the finding of the Court of Appeals that the statements made by Brillante
during the press conference and in the open letter do not qualify as privileged communication.

Indeed, the purpose of affording protection to privileged communication is to permit all interested
persons or citizens with grievances to freely communicate, with immunity, to the persons who could
furnish the protection asked for. However, to shield such privilege from abuse, the law itself requires
at all times that such petitions or communications shall be made in good faith or with justifiable
motives. If it is established that the communication was made maliciously or to persons who could
not furnish the protection sought, then the author thereof cannot seek protection under the law.80 As
was explained by the Court in Cañete:

The plainest principles of natural right and sound public policy require that the utmost
possible freedom should be accorded every citizen to complain to the supervising, removing
and appointing authorities of the misconduct of the public officials with whom he comes into
contact, and like considerations make it equally proper that members of a religious
organization should enjoy equal freedom in bringing to the attention of the church authorities
the misbehavior of their spiritual leaders or of fellow-members. Manifestly, the right must be
exercised in good faith, and may not with impunity be made the occasion for the venting of
private spite. It is subject to the limitation and restriction that such complaints must be made
to a functionary having authority to redress the evils complained of; that they must be made
in good faith and that they must not be actuated by malice.81
The Court in Lu Chu Sing v. Lu Tiong Gui82 clarified that the fact that a communication is privileged
does not mean that it is not actionable; the privileged character of the communication simply does
away with the presumption of malice, and the plaintiff has to prove the fact of malice in such case.

However, since the open letter and the statements uttered by Brillante during the January 7, 1988
press conference are defamatory and do not qualify as conditionally privileged communication,
malice is presumed and need not be proven separately from the existence of the defamatory
statement.83

Considering that all the elements of libel are present in the cases against Brillante, the Court finds
that no reversible error was committed by the Court of Appeals in affirming his convictions by the
RTC-Manila and RTC-Makati.

Neither does the Court find any basis in law to uphold Brillante’s proposition that his statements
made during the January 7, 1988 press conference and those in his open letter constitute "political
libel" and should thus be exempt from liability. Unfounded and malicious statements made by one
against another in the course of an election campaign, or by reason of differences in political views
are not per se constitutionally protected speech. Our laws on defamation84 provide for sanctions
against unjustified and malicious injury to a person’s reputation and honor. Although wider latitude is
given to defamatory utterances against public officials in connection with or relevant to their
performance of official duties,85 or against public figures in relation to matters of public interest
involving them,86 such defamatory utterances do not automatically fall within the ambit of
constitutionally protected speech. If the utterances are false, malicious or unrelated to a public
officer’s performance of his duties, the same may give rise to criminal and civil liability.

With respect to the third issue, the Court agrees with the appellate court that Brillante’s right to equal
protection of the laws was not violated when he was convicted of libel while his co-accused were
acquitted.

The equal protection clause is not absolute; rather, it permits of reasonable classification. If the
classification is characterized by real and substantial differences, one class may be treated
differently from another.87 It is sufficient that the law operates equally and uniformly on all persons
under similar circumstances or that all persons are treated in the same manner, the conditions not
being different, both in the privileges conferred and the liabilities imposed.88

As mentioned earlier, the cases against some of some of Brillante’s co-accused were dismissed
during the pendency of the cases before the trial courts.89 Still, some of his co-accused remained at
large,90 leaving the trial courts with no option but to archive the case as against them. Brillante’s
other co-accused were acquitted since, unlike Brillante, their guilt was not proven beyond
reasonable doubt.91

The foregoing clearly shows that Brillante was in a situation different from his co-accused. The
prosecution was able to prove beyond reasonable doubt his liability for libel, as the author of the
open letter and the source of the defamatory statements uttered against Binay, et al. during the
January 7, 1988 press conference.

As such, his conviction for libel was not violative of the equal protection clause.

The Court likewise finds no error on the part of the Court of Appeals in affirming the penalties
imposed upon him by the trial courts of Manila and Makati.
The penalty for libel by means of writing or similar means is prision correccional in its minimum and
medium periods, or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action
which may be brought by the offended party.92 It is likewise settled that a single defamatory
statement, if published several times, gives rise to as many offenses as there are publications. This
is the "multiple publication rule" which is followed in our jurisdiction, as explained in Soriano v.
Intermediate Appellate Court:93

We follow the "multiple publication" rule in the Philippines. Thus, in the cases of Montinola D.
Montalvo (34 Phil. 662, [1916]) and United States v. Sotto (36 Phil. 389 [1917]), this Court
ruled that each and every publication of the same libel constitutes a distinct offense. Stated
more succinctly for purposes of ascertaining jurisdiction under Art. 360 of the Revised Penal
Code, as amended, every time the same written matter is communicated such
communication is considered a distinct and separate publication of the libel.

We explained this as follows:

"The common law as to causes of action for tort arising out of a single publication was to the
effect that each communication of a written or printed matter was a distinct and separate
publication of a libel contained therein, giving rise to a separate cause of action. This rule
('multiple publication' rule) is still followed in several American jurisdictions, and seems to be
favored by the American Law Institute. Other jurisdictions have adopted the 'single
publication' rule which originated in New York, under which any single integrated publication,
such as one edition of a newspaper, book, or magazine, or one broadcast, is treated as a
unit, giving rise to only one cause of action, regardless of the number of times it is exposed
to different people. . .(50 Am. Jur. 2d 659 cited in Time, Inc. v. Reyes)" (39 SCRA 301, 313
[1971]).94

There is therefore no legal basis for Brillante’s claim that the penalties imposed upon him are
excessive.

The Court however agrees with Brillante that the awards of moral damages in the two cases to
private complainants Binay, Prudente and Baloloy are excessive considering the circumstances
surrounding the making and the publication of the defamatory statements. Accordingly, the award of
moral damages in favor of private complainant Prudente is reduced to a total of Five Hundred
Thousand Pesos (₱500,000.00) in Criminal Cases No. 89-69614, 89-69615, 89-69616 and 89-
69617; and the award of moral damages to private complainant Binay is reduced to Five Hundred
Thousand Pesos (₱500,000.00) in Criminal Cases No. 88-1410, 88-1411, 88-1412 and 89-721. The
award of moral damages to private complainant Baloloy in Criminal Case No. 88-3060 is likewise
reduced to Twenty Five Thousand Pesos (₱25,000.00).

WHEREFORE, in view of the foregoing, the petitions are GRANTED in part.

The Decision of the Court of Appeals in CA-G.R. CR No. 14475 is AFFIRMED with
the MODIFICATION that the award of moral damages to private complainant Dr. Nemesio Prudente
in Criminal Cases No. 89-69614, 89-69615, 89-69616 is reduced to Five Hundred Thousand Pesos
(₱500,000.00). The Decision of the Court of Appeals in CA G.R. CR No. 15174 is
likewise AFFIRMED with the MODIFICATION that the award of moral damages to private
complainants Atty. Jejomar Binay and Francisco Baloloy is reduced to Five Hundred Thousand
Pesos (₱500,000.00) in Criminal Cases No. 88-1410, 88-1411, 88-1412 and 89-721, and Twenty
Five Thousand Pesos (₱25,000.00) in Criminal Case No. 88-3060, respectively.

SO ORDERED.
C.) NOMINAL DAMAGES

[G.R. No. 107518. October 8, 1998]

PNOC SHIPPING AND TRANSPORT CORPORATION, petitioner,

vs. HONORABLE COURT OF APPEALS and MARIA EFIGENIA
FISHING CORPORATION, respondents.

DECISION
ROMERO, J.:

A party is entitled to adequate compensation only for such pecuniary loss actually
suffered and duly proved.[1] Indeed, basic is the rule that to recover actual damages, the
amount of loss must not only be capable of proof but must actually be proven with a
reasonable degree of certainty, premised upon competent proof or best evidence
obtainable of the actual amount thereof.[2] The claimant is duty-bound to point out
specific facts that afford a basis for measuring whatever compensatory damages are
borne.[3] A court cannot merely rely on speculations, conjectures, or guesswork as to the
fact and amount of damages[4] as well as hearsay[5] or uncorroborated testimony whose
truth is suspect.[6] Such are the jurisprudential precepts that the Court now applies in
resolving the instant petition.
The records disclose that in the early morning of September 21, 1977, the M/V
Maria Efigenia XV, owned by private respondent Maria Efigenia Fishing Corporation,
was navigating the waters near Fortune Island in Nasugbu, Batangas on its way to
Navotas, Metro Manila when it collided with the vessel Petroparcel which at the time
was owned by the Luzon Stevedoring Corporation (LSC).
After investigation was conducted by the Board of Marine Inquiry, Philippine Coast
Guard Commandant Simeon N. Alejandro rendered a decision finding the Petroparcel at
fault. Based on this finding by the Board and after unsuccessful demands on
petitioner,[7] private respondent sued the LSC and the Petroparcel captain, Edgardo
Doruelo, before the then Court of First Instance of Caloocan City, paying thereto the
docket fee of one thousand two hundred fifty-two pesos (P1,252.00) and the legal
research fee of two pesos (P2.00).[8] In particular, private respondent prayed for an
award of P692,680.00, allegedly representing the value of the fishing nets, boat
equipment and cargoes of M/V Maria Efigenia XV, with interest at the legal rate plus
25% thereof as attorneys fees.Meanwhile, during the pendency of the case, petitioner
PNOC Shipping and Transport Corporation sought to be substituted in place of LSC as
it had already acquired ownership of the Petroparcel.[9]
For its part, private respondent later sought the amendment of its complaint on the
ground that the original complaint failed to plead for the recovery of the lost value of the
hull of M/V Maria Efigenia XV.[10] Accordingly, in the amended complaint, private
respondent averred that M/V Maria Efigenia XV had an actual value of P800,000.00 and
that, after deducting the insurance payment of P200,000.00, the amount of P600,000.00
should likewise be claimed. The amended complaint also alleged that inflation resulting
from the devaluation of the Philippine peso had affected the replacement value of the
hull of the vessel, its equipment and its lost cargoes, such that there should be a
reasonable determination thereof. Furthermore, on account of the sinking of the vessel,
private respondent supposedly incurred unrealized profits and lost business
opportunities that would thereafter be proven.[11]
Subsequently, the complaint was further amended to include petitioner as a
defendant[12] which the lower court granted in its order of September 16, 1985. [13] After
petitioner had filed its answer to the second amended complaint, on February 5, 1987,
the lower court issued a pre-trial order[14] containing, among other things, a stipulations of
facts, to wit:
1. On 21 September 1977, while the fishing boat `M/V MARIA
EFIGENIA owned by plaintiff was navigating in the vicinity of Fortune
Island in Nasugbu, Batangas, on its way to Navotas, Metro Manila, said
fishing boat was hit by the LSCO tanker Petroparcel causing the former
to sink.
2. The Board of Marine Inquiry conducted an investigation of this
marine accident and on 21 November 1978, the Commandant of the
Philippine Coast Guard, the Honorable Simeon N. Alejandro, rendered
a decision finding the cause of the accident to be the reckless and
imprudent manner in which Edgardo Doruelo navigated the LSCO
Petroparcel and declared the latter vessel at fault.
3. On 2 April 1978, defendant Luzon Stevedoring Corporation
(LUSTEVECO), executed in favor of PNOC Shipping and Transport
Corporation a Deed of Transfer involving several tankers, tugboats,
barges and pumping stations, among which was the LSCO
Petroparcel.
4. On the same date on 2 April 1979 (sic), defendant PNOC STC again
entered into an Agreement of Transfer with co-defendant Lusteveco
whereby all the business properties and other assets appertaining to
the tanker and bulk oil departments including the motor tanker LSCO
Petroparcel of defendant Lusteveco were sold to PNOC STC.
5. The aforesaid agreement stipulates, among others, that PNOC-STC
assumes, without qualifications, all obligations arising from and by
virtue of all rights it obtained over the LSCO `Petroparcel.
6. On 6 July 1979, another agreement between defendant
LUSTEVECO and PNOC-STC was executed wherein Board of Marine
 Inquiry Case No. 332 (involving the sea accident of 21 September
1977) was specifically identified and assumed by the latter.
7. On 23 June 1979, the decision of Board of Marine Inquiry was
affirmed by the Ministry of National Defense, in its decision dismissing
the appeal of Capt. Edgardo Doruelo and Chief mate Anthony Estenzo
of LSCO `Petroparcel.
8. LSCO `Petroparcel is presently owned and operated by PNOC-STC
and likewise Capt. Edgardo Doruelo is still in their employ.
9. As a result of the sinking of M/V Maria Efigenia caused by the
reckless and imprudent manner in which LSCO Petroparcel was
navigated by defendant Doruelo, plaintiff suffered actual damages by
the loss of its fishing nets, boat equipments (sic) and cargoes, which
went down with the ship when it sank the replacement value of which
should be left to the sound discretion of this Honorable Court.
After trial, the lower court[15] rendered on November 18, 1989 its decision disposing
of Civil Case No. C-9457 as follows:
WHEREFORE, and in view of the foregoing, judgment is hereby
rendered in favor of the plaintiff and against the defendant PNOC
Shipping & Transport Corporation, to pay the plaintiff:

a. The sum of P6,438,048.00 representing the value of the fishing boat

with interest from the date of the filing of the complaint at the rate of
6% per annum;

b. The sum of P50,000.00 as and for attorneys fees; and

c. The costs of suit.

The counterclaim is hereby DISMISSED for lack of merit. Likewise, the

case against defendant Edgardo Doruelo is hereby DISMISSED, for
lack of jurisdiction.
SO ORDERED.
In arriving at the above disposition, the lower court cited the evidence presented by
private respondent consisting of the testimony of its general manager and sole witness,
Edilberto del Rosario.Private respondents witness testified that M/V Maria Efigenia
XV was owned by private respondent per Exhibit A, a certificate of ownership issued by
the Philippine Coast Guard showing that M/V Maria Efigenia XV was a wooden motor
boat constructed in 1965 with 128.23 gross tonnage. According to him, at the time the
vessel sank, it was then carrying 1,060 tubs (baeras) of assorted fish the value of which
was never recovered. Also lost with the vessel were two cummins engines (250
horsepower), radar, pathometer and compass. He further added that with the loss of his
flagship vessel in his fishing fleet of fourteen (14) vessels, he was constrained to hire
the services of counsel whom he paid P10,000 to handle the case at the Board of
Marine Inquiry and P50,000.00 for commencing suit for damages in the lower court.
As to the award of P6,438,048.00 in actual damages, the lower court took into
account the following pieces of documentary evidence that private respondent proffered
during trial:
(a) Exhibit A certified xerox copy of the certificate of ownership
of M/V Maria Efigenia XV;
(b) Exhibit B a document titled Marine Protest executed by Delfin
Villarosa, Jr. on September 22, 1977 stating that as a result of
the collision, the M/V Maria Efigenia XV sustained a hole at its
left side that caused it to sink with its cargo of
1,050 baeras valued at P170,000.00;
(c) Exhibit C a quotation for the construction of a 95-footer trawler
issued by Isidoro A. Magalong of I. A. Magalong Engineering
and Construction on January 26, 1987 to Del Rosario showing
that construction of such trawler would cost P2,250,000.00;
(d) Exhibit D pro forma invoice No. PSPI-05/87-NAV issued by E.D.
Daclan of Power Systems, Incorporated on January 20, 1987
to Del Rosario showing that two (2) units of CUMMINS Marine
Engine model N855-M, 195 bhp. at 1800 rpm. would
cost P1,160,000.00;
(e) Exhibit E quotation of prices issued by Scan Marine Inc. on
January 20, 1987 to Del Rosario showing that a unit of Furuno
Compact Daylight Radar, Model FR-604D, would
cost P100,000.00 while a unit of Furuno Color Video Sounder,
Model FCV-501 would cost P45,000.00 so that the two units
would cost P145,000.00;
(f) Exhibit F quotation of prices issued by Seafgear Sales, Inc. on
January 21, 1987 to Del Rosario showing that two (2) rolls of
nylon rope (5 cir. X 300fl.) would cost P140,000.00; two (2)
rolls of nylon rope (3 cir. X 240fl.), P42,750.00; one (1)
binocular (7 x 50), P1,400.00, one (1) compass (6), P4,000.00
and 50 pcs. of floats, P9,000.00 or a total of P197, 150.00;
(g) Exhibit G retainer agreement between Del Rosario and F.
Sumulong Associates Law Offices stipulating an acceptance
 fee of P5,000.00, per appearance fee of P400.00, monthly
retainer of P500.00, contingent fee of 20% of the total amount
recovered and that attorneys fee to be awarded by the court
should be given to Del Rosario; and
(h) Exhibit H price quotation issued by Seafgear Sales, Inc. dated
April 10, 1987 to Del Rosario showing the cost of poly nettings
as: 50 rolls of 400/18 3kts. 100md x 100mtrs., P70,000.00; 50
rolls of 400/18 5kts. 100md x 100mtrs., P81,500.00; 50 rolls of
400/18 8kts. 100md x 100mtrs., P116,000.00, and 50 rolls of
400/18 10kts. 100md x 100mtrs., P146,500 and banera(tub)
at P65.00 per piece or a total of P414,065.00
The lower court held that the prevailing replacement value of P6,438,048.00 of the
fishing boat and all its equipment would regularly increase at 30% every year from the
date the quotations were given.
On the other hand, the lower court noted that petitioner only presented Lorenzo
Lazaro, senior estimator at PNOC Dockyard & Engineering Corporation, as sole witness
and it did not bother at all to offer any documentary evidence to support its
position. Lazaro testified that the price quotations submitted by private respondent were
excessive and that as an expert witness, he used the quotations of his suppliers in
making his estimates. However, he failed to present such quotations of prices from his
suppliers, saying that he could not produce a breakdown of the costs of his estimates as
it was a sort of secret scheme. For this reason, the lower court concluded:
Evidently, the quotation of prices submitted by the plaintiff relative to
the replacement value of the fishing boat and its equipments in the
tune of P6,438,048.00 which were lost due to the recklessness and
imprudence of the herein defendants were not rebutted by the latter
with sufficient evidence. The defendants through their sole witness
Lorenzo Lazaro relied heavily on said witness bare claim that the
amount afore-said is excessive or bloated, but they did not bother at all
to present any documentary evidence to substantiate such
claim. Evidence to be believed, must not only proceed from the mouth
of the credible witness, but it must be credible in itself. (Vda. de
Bonifacio vs. B. L. T. Bus Co., Inc. L-26810, August 31, 1970).
Aggrieved, petitioner filed a motion for the reconsideration of the lower courts
decision contending that: (1) the lower court erred in holding it liable for damages; that
the lower court did not acquire jurisdiction over the case by paying only P1,252.00 as
docket fee; (2) assuming that plaintiff was entitled to damages, the lower court erred in
awarding an amount greater than that prayed for in the second amended complaint; and
(3) the lower court erred when it failed to resolve the issues it had raised in its
memorandum.[16] Petitioner likewise filed a supplemental motion for reconsideration
expounding on whether the lower court acquired jurisdiction over the subject matter of
the case despite therein plaintiffs failure to pay the prescribed docket fee. [17]
On January 25, 1990, the lower court declined reconsideration for lack of
merit.[18] Apparently not having received the order denying its motion for reconsideration,
petitioner still filed a motion for leave to file a reply to private respondents opposition to
said motion.[19] Hence, on February 12, 1990, the lower court denied said motion for
leave to file a reply on the ground that by the issuance of the order of January 25, 1990,
said motion had become moot and academic.[20]
Unsatisfied with the lower courts decision, petitioner elevated the matter to the
Court of Appeals which, however, affirmed the same in toto on October 14, 1992.[21] On
petitioners assertion that the award of P6,438,048.00 was not convincingly proved by
competent and admissible evidence, the Court of Appeals ruled that it was not
necessary to qualify Del Rosario as an expert witness because as the owner of the lost
vessel, it was well within his knowledge and competency to identify and determine the
equipment installed and the cargoes loaded on the vessel. Considering the
documentary evidence presented as in the nature of market reports or quotations, trade
journals, trade circulars and price lists, the Court of Appeals held, thus:
Consequently, until such time as the Supreme Court categorically rules
on the admissibility or inadmissibility of this class of evidence, the
reception of these documentary exhibits (price quotations) as evidence
rests on the sound discretion of the trial court. In fact, where the lower
court is confronted with evidence which appears to be of doubtful
admissibility, the judge should declare in favor of admissibility rather
than of non-admissibility (The Collector of Palakadhari, 124 [1899], p.
43, cited in Francisco, Revised Rules of Court, Evidence, Volume VII,
Part I, 1990 Edition, p. 18). Trial courts are enjoined to observe the
strict enforcement of the rules of evidence which crystallized through
constant use and practice and are very useful and effective aids in the
search for truth and for the effective administration of justice. But in
connection with evidence which may appear to be of doubtful relevancy
or incompetency or admissibility, it is the safest policy to be liberal, not
rejecting them on doubtful or technical grounds, but admitting them
unless plainly irrelevant, immaterial or incompetent, for the reason that
their rejection places them beyond the consideration of the court. If
they are thereafter found relevant or competent, can easily be
remedied by completely discarding or ignoring them. (Banaria vs.
Banaria, et al., C.A. No. 4142, May 31, 1950; cited in Francisco,
Supra). [Underscoring supplied].
Stressing that the alleged inadmissible documentary exhibits were never
satisfactorily rebutted by appellants own sole witness in the person of Lorenzo Lazaro,
the appellate court found that petitioner ironically situated itself in an inconsistent
posture by the fact that its own witness, admittedly an expert one, heavily relies on the
very same pieces of evidence (price quotations) appellant has so vigorously objected to
as inadmissible evidence. Hence, it concluded:
x x x. The amount of P6,438,048.00 was duly established at the trial on
the basis of appellees documentary exhibits (price quotations) which
stood uncontroverted, and which already included the amount by way
of adjustment as prayed for in the amended complaint. There was
therefore no need for appellee to amend the second amended
complaint in so far as to the claim for damages is concerned to
conform with the evidence presented at the trial. The amount
of P6,438,048.00 awarded is clearly within the relief prayed for in
appellees second amended complaint.
On the issue of lack of jurisdiction, the respondent court held that following the
ruling in Sun Insurance Ltd. v. Asuncion,[22] the additional docket fee that may later on be
declared as still owing the court may be enforced as a lien on the judgment.
Hence, the instant recourse.
In assailing the Court of Appeals decision, petitioner posits the view that the award
of P6,438,048 as actual damages should have been in light of these considerations,
namely: (1) the trial court did not base such award on the actual value of the vessel and
its equipment at the time of loss in 1977; (2) there was no evidence on extraordinary
inflation that would warrant an adjustment of the replacement cost of the lost vessel,
equipment and cargo; (3) the value of the lost cargo and the prices quoted in
respondents documentary evidence only amount to P4,336,215.00; (4) private
respondents failure to adduce evidence to support its claim for unrealized profit and
business opportunities; and (5) private respondents failure to prove the extent and
actual value of damages sustained as a result of the 1977 collision of the vessels. [23]
Under Article 2199 of the Civil Code, actual or compensatory damages are those
awarded in satisfaction of, or in recompense for, loss or injury sustained. They proceed
from a sense of natural justice and are designed to repair the wrong that has been
done, to compensate for the injury inflicted and not to impose a penalty. [24] In actions
based on torts or quasi-delicts, actual damages include all the natural and probable
consequences of the act or omission complained of. [25] There are two kinds of actual or
compensatory damages: one is the loss of what a person already possesses (dao
emergente), and the other is the failure to receive as a benefit that which would have
pertained to him (lucro cesante).[26] Thus:
Where goods are destroyed by the wrongful act of the defendant the
plaintiff is entitled to their value at the time of destruction, that is,
normally, the sum of money which he would have to pay in the market
for identical or essentially similar goods, plus in a proper case
damages for the loss of use during the period before replacement. In
other words, in the case of profit-earning chattels, what has to be
assessed is the value of the chattel to its owner as a going concern at
 the time and place of the loss, and this means, at least in the case of
ships, that regard must be had to existing and pending engagements.x
x x.
x x x. If the market value of the ship reflects the fact that it is in any
case virtually certain of profitable employment, then nothing can be
added to that value in respect of charters actually lost, for to do so
would be pro tanto to compensate the plaintiff twice over. On the other
hand, if the ship is valued without reference to its actual future
engagements and only in the light of its profit-earning potentiality, then
it may be necessary to add to the value thus assessed the anticipated
profit on a charter or other engagement which it was unable to
fulfill. What the court has to ascertain in each case is the `capitalised
value of the vessel as a profit-earning machine not in the abstract but
in view of the actual circumstances, without, of course, taking into
account considerations which were too remote at the time of the
loss. [Underscoring supplied].
[27]

