SERGIO F. NAGUIAT, doing business under the name and style SERGIO F.
NAGUIAT Due to the phase-out of the US military bases in the Philippines, from which Clark Air Base
ENT., INC., & CLARK FIELD TAXI, INC., petitioners, vs. NATIONAL LABOR RELATIONS
COMMISSION (THIRD DIVISION), NATIONAL ORGANIZATION OF WORKINGMEN and its
members, LEONARDO T. GALANG, et al., respondents.
DECISION
PANGANIBAN, J.:
Are private respondent-employees of petitioner Clark Field Taxi, Inc., who were separated
from service due to the closure of Clark Air Base, entitled to separation pay and, if so, in what
amount? Are officers of corporations ipso facto liable jointly and severally with the companies
they represent for the payment of separation pay?
These questions are answered by the Court in resolving this petition for certiorari under Rule
65 of the Rules of Court assailing the Resolutions of the National Labor Relations
Commission (Third Division)[1] promulgated on February 28, 1994,[2] and May 31, 1994.[3] The
February 28, 1994 Resolution affirmed with modifications the decision[4] of Labor Arbiter Ariel
C. Santos in NLRC Case No. RAB-III-12-2477-91. The second Resolution denied the motion
for reconsideration of herein petitioners.
The NLRC modified the decision of the labor arbiter by granting separation pay to herein
individual respondents in the increased amount of US$120.00 for every year of service or its
peso equivalent, and holding Sergio F. Naguiat Enterprises, Inc., Sergio F. Naguiat and
Antolin T. Naguiat, jointly and severally liable with Clark Field Taxi, Inc. ("CFTI").
The Facts
The following facts are derived from the records of the case:
Petitioner CFTI held a concessionaire's contract with the Army Air Force Exchange Services
("AAFES") for the operation of taxi services within Clark Air Base. Sergio F. Naguiat was
CFTI's president, while Antolin T. Naguiat was its vice-president. Like Sergio F. Naguiat
Enterprises, Incorporated ("Naguiat Enterprises"), a trading firm, it was a family-owned
corporation.
Individual respondents were previously employed by CFTI as taxicab drivers. During their
employment, they were required to pay a daily "boundary fee" in the amount of US$26.50 for
those working from 1:00 a.m. to 12:00 noon, and US$27.00 for those working from 12:00
noon to 12:00 midnight. All incidental expenses for the maintenance of the vehicles they were
driving were accounted against them, including gasoline expenses.
The drivers worked at least three to four times a week, depending on the availability of
taxicabs. They earned not less than US$15.00 daily. In excess of that amount, however, they
were required to make cash deposits to the company, which they could later withdraw every
fifteen days.
marcelo|torts and damages|full text
was not spared, the AAFES was dissolved, and the services of individual respondents were
officially terminated on November 26, 1991.
The AAFES Taxi Drivers Association ("drivers' union"), through its local president, Eduardo
Castillo, and CFTI held negotiations as regards separation benefits that should be awarded in
favor of the drivers. They arrived at an agreement that the separated drivers will be
given P500.00 for every year of service as severance pay. Most of the drivers accepted said
amount in December 1991 and January 1992. However, individual respondents herein
refused to accept theirs.
Instead, after disaffiliating themselves from the drivers' union, individual respondents, through
the National Organization of Workingmen ("NOWM"), a labor organization which they
subsequently joined, filed a complaint[5] against "Sergio F. Naguiat doing business under the
name and style Sergio F. Naguiat Enterprises, Inc., Army-Air Force Exchange Services
(AAFES) with Mark Hooper as Area Service Manager, Pacific Region, and AAFES Taxi
Drivers Association with Eduardo Castillo as President," for payment of separation pay due to
termination/phase-out. Said complaint was later amended[6] to include additional taxi drivers
who were similarly situated as complainants, and CFTI with Antolin T. Naguiat as vice
president and general manager, as party respondent.
In their complaint, herein private respondents alleged that they were regular employees of
Naguiat Enterprises, although their individual applications for employment were approved by
CFTI. They claimed to have been assigned to Naguiat Enterprises after having been hired by
CFTI, and that the former thence managed, controlled and supervised their employment.They
averred further that they were entitled to separation pay based on their latest daily earnings of
US$15.00 for working sixteen (16) days a month.
In their position paper submitted to the labor arbiter, herein petitioners claimed that the
cessation of business of CFTI on November 26, 1991, was due to "great financial losses and
lost business opportunity" resulting from the phase-out of Clark Air Base brought about by the
Mt. Pinatubo eruption and the expiration of the RP-US military bases agreement. They
admitted that CFTI had agreed with the drivers' union, through its President Eduardo Castillo
who claimed to have had blanket authority to negotiate with CFTI in behalf of union members,
to grant its taxi driver-employees separation pay equivalent to P500.00 for every year of
service.
The labor arbiter, finding the individual complainants to be regular workers of CFTI, ordered
the latter to pay them P1,200.00 for every year of service "for humanitarian consideration,"
setting aside the earlier agreement between CFTI and the drivers' union of P500.00 for every
year of service. The labor arbiter rejected the allegation of CFTI that it was forced to close
business due to "great financial losses and lost business opportunity" since, at the time it
ceased operations, CFTI was profitably earning and the cessation of its business was due to
the untimely closure of Clark Air Base. In not awarding separation pay in accordance with the
Labor Code, the labor-arbiter explained:
"To allow respondents exemption from its (sic) obligation to pay separation pay would be
inhuman to complainants but to impose a monetary obligation to an employer whose
Page 1
profitable business was abruptly shot (sic) down by force majeure would be unfair and unjust
to say the least."[7]
and thus, simply awarded an amount for "humanitarian consideration."
Herein individual private respondents appealed to the NLRC. In its Resolution, the NLRC
modified the decision of the labor arbiter by granting separation pay to the private
respondents. The concluding paragraphs of the NLRC Resolution read:
"The contention of complainant is partly correct. One-half month salary should be US$120.00
but this amount can not be paid to the complainant in U.S. Dollar which is not the legal tender
in the Philippines. Paras, in commenting on Art. 1249 of the New Civil Code, defines legal
tender as 'that which a debtor may compel a creditor to accept in payment of the debt. The
complainants who are the creditors in this instance can be compelled to accept the Philippine
peso which is the legal tender, in which case, the table of conversion (exchange rate) at the
time of payment or satisfaction of the judgment should be used. However, since the choice is
left to the debtor, (respondents) they may choose to pay in US dollar.' (Phoenix Assurance
Co. vs. Macondray & Co. Inc., L-25048, May 13, 1975)
In discharging the above obligations, Sergio F. Naguiat Enterprises, which is headed by
Sergio F. Naguiat and Antolin Naguiat, father and son at the same time the President and
Vice-President and General Manager, respectively, should be joined as indispensable party
whose liability is joint and several. (Sec. 7, Rule 3, Rules of Court)"[8]
As mentioned earlier, the motion for reconsideration of herein petitioners was denied by the
NLRC. Hence, this petition with prayer for issuance of a temporary restraining order.Upon
posting by the petitioners of a surety bond, a temporary restraining order[9] was issued by this
Court enjoining execution of the assailed Resolutions.
Issues
The petitioners raise the following issues before this Court for resolution:
"I. Whether or not public respondent NLRC (3rd Div.) committed grave abuse of discretion
amounting to lack of jurisdiction in issuing the appealed resolution;
II. Whether or not Messrs. Teofilo Rafols and Romeo N. Lopez could validly represent herein
private respondents; and,
III. Whether or not the resolution issued by public respondent is contrary to law." [10]
Petitioners also submit two additional issues by way of a supplement[11] to their petition, to
Wit: that Petitioners Sergio F. Naguiat and Antolin Naguiat were denied due process; and that
petitioners were not furnished copies of private respondents' appeal to the NLRC. As to the
procedural lapse of insufficient copies of the appeal, the proper forum before which petitioners
should have raised it is the NLRC. They, however, failed to question this in their motion for
reconsideration. As a consequence, they are deemed to have waived the same and
voluntarily submitted themselves to the jurisdiction of the appellate body.
marcelo|torts and damages|full text
Anent the first issue raised in their original petition, petitioners contend that NLRC committed
grave abuse of discretion amounting to lack or excess of jurisdiction in unilaterally increasing
the amount of severance pay granted by the labor arbiter. They claim that this was not
supported by substantial evidence since it was based simply on the self-serving allegation of
respondents that their monthly take-home pay was not lower than $240.00.
On the second issue, petitioners aver that NOWM cannot make legal representations in
behalf of individual respondents who should, instead, be bound by the decision of the union
(AAFES Taxi Drivers Association) of which they were members.
As to the third issue, petitioners incessantly insist that Sergio F. Naguiat Enterprises, Inc. is a
separate and distinct juridical entity which cannot be held jointly and severally liable for the
obligations of CFTI. And similarly, Sergio F. Naguiat and Antolin Naguiat were merely officers
and stockholders of CFTI and, thus, could not be held personally accountable for corporate
debts.
Lastly, Sergio and Antolin Naguiat assail the Resolution of NLRC holding them solidarily liable
despite not having been impleaded as parties to the complaint.
Individual respondents filed a comment separate from that of NOWM. In sum, both aver that
petitioners had the opportunity but failed to refute, the taxi drivers' claim of having an average
monthly earning of $240.00; that individual respondents became members of NOWM after
disaffiliating themselves from the AAFES Taxi Drivers Association which, through the
manipulations of its President Eduardo Castillo, unconscionably compromised their separation
pay; and that Naguiat Enterprises, being their indirect employer, is solidarily liable under the
law for violation of the Labor Code, in this case, for nonpayment of their separation pay.
The Solicitor General unqualifiedly supports the allegations of private respondents. In
addition, he submits that the separate personalities of respondent corporations and their
officers should be disregarded and considered one and the same as these were used to
perpetrate injustice to their employees.
The Court's Ruling
As will be discussed below, the petition is partially meritorious.
First Issue: Amount of Separation Pay
Firmly, we reiterate the rule that in a petition for certiorari filed pursuant to Rule 65 of the
Rules of Court, which is the only way a labor case may reach the Supreme Court, the
petitioner/s must clearly show that the NLRC acted without or in excess of jurisdiction or with
grave abuse of discretion.[12]
Long-standing and well-settled in Philippine jurisprudence is the judicial dictum that findings of
fact of administrative agencies and quasi-judicial bodies, which have acquired expertise
because their jurisdiction is confined to specific matters, are generally accorded not only great
respect but even finality; and are binding upon this Court unless there is a showing of grave
Page 2
abuse of discretion, or where it is clearly shown that they were arrived at arbitrarily or in
disregard of the evidence on record.[13]
Nevertheless, this Court carefully perused the records of the instant case if only to determine
whether public respondent committed grave abuse of discretion, amounting to lack of
jurisdiction, in granting the clamor of private respondents that their separation pay should be
based on the amount of $240.00, allegedly their minimum monthly earnings as taxi drivers of
petitioners.
In their amended complaint before the Regional Arbitration Branch in San Fernando,
Pampanga, herein private respondents set forth in detail the work schedule and financial
arrangement they had with their employer. Therefrom they inferred that their monthly take-
home pay amounted to not less than $240.00. Herein petitioners did not bother to refute nor
offer any evidence to controvert said allegations. Remaining undisputed, the labor arbiter
adopted such facts in his decision. Petitioners did not even appeal from the decision of the
labor arbiter nor manifest any error in his findings and conclusions. Thus, petitioners are in
estoppel for not having questioned such facts when they had all opportunity to do so. Private
respondents, like petitioners, are bound by the factual findings of Respondent Commission.
Petitioners also claim that the closure of their taxi business was due to great financial losses
brought about by the eruption of Mt. Pinatubo which made the roads practically impassable to
their taxicabs. Likewise well-settled is the rule that business losses or financial reverses, in
order to sustain retrenchment of personnel or closure of business and warrant exemption from
payment of separation pay, must be proved with clear and satisfactory evidence. [14] The
records, however, are devoid of such evidence.
The labor arbiter; as affirmed by NLRC, correctly found that petitioners stopped their taxi
business within Clark Air Base because of the phase-out of U.S. military presence thereat. It
was not due to any great financial loss because petitioners' taxi business was earning
profitably at the time of its closure.
With respect to the amount of separation pay that should be granted, Article 283 of the Labor
Code provides:
"x x x In case of retrenchment to prevent losses and in cases of closures or cessation of
operations of establishment or undertaking not due to serious business losses or financial
reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half ()
month pay for every year of service, whichever is higher. A fraction of at least six (6) months
shall be considered one (1 ) whole year."
Considering the above, we find that NLRC did not commit grave abuse of discretion in ruling
that individual respondents were entitled to separation pay[15] in the amount $120.00 (one-half
of $240.00 monthly pay) or its peso equivalent for every year of service.
Second Issue: NOWM's Personality to
Represent Individual Respondents-Employees
marcelo|torts and damages|full text
On the question of NOWM's authority to represent private respondents, we hold petitioners in
estoppel for not having seasonably raised this issue before the labor arbiter or the
NLRC. NOWM was already a party-litigant as the organization representing the taxi driver-
complainants before the labor arbiter. But petitioners who were party-respondents in said
complaint did not assail the juridical personality of NOWM and the validity of its
representations in behalf of the complaining taxi drivers before the quasi-judicial
bodies. Therefore, they are now estopped from raising such question before this Court. In any
event, petitioners acknowledged before this Court that the taxi drivers allegedly represented
by NOWM, are themselves parties in this case.[16]
Third Issue: Liability of Petitioner-
Corporations and Their Respective Officers
The resolution of this issue involves another factual finding that Naguiat Enterprises actually
managed, supervised and controlled employment terms of the taxi drivers, making it their
indirect employer. As adverted to earlier, factual findings of quasi-judicial bodies are binding
upon the court in the absence of a showing of grave abuse of discretion.
Unfortunately, the NLRC did not discuss or give any explanation for holding Naguiat
Enterprises and its officers jointly and severally liable in discharging CFTI's liability for
payment of separation pay. We again remind those concerned that decisions, however
concisely written, must distinctly and clearly set forth the facts and law upon which they are
based.[17] This rule applies as well to dispositions by quasi-judicial and administrative bodies.
Naguiat Enterprises Not Liable
In impleading Naguiat Enterprises as solidarily liable for the obligations of CFTI, respondents
rely on Articles 106,[18] 107[19] and 109[20] of the Labor Code.
Based on factual submissions of the parties, the labor arbiter, however, found that individual
respondents were regular employees of CFTI who received wages on a boundary or
commission basis.
We find no reason to make a contrary finding. Labor-only contracting exists where: (1) the
person supplying workers to an employer does not have substantial capital or investment in
the form of tools, equipment, machinery, and work premises, among others; and (2) the
workers recruited and placed by such person are performing activities which are directly
related to the principal business of the employer.[21] Independent contractors, meanwhile, are
those who exercise independent employment, contracting to do a piece of work according to
their own methods without being subject to control of their employer except as to the result of
their work.[22]
From the evidence proffered by both parties, there is no substantial basis to hold that Naguiat
Enterprises is an indirect employer of individual respondents much less a labor only
contractor. On the contrary, petitioners submitted documents such as the drivers' applications
for employment with CFTI,[23] and social security remittances[24] and payroll[25] of Naguiat
Enterprises showing that none of the individual respondents were its employees. Moreover, in
Page 3
the contract[26] between CFTI and AAFES, the former, as concessionaire, agreed to purchase Witness
from AAFES for a certain amount within a specified period a fleet of vehicles to be "ke(pt) on
the road" by CFTI, pursuant to their concessionaire's contract. This indicates that CFTI He is the owner, sir.
became the owner of the taxicabs which became the principal investment and asset of the
company. Atty. Suarez

Private respondents failed to substantiate their claim that Naguiat Enterprises managed, How about with Clark Field Taxi Incorporated what is the position of Mr. Naguiat?
supervised and controlled their employment. It appears that they were confused on the
personalities of Sergio F. Naguiat as an individual who was the president of CFTI, and Sergio Witness
F. Naguiat Enterprises, Inc., as a separate corporate entity with a separate business. They
presumed that Sergio F. Naguiat, who was at the same time a stockholder and director [27] of What I know is that he is a concessionaire.
Sergio F. Naguiat Enterprises, Inc., was managing and controlling the taxi business on behalf
of the latter. A closer scrutiny and analysis of the records, however, evince the truth of the xxx xxx xxx
matter: that Sergio F. Naguiat, in supervising the-taxi drivers and determining their
employment terms, was rather carrying out his responsibilities as president of CFTI. Hence, Atty. Suarez
Naguiat Enterprises as a separate corporation does not appear to be involved at all in the taxi
But do you also know that Sergio F. Naguiat is the President of Clark Field Taxi,
business.
Incorporated?
To illustrate further, we refer to the testimony of a driver-claimant on cross examination.
Witness
"Atty. Suarez
Yes. sir.
Is it not true that you applied not with Sergio F. Naguiat but with Clark Field Taxi?
Atty. Suarez
Witness
How about Mr. Antolin Naguiat what is his role in the taxi services, the operation of the Clark
I applied for (sic) Sergio F. Naguiat Field Taxi, Incorporated?

Atty. Suarez Witness

Sergio F. Naguiat as an individual or the corporation? He is the vice president."[28]

Witness And, although the witness insisted that Naguiat Enterprises was his employer, he could not
deny that he received his salary from the office of CFTI inside the base. [29]
'Sergio F. Naguiat na tao.'
Another driver-claimant admitted, upon the prodding of counsel for the corporations, that
Atty. Suarez Naguiat Enterprises was in the trading business while CFTI was in taxi services.[30]

Who is Sergio F. Naguiat? In addition, the Constitution[31] of CFTI-AAFES Taxi Drivers Association which, admittedly,
was the union of individual respondents while still working at Clark Air Base, states that
Witness members thereof are the employees of CFTI and "(f)or collective bargaining purposes, the
definite employer is the Clark Field Taxi Inc."
He is the one managing the Sergio F. Naguiat Enterprises and he is the one whom we believe
as our employer. From the foregoing, the ineludible conclusion is that CFTI was the actual and direct employer
of individual respondents, and that Naguiat Enterprises was neither their indirect employer nor
Atty. Suarez labor-only contractor. It was not involved at all in the taxi business.

What is exactly the position of Sergio F. Naguiat with the Sergio F. Naguiat Enterprises? CFTI president solidarily liable