As stated at the outset, to enable an injured party to recover actual or compensatory

damages, he is required to prove the actual amount of loss with reasonable degree of
certainty premised upon competent proof and on the best evidence available. [28] The
burden of proof is on the party who would be defeated if no evidence would be
presented on either side. He must establish his case by a preponderance of evidence
which means that the evidence, as a whole, adduced by one side is superior to that of
the other.[29] In other words, damages cannot be presumed and courts, in making an
award must point out specific facts that could afford a basis for measuring whatever
compensatory or actual damages are borne.[30]
In this case, actual damages were proven through the sole testimony of private
respondents general manager and certain pieces of documentary evidence. Except for
Exhibit B where the value of the 1,050 baeras of fish were pegged at their September
1977 value when the collision happened, the pieces of documentary evidence proffered
by private respondent with respect to items and equipment lost show similar items and
equipment with corresponding prices in early 1987 or approximately ten (10) years after
the collision. Noticeably, petitioner did not object to the exhibits in terms of the time
index for valuation of the lost goods and equipment. In objecting to the same pieces of
evidence, petitioner commented that these were not duly authenticated and that the
witness (Del Rosario) did not have personal knowledge on the contents of the writings
and neither was he an expert on the subjects thereof. [31] Clearly ignoring petitioners
objections to the exhibits, the lower court admitted these pieces of evidence and gave
them due weight to arrive at the award of P6,438,048.00 as actual damages.
The exhibits were presented ostensibly in the course of Del Rosarios
testimony. Private respondent did not present any other witnesses especially those
whose signatures appear in the price quotations that became the bases of the award.
We hold, however, that the price quotations are ordinary private writings which under
the Revised Rules of Court should have been proffered along with the testimony of the
authors thereof. Del Rosario could not have testified on the veracity of the contents of
the writings even though he was the seasoned owner of a fishing fleet because he was
not the one who issued the price quotations. Section 36, Rule 130 of the Revised Rules
of Court provides that a witness can testify only to those facts that he knows of his
personal knowledge.
For this reason, Del Rosarios claim that private respondent incurred losses in the
total amount of P6,438,048.00 should be admitted with extreme caution considering
that, because it was a bare assertion, it should be supported by independent
evidence. Moreover, because he was the owner of private respondent
corporation[32] whatever testimony he would give with regard to the value of the lost
vessel, its equipment and cargoes should be viewed in the light of his self-interest
therein. We agree with the Court of Appeals that his testimony as to the equipment
installed and the cargoes loaded on the vessel should be given credence [33] considering
his familiarity thereto. However, we do not subscribe to the conclusion that
his valuation of such equipment, cargo and the vessel itself should be accepted as
gospel truth.[34] We must, therefore, examine the documentary evidence presented to
support Del Rosarios claim as regards the amount of losses.
The price quotations presented as exhibits partake of the nature of hearsay
evidence considering that the persons who issued them were not presented as
witnesses.[35] Any evidence, whether oral or documentary, is hearsay if its probative
value is not based on the personal knowledge of the witness but on the knowledge of
another person who is not on the witness stand. Hearsay evidence, whether objected to
or not, has no probative value unless the proponent can show that the evidence falls
within the exceptions to the hearsay evidence rule.[36] On this point, we believe that the
exhibits do not fall under any of the exceptions provided under Sections 37 to 47 of Rule
130.[37]
It is true that one of the exceptions to the hearsay rule pertains to commercial lists
and the like under Section 45, Rule 130 of the Revised Rules on Evidence. In this
respect, the Court of Appeals considered private respondents exhibits as commercial
lists. It added, however, that these exhibits should be admitted in evidence until such
time as the Supreme Court categorically rules on the admissibility or inadmissibility of
this class of evidence because the reception of these documentary exhibits (price
quotations) as evidence rests on the sound discretion of the trial court. [38] Reference to
Section 45, Rule 130, however, would show that the conclusion of the Court of Appeals
on the matter was arbitrarily arrived at. This rule states:
Commercial lists and the like. Evidence of statements of matters of
interest to persons engaged in an occupation contained in a list,
register, periodical, or other published compilation is admissible as
tending to prove the truth of any relevant matter so stated if that
compilation is published for use by persons engaged in that occupation
and is generally used and relied upon by them there.
 Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1) it is
a statement of matters of interest to persons engaged in an occupation; (2) such
statement is contained in a list, register, periodical or other published compilation; (3)
said compilation is published for the use of persons engaged in that occupation, and
(4) it is generally used and relied upon by persons in the same occupation.
Based on the above requisites, it is our considered view that Exhibits B, C, D, E, F
and H[39] are not commercial lists for these do not belong to the category of other
published compilations under Section 45 aforequoted. Under the principle of ejusdem
generis, (w)here general words follow an enumeration of persons or things, by words of
a particular and specific meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to persons or things of the same kind
or class as those specifically mentioned.[40] The exhibits mentioned are mere price
quotations issued personally to Del Rosario who requested for them from dealers of
equipment similar to the ones lost at the collision of the two vessels. These are not
published in any list, register, periodical or other compilation on the relevant subject
matter. Neither are these market reports or quotations within the purview of commercial
lists as these are not standard handbooks or periodicals, containing data of everyday
professional need and relied upon in the work of the occupation. [41] These are simply
letters responding to the queries of Del Rosario. Thus, take for example Exhibit D which
reads:

January 20, 1987

PROFORMA INVOICE NO. PSPI-05/87-NAV

MARIA EFIGINIA FISHING CORPORATION

Navotas, Metro Manila

Attention: MR. EDDIE DEL ROSARIO

Gentlemen:

In accordance to your request, we are pleased to quote our Cummins

Marine Engine, to wit.

Two (2) units CUMMINS Marine Engine model N855-M, 195 bhp.
at 1800 rpm., 6-cylinder in-line, 4-stroke cycle, natural
aspirated, 5 in. x 6 in. bore and stroke, 855 cu. In.
displacement, keel-cooled, electric starting coupled
with Twin-Disc Marine gearbox model MG-509, 4.5:1
reduction ratio, includes oil cooler, companion flange,
manual and standard accessories as per attached
sheet.
 Price FOB Manila - - - - - - - - - - - - - - -
P 580,000.00/unit
Total FOB Manila - - - - - - - - - - - - - - - P 1,160,000.00
vvvvvvvvv

T E R M S : CASH

DELIVERY : 60-90 days from date of order.

VALIDITY : Subject to our final confirmation.

WARRANTY : One (1) full year against factory defect.

Very truly yours,

POWER SYSTEMS, INC.

(Sgd.)
E. D. Daclan
To be sure, letters and telegrams are admissible in evidence but these are,
however, subject to the general principles of evidence and to various rules relating to
documentary evidence.[42] Hence, in one case, it was held that a letter from an
automobile dealer offering an allowance for an automobile upon purchase of a new
automobile after repairs had been completed, was not a price current or commercial list
within the statute which made such items presumptive evidence of the value of the
article specified therein. The letter was not admissible in evidence as a commercial list
even though the clerk of the dealer testified that he had written the letter in due course
of business upon instructions of the dealer.[43]
But even on the theory that the Court of Appeals correctly ruled on
the admissibility of those letters or communications when it held that unless plainly
irrelevant, immaterial or incompetent, evidence should better be admitted rather than
rejected on doubtful or technical grounds,[44] the same pieces of evidence, however,
should not have been given probative weight. This is a distinction we wish to point
out. Admissibility of evidence refers to the question of whether or not the circumstance
(or evidence) is to considered at all.[45] On the other hand, the probative value of
evidence refers to the question of whether or not it proves an issue. [46] Thus, a letter may
be offered in evidence and admitted as such but its evidentiary weight depends upon
the observance of the rules on evidence.Accordingly, the author of the letter should be
presented as witness to provide the other party to the litigation the opportunity to
question him on the contents of the letter. Being mere hearsay evidence, failure to
present the author of the letter renders its contents suspect. As earlier stated, hearsay
evidence, whether objected to or not, has no probative value. Thus:
 The courts differ as to the weight to be given to hearsay evidence
admitted without objection. Some hold that when hearsay has been
admitted without objection, the same may be considered as any other
properly admitted testimony. Others maintain that it is entitled to no
more consideration than if it had been excluded.
The rule prevailing in this jurisdiction is the latter one. Our Supreme
Court held that although the question of admissibility of evidence can
not be raised for the first time on appeal, yet if the evidence is hearsay
it has no probative value and should be disregarded whether objected
to or not. `If no objection is made quoting Jones on Evidence - `it
(hearsay) becomes evidence by reason of the want of such objection
even though its admission does not confer upon it any new attribute in
point of weight. Its nature and quality remain the same, so far as its
intrinsic weakness and incompetency to satisfy the mind are
concerned, and as opposed to direct primary evidence, the latter
always prevails.
The failure of the defense counsel to object to the presentation of
incompetent evidence, like hearsay evidence or evidence that violates
the rules of res inter alios acta, or his failure to ask for the striking out
of the same does not give such evidence any probative value. But
admissibility of evidence should not be equated with weight of
evidence. Hearsay evidence whether objected to or not has no
probative value. [47]

Accordingly, as stated at the outset, damages may not be awarded on the basis of
hearsay evidence.[48]
Nonetheless, the non-admissibility of said exhibits does not mean that it totally
deprives private respondent of any redress for the loss of its vessel. This is because
in Lufthansa German Airlines v. Court of Appeals,[49] the Court said:
In the absence of competent proof on the actual damage suffered,
private respondent is `entitled to nominal damages which, as the law
says, is adjudicated in order that a right of the plaintiff, which has been
violated or invaded by defendant, may be vindicated and recognized,
and not for the purpose of indemnifying the plaintiff for any loss
suffered. [Underscoring supplied].
Nominal damages are awarded in every obligation arising from law, contracts,
quasi-contracts, acts or omissions punished by law, and quasi-delicts, or in every case
where property right has been invaded.[50] Under Article 2223 of the Civil Code, (t)he
adjudication of nominal damages shall preclude further contest upon the right involved
and all accessory questions, as between the parties to the suit, or their respective heirs
and assigns.
 Actually, nominal damages are damages in name only and not in fact. Where these
are allowed, they are not treated as an equivalent of a wrong inflicted but simply in
recognition of the existence of a technical injury.[51] However, the amount to be awarded
as nominal damages shall be equal or at least commensurate to the injury sustained by
private respondent considering the concept and purpose of such damages. [52] The
amount of nominal damages to be awarded may also depend on certain special
reasons extant in the case.[53]
Applying now such principles to the instant case, we have on record the fact that
petitioners vessel Petroparcel was at fault as well as private respondents complaint
claiming the amount of P692,680.00 representing the fishing nets, boat equipment and
cargoes that sunk with the M/V Maria Efigenia XV. In its amended complaint, private
respondent alleged that the vessel had an actual value of P800,000.00 but it had been
paid insurance in the amount of P200,000.00 and, therefore, it claimed only the amount
of P600,000.00. Ordinarily, the receipt of insurance payments should diminish the total
value of the vessel quoted by private respondent in his complaint considering that such
payment is causally related to the loss for which it claimed compensation. This Court
believes that such allegations in the original and amended complaints can be the basis
for determination of a fair amount of nominal damages inasmuch as a complaint alleges
the ultimate facts constituting the plaintiff's cause of action. [54] Private respondent should
be bound by its allegations on the amount of its claims.
With respect to petitioners contention that the lower court did not acquire jurisdiction
over the amended complaint increasing the amount of damages claimed
to P600,000.00, we agree with the Court of Appeals that the lower court acquired
jurisdiction over the case when private respondent paid the docket fee corresponding to
its claim in its original complaint. Its failure to pay the docket fee corresponding to its
increased claim for damages under the amended complaint should not be considered
as having curtailed the lower courts jurisdiction. Pursuant to the ruling in Sun Insurance
Office, Ltd. (SIOL) v. Asuncion,[55] the unpaid docket fee should be considered as a
lien on the judgment even though private respondent specified the amount
of P600,000.00 as its claim for damages in its amended complaint.
Moreover, we note that petitioner did not question at all the jurisdiction of the lower
court on the ground of insufficient docket fees in its answers to both the amended
complaint and the second amended complaint. It did so only in its motion for
reconsideration of the decision of the lower court after it had received an adverse
decision. As this Court held in Pantranco North Express, Inc. v. Court of
Appeals,[56] participation in all stages of the case before the trial court, that included
invoking its authority in asking for affirmative relief, effectively barred petitioner by
estoppel from challenging the courts jurisdiction. Notably, from the time it filed its
answer to the second amended complaint on April 16, 1985, [57] petitioner did not
question the lower courts jurisdiction. It was only on December 29, 1989[58] when it filed
its motion for reconsideration of the lower courts decision that petitioner raised the
question of the lower courts lack of jurisdiction. Petitioner thus foreclosed its right to
raise the issue of jurisdiction by its own inaction.
 WHEREFORE, the challenged decision of the Court of Appeals dated October 14,
1992 in CA-G. R. CV No. 26680 affirming that of the Regional Trial Court of Caloocan
City, Branch 121, is hereby MODIFIED insofar as it awarded actual damages to private
respondent Maria Efigenia Fishing Corporation in the amount of P6,438,048.00 for lack
of evidentiary bases therefor. Considering the fact, however, that: (1) technically
petitioner sustained injury but which, unfortunately, was not adequately and properly
proved, and (2) this case has dragged on for almost two decades, we believe that an
award of Two Million (P2,000,000.00)[59] in favor of private respondent as and for nominal
damages is in order.
No pronouncement as to costs.
SO ORDERED.

G.R. No. 95536 March 23, 1992

ANICETO G. SALUDO, JR., MARIA SALVACION SALUDO, LEOPOLDO G. SALUDO and

SATURNINO G. SALUDO, petitioners,
vs.
HON. COURT OF APPEALS, TRANS WORLD AIRLINES, INC., and PHILIPPINE AIRLINES,
INC., respondents.

REGALADO, J.:

Assailed in this petition for review on certiorari is the decision in CA-G.R. CV No. 20951 of
respondent Court of Appeals1 which affirmed the decision of the trial court2 dismissing for lack of
evidence herein petitioners' complaint in Civil Case No R-2101 of the then Court of First Instance of
Southern Leyte, Branch I.