marcelo|torts and damages|full text Page 4

Petitioner-corporations would likewise want to avoid the solidary liability of their officers. To
bolster their position, Sergio F. Naguiat and Antolin T. Naguiat specifically aver that they were
denied due process since they were not parties to the complaint below. [32] In the broader
interest of justice, we, however, hold that Sergio F. Naguiat, in his capacity as president of
CFTI, cannot be exonerated from joint and several liability in the payment of separation pay to
individual respondents.
A.C. Ransom Labor Union-CCLU vs. NLRC[33] is the case in point. A.C. Ransom Corporation
was a family corporation, the stockholders of which were members of the Hernandez
family. In 1973, it filed an application for clearance to close or cease operations, which was
duly granted by the Ministry of Labor and Employment, without prejudice to the right of
employees to seek redress of grievance, if any. Backwages of 22 employees, who engaged in
a strike prior to the closure, were subsequently computed at P164,984.00. Up to September
1976, the union filed about ten (10) motions for execution against the corporation, but none
could be implemented, presumably for failure to find leviable assets of said corporation. In its
last motion for execution, the union asked that officers and agents of the company be held
personally liable for payment of the backwages. This was granted by the labor arbiter. In the
corporation's appeal to the NLRC, one of the issues raised was: "Is the judgment against a
corporation to reinstate its dismissed employees with backwages, enforceable against its
officer and agents, in their individual, private and personal capacities, who were not parties in
the case where the judgment was rendered?" The NLRC answered in the negative, on the
ground that officers of a corporation are not liable personally for official acts unless they
exceeded the scope of their authority.
On certiorari, this Court reversed the NLRC and upheld the labor arbiter. In imposing joint and
several liability upon the company president, the Court, speaking through Mme. Justice
Ameurfina Melencio-Herrera, ratiocinated this wise:
"(b) How can the foregoing (Articles 265 and 273 of the Labor Code) provisions be
implemented when the employer is a corporation? The answer is found in Article 212(c) of the
Labor Code which provides:
'(c) 'Employer' includes any person acting in the interest of an employer, directly or
indirectly. The term shall not include any labor organization or any of its officers or agents
except when acting as employer.'
The foregoing was culled from Section 2 of RA 602, the Minimum Wage Law. Since RANSOM
is an artificial person, it must have an officer who can be presumed to be the employer, being
the 'person acting in the interest of (the) employer' RANSOM. The corporation, only in the
technical sense, is the employer.
The responsible officer of an employer corporation can be held personally, not to say even
criminally, liable for nonpayment of back wages. That is the policy of the law. x x x
(c) If the policy of the law were otherwise, the corporation employer can have devious ways
for evading payment of back wages. x x x
marcelo|torts and damages|full text
(d) The record does not clearly identify 'the officer or officers' of RANSOM directly responsible
for failure to pay the back wages of the 22 strikers. In the absence of definite proof in that
regard, we believe it should be presumed that the responsible officer is the President of the
corporation who can be deemed the chief operation officer thereof. Thus, in RA 602, criminal
responsibility is with the 'Manager or in his default, the person acting as such.' In RANSOM,
the President appears to be the Manager." (Underscoring supplied.)
Sergio F. Naguiat, admittedly, was the president of CFTI who actively managed the
business. Thus, applying the ruling in A. C. Ransom, he falls within the meaning of an
"employer" as contemplated by the Labor Code, who may be held jointly and severally liable
for the obligations of the corporation to its dismissed employees.
Moreover, petitioners also conceded that both CFTI and Naguiat Enterprises were "close
family corporations"[34] owned by the Naguiat family. Section 100, paragraph 5, (under Title XII
on Close Corporations) of the Corporation Code, states:
"(5) To the extent that the stockholders are actively engage(d) in the management or
operation of the business and affairs of a close corporation, the stockholders shall be held to
strict fiduciary duties to each other and among themselves. Said stockholders shall
be personally liable for corporate torts unless the corporation has obtained reasonably
adequate liability insurance." (underscoring supplied)
Nothing in the records show whether CFTI obtained "reasonably adequate liability insurance;"
thus, what remains is to determine whether there was corporate tort.
Our jurisprudence is wanting as to the definite scope of "corporate tort." Essentially, "tort"
consists in the violation of a right given or the omission of a duty imposed by law.[35] Simply
stated, tort is a breach of a legal duty.[36] Article 283 of the Labor Code mandates the
employer to grant separation pay to employees in case of closure or cessation of operations
of establishment or undertaking not due to serious business losses or financial reverses,
which is the condition obtaining at bar. CFTI failed to comply with this law-imposed duty or
obligation. Consequently, its stockholder who was actively engaged in the management or
operation of the business should be held personally liable.
Furthermore, in MAM Realty Development vs. NLRC,[37] the Court recognized that a director
or officer may still be held solidarily liable with a corporation by specific provision of law.Thus:
"x x x A corporation, being a juridical entity, may act only through its directors, officers and
employees. Obligations incurred by them, acting as such corporate agents, are not theirs but
the direct accountabilities of the corporation they represent. True, solidary liabilities may at
times be incurred but only when exceptional circumstances warrant such as, generally, in the
following cases: Scl-aw
xxx xxx xxx
4. When a director, trustee or officer is made, by specific provision of law, personally liable for
his corporate action." (footnotes omitted)
Page 5
As pointed out earlier, the fifth paragraph of Section 100 of the Corporation Code specifically
imposes personal liability upon the stockholder actively managing or operating the business
and affairs of the close corporation.
In fact, in posting the surety bond required by this Court for the issuance of a temporary
restraining order enjoining the execution of the assailed NLRC Resolutions, only Sergio F.
Naguiat, in his individual and personal capacity, principally bound himself to comply with the
obligation thereunder, i.e., "to guarantee the payment to private respondents of any damages
which they may incur by reason of the issuance of a temporary restraining order sought, if it
should be finally adjudged that said principals were not entitled thereto."[38]
The Court here finds no application to the rule that a corporate officer cannot be held solidarily
liable with a corporation in the absence of evidence that he had acted in bad faith or with
malice.[39] In the present case, Sergio Naguiat is held solidarily liable for corporate tort
because he had actively engaged in the management and operation of CFTI, a close
corporation.
Antolin Naguiat not personally liable
Antolin T. Naguiat was the vice president of the CFTI. Although he carried the title of "general
manager" as well, it had not been shown that he had acted in such capacity.Furthermore, no
evidence on the extent of his participation in the management or operation of the business
was proffered. In this light, he cannot be held solidarily liable for the obligations of CFTI and
Sergio Naguiat to the private respondents.
Fourth Issue: No Denial of Due Process
Lastly, in petitioners' Supplement to their original petition, they assail the NLRC Resolution
holding Sergio F. Naguiat and Antolin T. Naguiat jointly and severally liable with petitioner-
corporations in the payment of separation pay, averring denial of due process since the
individual Naguiats were not impleaded as parties to the complaint.
We advert to the case of A.C. Ransom once more. The officers of the corporation were not
parties to the case when the judgment in favor of the employees was rendered. The corporate
officers raised this issue when the labor arbiter granted the motion of the employees to
enforce the judgment against them. In spite of this, the Court held the corporation president
solidarily liable with the corporation.
Furthermore, Sergio and Antolin Naguiat voluntarily submitted themselves to the jurisdiction of
the labor arbiter when they, in their individual capacities, filed a position paper[40]together with
CFTI, before the arbiter. They cannot now claim to have been denied due process since they
availed of the opportunity to present their positions.
WHEREFORE, the foregoing premises considered, the petition is PARTLY GRANTED. The
assailed February 28, 1994 Resolution of the NLRC is hereby MODIFIED as follows:
(1) Petitioner Clark Field Taxi, Incorporated, and Sergio F. Naguiat, president and co-owner
thereof, are ORDERED to pay, jointly and severally, the individual respondents their
marcelo|torts and damages|full text
separation pay computed at US$120.00 for every year of service, or its peso equivalent at the
time of payment or satisfaction of the judgment;
(2) Petitioner Sergio F. Naguiat Enterprises, Incorporated, and Antolin T. Naguiat
are ABSOLVED from liability in the payment of separation pay to individual respondents.
SO ORDERED.
LIWAYWAY VINZONS-CHATO, petitioner,
vs.
FORTUNE TOBACCO CORPORATION, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner assails the May 7, 1999 Decision1 of the Court of Appeals in CA-G.R. SP No.
47167, which affirmed the September 29, 1997 Order2 of the Regional Trial Court (RTC) of
Marikina, Branch 272, in Civil Case No. 97-341-MK, denying petitioner’s motion to dismiss.
The complaint filed by respondent sought to recover damages for the alleged violation of its
constitutional rights arising from petitioner’s issuance of Revenue Memorandum Circular No.
37-93 (RMC 37-93), which the Court declared invalid in Commissioner of Internal Revenue v.
Court of Appeals.3
Petitioner Liwayway Vinzons-Chato was then the Commissioner of Internal Revenue while
respondent Fortune Tobacco Corporation is an entity engaged in the manufacture of different
brands of cigarettes, among which are "Champion," "Hope," and "More" cigarettes.
On June 10, 1993, the legislature enacted Republic Act No. 7654 (RA 7654), which took
effect on July 3, 1993. Prior to its effectivity, cigarette brands ‘Champion," "Hope," and "More"
were considered local brands subjected to an ad valorem tax at the rate of 20-45%. However,
on July 1, 1993, or two days before RA 7654 took effect, petitioner issued RMC 37-93
reclassifying "Champion," "Hope," and "More" as locally manufactured cigarettes bearing a
foreign brand subject to the 55% ad valorem tax.4 RMC 37-93 in effect subjected "Hope,"
"More," and "Champion" cigarettes to the provisions of RA 7654, specifically, to Sec.
142,5 (c)(1) on locally manufactured cigarettes which are currently classified and taxed at
55%, and which imposes an ad valorem tax of "55% provided that the minimum tax shall not
be less than Five Pesos (P5.00) per pack."6
On July 2, 1993, at about 5:50 p.m., BIR Deputy Commissioner Victor A. Deoferio, Jr.
sent via telefax a copy of RMC 37-93 to Fortune Tobacco but it was addressed to no one in
particular. On July 15, 1993, Fortune Tobacco received, by ordinary mail, a certified xerox
copy of RMC 37-93. On July 20, 1993, respondent filed a motion for reconsideration
requesting the recall of RMC 37-93, but was denied in a letter dated July 30, 1993.7 The same
letter assessed respondent for ad valorem tax deficiency amounting to P9,598,334.00
(computed on the basis of RMC 37-93) and demanded payment within 10 days from receipt
thereof.8 On August 3, 1993, respondent filed a petition for review with the Court of Tax
Page 6
Appeals (CTA), which on September 30, 1993, issued an injunction enjoining the
implementation of RMC 37-93.9 In its decision dated August 10, 1994, the CTA ruled that
RMC 37-93 is defective, invalid, and unenforceable and further enjoined petitioner from
collecting the deficiency tax assessment issued pursuant to RMC No. 37-93. This ruling was
affirmed by the Court of Appeals, and finally by this Court in Commissioner of Internal
Revenue v. Court of Appeals.10 It was held, among others, that RMC 37-93, has fallen short of
the requirements for a valid administrative issuance.
On April 10, 1997, respondent filed before the RTC a complaint11 for damages against
petitioner in her private capacity. Respondent contended that the latter should be held liable
for damages under Article 32 of the Civil Code considering that the issuance of RMC 37-93
violated its constitutional right against deprivation of property without due process of law and
the right to equal protection of the laws.
Petitioner filed a motion to dismiss12 contending that: (1) respondent has no cause of action
against her because she issued RMC 37-93 in the performance of her official function and
within the scope of her authority. She claimed that she acted merely as an agent of the
Republic and therefore the latter is the one responsible for her acts; (2) the complaint states
no cause of action for lack of allegation of malice or bad faith; and (3) the certification against
forum shopping was signed by respondent’s counsel in violation of the rule that it is the
plaintiff or the principal party who should sign the same.
On September 29, 1997, the RTC denied petitioner’s motion to dismiss holding that to rule on
the allegations of petitioner would be to prematurely decide the merits of the case without
allowing the parties to present evidence. It further held that the defect in the certification
against forum shopping was cured by respondent’s submission of the corporate secretary’s
certificate authorizing its counsel to execute the certification against forum shopping. The
dispositive portion thereof, states:
WHEREFORE, foregoing premises considered, the motion to dismiss filed by the defendant
Liwayway Vinzons-Chato and the motion to strike out and expunge from the record the said
motion to dismiss filed by plaintiff Fortune Tobacco Corporation are both denied on the
grounds aforecited. The defendant is ordered to file her answer to the complaint within ten
(10) days from receipt of this Order.
SO ORDERED.13
The case was elevated to the Court of Appeals via a petition for certiorari under Rule 65.
However, same was dismissed on the ground that under Article 32 of the Civil Code, liability
may arise even if the defendant did not act with malice or bad faith. The appellate court
ratiocinated that Section 38, Book I of the Administrative Code is the general law on the civil
liability of public officers while Article 32 of the Civil Code is the special law that governs the
instant case. Consequently, malice or bad faith need not be alleged in the complaint for
damages. It also sustained the ruling of the RTC that the defect of the certification against
forum shopping was cured by the submission of the corporate secretary’s certificate giving
authority to its counsel to execute the same.
marcelo|torts and damages|full text
Undaunted, petitioner filed the instant recourse contending that the suit is grounded on her
acts done in the performance of her functions as a public officer, hence, it is Section 38, Book
I of the Administrative Code which should be applied. Under this provision, liability will attach
only when there is a clear showing of bad faith, malice, or gross negligence. She further
averred that the Civil Code, specifically, Article 32 which allows recovery of damages for
violation of constitutional rights, is a general law on the liability of public officers; while Section
38, Book I of the Administrative Code is a special law on the superior public officers’ liability,
such that, if the complaint, as in the instant case, does not allege bad faith, malice, or gross
negligence, the same is dismissible for failure to state a cause of action. As to the defect of
the certification against forum shopping, she urged the Court to strictly construe the rules and
to dismiss the complaint.
Conversely, respondent argued that Section 38 which treats in general the public officers’
"acts" from which civil liability may arise, is a general law; while Article 32 which deals
specifically with the public officers’ violation of constitutional rights, is a special provision
which should determine whether the complaint states a cause of action or not. Citing the case
of Lim v. Ponce de Leon,14 respondent alleged that under Article 32 of the Civil Code, it is
enough that there was a violation of the constitutional rights of the plaintiff and it is not
required that said public officer should have acted with malice or in bad faith. Hence, it
concluded that even granting that the complaint failed to allege bad faith or malice, the motion
to dismiss for failure to state a cause of action should be denied inasmuch as bad faith or
malice are not necessary to hold petitioner liable.
The issues for resolution are as follows:
(1) May a public officer be validly sued in his/her private capacity for acts done in connection
with the discharge of the functions of his/her office?
(2) Which as between Article 32 of the Civil Code and Section 38, Book I of the Administrative
Code should govern in determining whether the instant complaint states a cause of action?
(3) Should the complaint be dismissed for failure to comply with the rule on certification
against forum shopping?
(4) May petitioner be held liable for damages?
On the first issue, the general rule is that a public officer is not liable for damages which a
person may suffer arising from the just performance of his official duties and within the scope
of his assigned tasks.15 An officer who acts within his authority to administer the affairs of the
office which he/she heads is not liable for damages that may have been caused to another, as
it would virtually be a charge against the Republic, which is not amenable to judgment for
monetary claims without its consent.16 However, a public officer is by law not immune from
damages in his/her personal capacity for acts done in bad faith which, being outside the
scope of his authority, are no longer protected by the mantle of immunity for official actions.17
Specifically, under Section 38, Book I of the Administrative Code, civil liability may arise
where there is bad faith, malice, or gross negligence on the part of a superior public officer.
Page 7
And, under Section 39 of the same Book, civil liability may arise where the subordinate public
officer’s act is characterized by willfulness or negligence. Thus –
Sec. 38. Liability of Superior Officers. – (1) A public officer shall not be civilly liable for acts
done in the performance of his official duties, unless there is a clear showing of bad faith,
malice or gross negligence.
xxxx
Section 39. Liability of Subordinate Officers. – No subordinate officer or employee shall be
civilly liable for acts done by him in good faith in the performance of his duties. However, he
shall be liable for willful or negligent acts done by him which are contrary to law, morals,
public policy and good customs even if he acts under orders or instructions of his superior.
In addition, the Court held in Cojuangco, Jr. v. Court of Appeals,18 that a public officer who
directly or indirectly violates the constitutional rights of another, may be validly sued for
damages under Article 32 of the Civil Code even if his acts were not so tainted with malice or
bad faith.
Thus, the rule in this jurisdiction is that a public officer may be validly sued in his/her private
capacity for acts done in the course of the performance of the functions of the office, where
said public officer: (1) acted with malice, bad faith, or negligence; or (2) where the public
officer violated a constitutional right of the plaintiff.
Anent the second issue, we hold that the complaint filed by respondent stated a cause of
action and that the decisive provision thereon is Article 32 of the Civil Code.
A general statute is one which embraces a class of subjects or places and does not omit any
subject or place naturally belonging to such class. A special statute, as the term is generally
understood, is one which relates to particular persons or things of a class or to a particular
portion or section of the state only.19
A general law and a special law on the same subject are statutes in pari materia and should,
accordingly, be read together and harmonized, if possible, with a view to giving effect to both.
The rule is that where there are two acts, one of which is special and particular and the other
general which, if standing alone, would include the same matter and thus conflict with the
special act, the special law must prevail since it evinces the legislative intent more clearly than
that of a general statute and must not be taken as intended to affect the more particular and
specific provisions of the earlier act, unless it is absolutely necessary so to construe it in order
to give its words any meaning at all.20
The circumstance that the special law is passed before or after the general act does not
change the principle. Where the special law is later, it will be regarded as an exception to, or a
qualification of, the prior general act; and where the general act is later, the special statute will
be construed as remaining an exception to its terms, unless repealed expressly or by
necessary implication.21
marcelo|torts and damages|full text
Thus, in City of Manila v. Teotico,22 the Court held that Article 2189 of the Civil Code which
holds provinces, cities, and municipalities civilly liable for death or injuries by reason of
defective conditions of roads and other public works, is a special provision and should prevail
over Section 4 of Republic Act No. 409, the Charter of Manila, in determining the liability for
defective street conditions. Under said Charter, the city shall not be held for damages or
injuries arising from the failure of the local officials to enforce the provision of the charter, law,
or ordinance, or from negligence while enforcing or attempting to enforce the same. As
explained by the Court:
Manila maintains that the former provision should prevail over the latter, because Republic
Act 409 is a special law, intended exclusively for the City of Manila, whereas the Civil Code is
a general law, applicable to the entire Philippines.
The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that,
insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the
Civil Code a general legislation; but, as regards the subject matter of the provisions above
quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the
City of Manila for "damages or injury to persons or property arising from the failure of" city
officers "to enforce the provisions of" said Act "or any other law or ordinance, or from
negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or attempting
to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a
particular prescription making "provinces, cities and municipalities . . . liable for damages for
the death of, or injury suffered by, any person by reason" — specifically — "of the defective
condition of roads, streets, bridges, public buildings, and other public works under their control
or supervision." In other words, said section 4 refers to liability arising from negligence,
in general, regardless of the object thereof, whereas Article 2189 governs liability due
to "defective streets," in particular. Since the present action is based upon the alleged
defective condition of a road, said Article 2189 is decisive thereon.23
In the case of Bagatsing v. Ramirez,24 the issue was which law should govern the publication
of a tax ordinance, the City Charter of Manila, a special act which treats ordinances in general
and which requires their publication before enactment and after approval, or the Tax Code, a
general law, which deals in particular with "ordinances levying or imposing taxes, fees or other
charges," and which demands publication only after approval. In holding that it is the Tax
Code which should prevail, the Court elucidated that:
There is no question that the Revised Charter of the City of Manila is a special act since it
relates only to the City of Manila, whereas the Local Tax Code is a general law because it
applies universally to all local governments. Blackstone defines general law as a universal
rule affecting the entire community and special law as one relating to particular persons or
things of a class. And the rule commonly said is that a prior special law is not ordinarily
repealed by a subsequent general law. The fact that one is special and the other general
creates a presumption that the special is to be considered as remaining an exception of the
general, one as a general law of the land, the other as the law of a particular case. However,
the rule readily yields to a situation where the special statute refers to a subject in
general, which the general statute treats in particular. Th[is] exactly is the
circumstance obtaining in the case at bar. Section 17 of the Revised Charter of the City
Page 8
of Manila speaks of "ordinance" in general, i.e., irrespective of the nature and scope
thereof, whereas, Section 43 of the Local Tax Code relates to "ordinances levying or
imposing taxes, fees or other charges" in particular. In regard, therefore, to ordinances
in general, the Revised Charter of the City of Manila is doubtless dominant, but, that
dominant force loses its continuity when it approaches the realm of "ordinances
levying or imposing taxes, fees or other charges" in particular. There, the Local Tax
Code controls. Here, as always, a general provision must give way to a particular provision.
Special provision governs.
Let us examine the provisions involved in the case at bar. Article 32 of the Civil Code
provides:
ART. 32. Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates, or in any manner impedes or impairs any of the following rights
and liberties of another person shall be liable to the latter for damages:
xxxx
(6) The right against deprivation of property without due process of law;
xxxx
(8) The right to the equal protection of the laws;
xxxx
The rationale for its enactment was explained by Dean Bocobo of the Code Commission, as
follows:
"DEAN BOCOBO. Article 32, regarding individual rights, Attorney Cirilo Paredes proposes
that Article 32 be so amended as to make a public official liable for violation of another
person’s constitutional rights only if the public official acted maliciously or in bad faith. The
Code Commission opposes this suggestion for these reasons:
"The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary
therefore that there should be malice or bad faith. To make such a requisite would defeat the
main purpose of Article 32 which is the effective protection of individual rights. Public officials
in the past have abused their powers on the pretext of justifiable motives or good faith in the
performance of their duties. Precisely, the object of the Article is to put an end to official abuse
by the plea of good faith. In the United States this remedy is in the nature of a tort.
"Mr. Chairman, this article is firmly one of the fundamental articles introduced in the New Civil
Code to implement democracy. There is no real democracy if a public official is abusing and
we made the article so strong and so comprehensive that it concludes an abuse of individual
rights even if done in good faith, that official is liable. As a matter of fact, we know that there
are very few public officials who openly and definitely abuse the individual rights of the
citizens. In most cases, the abuse is justified on a plea of desire to enforce the law to comply
with one’s duty. And so, if we should limit the scope of this article, that would practically nullify
marcelo|torts and damages|full text
the object of the article. Precisely, the opening object of the article is to put an end to abuses
which are justified by a plea of good faith, which is in most cases the plea of officials abusing
individual rights."25
The Code Commission deemed it necessary to hold not only public officers but also private
individuals civilly liable for violation of the rights enumerated in Article 32 of the Civil Code. It
is not necessary that the defendant under this Article should have acted with malice or bad
faith, otherwise, it would defeat its main purpose, which is the effective protection of individual
rights. It suffices that there is a violation of the constitutional right of the plaintiff. 26
Article 32 was patterned after the "tort" in American law.27 A tort is a wrong, a tortious act
which has been defined as the commission or omission of an act by one, without right,
whereby another receives some injury, directly or indirectly, in person, property, or
reputation.28 There are cases in which it has been stated that civil liability in tort is determined
by the conduct and not by the mental state of the tortfeasor, and there are circumstances
under which the motive of the defendant has been rendered immaterial. The reason
sometimes given for the rule is that otherwise, the mental attitude of the alleged wrongdoer,
and not the act itself, would determine whether the act was wrongful. 29 Presence of good
motive, or rather, the absence of an evil motive, does not render lawful an act which is
otherwise an invasion of another’s legal right; that is, liability in tort is not precluded by the fact
that defendant acted without evil intent.30
The clear intention therefore of the legislature was to create a distinct cause of action in the
nature of tort for violation of constitutional rights, irrespective of the motive or intent of the
defendant.31 This is a fundamental innovation in the Civil Code, and in enacting the
Administrative Code pursuant to the exercise of legislative powers, then President Corazon C.
Aquino, could not have intended to obliterate this constitutional protection on civil liberties.
In Aberca v. Ver,32 it was held that with the enactment of Article 32, the principle of
accountability of public officials under the Constitution acquires added meaning and assumes
a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to
supervise his subordinates, secure in the thought that he does not have to answer for the
transgressions committed by the latter against the constitutionally protected rights and
liberties of the citizen. Part of the factors that propelled people power in February 1986 was
the widely held perception that the government was callous or indifferent to, if not actually
responsible for, the rampant violations of human rights. While it would certainly be too naive
to expect that violators of human rights would easily be deterred by the prospect of facing
damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the
Civil Code makes the persons who are directly, as well as indirectly, responsible for the
transgression, joint tortfeasors.
On the other hand, Sections 38 and 39, Book I of the Administrative Code, laid down the rule
on the civil liability of superior and subordinate public officers for acts done in the performance
of their duties. For both superior and subordinate public officers, the presence of bad faith,
malice, and negligence are vital elements that will make them liable for damages. Note that
while said provisions deal in particular with the liability of government officials, the subject
thereof is general, i.e., "acts" done in the performance of official duties, without specifying the
action or omission that may give rise to a civil suit against the official concerned.
Page 9
Contrarily, Article 32 of the Civil Code specifies in clear and unequivocal terms a particular
specie of an "act" that may give rise to an action for damages against a public officer, and that
is, a tort for impairment of rights and liberties. Indeed, Article 32 is the special provision that
deals specifically with violation of constitutional rights by public officers. All other actionable
acts of public officers are governed by Sections 38 and 39 of the Administrative Code. While
the Civil Code, specifically, the Chapter on Human Relations is a general law, Article 32 of the
same Chapter is a special and specific provision that holds a public officer liable for and
allows redress from a particular class of wrongful acts that may be committed by public
officers. Compared thus with Section 38 of the Administrative Code, which broadly deals with
civil liability arising from errors in the performance of duties, Article 32 of the Civil Code is the
specific provision which must be applied in the instant case precisely filed to seek damages
for violation of constitutional rights.
The complaint in the instant case was brought under Article 32 of the Civil Code. Considering
that bad faith and malice are not necessary in an action based on Article 32 of the Civil Code,
the failure to specifically allege the same will not amount to failure to state a cause of action.
The courts below therefore correctly denied the motion to dismiss on the ground of failure to
state a cause of action, since it is enough that the complaint avers a violation of a
constitutional right of the plaintiff.
Anent the issue on non-compliance with the rule against forum shopping, the subsequent
submission of the secretary’s certificate authorizing the counsel to sign and execute the
certification against forum shopping cured the defect of respondent’s complaint. Besides, the
merits of the instant case justify the liberal application of the rules.33
WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the Court of
Appeals dated May 7, 1999 which affirmed the Order of the Regional Trial Court of Marikina,
Branch 272, denying petitioner’s motion to dismiss, is AFFIRMED. The Presiding Judge,
Regional Trial Court of Marikina, Branch 272, is hereby DIRECTED to continue with the
proceedings in Civil Case No. 97-341-MK with dispatch.
With costs.
SO ORDERED.
ANTONIO GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.
Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.
REYES, J.B.L., J.:
This petition for certiorari brings up for review question whether the husband of a woman, who
voluntarily procured her abortion, could recover damages from physician who caused the
same.
marcelo|torts and damages|full text
The litigation was commenced in the Court of First Instance of Manila by respondent Oscar
Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the
merits of the complaint upon the evidence adduced, the trial court rendered judgment favor of
plaintiff Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as damages,
P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a special
division of five, sustained the award by a majority vote of three justices as against two, who
rendered a separate dissenting opinion.
The facts are set forth in the majority opinion as follows:
Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 —
through her aunt Paula Yambot. In 1950 she became pregnant by her present husband
before they were legally married. Desiring to conceal her pregnancy from her parent, and
acting on the advice of her aunt, she had herself aborted by the defendant. After her marriage
with the plaintiff, she again became pregnant. As she was then employed in the Commission
on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by
the defendant in October 1953. Less than two years later, she again became pregnant. On
February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida,
she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila,
where the three met the defendant and his wife. Nita was again aborted, of a two-month old
foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this
time in the province of Cagayan, campaigning for his election to the provincial board; he did
not know of, nor gave his consent, to the abortion.
It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of
damages. Upon application of the defendant Geluz we granted certiorari.
The Court of Appeals and the trial court predicated the award of damages in the sum of
P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the
Philippines. This we believe to be error, for the said article, in fixing a minimum award of
P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not
endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza
la categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho"
(Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable of having
rights and obligations.
Since an action for pecuniary damages on account of personal injury or death pertains
primarily to the one injured, it is easy to see that if no action for such damages could be
instituted on behalf of the unborn child on account of the injuries it received, no such right of
action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did
accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since
no transmission to anyone can take place from on that lacked juridical personality (or juridical
capacity as distinguished from capacity to act). It is no answer to invoke the provisional
personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil
Code, because that same article expressly limits such provisional personality by imposing the
condition that the child should be subsequently born alive: "provided it be born later with the
condition specified in the following article". In the present case, there is no dispute that the
child was dead when separated from its mother's womb.
Page 10
The prevailing American jurisprudence is to the same effect; and it is generally held that
recovery can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F.
Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the
editorial note, 10 ALR, (2d) 639).
This is not to say that the parents are not entitled to collect any damages at all. But such
damages must be those inflicted directly upon them, as distinguished from the injury or
violation of the rights of the deceased, his right to life and physical integrity. Because the
parents can not expect either help, support or services from an unborn child, they would
normally be limited to moral damages for the illegal arrest of the normal development of
the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to its
loss, and the disappointment of their parental expectations (Civ. Code Art. 2217), as well as to
exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case
before us, both the trial court and the Court of Appeals have not found any basis for an award
of moral damages, evidently because the appellee's indifference to the previous abortions of
his wife, also caused by the appellant herein, clearly indicates that he was unconcerned with
the frustration of his parental hopes and affections. The lower court expressly found, and the
majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of
the second abortion; and the probabilities are that he was likewise aware of the first. Yet
despite the suspicious repetition of the event, he appeared to have taken no steps to
investigate or pinpoint the causes thereof, and secure the punishment of the responsible
practitioner. Even after learning of the third abortion, the appellee does not seem to have
taken interest in the administrative and criminal cases against the appellant. His only concern
appears to have been directed at obtaining from the doctor a large money payment, since he
sued for P50,000.00 damages and P3,000.00 attorney's fees, an "indemnity" claim that, under
the circumstances of record, was clearly exaggerated.
The dissenting Justices of the Court of Appeals have aptly remarked that:
It seems to us that the normal reaction of a husband who righteously feels outraged by the
abortion which his wife has deliberately sought at the hands of a physician would be
highminded rather than mercenary; and that his primary concern would be to see to it that the
medical profession was purged of an unworthy member rather than turn his wife's indiscretion
to personal profit, and with that idea in mind to press either the administrative or the criminal
cases he had filed, or both, instead of abandoning them in favor of a civil action for damages
of which not only he, but also his wife, would be the beneficiaries.
It is unquestionable that the appellant's act in provoking the abortion of appellee's wife,
without medical necessity to warrant it, was a criminal and morally reprehensible act, that can
not be too severely condemned; and the consent of the woman or that of her husband does
not excuse it. But the immorality or illegality of the act does not justify an award of damage
that, under the circumstances on record, have no factual or legal basis.
The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.
marcelo|torts and damages|full text
Let a copy of this decision be furnished to the Department of Justice and the Board of Medical
Examiners for their information and such investigation and action against the appellee Antonio
Geluz as the facts may warrant.
ORLANDO D. GARCIA, JR., doing business under the name and style COMMUNITY
DIAGNOSTIC CENTER and BU CASTRO,1 Petitioners,
vs.
RANIDA D. SALVADOR and RAMON SALVADOR, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for review2 under Rule 45 of the Rules of Court assailing the February 27,
2004 Decision3 of the Court of Appeals in CA-G.R. CV No. 58668 finding petitioner Orlando D.
Garcia liable for gross negligence; and its June 16, 2005 Resolution4 denying petitioner’s
motion for reconsideration.
On October 1, 1993, respondent Ranida D. Salvador started working as a trainee in the
Accounting Department of Limay Bulk Handling Terminal, Inc. (the Company). As a
prerequisite for regular employment, she underwent a medical examination at the Community
Diagnostic Center (CDC). Garcia who is a medical technologist, conducted the HBs Ag
(Hepatitis B Surface Antigen) test and on October 22, 1993, CDC issued the test
result5 indicating that Ranida was "HBs Ag: Reactive." The result bore the name and
signature of Garcia as examiner and the rubber stamp signature of Castro as pathologist.
When Ranida submitted the test result to Dr. Sto. Domingo, the Company physician, the latter
apprised her that the findings indicated that she is suffering from Hepatitis B, a liver disease.
Thus, based on the medical report6submitted by Sto. Domingo, the Company terminated
Ranida’s employment for failing the physical examination.7
When Ranida informed her father, Ramon, about her ailment, the latter suffered a heart attack
and was confined at the Bataan Doctors Hospital. During Ramon’s confinement, Ranida
underwent another HBs Ag test at the said hospital and the result 8 indicated that she is non-
reactive. She informed Sto. Domingo of this development but was told that the test conducted
by CDC was more reliable because it used the Micro-Elisa Method.
Thus, Ranida went back to CDC for confirmatory testing, and this time, the Anti-HBs test
conducted on her indicated a "Negative" result.9
Ranida also underwent another HBs Ag test at the Bataan Doctors Hospital using the Micro-
Elisa Method. The result indicated that she was non-reactive.10
Ranida submitted the test results from Bataan Doctors Hospital and CDC to the Executive
Officer of the Company who requested her to undergo another similar test before her re-
employment would be considered. Thus, CDC conducted another HBs Ag test on Ranida
which indicated a "Negative" result.11 Ma. Ruby G. Calderon, Med-Tech Officer-in-Charge of
Page 11
CDC, issued a Certification correcting the initial result and explaining that the examining
medical technologist (Garcia) interpreted the delayed reaction as positive or reactive. 12
Thereafter, the Company rehired Ranida.
On July 25, 1994, Ranida and Ramon filed a complaint13 for damages against petitioner
Garcia and a purportedly unknown pathologist of CDC, claiming that, by reason of the
erroneous interpretation of the results of Ranida’s examination, she lost her job and suffered
serious mental anxiety, trauma and sleepless nights, while Ramon was hospitalized and lost
business opportunities.
On September 26, 1994, respondents amended their complaint 14 by naming Castro as the
"unknown pathologist."
Garcia denied the allegations of gross negligence and incompetence and reiterated the
scientific explanation for the "false positive" result of the first HBs Ag test in his December 7,
1993 letter to the respondents.15
For his part, Castro claimed that as pathologist, he rarely went to CDC and only when a case
was referred to him; that he did not examine Ranida; and that the test results bore only his
rubber-stamp signature.
On September 1, 1997,16 the trial court dismissed the complaint for failure of the respondents
to present sufficient evidence to prove the liability of Garcia and Castro. It held that
respondents should have presented Sto. Domingo because he was the one who interpreted
the test result issued by CDC. Likewise, respondents should have presented a medical expert
to refute the testimonies of Garcia and Castro regarding the medical explanation behind the
conflicting test results on Ranida.17
Respondents appealed to the Court of Appeals which reversed the trial court’s findings, the
dispositive portion of which states:
WHEREFORE, the decision appealed from is REVERSED and SET ASIDE and another one
entered ORDERING defendant-appellee Orlando D. Garcia, Jr. to pay plaintiff-appellant
Ranida D. Salvador moral damages in the amount of P50,000.00, exemplary damages in the
amount of P50,000.00 and attorney’s fees in the amount of P25,000.00.
SO ORDERED.18
The appellate court found Garcia liable for damages for negligently issuing an erroneous HBs
Ag result. On the other hand, it exonerated Castro for lack of participation in the issuance of
the results.
After the denial of his motion for reconsideration, Garcia filed the instant petition.
The main issue for resolution is whether the Court of Appeals, in reversing the decision of the
trial court, correctly found petitioner liable for damages to the respondents for issuing an
incorrect HBsAG test result.
marcelo|torts and damages|full text
Garcia maintains he is not negligent, thus not liable for damages, because he followed the
appropriate laboratory measures and procedures as dictated by his training and experience;
and that he did everything within his professional competence to arrive at an objective,
impartial and impersonal result.
At the outset, we note that the issues raised are factual in nature. Whether a person is
negligent or not is a question of fact which we cannot pass upon in a petition for review
on certiorari which is limited to reviewing errors of law.19
Negligence is the failure to observe for the protection of the interest of another person that
degree of care, precaution and vigilance which the circumstances justly demand, 20 whereby
such other person suffers injury. For health care providers, the test of the existence of
negligence is: did the health care provider either fail to do something which a reasonably
prudent health care provider would have done, or that he or she did something that a
reasonably prudent health care provider would not have done; and that failure or action
caused injury to the patient;21 if yes, then he is guilty of negligence.
Thus, the elements of an actionable conduct are: 1) duty, 2) breach, 3) injury, and 4)
proximate causation.
All the elements are present in the case at bar.
Owners and operators of clinical laboratories have the duty to comply with statutes, as well as
rules and regulations, purposely promulgated to protect and promote the health of the people
by preventing the operation of substandard, improperly managed and inadequately supported
clinical laboratories and by improving the quality of performance of clinical laboratory
examinations.22 Their business is impressed with public interest, as such, high standards of
performance are expected from them.
In F.F. Cruz and Co., Inc. v. Court of Appeals, we found the owner of a furniture shop liable
for the destruction of the plaintiff’s house in a fire which started in his establishment in view of
his failure to comply with an ordinance which required the construction of a firewall. In Teague
v. Fernandez, we stated that where the very injury which was intended to be prevented by the
ordinance has happened, non-compliance with the ordinance was not only an act of
negligence, but also the proximate cause of the death.23
In fine, violation of a statutory duty is negligence. Where the law imposes upon a person the
duty to do something, his omission or non-performance will render him liable to whoever may
be injured thereby.
Section 2 of Republic Act (R.A.) No. 4688, otherwise known as The Clinical Laboratory Law,
provides:
Sec. 2. It shall be unlawful for any person to be professionally in-charge of a registered clinical
laboratory unless he is a licensed physician duly qualified in laboratory medicine and
authorized by the Secretary of Health, such authorization to be renewed annually.
Page 12
No license shall be granted or renewed by the Secretary of Health for the operation and
maintenance of a clinical laboratory unless such laboratory is under the administration,
direction and supervision of an authorized physician, as provided for in the preceding
paragraph.
Corollarily, Sections 9(9.1)(1), 11 and 25(25.1)(1) of the DOH Administrative Order No. 49-B
Series of 1988, otherwise known as the Revised Rules and Regulations Governing the
Registration, Operation and Maintenance of Clinical Laboratories in the Philippines, read:
Sec. 9. Management of the Clinical Laboratory:
9.1 Head of the Clinical Laboratory: The head is that person who assumes technical and
administrative supervision and control of the activities in the laboratory.
For all categories of clinical laboratories, the head shall be a licensed physician certified by
the Philippine Board of Pathology in either Anatomic or Clinical Pathology or both provided
that:
(1) This shall be mandatory for all categories of free-standing clinical laboratories; all tertiary
category hospital laboratories and for all secondary category hospital laboratories located in
areas with sufficient available pathologist.
xxxx
Sec. 11. Reporting: All laboratory requests shall be considered as consultations between the
requesting physician and pathologist of the laboratory. As such all laboratory reports on
various examinations of human specimens shall be construed as consultation report and shall
bear the name of the pathologist or his associate. No person in clinical laboratory shall issue a
report, orally or in writing, whole portions thereof without a directive from the pathologist or his
authorized associate and only to the requesting physician or his authorized representative
except in emergencies when the results may be released as authorized by the pathologist.
xxxx
Sec. 25. Violations:
25.1 The license to operate a clinical laboratory may be suspended or revoked by the
Undersecretary of Health for Standards and Regulation upon violation of R.A. 4688 or the
rules and regulations issued in pursuance thereto or the commission of the following acts by
the persons owning or operating a clinical laboratory and the persons under their authority.
(1) Operation of a Clinical Laboratory without a certified pathologist or qualified licensed
physician authorized by the Undersecretary of Health or without employing a registered
medical technologist or a person not registered as a medical technologist in such a position.
And Section 29(b) of R.A. No. 5527, otherwise known as The Philippine Medical Technology
Act of 1969, reads:
marcelo|torts and damages|full text
Section 29. Penal Provisions.- Without prejudice to the provision of the Medical Act of 1959,
as amended relating to illegal practice of Medicine, the following shall be punished by a fine of
not less than two thousand pesos nor more than five thousand pesos, or imprisonment for not
less than six months nor more than two years, or both, in the discretion of the court:
xxxx
(b) Any medical technologist, even if duly registered, who shall practice medical technology in
the Philippines without the necessary supervision of a qualified pathologist or physician
authorized by the Department of Health;
From the foregoing laws and rules, it is clear that a clinical laboratory must be administered,
directed and supervised by a licensed physician authorized by the Secretary of Health, like a
pathologist who is specially trained in methods of laboratory medicine; that the medical
technologist must be under the supervision of the pathologist or a licensed physician; and that
the results of any examination may be released only to the requesting physician or his
authorized representative upon the direction of the laboratory pathologist.
These rules are intended for the protection of the public by preventing performance of
substandard clinical examinations by laboratories whose personnel are not properly
supervised. The public demands no less than an effective and efficient performance of clinical
laboratory examinations through compliance with the quality standards set by laws and
regulations.
We find that petitioner Garcia failed to comply with these standards.
First, CDC is not administered, directed and supervised by a licensed physician as required
by law, but by Ma. Ruby C. Calderon, a licensed Medical Technologist.24 In the License to
Open and Operate a Clinical Laboratory for the years 1993 and 1996 issued by Dr. Juan R.
Nañagas, M.D., Undersecretary for Health Facilities, Standards and Regulation, defendant-
appellee Castro was named as the head of CDC.25 However, in his Answer with
Counterclaim, he stated:
3. By way of affirmative and special defenses, defendant pathologist further avers and plead
as follows:
Defendant pathologist is not the owner of the Community Diagnostic Center nor an employee
of the same nor the employer of its employees. Defendant pathologist comes to the
Community Diagnostic Center when and where a problem is referred to him. Its employees
are licensed under the Medical Technology Law (Republic Act No. 5527) and are certified by,
and registered with, the Professional Regulation Commission after having passed their Board
Examinations. They are competent within the sphere of their own profession in so far as
conducting laboratory examinations and are allowed to sign for and in behalf of the clinical
laboratory. The defendant pathologist, and all pathologists in general, are hired by
laboratories for purposes of complying with the rules and regulations and orders issued by the
Department of Health through the Bureau of Research and Laboratories. Defendant
pathologist does not stay that long period of time at the Community Diagnostic Center but
only periodically or whenever a case is referred to him by the laboratory. Defendant
Page 13
pathologist does not appoint or select the employees of the laboratory nor does he arrange or
approve their schedules of duty.26
Castro’s infrequent visit to the clinical laboratory barely qualifies as an effective administrative
supervision and control over the activities in the laboratory. "Supervision and control" means
the authority to act directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts; review, approve,
revise or modify acts and decisions of subordinate officials or units. 27
correction for the public good, in addition to moral, temperate, liquidated or compensatory
damages,33 and attorney’s fees may be recovered when, as in the instant case, exemplary
damages are awarded.34
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No. 58668 dated
February 27, 2004 finding petitioner Orlando D. Garcia, Jr. guilty of gross negligence and
liable to pay to respondents ₱50,000.00 as moral damages, ₱50,000.00 as exemplary
damages, and ₱25,000.00 as attorney’s fees, is AFFIRMED.