The facts, as recounted by the court a quo and adopted by respondent court after "considering the
evidence on record," are as follows:

After the death of plaintiffs' mother, Crispina Galdo Saludo, in Chicago Illinois, (on)
October 23, 1976 (Exh. A), Pomierski and Son Funeral Home of Chicago, made the
necessary preparations and arrangements for the shipment, of the remains from
Chicago to the Philippines. The funeral home had the remains embalmed (Exb. D)
and secured a permit for the disposition of dead human body on October 25, 1976
(Exh. C), Philippine Vice Consul in Chicago, Illinois, Bienvenido M. Llaneta, at 3:00
p.m. on October 26, 1976 at the Pomierski & Son Funeral Home, sealed the shipping
case containing a hermetically sealed casket that is airtight and waterproof wherein
was contained the remains of Crispina Saludo Galdo (sic) (Exb. B). On the same
date, October 26, 1976, Pomierski brought the remains to C.M.A.S. (Continental
Mortuary Air Services) at the airport (Chicago) which made the necessary
arrangements such as flights, transfers, etc.; C.M.A.S. is a national service used by
undertakers to throughout the nation (U.S.A.), they furnish the air pouch which the
casket is enclosed in, and they see that the remains are taken to the proper air
freight terminal (Exh. 6-TWA). C.M.A.S. booked the shipment with PAL thru the
carrier's agent Air Care International, with Pomierski F.H. as the shipper and Mario
(Maria) Saludo as the consignee. PAL Airway Bill No. 079-01180454 Ordinary was
issued wherein the requested routing was from Chicago to San Francisco on board
TWA Flight 131 of October 27, 1976 and from San Francisco to Manila on board PAL
Flight No. 107 of the same date, and from Manila to Cebu on board PAL Flight 149 of
October 29, 1976 (See Exh. E., Also Exh. 1-PAL).

In the meantime, plaintiffs Maria Salvacion Saludo and Saturnino Saludo, thru a
travel agent, were booked with United Airlines from Chicago to California, and with
PAL from California to Manila. She then went to the funeral director of Pomierski
Funeral Home who had her mother's remains and she told the director that they were
booked with United Airlines. But the director told her that the remains were booked
with TWA flight to California. This upset her, and she and her brother had to change
reservations from UA to the TWA flight after she confirmed by phone that her
mother's remains should be on that TWA flight. They went to the airport and watched
from the look-out area. She saw no body being brought. So, she went to the TWA
counter again, and she was told there was no body on that flight. Reluctantly, they
took the TWA flight upon assurance of her cousin, Ani Bantug, that he would look
into the matter and inform her about it on the plane or have it radioed to her. But no
confirmation from her cousin reached her that her mother was on the West Coast.

Upon arrival at San Francisco at about 5:00 p.m., she went to the TWA counter there
to inquire about her mother's remains. She was told they did not know anything about
it.

She then called Pomierski that her mother's remains were not at the West Coast
terminal, and Pomierski immediately called C.M.A.S., which in a matter of 10 minutes
informed him that the remains were on a plane to Mexico City, that there were two
bodies at the terminal, and somehow they were switched; he relayed this information
to Miss Saludo in California; later C.M.A.S. called and told him they were sending the
remains back to California via Texas (see Exh. 6-TWA).

It-turned out that TWA had carried a shipment under PAL Airway Bill No. 079-ORD-
01180454 on TWA Flight 603 of October 27, 1976, a flight earlier than TWA Flight
131 of the same date. TWA delivered or transferred the said shipment said to contain
human remains to PAL at 1400H or 2:00 p.m. of the same date, October 27, 1976
(Bee Exh. 1- TWA). "Due to a switch(ing) in Chicago", this shipment was withdrawn
from PAL by CMAS at 1805H (or 6:05 p.m.) of the same date, October 27 (Exh. 3-
PAL, see Exh. 3-a-PAL).

What transpired at the Chicago (A)irport is explained in a memo or incident report by

Pomierski (Exh. 6-TWA) to Pomierski's lawyers who in turn referred to said' memo
and enclosed it in their (Pomierski's lawyers) answer dated July 18, 1981 to herein
plaintiff's counsel (See Exh. 5-TWA). In that memo or incident report (Exh. 6-TWA), it
is stated that the remains (of Crispina Saludo) were taken to CMAS at the airport;
that there were two bodies at the (Chicago Airport) terminal, and somehow they were
switched, that the remains (of Crispina Saludo) were on a plane to Mexico City; that
CMAS is a national service used by undertakers throughout the nation (U.S.A.),
makes all the necessary arrangements, such as flights, transfers, etc., and see(s) to
it that the remains are taken to the proper air freight terminal.

The following day October 28, 1976, the shipment or remains of Crispina Saludo
arrived (in) San Francisco from Mexico on board American Airlines. This shipment
was transferred to or received by PAL at 1945H or 7:45 p.m. (Exh. 2-PAL, Exh. 2-a-
 PAL). This casket bearing the remains of Crispina Saludo, which was mistakenly
sent to Mexico and was opened (there), was resealed by Crispin F. Patagas for
shipment to the Philippines (See Exh. B-1). The shipment was immediately loaded
on PAL flight for Manila that same evening and arrived (in) Manila on October 30,
1976, a day after its expected arrival on October 29, 1976.3

In a letter dated December 15, 1976,4 petitioners' counsel informed private respondent Trans World
Airlines (TWA) of the misshipment and eventual delay in the delivery of the cargo containing the
remains of the late Crispin Saludo, and of the discourtesy of its employees to petitioners Maria
Salvacion Saludo and Saturnino Saludo. In a separate letter on June 10, 1977 addressed to co-
respondent Philippine Airlines (PAL),5 petitioners stated that they were holding PAL liable for said
delay in delivery and would commence judicial action should no favorable explanation be given.

Both private respondents denied liability. Thus, a damage suit6 was filed by petitioners before the
then Court of First Instance, Branch III, Leyte, praying for the award of actual damages of
P50,000.00, moral damages of P1,000,000.00, exemplary damages, attorney's fees and costs of
suit.

As earlier stated, the court below absolved the two respondent airlines companies of liability. The
Court of Appeals affirmed the decision of the lower court in toto, and in a subsequent
resolution,7 denied herein petitioners' motion for reconsideration for lack of merit.

In predictable disagreement and dissatisfaction with the conclusions reached by respondent

appellate court, petitioners now urge this Court to review the appealed decision and to resolve
whether or not (1) the delay in the delivery of the casketed remains of petitioners' mother was due to
the fault of respondent airline companies, (2) the one-day delay in the delivery of the same
constitutes contractual breach as would entitle petitioners to damages, (3) damages are recoverable
by petitioners for the humiliating, arrogant and indifferent acts of the employees of TWA and PAL,
and (4) private respondents should be held liable for actual, moral and exemplary damages, aside
from attorney's fees and litigation expenses.8

At the outset and in view of the spirited exchanges of the parties on this aspect, it is to be stressed
that only questions of law may be raised in a petition filed in this Court to review on certiorari the
decision of the Court of Appeals.9 This being so, the factual findings of the Court of Appeals are final
and conclusive and cannot be reviewed by the Supreme Court. The rule, however, admits of
established exceptions, to wit: (a) where there is grave abuse of discretion; (b) when the finding is
grounded entirely on speculations, surmises or conjectures;(c) when the inference made is
manifestly-mistaken, absurd or impossible; (d) when the judgment of the Court of Appeals was
based on a misapprehension of facts; (e) when the factual findings are conflicting; (f) when the Court
of Appeals, in making its findings, went beyond the issues of the case and the same are contrary to
the admissions of both appellant and appellee; 10 (g) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties and which, if properly considered, would
justify a different conclusion; 11 and (h) where the findings of fact of the Court of Appeals are contrary
to those of the trial court, or are mere conclusions without citation of specific evidence, or where the
facts of set forth by the petitioner are not disputed by the respondent, or where the findings of fact of
the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence
on record. 12

To distinguish, a question of law is one which involves a doubt or controversy on what the law is on
a certain state of facts; and, a question of fact, contrarily, is one in which there is a doubt or
difference as to the truth or falsehood of the alleged facts. 13 One test, it has been held, is whether
the appellate court can determine the issue raised without reviewing or evaluating the evidence, in
which case it is a question of law, otherwise it will be a question of fact.14

Respondent airline companies object to the present recourse of petitioners on the ground that this
petition raises only factual questions. 15 Petitioners maintain otherwise or, alternatively, they are of
the position that, assuming that the petition raises factual questions, the same are within the
recognized exceptions to the general rule as would render the petition cognizable and worthy of
review by the Court. 16

Since it is precisely the soundness of the inferences or conclusions that may be drawn from the
factual issues which are here being assayed, we find that the issues raised in the instant petition
indeed warrant a second look if this litigation is to come to a reasonable denouement. A
discussion seriatim of said issues will further reveal that the sequence of the events involved is in
effect disputed. Likewise to be settled is whether or not the conclusions of the Court of Appeals
subject of this review indeed find evidentiary and legal support.

I. Petitioners fault respondent court for "not finding that private respondents failed to exercise
extraordinary diligence required by law which resulted in the switching and/or misdelivery of the
remains of Crispina Saludo to Mexico causing gross delay in its shipment to the Philippines, and
consequently, damages to petitioners." 17

Petitioner allege that private respondents received the casketed remains of petitioners' mother on
October 26, 1976, as evidenced by the issuance of PAL Air Waybill No. 079-01180454 18 by Air Care
International as carrier's agent; and from said date, private respondents were charged with the
responsibility to exercise extraordinary diligence so much so that for the alleged switching of the
caskets on October 27, 1976, or one day after private respondents received the cargo, the latter
must necessarily be liable.

To support their assertion, petitioners rely on the jurisprudential dictum, both under American and
Philippine law, that "(t)he issuance of a bill of lading carries the presumption that the goods were
delivered to the carrier issuing the bill, for immediate shipment, and it is nowhere questioned that a
bill of lading is prima facie evidence of the receipt of the goods by the carrier. . . . In the absence of
convincing testimony establishing mistake, recitals in the bill of lading showing that the carrier
received the goods for shipment on a specified date control (13 C.J.S. 235)." 19

A bill of lading is a written acknowledgment of the receipt of the goods and an agreement to
transport and deliver them at a specified place to a person named or on his order. Such instrument
may be called a shipping receipt, forwarder's receipt and receipt for transportation. 20 The
designation, however, is immaterial. It has been hold that freight tickets for bus companies as well as
receipts for cargo transported by all forms of transportation, whether by sea or land, fall within the
definition. Under the Tariff and Customs Code, a bill of lading includes airway bills of lading. 21 The
two-fold character of a bill of lading is all too familiar; it is a receipt as to the quantity and description
of the goods shipped and a contract to transport the goods to the consignee or other person therein
designated, on the terms specified in such instrument. 22

Logically, since a bill of lading acknowledges receipt of goods to be transported, delivery of the
goods to the carrier normally precedes the issuance of the bill; or, to some extent, delivery of the
goods and issuance of the bill are regarded in commercial practice as simultaneous acts. 23 However,
except as may be prohibited by law, there is nothing to prevent an inverse order of events, that is,
the execution of the bill of lading even prior to actual possession and control by the carrier of the
cargo to be transported. There is no law which requires that the delivery of the goods for carriage
and the issuance of the covering bill of lading must coincide in point of time or, for that matter, that
the former should precede the latter.

Ordinarily, a receipt is not essential to a complete delivery of goods to the carrier for transportation
but, when issued, is competent and prima facie, but not conclusive, evidence of delivery to the
carrier. A bill of lading, when properly executed and delivered to a shipper, is evidence that the
carrier has received the goods described therein for shipment. Except as modified by statute, it is a
general rule as to the parties to a contract of carriage of goods in connection with which a bill of
lading is issued reciting that goods have been received for transportation, that the recital being in
essence a receipt alone, is not conclusive, but may be explained, varied or contradicted by parol or
other evidence. 24

While we agree with petitioners' statement that "an airway bill estops the carrier from denying receipt
of goods of the quantity and quality described in the bill," a further reading and a more faithful
quotation of the authority cited would reveal that "(a) bill of lading may contain constituent elements
of estoppel and thus become something more than a contract between the shipper and the carrier. .
. . (However), as between the shipper and the carrier, when no goods have been delivered for
shipment no recitals in the bill can estop the carrier from showing the true facts . . . Between the
consignor of goods and receiving carrier, recitals in a bill of lading as to the goods shipped raise only
a rebuttable presumption that such goods were delivered for shipment. As between the consignor
and a receiving carrier, the fact must outweigh the recital." 25 (Emphasis supplied)

For this reason, we must perforce allow explanation by private respondents why, despite the
issuance of the airway bill and the date thereof, they deny having received the remains of Crispina
Saludo on October 26, 1976 as alleged by petitioners.

The findings of the trial court, as favorably adopted by the Court of Appeals and which we have
earner quoted, provide us with the explanation that sufficiently over comes the presumption relied on
by petitioners in insisting that the remains of their mother were delivered to and received by private
respondents on October 26, 1976. Thus —

. . . Philippine Vice Consul in Chicago, Illinois, Bienvenido M. Llaneta, at 3:00 p.m. on

October 26, 1976 at the Pomierski & Son Funeral Home, sealed the shipping case
containing a hermetically sealed casket that is airtight and waterproof wherein was
contained the remains of Crispina Saludo Galdo (sic) (Exh. B). On the same date
October 26, 1976, Pomierski brought the remains to C.M.A.S. (Continental Mortuary
Air Services) at the airport (Chicago) which made the necessary arrangements such
as flights, transfers, etc; C.M.A.S. is a national service used by undertakers
throughout the nation (U.S.A.), they furnish the air pouch which the casket is
enclosed in, and they see that the remains are taken to the proper air freight terminal
(Exh. G-TWA). C.M.A.S. booked the shipment with PAL thru the carrier's agent Air
Care International, with Pomierski F.H. as the shipper and Mario (Maria) Saludo as
the consignee. PAL Airway Bill No. 079- 01180454 Ordinary was issued wherein the
requested routing was from Chicago to San Francisco on board TWA Flight-131 of
October 27;1976, and from San Francisco to Manila on board PAL Flight No. 107 of
the same date, and from Manila to Cebu on board PAL Flight 149 of October 29,
1976 (See Exh. E, also Exh. 1-PAL).26 (Emphasis ours.)

Moreover, we are persuaded to believe private respondent PAL's account as to what transpired
October 26, 1976:
 . . . Pursuant thereto, on 26 October 1976, CMAS acting upon the instruction of
Pomierski, F.H., the shipper requested booking of the casketed remains of Mrs.
Cristina (sic) Saludo on board PAL's San Francisco-Manila Flight No. PR 107 on
October 27, 1976.

2. To signify acceptance and confirmation of said booking, PAL issued to said

Pomierski F.H., PAL Airway Bill No. 079-01180454 dated October 27, 1976 (sic,
"10/26/76"). PAL confirmed the booking and transporting of the shipment on board of
its Flight PR 107 on October 27, 1976 on the basis of the representation of the
shipper and/or CMAS that the said cargo would arrive in San Francisco from Chicago
on board United Airlines Flight US 121 on 27 October 1976.27

In other words, on October 26, 1976 the cargo containing the casketed remains of Crispina Saludo
was booked for PAL Flight Number PR-107 leaving San Francisco for Manila on October 27, 1976,
PAL Airway Bill No. 079-01180454 was issued, not as evidence of receipt of delivery of the cargo on
October 26, 1976, but merely as a confirmation of the booking thus made for the San Francisco-
Manila flight scheduled on October 27, 1976. Actually, it was not until October 28, 1976 that PAL
received physical delivery of the body at San Francisco, as duly evidenced by the Interline Freight
Transfer Manifest of the American Airline Freight System and signed for by Virgilio Rosales at
1945H, or 7:45 P.M. on said date.28

Explicit is the rule under Article 1736 of the Civil Code that the extraordinary responsibility of the
common carrier begins from the time the goods are delivered to the carrier. This responsibility
remains in full force and effect even when they are temporarily unloaded or stored in transit, unless
the shipper or owner exercises the right of stoppage in transitu, 29 and terminates only after the lapse
of a reasonable time for the acceptance, of the goods by the consignee or such other person entitled
to receive them. 30 And, there is delivery to the carrier when the goods are ready for and have been
placed in the exclusive possession, custody and control of the carrier for the purpose of their
immediate transportation and the carrier has accepted them. 31 Where such a delivery has thus been
accepted by the carrier, the liability of the common carrier commences eo instanti. 32

Hence, while we agree with petitioners that the extraordinary diligence statutorily required to be
observed by the carrier instantaneously commences upon delivery of the goods thereto, for such
duty to commence there must in fact have been delivery of the cargo subject of the contract of
carriage. Only when such fact of delivery has been unequivocally established can the liability for
loss, destruction or deterioration of goods in the custody of the carrier, absent the excepting causes
under Article 1734, attach and the presumption of fault of the carrier under Article 1735 be invoked.

As already demonstrated, the facts in the case at bar belie the averment that there was delivery of
the cargo to the carrier on October 26, 1976. Rather, as earlier explained, the body intended to be
shipped as agreed upon was really placed in the possession and control of PAL on October 28,
1976 and it was from that date that private respondents became responsible for the agreed cargo
under their undertakings in PAL Airway Bill No. 079-01180454. Consequently, for the switching of
caskets prior thereto which was not caused by them, and subsequent events caused thereby, private
respondents cannot be held liable.

Petitioners, proceeding on the premise that there was delivery of the cargo to private respondents on
October 26,1976 and that the latter's extraordinary responsibility had by then become operative,
insist on foisting the blame on private respondents for the switching of the two caskets which
occurred on October 27, 1976. It is argued that since there is no clear evidence establishing the fault
Continental Mortuary Air Services (CMAS) for the mix-up, private respondents are presumably
negligent pursuant to Article 1735 of the Civil Code and, for failure to rebut such presumption, they
must necessarily be held liable; or, assuming that CMAS was at fault, the same does not absolve
private respondents of liability because whoever brought the cargo to the airport or loaded it on the
plane did so as agent of private respondents.

This contention is without merit. As pithily explained by the Court of Appeals:

The airway bill expressly provides that "Carrier certifies goods described below were
received for carriage", and said cargo was "casketed human remains of Crispina
Saludo," with "Maria Saludo as Consignee; Pomierski F.H. as Shipper; Air Care
International as carrier's agent." On the face of the said airway bill, the specific flight
numbers, specific routes of shipment and dates of departure and arrival were
typewritten, to wit: Chicago TWA Flight 131/27 to San Francisco and from San
Francisco by PAL 107 on, October 27, 1976 to Philippines and to Cebu via PAL
Flight 149 on October 29, 1976. The airway bill also contains the following
typewritten words, as follows: all documents have been examined (sic). Human
remains of Crispina Saludo. Please return back (sic) first available flight to SFO.

But, as it turned out and was discovered later the casketed human remains which
was issued PAL Airway Bill #079-1180454 was not the remains of Crispina Saludo,
the casket containing her remains having been shipped to Mexico City.

However, it should be noted that, Pomierski F.H., the shipper of Mrs. Saludo's
remains, hired Continental Mortuary Services (hereafter referred to as C.M.A.S.),
which is engaged in the business of transporting and forwarding human remains.
Thus, C.M.A.S. made all the necessary arrangements such as flights, transfers, etc.
— for shipment of the remains of Crispina Saludo.

The remains were taken on October 26th, 1976, to C.M.A.S. at the

airport. These people made all the necessary arrangements, such as
flights, transfers, etc. This is a national service used by undertakers
throughout the nation. They furnished the air pouch which the casket
is enclosed in, and they see that the remains are taken to the proper
air frieght terminal. I was very surprised when Miss Saludo called me
to say that the remains were not at the west coast terminal. I
immediately called C.M.A.S. They called me back in a matter of ten
minutes to inform me that the remains were on a plane to Mexico
City. The man said that there were two bodies at the terminal, and
somehow they were switched. . . . (Exb. 6 — "TWA", which is the
memo or incident report enclosed in the stationery of Walter
Pomierski & Sons Ltd.)