Second, Garcia conducted the HBsAG test of respondent Ranida without the supervision of SO ORDERED.
defendant-appellee Castro, who admitted that:
PETER PAUL PATRICK LUCAS, FATIMA G. R. No. 178763
[He] does not know, and has never known or met, the plaintiff-patient even up to this time nor GLADYS LUCAS, ABBEYGAIL LUCAS
has he personally examined any specimen, blood, urine or any other tissue, from the plaintiff- AND GILLIAN LUCAS,
patient otherwise his own handwritten signature would have appeared in the result and not
merely stamped as shown in Annex "B" of the Amended Complaint.28 Petitioners,

Last, the disputed HBsAG test result was released to respondent Ranida without the Present:
authorization of defendant-appellee Castro.29

Garcia may not have intended to cause the consequences which followed after the release of
the HBsAG test result. However, his failure to comply with the laws and rules promulgated YNARES-SANTIAGO, J.,
and issued for the protection of public safety and interest is failure to observe that care which
a reasonably prudent health care provider would observe. Thus, his act or omission Chairperson,
constitutes a breach of duty.
- versus - AUSTRIA-MARTINEZ,
Indubitably, Ranida suffered injury as a direct consequence of Garcia’s failure to comply with
the mandate of the laws and rules aforequoted. She was terminated from the service for CHICO-NAZARIO,
failing the physical examination; suffered anxiety because of the diagnosis; and was
compelled to undergo several more tests. All these could have been avoided had the proper NACHURA, and
safeguards been scrupulously followed in conducting the clinical examination and releasing
the clinical report. PERALTA, JJ.

Article 20 of the New Civil Code provides:

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, DR. PROSPERO MA. C. TUAÑO,
shall indemnify the latter for the same.
Respondent.
The foregoing provision provides the legal basis for the award of damages to a party who
suffers damage whenever one commits an act in violation of some legal provision.30 This was Promulgated:
incorporated by the Code Commission to provide relief to a person who suffers damage
because another has violated some legal provision.31

We find the Court of Appeals’ award of moral damages reasonable under the circumstances April 21, 2009
bearing in mind the mental trauma suffered by respondent Ranida who thought she was
afflicted by Hepatitis B, making her "unfit or unsafe for any type of employment." 32 Having x--------------------------------------------------x
established her right to moral damages, we see no reason to disturb the award of exemplary
damages and attorney’s fees. Exemplary damages are imposed, by way of example or

marcelo|torts and damages|full text Page 14

DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari[1] under Rule 45 of the Revised Rules of Court,
petitioners Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian
Lucas seek the reversal of the 27 September 2006 Decision[2] and 3 July
2007 Resolution,[3] both of the Court of Appeals in CA-G.R. CV No. 68666, entitled “Peter
Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma.
C. Tuaño.”
In the questioned decision and resolution, the Court of Appeals affirmed the 14 July
2000 Decision of the Regional Trial Court (RTC), Branch 150, Makati City, dismissing the
complaint filed by petitioners in a civil case entitled, “Peter Paul Patrick Lucas, Fatima Gladys
Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuaño,” docketed as Civil Case
No. 92-2482.
From the record of the case, the established factual antecedents of the present petition are:
Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted “sore eyes”
in his right eye.
On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made use of
his health care insurance issued by Philamcare Health Systems, Inc. (Philamcare), for a
possible consult. The Philamcare Coordinator, Dr. Edwin Oca, M.D., referred Peter to
respondent, Dr. Prospero Ma. C. Tuaño, M.D. (Dr. Tuaño), an ophthalmologist at St.
Luke’s Medical Center, for an eye consult.
Upon consultation with Dr. Tuaño, Peter narrated that it had been nine (9) days since the
problem with his right eye began; and that he was already taking Maxitrol to address the
problem in his eye. According to Dr. Tuaño, he performed “ocular routine examination” on
Peter’s eyes, wherein: (1) a gross examination of Peter’s eyes and their surrounding area
marcelo|torts and damages|full text
was made; (2) Peter’s visual acuity were taken; (3) Peter’s eyes were palpated to check the
intraocular pressure of each; (4) the motility of Peter’s eyes was observed; and (5) the
ophthalmoscopy[4] on Peter’s eyes was used. On that particular consultation, Dr.
Tuaño diagnosed that Peter was suffering from conjunctivitis[5] or “sore eyes.” Dr. Tuaño then
prescribed Spersacet-C[6] eye drops for Peter and told the latter to return for follow-up after
one week.
As instructed, Peter went back to Dr. Tuaño on 9 September 1988. Upon examination, Dr.
Tuaño told Peter that the “sore eyes” in the latter’s right eye had already cleared up and he
could discontinue the Spersacet-C. However, the same eye
developed Epidemic Kerato Conjunctivitis (EKC),[7] a viral infection. To address the new
problem with Peter’s right eye, Dr. Tuaño prescribed to the former a steroid-based eye drop
called Maxitrol,[8] a dosage of six (6) drops per day.[9] To recall, Peter had already been
using Maxitrol prior to his consult with Dr. Tuaño.
On 21 September 1988, Peter saw Dr. Tuaño for a follow-up consultation. After examining
both of Peter’s eyes, Dr. Tuaño instructed the former to taper down[10] the dosage
of Maxitrol, because the EKC in his right eye had already resolved. Dr. Tuaño specifically
cautioned Peter that, being a steroid, Maxitrol had to be withdrawn gradually; otherwise, the
EKC might recur.[11]
Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuaño for
another check-up on 6 October 1988. Dr. Tuaño examined Peter’s eyes and found that the
right eye had once more developed EKC. So, Dr. Tuaño instructed Peter to resume the use
of Maxitrol at six (6) drops per day.
On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock.
Consequently, Peter was told by Dr. Tuano to take, instead, Blephamide[12] another steroid-
based medication, but with a lower concentration, as substitute for the unavailable Maxitrol, to
be used three (3) times a day for five (5) days; two (2) times a day for five (5) days; and then
just once a day.[13]
Several days later, on 18 October 1988, Peter went to see Dr. Tuaño at his clinic, alleging
severe eye pain, feeling as if his eyes were about to “pop-out,” a headache and blurred vision.
Dr. Tuaño examined Peter’s eyes and discovered that the EKC was again present in his right
eye. As a result, Dr. Tuaño told Peter to resume the maximum dosage of Blephamide.
Page 15
Dr. Tuaño saw Peter once more at the former’s clinic on 4 November 1988. Dr. Tuaño’s
examination showed that only the periphery of Peter’s right eye was positive for EKC; hence,
Dr. Tuaño prescribed a lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas (Fatima), Peter’s spouse, read the
accompanying literature of Maxitrol and found therein the following warning against the
prolonged use of such steroids:
WARNING:
Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual
acuity and fields of vision, and posterior, subcapsular cataract formation. Prolonged use may
suppress the host response and thus increase the hazard of secondary ocular infractions, in
those diseases causing thinning of the cornea or sclera, perforations have been known to
occur with the use of topical steroids. In acute purulent conditions of the eye, steroids may
mask infection or enhance existing infection. If these products are used for 10 days or longer,
intraocular pressure should be routinely monitored even though it may be difficult in children
and uncooperative patients.
Employment of steroid medication in the treatment of herpes simplex requires great caution.
xxxx
ADVERSE REACTIONS:
Adverse reactions have occurred with steroid/anti-infective combination drugs which can be
attributed to the steroid component, the anti-infective component, or the combination. Exact
incidence figures are not available since no denominator of treated patients is available.
Reactions occurring most often from the presence of the anti-infective ingredients are allergic
sensitizations. The reactions due to the steroid component in decreasing order to frequency
are elevation of intra-ocular pressure (IOP) with possible development of glaucoma,
infrequent optic nerve damage; posterior subcapsular cataract formation; and delayed wound
healing.
marcelo|torts and damages|full text
Secondary infection: The development of secondary has occurred after use of combination
containing steroids and antimicrobials. Fungal infections of the correa are particularly prone
to develop coincidentally with long-term applications of steroid. The possibility of fungal
invasion must be considered in any persistent corneal ulceration where steroid treatment has
been used.
Secondary bacterial ocular infection following suppression of host responses also occurs.
On 26 November 1988, Peter returned to Dr. Tuaño’s clinic, complaining of “feeling
worse.”[14] It appeared that the EKC had spread to the whole of Peter’s right eye yet again.
Thus, Dr. Tuaño instructed Peter to resume the use of Maxitrol. Petitioners averred that Peter
already made mention to Dr. Tuaño during said visit of the above-quoted warning against the
prolonged use of steroids, but Dr. Tuaño supposedly brushed aside Peter’s concern as mere
paranoia, even assuring him that the former was taking care of him (Peter).
Petitioners further alleged that after Peter’s 26 November 1988 visit to Dr. Tuaño, Peter
continued to suffer pain in his right eye, which seemed to “progress,” with the ache
intensifying and becoming more frequent.
Upon waking in the morning of 13 December 1988, Peter had no vision in his right
eye. Fatima observed that Peter’s right eye appeared to be bloody and swollen.[15]Thus,
spouses Peter and Fatima rushed to the clinic of Dr. Tuaño. Peter reported to Dr. Tuaño that
he had been suffering from constant headache in the afternoon and blurring of vision.
Upon examination, Dr. Tuaño noted the hardness of Peter’s right eye. With the use of
a tonometer[16] to verify the exact intraocular pressure[17] (IOP) of Peter’s eyes, Dr. Tuaño
discovered that the tension in Peter’s right eye was 39.0 Hg, while that of his left was 17.0
Hg.[18] Since the tension in Peter’s right eye was way over the normal IOP, which merely
ranged from 10.0 Hg to 21.0 Hg,[19] Dr. Tuaño ordered[20] him to immediately discontinue the
use of Maxitrol and prescribed to the latter Diamox[21]and Normoglaucon, instead.[22] Dr.
Tuaño also required Peter to go for daily check-up in order for the former to closely monitor
the pressure of the latter’s eyes.
On 15 December 1988, the tonometer reading of Peter’s right eye yielded a high normal
level, i.e., 21.0 Hg. Hence, Dr. Tuaño told Peter to continue
using Diamox and Normoglaucon. But upon Peter’s complaint of “stomach pains and tingling
sensation in his fingers,”[23] Dr. Tuaño discontinued Peter’s use of Diamox.[24]
Page 16
Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), On 29 December 1988, Peter went to see Dr. Agulto at the latter’s clinic. Several tests were
on 21 December 1988, who allegedly conducted a complete ophthalmological examination of conducted thereat to evaluate the extent of Peter’s condition. Dr. Agulto wrote Dr. Tuaño a
Peter’s eyes. Dr. Batungbacal’s diagnosis was Glaucoma[25] O.D.[26] He letter containing the following findings and recommendations:
recommended Laser Trabeculoplasty[27] for Peter’s right eye.

Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and 20/20L.
When Peter returned to Dr. Tuaño on 23 December 1988,[28] the tonometer measured the IOP Tension curve 19 R and 15 L at 1210 H while on Normoglaucon BID OD & Diamox ½ tab
of Peter’s right eye to be 41.0 Hg,[29] again, way above normal. Dr. Tuaño addressed the every 6h po.
problem by advising Peter to resume taking Diamox along with Normoglaucon.

Slit lamp evaluation[33] disclosed subepithelial corneal defect outer OD. There was
During the Christmas holidays, Peter supposedly stayed in bed most of the time and was not circumferential peripheral iris atrophy, OD. The lenses were clear.
able to celebrate the season with his family because of the debilitating effects of Diamox.[30]
Funduscopy[34] showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L.

On 28 December 1988, during one of Peter’s regular follow-ups with Dr. Tuaño, the doctor
conducted another ocular routine examination of Peter’s eyes. Dr. Tuaño noted the Zeiss gonioscopy[35] revealed basically open angles both eyes with occasional PAS, [36] OD.
recurrence of EKC in Peter’s right eye. Considering, however, that the IOP of Peter’s right eye
was still quite high at 41.0 Hg, Dr. Tuaño was at a loss as to how to balance the treatment of
Peter’s EKC vis-à-vis the presence of glaucoma in the same eye. Dr. Tuaño, thus, referred
Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another ophthalmologist specializing in the Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest that
treatment of glaucoma.[31] Dr. Tuaño’s letter of referral to Dr. Agulto stated that: we do a baseline visual fields and push medication to lowest possible levels. If I may suggest
further, I think we should prescribe Timolol[37] BID[38] OD in lieu of Normoglaucon. If the IOP is
still inadequate, we may try D’epifrin[39] BID OD (despite low PAS). I’m in favor of retaining
Diamox or similar CAI.[40]
Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw
him Sept. 2, 1988 because of conjunctivitis. The latter resolved and he developed EKC for
which I gave Maxitrol. The EKC was recurrent after stopping steroid drops. Around 1 month of
steroid treatment, he noted blurring of vision & pain on the R. however, I continued the If fields show further loss in say – 3 mos. then we should consider trabeculoplasty.
steroids for the sake of the EKC. A month ago, I noted iris atrophy, so I took the IOP and it
was definitely elevated. I stopped the steroids immediately and has (sic) been treating him
medically.
I trust that this approach will prove reasonable for you and Peter. [41]

It seems that the IOP can be controlled only with oral Diamox, and at the moment, the EKC
has recurred and I’m in a fix whether to resume the steroid or not considering that the IOP is
still uncontrolled.[32]
Peter went to see Dr. Tuaño on 31 December 1988, bearing Dr. Agulto’s aforementioned
letter. Though Peter’s right and left eyes then had normal IOP of 21.0 Hg and 17.0 Hg,
respectively, Dr. Tuaño still gave him a prescription for Timolol B.I.D. so Peter could
immediately start using said medication. Regrettably, Timolol B.I.D. was out of stock, so Dr.
Tuaño instructed Peter to just continue using Diamox and Normoglaucon in the meantime.

marcelo|torts and damages|full text Page 17

Just two days later, on 2 January 1989, the IOP of Peter’s right eye remained elevated at 21.0
Hg,[42] as he had been without Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuaño conducted a visual field study[43] of Peter’s eyes, which
revealed that the latter had tubular vision[44] in his right eye, while that of his left eye remained
normal. Dr. Tuaño directed Peter to religiously use the Diamox and Normoglaucon, as the
tension of the latter’s right eye went up even further to 41.0 Hg in just a matter of two (2)
days, in the meantime that Timolol B.I.D. and D’epifrin were still not available in the market.
Again, Dr. Tuaño advised Peter to come for regular check-up so his IOP could be monitored.
Obediently, Peter went to see Dr. Tuaño on the 7th, 13th, 16th and 20th of January 1989 for
check-up and IOP monitoring.
In the interregnum, however, Peter was prodded by his friends to seek a second medical
opinion. On 13 January 1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an
ophthalmologist, who, in turn, referred Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino),
another ophthalmologist who specializes in the treatment of glaucoma and who could
undertake the long term care of Peter’s eyes.
According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peter’s eyes,
the said doctor informed Peter that his eyes were relatively normal, though the right one
sometimes manifested maximum borderline tension. Dr. Aquino also confirmed Dr. Tuaño’s
diagnosis of tubular vision in Peter’s right eye. Petitioners claimed that Dr. Aquino essentially
told Peter that the latter’s condition would require lifetime medication and follow-ups.
In May 1990 and June 1991, Peter underwent two (2) procedures of laser trabeculoplasty to
attempt to control the high IOP of his right eye.
Claiming to have steroid-induced glaucoma[45] and blaming Dr. Tuaño for the same, Peter,
joined by: (1) Fatima, his spouse[46]; (2) Abbeygail, his natural child[47]; and (3) Gillian, his
legitimate child[48] with Fatima, instituted on 1 September 1992, a civil complaint for damages
against Dr. Tuaño, before the RTC, Branch 150, Quezon City. The case was docketed as
Civil Case No. 92-2482.
marcelo|torts and damages|full text
In their Complaint, petitioners specifically averred that as the “direct consequence of [Peter’s]
prolonged use of Maxitrol, [he] suffered from steroid induced glaucoma which caused the
elevation of his intra-ocular pressure. The elevation of the intra-ocular pressure of [Peter’s
right eye] caused the impairment of his vision which impairment is not curable and may even
lead to total blindness.”[49]
Petitioners additionally alleged that the visual impairment of Peter’s right eye caused him and
his family so much grief. Because of his present condition, Peter now needed close medical
supervision forever; he had already undergone two (2) laser surgeries, with the possibility
that more surgeries were still needed in the future; his career in sports casting had suffered
and was continuing to suffer;[50] his anticipated income had been greatly reduced as a result of
his “limited” capacity; he continually suffered from “headaches, nausea, dizziness, heart
palpitations, rashes, chronic rhinitis, sinusitis,”[51] etc.; Peter’s relationships with his spouse
and children continued to be strained, as his condition made him highly irritable and sensitive;
his mobility and social life had suffered; his spouse, Fatima, became the breadwinner in the
family;[52] and his two children had been deprived of the opportunity for a better life and
educational prospects. Collectively, petitioners lived in constant fear of Peter becoming
completely blind.[53]
In the end, petitioners sought pecuniary award for their supposed pain and suffering, which
were ultimately brought about by Dr. Tuaño’s grossly negligent conduct in prescribing to Peter
the medicine Maxitrol for a period of three (3) months, without monitoring Peter’s IOP, as
required in cases of prolonged use of said medicine, and notwithstanding Peter’s constant
complaint of intense eye pain while using the same. Petitioners particularly prayed that Dr.
Tuaño be adjudged liable for the following amounts:
1. The amount of P2,000,000.00 to plaintiff Peter Lucas as and
by way of compensation for his impaired vision.
2. The amount of P300,000.00 to spouses Lucas as and by way
of actual damages plus such additional amounts that may be proven during
trial.
3. The amount of P1,000,000.00 as and by way of
moral damages.
Page 18
4. The amount of P500,000.00 as and by way of
exemplary damages.
5. The amount of P200,000.00 as and by way of attorney’s fees
plus costs of suit.[54]
In rebutting petitioners’ complaint, Dr. Tuaño asserted that the “treatment made by [him] more
than three years ago has no causal connection to [Peter’s] present glaucoma or
condition.”[55] Dr. Tuaño explained that “[d]rug-induced glaucoma is temporary and curable,
steroids have the side effect of increasing intraocular pressure. Steroids are prescribed to
treat Epidemic Kerato Conjunctivitis or EKC which is an infiltration of the cornea as a result of
conjunctivitis or sore eyes.”[56] Dr. Tuaño also clarified that (1) “[c]ontrary to [petitioners’]
fallacious claim, [he] did NOT continually prescribe the drug Maxitrol which contained steroids
for any prolonged period”[57]and “[t]he truth was the Maxitrol was discontinued x x x as soon as
EKC disappeared and was resumed only when EKC reappeared”[58]; (2) the entire time he
was treating Peter, he “continually monitored the intraocular pressure of [Peter’s eyes] by
palpating the eyes and by putting pressure on the eyeballs,” and no hardening of the same
could be detected, which meant that there was no increase in the tension or IOP, a possible
side reaction to the use of steroid medications; and (3) it was only on 13 December 1988 that
Peter complained of a headache and blurred vision in his right eye, and upon measuring the
IOP of said eye, it was determined for the first time that the IOP of the right eye had an
elevated value.
But granting for the sake of argument that the “steroid treatment of [Peter’s] EKC caused the
steroid induced glaucoma,”[59] Dr. Tuaño argued that:
[S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake of
steroids is discontinued, the intraocular pressure automatically is reduced. Thus, [Peter’s]
glaucoma can only be due to other causes not attributable to steroids, certainly not
attributable to [his] treatment of more than three years ago x x x.
From a medical point of view, as revealed by more current examination of [Peter], the latter’s
glaucoma can only be long standing glaucoma, open angle glaucoma, because of the large
C:D ratio. The steroids provoked the latest glaucoma to be revealed earlier as [Peter]
marcelo|torts and damages|full text
remained asymptomatic prior to steroid application. Hence, the steroid treatment was in fact
beneficial to [Peter] as it revealed the incipient open angle glaucoma of [Peter] to allow earlier
treatment of the same.[60]
In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 “for insufficiency
of evidence.”[61] The decretal part of said Decision reads:
Wherefore, premises considered, the instant complaint is dismissed for insufficiency of
evidence. The counter claim (sic) is likewise dismissed in the absence of bad faith or malice
on the part of plaintiff in filing the suit.[62]
The RTC opined that petitioners failed to prove by preponderance of evidence that Dr. Tuaño
was negligent in his treatment of Peter’s condition. In particular, the record of the case was
bereft of any evidence to establish that the steroid medication and its dosage, as prescribed
by Dr. Tuaño, caused Peter’s glaucoma. The trial court reasoned that the “recognized
standards of the medical community has not been established in this case, much less has
causation been established to render [Tuaño] liable.”[63] According to the RTC:
[Petitioners] failed to establish the duty required of a medical practitioner against which Peter
Paul’s treatment by defendant can be compared with. They did not present any medical
expert or even a medical doctor to convince and expertly explain to the court the established
norm or duty required of a physician treating a patient, or whether the non taking (sic) by Dr.
Tuaño of Peter Paul’s pressure a deviation from the norm or his non-discovery of the
glaucoma in the course of treatment constitutes negligence. It is important and indispensable
to establish such a standard because once it is established, a medical practitioner who
departed thereof breaches his duty and commits negligence rendering him liable. Without
such testimony or enlightenment from an expert, the court is at a loss as to what is then the
established norm of duty of a physician against which defendant’s conduct can be compared
with to determine negligence.[64]
The RTC added that in the absence of “any medical evidence to the contrary, this court
cannot accept [petitioners’] claim that the use of steroid is the proximate cause of the damage
sustained by [Peter’s] eye.”[65]
Correspondingly, the RTC accepted Dr. Tuaño’s medical opinion that “Peter Paul must have
been suffering from normal tension glaucoma, meaning, optic nerve damage was happening
Page 19
but no elevation of the eye pressure is manifested, that the steroid treatment actually pressure of the eye of Peter was elevated, and it was only then that he suspected that Peter
unmasked the condition that resulted in the earlier treatment of the glaucoma. There is belongs to the 5% of the population who reacts adversely to steroids. [68]
nothing in the record to contradict such testimony. In fact, plaintiff’s Exhibit ‘S’ even tends to
support them.”

Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals. Their Petitioners’ Motion for Reconsideration was denied by the Court of Appeals in
appeal was docketed as CA-G.R. CV No. 68666. a Resolution dated 3 July 2007.

On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No. 68666 Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court
denying petitioners’ recourse and affirming the appealed RTC Decision. The fallo of the premised on the following assignment of errors:
judgment of the appellate court states:

I.
WHEREFORE, the Decision appealed from is AFFIRMED.[66]

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING

The Court of Appeals faulted petitioners because they – THE DECISION OF THE TRIAL COURT DISMISSING THE PETITIONERS’ COMPLAINT
FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND OF INSUFFICIENCY OF
EVIDENCE;

[D]id not present any medical expert to testify that Dr. Tuano’s prescription of Maxitrol and
Blephamide for the treatment of EKC on Peter’s right eye was not proper and that his
palpation of Peter’s right eye was not enough to detect adverse reaction to steroid. Peter II.
testified that Dr. Manuel Agulto told him that he should not have used steroid for the treatment
of EKC or that he should have used it only for two (2) weeks, as EKC is only a viral infection
which will cure by itself. However, Dr. Agulto was not presented by [petitioners] as a witness
to confirm what he allegedly told Peter and, therefore, the latter’s testimony is hearsay. Under THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING
Rule 130, Section 36 of the Rules of Court, a witness can testify only to those facts which he THE PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE
knows of his own personal knowledge, x x x. Familiar and fundamental is the rule that GROUND THAT NO MEDICAL EXPERT WAS PRESENTED BY THE PETITIONERS TO
hearsay testimony is inadmissible as evidence.[67] PROVE THEIR CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE RESPONDENT; AND

Like the RTC, the Court of Appeals gave great weight to Dr. Tuaño’s medical judgment, III.
specifically the latter’s explanation that:

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING

[W]hen a doctor sees a patient, he cannot determine whether or not the latter would react THE RESPONDENT LIABLE TO THE PETITIONERS’ FOR ACTUAL, MORAL AND
adversely to the use of steroids, that it was only on December 13, 1989, when Peter EXEMPLARY DAMAGES, ASIDE FROM ATTORNEY’S FEES, COSTS OF SUIT, AS A
complained for the first time of headache and blurred vision that he observed that the RESULT OF HIS GROSS NEGLIGENCE.[69]

marcelo|torts and damages|full text Page 20


A reading of the afore-quoted reversible errors supposedly committed by the Court of Appeals
in its Decision and Resolution would reveal that petitioners are fundamentally assailing the
finding of the Court of Appeals that the evidence on record is insufficient to establish
petitioners’ entitlement to any kind of damage. Therefore, it could be said that the sole issue
for our resolution in the Petition at bar is whether the Court of Appeals committed reversible
error in affirming the judgment of the RTC that petitioners failed to prove, by preponderance of
evidence, their claim for damages against Dr. Tuaño.
Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the factual
findings of the Court of Appeals, as well as of the RTC. In effect, petitioners would have us sift
through the evidence on record and pass upon whether there is sufficient basis to establish
Dr. Tuaño’s negligence in his treatment of Peter’s eye condition. This question clearly
involves a factual inquiry, the determination of which is not within the ambit of this Court’s
power of review under Rule 45 of the 1997 Rules Civil Procedure, as amended.[70]
Elementary is the principle that this Court is not a trier of facts; only errors of law are generally
reviewed in petitions for review on certiorari criticizing decisions of the Court of Appeals.
Questions of fact are not entertained.[71]
Nonetheless, the general rule that only questions of law may be raised on appeal in a petition
for review under Rule 45 of the Rules of Court admits of certain exceptions, including the
circumstance when the finding of fact of the Court of Appeals is premised on the supposed
absence of evidence, but is contradicted by the evidence on record. Although petitioners may
not explicitly invoke said exception, it may be gleaned from their allegations and arguments in
the instant Petition.
Petitioners contend, that “[c]ontrary to the findings of the Honorable Court of Appeals, [they]
were more than able to establish that: Dr. Tuaño ignored the standard medical procedure for
ophthalmologists, administered medication with recklessness, and exhibited an absence of
competence and skills expected from him.”[72] Petitioners reject the necessity of presenting
expert and/or medical testimony to establish (1) the standard of care respecting the treatment
of the disorder affecting Peter’s eye; and (2) whether or not negligence attended Dr. Tuaño’s
treatment of Peter, because, in their words –
marcelo|torts and damages|full text
That Dr. Tuaño was grossly negligent in the treatment of Peter’s simple eye ailment is a
simple case of cause and effect. With mere documentary evidence and based on the facts
presented by the petitioners, respondent can readily be held liable for damages even without
any expert testimony. In any case, however, and contrary to the finding of the trial court and
the Court of Appeals, there was a medical expert presented by the petitioner showing the
recklessness committed by [Dr. Tuaño] – Dr. Tuaño himself. [Emphasis supplied.]
They insist that Dr. Tuaño himself gave sufficient evidence to establish his gross negligence
that ultimately caused the impairment of the vision of Peter’s right eye, [73]i.e., that “[d]espite
[Dr. Tuaño’s] knowledge that 5% of the population reacts adversely to Maxitrol, [he] had no
qualms whatsoever in prescribing said steroid to Peter without first determining whether or not
the (sic) Peter belongs to the 5%.”[74]
We are not convinced. The judgments of both the Court of Appeals and the RTC are in
accord with the evidence on record, and we are accordingly bound by the findings of fact
made therein.
Petitioners’ position, in sum, is that Peter’s glaucoma is the direct result of Dr. Tuaño’s
negligence in his improper administration of the drug Maxitrol; “thus, [the latter] should be
liable for all the damages suffered and to be suffered by [petitioners].”[75] Clearly, the present
controversy is a classic illustration of a medical negligence case against a physician based on
the latter’s professional negligence. In this type of suit, the patient or his heirs, in order to
prevail, is required to prove by preponderance of evidence that the physician failed to
exercise that degree of skill, care, and learning possessed by other persons in the same
profession; and that as a proximate result of such failure, the patient or his heirs suffered
damages.
For lack of a specific law geared towards the type of negligence committed by members of the
medical profession, such claim for damages is almost always anchored on the alleged
violation of Article 2176 of the Civil Code, which states that:
ART. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by
the provisions of this Chapter.
Page 21
In medical negligence cases, also called medical malpractice suits, there exist a physician-
patient relationship between the doctor and the victim. But just like any other proceeding for
damages, four essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate
causation,[76] must be established by the plaintiff/s. All the four (4) elements must co-exist in
order to find the physician negligent and, thus, liable for damages.
When a patient engages the services of a physician, a physician-patient relationship is
generated. And in accepting a case, the physician, for all intents and purposes, represents
that he has the needed training and skill possessed by physicians and surgeons practicing in
the same field; and that he will employ such training, care, and skill in the treatment of the
patient.[77] Thus, in treating his patient, a physician is under a duty to [the former] to exercise
that degree of care, skill and diligence which physicians in the same general neighborhood
and in the same general line of practice ordinarily possess and exercise in like
cases.[78] Stated otherwise, the physician has the duty to use at least the same level of care
that any other reasonably competent physician would use to treat the condition under similar
circumstances.
This standard level of care, skill and diligence is a matter best addressed by expert medical
testimony, because the standard of care in a medical malpractice case is a matter peculiarly
within the knowledge of experts in the field.[79]
There is breach of duty of care, skill and diligence, or the improper performance of such duty,
by the attending physician when the patient is injured in body or in health [and this]
constitutes the actionable malpractice.[80] Proof of such breach must likewise rest upon the
testimony of an expert witness that the treatment accorded to the patient failed to meet the
standard level of care, skill and diligence which physicians in the same general neighborhood
and in the same general line of practice ordinarily possess and exercise in like cases.
Even so, proof of breach of duty on the part of the attending physician is insufficient, for there
must be a causal connection between said breach and the resulting injury sustained by the
patient. Put in another way, in order that there may be a recovery for an injury, it must be
shown that the “injury for which recovery is sought must be the legitimate consequence of the
wrong done; the connection between the negligence and the injury must be a direct and
natural sequence of events, unbroken by intervening efficient causes”; [81] that is, the
negligence must be the proximate cause of the injury. And the proximate cause of an injury
is that cause, which, in the natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.[82]
marcelo|torts and damages|full text
Just as with the elements of duty and breach of the same, in order to establish the proximate
cause [of the injury] by a preponderance of the evidence in a medical malpractice action, [the
patient] must similarly use expert testimony, because the question of whether the alleged
professional negligence caused [the patient’s] injury is generally one for specialized expert
knowledge beyond the ken of the average layperson; using the specialized knowledge and
training of his field, the expert’s role is to present to the [court] a realistic assessment of the
likelihood that [the physician’s] alleged negligence caused [the patient’s] injury.[83]
From the foregoing, it is apparent that medical negligence cases are best proved by opinions
of expert witnesses belonging in the same general neighborhood and in the same general line
of practice as defendant physician or surgeon. The deference of courts to the expert opinion
of qualified physicians [or surgeons] stems from the former’s realization that the latter possess
unusual technical skills which laymen in most instances are incapable of intelligently
evaluating;[84] hence, the indispensability of expert testimonies.
In the case at bar, there is no question that a physician-patient relationship developed
between Dr. Tuaño and Peter when Peter went to see the doctor on 2 September 1988,
seeking a consult for the treatment of his sore eyes. Admittedly, Dr. Tuaño, an
ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent
EKC. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a
multiple-dose anti-infective steroid combination in sterile form for topical application. [85]It is the
drug which petitioners claim to have caused Peter’s glaucoma.
However, as correctly pointed out by the Court of Appeals, “[t]he onus probandi was on the
patient to establish before the trial court that the physicians ignored standard medical
procedure, prescribed and administered medication with recklessness and exhibited an
absence of the competence and skills expected of general practitioners similarly
situated.”[86] Unfortunately, in this case, there was absolute failure on the part of petitioners to
present any expert testimony to establish: (1) the standard of care to be implemented by
competent physicians in treating the same condition as Peter’s under similar circumstances;
(2) that, in his treatment of Peter, Dr. Tuaño failed in his duty to exercise said standard of care
that any other competent physician would use in treating the same condition as Peter’s under
similar circumstances; and (3) that the injury or damage to Peter’s right eye, i.e., his
glaucoma, was the result of his use of Maxitrol, as prescribed by Dr. Tuaño. Petitioners’
failure to prove the first element alone is already fatal to their cause.
Petitioners maintain that Dr. Tuaño failed to follow in Peter’s case the required procedure for
the prolonged use of Maxitrol. But what is actually the required procedure in situations such
Page 22
as in the case at bar? To be precise, what is the standard operating procedure when
ophthalmologists prescribe steroid medications which, admittedly, carry some modicum of
risk?
Absent a definitive standard of care or diligence required of Dr. Tuaño under the
circumstances, we have no means to determine whether he was able to comply with the
same in his diagnosis and treatment of Peter. This Court has no yardstick upon which to
evaluate or weigh the attendant facts of this case to be able to state with confidence that the
acts complained of, indeed, constituted negligence and, thus, should be the subject of
pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuaño should have determined first
whether Peter was a “steroid responder.”[87] Yet again, petitioners did not present any
convincing proof that such determination is actually part of the standard operating procedure
which ophthalmologists should unerringly follow prior to prescribing steroid medications.
In contrast, Dr. Tuaño was able to clearly explain that what is only required of
ophthalmologists, in cases such as Peter’s, is the conduct of standard tests/procedures
known as “ocular routine examination,”[88] composed of five (5) tests/procedures – specifically,
gross examination of the eyes and the surrounding area; taking of the visual acuity of the
patient; checking the intraocular pressure of the patient; checking the motility of the eyes; and
using ophthalmoscopy on the patient’s eye – and he did all those tests/procedures every time
Peter went to see him for follow-up consultation and/or check-up.
We cannot but agree with Dr. Tuaño’s assertion that when a doctor sees a patient, he cannot
determine immediately whether the latter would react adversely to the use of steroids; all the
doctor can do is map out a course of treatment recognized as correct by the standards of the
medical profession. It must be remembered that a physician is not an insurer of the good
result of treatment. The mere fact that the patient does not get well or that a bad result occurs
does not in itself indicate failure to exercise due care.[89]The result is not determinative of the
performance [of the physician] and he is not required to be infallible.[90]
Moreover, that Dr. Tuaño saw it fit to prescribe Maxitrol to Peter was justified by the fact that
the latter was already using the same medication when he first came to see Dr. Tuaño on 2
September 1988 and had exhibited no previous untoward reaction to that particular drug. [91]
marcelo|torts and damages|full text
Also, Dr. Tuaño categorically denied petitioners’ claim that he never monitored the tension of
Peter’s eyes while the latter was on Maxitrol. Dr. Tuaño testified that he palpated Peter’s
eyes every time the latter came for a check-up as part of the doctor’s ocular routine
examination, a fact which petitioners failed to rebut. Dr. Tuaño’s regular conduct of
examinations and tests to ascertain the state of Peter’s eyes negate the very basis of
petitioners’ complaint for damages. As to whether Dr. Tuaño’s actuations conformed to the
standard of care and diligence required in like circumstances, it is presumed to have so
conformed in the absence of evidence to the contrary.
Even if we are to assume that Dr. Tuaño committed negligent acts in his treatment of Peter’s
condition, the causal connection between Dr. Tuaño’s supposed negligence and Peter’s injury
still needed to be established. The critical and clinching factor in a medical negligence case is
proof of the causal connection between the negligence which the evidence established and
the plaintiff’s injuries.[92] The plaintiff must plead and prove not only that he has been injured
and defendant has been at fault, but also that the defendant’s fault caused the injury. A
verdict in a malpractice action cannot be based on speculation or conjecture. Causation must
be proven within a reasonable medical probability based upon competent expert testimony. [93]
The causation between the physician’s negligence and the patient’s injury may only be
established by the presentation of proof that Peter’s glaucoma would not have occurred but
for Dr. Tuaño’s supposed negligent conduct. Once more, petitioners failed in this regard.
Dr. Tuaño does not deny that the use of Maxitrol involves the risk of increasing a patient’s
IOP. In fact, this was the reason why he made it a point to palpate Peter’s eyes every time
the latter went to see him -- so he could monitor the tension of Peter’s eyes. But to say that
said medication conclusively caused Peter’s glaucoma is purely speculative. Peter was
diagnosed with open-angle glaucoma. This kind of glaucoma is characterized by an almost
complete absence of symptoms and a chronic, insidious course.[94] In open-angle glaucoma,
halos around lights and blurring of vision do not occur unless there has been a sudden
increase in the intraocular vision.[95] Visual acuity remains good until late in the course of the
disease.[96] Hence, Dr. Tuaño claims that Peter’s glaucoma “can only be long standing x x x
because of the large C:D[97] ratio,” and that “[t]he steroids provoked the latest glaucoma to be
revealed earlier” was a blessing in disguise “as [Peter] remained asymptomatic prior to steroid
application.”
Who between petitioners and Dr. Tuaño is in a better position to determine and evaluate the
necessity of using Maxitrol to cure Peter’s EKC vis-à-vis the attendant risks of using the
same?
Page 23
That Dr. Tuaño has the necessary training and skill to practice his chosen field is beyond
cavil. Petitioners do not dispute Dr. Tuaño’s qualifications – that he has been a physician for
close to a decade and a half at the time Peter first came to see him; that he has had various
medical training; that he has authored numerous papers in the field of ophthalmology, here
and abroad; that he is a Diplomate of the Philippine Board of Ophthalmology; that he occupies
various teaching posts (at the time of the filing of the present complaint, he was the Chair of
the Department of Ophthalmology and an Associate Professor at the University of the
Philippines-Philippine General Hospital and St. Luke’s Medical Center, respectively); and that
he held an assortment of positions in numerous medical organizations like the Philippine
Medical Association, Philippine Academy of Ophthalmology, Philippine Board of
Ophthalmology, Philippine Society of Ophthalmic Plastic and Reconstructive Surgery,
Philippine Journal of Ophthalmology, Association of Philippine Ophthalmology Professors, et
al.
It must be remembered that when the qualifications of a physician are admitted, as in the
instant case, there is an inevitable presumption that in proper cases, he takes the necessary
precaution and employs the best of his knowledge and skill in attending to his clients, unless
the contrary is sufficiently established.[98] In making the judgment call of treating Peter’s EKC
with Maxitrol, Dr. Tuaño took the necessary precaution by palpating Peter’s eyes to monitor
their IOP every time the latter went for a check-up, and he employed the best of his
knowledge and skill earned from years of training and practice.
In contrast, without supporting expert medical opinions, petitioners’ bare assertions of
negligence on Dr. Tuaño’s part, which resulted in Peter’s glaucoma, deserve scant credit.
Our disposition of the present controversy might have been vastly different had petitioners
presented a medical expert to establish their theory respecting Dr. Tuaño’s so-called
negligence. In fact, the record of the case reveals that petitioners’ counsel recognized the
necessity of presenting such evidence. Petitioners even gave an undertaking to the RTC
judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no follow-through on said
undertaking was made.
The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue.
However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his
favor, the duty or the burden of evidence shifts to defendant to controvert
plaintiff’s prima facie case; otherwise, a verdict must be returned in favor of plaintiff.[99] The
party having the burden of proof must establish his case by a preponderance of
evidence.[100] The concept of “preponderance of evidence” refers to evidence which is of
greater weight or more convincing than that which is offered in opposition to it;[101] in the last
analysis, it means probability of truth. It is evidence which is more convincing to the court as
marcelo|torts and damages|full text
worthy of belief than that which is offered in opposition thereto. [102] Rule 133, Section 1 of the
Revised Rules of Court provides the guidelines for determining preponderance of evidence,
thus:
In civil cases, the party having the burden of proof must establish his case by a
preponderance of evidence. In determining where the preponderance or superior weight of
evidence on the issues involved lies the court may consider all the facts and circumstances of
the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of the facts to which they testify, the
probability or improbability of their testimony, their interest or want of interest, and also their
personal credibility so far as the same legitimately appear upon the trial. The court may also
consider the number of witnesses, though the preponderance is not necessarily with the
greater number.
Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court, to
establish their case by a preponderance of evidence showing a reasonable connection
between Dr. Tuaño’s alleged breach of duty and the damage sustained by Peter’s right
eye. This, they did not do. In reality, petitioners’ complaint for damages is merely anchored on
a statement in the literature of Maxitrol identifying the risks of its use, and the purported
comment of Dr. Agulto – another doctor not presented as witness before the RTC –
concerning the prolonged use of Maxitrol for the treatment of EKC.
It seems basic that what constitutes proper medical treatment is a medical question that
should have been presented to experts. If no standard is established through expert medical
witnesses, then courts have no standard by which to gauge the basic issue of breach thereof
by the physician or surgeon. The RTC and Court of Appeals, and even this Court, could not
be expected to determine on its own what medical technique should have been utilized for a
certain disease or injury. Absent expert medical opinion, the courts would be dangerously
engaging in speculations.
All told, we are hard pressed to find Dr. Tuaño liable for any medical negligence or
malpractice where there is no evidence, in the nature of expert testimony, to establish that in
treating Peter, Dr. Tuaño failed to exercise reasonable care, diligence and skill generally
required in medical practice. Dr. Tuaño’s testimony, that his treatment of Peter conformed in
all respects to standard medical practice in this locality, stands unrefuted. Consequently, the
RTC and the Court of Appeals correctly held that they had no basis at all to rule that
petitioners were deserving of the various damages prayed for in their Complaint.
Page 24
WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The On April 9, 1995, Bladimir was afflicted with chicken pox. He was thus advised by petitioner
assailed Decision dated 27 September 2006 and Resolution dated 3 July 2007, both of the Dennis Hao (Hao), the companys general manager, to rest for three days which he did at the
Court of Appeals in CA-G.R. CV No. 68666, are hereby AFFIRMED. No cost. companys barracks where he lives free of charge.

SO ORDERED.

OCEAN BUILDERS CONSTRUCTION CORP., and/or Three days later or on April 12, 1995, Bladimir went about his usual chores of manning the
DENNIS HAO, gate of the company premises and even cleaned the company vehicles. Later in the
G.R. No. 150898 afternoon, however, he asked a co-worker, Ignacio Silangga (Silangga), to accompany him to
Petitioners, his house in Capas, Tarlac so he could rest. Informed by Silangga of Bladimirs intention, Hao
gave Bladimir P1,000.00 and ordered Silangga to instead bring Bladimir to the nearest
hospital.
Present:

- versus - Along with co-workers Narding and Tito Vergado, Silangga thus brought Bladimir to
CARPIO MORALES, Chairperson, the Caybiga Community Hospital (Caybiga Hospital), a primary-care hospital around one
kilometer away from the office of the company.
BRION,

BERSAMIN,
SPOUSES ANTONIO and ANICIA CUBACUB, The hospital did not allow Bladimir to leave the hospital. He was then confined, with Narding
VILLARAMA, JR., and keeping watch over him. The next day, April 13, 1995, a doctor of the hospital informed
Respondents. Narding that they needed to talk to Bladimirs parents, hence, on Silanggas request, their co-
SERENO, JJ. workers June Matias and Joel Edrene fetched Bladimirs parents from Tarlac.

Promulgated: At about 8 oclock in the evening of the same day, April 13, 1995, Bladimirs parents-
respondent spouses Cubacub, with their friend Dr. Hermes Frias (Dr. Frias), arrived at the
April 13, 2011 Caybiga Hospital and transferred Bladimir to the Quezon City General Hospital (QCGH)
where he was placed in the intensive care unit and died the following day, April 14, 1995.
x--------------------------------------------------x

The death certificate issued by the QCGH recorded Bladimirs immediate cause of death as
DECISION cardio-respiratory arrest and the antecedent cause as pneumonia. On the other hand, the
death certificate issued by Dr. Frias recorded the causes of death as cardiac arrest, multiple
organ system failure, septicemia and chicken pox.

CARPIO MORALES, J.:

Bladimirs parents-herein respondents later filed on August 17, 1995 before the Tarlac
Regional Trial Court (RTC) at Capas a complaint for damages against petitioners, alleging
Bladimir Cubacub (Bladimir) was employed as maintenance man by petitioner company that Hao was guilty of negligence which resulted in the deterioration of Bladimirs condition
Ocean Builders Construction Corp. at its office in Caloocan City. leading to his death.

marcelo|torts and damages|full text Page 25

By Decision of April 14, 1997,[1] Branch 66 of the Tarlac RTC at Capas dismissed the
complaint, holding that Hao was not negligent. It ruled that Hao was not under any obligation
to bring Bladimir to better tertiary hospitals, and assuming that Bladimir died of chicken pox 7. P50,000.00 as moral damages;
aggravated by pneumonia or some other complications due to lack of adequate facilities at
the hospital, the same cannot be attributed to Hao.

8. P20,000.00 as exemplary damages;

On respondents appeal, the Court of Appeals, by Decision of June 22, 2001, reversed the
trial courts decision, holding that by Haos failure to bring Bladimir to a better-equipped
hospital, he violated Article 161 of the Labor Code. It went on to state that Hao should have 9. P15,000.00 as attorneys fees and
foreseen that Bladimir, an adult, could suffer complications from chicken pox and, had he
been brought to hospitals like St. Lukes, Capitol Medical Center, Philippine General Hospital
and the like, Bladimir could have been saved.
10. Cost of suit.

Thus the appellate court disposed:

SO ORDERED.[2]
WHEREFORE, the decision of the Regional Trial Court of Capas, Tarlac, Branch 66 in Civil
Case No. 349 dated April 14, 1997 is hereby REVERSED and SET ASIDE and a new one
rendered holding the defendants solidarily liable to plaintiffs-appellants for the following:

The motion for reconsideration was denied by Resolution[3] of November 26, 2001, hence this
1. P50,000.00 for the life of Bladimir Cubacub; petition.

2. P584,630.00 for loss of Bladimirs earning capacity; Petitioners maintain that Hao exercised the diligence more than what the law requires, hence,
they are not liable for damages.

3. P4,834.60 as reimbursement of expenses incurred at Quezon City General Hospital as

evidenced by Exhibits E to E-14 inclusive; The petition is meritorious.

4. P18,107.75 as reimbursement of expenses for the 5-day wake covered by Exhibits F to At the onset, the Court notes that the present case is one for damages based on torts, the
F-17; employer-employee relationship being merely incidental. To successfully prosecute an action
anchored on torts, three elements must be present, viz: (1) duty (2) breach (3) injury and
proximate causation. The assailed decision of the appellate court held that it was the duty of
petitioners to provide adequate medical assistance to the employees under Art. 161 of the
5. P30,000.00 as funeral expenses at Prudential Funeral Homes covered by Exhibit I; Labor Code, failing which a breach is committed.

6. P6,700.00 for acquisition of memorial lot at Sto. Rosario Memorial Park covered by
Exhibit J;
Art. 161 of the Labor Code provides:

marcelo|torts and damages|full text Page 26


ART. 161. Assistance of employer. It shall be the duty of any employer to provide all
the necessary assistance to ensure the adequate and immediate medical and dental
attendance and treatment to an injured or sick employee in case of emergency. (emphasis
and underscoring supplied)
The Implementing Rules of the Code do not enlighten what the phrase adequate and
immediate medical attendance means in relation to an emergency. It would thus appear that
the determination of what it means is left to the employer, except when a full-time registered
nurse or physician are available on-site as required, also under the Labor Code, specifically
Art. 157 which provides:
Article 157. Emergency Medical and Dental Services. ─ It shall be the duty of every employer
to furnish his employees in any locality with free medical and dental attendance and
facilitiesconsisting of:
(a) The services of a full-time registered nurse when the number of employees
exceeds fifty (50) but not more than two hundred (200) except when the employer does not
maintain hazardous workplaces, in which case, the services of a graduate first-aider shall be
provided for the protection of workers, where no registered nurse is available. The Secretary
of Labor and Employment shall provide by appropriate regulations, the services that shall be
required where the number of employees does not exceed fifty (50) and shall determine by
appropriate order, hazardous workplaces for purposes of this Article;
(b) The services of a full-time registered nurse, a part-time physician and dentist, and an
emergency clinic, when the number of employees exceeds two hundred (200) but not more
than three hundred (300); and
(c) The services of a full-time physician, dentist and a full-time registered nurse as well
as a dental clinic and an infirmary or emergency hospital with one bed capacity for every one
hundred (100) employees when the number of employees exceeds three hundred
(300). (emphasis and underscoring supplied)
marcelo|torts and damages|full text
In the present case, there is no allegation that the company premises are hazardous. Neither
is there any allegation on the number of employees the company has. If Haos
testimony[4] would be believed, the company had only seven regular employees and 20
contractual employees ─ still short of the minimum 50 workers that an establishment must
have for it to be required to have a full-time registered nurse.
The Court can thus only determine whether the actions taken by petitioners when Bladimir
became ill amounted to the necessary assistance to ensure adequate and immediate medical
. . . attendance to Bladimir as required under Art. 161 of the Labor Code.
As found by the trial court and borne by the records, petitioner Haos advice for Bladimir to, as
he did, take a 3-day rest and to later have him brought to the nearest hospital constituted
adequate and immediate medical attendance that he is mandated, under Art. 161, to provide
to a sick employee in an emergency.
Chicken pox is self-limiting. Hao does not appear to have a medical background. He may not
be thus expected to have known that Bladimir needed to be brought to a hospital with better
facilities than the Caybiga Hospital, contrary to appellate courts ruling.
AT ALL EVENTS, the alleged negligence of Hao cannot be considered as the proximate
cause of the death of Bladimir. Proximate cause is that which, in natural and continuous
sequence, unbroken by an efficient intervening cause, produces injury, and without which, the
result would not have occurred.[5] An injury or damage is proximately caused by an act or
failure to act, whenever it appears from the evidence in the case that the act or omission
played a substantial part in bringing about or actually causing the injury or damage, and that
the injury or damage was either a direct result or a reasonably probable consequence of the
act or omission.[6]
Verily, the issue in this case is essentially factual in nature. The dissent, apart from adopting
the appellate courts findings, finds that Bladimir contracted chicken pox from a co-worker and
Hao was negligent in not bringing that co-worker to the nearest physician, or isolating him as
well. This finding is not, however, borne by the records. Nowhere in the appellate courts or
even the trial courts decision is there any such definite finding that Bladimir contracted
chicken pox from a co-worker. At best, the only allusion to another employee being afflicted
with chicken pox was when Hao testified that he knew it to heal within three days as was the
case of another worker, without reference, however, as to when it happened.[7]
Page 27
On the issue of which of the two death certificates is more credible, the dissent, noting that Dr.
Frias attended to Bladimir during his last illness, holds that the certificate which he issued ─
citing chicken pox as antecedent cause ─ deserves more credence.
There appears, however, to be no conflict in the two death certificates on the immediate
cause of Bladimirs death since both cite cardio-respiratory arrest due to complications ─ from
pneumonia per QCGH, septicemia and chicken pox per Dr. Frias. In fact, Dr. Frias admitted
that the causes of death in both certificates were the same.[8]
Be that as it may, Dr. Frias could not be considered as Bladimirs attending physician, he
having merely ordered Bladimirs transfer to the QCGH after seeing him at
the Caybiga Hospital. He thereafter left Bladimir to the care of doctors at QCGH, returning to
Capas, Tarlac at 4 oclock the following morning or eight hours after seeing Bladimir.As he
himself testified upon cross-examination, he did not personally attend to Bladimir anymore
once the latter was brought to the ICU at QCGH.[9]
It bears emphasis that a duly-registered death certificate is considered a public document and
the entries therein are presumed correct, unless the party who contests its accuracy can
produce positive evidence establishing otherwise.[10] The QCGH death certificate was
received by the City Civil Registrar on April 17, 1995. Not only was the certificate shown by
positive evidence to be inaccurate. Its credibility, more than that issued by Dr. Frias, becomes
more pronounced as note is taken of the fact that he was not around at the time of death.
IN FINE, petitioner company and its co-petitioner manager Dennis Hao are not guilty of
negligence.
WHEREFORE, the petition is GRANTED. The challenged Decision of the Court of Appeals
is REVERSED, and the complaint is hereby DISMISSED.
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
BOCOBO, J.:
marcelo|torts and damages|full text
This case comes up from the Court of Appeals which held the petitioner herein, Fausto
Barredo, liable in damages for the death of Faustino Garcia caused by the negligence of
Pedro Fontanilla, a taxi driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road between Malabon and
Navotas, Province of Rizal, there was a head-on collision between a taxi of the Malate
Taxicab driven by Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The carretela
was overturned, and one of its passengers, 16-year-old boy Faustino Garcia, suffered injuries
from which he died two days later. A criminal action was filed against Fontanilla in the Court of
First Instance of Rizal, and he was convicted and sentenced to an indeterminate sentence of
one year and one day to two years of prision correccional. The court in the criminal case
granted the petition that the right to bring a separate civil action be reserved. The Court of
Appeals affirmed the sentence of the lower court in the criminal case. Severino Garcia and
Timotea Almario, parents of the deceased on March 7, 1939, brought an action in the Court of
First Instance of Manila against Fausto Barredo as the sole proprietor of the Malate Taxicab
and employer of Pedro Fontanilla. On July 8, 1939, the Court of First Instance of Manila
awarded damages in favor of the plaintiffs for P2,000 plus legal interest from the date of the
complaint. This decision was modified by the Court of Appeals by reducing the damages to
P1,000 with legal interest from the time the action was instituted. It is undisputed that
Fontanilla 's negligence was the cause of the mishap, as he was driving on the wrong side of
the road, and at high speed. As to Barredo's responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the
diligence of a good father of a family to prevent damage. (See p. 22, appellant's brief.) In fact
it is shown he was careless in employing Fontanilla who had been caught several times for
violation of the Automobile Law and speeding (Exhibit A) — violation which appeared in the
records of the Bureau of Public Works available to be public and to himself. Therefore, he
must indemnify plaintiffs under the provisions of article 1903 of the Civil Code.
The main theory of the defense is that the liability of Fausto Barredo is governed by the
Revised Penal Code; hence, his liability is only subsidiary, and as there has been no civil
action against Pedro Fontanilla, the person criminally liable, Barredo cannot be held
responsible in the case. The petitioner's brief states on page 10:
... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all the
diligence of a good father of a family in the selection and supervision of Pedro Fontanilla to
prevent damages suffered by the respondents. In other words, The Court of Appeals insists
on applying in the case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in
Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article to a civil liability
arising from a crime as in the case at bar simply because Chapter II of Title 16 of Book IV of
the Civil Code, in the precise words of article 1903 of the Civil Code itself, is applicable only to
"those (obligations) arising from wrongful or negligent acts or commission not punishable by
law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The liability sought to be imposed upon him
in this action is not a civil obligation arising from a felony or a misdemeanor (the crime of
Page 28
Pedro Fontanilla,), but an obligation imposed in article 1903 of the Civil Code by reason of his
negligence in the selection or supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring this separate civil action
against Fausto Barredo, thus making him primarily and directly, responsible under article
1903 of the Civil Code as an employer of Pedro Fontanilla. The defendant maintains that
Fontanilla's negligence being punishable by the Penal Code, his (defendant's) liability as an
employer is only subsidiary, according to said Penal code, but Fontanilla has not been sued in
a civil action and his property has not been exhausted. To decide the main issue, we must cut
through the tangle that has, in the minds of many confused and jumbled
together delitos and cuasi delitos, or crimes under the Penal Code and fault or negligence
under articles 1902-1910 of the Civil Code. This should be done, because justice may be lost
in a labyrinth, unless principles and remedies are distinctly envisaged. Fortunately, we are
aided in our inquiry by the luminous presentation of the perplexing subject by renown jurists
and we are likewise guided by the decisions of this Court in previous cases as well as by the
solemn clarity of the consideration in several sentences of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal
institution under the Civil Code with a substantivity all its own, and individuality that is entirely
apart and independent from delict or crime. Upon this principle and on the wording and spirit
article 1903 of the Civil Code, the primary and direct responsibility of employers may be safely
anchored.
The pertinent provisions of the Civil Code and Revised Penal Code are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and from acts and
omissions which are unlawful or in which any kind of fault or negligence intervenes.
xxx xxx xxx
ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the
provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in which fault or negligence, not
punishable by law, intervenes shall be subject to the provisions of Chapter II, Title XVI of this
book.
xxx xxx xxx
ART 1902. Any person who by an act or omission causes damage to another by his fault or
negligence shall be liable for the damage so done.
ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for
personal acts and omissions, but also for those of persons for whom another is responsible.
marcelo|torts and damages|full text
The father and in, case of his death or incapacity, the mother, are liable for any damages
caused by the minor children who live with them.
Guardians are liable for damages done by minors or incapacitated persons subject to their
authority and living with them.
Owners or directors of an establishment or business are equally liable for any damages
caused by their employees while engaged in the branch of the service in which employed, or
on occasion of the performance of their duties.
The State is subject to the same liability when it acts through a special agent, but not if the
damage shall have been caused by the official upon whom properly devolved the duty of
doing the act performed, in which case the provisions of the next preceding article shall be
applicable.
Finally, teachers or directors of arts trades are liable for any damages caused by their pupils
or apprentices while they are under their custody.
The liability imposed by this article shall cease in case the persons mentioned therein prove
that they are exercised all the diligence of a good father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his employees may recover from the
latter what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a
felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. — The exemption from criminal
liability established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article
11 of this Code does not include exemption from civil liability, which shall be enforced to the
following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any
imbecile or insane person, and by a person under nine years of age, or by one over nine but
under fifteen years of age, who has acted without discernment shall devolve upon those
having such person under their legal authority or control, unless it appears that there was no
fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship, or control, or if such person be insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting property exempt from execution, in accordance
with the civil law.
Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the
harm has been prevented shall be civilly liable in proportion to the benefit which they may
have received.
Page 29
The courts shall determine, in their sound discretion, the proportionate amount for which each
one shall be liable.
When the respective shares can not be equitably determined, even approximately, or when
the liability also attaches to the Government, or to the majority of the inhabitants of the town,
and, in all events, whenever the damage has been caused with the consent of the authorities
or their agents, indemnification shall be made in the manner prescribed by special laws or
regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or
causing the fear shall be primarily liable and secondarily, or, if there be no such persons,
those doing the act shall be liable, saving always to the latter that part of their property
exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of
establishment. — In default of persons criminally liable, innkeepers, tavern keepers, and any
other persons or corporation shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or some general or
special police regulation shall have been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft
within their houses lodging therein, or the person, or for the payment of the value thereof,
provided that such guests shall have notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the inn; and shall furthermore have
followed the directions which such innkeeper or his representative may have given them with
respect to the care of and vigilance over such goods. No liability shall attach in case of
robbery with violence against or intimidation against or intimidation of persons unless
committed by the innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in
the next preceding article shall also apply to employers, teachers, persons, and corporations
engaged in any kind of industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.
xxx xxx xxx
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 minimum period; if
it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and
medium periods 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."
marcelo|torts and damages|full text
It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad
enough to cover the driver's negligence in the instant case, nevertheless article 1093
limits cuasi-delitos to acts or omissions "not punishable by law." But inasmuch as article 365
of the Revised Penal Code punishes not only reckless but even simple imprudence or
negligence, the fault or negligence under article 1902 of the Civil Code has apparently been
crowded out. It is this overlapping that makes the "confusion worse confounded." However, a
closer study shows that such a concurrence of scope in regard to negligent acts does not
destroy the distinction between the civil liability arising from a crime and the responsibility for
cuasi-delitos or culpa extra-contractual. The same negligent act causing damages may
produce civil liability arising from a crime under article 100 of the Revised Penal Code, or
create an action for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the
Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This
legal institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the
Roman Law. In fact, in Spanish legal terminology, this responsibility is often referred to as
culpa aquiliana. The Partidas also contributed to the genealogy of the present fault or
negligence under the Civil Code; for instance, Law 6, Title 15, of Partida 7, says: "Tenudo es
de fazer emienda, porque, como quier que el non fizo a sabiendas en daño al otro, pero
acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089,
one of the five sources of obligations is this legal institution of cuasi-delito or culpa extra-
contractual: "los actos . . . en que intervenga cualquier genero de culpa o negligencia." Then
article 1093 provides that this kind of obligation shall be governed by Chapter II of Title XVI of
Book IV, meaning articles 1902-0910. This portion of the Civil Code is exclusively devoted to
the legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code and the culpa
aquiliana or cuasi-delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are only of private concern.
2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil
Code, by means of indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former are punished only if
there is a penal law clearly covering them, while the latter, cuasi-delitos, include all acts in
which "any king of fault or negligence intervenes." However, it should be noted that not all
violations of the penal law produce civil responsibility, such as begging in contravention of
ordinances, violation of the game laws, infraction of the rules of traffic when nobody is hurt.
(See Colin and Capitant, "Curso Elemental de Derecho Civil," Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the
employer's primary and direct liability under article 1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Española"
(Vol. XXVII, p. 414) says:
Page 30
El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a
diferentes personas. Asi, existe una responsabilidad civil propiamente dicha, que en ningun
casl lleva aparejada responsabilidad criminal alguna, y otra que es consecuencia indeclinable
de la penal que nace de todo delito o falta."
The juridical concept of civil responsibility has various aspects and comprises different
persons. Thus, there is a civil responsibility, properly speaking, which in no case carries with it
any criminal responsibility, and another which is a necessary consequence of the penal
liability as a result of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following case: There had been a
collision between two trains belonging respectively to the Ferrocarril Cantabrico and the
Ferrocarril del Norte. An employee of the latter had been prosecuted in a criminal case, in
which the company had been made a party as subsidiarily responsible in civil damages. The
employee had been acquitted in the criminal case, and the employer, the Ferrocarril del
Norte, had also been exonerated. The question asked was whether the Ferrocarril Cantabrico
could still bring a civil action for damages against the Ferrocarril del Norte. Maura's opinion
was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos
parece sostenible que exista cosa juzgada acerca de la obligacion civil de indemnizar los
quebrantos y menoscabos inferidos por el choque de los trenes. El titulo en que se funda la
accion para demandar el resarcimiento, no puede confundirse con las responsabilidades
civiles nacidas de delito, siquiera exista en este, sea el cual sea, una culpa rodeada de notas
agravatorias que motivan sanciones penales, mas o menos severas. La lesion causada por
delito o falta en los derechos civiles, requiere restituciones, reparaciones o indemnizaciones,
que cual la pena misma atañen al orden publico; por tal motivo vienen encomendadas, de
ordinario, al Ministerio Fiscal; y claro es que si por esta via se enmiendan los quebrantos y
menoscabos, el agraviado excusa procurar el ya conseguido desagravio; pero esta eventual
coincidencia de los efectos, no borra la diversidad originaria de las acciones civiles para pedir
indemnizacion.
Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento
y que tiene otro regimen), dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u
omision, causante de daños o perjuicios, en que intervenga culpa o negligencia. Es trivial que
acciones semejantes son ejercitadas ante los Tribunales de lo civil cotidianamente, sin que la
Justicia punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al 128 del
Codigo Penal, atentos al espiritu y a los fines sociales y politicos del mismo, desenvuelven y
ordenan la materia de responsabilidades civiles nacidas de delito, en terminos separados del
regimen por ley comun de la culpa que se denomina aquiliana, por alusion a precedentes
legislativos del Corpus Juris. Seria intempestivo un paralelo entre aquellas ordenaciones, y la
de la obligacion de indemnizar a titulo de culpa civil; pero viene al caso y es necesaria una de
las diferenciaciones que en el tal paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las
responsabilidades civiles, entre los que sean por diversos conceptos culpables del delito o
falta, las hacen extensivas a las empresas y los establecimientos al servicio de los cuales
estan los delincuentes; pero con caracter subsidiario, o sea, segun el texto literal, en defecto
marcelo|torts and damages|full text
de los que sean responsables criminalmente. No coincide en ello el Codigo Civil, cuyo
articulo 1903, dice; La obligacion que impone el articulo anterior es exigible, no solo por los
actos y omisiones propios, sino por los de aquellas personas de quienes se debe responder;
personas en la enumeracion de las cuales figuran los dependientes y empleados de los
establecimientos o empresas, sea por actos del servicio, sea con ocasion de sus funciones.
Por esto acontece, y se observa en la jurisprudencia, que las empresas, despues de
intervenir en las causas criminales con el caracter subsidiario de su responsabilidad civil por
razon del delito, son demandadas y condenadas directa y aisladamente, cuando se trata de
la obligacion, ante los tribunales civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de
nuestro regimen judicial la separacion entre justicia punitiva y tribunales de lo civil, de suerte
que tienen unos y otros normas de fondo en distintos cuerpos legales, y diferentes modos de
proceder, habiendose, por añadidura, abstenido de asistir al juicio criminal la Compañia del
Ferrocarril Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de
indemnizacion por los daños y perjuicios que le irrogo el choque, no estuvo sub judice ante el
Tribunal del Jurado, ni fue sentenciada, sino que permanecio intacta, al pronunciarse el fallo
de 21 de marzo. Aun cuando el veredicto no hubiese sido de inculpabilidad, mostrose mas
arriba, que tal accion quedaba legitimamente reservada para despues del proceso; pero al
declararse que no existio delito, ni responsabilidad dimanada de delito, materia unica sobre
que tenian jurisdiccion aquellos juzgadores, se redobla el motivo para la obligacion civil ex
lege, y se patentiza mas y mas que la accion para pedir su cumplimiento permanece
incolume, extraña a la cosa juzgada.
As things are, apropos of the reality pure and simple of the facts, it seems less tenable that
there should be res judicata with regard to the civil obligation for damages on account of the
losses caused by the collision of the trains. The title upon which the action for reparation is
based cannot be confused with the civil responsibilities born of a crime, because there exists
in the latter, whatever each nature, a culpa surrounded with aggravating aspects which give
rise to penal measures that are more or less severe. The injury caused by a felony or
misdemeanor upon civil rights requires restitutions, reparations, or indemnifications which, like
the penalty itself, affect public order; for this reason, they are ordinarily entrusted to the office
of the prosecuting attorney; and it is clear that if by this means the losses and damages are
repaired, the injured party no longer desires to seek another relief; but this coincidence of
effects does not eliminate the peculiar nature of civil actions to ask for indemnity.
Such civil actions in the present case (without referring to contractual faults which are not
pertinent and belong to another scope) are derived, according to article 1902 of the Civil
Code, from every act or omission causing losses and damages in which culpa or negligence
intervenes. It is unimportant that such actions are every day filed before the civil courts
without the criminal courts interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal
Code, bearing in mind the spirit and the social and political purposes of that Code, develop
and regulate the matter of civil responsibilities arising from a crime, separately from the
regime under common law, of culpa which is known as aquiliana, in accordance with
legislative precedent of the Corpus Juris. It would be unwarranted to make a detailed
comparison between the former provisions and that regarding the obligation to indemnify on
account of civil culpa; but it is pertinent and necessary to point out to one of such differences.
Page 31
Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil
responsibilities among those who, for different reasons, are guilty of felony or misdemeanor,
make such civil responsibilities applicable to enterprises and establishments for which the
guilty parties render service, but with subsidiary character, that is to say, according to the
wording of the Penal Code, in default of those who are criminally responsible. In this regard,
the Civil Code does not coincide because article 1903 says: "The obligation imposed by the
next preceding article is demandable, not only for personal acts and omissions, but also for
those of persons for whom another is responsible." Among the persons enumerated are the
subordinates and employees of establishments or enterprises, either for acts during their
service or on the occasion of their functions. It is for this reason that it happens, and it is so
observed in judicial decisions, that the companies or enterprises, after taking part in the
criminal cases because of their subsidiary civil responsibility by reason of the crime, are sued
and sentenced directly and separately with regard to the obligation, before the civil courts.
Seeing that the title of this obligation is different, and the separation between punitive justice
and the civil courts being a true postulate of our judicial system, so that they have different
fundamental norms in different codes, as well as different modes of procedure, and inasmuch
as the Compaña del Ferrocarril Cantabrico has abstained from taking part in the criminal case
and has reserved the right to exercise its actions, it seems undeniable that the action for
indemnification for the losses and damages caused to it by the collision was not sub
judice before the Tribunal del Jurado, nor was it the subject of a sentence, but it remained
intact when the decision of March 21 was rendered. Even if the verdict had not been that of
acquittal, it has already been shown that such action had been legitimately reserved till after
the criminal prosecution; but because of the declaration of the non-existence of the felony and
the non-existence of the responsibility arising from the crime, which was the sole subject
matter upon which the Tribunal del Jurado had jurisdiction, there is greater reason for the civil
obligation ex lege, and it becomes clearer that the action for its enforcement remain intact and
is not res judicata.
Laurent, a jurist who has written a monumental work on the French Civil Code, on which the
Spanish Civil Code is largely based and whose provisions on cuasi-delito or culpa extra-
contractual are similar to those of the Spanish Civil Code, says, referring to article 1384 of the
French Civil Code which corresponds to article 1903, Spanish Civil Code:
The action can be brought directly against the person responsible (for another), without
including the author of the act. The action against the principal is accessory in the sense that
it implies the existence of a prejudicial act committed by the employee, but it is not subsidiary
in the sense that it can not be instituted till after the judgment against the author of the act or
at least, that it is subsidiary to the principal action; the action for responsibility (of the
employer) is in itself a principal action. (Laurent, Principles of French Civil Law, Spanish
translation, Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that
the responsibility of the employer is principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de
aquellas personas por las que se debe responder, es subsidiaria? es principal? Para
contestar a esta pregunta es necesario saber, en primer lugar, en que se funda el precepto
marcelo|torts and damages|full text
legal. Es que realmente se impone una responsabilidad por una falta ajena? Asi parece a
primera vista; pero semejante afirmacion seria contraria a la justicia y a la maxima universal,
segun la que las faltas son personales, y cada uno responde de aquellas que le son
imputables. La responsabilidad de que tratamos se impone con ocasion de un delito o culpa,
pero no por causa de ellos, sino por causa del causi delito, esto es, de la imprudencia o de la
negligencia del padre, del tutor, del dueño o director del establecimiento, del maestro, etc.
Cuando cualquiera de las personas que enumera el articulo citado (menores de edad,
incapacitados, dependientes, aprendices) causan un daño, la ley presume que el padre, el
tutor, el maestro, etc., han cometido una falta de negligencia para prevenir o evitar el daño.
Esta falta es la que la ley castiga. No hay, pues, responsabilidad por un hecho ajeno, sino en
la apariencia; en realidad la responsabilidad se exige por un hecho propio. La idea de que
esa responsabilidad sea subsidiaria es, por lo tanto, completamente inadmisible.
Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of those
persons for who one is responsible, subsidiary or principal? In order to answer this question it
is necessary to know, in the first place, on what the legal provision is based. Is it true that
there is a responsibility for the fault of another person? It seems so at first sight; but such
assertion would be contrary to justice and to the universal maxim that all faults are personal,
and that everyone is liable for those faults that can be imputed to him. The responsibility in
question is imposed on the occasion of a crime or fault, but not because of the same, but
because of the cuasi-delito, that is to say, the imprudence or negligence of the father,
guardian, proprietor or manager of the establishment, of the teacher, etc. Whenever anyone
of the persons enumerated in the article referred to (minors, incapacitated persons,
employees, apprentices) causes any damage, the law presumes that the father, guardian,
teacher, etc. have committed an act of negligence in not preventing or avoiding the damage. It
is this fault that is condemned by the law. It is, therefore, only apparent that there is a
responsibility for the act of another; in reality the responsibility exacted is for one's own act.
The idea that such responsibility is subsidiary is, therefore, completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil
Español," says in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa,
doctrina del articulo 1902; mas por excepcion, se responde de la ajena respecto de aquellas
personas con las que media algun nexo o vinculo, que motiva o razona la responsabilidad.
Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el Codigo de esta clase
distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo
19) y subsidiaria la segunda (articulos 20 y 21); pero en el orden civil, en el caso del articulo
1903, ha de entenderse directa, por el tenor del articulo que impone la responsabilidad
precisamente "por los actos de aquellas personas de quienes se deba responder."
That is to say, one is not responsible for the acts of others, because one is liable only for his
own faults, this being the doctrine of article 1902; but, by exception, one is liable for the acts
of those persons with whom there is a bond or tie which gives rise to the responsibility. Is this
responsibility direct or subsidiary? In the order of the penal law, the Penal Code distinguishes
between minors and incapacitated persons on the one hand, and other persons on the other,
declaring that the responsibility for the former is direct (article 19), and for the latter,
Page 32
subsidiary (articles 20 and 21); but in the scheme of the civil law, in the case of article 1903,
the responsibility should be understood as direct, according to the tenor of that articles, for
precisely it imposes responsibility "for the acts of those persons for whom one should be
responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the
principles above set forth: that a quasi-delict or culpa extra-contractual is a separate and
distinct legal institution, independent from the civil responsibility arising from criminal liability,
and that an employer is, under article 1903 of the Civil Code, primarily and directly
responsible for the negligent acts of his employee.
One of the most important of those Spanish decisions is that of October 21, 1910. In that
case, Ramon Lafuente died as the result of having been run over by a street car owned by the
"compañia Electric Madrileña de Traccion." The conductor was prosecuted in a criminal case
but he was acquitted. Thereupon, the widow filed a civil action against the street car
company, paying for damages in the amount of 15,000 pesetas. The lower court awarded
damages; so the company appealed to the Supreme Tribunal, alleging violation of articles
1902 and 1903 of the Civil Code because by final judgment the non-existence of fault or
negligence had been declared. The Supreme Court of Spain dismissed the appeal, saying:
Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el
Tribunal a quo, al condonar a la compañia Electrica Madrileña al pago del daño causado con
la muerte de Ramon La fuente Izquierdo, desconoce el valor y efectos juridicos de la
sentencia absolutoria deictada en la causa criminal que se siguio por el mismo hecho,
cuando es lo cierto que de este han conocido las dos jurisdicciones bajo diferentes as pectos,
y como la de lo criminal declrao dentro de los limites de su competencia que el hecho de que
se trata no era constitutivo de delito por no haber mediado descuido o negligencia graves, lo
que no excluye, siendo este el unico fundamento del fallo absolutorio, el concurso de la culpa
o negligencia no califacadas, fuente de obligaciones civiles segun el articulo 1902 del Codigo,
y que alcanzan, segun el 1903, netre otras perosnas, a los Directores de establecimientos o
empresas por los daños causados por sus dependientes en determinadas condiciones, es
manifesto que la de lo civil, al conocer del mismo hehco baho este ultimo aspecto y al
condenar a la compañia recurrente a la indemnizacion del daño causado por uno de sus
empleados, lejos de infringer los mencionados textos, en relacion con el articulo 116 de la
Ley de Enjuciamiento Criminal, se ha atenido estrictamente a ellos, sin invadir atribuciones
ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el fallo recaido en la causa.
Considering that the first ground of the appeal is based on the mistaken supposition that the
trial court, in sentencing the Compañia Madrileña to the payment of the damage caused by
the death of Ramon Lafuente Izquierdo, disregards the value and juridical effects of the
sentence of acquittal rendered in the criminal case instituted on account of the same act,
when it is a fact that the two jurisdictions had taken cognizance of the same act in its different
aspects, and as the criminal jurisdiction declared within the limits of its authority that the act in
question did not constitute a felony because there was no grave carelessness or negligence,
and this being the only basis of acquittal, it does no exclude the co-existence of fault or
negligence which is not qualified, and is a source of civil obligations according to article 1902
of the Civil Code, affecting, in accordance with article 1903, among other persons, the
marcelo|torts and damages|full text
managers of establishments or enterprises by reason of the damages caused by employees
under certain conditions, it is manifest that the civil jurisdiccion in taking cognizance of the
same act in this latter aspect and in ordering the company, appellant herein, to pay an
indemnity for the damage caused by one of its employees, far from violating said legal
provisions, in relation with article 116 of the Law of Criminal Procedure, strictly followed the
same, without invading attributes which are beyond its own jurisdiction, and without in any
way contradicting the decision in that cause. (Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either separately or with the street car
company. This is precisely what happens in the present case: the driver, Fontanilla, has not
been sued in a civil action, either alone or with his employer.
Second. That the conductor had been acquitted of grave criminal negligence, but the
Supreme Tribunal of Spain said that this did not exclude the co-existence of fault or
negligence, which is not qualified, on the part of the conductor, under article 1902 of the Civil
Code. In the present case, the taxi driver was found guilty of criminal negligence, so that if he
had even sued for his civil responsibility arising from the crime, he would have been held
primarily liable for civil damages, and Barredo would have been held subsidiarily liable for the
same. But the plaintiffs are directly suing Barredo, on his primary responsibility because of his
own presumed negligence — which he did not overcome — under article 1903. Thus, there
were two liabilities of Barredo: first, the subsidiary one because of the civil liability of the taxi
driver arising from the latter's criminal negligence; and, second, Barredo's primary liability as
an employer under article 1903. The plaintiffs were free to choose which course to take, and
they preferred the second remedy. In so doing, they were acting within their rights. It might be
observed in passing, that the plaintiff choose the more expeditious and effective method of
relief, because Fontanilla was either in prison, or had just been released, and besides, he was
probably without property which might be seized in enforcing any judgment against him for
damages.
Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held
liable civilly, notwithstanding the acquittal of the employee (the conductor) in a previous
criminal case, with greater reason should Barredo, the employer in the case at bar, be held
liable for damages in a civil suit filed against him because his taxi driver had been convicted.
The degree of negligence of the conductor in the Spanish case cited was less than that of the