Consequently, when the cargo was received from C.M.A.S. at the Chicago airport
terminal for shipment, which was supposed to contain the remains of Crispina
Saludo, Air Care International and/or TWA, had no way of determining its actual
contents, since the casket was hermetically sealed by the Philippine Vice-Consul in
Chicago and in an air pouch of C.M.A.S., to the effect that Air Care International
and/or TWA had to rely on the information furnished by the shipper regarding the
cargo's content. Neither could Air Care International and/or TWA open the casket for
further verification, since they were not only without authority to do so, but even
prohibited.
 Thus, under said circumstances, no fault and/or negligence can be attributed to PAL
(even if Air Care International should be considered as an agent of PAL) and/or
TWA, the entire fault or negligence being exclusively with C.M.A.S.33 (Emphasis
supplied.)

It can correctly and logically be concluded, therefore, that the switching occurred or, more
accurately, was discovered on October 27, 1976; and based on the above findings of the Court of
appeals, it happened while the cargo was still with CMAS, well before the same was place in the
custody of private respondents.

Thus, while the Air Cargo Transfer Manifest of TWA of October 27, 197634 was signed by Garry
Marcial of PAL at 1400H, or 2:00 P.M., on the same date, thereby indicating acknowledgment by
PAL of the transfer to them by TWA of what was in truth the erroneous cargo, said misshipped cargo
was in fact withdrawn by CMAS from PAL as shown by the notation on another copy of said
manifest35 stating "Received by CMAS — Due to switch in Chicago 10/27-1805H," the authenticity of
which was never challenged. This shows that said misshipped cargo was in fact withdrawn by CMAS
from PAL and the correct shipment containing the body of Crispina Saludo was received by PAL
only on October 28, 1976, at 1945H, or 7:45 P.M., per American Airlines Interline Freight Transfer
Manifest No. AA204312.36

Witness the deposition of TWA's ramp serviceman, Michael Giosso, on this matter:

ATTY. JUAN COLLAS, JR.:

On that date, do (sic) you have occasion to handle or deal with the
transfer of cargo from TWA Flight No. 603 to PAL San Francisco?

MICHAEL GIOSSO:

Yes, I did.

ATTY. JUAN COLLAS, JR.:

What was your participation with the transfer of the cargo?

MICHAEL GIOSSO:

I manifested the freight on a transfer manifest and physically moved it

to PAL and concluded the transfer by signing it off.

ATTY. JUAN COLLAS, JR.:

You brought it there yourself?

MICHAEL GIOSSO:

Yes sir.

ATTY. JUAN COLIAS, JR.:

 Do you have anything to show that PAL received the cargo from TWA
on October 27, 1976?

MICHAEL GIOSSO:

Yes, I do.

(Witness presenting a document)

ATTY. JUAN COLLAS, JR.:

For purposes of clarity, Exhibit I is designated as Exhibit I-TWA.

xxx xxx xxx

ATTY. JUAN COLLAS, JR.:

This Exhibit I-TWA, could you tell what it is, what it shows?

MICHAEL GIOSSO:

It shows transfer of manifest on 10-27-76 to PAL at 1400 and verified

with two signatures as it completed the transfer.

ATTY. JUAN COLLAS, JR.:

Very good,. Who was the PAL employee who received the cargo?

MICHAEL GIOSSO:

The name is Garry Marcial." 37

The deposition of Alberto A. Lim, PAL's cargo supervisor at San Francisco, as deponent-witness for
PAL, makes this further clarification:

ATTY. CESAR P. MANALAYSAY:

You mentioned Airway Bill, Mr. Lim. I am showing to you a PAL

Airway Bill Number 01180454 which for purposes of evidence, I
would like to request that the same be marked as evidence Exhibit I
for PAL.

xxx xxx xxx

In what circumstances did you encounter Exhibit I-PAL?

ALBERTO A. LIM:

If I recall correctly, I was queried by Manila, our Manila office with

regard to a certain complaint that a consignee filed that this shipment
did not arrive on the day that the consignee expects the shipment to
arrive.

ATTY CESAR P. MANALAYSAY:

Okay. Now, upon receipt of that query from your Manila office, did
you conduct any investigation to pinpoint the possible causes of
mishandling?

ALBERTO A. LIM:

Yes.

xxx xxx xxx

ATTY. CESAR P. MANALAYSAY:

What is the result of your investigation?

ALBERTO A. LIM:

In the course of my investigation, I found that we received the body

on October 28, 1976, from American Airlines.

ATTY. CESAR P. MANALAYSAY:

What body are you referring to?

xxx xxx xxx

ALBERTO A. LIM:

The remains of Mrs. Cristina (sic) Saludo.

ATTY. CESAR P. MANALAYSAY:

Is that the same body mentioned in this Airway Bill?

ALBERTO A. LIM:

Yes.

ATTY. CESAR P. MANALAYSAY:

What time did you receive said body on October 28, 1976?

ALBERTO A. LIM:

If I recall correctly, approximately 7:45 of October 28, 1976.

ATTY. CESAR P. MANALAYSAY:

Do you have any proof with you to back the statement?

ALBERTO A. LIM:

Yes. We have on our records a Transfer Manifest from American

Airlines Number 204312 showing that we received a human remains
shipment belong to Mrs. Cristina (sic) Saludo or the human remains
of Mrs. Cristina (sic) Saludo.

ATTY. CESAR P. MAIALAYSAY:

At this juncture, may I request that the Transfer Manifest referred to

by the witness be marked as an evidence as Exhibit II-PAL.

xxx xxx xxx

Mr. Lim, yesterday your co-defendant TWA presented as their Exhibit

I evidence tending to show that on October 27, 1976 at about 2:00 in
the, afternoon they delivered to you a cargo bearing human remains.
Could you go over this Exhibit I and please give us your comments as
to that exhibit?

ATTY. ALBERTO C. MENDOZA:

That is a vague question. I would rather request that counsel

propound specific questions rather than asking for comments on
Exhibit I-TWA.

ATTY. CESAR P. MANALAYSAY:

In that case, I will reform my question. Could you tell us whether TWA
in fact delivered to you the human remains as indicated in that
Transfer Manifest?

ALBERTO A. LIM:

Yes, they did.

ATTY. CESAR P. MANALAYSAY:

I noticed that the Transfer Manifest of TWA marked as Exhibit I-TWA

bears the same numbers or the same entries as the Airway Bill
marked as Exhibit I-A PAL tending to show that this is the human
remains of Mrs Cristina (sic) Saludo. Could you tell us whether this is
true?

ALBERTO A. LIM:
 It is true that we received human remains shipment from TWA as
indicated on this Transfer Manifest. But in the course of investigation,
it was found out that the human remains transferred to us is not the
remains of Mrs. Cristina (sic) Saludo this is the reason why we did not
board it on our flight. 38

Petitioners consider TWA's statement that "it had to rely on the information furnished by the shipper"
a lame excuse and that its failure to prove that its personnel verified and identified the contents of
the casket before loading the same constituted negligence on the part of TWA.39

We upbold the favorable consideration by the Court of Appeals of the following findings of the trial
court:

It was not (to) TWA, but to C.M.A.S. that the Pomierski & Son Funeral Home
delivered the casket containing the remains of Crispina Saludo. TWA would have no
knowledge therefore that the remains of Crispina Saludo were not the ones inside
the casket that was being presented to it for shipment. TWA would have to rely on
there presentations of C.M.A.S. The casket was hermetically sealed and also sealed
by the Philippine Vice Consul in Chicago. TWA or any airline for that matter would
not have opened such a sealed casket just for the purpose of ascertaining whose
body was inside and to make sure that the remains inside were those of the
particular person indicated to be by C.M.A.S. TWA had to accept whatever
information was being furnished by the shipper or by the one presenting the casket
for shipment. And so as a matter of fact, TWA carried to San Francisco and
transferred to defendant PAL a shipment covered by or under PAL Airway Bill No.
079-ORD-01180454, the airway bill for the shipment of the casketed remains of
Crispina Saludo. Only, it turned out later, while the casket was already with PAL, that
what was inside the casket was not the body of Crispina Saludo so much so that it
had to be withdrawn by C.M.A.S. from PAL. The body of Crispina Saludo had been
shipped to Mexico. The casket containing the remains of Crispina Saludo was
transshipped from Mexico and arrived in San Francisco the following day on board
American Airlines. It was immediately loaded by PAL on its flight for Manila.

The foregoing points at C.M.A.S., not defendant TWA much less defendant PAL, as
the ONE responsible for the switching or mix-up of the two bodies at the Chicago
Airport terminal, and started a chain reaction of the misshipment of the body of
Crispina Saludo and a one-day delay in the delivery thereof to its destination.40

Verily, no amount of inspection by respondent airline companies could have guarded against the
switching that had already taken place. Or, granting that they could have opened the casket to
inspect its contents, private respondents had no means of ascertaining whether the body therein
contained was indeed that of Crispina Saludo except, possibly, if the body was that of a male person
and such fact was visually apparent upon opening the casket. However, to repeat, private
respondents had no authority to unseal and open the same nor did they have any reason or
justification to resort thereto.

It is the right of the carrier to require good faith on the part of those persons who deliver goods to be
carried, or enter into contracts with it, and inasmuch as the freight may depend on the value of the
article to be carried, the carrier ordinarily has the right to inquire as to its value. Ordinarily, too, it is
the duty of the carrier to make inquiry as to the general nature of the articles shipped and of their
value before it consents to carry them; and its failure to do so cannot defeat the shipper's right to
recovery of the full value of the package if lost, in the absence of showing of fraud or deceit on the
part of the shipper. In the absence of more definite information, the carrier has a the right to accept
shipper's marks as to the contents of the package offered for transportation and is not bound to
inquire particularly about them in order to take advantage of a false classification and where a
shipper expressly represents the contents of a package to be of a designated character, it is not the
duty of the carrier to ask for a repetition of the statement nor disbelieve it and open the box and see
for itself. 41 However, where a common carrier has reasonable ground to suspect that the offered
goods are of a dangerous or illegal character, the carrier has the right to know the character of such
goods and to insist on an inspection, if reasonable and practical under the circumstances, as a
condition of receiving and transporting such goods.42

It can safely be said then that a common carrier is entitled to fair representation of the nature and
value of the goods to be carried, with the concomitant right to rely thereon, and further noting at this
juncture that a carrier has no obligation to inquire into the correctness or sufficiency of such
information. 43 The consequent duty to conduct an inspection thereof arises in the event that there
should be reason to doubt the veracity of such representations. Therefore, to be subjected to
unusual search, other than the routinary inspection procedure customarily undertaken, there must
exist proof that would justify cause for apprehension that the baggage is dangerous as to warrant
exhaustive inspection, or even refusal to accept carriage of the same; and it is the failure of the
carrier to act accordingly in the face of such proof that constitutes the basis of the common carrier's
liability. 44

In the case at bar, private respondents had no reason whatsoever to doubt the truth of the shipper's
representations. The airway bill expressly providing that "carrier certifies goods received below were
received for carriage," and that the cargo contained "casketed human remains of Crispina Saludo,"
was issued on the basis of such representations. The reliance thereon by private respondents was
reasonable and, for so doing, they cannot be said to have acted negligently. Likewise, no evidence
was adduced to suggest even an iota of suspicion that the cargo presented for transportation was
anything other than what it was declared to be, as would require more than routine inspection or call
for the carrier to insist that the same be opened for scrutiny of its contents per declaration.

Neither can private respondents be held accountable on the basis of petitioners' preposterous
proposition that whoever brought the cargo to the airport or loaded it on the airplane did so as agent
of private respondents, so that even if CMAS whose services were engaged for the transit
arrangements for the remains was indeed at fault, the liability therefor would supposedly still be
attributable to private respondents.

While we agree that the actual participation of CMAS has been sufficiently and correctly established,
to hold that it acted as agent for private respondents would be both an inaccurate appraisal and an
unwarranted categorization of the legal position it held in the entire transaction.

It bears repeating that CMAS was hired to handle all the necessary shipping arrangements for the
transportation of the human remains of Crispina Saludo to Manila. Hence, it was to CMAS that the
Pomierski & Son Funeral Home, as shipper, brought the remains of petitioners' mother for shipment,
with Maria Saludo as consignee. Thereafter, CMAS booked the shipment with PAL through the
carrier's agent, Air Care International. 45 With its aforestated functions, CMAS may accordingly be
classified as a forwarder which, by accepted commercial practice, is regarded as an agent of the
shipper and not of the carrier. As such, it merely contracts for the transportation of goods by carriers,
and has no interest in the freight but receives compensation from the shipper as his agent. 46

At this point, it can be categorically stated that, as culled from the findings of both the trial court and
appellate courts, the entire chain of events which culminated in the present controversy was not due
to the fault or negligence of private respondents. Rather, the facts of the case would point to CMAS
as the culprit. Equally telling of the more likely possibility of CMAS' liability is petitioners' letter to and
demanding an explanation from CMAS regarding the statement of private respondents laying the
blame on CMAS for the incident, portions of which, reading as follows:

. . . we were informed that the unfortunate a mix-up occurred due to your negligence.
...

Likewise, the two airlines pinpoint the responsibility upon your agents. Evidence were
presented to prove that allegation.

On the face of this overwhelming evidence we could and should have filed a case
against you. . . . 47

clearly allude to CMAS as the party at fault. This is tantamount to an admission by petitioners that
they consider private respondents without fault, or is at the very least indicative of the fact that
petitioners entertained serious doubts as to whether herein private respondents were responsible for
the unfortunate turn of events.

Undeniably, petitioners' grief over the death of their mother was aggravated by the unnecessary
inconvenience and anxiety that attended their efforts to bring her body home for a decent burial. This
is unfortunate and calls for sincere commiseration with petitioners. But, much as we would like to
give them consolation for their undeserved distress, we are barred by the inequity of allowing
recovery of the damages prayed for by them at the expense of private respondents whose fault or
negligence in the very acts imputed to them has not been convincingly and legally demonstrated.

Neither are we prepared to delve into, much less definitively rule on, the possible liability of CMAS
as the evaluation and adjudication of the same is not what is presently at issue here and is best
deferred to another time and addressed to another forum.

II. Petitioners further fault the Court of Appeals for ruling that there was no contractual breach on the
part of private respondents as would entitle petitioners to damages.

Petitioners hold that respondent TWA, by agreeing to transport the remains of petitioners' mother on
its Flight 131 from Chicago to San Francisco on October 27, 1976, made itself a party to the contract
of carriage and, therefore, was bound by the terms of the issued airway bill. When TWA undertook to
ship the remains on its Flight 603, ten hours earlier than scheduled, it supposedly violated the
express agreement embodied in the airway bill. It was allegedly this breach of obligation which
compounded, if not directly caused, the switching of the caskets.

In addition, petitioners maintain that since there is no evidence as to who placed the body on board
Flight 603, or that CMAS actually put the cargo on that flight, or that the two caskets at the Chicago
airport were to be transported by the same airline, or that they came from the same funeral home, or
that both caskets were received by CMAS, then the employees or agents of TWA presumably
caused the mix-up by loading the wrong casket on the plane. For said error, they contend, TWA
must necessarily be presumed negligent and this presumption of negligence stands undisturbed
unless rebutting evidence is presented to show that the switching or misdelivery was due to
circumstances that would exempt the carrier from liability.

Private respondent TWA professes otherwise. Having duly delivered or transferred the cargo to its
co-respondent PAL on October 27, 1976 at 2:00 P.M., as supported by the TWA Transfer Manifest,
TWA faithfully complied with its obligation under the airway bill. Said faithful compliance was not
affected by the fact that the remains were shipped on an earlier flight as there was no fixed time for
completion of carriage stipulated on. Moreover, the carrier did not undertake to carry the cargo
aboard any specified aircraft, in view of the condition on the back of the airway bill which provides:

CONDITIONS OF CONTRACT

xxx xxx xxx

It is agreed that no time is fixed for the completion of carriage hereunder and that
Carrier may without notice substitute alternate carriers or aircraft. Carrier assumes
no obligation to carry the goods by any specified aircraft or over any particular route
or routes or to make connection at any point according to any particular schedule,
and Carrier is hereby authorized to select, or deviate from the route or routes of
shipment, notwithstanding that the same may be stated on the face hereof. The
shipper guarantees payment of all charges and advances.48

Hence, when respondent TWA shipped the body on earlier flight and on a different aircraft, it was
acting well within its rights. We find this argument tenable.

The contention that there was contractual breach on the part of private respondents is founded on
the postulation that there was ambiguity in the terms of the airway bill, hence petitioners' insistence
on the application of the rules on interpretation of contracts and documents. We find no such
ambiguity. The terms are clear enough as to preclude the necessity to probe beyond the apparent
intendment of the contractual provisions.

The hornbook rule on interpretation of contracts consecrates the primacy of the intention of the
parties, the same having the force of law between them. When the terms of the agreement are clear
and explicit, that they do not justify an attempt to read into any alleged intention of the parties, the
terms are to be understood literally just as they appear on the face of the contract.49 The various
stipulations of a contract shall be interpreted together50 and such a construction is to be adopted as
will give effect to all provisions thereof.51 A contract cannot be construed by parts, but its clauses
should be interpreted in relation to one another. The whole contract must be interpreted or read
together in order to arrive at its true meaning. Certain stipulations cannot be segregated and then
made to control; neither do particular words or phrases necessarily determine the character of a
contract. The legal effect of the contract is not to be determined alone by any particular provision
disconnected from all others, but in the ruling intention of the parties as gathered from all the
language they have used and from their contemporaneous and subsequent acts. 52

Turning to the terms of the contract at hand, as presented by PAL Air Waybill No. 079-01180454,
respondent court approvingly quoted the trial court's disquisition on the aforequoted condition
appearing on the reverse side of the airway bill and its disposition of this particular assigned error:

The foregoing stipulation fully answers plaintiffs' objections to the one-day delay and
the shipping of the remains in TWA Flight 603 instead of TWA Flight 131. Under the
stipulation, parties agreed that no time was fixed to complete the contract of carriage
and that the carrier may, without notice, substitute alternate carriers or aircraft. The
carrier did not assume the obligation to carry the shipment on any specified aircraft.

xxx xxx xxx

Furthermore, contrary to the claim of plaintiffs-appellants, the conditions of the Air

Waybill are big enough to be read and noticed. Also, the mere fact that the cargo in
question was shipped in TWA Flight 603, a flight earlier on the same day than TWA
 Flight 131, did not in any way cause or add to the one-day delay complained of
and/or the switching or mix-up of the bodies.53

Indubitably, that private respondent can use substitute aircraft even without notice and without the
assumption of any obligation whatsoever to carry the goods on any specified aircraft is clearly
sanctioned by the contract of carriage as specifically provided for under the conditions thereof.

Petitioners' invocation of the interpretative rule in the Rules of Court that written words control
printed words in documents, 54 to bolster their assertion that the typewritten provisions regarding the
routing and flight schedule prevail over the printed conditions, is tenuous. Said rule may be
considered only when there is inconsistency between the written and printed words of the contract.

As previously stated, we find no ambiguity in the contract subject of this case that would call for the
application of said rule. In any event, the contract has provided for such a situation by explicitly
stating that the above condition remains effective "notwithstanding that the same (fixed time for
completion of carriage, specified aircraft, or any particular route or schedule) may be stated on the
face hereof." While petitioners hinge private respondents' culpability on the fact that the carrier
"certifies goods described below were received for carriage," they may have overlooked that the
statement on the face of the airway bill properly and completely reads —

Carrier certifies goods described below were received for carriage subject to the
Conditions on the reverse hereof the goods then being in apparent good order and
condition except as noted hereon. 55(Emphasis ours.)