taxi driver, Fontanilla, because the former was acquitted in the previous criminal case while
the latter was found guilty of criminal negligence and was sentenced to an indeterminate
sentence of one year and one day to two years of prision correccional.
(See also Sentence of February 19, 1902, which is similar to the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was
brought against a railroad company for damages because the station agent, employed by the
company, had unjustly and fraudulently, refused to deliver certain articles consigned to the
plaintiff. The Supreme Court of Spain held that this action was properly under article 1902 of
the Civil Code, the court saying:
Page 33
Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna con
relacion a las pruebas del pleito: 1.º, que las expediciones facturadas por la compañia
ferroviaria a la consignacion del actor de las vasijas vacias que en su demanda relacionan
tenian como fin el que este las devolviera a sus remitentes con vinos y alcoholes; 2.º, que
llegadas a su destino tales mercanias no se quisieron entregar a dicho consignatario por el
jefe de la estacion sin motivo justificado y con intencion dolosa, y 3.º, que la falta de entrega
de estas expediciones al tiempo de reclamarlas el demandante le originaron daños y
perjuicios en cantidad de bastante importancia como expendedor al por mayor que era de
vinos y alcoholes por las ganancias que dejo de obtener al verse privado de servir los
pedidos que se le habian hecho por los remitentes en los envases:
Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran
este recurso, porque la demanda inicial del pleito a que se contrae no contiene accion que
nazca del incumplimiento del contrato de transporte, toda vez que no se funda en el retraso
de la llegada de las mercancias ni de ningun otro vinculo contractual entre las partes
contendientes, careciendo, por tanto, de aplicacion el articulo 371 del Codigo de Comercio,
en que principalmente descansa el fallo recurrido, sino que se limita a pedir la reparaction de
los daños y perjuicios producidos en el patrimonio del actor por la injustificada y dolosa
negativa del porteador a la entrega de las mercancias a su nombre consignadas, segun lo
reconoce la sentencia, y cuya responsabilidad esta claramente sancionada en el articulo
1902 del Codigo Civil, que obliga por el siguiente a la Compañia demandada como ligada con
el causante de aquellos por relaciones de caracter economico y de jurarquia administrativa.
Considering that the sentence, in question recognizes, in virtue of the facts which it declares,
in relation to the evidence in the case: (1) that the invoice issued by the railroad company in
favor of the plaintiff contemplated that the empty receptacles referred to in the complaint
should be returned to the consignors with wines and liquors; (2) that when the said
merchandise reached their destination, their delivery to the consignee was refused by the
station agent without justification and with fraudulent intent, and (3) that the lack of delivery of
these goods when they were demanded by the plaintiff caused him losses and damages of
considerable importance, as he was a wholesale vendor of wines and liquors and he failed to
realize the profits when he was unable to fill the orders sent to him by the consignors of the
receptacles:
Considering that upon this basis there is need of upholding the four assignments of error, as
the original complaint did not contain any cause of action arising from non-fulfillment of a
contract of transportation, because the action was not based on the delay of the goods nor on
any contractual relation between the parties litigant and, therefore, article 371 of the Code of
Commerce, on which the decision appealed from is based, is not applicable; but it limits to
asking for reparation for losses and damages produced on the patrimony of the plaintiff on
account of the unjustified and fraudulent refusal of the carrier to deliver the goods consigned
to the plaintiff as stated by the sentence, and the carrier's responsibility is clearly laid down in
article 1902 of the Civil Code which binds, in virtue of the next article, the defendant company,
because the latter is connected with the person who caused the damage by relations of
economic character and by administrative hierarchy. (Emphasis supplied.)
marcelo|torts and damages|full text
The above case is pertinent because it shows that the same act may come under both the
Penal Code and the Civil Code. In that case, the action of the agent was unjustified
and fraudulent and therefore could have been the subject of a criminal action. And yet, it was
held to be also a proper subject of a civil action under article 1902 of the Civil Code. It is also
to be noted that it was the employer and not the employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year
1907]), the trial court awarded damages to the plaintiff, a laborer of the defendant, because
the latter had negligently failed to repair a tramway in consequence of which the rails slid off
while iron was being transported, and caught the plaintiff whose leg was broken. This Court
held:
It is contended by the defendant, as its first defense to the action that the necessary
conclusion from these collated laws is that the remedy for injuries through negligence lies only
in a criminal action in which the official criminally responsible must be made primarily liable
and his employer held only subsidiarily to him. According to this theory the plaintiff should
have procured the arrest of the representative of the company accountable for not repairing
the track, and on his prosecution a suitable fine should have been imposed, payable primarily
by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of
the Civil Code makes obligations arising from faults or negligence not punished by the law,
subject to the provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:
"A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
"SEC. 1903. The obligation imposed by the preceeding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.
"The father, and on his death or incapacity, the mother, is liable for the damages caused by
the minors who live with them.
xxx xxx xxx
"Owners or directors of an establishment or enterprise are equally liable for the damages
caused by their employees in the service of the branches in which the latter may be employed
or in the performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage."
Page 34
As an answer to the argument urged in this particular action it may be sufficient to point out
that nowhere in our general statutes is the employer penalized for failure to provide or
maintain safe appliances for his workmen. His obligation therefore is one 'not punished by the
laws' and falls under civil rather than criminal jurisprudence. But the answer may be a broader
one. We should be reluctant, under any conditions, to adopt a forced construction of these
scientific codes, such as is proposed by the defendant, that would rob some of these articles
of effect, would shut out litigants against their will from the civil courts, would make the
assertion of their rights dependent upon the selection for prosecution of the proper criminal
offender, and render recovery doubtful by reason of the strict rules of proof prevailing in
criminal actions. Even if these articles had always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their meaning by the provisions of the Law of
Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though never in actual
force in these Islands, was formerly given a suppletory or explanatory effect. Under article 111
of this law, both classes of action, civil and criminal, might be prosecuted jointly or separately,
but while the penal action was pending the civil was suspended. According to article 112, the
penal action once started, the civil remedy should be sought therewith, unless it had been
waived by the party injured or been expressly reserved by him for civil proceedings for the
future. If the civil action alone was prosecuted, arising out of a crime that could be enforced
only on private complaint, the penal action thereunder should be extinguished. These
provisions are in harmony with those of articles 23 and 133 of our Penal Code on the same
subject.
An examination of this topic might be carried much further, but the citation of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even
to be suspended thereby, except as expressly provided in the law. Where an individual is
civilly liable for a negligent act or omission, it is not required that the injured party should seek
out a third person criminally liable whose prosecution must be a condition precedent to the
enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against his employees only while they are in process
of prosecution, or in so far as they determine the existence of the criminal act from which
liability arises, and his obligation under the civil law and its enforcement in the civil courts is
not barred thereby unless by the election of the injured person. Inasmuch as no criminal
proceeding had been instituted, growing our of the accident in question, the provisions of the
Penal Code can not affect this action. This construction renders it unnecessary to finally
determine here whether this subsidiary civil liability in penal actions has survived the laws that
fully regulated it or has been abrogated by the American civil and criminal procedure now in
force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the
briefs before us to have arisen from the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer
arising out of his relation to his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles 1902 and 1093. More
than this, however, it cannot be said to fall within the class of acts unpunished by the law, the
marcelo|torts and damages|full text
consequence of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to
which these articles are applicable are understood to be those not growing out of pre-existing
duties of the parties to one another. But where relations already formed give rise to duties,
whether springing from contract or quasi contract, then breaches of those duties are subject
to articles 1101, 1103, and 1104 of the same code. A typical application of this distinction may
be found in the consequences of a railway accident due to defective machinery supplied by
the employer. His liability to his employee would arise out of the contract of employment, that
to the passengers out of the contract for passage, while that to the injured bystander would
originate in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child
Salvador Bona brought a civil action against Moreta to recover damages resulting from the
death of the child, who had been run over by an automobile driven and managed by the
defendant. The trial court rendered judgment requiring the defendant to pay the plaintiff the
sum of P1,000 as indemnity: This Court in affirming the judgment, said in part:
If it were true that the defendant, in coming from the southern part of Solana Street, had to
stop his auto before crossing Real Street, because he had met vehicles which were going
along the latter street or were coming from the opposite direction along Solana Street, it is to
be believed that, when he again started to run his auto across said Real Street and to
continue its way along Solana Street northward, he should have adjusted the speed of the
auto which he was operating until he had fully crossed Real Street and had completely
reached a clear way on Solana Street. But, as the child was run over by the auto precisely at
the entrance of Solana Street, this accident could not have occurred if the auto had been
running at a slow speed, aside from the fact that the defendant, at the moment of crossing
Real Street and entering Solana Street, in a northward direction, could have seen the child in
the act of crossing the latter street from the sidewalk on the right to that on the left, and if the
accident had occurred in such a way that after the automobile had run over the body of the
child, and the child's body had already been stretched out on the ground, the automobile still
moved along a distance of about 2 meters, this circumstance shows the fact that the
automobile entered Solana Street from Real Street, at a high speed without the defendant
having blown the horn. If these precautions had been taken by the defendant, the deplorable
accident which caused the death of the child would not have occurred.
It will be noticed that the defendant in the above case could have been prosecuted in a
criminal case because his negligence causing the death of the child was punishable by the
Penal Code. Here is therefore a clear instance of the same act of negligence being a proper
subject-matter either of a criminal action with its consequent civil liability arising from a crime
or of an entirely separate and independent civil action for fault or negligence under article
1902 of the Civil Code. Thus, in this jurisdiction, the separate individually of a cuasi-
delito or culpa aquiliana under the Civil Code has been fully and clearly recognized, even with
regard to a negligent act for which the wrongdoer could have been prosecuted and convicted
in a criminal case and for which, after such a conviction, he could have been sued for this civil
liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal
and Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of
Page 35
the five-year-old child, Purificacion Bernal, brought a civil action to recover damages for the
child's death as a result of burns caused by the fault and negligence of the defendants. On the
evening of April 10, 1925, the Good Friday procession was held in Tacloban, Leyte. Fortunata
Enverso with her daughter Purificacion Bernal had come from another municipality to attend
the same. After the procession the mother and the daughter with two others were passing
along Gran Capitan Street in front of the offices of the Tacloban Electric & Ice Plant, Ltd.,
owned by defendants J. V. House, when an automobile appeared from the opposite direction.
The little girl, who was slightly ahead of the rest, was so frightened by the automobile that she
turned to run, but unfortunately she fell into the street gutter where hot water from the electric
plant was flowing. The child died that same night from the burns. The trial courts dismissed
the action because of the contributory negligence of the plaintiffs. But this Court held, on
appeal, that there was no contributory negligence, and allowed the parents P1,000 in
damages from J. V. House who at the time of the tragic occurrence was the holder of the
franchise for the electric plant. This Court said in part:
Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was
led to order the dismissal of the action because of the contributory negligence of the plaintiffs.
It is from this point that a majority of the court depart from the stand taken by the trial judge.
The mother and her child had a perfect right to be on the principal street of Tacloban, Leyte,
on the evening when the religious procession was held. There was nothing abnormal in
allowing the child to run along a few paces in advance of the mother. No one could foresee
the coincidence of an automobile appearing and of a frightened child running and falling into a
ditch filled with hot water. The doctrine announced in the much debated case of Rakes vs.
Atlantic Gulf and Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil Code
must again be enforced. The contributory negligence of the child and her mother, if any, does
not operate as a bar to recovery, but in its strictest sense could only result in reduction of the
damages.
It is most significant that in the case just cited, this Court specifically applied article 1902 of
the Civil Code. It is thus that although J. V. House could have been criminally prosecuted for
reckless or simple negligence and not only punished but also made civilly liable because of
his criminal negligence, nevertheless this Court awarded damages in an independent civil
action for fault or negligence under article 1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for
the death of the plaintiff's daughter alleged to have been caused by the negligence of the
servant in driving an automobile over the child. It appeared that the cause of the mishap was
a defect in the steering gear. The defendant Leynes had rented the automobile from the
International Garage of Manila, to be used by him in carrying passengers during the fiesta of
Tuy, Batangas. Leynes was ordered by the lower court to pay P1,000 as damages to the
plaintiff. On appeal this Court reversed the judgment as to Leynes on the ground that he had
shown that the exercised the care of a good father of a family, thus overcoming the
presumption of negligence under article 1903. This Court said:
As to selection, the defendant has clearly shown that he exercised the care and diligence of a
good father of a family. He obtained the machine from a reputable garage and it was, so far
as appeared, in good condition. The workmen were likewise selected from a standard garage,
marcelo|torts and damages|full text
were duly licensed by the Government in their particular calling, and apparently thoroughly
competent. The machine had been used but a few hours when the accident occurred and it is
clear from the evidence that the defendant had no notice, either actual or constructive, of the
defective condition of the steering gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also
provides when the liability shall cease. It says:
"The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage."
From this article two things are apparent: (1) That when an injury is caused by the negligence
of a servant or employee there instantly arises a presumption of law that there was
negligence on the part of the matter or employer either in the selection of the servant or
employee, or in supervision over him after the selection, or both; and (2) that presumption
is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows
necessarily that if the employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieve from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on
that of his servant.
The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37
[year 1915]). In the latter case, the complaint alleged that the defendant's servant had so
negligently driven an automobile, which was operated by defendant as a public vehicle, that
said automobile struck and damaged the plaintiff's motorcycle. This Court, applying article
1903 and following the rule in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:
The master is liable for the negligent acts of his servant where he is the owner or director of a
business or enterprise and the negligent acts are committed while the servant is engaged in
his master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs.
Norton & Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages
brought by Cuison for the death of his seven-year-old son Moises. The little boy was on his
way to school with his sister Marciana. Some large pieces of lumber fell from a truck and
pinned the boy underneath, instantly killing him. Two youths, Telesforo Binoya and Francisco
Bautista, who were working for Ora, an employee of defendant Norton & Harrison Co.,
pleaded guilty to the crime of homicide through reckless negligence and were sentenced
accordingly. This Court, applying articles 1902 and 1903, held:
The basis of civil law liability is not respondent superior but the relationship of pater familias.
This theory bases the liability of the master ultimately on his own negligence and not on that
of his servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila
Railroad Co. [1918], 38 Phil., 768.)
Page 36
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the
plaintiff brought an action for damages for the demolition of its wharf, which had been struck
by the steamer Helen C belonging to the defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly
licensed captain, authorized to navigate and direct a vessel of any tonnage, and that the
appellee contracted his services because of his reputation as a captain, according to F. C.
Cadwallader. This being so, we are of the opinion that the presumption of liability against the
defendant has been overcome by the exercise of the care and diligence of a good father of a
family in selecting Captain Lasa, in accordance with the doctrines laid down by this court in
the cases cited above, and the defendant is therefore absolved from all liability.
It is, therefore, seen that the defendant's theory about his secondary liability is negatived by
the six cases above set forth. He is, on the authority of these cases, primarily and directly
responsible in damages under article 1903, in relation to article 1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by the defendant. We study first, City
of Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the
City of Manila and a street car of the Manila Electric Co. took place on June 8, 1925. The
truck was damaged in the amount of P1,788.27. Sixto Eustaquio, the motorman, was
prosecuted for the crime of damage to property and slight injuries through reckless
imprudence. He was found guilty and sentenced to pay a fine of P900, to indemnify the City of
Manila for P1,788.27, with subsidiary imprisonment in case of insolvency. Unable to collect
the indemnity from Eustaquio, the City of Manila filed an action against the Manila Electric
Company to obtain payment, claiming that the defendant was subsidiarily liable. The main
defense was that the defendant had exercised the diligence of a good father of a family to
prevent the damage. The lower court rendered judgment in favor of the plaintiff. This Court
held, in part, that this case was governed by the Penal Code, saying:
With this preliminary point out of the way, there is no escaping the conclusion that the
provisions of the Penal Code govern. The Penal Code in easily understandable language
authorizes the determination of subsidiary liability. The Civil Code negatives its application by
providing that civil obligations arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of the motorman was a misdemeanor falling
under article 604 of the Penal Code. The act of the motorman was not a wrongful or negligent
act or omission not punishable by law. Accordingly, the civil obligation connected up with the
Penal Code and not with article 1903 of the Civil Code. In other words, the Penal Code affirms
its jurisdiction while the Civil Code negatives its jurisdiction. This is a case of criminal
negligence out of which civil liability arises and not a case of civil negligence.
xxx xxx xxx
Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code.
Indeed, as pointed out by the trial judge, any different ruling would permit the master to
escape scot-free by simply alleging and proving that the master had exercised all diligence in
the selection and training of its servants to prevent the damage. That would be a good
defense to a strictly civil action, but might or might not be to a civil action either as a part of or
predicated on conviction for a crime or misdemeanor. (By way of parenthesis, it may be said
marcelo|torts and damages|full text
further that the statements here made are offered to meet the argument advanced during our
deliberations to the effect that article 0902 of the Civil Code should be disregarded and codal
articles 1093 and 1903 applied.)
It is not clear how the above case could support the defendant's proposition, because the
Court of Appeals based its decision in the present case on the defendant's primary
responsibility under article 1903 of the Civil Code and not on his subsidiary liability arising
from Fontanilla's criminal negligence. In other words, the case of City of Manila vs. Manila
Electric Co., supra, is predicated on an entirely different theory, which is the subsidiary liability
of an employer arising from a criminal act of his employee, whereas the foundation of the
decision of the Court of Appeals in the present case is the employer's primary liability under
article 1903 of the Civil Code. We have already seen that this is a proper and independent
remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A
motorman in the employ of the Manila Electric Company had been convicted o homicide by
simple negligence and sentenced, among other things, to pay the heirs of the deceased the
sum of P1,000. An action was then brought to enforce the subsidiary liability of the defendant
as employer under the Penal Code. The defendant attempted to show that it had exercised
the diligence of a good father of a family in selecting the motorman, and therefore claimed
exemption from civil liability. But this Court held:
In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption
from civil liability established in article 1903 of the Civil Code for all who have acted with the
diligence of a good father of a family, is not applicable to the subsidiary civil liability provided
in article 20 of the Penal Code.
The above case is also extraneous to the theory of the defendant in the instant case, because
the action there had for its purpose the enforcement of the defendant's subsidiary liability
under the Penal Code, while in the case at bar, the plaintiff's cause of action is based on the
defendant's primary and direct responsibility under article 1903 of the Civil Code. In fact, the
above case destroys the defendant's contention because that decision illustrates the principle
that the employer's primary responsibility under article 1903 of the Civil Code is different in
character from his subsidiary liability under the Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant has failed to
recognize the distinction between civil liability arising from a crime, which is governed by the
Penal Code, and the responsibility for cuasi-delito or culpa aquiliana under the Civil Code,
and has likewise failed to give the importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not
be set forth. Suffice it to say that the question involved was also civil liability arising from a
crime. Hence, it is as inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasi-
delitos or culpa aquiliana under the Civil Code. Specifically they show that there is a
distinction between civil liability arising from criminal negligence (governed by the Penal
Code) and responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code,
Page 37
and that the same negligent act may produce either a civil liability arising from a crime under
the Penal Code, or a separate responsibility for fault or negligence under articles 1902 to
1910 of the Civil Code. Still more concretely, the authorities above cited render it inescapable
to conclude that the employer — in this case the defendant-petitioner — is primarily and
directly liable under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be sufficient to
dispose of this case. But inasmuch as we are announcing doctrines that have been little
understood in the past, it might not be inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple
negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or
negligence not punished by law, according to the literal import of article 1093 of the Civil
Code, the legal institution of culpa aquiliana would have very little scope and application in
actual life. Death or injury to persons and damage to property through any degree of
negligence — even the slightest — would have to be indemnified only through the principle of
civil liability arising from a crime. In such a state of affairs, what sphere would remain
for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any intention to
bring about a situation so absurd and anomalous. Nor are we, in the interpretation of the laws,
disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use
the literal meaning of the law to smother and render almost lifeless a principle of such ancient
origin and such full-grown development as culpa aquiliana or cuasi-delito, which is conserved
and made enduring in articles 1902 to 1910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt
is required, while in a civil case, preponderance of evidence is sufficient to make the
defendant pay in damages. There are numerous cases of criminal negligence which can not
be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In
such cases, the defendant can and should be made responsible in a civil action under articles
1902 to 1910 of the Civil Code. Otherwise, there would be many instances of unvindicated
civil wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to
sue the driver and exhaust his (the latter's) property first, would be tantamount to compelling
the plaintiff to follow a devious and cumbersome method of obtaining relief. True, there is
such a remedy under our laws, but there is also a more expeditious way, which is based on
the primary and direct responsibility of the defendant under article 1903 of the Civil Code. Our
view of the law is more likely to facilitate remedy for civil wrongs, because the procedure
indicated by the defendant is wasteful and productive of delay, it being a matter of common
knowledge that professional drivers of taxis and similar public conveyance usually do not
have sufficient means with which to pay damages. Why, then, should the plaintiff be required
in all cases to go through this roundabout, unnecessary, and probably useless procedure? In
construing the laws, courts have endeavored to shorten and facilitate the pathways of right
and justice.
At this juncture, it should be said that the primary and direct responsibility of employers and
their presumed negligence are principles calculated to protect society. Workmen and
employees should be carefully chosen and supervised in order to avoid injury to the public. It
marcelo|torts and damages|full text
is the masters or employers who principally reap the profits resulting from the services of
these servants and employees. It is but right that they should guarantee the latter's careful
conduct for the personnel and patrimonial safety of others. As Theilhard has said, "they
should reproach themselves, at least, some for their weakness, others for their poor selection
and all for their negligence." And according to Manresa, "It is much more equitable and just
that such responsibility should fall upon the principal or director who could have chosen a
careful and prudent employee, and not upon the injured person who could not exercise such
selection and who used such employee because of his confidence in the principal or director."
(Vol. 12, p. 622, 2nd Ed.) Many jurists also base this primary responsibility of the employer on
the principle of representation of the principal by the agent. Thus, Oyuelos says in the work
already cited (Vol. 7, p. 747) that before third persons the employer and employee "vienen a
ser como una sola personalidad, por refundicion de la del dependiente en la de quien le
emplea y utiliza." ("become as one personality by the merging of the person of the employee
in that of him who employs and utilizes him.") All these observations acquire a peculiar force
and significance when it comes to motor accidents, and there is need of stressing and
accentuating the responsibility of owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil
Code on this subject, which has given rise to the overlapping or concurrence of spheres
already discussed, and for lack of understanding of the character and efficacy of the action
for culpa aquiliana, there has grown up a common practice to seek damages only by virtue of
the civil responsibility arising from a crime, forgetting that there is another remedy, which is by
invoking articles 1902-1910 of the Civil Code. Although this habitual method is allowed by our
laws, it has nevertheless rendered practically useless and nugatory the more expeditious and
effective remedy based on culpa aquiliana or culpa extra-contractual. In the present case, we
are asked to help perpetuate this usual course. But we believe it is high time we pointed out to
the harm done by such practice and to restore the principle of responsibility for fault or
negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we
caused the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, so that
its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is
believed, make for the better safeguarding of private rights because it re-establishes an
ancient and additional remedy, and for the further reason that an independent civil action, not
depending on the issues, limitations and results of a criminal prosecution, and entirely
directed by the party wronged or his counsel, is more likely to secure adequate and
efficacious redress.
In view of the foregoing, the judgment of the Court of Appeals should be and is hereby
affirmed, with costs against the defendant-petitioner.
PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito
Elcano, deceased, plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said
minor, defendants-appellees.
Cruz & Avecilla for appellants.
Page 38
Marvin R. Hill & Associates for appellees.
BARREDO, J.:
Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in
Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to
dismiss of defendants, the complaint of plaintiffs for recovery of damages from defendant
Reginald Hill, a minor, married at the time of the occurrence, and his father, the defendant
Marvin Hill, with whom he was living and getting subsistence, for the killing by Reginald of the
son of the plaintiffs, named Agapito Elcano, of which, when criminally prosecuted, the said
accused was acquitted on the ground that his act was not criminal, because of "lack of intent
to kill, coupled with mistake."
Actually, the motion to dismiss based on the following grounds:
1. The present action is not only against but a violation of section 1, Rule 107, which is now
Rule III, of the Revised Rules of Court;
2. The action is barred by a prior judgment which is now final and or in res-adjudicata;
3. The complaint had no cause of action against defendant Marvin Hill, because he was
relieved as guardian of the other defendant through emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.])
was first denied by the trial court. It was only upon motion for reconsideration of the
defendants of such denial, reiterating the above grounds that the following order was issued:
Considering the motion for reconsideration filed by the defendants on January 14, 1965 and
after thoroughly examining the arguments therein contained, the Court finds the same to be
meritorious and well-founded.
WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by
ordering the dismissal of the above entitled case.
SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our
resolution the following assignment of errors:
THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE CLAIM OF
DEFENDANTS THAT -
marcelo|torts and damages|full text
I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF SECTION 1,
RULE 107, NOW RULE 111, OF THE REVISED RULES OF COURT, AND THAT SECTION
3(c) OF RULE 111, RULES OF COURT IS APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RES-
ADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL CODE,
ARE INAPPLICABLE IN THE INSTANT CASE; and
IV
THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT MARVIN
HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT
THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant- appellee
Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court of First
Instance of Quezon City. After due trial, he was acquitted on the ground that his act was not
criminal because of "lack of intent to kill, coupled with mistake." Parenthetically, none of the
parties has favored Us with a copy of the decision of acquittal, presumably because
appellants do not dispute that such indeed was the basis stated in the court's decision. And
so, when appellants filed their complaint against appellees Reginald and his father, Atty.
Marvin Hill, on account of the death of their son, the appellees filed the motion to dismiss
above-referred to.
As We view the foregoing background of this case, the two decisive issues presented for Our
resolution are:
1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal
case wherein the action for civil liability, was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty. Hill,
notwithstanding the undisputed fact that at the time of the occurrence complained of.
Reginald, though a minor, living with and getting subsistenee from his father, was already
legally married?
The first issue presents no more problem than the need for a reiteration and further
clarification of the dual character, criminal and civil, of fault or negligence as a source of
obligation which was firmly established in this jurisdiction in Barredo vs. Garcia, 73 Phil. 607.
In that case, this Court postulated, on the basis of a scholarly dissertation by Justice Bocobo
on the nature of culpa aquiliana in relation to culpa criminal or delito and mere culpa or fault,
Page 39
with pertinent citation of decisions of the Supreme Court of Spain, the works of recognized
civilians, and earlier jurisprudence of our own, that the same given act can result in civil
liability not only under the Penal Code but also under the Civil Code. Thus, the opinion holds:
The, above case is pertinent because it shows that the same act machinist. come under both
the Penal Code and the Civil Code. In that case, the action of the agent killeth unjustified and
fraudulent and therefore could have been the subject of a criminal action. And yet, it was held
to be also a proper subject of a civil action under article 1902 of the Civil Code. It is also to be
noted that it was the employer and not the employee who was being sued. (pp. 615-616, 73
Phil.). 1
It will be noticed that the defendant in the above case could have been prosecuted in a
criminal case because his negligence causing the death of the child was punishable by the
Penal Code. Here is therefore a clear instance of the same act of negligence being a proper
subject matter either of a criminal action with its consequent civil liability arising from a crime
or of an entirely separate and independent civil action for fault or negligence under article
1902 of the Civil Code. Thus, in this jurisdiction, the separate individuality of a cuasi-
delito or culpa aquiliana, under the Civil Code has been fully and clearly recognized, even
with regard to a negligent act for which the wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after such a conviction, he could have been sued
for this civil liability arising from his crime. (p. 617, 73 Phil.) 2
It is most significant that in the case just cited, this Court specifically applied article 1902 of
the Civil Code. It is thus that although J. V. House could have been criminally prosecuted for
reckless or simple negligence and not only punished but also made civilly liable because of
his criminal negligence, nevertheless this Court awarded damages in an independent civil
action for fault or negligence under article 1902 of the Civil Code. (p. 618, 73 Phil.) 3
The legal provisions, authors, and cases already invoked should ordinarily be sufficient to
dispose of this case. But inasmuch as we are announcing doctrines that have been little
understood, in the past, it might not he inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in articles 365 punishes not only reckless but also simple
negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or
negligence not punished by law, accordingly to the literal import of article 1093 of the Civil
Code, the legal institution of culpa aquiliana would have very little scope and application in
actual life. Death or injury to persons and damage to property- through any degree of
negligence - even the slightest - would have to be Idemnified only through the principle of civil
liability arising from a crime. In such a state of affairs, what sphere would remain for cuasi-
delito or culpa aquiliana? We are loath to impute to the lawmaker any intention to bring about
a situation so absurd and anomalous. Nor are we, in the interpretation of the laws, disposed
to uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal
meaning of the law to smother and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana or cuasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil Code.
Secondary, to find the accused guilty in a criminal case, proof of guilt beyond reasonable
doubt is required, while in a civil case, preponderance of evidence is sufficient to make the
marcelo|torts and damages|full text
defendant pay in damages. There are numerous cases of criminal negligence which can not
be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In
such cases, the defendant can and should be made responsible in a civil action under articles
1902 to 1910 of the Civil Code. Otherwise. there would be many instances of unvindicated
civil wrongs. "Ubi jus Idemnified remedium." (p. 620,73 Phil.)
Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil
Code on this subject, which has given rise to the overlapping or concurrence of spheres
already discussed, and for lack of understanding of the character and efficacy of the action
for culpa aquiliana, there has grown up a common practice to seek damages only by virtue of
the civil responsibility arising from a crime, forgetting that there is another remedy, which is by
invoking articles 1902-1910 of the Civil Code. Although this habitual method is allowed by, our
laws, it has nevertheless rendered practically useless and nugatory the more expeditious and
effective remedy based on culpa aquiliana or culpa extra-contractual. In the present case, we
are asked to help perpetuate this usual course. But we believe it is high time we pointed out to
the harms done by such practice and to restore the principle of responsibility for fault or
negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we
caused the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, so that
its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is
believed, make for the better safeguarding or private rights because it realtor, an ancient and
additional remedy, and for the further reason that an independent civil action, not depending
on the issues, limitations and results of a criminal prosecution, and entirely directed by the
party wronged or his counsel, is more likely to secure adequate and efficacious redress. (p.
621, 73 Phil.)
Contrary to an immediate impression one might get upon a reading of the foregoing excerpts
from the opinion in Garcia that the concurrence of the Penal Code and the Civil Code therein
referred to contemplate only acts of negligence and not intentional voluntary acts - deeper
reflection would reveal that the thrust of the pronouncements therein is not so limited, but that
in fact it actually extends to fault or culpa. This can be seen in the reference made therein to
the Sentence of the Supreme Court of Spain of February 14, 1919, supra, which involved a
case of fraud or estafa, not a negligent act. Indeed, Article 1093 of the Civil Code of Spain, in
force here at the time of Garcia, provided textually that obligations "which are derived from
acts or omissions in which fault or negligence, not punishable by law, intervene shall be the
subject of Chapter II, Title XV of this book (which refers to quasi-delicts.)" And it is precisely
the underline qualification, "not punishable by law", that Justice Bocobo emphasized could
lead to an ultimo construction or interpretation of the letter of the law that "killeth, rather than
the spirit that giveth lift- hence, the ruling that "(W)e will not use the literal meaning of the law
to smother and render almost lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or quasi-delito, which is conserved and made enduring in
articles 1902 to 1910 of the Spanish Civil Code." And so, because Justice Bacobo was
Chairman of the Code Commission that drafted the original text of the new Civil Code, it is to
be noted that the said Code, which was enacted after the Garcia doctrine, no longer uses the
term, 11 not punishable by law," thereby making it clear that the concept of culpa
aquiliana includes acts which are criminal in character or in violation of the penal law, whether
voluntary or matter. Thus, the corresponding provisions to said Article 1093 in the new code,
which is Article 1162, simply says, "Obligations derived from quasi-delicto shall be governed
Page 40
by the provisions of Chapter 2, Title XVII of this Book, (on quasi-delicts) and by special laws."
More precisely, a new provision, Article 2177 of the new code provides:
ART. 2177. Responsibility for fault or negligence under the preceding article is entirely
separate and distinct from the civil liability arising from negligence under the Penal Code. But
the plaintiff cannot recover damages twice for the same act or omission of the defendant.
According to the Code Commission: "The foregoing provision (Article 2177) through at first
sight startling, is not so novel or extraordinary when we consider the exact nature of criminal
and civil negligence. The former is a violation of the criminal law, while the latter is a "culpa
aquiliana" or quasi-delict, of ancient origin, having always had its own foundation and
individuality, separate from criminal negligence. Such distinction between criminal negligence
and "culpa extracontractual" or "cuasi-delito" has been sustained by decision of the Supreme
Court of Spain and maintained as clear, sound and perfectly tenable by Maura, an
outstanding Spanish jurist. Therefore, under the proposed Article 2177, acquittal from an
accusation of criminal negligence, whether on reasonable doubt or not, shall not be a bar to a
subsequent civil action, not for civil liability arising from criminal negligence, but for damages
due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double recovery.", (Report
of the Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the
same argument of Justice Bacobo about construction that upholds "the spirit that giveth lift-
rather than that which is literal that killeth the intent of the lawmaker should be observed in
applying the same. And considering that the preliminary chapter on human relations of the
new Civil Code definitely establishes the separability and independence of liability in a civil
action for acts criminal in character (under Articles 29 to 32) from the civil responsibility arising
from crime fixed by Article 100 of the Revised Penal Code, and, in a sense, the Rules of
Court, under Sections 2 and 3 (c), Rule 111, contemplate also the same separability, it is
"more congruent with the spirit of law, equity and justice, and more in harmony with modern
progress"- to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific
Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to "fault or
negligencia covers not only acts "not punishable by law" but also acts criminal in character,
whether intentional and voluntary or negligent. Consequently, a separate civil action lies
against the offender in a criminal act, whether or not he is criminally prosecuted and found
guilty or acquitted, provided that the offended party is not allowed, if he is actually charged
also criminally, to recover damages on both scores, and would be entitled in such eventuality
only to the bigger award of the two, assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers
exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil
liability for the same act considered as a quasi-delict only and not as a crime is not
estinguished even by a declaration in the criminal case that the criminal act charged has not
happened or has not been committed by the accused. Briefly stated, We here hold, in
reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts which may be
punishable by law.4
It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished
his liability for quasi-delict, hence that acquittal is not a bar to the instant action against him.
marcelo|torts and damages|full text
Coming now to the second issue about the effect of Reginald's emancipation by marriage on
the possible civil liability of Atty. Hill, his father, it is also Our considered opinion that the
conclusion of appellees that Atty. Hill is already free from responsibility cannot be upheld.
While it is true that parental authority is terminated upon emancipation of the child (Article
327, Civil Code), and under Article 397, emancipation takes place "by the marriage of the
minor (child)", it is, however, also clear that pursuant to Article 399, emancipation by marriage
of the minor is not really full or absolute. Thus "(E)mancipation by marriage or by voluntary
concession shall terminate parental authority over the child's person. It shall enable the minor
to administer his property as though he were of age, but he cannot borrow money or alienate
or encumber real property without the consent of his father or mother, or guardian. He can
sue and be sued in court only with the assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is responsible. The
father and, in case of his death or incapacity, the mother, are responsible. The father and, in
case of his death or incapacity, the mother, are responsible for the damages caused by the
minor children who live in their company." In the instant case, it is not controverted that
Reginald, although married, was living with his father and getting subsistence from him at the
time of the occurrence in question. Factually, therefore, Reginald was still subservient to and
dependent on his father, a situation which is not unusual.
It must be borne in mind that, according to Manresa, the reason behind the joint and solidary
liability of presuncion with their offending child under Article 2180 is that is the obligation of
the parent to supervise their minor children in order to prevent them from causing damage to
third persons. 5 On the other hand, the clear implication of Article 399, in providing that a
minor emancipated by marriage may not, nevertheless, sue or be sued without the assistance
of the parents, is that such emancipation does not carry with it freedom to enter into
transactions or do any act that can give rise to judicial litigation. (See Manresa, Id., Vol. II, pp.
766-767, 776.) And surely, killing someone else invites judicial action. Otherwise stated, the
marriage of a minor child does not relieve the parents of the duty to see to it that the child,
while still a minor, does not give answerable for the borrowings of money and alienation or
encumbering of real property which cannot be done by their minor married child without their
consent. (Art. 399; Manresa, supra.)
Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the
emancipation by marriage of Reginald. However, inasmuch as it is evident that Reginald is
now of age, as a matter of equity, the liability of Atty. Hill has become milling, subsidiary to
that of his son.
WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed
in accordance with the foregoing opinion. Costs against appellees.
NATIVIDAD V. ANDAMO and EMMANUEL R. ANDAMO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT (First Civil Cases Division) and MISSIONARIES
OF OUR LADY OF LA SALETTE, INC., respondents.
Page 41
Lope E. Adriano for petitioners.
Padilla Law Office for private respondent.
FERNAN, C.J.:
The pivotal issue in this petition for certiorari, prohibition and mandamus is whether a
corporation, which has built through its agents, waterpaths, water conductors and
contrivances within its land, thereby causing inundation and damage to an adjacent land, can
be held civilly liable for damages under Articles 2176 and 2177 of the Civil Code on quasi-
delicts such that the resulting civil case can proceed independently of the criminal case.
The antecedent facts are as follows:
Petitioner spouses Emmanuel and Natividad Andamo are the owners of a parcel of land
situated in Biga (Biluso) Silang, Cavite which is adjacent to that of private respondent,
Missionaries of Our Lady of La Salette, Inc., a religious corporation.
Within the land of respondent corporation, waterpaths and contrivances, including an artificial
lake, were constructed, which allegedly inundated and eroded petitioners' land, caused a
young man to drown, damaged petitioners' crops and plants, washed away costly fences,
endangered the lives of petitioners and their laborers during rainy and stormy seasons, and
exposed plants and other improvements to destruction.
In July 1982, petitioners instituted a criminal action, docketed as Criminal Case No. TG-907-
82, before the Regional Trial Court of Cavite, Branch 4 (Tagaytay City), against Efren Musngi,
Orlando Sapuay and Rutillo Mallillin, officers and directors of herein respondent corporation,
for destruction by means of inundation under Article 324 of the Revised Penal Code.
Subsequently, on February 22, 1983, petitioners filed another action against respondent
corporation, this time a civil case, docketed as Civil Case No. TG-748, for damages with
prayer for the issuance of a writ of preliminary injunction before the same court. 1
On March 11, 1983, respondent corporation filed its answer to the complaint and opposition to
the issuance of a writ of preliminary injunction. Hearings were conducted including ocular
inspections on the land. However, on April 26, 1984, the trial court, acting on respondent
corporation's motion to dismiss or suspend the civil action, issued an order suspending further
hearings in Civil Case No, TG-748 until after judgment in the related Criminal Case No. TG-
907-82.
Resolving respondent corporation's motion to dismiss filed on June 22, 1984, the trial court
issued on August 27, 1984 the disputed order dismissing Civil Case No. TG-748 for lack of
jurisdiction, as the criminal case which was instituted ahead of the civil case was still
unresolved. Said order was anchored on the provision of Section 3 (a), Rule III of the Rules of
Court which provides that "criminal and civil actions arising from the same offense may be
marcelo|torts and damages|full text
instituted separately, but after the criminal action has been commenced the civil action cannot
be instituted until final judgment has been rendered in the criminal action." 2
3
Petitioners appealed from that order to the Intermediate Appellate Court.
On February 17, 1986, respondent Appellate Court, First Civil Cases Division, promulgated a
decision 4 affirming the questioned order of the trial court. 5 A motion for reconsideration filed
by petitioners was denied by the Appellate Court in its resolution dated May 19, 1986. 6
Directly at issue is the propriety of the dismissal of Civil Case No. TG-748 in accordance with
Section 3 (a) of Rule 111 of the Rules of Court. Petitioners contend that the trial court and the
Appellate Court erred in dismissing Civil Case No. TG-748 since it is predicated on a quasi-
delict. Petitioners have raised a valid point.
It is axiomatic that the nature of an action filed in court is determined by the facts alleged in
the complaint as constituting the cause of action. 7 The purpose of an action or suit and the
law to govern it, including the period of prescription, is to be determined not by the claim of
the party filing the action, made in his argument or brief, but rather by the complaint itself, its
allegations and prayer for relief. 8 The nature of an action is not necessarily determined or
controlled by its title or heading but the body of the pleading or complaint itself. To avoid
possible denial of substantial justice due to legal technicalities, pleadings as well as remedial
laws should be liberally construed so that the litigants may have ample opportunity to prove
their respective claims. 9
Quoted hereunder are the pertinent portions of petitioners' complaint in Civil Case No. TG-
748:
4) That within defendant's land, likewise located at Biga (Biluso), Silang, Cavite, adjacent on
the right side of the aforesaid land of plaintiffs, defendant constructed waterpaths starting from
the middle-right portion thereof leading to a big hole or opening, also constructed by
defendant, thru the lower portion of its concrete hollow-blocks fence situated on the right side
of its cemented gate fronting the provincial highway, and connected by defendant to a man
height inter-connected cement culverts which were also constructed and lain by defendant
cross-wise beneath the tip of the said cemented gate, the left-end of the said inter-connected
culverts again connected by defendant to a big hole or opening thru the lower portion of the
same concrete hollowblocks fence on the left side of the said cemented gate, which hole or
opening is likewise connected by defendant to the cemented mouth of a big canal, also
constructed by defendant, which runs northward towards a big hole or opening which was
also built by defendant thru the lower portion of its concrete hollow-blocks fence which
separates the land of plaintiffs from that of defendant (and which serves as the exit-point of
the floodwater coming from the land of defendant, and at the same time, the entrance-point of
the same floodwater to the land of plaintiffs, year after year, during rainy or stormy seasons.
5) That moreover, on the middle-left portion of its land just beside the land of plaintiffs,
defendant also constructed an artificial lake, the base of which is soil, which utilizes the water
being channeled thereto from its water system thru inter-connected galvanized iron pipes (No.
2) and complimented by rain water during rainy or stormy seasons, so much so that the water
Page 42
below it seeps into, and the excess water above it inundates, portions of the adjoining land of
plaintiffs.
6) That as a result of the inundation brought about by defendant's aforementioned water
conductors, contrivances and manipulators, a young man was drowned to death, while herein
plaintiffs suffered and will continue to suffer, as follows:
a) Portions of the land of plaintiffs were eroded and converted to deep, wide and long canals,
such that the same can no longer be planted to any crop or plant.
b) Costly fences constructed by plaintiffs were, on several occasions, washed away.
c) During rainy and stormy seasons the lives of plaintiffs and their laborers are always in
danger.
d) Plants and other improvements on other portions of the land of plaintiffs are exposed to
destruction. ... 10
A careful examination of the aforequoted complaint shows that the civil action is one under
Articles 2176 and 2177 of the Civil Code on quasi-delicts. All the elements of a quasi-delict
are present, to wit: (a) damages suffered by the plaintiff, (b) fault or negligence of the
defendant, or some other person for whose acts he must respond; and (c) the connection of
cause and effect between the fault or negligence of the defendant and the damages incurred
by the plaintiff. 11
Clearly, from petitioner's complaint, the waterpaths and contrivances built by respondent
corporation are alleged to have inundated the land of petitioners. There is therefore, an
assertion of a causal connection between the act of building these waterpaths and the
damage sustained by petitioners. Such action if proven constitutes fault or negligence which
may be the basis for the recovery of damages.
In the case of Samson vs. Dionisio, 12 the Court applied Article 1902, now Article 2176 of the
Civil Code and held that "any person who without due authority constructs a bank or dike,
stopping the flow or communication between a creek or a lake and a river, thereby causing
loss and damages to a third party who, like the rest of the residents, is entitled to the use and
enjoyment of the stream or lake, shall be liable to the payment of an indemnity for loss and
damages to the injured party.
While the property involved in the cited case belonged to the public domain and the property
subject of the instant case is privately owned, the fact remains that petitioners' complaint
sufficiently alleges that petitioners have sustained and will continue to sustain damage due to
the waterpaths and contrivances built by respondent corporation. Indeed, the recitals of the
complaint, the alleged presence of damage to the petitioners, the act or omission of
respondent corporation supposedly constituting fault or negligence, and the causal connection
between the act and the damage, with no pre-existing contractual obligation between the
parties make a clear case of a quasi delict or culpa aquiliana.
marcelo|torts and damages|full text
It must be stressed that the use of one's property is not without limitations. Article 431 of the
Civil Code provides that "the owner of a thing cannot make use thereof in such a manner as
to injure the rights of a third person." SIC UTERE TUO UT ALIENUM NON LAEDAS.
Moreover, adjoining landowners have mutual and reciprocal duties which require that each
must use his own land in a reasonable manner so as not to infringe upon the rights and
interests of others. Although we recognize the right of an owner to build structures on his land,
such structures must be so constructed and maintained using all reasonable care so that they
cannot be dangerous to adjoining landowners and can withstand the usual and expected
forces of nature. If the structures cause injury or damage to an adjoining landowner or a third
person, the latter can claim indemnification for the injury or damage suffered.
Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by his
act or omission constituting fault or negligence, thus:
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.
Article 2176, whenever it refers to "fault or negligence", covers not only acts "not punishable
by law" but also acts criminal in character, whether intentional and voluntary or negligent.
Consequently, a separate civil action lies against the offender in a criminal act, whether or not
he is criminally prosecuted and found guilty or acquitted, provided that the offended party is
not allowed, (if the tortfeasor is actually charged also criminally), to recover damages on both
scores, and would be entitled in such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. 13
The distinctness of quasi-delicta is shown in Article 2177 of the Civil Code, which states:
Article 2177. Responsibility for fault or negligence under the preceding article is entirely
separate and distinct from the civil liability arising from negligence under the Penal Code. But
the plaintiff cannot recover damages twice for the same act or omission of the defendant.
According to the Report of the Code Commission "the foregoing provision though at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and
civil negligence. The former is a violation of the criminal law, while the latter is a distinct and
independent negligence, which is a "culpa aquiliana" or quasi-delict, of ancient origin, having
always had its own foundation and individuality, separate from criminal negligence. Such
distinction between criminal negligence and "culpa extra-contractual" or "cuasi-delito" has
been sustained by decisions of the Supreme Court of Spain ... 14
In the case of Castillo vs. Court of Appeals, 15 this Court held that a quasi-delict or culpa
aquiliana is a separate legal institution under the Civil Code with a substantivity all its own,
and individuality that is entirely apart and independent from a delict or crime — a distinction
exists between the civil liability arising from a crime and the responsibility for quasi-delicts or
culpa extra-contractual. The same negligence causing damages may produce civil liability
arising from a crime under the Penal Code, or create an action for quasi-delicts or culpa extra-
contractual under the Civil Code. Therefore, the acquittal or conviction in the criminal case is
Page 43
entirely irrelevant in the civil case, unless, of course, in the event of an acquittal where the
court has declared that the fact from which the civil action arose did not exist, in which case
the extinction of the criminal liability would carry with it the extinction of the civil liability.
In Azucena vs. Potenciano, 16 the Court declared that in quasi-delicts, "(t)he civil action is
entirely independent of the criminal case according to Articles 33 and 2177 of the Civil Code.
There can be no logical conclusion than this, for to subordinate the civil action contemplated
in the said articles to the result of the criminal prosecution — whether it be conviction or
acquittal — would render meaningless the independent character of the civil action and the
clear injunction in Article 31, that his action may proceed independently of the criminal
proceedings and regardless of the result of the latter."
WHEREFORE, the assailed decision dated February 17, 1986 of the then Intermediate
Appellate Court affirming the order of dismissal of the Regional Trial Court of Cavite, Branch
18 (Tagaytay City) dated August 17, 1984 is hereby REVERSED and SET ASIDE. The trial
court is ordered to reinstate Civil Case No. TG-748 entitled "Natividad V. Andamo and
Emmanuel R. Andamo vs. Missionaries of Our Lady of La Salette Inc." and to proceed with
the hearing of the case with dispatch. This decision is immediately executory. Costs against
respondent corporation.
GASHEM SHOOKAT BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.
Public Attorney's Office for petitioner.
Corleto R. Castro for private respondent.
DAVIDE, JR., J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set
aside the Decision1 of the respondent Court of Appeals in CA-G.R. CV No. 24256 which
affirmed in toto the 16 October 1939 Decision of Branch 38 (Lingayen) of the Regional Trial
Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the issue of whether or not
damages may be recovered for a breach of promise to marry on the basis of Article 21 of the
Civil Code of the Philippines.
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the assistance of counsel, filed with the
aforesaid trial court a complaint2 for damages against the petitioner for the alleged violation of
their agreement to get married. She alleges in said complaint that: she is twenty-two (22)
years old, single, Filipino and a pretty lass of good moral character and reputation duly
respected in her community; petitioner, on the other hand, is an Iranian citizen residing at the
marcelo|torts and damages|full text
Lozano Apartments, Guilig, Dagupan City, and is an exchange student taking a medical
course at the Lyceum Northwestern Colleges in Dagupan City; before 20 August 1987, the
latter courted and proposed to marry her; she accepted his love on the condition that they
would get married; they therefore agreed to get married after the end of the school semester,
which was in October of that year; petitioner then visited the private respondent's parents in
Bañaga, Bugallon, Pangasinan to secure their approval to the marriage; sometime in 20
August 1987, the petitioner forced her to live with him in the Lozano Apartments; she was a
virgin before she began living with him; a week before the filing of the complaint, petitioner's
attitude towards her started to change; he maltreated and threatened to kill her; as a result of
such maltreatment, she sustained injuries; during a confrontation with a representative of the
barangay captain of Guilig a day before the filing of the complaint, petitioner repudiated their
marriage agreement and asked her not to live with him anymore and; the petitioner is already
married to someone living in Bacolod City. Private respondent then prayed for judgment
ordering the petitioner to pay her damages in the amount of not less than P45,000.00,
reimbursement for actual expenses amounting to P600.00, attorney's fees and costs, and
granting her such other relief and remedies as may be just and equitable. The complaint was
docketed as Civil Case No. 16503.
In his Answer with Counterclaim,3 petitioner admitted only the personal circumstances of the
parties as averred in the complaint and denied the rest of the allegations either for lack of
knowledge or information sufficient to form a belief as to the truth thereof or because the true
facts are those alleged as his Special and Affirmative Defenses. He thus claimed that he
never proposed marriage to or agreed to be married with the private respondent; he neither
sought the consent and approval of her parents nor forced her to live in his apartment; he did
not maltreat her, but only told her to stop coming to his place because he discovered that she
had deceived him by stealing his money and passport; and finally, no confrontation took place
with a representative of the barangay captain. Insisting, in his Counterclaim, that the
complaint is baseless and unfounded and that as a result thereof, he was unnecessarily
dragged into court and compelled to incur expenses, and has suffered mental anxiety and a
besmirched reputation, he prayed for an award of P5,000.00 for miscellaneous expenses and
P25,000.00 as moral damages.
After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial
Order4 embodying the stipulated facts which the parties had agreed upon, to wit:
1. That the plaintiff is single and resident (sic) of Bañaga, Bugallon, Pangasinan, while the
defendant is single, Iranian citizen and resident (sic) of Lozano Apartment, Guilig, Dagupan
City since September 1, 1987 up to the present;
2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City, College
of Medicine, second year medicine proper;
3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez Avenue,
Dagupan City since July, 1986 up to the present and a (sic) high school graduate;
4. That the parties happened to know each other when the manager of the Mabuhay
Luncheonette, Johhny Rabino introduced the defendant to the plaintiff on August 3, 1986.
Page 44
After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16
October 1989 a decision5 favoring the private respondent. The petitioner was thus ordered to
pay the latter damages and attorney's fees; the dispositive portion of the decision reads:
IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the
plaintiff and against the defendant.
1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand
(P20,000.00) pesos as moral damages.
2. Condemning further the defendant to play the plaintiff the sum of three thousand
(P3,000.00) pesos as atty's fees and two thousand (P2,000.00) pesos at (sic) litigation
expenses and to pay the costs.
3. All other claims are denied.6
The decision is anchored on the trial court's findings and conclusions that (a) petitioner and
private respondent were lovers, (b) private respondent is not a woman of loose morals or
questionable virtue who readily submits to sexual advances, (c) petitioner, through
machinations, deceit and false pretenses, promised to marry private respondent, d) because
of his persuasive promise to marry her, she allowed herself to be deflowered by him, (e) by
reason of that deceitful promise, private respondent and her parents — in accordance with
Filipino customs and traditions — made some preparations for the wedding that was to be
held at the end of October 1987 by looking for pigs and chickens, inviting friends and relatives
and contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such
acts of the petitioner, who is a foreigner and who has abused Philippine hospitality, have
offended our sense of morality, good customs, culture and traditions. The trial court gave full
credit to the private respondent's testimony because, inter alia, she would not have had the
temerity and courage to come to court and expose her honor and reputation to public scrutiny
and ridicule if her claim was false.7
The above findings and conclusions were culled from the detailed summary of the evidence
for the private respondent in the foregoing decision, digested by the respondent Court as
follows:
According to plaintiff, who claimed that she was a virgin at the time and that she never had a
boyfriend before, defendant started courting her just a few days after they first met. He later
proposed marriage to her several times and she accepted his love as well as his proposal of
marriage on August 20, 1987, on which same day he went with her to her hometown of
Bañaga, Bugallon, Pangasinan, as he wanted to meet her parents and inform them of their
relationship and their intention to get married. The photographs Exhs. "A" to "E" (and their
submarkings) of defendant with members of plaintiff's family or with plaintiff, were taken that
day. Also on that occasion, defendant told plaintiffs parents and brothers and sisters that he
intended to marry her during the semestral break in October, 1987, and because plaintiff's
parents thought he was good and trusted him, they agreed to his proposal for him to marry
their daughter, and they likewise allowed him to stay in their house and sleep with plaintiff
during the few days that they were in Bugallon. When plaintiff and defendant later returned to
Dagupan City, they continued to live together in defendant's apartment. However, in the early
marcelo|torts and damages|full text
days of October, 1987, defendant would tie plaintiff's hands and feet while he went to school,
and he even gave her medicine at 4 o'clock in the morning that made her sleep the whole day
and night until the following day. As a result of this live-in relationship, plaintiff became
pregnant, but defendant gave her some medicine to abort the fetus. Still plaintiff continued to
live with defendant and kept reminding him of his promise to marry her until he told her that he
could not do so because he was already married to a girl in Bacolod City. That was the time
plaintiff left defendant, went home to her parents, and thereafter consulted a lawyer who
accompanied her to the barangay captain in Dagupan City. Plaintiff, her lawyer, her
godmother, and a barangay tanod sent by the barangay captain went to talk to defendant to
still convince him to marry plaintiff, but defendant insisted that he could not do so because he
was already married to a girl in Bacolod City, although the truth, as stipulated by the parties at
the pre-trial, is that defendant is still single.
Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of his
desire to marry Marilou, he already looked for sponsors for the wedding, started preparing for
the reception by looking for pigs and chickens, and even already invited many relatives and
friends to the forthcoming wedding. 8
Petitioner appealed the trial court's decision to the respondent Court of Appeals which
docketed the case as CA-G.R. CV No. 24256. In his Brief,9 he contended that the trial court
erred (a) in not dismissing the case for lack of factual and legal basis and (b) in ordering him
to pay moral damages, attorney's fees, litigation expenses and costs.
On 18 February 1991, respondent Court promulgated the challenged decision 10 affirming in
toto the trial court's ruling of 16 October 1989. In sustaining the trial court's findings of fact,
respondent Court made the following analysis:
First of all, plaintiff, then only 21 years old when she met defendant who was already 29 years
old at the time, does not appear to be a girl of loose morals. It is uncontradicted that she was
a virgin prior to her unfortunate experience with defendant and never had boyfriend. She is,
as described by the lower court, a barrio lass "not used and accustomed to trend of modern
urban life", and certainly would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made by the
defendant to marry her." In fact, we agree with the lower court that plaintiff and defendant
must have been sweethearts or so the plaintiff must have thought because of the deception of
defendant, for otherwise, she would not have allowed herself to be photographed with
defendant in public in so (sic) loving and tender poses as those depicted in the pictures Exhs.
"D" and "E". We cannot believe, therefore, defendant's pretense that plaintiff was a nobody to
him except a waitress at the restaurant where he usually ate. Defendant in fact admitted that
he went to plaintiff's hometown of Bañaga, Bugallon, Pangasinan, at least thrice; at (sic) the
town fiesta on February 27, 1987 (p. 54, tsn May 18, 1988), at (sic) a beach party together
with the manager and employees of the Mabuhay Luncheonette on March 3, 1987 (p. 50,
tsn id.), and on April 1, 1987 when he allegedly talked to plaintiff's mother who told him to
marry her daughter (pp. 55-56, tsn id.). Would defendant have left Dagupan City where he
was involved in the serious study of medicine to go to plaintiff's hometown in Bañaga,
Bugallon, unless there was (sic) some kind of special relationship between them? And this
special relationship must indeed have led to defendant's insincere proposal of marriage to
Page 45
plaintiff, communicated not only to her but also to her parents, and (sic) Marites Rabino, the
owner of the restaurant where plaintiff was working and where defendant first proposed
marriage to her, also knew of this love affair and defendant's proposal of marriage to plaintiff,
which she declared was the reason why plaintiff resigned from her job at the restaurant after
she had accepted defendant's proposal (pp. 6-7, tsn March 7, 1988).
Upon the other hand, appellant does not appear to be a man of good moral character and
must think so low and have so little respect and regard for Filipino women that he openly
admitted that when he studied in Bacolod City for several years where he finished his B.S.
Biology before he came to Dagupan City to study medicine, he had a common-law wife in
Bacolod City. In other words, he also lived with another woman in Bacolod City but did not
marry that woman, just like what he did to plaintiff. It is not surprising, then, that he felt so little
compunction or remorse in pretending to love and promising to marry plaintiff, a young,
innocent, trustful country girl, in order to satisfy his lust on her. 11
and then concluded:
In sum, we are strongly convinced and so hold that it was defendant-appellant's fraudulent
and deceptive protestations of love for and promise to marry plaintiff that made her surrender
her virtue and womanhood to him and to live with him on the honest and sincere belief that he
would keep said promise, and it was likewise these (sic) fraud and deception on appellant's
part that made plaintiff's parents agree to their daughter's living-in with him preparatory to
their supposed marriage. And as these acts of appellant are palpably and undoubtedly
against morals, good customs, and public policy, and are even gravely and deeply derogatory
and insulting to our women, coming as they do from a foreigner who has been enjoying the
hospitality of our people and taking advantage of the opportunity to study in one of our
institutions of learning, defendant-appellant should indeed be made, under Art. 21 of the Civil
Code of the Philippines, to compensate for the moral damages and injury that he had caused
plaintiff, as the lower court ordered him to do in its decision in this case. 12
Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises
therein the single issue of whether or not Article 21 of the Civil Code applies to the case at
bar. 13
It is petitioner's thesis that said Article 21 is not applicable because he had not committed any
moral wrong or injury or violated any good custom or public policy; he has not professed love
or proposed marriage to the private respondent; and he has never maltreated her. He
criticizes the trial court for liberally invoking Filipino customs, traditions and culture, and
ignoring the fact that since he is a foreigner, he is not conversant with such Filipino customs,
traditions and culture. As an Iranian Moslem, he is not familiar with Catholic and Christian
ways. He stresses that even if he had made a promise to marry, the subsequent failure to
fulfill the same is excusable or tolerable because of his Moslem upbringing; he then alludes to
the Muslim Code which purportedly allows a Muslim to take four (4) wives and concludes that
on the basis thereof, the trial court erred in ruling that he does not posses good moral
character. Moreover, his controversial "common law life" is now his legal wife as their
marriage had been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful
cohabitation with the private respondent, petitioner claims that even if responsibility could be
pinned on him for the live-in relationship, the private respondent should also be faulted for
marcelo|torts and damages|full text
consenting to an illicit arrangement. Finally, petitioner asseverates that even if it was to be
assumed arguendo that he had professed his love to the private respondent and had also
promised to marry her, such acts would not be actionable in view of the special circumstances
of the case. The mere breach of promise is not actionable. 14
On 26 August 1991, after the private respondent had filed her Comment to the petition and
the petitioner had filed his Reply thereto, this Court gave due course to the petition and
required the parties to submit their respective Memoranda, which they subsequently complied
with.
As may be gleaned from the foregoing summation of the petitioner's arguments in support of
his thesis, it is clear that questions of fact, which boil down to the issue of the credibility of
witnesses, are also raised. It is the rule in this jurisdiction that appellate courts will not disturb
the trial court's findings as to the credibility of witnesses, the latter court having heard the
witnesses and having had the opportunity to observe closely their deportment and manner of
testifying, unless the trial court had plainly overlooked facts of substance or value which, if