Private respondents further aptly observe that the carrier's certification regarding receipt of the
goods for carriage "was of a smaller print than the condition of the Air Waybill, including Condition
No. 5 — and thus if plaintiffs-appellants had recognized the former, then with more reason they were
aware of the latter. 56

In the same vein, it would also be incorrect to accede to the suggestion of petitioners that the
typewritten specifications of the flight, routes and dates of departures and arrivals on the face of the
airway bill constitute a special contract which modifies the printed conditions at the back thereof. We
reiterate that typewritten provisions of the contract are to be read and understood subject to and in
view of the printed conditions, fully reconciling and giving effect to the manifest intention of the
parties to the agreement.

The oft-repeated rule regarding a carrier's liability for delay is that in the absence of a special
contract, a carrier is not an insurer against delay in transportation of goods. When a common carrier
undertakes to convey goods, the law implies a contract that they shall be delivered at destination
within a reasonable time, in the absence, of any agreement as to the time of delivery. 57 But where a
carrier has made an express contract to transport and deliver property within a specified time, it is
bound to fulfill its contract and is liable for any delay, no matter from what cause it may have
arisen. 58 This result logically follows from the well-settled rule that where the law creates a duty or
charge, and the party is disabled from performing it without any default in himself, and has no
remedy over, then the law will excuse him, but where the party by his own contract creates a duty or
charge upon himself, he is bound to make it good notwithstanding any accident or delay by
inevitable necessity because he might have provided against it by contract. Whether or not there has
been such an undertaking on the part of the carrier to be determined from the circumstances
surrounding the case and by application of the ordinary rules for the interpretation of contracts.59

Echoing the findings of the trial court, the respondent court correctly declared that —
 In a similar case of delayed delivery of air cargo under a very similar stipulation
contained in the airway bill which reads: "The carrier does not obligate itself to carry
the goods by any specified aircraft or on a specified time. Said carrier being hereby
authorized to deviate from the route of the shipment without any liability therefor", our
Supreme Court ruled that common carriers are not obligated by law to carry and to
deliver merchandise, and persons are not vested with the right to prompt delivery,
unless such common carriers previously assume the obligation. Said rights and
obligations are created by a specific contract entered into by the parties (Mendoza
vs. PAL, 90 Phil. 836).

There is no showing by plaintiffs that such a special or specific contract had been
entered into between them and the defendant airline companies.

And this special contract for prompt delivery should call the attention of the carrier to
the circumstances surrounding the case and the approximate amount of damages to
be suffered in case of delay (See Mendoza vs. PAL, supra). There was no such
contract entered into in the instant case.60

Also, the theory of petitioners that the specification of the flights and dates of departure and arrivals
constitute a special contract that could prevail over the printed stipulations at the back of the airway
bill is vacuous. To countenance such a postulate would unduly burden the common carrier for that
would have the effect of unilaterally transforming every single bill of lading or trip ticket into a special
contract by the simple expedient of filling it up with the particulars of the flight, trip or voyage, and
thereby imposing upon the carrier duties and/or obligations which it may not have been ready or
willing to assume had it been timely, advised thereof.

Neither does the fact that the challenged condition No. 5 was printed at the back of the airway bill
militate against its binding effect on petitioners as parties to the contract, for there were sufficient
indications on the face of said bill that would alert them to the presence of such additional condition
to put them on their guard. Ordinary prudence on the part of any person entering or contemplating to
enter into a contract would prompt even a cursory examination of any such conditions, terms and/or
stipulations.

There is a holding in most jurisdictions that the acceptance of a bill of lading without dissent raises a
presumption that all terms therein were brought to the knowledge of the shipper and agreed to by
him, and in the absence of fraud or mistake, he is estopped from thereafter denying that he assented
to such terms. This rule applies with particular force where a shipper accepts a bill of lading with full
knowledge of its contents, and acceptance under such circumstances makes it a binding contract. In
order that any presumption of assent to a stipulation in a bill of lading limiting the liability of a carrier
may arise, it must appear that the clause containing this exemption from liability plainly formed a part
of the contract contained in the bill of lading. A stipulation printed on the back of a receipt or bill of
lading or on papers attached to such receipt will be quite as effective as if printed on its face, if it is
shown that the consignor knew of its terms. Thus, where a shipper accepts a receipt which states
that its conditions are to be found on the back, such receipt comes within the general rule, and the
shipper is held to have accepted and to be bound by the conditions there to be found. 61

Granting arguendo that Condition No. 5 partakes of the nature of a contract of adhesion and as such
must be construed strictly against the party who drafted the same or gave rise to any ambiguity
therein, it should be borne in mind that a contract of adhesion may be struck down as void and
unenforceable, for being subversive of public policy, only when the weaker party is imposed upon in
dealing with the dominant bargaining party and is reduced to the alternative of taking it or leaving it,
completely deprived of the opportunity to bargain on equal footing. 62However, Ong Yiu vs. Court of
Appeals, et al 63 instructs us that contracts of adhesion are not entirely prohibited. The one who
adheres to the contract is in reality free to reject it entirely; if he adheres, be gives his consent.
Accordingly, petitioners, far from being the weaker party in this situation, duly signified their
presumed assent to all terms of the contract through their acceptance of the airway bill and are
consequently bound thereby. It cannot be gainsaid that petitioners' were not without several choices
as to carriers in Chicago with its numerous airways and airliner servicing the same.

We wish to allay petitioners' apprehension that Condition No. 5 of the airway bill is productive of
mischief as it would validate delay in delivery, sanction violations of contractual obligations with
impunity or put a premium on breaches of contract.

Just because we have said that condition No. 5 of the airway bill is binding upon the parties to and
fully operative in this transaction, it does not mean, and let this serve as fair warning to respondent
carriers, that they can at all times whimsically seek refuge from liability in the exculpatory sanctuary
of said Condition No. 5 or arbitrarily vary routes, flights and schedules to the prejudice of their
customers. This condition only serves to insulate the carrier from liability in those instances when
changes in routes, flights and schedules are clearly justified by the peculiar circumstances of a
particular case, or by general transportation practices, customs and usages, or by contingencies or
emergencies in aviation such as weather turbulence, mechanical failure, requirements of national
security and the like. And even as it is conceded that specific routing and other navigational
arrangements for a trip, flight or voyage, or variations therein, generally lie within the discretion of the
carrier in the absence of specific routing instructions or directions by the shipper, it is plainly
incumbent upon the carrier to exercise its rights with due deference to the rights, interests and
convenience of its customers.

A common carrier undertaking to transport property has the implicit duty to carry and deliver it within
reasonable time, absent any particular stipulation regarding time of delivery, and to guard against
delay. In case of any unreasonable delay, the carrier shall be liable for damages immediately and
proximately resulting from such neglect of duty. 64 As found by the trial court, the delay in the delivery
of the remains of Crispina Saludo, undeniable and regrettable as it was, cannot be attributed to the
fault, negligence or malice of private respondents,65 a conclusion concurred in by respondent court
and which we are not inclined to disturb.

We are further convinced that when TWA opted to ship the remains of Crispina Saludo on an earlier
flight, it did so in the exercise of sound discretion and with reasonable prudence, as shown by the
explanation of its counsel in his letter of February 19, 1977 in response to petitioners' demand letter:

Investigation of TWA's handling of this matter reveals that although the shipment was
scheduled on TWA Flight 131 of October 27, 1976, it was actually boarded on TWA
Flight 603 of the same day, approximately 10 hours earlier, in order to assure that
the shipment would be received in San Francisco in sufficient time for transfer to
PAL. This transfer was effected in San Francisco at 2:00 P.M. on October 27,
1976. 66

Precisely, private respondent TWA knew of the urgency of the shipment by reason of this notation
on the lower portion of the airway bill: "All documents have been certified. Human remains of Cristina
(sic) Saludo. Please return bag first available flight to SFO." Accordingly, TWA took it upon itself to
carry the remains of Crispina Saludo on an earlier flight, which we emphasize it could do under the
terms of the airway bill, to make sure that there would be enough time for loading said remains on
the transfer flight on board PAL.
III. Petitioners challenge the validity of respondent court's finding that private respondents are not
liable for tort on account of the humiliating, arrogant and indifferent acts of their officers and
personnel. They posit that since their mother's remains were transported ten hours earlier than
originally scheduled, there was no reason for private respondents' personnel to disclaim knowledge
of the arrival or whereabouts of the same other than their sheer arrogance, indifference and extreme
insensitivity to the feelings of petitioners. Moreover, being passengers and not merely consignors of
goods, petitioners had the right to be treated with courtesy, respect, kindness and due consideration.

In riposte, TWA claims that its employees have always dealt politely with all clients, customers and
the public in general. PAL, on the other hand, declares that in the performance of its obligation to the
riding public, other customers and clients, it has always acted with justice, honesty, courtesy and
good faith.

Respondent appellate court found merit in and reproduced the trial court's refutation of this assigned
error:

About the only evidence of plaintiffs that may have reference to the manner with
which the personnel of defendants treated the two plaintiffs at the San Francisco
Airport are the following pertinent portions of Maria Saludo's testimony:

Q When you arrived there, what did you do, if any?

A I immediately went to the TWA counter and I inquired about

whether my mother was there or if' they knew anything about it.

Q What was the answer?

A They said they do not know. So, we waited.

Q About what time was that when you reached San Francisco from
Chicago?

A I think 5 o'clock. Somewhere around that in the afternoon.

Q You made inquiry it was immediately thereafter?

A Right after we got off the plane.

Q Up to what time did you stay in the airport to wait until the TWA
people could tell you the whereabouts?

A Sorry, Sir, but the TWA did not tell us anything. We stayed there
until about 9 o'clock. They have not heard anything about it. They did
not say anything.

Q Do you want to convey to the Court that from 5 up to 9 o'clock in

the evening you yourself went back to the TWA and they could not
tell you where the remains of your mother were?

A Yes sir.
 Q And after nine o'clock, what did you do?

A I told my brother my Mom was supposed to be on the Philippine

Airlines flight. "Why don't" we check with PAL instead to see if she
was there?" We tried to comfort each other. I told him anyway that
was a shortest flight from Chicago to California. We will be with our
mother on this longer flight. So, we checked with the PAL.

Q What did you find?

A We learned, Yes, my Mom would be on the flight.

Q Who was that brother?

A Saturnino Saludo.

Q And did you find what was your flight from San Francisco to the
Philippines?

A I do not know the number. It was the evening flight of the Philippine
Airline(s) from San Francisco to Manila.

Q You took that flight with your mother?

A We were scheduled to, Sir.

Q Now, you could not locate the remains of your mother in San
Francisco could you tell us what did you feel?

A After we were told that my mother was not there?

Q After you learned that your mother could not fly with you from
Chicago to California?

A Well, I was very upset. Of course, I wanted the confirmation that my

mother was in the West Coast. The fliqht was about 5 hours from
Chicago to California. We waited anxiously all that time on the plane.
I wanted to be assured about my mother's remains. But there was
nothing and we could not get any assurance from anyone about it.

Q Your feeling when you reached San Francisco and you could not
find out from the TWA the whereabouts of the remains, what did you
feel?

A Something nobody would be able to describe unless he

experiences it himself. It is a kind of panic. I think it's a feeling you are
about to go crazy. It is something I do not want to live through again.
(Inting, t.s.n., Aug. 9, 1983, pp. 14-18).

The foregoing does not show any humiliating or arrogant manner with which the
personnel of both defendants treated the two plaintiffs. Even their alleged
 indifference is not clearly established. The initial answer of the TWA personnel at the
counter that they did not know anything about the remains, and later, their answer
that they have not heard anything about the remains, and the inability of the TWA
counter personnel to inform the two plaintiffs of the whereabouts of the remains,
cannot be said to be total or complete indifference to the said plaintiffs. At any rate, it
is any rude or discourteous conduct, malfeasance or neglect, the use of abusive or
insulting language calculated to humiliate and shame passenger or had faith by or on
the part of the employees of the carrier that gives the passenger an action for
damages against the carrier (Zulueta vs. Pan American World Airways, 43 SCRA
397; Air France vs. Carrascoso, et al., 18 SCRA 155; Lopez, et al. vs. Pan American
World Airways, 16 SCRA 431; Northwest Airlines, Inc. vs. Cuenca, 14 SCRA 1063),
and none of the above is obtaining in the instant case. 67

We stand by respondent court's findings on this point, but only to the extent where it holds that the
manner in which private respondent TWA's employees dealt with petitioners was not grossly
humiliating, arrogant or indifferent as would assume the proportions of malice or bad faith and lay
the basis for an award of the damages claimed. It must however, be pointed out that the lamentable
actuations of respondent TWA's employees leave much to be desired, particularly so in the face of
petitioners' grief over the death of their mother, exacerbated by the tension and anxiety wrought by
the impasse and confusion over the failure to ascertain over an appreciable period of time what
happened to her remains.

Airline companies are hereby sternly admonished that it is their duty not only to cursorily instruct but
to strictly require their personnel to be more accommodating towards customers, passengers and
the general public. After all, common carriers such as airline companies are in the business of
rendering public service, which is the primary reason for their enfranchisement and recognition in our
law. Because the passengers in a contract of carriage do not contract merely for transportation, they
have a right to be treated with kindness, respect, courtesy and consideration. 68 A contract to
transport passengers is quite different in kind and degree from any other contractual relation, and
generates a relation attended with public duty. The operation of a common carrier is a business
affected with public interest and must be directed to serve the comfort and convenience of
passengers. 69 Passengers are human beings with human feelings and emotions; they should not be
treated as mere numbers or statistics for revenue.

The records reveal that petitioners, particularly Maria and Saturnino Saludo, agonized for nearly five
hours, over the possibility of losing their mother's mortal remains, unattended to and without any
assurance from the employees of TWA that they were doing anything about the situation. This is not
to say that petitioners were to be regaled with extra special attention. They were, however, entitled
to the understanding and humane consideration called for by and commensurate with the
extraordinary diligence required of common carriers, and not the cold insensitivity to their
predicament. It is hard to believe that the airline's counter personnel were totally helpless about the
situation. Common sense would and should have dictated that they exert a little extra effort in
making a more extensive inquiry, by themselves or through their superiors, rather than just shrug off
the problem with a callous and uncaring remark that they had no knowledge about it. With all the
modern communications equipment readily available to them, which could have easily facilitated
said inquiry and which are used as a matter of course by airline companies in their daily operations,
their apathetic stance while not legally reprehensible is morally deplorable.

Losing a loved one, especially one's, parent, is a painful experience. Our culture accords the
tenderest human feelings toward and in reverence to the dead. That the remains of the deceased
were subsequently delivered, albeit belatedly, and eventually laid in her final resting place is of little
consolation. The imperviousness displayed by the airline's personnel, even for just that fraction of
time, was especially condemnable particularly in the hour of bereavement of the family of Crispina
Saludo, intensified by anguish due to the uncertainty of the whereabouts of their mother's remains.
Hence, it is quite apparent that private respondents' personnel were remiss in the observance of that
genuine human concern and professional attentiveness required and expected of them.

The foregoing observations, however, do not appear to be applicable or imputable to respondent

PAL or its employees. No attribution of discourtesy or indifference has been made against PAL by
petitioners and, in fact, petitioner Maria Saludo testified that it was to PAL that they repaired after
failing to receive proper attention from TWA. It was from PAL that they received confirmation that
their mother's remains would be on the same flight to Manila with them.

We find the following substantiation on this particular episode from the deposition of Alberto A. Lim,
PAL's cargo supervisor earlier adverted to, regarding their investigation of and the action taken on
learning of petitioner's problem:

ATTY. ALBERTO C. MENDOZA:

Yes.

Mr. Lim, what exactly was your procedure adopted in your so called
investigation?

ALBERTO A. LIM:

I called the lead agent on duty at that time and requested for a copy
of airway bill, transfer manifest and other documents concerning the
shipment.

ATTY ALBERTO C. MENDOZA:

Then, what?

ALBERTO A. LIM:

They proceeded to analyze exactly where PAL failed, if any, in

forwarding the human remains of Mrs. Cristina (sic) Saludo. And I
found out that there was not (sic) delay in shipping the remains of
Mrs. Saludo to Manila. Since we received the body from American
Airlines on 28 October at 7:45 and we expedited the shipment so that
it could have been loaded on our flight leaving at 9:00 in the evening
or just barely one hour and 15 minutes prior to the departure of the
aircraft. That is so (sic) being the case, I reported to Manila these
circumstances. 70

IV. Finally, petitioners insist, as a consequence of the delay in the shipment of their mother's remains
allegedly caused by wilful contractual breach, on their entitlement to actual, moral and exemplary
damages as well as attorney's fees, litigation expenses, and legal interest.

The uniform decisional tenet in our jurisdiction bolds that moral damages may be awarded for wilful
or fraudulent breach of contract 71 or when such breach is attended by malice or bad
faith. 72 However, in the absence of strong and positive evidence of fraud, malice or bad faith, said
damages cannot be awarded.73 Neither can there be an award of exemplary damages 74 nor of
attorney's fees 75 as an item of damages in the absence of proof that defendant acted with malice,
fraud or bad faith.

The censurable conduct of TWA's employees cannot, however, be said to have approximated the
dimensions of fraud, malice or bad faith. It can be said to be more of a lethargic reaction produced
and engrained in some people by the mechanically routine nature of their work and a racial or
societal culture which stultifies what would have been their accustomed human response to a human
need under a former and different ambience.

Nonetheless, the facts show that petitioners' right to be treated with due courtesy in accordance with
the degree of diligence required by law to be exercised by every common carrier was violated by
TWA and this entitles them, at least, to nominal damages from TWA alone. Articles 2221 and 2222
of the Civil Code make it clear that nominal damages are not intended for indemnification of loss
suffered but for the vindication or recognition of a right violated of invaded. They are recoverable
where some injury has been done but the amount of which the evidence fails to show, the
assessment of damages being left to the discretion of the court according to the circumstances of
the case.76 In the exercise of our discretion, we find an award of P40,000.00 as nominal damages in
favor of, petitioners to be a reasonable amount under the circumstances of this case.

WHEREFORE, with the modification that an award of P40,000.00 as and by way of nominal
damages is hereby granted in favor of petitioners to be paid by respondent Trans World Airlines, the
appealed decision is AFFIRMED in all other respects.

SO ORDERED.

G.R. No. 108997 April 21, 1995

LUFTHANSA GERMAN AIRLINE, petitioner,

vs.
COURT OF APPEALS and DON M. FERRY, respondents.

MENDOZA, J.:

Lufthansa German Airlines, petitioner herein, seeks a review of the Decision of the Court of Appeals
promulgated on January 29,1992 in CA-G.R. No. 22494.1 That decision affirmed in toto the judgment
of the Regional Trial Court of Makati (Branch 145) rendered on July 25, 1988 in Civil Case No.
13306,2 condemning Lufthansa to pay Don M. Ferry, herein private respondent, the following
amounts:

(a) US$75,000.00 or its peso equivalent at the time of payment as actual damages;

(b) USS75,000.00, or its peso equivalent at the time of payment, as moral damages;

(c) US$25,000.00 or its peso equivalent at the time of payment, as exemplary

damages;

(d) US$25,000,00 peso equivalent at the time of payment, as attorney's fees and
litigation expenses;
 (e) All the foregoing amounts to bear interest at the legal rate from the date of filing of
the complaint until fully paid; and

(f) Costs of suit.

The relevant facts recited in the appealed judgment, we, and adopted by the Court of Appeals from
the summary setforth by Lufthansa in its brief:3 "Stripped of non-essentials," said the Appellate Court,
"and as disclosed from defendant-appellant's brief, the antecedent facts of the case are as follows:

5. On 16 May 1985, plaintiff-appellee (Don Ferry) purchased from the defendant-

appellant a San Francisco/ New York/ Paris/ Frankfurt/Manila first class open dated
ticket (Exh. "B" and Exh. "1").

(a) There was no carrier indicated for the San Francisco/New

York/Paris portions of the journey.

(b) The carrier box for the Paris/ Frankfurt/Manila portion of the ticket
shows the letter "LH" which indicates that plaintiff- appellee agreed to
fly those portions or legs of his journey on defendant-appellant
Lufthansa.

6. On June 3, 1985, plaintiff-appellee went to Lufthansa's San Francisco office

allegedly to get Lufthansa to endorse the San Francisco/New York portion of his
journey to Trans World Airlines ("TWA" for brevity).

(a) But, there was no need to secure said endorsement since no

carrier was indicated in the ticket for the San Francisco/New York leg
of the journey (Exh. "B" or "1").

(b) Thus, plaintiff-appellee was told by Mrs. Ingrid Egger Lufthansa's

ticket agent in its San Francisco office, that no endorsement was
required or necessary and that he should go back to TWA and
request them to accept the ticket without any endorsement (t.s.n. of
Aug. 26, 1987, pp. 20-23 in relation to Exh. "B" and Exh. "1").

7 Instead of going to TWA as advised, plaintiff requested Mrs. Egger for a different
routing which omitted the New York/Paris leg of his original itinerary.

(a) Said new routing would require the endorsement of the ticket.

(b) Hence, Mrs. Egger advised the plaintiff-appellee that she would
need to get an authorization from Lufthansa's Manila office in order to
endorse plaintiff-appellee's ticket, She also explained to plaintiff-
appellee the procedure for obtaining the authorization and the reason
why it was required.

(c) Upon being advised that securing the necessary authorization

could possibly take a day or more, plaintiff-appellee advised Mrs.
Egger that he could not wait (t.s.n. of Aug. 26, 1987, pp. 27, 40, 46,
73, 74 and 76).
8. Thereafter. plaintiff-appellee settled on a new routing of San
Francisco/Frankfurt/Cologne/Frankfurt/Manila thereby omitting the New York/Paris
legs of his original itinerary.

(a) Instead of writing "LH" on the carrier's boxes opposite each

portion of plaintiffs new ticket (Exh; "C" and Exh. "2") starting with the
San Francisco portion up to Manila, Mrs. Egger simplified matters by
indicating on the restriction box the phrase "LH only" (Ibid., pp. 29-
34).

9 On. 10 June 1985, plaintiff-appellee went to Baden-Baden GmbH, a travel agency,

to make arrangements for his. return to Manila on June 12,1985.

(a) Since no Lufthansa flights were scheduled to leave for Manila on

June 12, 1985; plaintiff made a booking on a Cathay Pacific Airlines
flight ("CPA") which was supposed to leave the Frankfurt Airport for
Hong Kong at noon at 12 June 1985.

10 On June 12, 1985, plaintiff-appeIlee went to the Frankfurt Airport.

(a) The CPA ticket agent informed the plaintiff that an endorsement
from the defendant-appellant Lufthansa was required for him to travel
on CPA.

(b) Plaintiff-appellee then proceeded to the Lufthansa's ticket counter

at the Frankfurt Airport.

11. Plaintiff-appellee met with Miss Petra Wilhelm, Lufthansa's ticket agent therein.

(a) Miss Wilhelm reiterated Ms. Egger's previous advise that due to
currency restrictions, authorization from Lufthansa's Manila office was
required before she could endorse plaintiffs ticket to CPA (t.s.n. of
Oct. 10, 1987, pp. 21-26).

(b) The reason for the need to get an endorsement from Lufthansa's
Manila office and the procedure for obtaining such endorsement was
fully explained to the plaintiff-appellee for the second time by Miss
Wilhelm (ibid, in relation to Exhs. "10" and "10-A").

(c) Since it would take Miss Wilhelm sometime to communicate and

obtain the endorsement from the defendant's Manila office, it was
obvious at that time that plaintiff-appellee would be unable to board
the CPA flight which he booked.

12. Consequently, upon plaintiff-appellee's request Miss Wilhelm booked him on a

Lufthansa flight leaving Frankfurt Airport in the afternoon of the same day, 12 June
1985 for Bangkok and for the Bangkok/Manila portion of his journey, Miss Wilhelm
booked plaintiff on a Thai Airways flight (Ibid., pp. 36-37).

13. Plaintiff-appellee was able to depart Frankfurt Airport in the afternoon of 12 June
1985 on the Lufthansa flight and was able to board the Thai Airways flight from
 Bangkok to Manila, arriving thereat in the afternoon of the following day. (Appellant's
Brief, pp. 4-8).

Evidently in the belief that the facts created a right of action in his favor, Don Ferry filed a complaint
against Lufthansa on April 1,1986 in the Regional Trial Court of Makati, for recovery of damages
arising from breach of contract.4 Lufthansa filed its Answer on May 28, 1986, setting up a compulsory
counterclaim for compensatory and exemplary damages, attorney's fees, expenses of litigation and
costs of suit.

On July 25, 1988, the trial court rendered its decision earlier adverted to, awarding to private
respondent the amount of damages prayed for in his complaint. The decision was affirmed in toto by
the Court of Appeals. Hence, this petition, in which it is contended that respondent Court of Appeals
committed errors of law in:

(a) applying the rule that "findings of the lower court are generally final" and that the
"testimonies of petitioner's witnesses are open to criticism as interested witnesses"
since respondent Court of Appeals accepted the testimonies of petitioner's witnesses
in its statement of facts;

(b) ruling that petitioner "is duty-bound to provide plaintiff-appellee air transport" for
the San Francisco/New York/Paris route when it made the Francisco/New York/Paris
portions of the journey and private respondent had omitted the New York/Paris leg of
his original itinerary;

(c) ruling that petitioner is guilty of bad faith when it "changed plaintiff-appellee's
unrestricted ticket to a partly restricted ticket without informing the plaintiff-appellee.

(d) ruling that petitioner "violated its contract of air carriage with plaintiff-appellee by
refusing to endorse plaintiff-appellee's first class full fare Lufthansa ticket to Cathay
Pacific Airways," since it also made the factual findings that "Miss Wilhelm reiterated
Ms. Egger's previous advice that due to currency restrictions, authorization from
Lufthansa's Manila office was required" and that "since it would take Miss Wilhelm
sometime to communicate and obtain the endorsement from the defendant's Manila
office, it was obvious that plaintiff-appellee would be unable to board the CPA flight
which he booked;

(e) awarding actual damages of US$75,000.00 or its peso equivalent in favor of

private respondent when there is no proof that would justify the exorbitant award;

(f) awarding moral damages of US$75,000.00 or its peso equivalent in favor of

prlvate, respondent when there is no proof of bad faith or malice Moreover,
granting arguendo that there is basis for the award of moral damages, the award is
"outrageously exorbitant";

(g) awarding exemplary damages of, US$25,000.00 or its peso equivalent in favor of
private respondent when there is no proof that petitioner or its employees acted in a
wanton, fraudulent, reckless, oppressive or malevolent manner, Moreover,
granting arguendo that there is basis for the award of exemplary damages, the award
is outrageously exorbitant;

(h) awarding attorney's fees and litigation expenses of US$25.000.00 or its peso
equivalent in favor of private respondent when there is no proof that petitioner acted
 in gross and evident bad faith. Furthermore, there is also no proof presented as to
the attorney's fees and expenses of litigation claimed by private respondent; and,

(i) awarding interests.

The established rule is that the findings of the trial court as to the credibility of witnesses are
accorded much respect, if not indeed conclusive effect, save only in those exceptional instances
where they are clearly shown to be arbitrary.5 In the case at bench, the Trial Court refused to accord
any credit to petitioner Airline's "three (3) foreign witnesses" because they are "all long-time
employees of defendant which also shouldered all their expenses" (in coming to this country to give
evidence) and hence, their testimonies "are tained polluted and should be seen with disfavor.6

While it may be true, as the trial court opines, "that testimony of employees of a party is 'of course
open to the criticism that they would naturally testify, as far as they possibly could in favor of their
employers; and in weighing testimony such a relation between a witness and a party is frequently
noticed by the court,7 it is equally true that the fact that the witness is an employee or an overseer of
a party is not of itself sufficient to discredit his testimony.8

This Court has intensively analyzed the testimonies of petitioner's said·three (3) witnesses and found
them to be clear, straightforward and convincing. They spoke authoritatively of their respective lines
of work, and candidly of their dealings with private respondent, without betraying any trace of
falsehood or partiality, or any attempt to exculpate petitioner from the alleged breach of contract; in
fact, it may even be said that some of their statements were somewhat damaging to their employer's
cause.

That petitioner paid for its witnesses expenses in coming to the Philippines to testify, is not a valid
cause for disbelieving their testimonies; it seems but natural and reasonable under the peculiar
circumstances of the case that petitioner should do so. For the record, however, only the expenses
of Mrs. Ingrid Egger and Mrs. Petra Wilhelm were shouldered by petitioner, the third witness, Mr.
Berndt Loewe, then being based in Manila as petitioner's passenger sales manager. Considering the
known disinclination of persons to be involved in court litigations, even if it be only as witnesses. it is
hardly reasonable to expect petitioner's witnesses to agree to bear the cost of flying to and staying in
Manila to testify in the case. At any rate, there is no showing whatever that petitioner's witnesses
were otherwise so materially benefited by their travel to the Philippines, or were so fanatically loyal
to Lufthansa, as to be motivated to distort the thruth and testify falsely in the latter's favor.

The trial court as well as the appellate court gravely erred therefore, in totally disregarding the
testimonies of petitioner's witnesses on the basis alone of the employment relationship between
them. Their factual findings cannot consequently be accorded binding effect,9 and this Court is thus
constrained to itself weigh and evaluate the evidence presented by the parties.

To begin with, private respondent was bound by the conditions of the contract of carriage purchased
by him from Lufthansa. 10 The ticket 11 did not indicate any carrier for the San Francisco/New York leg
of respondent Ferry's journey. He was therefore free to choose his airline for that leg. With respect,
however, to the Paris/Frankfurt /manila portion of his journey, private respondent was deemed to
have agreed to fly Lufthansa as shown by the letters "LH" written on the carrier box.

Thus, in San Francisco, when private respondent chose to take a TWA flight to New York, no
endorsement from petitioner Airline was required because, as just mentioned, his ticket did not
indicate any carrier for the San Francisco/New York leg. It was only in the Paris/Frankfurt/Manila leg
that an endorsement was needed if private respondent desired to fly with an airline other than
Lufthansa. These conditions were communicated to private respondent by Ingrid Egger, petitioner's
ticket agent:

Q Now, during his testimony in Court on February 17, 1987, the

plaintiff, Mr. Don Ferry testified in Court that he went to the Lufthansa
office in San Francisco, was able to talk to you, presented a ticket
which was originally issued in Manila requested you to give him an
endorsement as required by TWA so that he could use the ticket for
his flight from San Francisco to new York, what can you say about
that allegation of the plaintiff?

A I told the passenger that an endorsement is not necessary on that

ticket when he presented to me for the portion he wanted to use it for.

Q Now, you said that you told Mr. Ferry that there was no need for a
Lufthansa endorsement for him to use the ticket for the San
Francisco/New York portion of his journey, why did you say that?

A There was no carrier entered into the carrier block. It was open,
therefore, any carrier should have accepted that portion of the ticket
between San Francisco and New York.

Q What did he tell you, that this was a requirement being imposed by
the TWA?

A I told him that he should go back to TWA and tell them what I told
him that it does not need any endorsement for the portion of the
ticket. 12

xxx xxx xxx

Q Did the plaintiff, Mr. Ferry tell you that he-went to the TWA offices
in the same building to have a domestic flight from San Francisco to
New York and that the TWA offices said that it was necessary to get
a Lufthansa endorsement?

A Yes.

Q And what was your reply?

A I told him that it was not necessary for that endorsement.

Q Yes, but could you have given him an endorsement?

A Yes, if he wanted to go to San Francisco/New York and New York

to Paris, I could give him an endorsement.

Q Yes, but the point is, he asked for an endorsement but you did not
give him an endorsement, is that not correct?
 A I told him he could go back to TWA because he does not need any
endorsement.

Q But the fact is despite his request for endorsement, you did not
give him such endorsement, is that not correct?

A His request for endorsement was for a different routing.13

xxx xxx xxx

Q Now, when Mr. Don Ferry went to see you on June 3, 1985 and
informed you that the TWA downstairs needed an endorsement of
Lufthansa, you could have given him an endorsement s you said but
instead, you told him there was no need, is that correct?

A That is right.

Q Why did you not give him an endorsement?

A Because after we have a conversation, he told me that he wanted

to have a different routing.

Q Yes, but when he requested you for an endorsement. It was very

easy for you to give him an endorsement, was it not?

A That is not what he wanted. He wanted a different routing.

Q That was after when you did not want to give him an endorsement?

A That is not right. He came out and he said he wanted an

endorsement and I said, if you want to fly to New York. you don't
need an endorsement, and then he said, that is not what I want. I
want to have a different routing.

Q You mean to say in the same conversation. he told you he did not
like to fly from San Francisco to New York?

A He told me he needed a different routing.14

From the testimony of Mrs. Egger, it is clear that the there was no refusal on the part of petitioner
airline to give the endorsement required by TWA. The reason no endorsement was given was that
there was no requirement for such endorsement. At this point, petitioner Airline did not refuse to give
him an endorsement being required by TWA. It is one thing to say that petitioner airline refused to
give a required endorsement, and another to say that since no endorsement was needed, none was
given.

The same cannot, however, be said with respect to the Frankfurt/Manila portion of respondent
Ferry's journey. Petitioner's witness, Mr. Berndt Loewe, admitted that the Baden-Baden GMBH was
a Lufthansa-appointed travel agent, authorized to make reservations and confirmations, 15 and that
despite the fact that Exhibit "E" was a page of a notebook produced by German Railway Company
referring to train connections. 16 the same should be deemed a confirmation of the flight arrangement
contained thereon:

Q Now, if you look at Exhibit "E" as an expert, would you believe that
there was confirmed reservation of Cathay Pacific Airways for the
flight Frankfurt-Hongkong, Hongkong-Manila?

A Yes, it say here okay, Frankfurt Hongkong, there is a word "okay"

so, it seems that Cathay Pacific gave okay to the travel agent.

Q Frankfurt/Hongkong okay for June 12?

A Yes.

Q Hongkong - Manila okay for June 13?

A Yes.

Q For first class?

A Yes.

Q With seat?

A yes, with seat number 7-K to Hongkong and I-a to Manila.

Q So, you would say that this Exhibit "E" is a confirmed flight for
Cathay Pacific from Frankfurt Hongkong, Hongkong, Manila?

A Yes, according to what is written here.

Q And this travel is authorized to make confirmation?

Private respondent having previously obtained a flight confirmation from a Lufthansa-appointed

travel agent, there was no reason why the Frankfurt Lufthansa office should not give the
endorsement needed by private respondent fly Cathay Pacific Airways. That confirmation
necessarily carried with it the prior approval of Lufthansa for private respondent to employ another
airline so that all that was needed was the actual, physical signification of said approval through an
endorsement which should have been given as a matter of course. Petitioner's failure in this regard
constituted breach of its contract of carriage with private respondent.

The breach was not attended by fraud or bad faith, however. When Petra Wilhelm; petitioner airline's
ticket agent at its Frankfurt Airport office, informed private respondent that an authorization from
Manila was needed before she could give an endorsement, what was foremost in her mind was the
policy regarding currency restrictions in effect at that time, which was made known and explained to
private respondent in San Francisco. Apparently, the significance of the previously confirmed
reservation completely escaped Mrs. Wilhelm on that occasion. The omission or failure of petitioner
airline then to give private respondent the required endorsement was thus evidently due to a
misappreciation of the significance of private respondent's previously confirmed reservation, and not
to any willful desire to deny private respondent the night to utilize another airline.
We cannot give credence to private respondent's claim that he was treated rudely by petitioner
airline's personnel. His testimony on the matter is equivocal, to say the least reservation and:

Q Now, what did you do when you went to Lufthansa counter at the
airport for the endorsement?

A The woman in the counter was most interesting in one way.

Q Why?

A She gave me the impression of totally impolite. When I presented

the ticket to her, I said I need an endorsement for Cathay Pacific. She
said, I cannot give an endorsement. I wonder why she immediately
showed that impolite attitude.

Q What did you do next?

A I said, what seems to be the problem? She said well, you have a
restricted ticket. What that does mean, I said. It means that you
cannot get endorsement and even if I give you endorsement I still
have to communicate in Manila, and then you have to wait.

xxx xxx xxx

Q What did you do next?

A Then I said I have a problem about Frankfurt because I don't have

to go anywhere. If she could help me to get a hotel and she said that
is not our business. So, I said, what can I do. I don't really know. And
finally, I asked her if there was any Lufthansa flight to anywhere near
Manila to region.

xxx xxx xxx

Q What happened next?

A Then she looked at my ticket and she said that I will have to pay
extra for the flight. I said this is impossible. I have a first class ticket
and fully paid. If I have gone direct from Frankfurt to Manila, I don't
have to be charged anything. How come that I will be charged now
for the Thai connection and she said well, that is a special rate.

Q What was your reply?

A I disagree. I denied. I said I paid the full amount of this ticket and I
did not get any special rate.

Q What was the tenor of your conversation between you and the
German Lufthansa stewardess?
 A We were both getting every excited. I was getting very excited
because I had fever and she was totally unfriendly to my mind.

Q What happened next?

A Finally, she looked at my ticket. I said why don't you compute?

What additional amount I have to pay so that I can see if I can afford
it. So she did. And finally, she said, you can be accommodated. 18

This allegation was directly rebutted by Mrs. Wilhelm, to whose

testimony 19 we lend credence as it conforms to normal human behavior:

Q . . . My question to you Mrs. witness is: Were you very impolite to

the plaintiff?

A No; sir. There is no reason to be impolite to a person or to

passenger I never has (sic) seen before and if there was no
discussion between us, there is no reason to be impolite.

Q Would you be impolite to a passenger who merely asks for an

endorsement?.

A No, sir.

Q Have you received request for endorsement of tickets before?

A Often, sir.

Q What do you do upon receipt of such request for endorsement?

A I looked at the ticket and checked whether we can get the

endorsement and if I can I would give the endorsement and if I
cannot, I will explain why I cannot and I would not be impolite to him.

Where the defendant is not shown to have acted fraudulently or in bad faith in breaching the
contract, liability for damages is limited to the natural and probable consequences of the breach of
the obligation, and which the parties had foreseen or could reasonably have foreseen. In such a
case, liability would not include the payment of moral and exemplary damages. Under Article 2232 of
the Civil Code, in a contractual or quasi-contractual relationship, moral or exemplary damages may
be awarded only if the defendant had acted in a wanton, fraudulent, reckless, oppressive or
malevolent manner. 20

The trial Court's award of actual damages for unrealized profits in the amount of US$75,000.00,
must also be disallowed, private respondent's claim thereto being highly speculative. The realization
of profits by respondent Ferry from a real estate development project in Foster City was not a
certainty, but depended on a number of factors, foremost of which was his ability to invite investors
and to win the bid. Even private respondent himself could only speculate on the amount of profit he
might have earned from said transaction: 21

Q From this estimated profit of $687.000.00 if the land were

developed. how much would have been your share?
 A Well, I can only speculate on that depending on the fact on how
much money I would get in the form of commission. I can only
surmise that I could get for at least $200.000.00 dollars.

Q If the land would have been developed, how much would be the
profit?

A Based on what was reported to me by Mr. Navarete when the

original buyer turned around, maybe million dollar, 550 thousand
dollars or 800 thousand, the profit was 200 thousand on the land
alone. And I again speculate my share would be 100 thousand
dollars.

"Actual or compensatory damages cannot be presumed, but must be duly proved, and proved with
reasonable degree of certainty. A court cannot rely on speculations, conjecture or guesswork as to
the fact and amount of damages, but must depend upon competent proof that they have (been)
suffered and on evidence of the actual amount thereof." 22

There is no room to doubt that some species of injury was caused to private respondent because of
petitioner airline's failure to endorse his ticket to Cathay Pacific Airways. In the absence of
competent proof on the actual damage suffered, private respondent is "entitled to nominal damages
— which, as the law says, is adjudicated in order that a right of the plaintiff, which has been violated
or invaded by the defendant, may be vindicated and recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered." 23 We consider the amount of P50,000.00 just and
reasonable under the circumstances.

An award of P20,000.00 for and as attorney's fees is likewise just and equitable, private respondent
having been compelled to incur expenses to protect his interests.

WHEREFORE, the decision of the Court of Appeals in CA-G.R. CV No. 22494 dated January 29,
1993 is hereby MODIFIED by the deletion of the awards of actual, moral and exemplary damages,
as well as the interest thereon. Petitioner Lufthansa German Airlines is hereby ORDERED to pay
private respondent Don Ferry the amount of P50,000.00 as nominal damages and the amount of
P20,000.00 as and for attorney's fees. No pronouncement as to costs.

SO ORDERED.

[ G.R. No. L-8194, July 11, 1956 ]

EMERENCIANA M. VDA. DE MEDINA, ET AL., PLAINTIFFS AND

APPELLEES VS. GUILLERMO CRESENCIA, ET AL., DEFENDANTS.
GUILLERMO CRESENCIA, APPELLANT.

DECISION

REYES, J.B.L., J.:

Appeal by defendant Guillermo Cresencia from the judgment of the
Court of First Instance of Manila in its civil case No. 19890, sentencing
appellant, jointly and severally with his co-defendant Brigido Avorque, to
pay plaintiffs Emerencia M. Vda. de Medina and her minor children
damages in the total amount of P56,000, P5,000 attorneys' fees, and costs.
It appears that on May 31, 1953, passenger jeepney bearing plate No.
TPU-2232 (Manila), driven by Brigido
Avorque, smashed into a Meralco post on Azcarraga Street, resulting in
the death of Vicente Medina, one of its passengers. A criminal case for
homicide through reckless imprudence was filed against Avorque (criminal
case No. 22775 of the Court of First Instance of Manila), to which lie
pleaded guilty on September 9, 1953. The heirs of the deceased, however,
reserved their right to file a separate action fbr damages, and on
June 16, 1953, brought suit against the driver Brigido Avorque and
appellant Guillermo Cresencia, the registered owner and operator of the
jeepney in question. Defendant Brigido Avorque did not file any answer;
while defendant Cresencia answered, disclaiming liability on the ground
that he had sold the jeepney in question on October 14, 1950 to one Maria
A. Cudiamat; that the jeepney had been repeatedly sold by one
buyer after another, until the vehicle was purchased on
January 29, 1953 by Rosario Avorque, the absolute owner thereof at the
time of the accident. In view of Cresencia's answer, plaintiffs filed leave,
and was allowed, to amend their complaint making Rosario Avorque a co-
defendant; and the latter, by way of answer, admitted having purchased
the aforesaid jeepney on May 31, 1953, but alleged in defense that she was
never the public utility operator thereof. The case then proceeded to
trial, during which, after the plaintiffs had presented their
evidence, defendants Guillermo Cresencia and Rosario Avorque made
manifestations admitting' that the former was still the registered operator
of the jeepney in question in the records of the Motor Vehicles Office and
the Public Service Commission, while the latter was the owner thereof at
the time of the accident; and submitted the case for the decision on
the question of who, as between the two, should be held liable to
plaintiffs for damages. The lower court, by Judge Jose Zulueta, held that
as far as the public is concerned, defendant Cresencia, in the eyes of the
law, continued to be the legal owner of the jeepney in
question; and rendered judgment against him, jointly and severally with
the driver Brigido Avorque, for P6,000 compensatory damages, P30,000
moral damages, P10,000 exemplary damages, P10,000 nominal damages,
P5,000 attorneys fees, and costs, while defendant Rosario Avorque was
absolved from liability. From this judgment, defendant Cresencia
appealed.
We have already held in the case of Montoya vs. Ignacio,
94 Phil., 182 (December 29, 1953), which the court below cited, that the
law (section 20 [g], C. A. No. 146 as amended) requires the approval of the
Public Service Commission in order that a franchise, or any privilege
pertaining thereto, may be sold or leased without infringing the certificate
issued to the grantee; and that if property covered by the franchise is
transferred or leased without this requisite approval, the transfer is not
binding against the public or the Service Commission; and in
contemplation of law, the grantee of record continues to be responsible
under the franchise in relation to the Commission and to the public. There
we gave the reason for this rule to be as follows:
"* * * Since a franchise is personal in nature any transfer or lease thereof
should be notified to the Public Service Commission so that the latter
may take proper safeguards to protect the interest of the public In fact, the
law requires that, before the approval is granted, there should be a
public hearing, with notice to all interested parties, in order that the
Commission may determine if there are good and reasonable grounds
justifying the transfer or lease of the property covered by the franchise, or
if the sale or lease is detrimental to public interest. * * *"
The above ruling was later reiterated in the cases of Timbol vs. Osias, L-
7547, April 30, 1955 and Roque vs.Malibay Transit Inc., L-8561,
November 18, 1955.
As the sale of the jeepney here in question was admittedly without the
approval of the Public Service Commission, appellant
herein, Guillermo Cresencia, who is the registered owner and operator
thereof, continued to be liable to the Commission and the public for the
consequences incident to its operation. Wherefore, the lower court did
not err in holding him, and not the buyer Rosario Avorque, responsible for
the damages sustained by plaintiff by reason of the death of Vicente Medina
resulting from the reckless negligence of the jeepney's driver, Brigido
Avorque.
Appellant also argues that the basis of plaintiffs' action being the
employer's subsidiary liability under the Revised Penal Code for damages
arising from his, employee's criminal acts, it is defendant Rosario
Avorque who should answer subsidiarily for the damages sustained by
plaintiffs, since she admits that she, and not appellant, is the employer of
the negligent driver Brigido Avorque. The argument is untenable/because
plaintiffs' action for damages is independent of the criminal
case filed against Brigido Avorque, and based, not on the employer's
subsidiary liability under the Revised Penal Code, but on a breach of
the carrier's contractual obligation to carry his passengers safely to their
destination (culpa contractual). And it is also for this reason that there is
no need of first proving the insolvency of the driver Brigido Avorque
before damages can be recovered from the carrier, for in culpa contractual,
the liability of the carrier is not merely subsidiary or secondary, but direct
and immediate (Articles 1755, 1756, and 1759, New Civil Code).
The propriety of the damages awarded has not been
questioned. Nevertheless, it is patent upon the record that the award of
P10,000 by way of nominal damages is untenable as a matter of law, since
nominal damages can not co-exist with compensatory damages. The
purpose of nominal damages is to vindicate or recognize a right that
has been violated, in order to preclude further contest thereon; "and
not for the purpose of indemnifying the plaintiff for any loss suffered by
him" (Articles 2221, 2223, new Civil Code.) Since the court below has
already awarded compensatory and exemplary damages that are in
themselves a judicial recognition that plaintiff's right was violated, the
award of nominal damages is unnecessary and improper." Anyway,
ten thousand pesos can not, in common sense, be deemed "nominal".
With the modification that the award of P10,000 nominal damages" be
eliminated, the decision appealed from id affirmed. Costs against appellant.
So ordered.
HEIRS OF EDUARDO MANLAPAT, G.R. No. 125585
represented by GLORIA MANLAPAT-
BANAAG and LEON M. BANAAG, JR., Petitioners, Present:

PUNO, J.,*
Chairman,
- versus - AUSTRIA-MARTINEZ,
Acting Chairman,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.
HON. COURT OF APPEALS,
RURAL BANK OF SAN PASCUAL,
INC., and JOSE B. SALAZAR,
CONSUELO CRUZ and Promulgated:
ROSALINA CRUZ-BAUTISTA,
and the REGISTER OF DEEDS of
Meycauayan, Bulacan, June 8, 2005
Respondents.

x-------------------------------------------------------------------x

DECISION

TINGA, J.:

Before this Court is a Rule 45 petition assailing

the Decision[1] dated 29 September 1994 of the Court of Appeals
that reversed the Decision[2] dated 30 April 1991 of the Regional
Trial Court (RTC) of Bulacan, Branch 6, Malolos. The trial court
declared Transfer Certificates of Title (TCTs) No. T-9326-P(M) and
No. T-9327-P(M) as void ab initio and ordered the restoration of
Original Certificate of Title (OCT) No. P-153(M) in the name of
Eduardo Manlapat (Eduardo), petitioners predecessor-in-interest.

The controversy involves Lot No. 2204, a parcel of land with an

area of 1,058 square meters, located at Panghulo, Obando,
Bulacan. The property had been originally in the possession of Jose
Alvarez, Eduardos grandfather, until his demise in 1916. It
remained unregistered until 8 October 1976 when OCT No. P-
153(M) was issued in the name of Eduardo pursuant to a free
patent issued in Eduardos name[3] that was entered in the Registry
of Deeds of Meycauayan, Bulacan.[4] The subject lot is adjacent to a
fishpond owned by one

Ricardo Cruz (Ricardo), predecessor-in-interest of respondents

Consuelo Cruz and Rosalina Cruz-Bautista (Cruzes).[5]
 On 19 December 1954, before the subject lot was titled,
Eduardo sold a portion thereof with an area of 553 square meters to
Ricardo. The sale is evidenced by a deed of sale entitled Kasulatan
ng Bilihang Tuluyan ng Lupang Walang Titulo (Kasulatan) [6] which
was signed by Eduardo himself as vendor and his wife Engracia
Aniceto with a certain Santiago Enriquez signing as witness. The
deed was notarized by Notary Public Manolo Cruz.[7] On 4 April
1963, the Kasulatan was registered with the Register of Deeds of
Bulacan.[8]

On 18 March 1981, another Deed of Sale[9] conveying another

portion of the subject lot consisting of 50 square meters as right of
way was executed by Eduardo in favor of Ricardo in order to reach
the portion covered by the first sale executed in 1954 and to have
access to his fishpond from the provincial road.[10] The deed was
signed by Eduardo himself and his wife Engracia Aniceto, together
with Eduardo Manlapat, Jr. and Patricio Manlapat. The same was
also duly notarized on 18 July 1981 by Notary Public Arsenio
Guevarra.[11]

In December 1981, Leon Banaag, Jr. (Banaag), as attorney-in-

fact of his father-in-law Eduardo, executed a mortgage with the
Rural Bank of San Pascual, Obando Branch (RBSP),
for P100,000.00 with the subject lot as collateral. Banaag deposited
the owners duplicate certificate of OCT No. P-153(M) with the bank.

On 31 August 1986, Ricardo died without learning of the prior

issuance of OCT No. P-153(M) in the name of Eduardo.[12] His heirs,
the Cruzes, were not immediately aware of the consummated sale
between Eduardo and Ricardo.

Eduardo himself died on 4 April 1987. He was survived by his

heirs, Engracia Aniceto, his spouse; and children, Patricio,
Bonifacio, Eduardo, Corazon, Anselmo, Teresita and Gloria, all
surnamed Manlapat.[13] Neither did the heirs of Eduardo
(petitioners) inform the Cruzes of the prior sale in favor of their
predecessor-in-interest, Ricardo. Yet subsequently, the Cruzes
came to learn about the sale and the issuance of the OCT in the
name of Eduardo.

Upon learning of their right to the subject lot, the Cruzes

immediately tried to confront petitioners on the mortgage and
obtain the surrender of the OCT. The Cruzes, however, were
thwarted in their bid to see the heirs. On the advice of the Bureau
of Lands, NCR Office, they brought the matter to
the barangay captain of Barangay Panghulo, Obando, Bulacan.
During the hearing, petitioners were informed that the Cruzes had a
legal right to the property covered by OCT and needed the OCT for
the purpose of securing a separate title to cover the interest of
Ricardo. Petitioners, however, were unwilling to surrender the
OCT.[14]

Having failed to physically obtain the title from petitioners, in

July 1989, the Cruzes instead went to RBSP which had custody of
the owners duplicate certificate of the OCT, earlier surrendered as a
consequence of the mortgage. Transacting with RBSPs manager,
Jose Salazar (Salazar), the Cruzes sought to borrow the owners
duplicate certificate for the purpose of photocopying the same and
thereafter showing a copy thereof to the Register of Deeds. Salazar
allowed the Cruzes to bring the owners duplicate certificate outside
the bank premises when the latter showed the Kasulatan.[15] The
Cruzes returned the owners duplicate certificate on the same day
after having copied the same. They then brought the copy of the
OCT to Register of Deeds Jose Flores (Flores) of Meycauayan and
showed the same to him to secure his legal opinion as to how the
Cruzes could legally protect their interest in the property and
register the same.[16] Flores suggested the preparation of a
subdivision plan to be able to segregate the area purchased by
Ricardo from Eduardo and have the same covered by a separate
title.[17]
 Thereafter, the Cruzes solicited the opinion of Ricardo
Arandilla (Arandilla), Land Registration Officer, Director III, Legal
Affairs Department, Land Registration Authority at Quezon City,
who agreed with the advice given by Flores.[18] Relying on the
suggestions of Flores and Arandilla, the Cruzes hired two geodetic
engineers to prepare the corresponding subdivision plan. The
subdivision plan was presented to the Land Management Bureau,
Region III, and there it was approved by a certain Mr. Pambid of
said office on 21 July 1989.

After securing the approval of the subdivision plan, the Cruzes

went back to RBSP and again asked for the owners duplicate
certificate from Salazar. The Cruzes informed him that the
presentation of the owners duplicate certificate was necessary, per
advise of the Register of Deeds, for the cancellation of the OCT and
the issuance in lieu thereof of two separate titles in the names of
Ricardo and Eduardo in accordance with the approved subdivision
plan.[19]Before giving the owners duplicate certificate, Salazar
required the Cruzes to see Atty. Renato Santiago (Atty. Santiago),
legal counsel of RBSP, to secure from the latter a clearance to
borrow the title. Atty. Santiago would give the clearance on the
condition that only Cruzes put up a substitute collateral, which
they did.[20] As a result, the Cruzes got hold again of the owners
duplicate certificate.

After the Cruzes presented the owners duplicate certificate,

along with the deeds of sale and the subdivision plan, the Register
of Deeds cancelled the OCT and issued in lieu thereof TCT No. T-
9326-P(M) covering 603 square meters of Lot No. 2204 in the name
of Ricardo and TCT No. T-9327-P(M) covering the remaining 455
square meters in the name of Eduardo.[21]

On 9 August 1989, the Cruzes went back to the bank and

surrendered to Salazar TCT No. 9327-P(M) in the name of Eduardo
and retrieved the title they had earlier given as substitute collateral.
After securing the new separate titles, the Cruzes furnished
petitioners with a copy of TCT No. 9327-P(M) through
the barangay captain and paid the real property tax for 1989.[22]

The Cruzes also sent a formal letter to Guillermo Reyes, Jr.,

Director, Supervision Sector, Department III of the Central Bank of
the Philippines, inquiring whether they committed any violation of
existing bank laws under the circumstances. A certain Zosimo
Topacio, Jr. of the Supervision Sector sent a reply letter advising
the Cruzes, since the matter is between them and the bank, to get
in touch with the bank for the final settlement of the case.[23]

In October of 1989, Banaag went to RBSP, intending to tender

full payment of the mortgage obligation. It was only then that he
learned of the dealings of the Cruzes with the bank which
eventually led to the subdivision of the subject lot and the issuance
of two separate titles thereon. In exchange for the full payment of
the loan, RBSP tried to persuade petitioners to accept TCT No. T-
9327-P(M) in the name of Eduardo.[24]

As a result, three (3) cases were lodged, later consolidated,

with the trial court, all involving the issuance of the TCTs, to wit:

(1) Civil Case No. 650-M-89, for reconveyance with

damages filed by the heirs of Eduardo Manlapat against
Consuelo Cruz, Rosalina Cruz-Bautista, Rural Bank of San
Pascual, Jose Salazar and Jose Flores, in his capacity as
Deputy Registrar, Meycauayan Branch of the Registry of
Deeds of Bulacan;

(2) Civil Case No. 141-M-90 for damages filed by Jose

Salazar against Consuelo Cruz, et. [sic] al.; and

(3) Civil Case No. 644-M-89, for declaration of nullity

of title with damages filed by Rural Bank of San Pascual,
Inc. against the spouses Ricardo Cruz and Consuelo Cruz,
et al.[25]
 After trial of the consolidated cases, the RTC of Malolos
rendered a decision in favor of the heirs of Eduardo, the dispositive
portion of which reads:

WHEREFORE, premised from the foregoing, judgment

is hereby rendered:

1.Declaring Transfer Certificates of Title Nos. T-

9326-P(M) and T-9327-P(M) as void ab initio and
ordering the Register of Deeds, Meycauayan Branch
to cancel said titles and to restore Original Certificate
of Title No. P-153(M) in the name of plaintiffs
predecessor-in-interest Eduardo Manlapat;

2.-Ordering the defendants Rural Bank of San

Pascual, Jose Salazar, Consuelo Cruz and Rosalina
Cruz-Bautista, to pay the plaintiffs Heirs of Eduardo
Manlapat, jointly and severally, the following:

a)P200,000.00 as moral damages;

b)P50,000.00 as exemplary damages;
c)P20,000.00 as attorneys fees; and
d)the costs of the suit.

3.Dismissing the counterclaims.

SO ORDERED.[26]

The trial court found that petitioners were entitled to the reliefs of
reconveyance and damages. On this matter, it ruled that petitioners
were bona fidemortgagors of an unclouded title bearing no
annotation of any lien and/or encumbrance. This fact, according to
the trial court, was confirmed by the bank when it accepted the
mortgage unconditionally on 25 November 1981. It found that
petitioners were complacent and unperturbed, believing that the
title to their property, while serving as security for a loan, was
safely vaulted in the impermeable confines of RBSP. To their
surprise and prejudice, said title was subdivided into two portions,
leaving them a portion of 455 square meters from the original total
area of 1,058 square meters, all because of the fraudulent and
negligent acts of respondents and RBSP. The trial court ratiocinated
that even assuming that a portion of the subject lot was sold by
Eduardo to Ricardo, petitioners were still not privy to the
transaction between the bank and the Cruzes which eventually led
to the subdivision of the OCT into TCTs No. T-9326-P(M) and No. T-
9327-P(M), clearly to the damage and prejudice of petitioners.[27]

Concerning the claims for damages, the trial court found the
same to be bereft of merit. It ruled that although the act of the
Cruzes could be deemed fraudulent, still it would not constitute
intrinsic fraud. Salazar, nonetheless, was clearly guilty of
negligence in letting the Cruzes borrow the owners duplicate
certificate of the OCT. Neither the bank nor its manager had
business entrusting to strangers titles mortgaged to it by other
persons for whatever reason. It was a clear violation of the mortgage
and banking laws, the trial court concluded.

The trial court also ruled that although Salazar was personally
responsible for allowing the title to be borrowed, the bank could not
escape liability for it was guilty of contributory negligence. The
evidence showed that RBSPs legal counsel was sought for advice
regarding respondents request. This could only mean that RBSP
through its lawyer if not through its manager had known in
advance of the Cruzes intention and still it did nothing to prevent
the eventuality. Salazar was not even summarily dismissed by the
bank if he was indeed the sole person to blame. Hence, the banks
claim for damages must necessarily fail.[28]

The trial court granted the prayer for the annulment of the TCTs as
a necessary consequence of its declaration that reconveyance was
in order. As to Flores, his work being ministerial as Deputy Register
of the Bulacan Registry of Deeds, the trial court absolved him of any
liability with a stern warning that he should deal with his future
transactions more carefully and in the strictest sense as a
responsible government official.[29]

Aggrieved by the decision of the trial court, RBSP, Salazar and

the Cruzes appealed to the Court of Appeals. The appellate court,
however, reversed the decision of the RTC. The decretal text of the
decision reads:

THE FOREGOING CONSIDERED, the appealed

decision is hereby reversed and set aside, with costs
against the appellees.

SO ORDERED.[30]

The appellate court ruled that petitioners were not bona

fide mortgagors since as early as 1954 or before the 1981 mortgage,
Eduardo already sold to Ricardo a portion of the subject lot with an
area of 553 square meters. This fact, the Court of Appeals noted, is
even supported by a document of sale signed by Eduardo Jr. and
Engracia Aniceto, the surviving spouse of Eduardo, and registered
with the Register of Deeds of Bulacan. The appellate court also
found that on 18 March 1981, for the second time, Eduardo sold to
Ricardo a separate area containing 50 square meters, as a road
right-of-way.[31]Clearly, the OCT was issued only after the first sale.
It also noted that the title was given to the Cruzes by RBSP
voluntarily, with knowledge even of the banks counsel.[32] Hence,
the imposition of damages cannot be justified, the Cruzes
themselves being the owners of the property. Certainly, Eduardo
misled the bank into accepting the entire area as a collateral since
the 603-square meter portion did not anymore belong to him. The
appellate court, however, concluded that there was no conspiracy
between the bank and Salazar.[33]

Hence, this petition for review on certiorari.

 Petitioners ascribe errors to the appellate court by asking the
following questions, to wit: (a) can a mortgagor be compelled to
receive from the mortgagee a smaller portion of the originally
encumbered title partitioned during the subsistence of the
mortgage, without the knowledge of, or authority derived from, the
registered owner; (b) can the mortgagee question the veracity of the
registered title of the mortgagor, as noted in the owners duplicate
certificate, and thus, deliver the certificate to such third persons,
invoking an adverse, prior, and unregistered claim against the
registered title of the mortgagor; (c) can an adverse prior claim
against a registered title be noted, registered and entered without a
competent court order; and (d) can belief of ownership justify the
taking of property without due process of law?[34]

The kernel of the controversy boils down to the issue of

whether the cancellation of the OCT in the name of the petitioners
predecessor-in-interest and its splitting into two separate titles, one
for the petitioners and the other for the Cruzes, may be accorded
legal recognition given the peculiar factual backdrop of the case. We
rule in the affirmative.

Private respondents (Cruzes) own

the portion titled in their names

Consonant with law and justice, the ultimate denouement of

the property dispute lies in the determination of the respective
bases of the warring claims. Here, as in other legal disputes, what is
written generally deserves credence.

A careful perusal of the evidence on record reveals that the

Cruzes have sufficiently proven their claim of ownership over the
portion of Lot No. 2204 with an area of 553 square meters. The duly
notarized instrument of conveyance was executed in 1954 to which
no less than Eduardo was a signatory. The execution of the deed of
sale was rendered beyond doubt by Eduardos admission in
his Sinumpaang Salaysay dated 24 April 1963.[35] These documents
make the affirmance of the right of the Cruzes ineluctable. The
apparent irregularity, however, in the obtention of the owners
duplicate certificate from the bank, later to be presented to the
Register of Deeds to secure the issuance of two new TCTs in place of
the OCT, is another matter.

Petitioners argue that the 1954 deed of sale was not annotated
on the OCT which was issued in 1976 in favor of Eduardo; thus, the
Cruzes claim of ownership based on the sale would not hold water.
The Court is not persuaded.

Registration is not a requirement for validity of the contract as

between the parties, for the effect of registration serves chiefly to
bind third persons.[36] The principal purpose of registration is
merely to notify other persons not parties to a contract that a
transaction involving the property had been entered into. Where the
party has knowledge of a prior existing interest which is
unregistered at the time he acquired a right to the same land, his
knowledge of that prior unregistered interest has the effect of
registration as to him.[37]

Further, the heirs of Eduardo cannot be considered third

persons for purposes of applying the rule. The conveyance shall not
be valid against any person unless registered, except (1) the
grantor, (2) his heirs and devisees, and (3) third persons having
actual notice or knowledge thereof.[38] Not only are petitioners the
heirs of Eduardo, some of them were actually parties to
the Kasulatan executed in favor of Ricardo. Thus, the annotation of
the adverse claim of the Cruzes on the OCT is no longer required to
bind the heirs of Eduardo, petitioners herein.

Petitioners had no right to constitute

mortgage over disputed portion
 The requirements of a valid mortgage are clearly laid down in
Article 2085 of the New Civil Code, viz:

ART. 2085. The following requisites are essential to

the contracts of pledge and mortgage:

(1) That they be constituted to secure the

fulfillment of a principal obligation;
(2) That the pledgor or mortgagor be the absolute
owner of the thing pledged or mortgaged;
(3) That the persons constituting the pledge or
mortgage have the free disposal of their
property, and in the absence thereof, that
they be legally authorized for the purpose.

Third persons who are not parties to the principal

obligation may secure the latter by pledging or
mortgaging their own property. (emphasis supplied)

For a person to validly constitute a valid mortgage on real estate, he

must be the absolute owner thereof as required by Article 2085 of
the New Civil Code.[39] The mortgagor must be the owner, otherwise
the mortgage is void.[40] In a contract of mortgage, the mortgagor
remains to be the owner of the property although the property is
subjected to a lien.[41] A mortgage is regarded as nothing more than
a mere lien, encumbrance, or security for a debt, and passes no title
or estate to the mortgagee and gives him no right or claim to the
possession of the property.[42] In this kind of contract, the property
mortgaged is merely delivered to the mortgagee to secure the
fulfillment of the principal obligation.[43] Such delivery does not
empower the mortgagee to convey any portion thereof in favor of
another person as the right to dispose is an attribute of
ownership.[44] The right to dispose includes the right to donate, to
sell, to pledge or mortgage. Thus, the mortgagee, not being the
owner of the property, cannot dispose of the whole or part thereof
nor cause the impairment of the security in any manner without
violating the foregoing rule.[45] The mortgagee only owns the
mortgage credit, not the property itself.[46]

Petitioners submit as an issue whether a mortgagor may be

compelled to receive from the mortgagee a smaller portion of the lot
covered by the originally encumbered title, which lot was
partitioned during the subsistence of the mortgage without the
knowledge or authority of the mortgagor as registered owner. This
formulation is disingenuous, baselessly assuming, as it does, as an
admitted fact that the mortgagor is the owner of the mortgaged
property in its entirety. Indeed, it has not become a salient issue in
this case since the mortgagor was not the owner of the entire
mortgaged property in the first place.

Issuance of OCT No. P-153(M), improper

It is a glaring fact that OCT No. P-153(M) covering the property

mortgaged was in the name of Eduardo, without any annotation of
any prior disposition or encumbrance. However, the property was
sufficiently shown to be not entirely owned by Eduardo as
evidenced by the Kasulatan. Readily apparent upon perusal of the
records is that the OCT was issued in 1976, long after
the Kasulatan was executed way back in 1954. Thus, a portion of
the property registered in Eduardos name arising from the grant of
free patent did not actually belong to him. The utilization of the
Torrens system to perpetrate fraud cannot be accorded judicial
sanction.

Time and again, this Court has ruled that the principle of
indefeasibility of a Torrens title does not apply where fraud attended
the issuance of the title, as was conclusively established in this
case. The Torrens title does not furnish a shied for
fraud.[47] Registration does not vest title. It is not a mode of
acquiring ownership but is merely evidence of such title over a
particular property. It does not give the holder any better right than
what he actually has, especially if the registration was done in bad
faith. The effect is that it is as if no registration was made at
all.[48] In fact, this Court has ruled that a decree of registration cut
off or extinguished a right acquired by a person when such right
refers to a lien or encumbrance on the landnot to the right of
ownership thereofwhich was not annotated on the certificate of title
issued thereon.[49]

Issuance of TCT Nos. T-9326-P(M)

and T-9327-P(M), Valid

The validity of the issuance of two TCTs, one for the portion
sold to the predecessor-in-interest of the Cruzes and the other for
the portion retained by petitioners, is readily apparent from Section
53 of the Presidential Decree (P.D.) No. 1529 or the Property
Registration Decree. It provides:

SEC 53. Presentation of owners duplicate upon entry of

new certificate. No voluntary instrument shall be registered
by the Register of Deeds, unless the owners duplicate
certificate is presented with such instrument, except in
cases expressly provided for in this Decree or upon order of
the court, for cause shown.

The production of the owners duplicate certificate,

whenever any voluntary instrument is presented for
registration, shall be conclusive authority from the
registered owner to the Register of Deeds to enter a
new certificate or to make a memorandum of
registration in accordance with such instrument, and
the new certificate or memorandum shall be binding upon
the registered owner and upon all persons claiming under
him, in favor of every purchaser for value and in good faith.

In all cases of registration procured by fraud, the

owner may pursue all his legal and equitable remedies
against the parties to such fraud without prejudice,
however, to the rights of any innocent holder of the decree
of registration on the original petition or application, any
 subsequent registration procured by the presentation of a
forged duplicate certificate of title, or a forged deed or
instrument, shall be null and void. (emphasis supplied)

Petitioners argue that the issuance of the TCTs violated the

third paragraph of Section 53 of P.D. No. 1529. The argument is
baseless. It must be noted that the provision speaks of forged
duplicate certificate of title and forged deed or instrument. Neither
instance obtains in this case. What the Cruzes presented before the
Register of Deeds was the very genuine owners duplicate certificate
earlier deposited by Banaag, Eduardos attorney-in-fact, with RBSP.
Likewise, the instruments of conveyance are authentic, not forged.
Section 53 has never been clearer on the point that as long as the
owners duplicate certificate is presented to the Register of Deeds
together with the instrument of conveyance, such presentation
serves as conclusive authority to the Register of Deeds to issue a
transfer certificate or make a memorandum of registration in
accordance with the instrument.

The records of the case show that despite the efforts made by
the Cruzes in persuading the heirs of Eduardo to allow them to
secure a separate TCT on the claimed portion, their ownership
being amply evidenced by the Kasulatan and Sinumpaang
Salaysay where Eduardo himself acknowledged the sales in favor of
Ricardo, the heirs adamantly rejected the notion of separate titling.
This prompted the Cruzes to approach the bank manager of RBSP
for the purpose of protecting their property right. They succeeded in
persuading the latter to lend the owners duplicate certificate.
Despite the apparent irregularity in allowing the Cruzes to get hold
of the owners duplicate certificate, the bank officers consented to
the Cruzes plan to register the deeds of sale and secure two new
separate titles, without notifying the heirs of Eduardo about it.

Further, the law on the matter, specifically P.D. No. 1529, has
no explicit requirement as to the manner of acquiring the owners
duplicate for purposes of issuing a TCT. This led the Register of
Deeds of Meycauayan as well as the Central Bank officer, in
rendering an opinion on the legal feasibility of the process resorted
to by the Cruzes. Section 53 of P.D. No. 1529 simply requires the
production of the owners duplicate certificate, whenever any
voluntary instrument is presented for registration, and the same
shall be conclusive authority from the registered owner to the
Register of Deeds to enter a new certificate or to make a
memorandum of registration in accordance with such instrument,
and the new certificate or memorandum shall be binding upon the
registered owner and upon all persons claiming under him, in favor
of every purchaser for value and in good faith.
Quite interesting, however, is the contention of the heirs of
Eduardo that the surreptitious lending of the owners duplicate
certificate constitutes fraud within the ambit of the third paragraph
of Section 53 which could nullify the eventual issuance of the TCTs.
Yet we cannot subscribe to their position.
Impelled by the inaction of the heirs of Eduardo as to their
claim, the Cruzes went to the bank where the property was
mortgaged. Through its manager and legal officer, they were
assured of recovery of the claimed parcel of land since they are the
successors-in-interest of the real owner thereof. Relying on the
bank officers opinion as to the legality of the means sought to be
employed by them and the suggestion of the Central Bank officer
that the matter could be best settled between them and the bank,
the Cruzes pursued the titling of the claimed portion in the name of
Ricardo. The Register of Deeds eventually issued the disputed TCTs.

The Cruzes resorted to such means to protect their interest in

the property that rightfully belongs to them only because of the
bank officers acquiescence thereto. The Cruzes could not have
secured a separate TCT in the name of Ricardo without the banks
approval. Banks, their business being impressed with public
interest, are expected to exercise more care and prudence than
private individuals in their dealings, even those involving registered
lands.[50] The highest degree of diligence is expected, and high
standards of integrity and performance are even required of it.[51]

Indeed, petitioners contend that the mortgagee cannot

question the veracity of the registered title of the mortgagor as
noted in the owners duplicate certificate, and, thus, he cannot
deliver the certificate to such third persons invoking an adverse,
prior, and unregistered claim against the registered title of the
mortgagor. The strength of this argument is diluted by the peculiar
factual milieu of the case.

A mortgagee can rely on what appears on the certificate of title

presented by the mortgagor and an innocent mortgagee is not
expected to conduct an exhaustive investigation on the history of
the mortgagors title. This rule is strictly applied to banking
institutions. A mortgagee-bank must exercise due diligence before
entering into said contract. Judicial notice is taken of the standard
practice for banks, before approving a loan, to send representatives
to the premises of the land offered as collateral and to investigate
who the real owners thereof are.[52]

Banks, indeed, should exercise more care and prudence in

dealing even with registered lands, than private individuals, as their
business is one affected with public interest. Banks keep in trust
money belonging to their depositors, which they should guard
against loss by not committing any act of negligence that amounts
to lack of good faith. Absent good faith, banks would be denied the
protective mantle of the land registration statute, Act 496, which
extends only to purchasers for value and good faith, as well as to
mortgagees of the same character and description.[53] Thus, this
Court clarified that the rule that persons dealing with registered
lands can rely solely on the certificate of title does not apply to
banks.[54]

Bank Liable for Nominal Damages

 Of deep concern to this Court, however, is the fact that the
bank lent the owners duplicate of the OCT to the Cruzes when the
latter presented the instruments of conveyance as basis of their
claim of ownership over a portion of land covered by the title.
Simple rationalization would dictate that a mortgagee-bank has no
right to deliver to any stranger any property entrusted to it other
than to those contractually and legally entitled to its possession.
Although we cannot dismiss the banks acknowledgment of the
Cruzes claim as legitimized by instruments of conveyance in their
possession, we nonetheless cannot sanction how the bank was
inveigled to do the bidding of virtual strangers. Undoubtedly, the
banks cooperative stance facilitated the issuance of the TCTs. To
make matters worse, the bank did not even notify the heirs of
Eduardo. The conduct of the bank is as dangerous as it is
unthinkably negligent. However, the aspect does not impair the
right of the Cruzes to be recognized as legitimate owners of their
portion of the property.

Undoubtedly, in the absence of the banks participation, the

Register of Deeds could not have issued the disputed TCTs. We
cannot find fault on the part of the Register of Deeds in issuing the
TCTs as his authority to issue the same is clearly sanctioned by
law. It is thus ministerial on the part of the Register of Deeds to
issue TCT if the deed of conveyance and the original owners
duplicate are presented to him as there appears on theface of the
instruments no badge of irregularity or

nullity.[55] If there is someone to blame for the shortcut resorted to

by the Cruzes, it would be the bank itself whose manager and legal
officer helped the Cruzes to facilitate the issuance of the TCTs.

The bank should not have allowed complete strangers to take

possession of the owners duplicate certificate even if the purpose is
merely for photocopying for a danger of losing the same is more
than imminent. They should be aware of the conclusive
presumption in
Section 53. Such act constitutes manifest negligence on the part of
the bank which would necessarily hold it liable for damages under
Article 1170 and other relevant provisions of the Civil Code.[56]

In the absence of evidence, the damages that may be awarded

may be in the form of nominal damages. 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.[57] This award rests on the mortgagors
right to rely on the banks observance of the highest diligence in the
conduct of its business. The act of RBSP of entrusting to
respondents the owners duplicate certificate entrusted to it by the
mortgagor without even notifying the mortgagor and absent any
prior investigation on the veracity of respondents claim and

character is a patent failure to foresee the risk created by the act in

view of the provisions of Section 53 of P.D. No. 1529. This act runs
afoul of every banks mandate to observe the highest degree of
diligence in dealing with its clients. Moreover, a mortgagor has also
the right to be afforded due process before deprivation or
diminution of his property is effected as the OCT was still in the
name of Eduardo. Notice and hearing are indispensable elements of
this right which the bank miserably ignored.

Under the circumstances, the Court believes the award

of P50,000.00 as nominal damages is appropriate.

Five-Year Prohibition against alienation

or encumbrance under the Public Land Act
 One vital point. Apparently glossed over by the courts below
and the parties is an aspect which is essential, spread as it is all
over the record and intertwined with the crux of the controversy,
relating as it does to the validity of the dispositions of the subject
property and the mortgage thereon. Eduardo was issued a title in
1976 on the basis of his free patent application. Such application
implies the recognition of the public dominion character of the land
and, hence, the five (5)-year prohibition imposed by the Public Land
Act against alienation or encumbrance of the land covered by a free
patent or homestead[58] should have been considered.

The deed of sale covering the fifty (50)-square meter right of

way executed by Eduardo on 18 March 1981 is obviously covered
by the proscription, the free patent having been issued on 8 October
1976. However, petitioners may recover the portion sold since the
prohibition was imposed in favor of the free patent holder.
In Philippine National Bank v. De los Reyes,[59] this Court ruled
squarely on the point, thus:

While the law bars recovery in a case where the object of

the contract is contrary to law and one or both parties
acted in bad faith, we cannot here apply the doctrine of in
pari delicto which admits of an exception, namely, that
when the contract is merely prohibited by law, not
illegal per se, and the prohibition is designed for the
protection of the party seeking to recover, he is entitled to
the relief prayed for whenever public policy is enhanced
thereby. Under the Public Land Act, the prohibition to
alienate is predicated on the fundamental policy of the
State to preserve and keep in the family of the homesteader
that portion of public land which the State has gratuitously
given to him, and recovery is allowed even where the land
acquired under the Public Land Act was sold and not
merely encumbered, within the prohibited period.[60]
 The sale of the 553 square meter portion is a different story. It
was executed in 1954, twenty-two (22) years before the issuance of
the patent in 1976. Apparently, Eduardo disposed of the portion
even before he thought of applying for a free patent. Where the sale
or transfer took place before the filing of the free patent application,
whether by the vendor or the vendee, the prohibition should not be
applied. In such situation, neither the prohibition nor the rationale
therefor which is
to keep in the family of the patentee that portion of the public land
which the government has gratuitously given him, by shielding him
from the temptation to dispose of his landholding, could be
relevant. Precisely, he had disposed of his rights to the lot even
before the government could give the title to him.

The mortgage executed in favor of RBSP is also beyond the

pale of the prohibition, as it was forged in December 1981 a few
months past the period of prohibition.

WHEREFORE, the Decision of the Court of Appeals is AFFIRMED,

subject to the modifications herein. Respondent Rural Bank of San
Pascual is hereby ORDERED to PAY petitioners Fifty Thousand
Pesos (P50,000.00) by way of nominal damages. Respondents
Consuelo Cruz and Rosalina Cruz-Bautista are hereby DIVESTED
of title to, and respondent Register of Deeds of Meycauayan,
Bulacan is accordingly ORDERED to segregate, the portion of fifty
(50) square meters of the subject Lot No. 2204, as depicted in the
approved plan covering the lot, marked as Exhibit A, and to issue a
new title covering the said portion in the name of the petitioners at
the expense of the petitioners. No costs.

SO ORDERED.