considered, might affect the result of the case. 15
Petitioner has miserably failed to convince Us that both the appellate and trial courts had
overlooked any fact of substance or values which could alter the result of the case.
Equally settled is the rule that only questions of law may be raised in a petition for review
on certiorari under Rule 45 of the Rules of Court. It is not the function of this Court to analyze
or weigh all over again the evidence introduced by the parties before the lower court. There
are, however, recognized exceptions to this rule. Thus, in Medina vs.Asistio, Jr., 16 this Court
took the time, again, to enumerate these exceptions:
xxx xxx xxx
(1) When the conclusion is a finding grounded entirely on speculation, surmises or
conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is
manifestly mistaken, absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where
there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the
judgment is based on a misapprehension of facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-
9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went
beyond the issues of the case and the same is contrary to the admissions of both appellate
and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v. Court
of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When
the findings of fact are conclusions without citation of specific evidence on which they are
based (Ibid.,); (9) When the facts set forth in the petition as well as in the petitioners main and
reply briefs are not disputed by the respondents (Ibid.,); and (10) The finding of fact of the
Court of Appeals is premised on the supposed absence of evidence and is contradicted by
the evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).
Page 46
Petitioner has not endeavored to joint out to Us the existence of any of the above quoted
exceptions in this case. Consequently, the factual findings of the trial and appellate courts
must be respected.
And now to the legal issue.
The existing rule is that a breach of promise to marry per se is not an actionable
wrong. 17 Congress deliberately eliminated from the draft of the New Civil Code the provisions
that would have made it so. The reason therefor is set forth in the report of the Senate
Committees on the Proposed Civil Code, from which We quote:
The elimination of this chapter is proposed. That breach of promise to marry is not actionable
has been definitely decided in the case of De Jesus vs. Syquia. 18 The history of breach of
promise suits in the United States and in England has shown that no other action lends itself
more readily to abuse by designing women and unscrupulous men. It is this experience which
has led to the abolition of rights of action in the so-called Heart Balm suits in many of the
American states. . . . 19
This notwithstanding, the said Code contains a provision, Article 21, which is designed to
expand the concept of torts or quasi-delict in this jurisdiction by granting adequate legal
remedy for the untold number of moral wrongs which is impossible for human foresight to
specifically enumerate and punish in the statute books. 20
As the Code Commission itself stated in its Report:
But the Code Commission had gone farther than the sphere of wrongs defined or determined
by positive law. Fully sensible that there are countless gaps in the statutes, which leave so
many victims of moral wrongs helpless, even though they have actually suffered material and
moral injury, the Commission has deemed it necessary, in the interest of justice, to
incorporate in the proposed Civil Code the following rule:
Art. 23. Any person who wilfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year
old daughter of "X". A promise of marriage either has not been made, or can not be proved.
The girl becomes pregnant. Under the present laws, there is no crime, as the girl is above
nineteen years of age. Neither can any civil action for breach of promise of marriage be filed.
Therefore, though the grievous moral wrong has been committed, and though the girl and
family have suffered incalculable moral damage, she and her parents cannot bring action for
damages. But under the proposed article, she and her parents would have such a right of
action.
Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe adequate
legal remedy for that untold number of moral wrongs which it is impossible for human
foresight to provide for specifically in the statutes. 21
Article 2176 of the Civil Code, which defines a quasi-delict thus:
marcelo|torts and damages|full text
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.
is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasi-
delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is
an Anglo-American or common law concept. Torts is much broader than culpa
aquiliana because it includes not only negligence, but international criminal acts as well such
as assault and battery, false imprisonment and deceit. In the general scheme of the Philippine
legal system envisioned by the Commission responsible for drafting the New Civil Code,
intentional and malicious acts, with certain exceptions, are to be governed by the Revised
Penal Code while negligent acts or omissions are to be covered by Article 2176 of the Civil
Code. 22 In between these opposite spectrums are injurious acts which, in the absence of
Article 21, would have been beyond redress. Thus, Article 21 fills that vacuum. It is even
postulated that together with Articles 19 and 20 of the Civil Code, Article 21 has greatly
broadened the scope of the law on civil wrongs; it has become much more supple and
adaptable than the Anglo-American law on torts. 23
In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold,
that where a man's promise to marry is in fact the proximate cause of the acceptance of his
love by a woman and his representation to fulfill that promise thereafter becomes the
proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in
reality, no intention of marrying her and that the promise was only a subtle scheme or
deceptive device to entice or inveigle her to accept him and to obtain her consent to the
sexual act, could justify the award of damages pursuant to Article 21 not because of such
promise to marry but because of the fraud and deceit behind it and the willful injury to her
honor and reputation which followed thereafter. It is essential, however, that such injury
should have been committed in a manner contrary to morals, good customs or public policy.
In the instant case, respondent Court found that it was the petitioner's "fraudulent and
deceptive protestations of love for and promise to marry plaintiff that made her surrender her
virtue and womanhood to him and to live with him on the honest and sincere belief that he
would keep said promise, and it was likewise these fraud and deception on appellant's part
that made plaintiff's parents agree to their daughter's living-in with him preparatory to their
supposed marriage." 24 In short, the private respondent surrendered her virginity, the
cherished possession of every single Filipina, not because of lust but because of moral
seduction — the kind illustrated by the Code Commission in its example earlier adverted to.
The petitioner could not be held liable for criminal seduction punished under either Article 337
or Article 338 of the Revised Penal Code because the private respondent was above eighteen
(18) years of age at the time of the seduction.
Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of
promise to marry where the woman is a victim of moral seduction. Thus, in Hermosisima
vs. Court of Appeals,25 this Court denied recovery of damages to the woman because:
. . . we find ourselves unable to say that petitioner is morally guilty of seduction, not only
because he is approximately ten (10) years younger than the complainant — who was around
Page 47
thirty-six (36) years of age, and as highly enlightened as a former high school teacher and a
life insurance agent are supposed to be — when she became intimate with petitioner, then a
mere apprentice pilot, but, also, because the court of first instance found that, complainant
"surrendered herself" to petitioner because, "overwhelmed by her love" for him, she "wanted
to bind" him by having a fruit of their engagement even before they had the benefit of clergy.
In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery if
there had been moral seduction, recovery was eventually denied because We were not
convinced that such seduction existed. The following enlightening disquisition and conclusion
were made in the said case:
The Court of Appeals seem to have overlooked that the example set forth in the Code
Commission's memorandum refers to a tort upon a minor who had been seduced. The
essential feature is seduction, that in law is more than mere sexual intercourse, or a breach of
a promise of marriage; it connotes essentially the idea of deceit, enticement, superior power
or abuse of confidence on the part of the seducer to which the woman has yielded (U.S. vs.
Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595).
It has been ruled in the Buenaventura case (supra) that —
To constitute seduction there must in all cases be some sufficient promise or inducement and
the woman must yield because of the promise or other inducement. If she consents merely
from carnal lust and the intercourse is from mutual desire, there is no seduction (43 Cent. Dig.
tit. Seduction, par. 56) She must be induced to depart from the path of virtue by the use of
some species of arts, persuasions and wiles, which are calculated to have and do have that
effect, and which result in her person to ultimately submitting her person to the sexual
embraces of her seducer (27 Phil. 123).
And in American Jurisprudence we find:
On the other hand, in an action by the woman, the enticement, persuasion or deception is the
essence of the injury; and a mere proof of intercourse is insufficient to warrant a recovery.
Accordingly it is not seduction where the willingness arises out of sexual desire of curiosity of
the female, and the defendant merely affords her the needed opportunity for the commission
of the act. It has been emphasized that to allow a recovery in all such cases would tend to the
demoralization of the female sex, and would be a reward for unchastity by which a class of
adventuresses would be swift to profit. (47 Am. Jur. 662)
xxx xxx xxx
Over and above the partisan allegations, the fact stand out that for one whole year, from 1958
to 1959, the plaintiff-appellee, a woman of adult age, maintain intimate sexual relations with
appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of
seduction. Plainly there is here voluntariness and mutual passion; for had the appellant been
deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles
of the defendant, she would not have again yielded to his embraces, much less for one year,
without exacting early fulfillment of the alleged promises of marriage, and would have cut
marcelo|torts and damages|full text
short all sexual relations upon finding that defendant did not intend to fulfill his defendant did
not intend to fulfill his promise. Hence, we conclude that no case is made under article 21 of
the Civil Code, and no other cause of action being alleged, no error was committed by the
Court of First Instance in dismissing the complaint. 27
In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who recently
retired from this Court, opined that in a breach of promise to marry where there had been
carnal knowledge, moral damages may be recovered:
. . . if there be criminal or moral seduction, but not if the intercourse was due to mutual lust.
(Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs.
Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan. 29, 1962).
(In other words, if the CAUSE be the promise to marry, and the EFFECT be the carnal
knowledge, there is a chance that there was criminal or moral seduction, hence recovery of
moral damages will prosper. If it be the other way around, there can be no recovery of moral
damages, because here mutual lust has intervened). . . .
together with "ACTUAL damages, should there be any, such as the expenses for the wedding
presentations (See Domalagon v. Bolifer, 33 Phil. 471).
Senator Arturo M. Tolentino 29 is also of the same persuasion:
It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the
incorporation of the present article31 in the Code. The example given by the Code
Commission is correct, if there was seduction, not necessarily in the legal sense, but in the
vulgar sense of deception. But when the sexual act is accomplished without any deceit or
qualifying circumstance of abuse of authority or influence, but the woman, already of age, has
knowingly given herself to a man, it cannot be said that there is an injury which can be the
basis for indemnity.
But so long as there is fraud, which is characterized by willfulness (sic), the action lies. The
court, however, must weigh the degree of fraud, if it is sufficient to deceive the woman under
the circumstances, because an act which would deceive a girl sixteen years of age may not
constitute deceit as to an experienced woman thirty years of age. But so long as there is a
wrongful act and a resulting injury, there should be civil liability, even if the act is not
punishable under the criminal law and there should have been an acquittal or dismissal of the
criminal case for that reason.
We are unable to agree with the petitioner's alternative proposition to the effect that granting,
for argument's sake, that he did promise to marry the private respondent, the latter is
nevertheless also at fault. According to him, both parties are in pari delicto; hence, pursuant to
Article 1412(1) of the Civil Code and the doctrine laid down in Batarra vs. Marcos, 32 the
private respondent cannot recover damages from the petitioner. The latter even goes as far
as stating that if the private respondent had "sustained any injury or damage in their
relationship, it is primarily because of her own doing, 33 for:
Page 48
. . . She is also interested in the petitioner as the latter will become a doctor sooner or later.
Take notice that she is a plain high school graduate and a mere employee . . . (Annex "C") or
a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and without doubt, is in need of a
man who can give her economic security. Her family is in dire need of financial assistance.
(TSN, pp. 51-53, May 18, 1988). And this predicament prompted her to accept a proposition
that may have been offered by the petitioner. 34
These statements reveal the true character and motive of the petitioner. It is clear that he
harbors a condescending, if not sarcastic, regard for the private respondent on account of the
latter's ignoble birth, inferior educational background, poverty and, as perceived by him,
dishonorable employment. Obviously then, from the very beginning, he was not at all moved
by good faith and an honest motive. Marrying with a woman so circumstances could not have
even remotely occurred to him. Thus, his profession of love and promise to marry were empty
words directly intended to fool, dupe, entice, beguile and deceive the poor woman into
believing that indeed, he loved her and would want her to be his life's partner. His was nothing
but pure lust which he wanted satisfied by a Filipina who honestly believed that by accepting
his proffer of love and proposal of marriage, she would be able to enjoy a life of ease and
security. Petitioner clearly violated the Filipino's concept of morality and brazenly defied the
traditional respect Filipinos have for their women. It can even be said that the petitioner
committed such deplorable acts in blatant disregard of Article 19 of the Civil Code which
directs every person to act with justice, give everyone his due and observe honesty and good
faith in the exercise of his rights and in the performance of his obligations.
No foreigner must be allowed to make a mockery of our laws, customs and traditions.
The pari delicto rule does not apply in this case for while indeed, the private respondent may
not have been impelled by the purest of intentions, she eventually submitted to the petitioner
in sexual congress not out of lust, but because of moral seduction. In fact, it is apparent that
she had qualms of conscience about the entire episode for as soon as she found out that the
petitioner was not going to marry her after all, she left him. She is not, therefore, in pari
delicto with the petitioner. Pari delicto means "in equal fault; in a similar offense or crime;
equal in guilt or in legal fault." 35At most, it could be conceded that she is merely in delicto.
Equity often interferes for the relief of the less guilty of the parties, where his transgression
has been brought about by the imposition of undue influence of the party on whom the burden
of the original wrong principally rests, or where his consent to the transaction was itself
procured by
fraud. 36
In Mangayao vs. Lasud, 37 We declared:
Appellants likewise stress that both parties being at fault, there should be no action by one
against the other (Art. 1412, New Civil Code). This rule, however, has been interpreted as
applicable only where the fault on both sides is, more or less, equivalent. It does not apply
where one party is literate or intelligent and the other one is not. (c.f. Bough vs. Cantiveros, 40
Phil. 209).
marcelo|torts and damages|full text
We should stress, however, that while We find for the private respondent, let it not be said
that this Court condones the deplorable behavior of her parents in letting her and the
petitioner stay together in the same room in their house after giving approval to their marriage.
It is the solemn duty of parents to protect the honor of their daughters and infuse upon them
the higher values of morality and dignity.
WHEREFORE, finding no reversible error in the challenged decision, the instant petition is
hereby DENIED, with costs against the petitioner.
L.G. FOODS CORPORATION and VICTORINO GABOR, Vice-President and General
Manager, petitioners,
vs.
HON. PHILADELFA B. PAGAPONG-AGRAVIADOR, in her capacity as Presiding Judge
of Regional Trial Court, Branch 43, Bacolod City, and SPS. FLORENTINO and THERESA
VALLEJERA, respondents.
DECISION
GARCIA, J.:
Assailed and sought to be set aside in this petition for review on certiorari is the
Decision1 dated April 25, 2003 of the Court of Appeals (CA), as reiterated in its Resolution of
July 10, 2003,2 in CA-G.R. SP No. 67600, affirming an earlier Order of the Regional Trial
Court (RTC) of Bacolod City, Branch 43, which denied the petitioners' motion to dismiss in
Civil Case No. 99-10845, an action for damages arising from a vehicular accident thereat
instituted by the herein private respondents - the spouses Florentino Vallejera and Theresa
Vallejera - against the petitioners.
The antecedent facts may be briefly stated as follows:
On February 26, 1996, Charles Vallereja, a 7-year old son of the spouses Florentino Vallejera
and Theresa Vallejera, was hit by a Ford Fiera van owned by the petitioners and driven at the
time by their employee, Vincent Norman Yeneza y Ferrer. Charles died as a result of the
accident.
In time, an Information for Reckless Imprudence Resulting to Homicide was filed against the
driver before the Municipal Trial Court in Cities (MTCC), Bacolod City, docketed as Criminal
Case No. 67787, entitled People of the Philippines v. Vincent Norman Yeneza.
Unfortunately, before the trial could be concluded, the accused driver committed suicide,
evidently bothered by conscience and remorse. On account thereof, the MTCC, in its order of
September 30, 1998, dismissed the criminal case.
On June 23, 1999, in the RTC of Bacolod City, the spouses Vallejera filed a complaint3 for
damages against the petitioners as employers of the deceased driver, basically alleging that
as such employers, they failed to exercise due diligence in the selection and supervision of
Page 49
their employees. Thereat docketed as Civil Case No. 99-10845, the complaint was raffled to
Branch 43 of the court.
In their Answer with Compulsory Counterclaim,4 the petitioners as defendants denied liability
for the death of the Vallejeras' 7-year old son, claiming that they had exercised the required
due diligence in the selection and supervision of their employees, including the deceased
driver. They thus prayed in their Answer for the dismissal of the complaint for lack of cause of
action on the part of the Vallejera couple.
During pre-trial, the defendant petitioners insisted that their dismissal prayer be resolved.
Hence, the trial court required them to file within ten days a memorandum of authorities
supportive of their position.
Instead, however, of the required memorandum of authorities, the defendant petitioners filed
a Motion to Dismiss, principally arguing that the complaint is basically a "claim for subsidiary
liability against an employer" under the provision of Article 1035 of the Revised Penal Code.
Prescinding therefrom, they contend that there must first be a judgment of conviction against
their driver as a condition sine qua non to hold them liable. Ergo, since the driver died during
the pendency of the criminal action, the sine qua non condition for their subsidiary liability was
not fulfilled, hence the of lack of cause of action on the part of the plaintiffs. They further argue
that since the plaintiffs did not make a reservation to institute a separate action for damages
when the criminal case was filed, the damage suit in question is thereby deemed instituted
with the criminal action. which was already dismissed.
In an Order dated September 4, 2001,6 the trial court denied the motion to dismiss for lack of
merit and set the case for pre-trial. With their motion for reconsideration having been denied
by the same court in its subsequent order7 of September 26, 2001, the petitioners then went
on certiorari to the CA in CA-G.R. SP No. 67600, imputing grave abuse of discretion on the
part of the trial judge in refusing to dismiss the basic complaint for damages in Civil Case No.
99-10845.
In the herein assailed decision8 dated April 25, 2003, the CA denied the petition and upheld
the trial court. Partly says the CA in its challenged issuance:
xxx xxx xxx
It is clear that the complaint neither represents nor implies that the responsibility charged was
the petitioner's subsidiary liability under Art. 103, Revised Penal Code. As pointed out [by the
trial court] in the Order of September 4, 2001, the complaint does not even allege the basic
elements for such a liability, like the conviction of the accused employee and his insolvency.
Truly enough, a civil action to enforce subsidiary liability separate and distinct from the
criminal action is even unnecessary.
xxx xxx xxx
Specifically, Civil Case No. 99-10845 exacts responsibility for fault or negligence under Art.
2176, Civil Code, which is entirely separate and distinct from the civil liability arising from
negligence under the Revised Penal Code. Verily, therefore, the liability under Art. 2180, Civil
marcelo|torts and damages|full text
Code, is direct and immediate, and not conditioned upon prior recourse against the negligent
employee or prior showing of the latter's insolvency. (Underscoring in the original.)
In time, the petitioners moved for a reconsideration but their motion was denied by the CA in
its resolution9 of July 10, 2003. Hence, the petitioners' present recourse on their submission
that the appellate court committed reversible error in upholding the trial court's denial of their
motion to dismiss.
We DENY.
As the Court sees it, the sole issue for resolution is whether the spouses Vallejeras' cause of
action in Civil Case No. 99-10845 is founded on Article 103 of the Revised Penal Code, as
maintained by the petitioners, or derived from Article 218010 of the Civil Code, as ruled by the
two courts below.
It thus behooves us to examine the allegations of the complaint for damages in Civil Case No.
99-10845. That complaint alleged, inter alia, as follows:
xxx xxx xxx
3. That defendant [LG Food Corporation] is the registered owner of a Ford Fiera Van with
Plate No. NMS 881 and employer sometime February of 1996 of one Vincent Norman Yeneza
y Ferrer, a salesman of said corporation;
4. That sometime February 26, 1996 at around 2:00 P.M. at Rosario St., Bacolod City, the
minor son of said plaintiffs [now respondents], Charles Vallejera, 7 years old, was hit and
bumped by above-described vehicle then driven by said employee, Vincent Norman Yeneza y
Ferrer;
5. That the mishap was due to the gross fault and negligence of defendant's employee, who
drove said vehicle, recklessly, negligently and at a high speed without regard to traffic
condition and safety of other road users and likewise to the fault and negligence of the owner
employer, herein defendants LG Food Corporation who failed to exercise due diligence in the
selection and supervision of his employee, Vincent Norman Yeneza y Ferrer;
6. That as a result of said incident, plaintiffs' son suffered multiple body injuries which led to
his untimely demise on that very day;
7. That a criminal case was filed against the defendant's employee, docketed as Criminal
Case No. 67787, (earlier filed as Crim. Case No. 96-17570 before RTC) before MTC-Branch
III, entitled "People v. Yeneza" for "Reckless Imprudence resulting to Homicide," but the same
was dismissed because pending litigation, then remorse-stricken [accused] committed
suicide;
xxx xxx xxx
8. That the injuries and complications as well as the resultant death suffered by the late minor
Charles Vallejera were due to the negligence and imprudence of defendant's employee;
Page 50
9. That defendant LG Foods Corporation is civilly liable for the negligence/imprudence
of its employee since it failed to exercise the necessary diligence required of a good
father of the family in the selection and supervision of his employee, Vincent Norman
Yeneza y Ferrer which diligence if exercised, would have prevented said
incident. (Bracketed words and emphasis ours.)
Nothing in the foregoing allegations suggests, even remotely, that the herein petitioners are
being made to account for their subsidiary liability under Article 103 of the Revised Penal
Code. As correctly pointed out by the trial court in its order of September 4, 2001 denying the
petitioners' Motion to Dismiss, the complaint did not even aver the basic elements for the
subsidiary liability of an employer under Article 103 of the Revised Penal Code, such as the
prior conviction of the driver in the criminal case filed against him nor his insolvency.
Admittedly, the complaint did not explicitly state that plaintiff Vallejeras were suing the
defendant petitioners for damages based on quasi-delict. Clear it is, however, from the
allegations of the complaint that quasi-delict was their choice of remedy against the
petitioners. To stress, the plaintiff spouses alleged in their complaint gross fault and
negligence on the part of the driver and the failure of the petitioners, as employers, to
exercise due diligence in the selection and supervision of their employees. The spouses
further alleged that the petitioners are civilly liable for the negligence/imprudence of their
driver since they failed to exercise the necessary diligence required of a good father of the
family in the selection and supervision of their employees, which diligence, if exercised, could
have prevented the vehicular accident that resulted to the death of their 7-year old son.
Section 2, Rule 2, of the 1997 Rules of Civil Procedure defines cause of action as the "act or
omission by which a party violates the right of another." Such act or omission gives rise to an
obligation which may come from law, contracts, quasi contracts, delicts or quasi-delicts.11
Corollarily, an act or omission causing damage to another may give rise to two separate civil
liabilities on the part of the offender, i.e., 1) civil liability ex delicto;12 and 2) independent civil
liabilities, such as those (a) not arising from an act or omission complained of as felony (e.g.,
culpa contractual or obligations arising from law;13 the intentional torts;14 and culpa
aquiliana15); or (b) where the injured party is granted a right to file an action independent and
distinct from the criminal action.16 Either of these two possible liabilities may be enforced
against the offender.17
Stated otherwise, victims of negligence or their heirs have a choice between an action to
enforce the civil liability arising from culpa criminal under Article 100 of the Revised Penal
Code, and an action for quasi-delict (culpa aquiliana) under Articles 2176 to 2194 of the Civil
Code. If, as here, the action chosen is for quasi-delict, the plaintiff may hold the employer
liable for the negligent act of its employee, subject to the employer's defense of exercise of
the diligence of a good father of the family. On the other hand, if the action chosen is for culpa
criminal, the plaintiff can hold the employer subsidiarily liable only upon proof of prior
conviction of its employee.18
Article 116119 of the Civil Code provides that civil obligation arising from criminal offenses
shall be governed by penal laws subject to the provision of Article 217720 and of the pertinent
provision of Chapter 2, Preliminary Title on Human Relation, and of Title XVIII of this Book,
marcelo|torts and damages|full text
regulating damages. Plainly, Article 2177 provides for the alternative remedies the plaintiff
may choose from in case the obligation has the possibility of arising indirectly from the
delict/crime or directly from quasi-delict/tort. The choice is with the plaintiff who makes known
his cause of action in his initiatory pleading or complaint,21 and not with the defendant who
can not ask for the dismissal of the plaintiff's cause of action or lack of it based on the
defendant's perception that the plaintiff should have opted to file a claim under Article 103 of
the Revised Penal Code.
Under Article 2180 of the Civil Code, the liability of the employer is direct or immediate. It is
not conditioned upon prior recourse against the negligent employee and a prior showing of
insolvency of such employee.22
Here, the complaint sufficiently alleged that the death of the couple's minor son was caused
by the negligent act of the petitioners' driver; and that the petitioners themselves were civilly
liable for the negligence of their driver for failing "to exercise the necessary diligence required
of a good father of the family in the selection and supervision of [their] employee, the driver,
which diligence, if exercised, would have prevented said accident."
Had the respondent spouses elected to sue the petitioners based on Article 103 of the
Revised Penal Code, they would have alleged that the guilt of the driver had been proven
beyond reasonable doubt; that such accused driver is insolvent; that it is the subsidiary
liability of the defendant petitioners as employers to pay for the damage done by their
employee (driver) based on the principle that every person criminally liable is also civilly
liable.23 Since there was no conviction in the criminal case against the driver, precisely
because death intervened prior to the termination of the criminal proceedings, the spouses'
recourse was, therefore, to sue the petitioners for their direct and primary liability based
on quasi-delict.
Besides, it is worthy to note that the petitioners, in their Answer with Compulsory Counter-
Claim,24 repeatedly made mention of Article 2180 of the Civil Code and anchored their
defense on their allegation that "they had exercised due diligence in the selection and
supervision of [their] employees." The Court views this defense as an admission that indeed
the petitioners acknowledged the private respondents' cause of action as one for quasi-delict
under Article 2180 of the Civil Code.
All told, Civil Case No. 99-10845 is a negligence suit brought under Article 2176 - Civil Code
to recover damages primarily from the petitioners as employers responsible for their negligent
driver pursuant to Article 2180 of the Civil Code. 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. Thus, the employer is liable for damages caused by his employees and
household helpers acting within the scope of their assigned tasks, even though the former is
not engaged in any business or industry.
Citing Maniago v. CA,25 petitioner would argue that Civil Case No. 99-10845 should have
been dismissed for failure of the respondent spouses to make a reservation to institute a
separate civil action for damages when the criminal case against the driver was filed.
The argument is specious.
Page 51
To start with, the petitioners' reliance on Maniago is obviously misplaced. There, the civil case
was filed while the criminal case against the employee was still pending. Here, the criminal
case against the employee driver was prematurely terminated due to his death. Precisely,
Civil Case No. 99-10845 was filed by the respondent spouses because no remedy can be
obtained by them against the petitioners with the dismissal of the criminal case against their
driver during the pendency thereof.
The circumstance that no reservation to institute a separate civil action for damages was
made when the criminal case was filed is of no moment for the simple reason that the criminal
case was dismissed without any pronouncement having been made therein. In reality,
therefor, it is as if there was no criminal case to speak of in the first place. And for the
petitioners to insist for the conviction of their driver as a condition sine qua non to hold them
liable for damages is to ask for the impossible.
IN VIEW WHEREOF, the instant petition is DENIED for lack of merit.
Costs against the petitioners.
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was
in the employment of Manila Railroad Company in the capacity of clerk, with a monthly wage
of P25. He lived in the pueblo of San Mateo, in the province of Rizal, which is located upon
the line of the defendant railroad company; and in coming daily by train to the company's
office in the city of Manila where he worked, he used a pass, supplied by the company, which
entitled him to ride upon the company's trains free of charge. Upon the occasion in question,
January 20, 1915, the plaintiff arose from his seat in the second class-car where he was riding
and, making, his exit through the door, took his position upon the steps of the coach, seizing
the upright guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station there is a cement
platform which begins to rise with a moderate gradient some distance away from the
company's office and extends along in front of said office for a distance sufficient to cover the
length of several coaches. As the train slowed down another passenger, named Emilio
Zuñiga, also an employee of the railroad company, got off the same car, alighting safely at the
point where the platform begins to rise from the level of the ground. When the train had
proceeded a little farther the plaintiff Jose Cangco stepped off also, but one or both of his feet
marcelo|torts and damages|full text
came in contact with a sack of watermelons with the result that his feet slipped from under
him and he fell violently on the platform. His body at once rolled from the platform and was
drawn under the moving car, where his right arm was badly crushed and lacerated. It appears
that after the plaintiff alighted from the train the car moved forward possibly six meters before
it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station
was lighted dimly by a single light located some distance away, objects on the platform where
the accident occurred were difficult to discern especially to a person emerging from a lighted
car.
The explanation of the presence of a sack of melons on the platform where the plaintiff
alighted is found in the fact that it was the customary season for harvesting these melons and
a large lot had been brought to the station for the shipment to the market. They were
contained in numerous sacks which has been piled on the platform in a row one upon
another. The testimony shows that this row of sacks was so placed of melons and the edge of
platform; and it is clear that the fall of the plaintiff was due to the fact that his foot alighted
upon one of these melons at the moment he stepped upon the platform. His statement that he
failed to see these objects in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared that
the injuries which he had received were very serious. He was therefore brought at once to a
certain hospital in the city of Manila where an examination was made and his arm was
amputated. The result of this operation was unsatisfactory, and the plaintiff was then carried
to another hospital where a second operation was performed and the member was again
amputated higher up near the shoulder. It appears in evidence that the plaintiff expended the
sum of P790.25 in the form of medical and surgical fees and for other expenses in connection
with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of
Manila to recover damages of the defendant company, founding his action upon the
negligence of the servants and employees of the defendant in placing the sacks of melons
upon the platform and leaving them so placed as to be a menace to the security of passenger
alighting from the company's trains. At the hearing in the Court of First Instance, his Honor,
the trial judge, found the facts substantially as above stated, and drew therefrom his
conclusion to the effect that, although negligence was attributable to the defendant by reason
of the fact that the sacks of melons were so placed as to obstruct passengers passing to and
from the cars, nevertheless, the plaintiff himself had failed to use due caution in alighting from
the coach and was therefore precluded form recovering. Judgment was accordingly entered in
favor of the defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in
piling these sacks on the platform in the manner above stated; that their presence caused the
plaintiff to fall as he alighted from the train; and that they therefore constituted an effective
legal cause of the injuries sustained by the plaintiff. It necessarily follows that the defendant
company is liable for the damage thereby occasioned unless recovery is barred by the
plaintiff's own contributory negligence. In resolving this problem it is necessary that each of
Page 52
these conceptions of liability, to-wit, the primary responsibility of the defendant company and
the contributory negligence of the plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract of
carriage, and that the obligation to respond for the damage which plaintiff has suffered arises,
if at all, from the breach of that contract by reason of the failure of defendant to exercise due
care in its performance. That is to say, its liability is direct and immediate, differing essentially,
in legal viewpoint from that presumptive responsibility for the negligence of its servants,
imposed by article 1903 of the Civil Code, which can be rebutted by proof of the exercise of
due care in their selection and supervision. Article 1903 of the Civil Code is not applicable to
obligations arising ex contractu, but only to extra-contractual obligations — or to use the
technical form of expression, that article relates only to culpa aquiliana and not to culpa
contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code,
clearly points out this distinction, which was also recognized by this Court in its decision in the
case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article
1093 Manresa clearly points out the difference between "culpa, substantive and independent,
which of itself constitutes the source of an obligation between persons not formerly connected
by any legal tie" and culpa considered as an accident in the performance of an obligation
already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the
proposition that article 1903 of the Civil Code is not applicable to acts of negligence which
constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are
understood to be those not growing out of pre-existing duties of the parties to one another.
But where relations already formed give rise to duties, whether springing from contract or
quasi-contract, then breaches of those duties are subject to article 1101, 1103, and 1104 of
the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in
certain cases imposed upon employers with respect to damages occasioned by the
negligence of their employees to persons to whom they are not bound by contract, is not
based, as in the English Common Law, upon the principle of respondeat superior — if it were,
the master would be liable in every case and unconditionally — but upon the principle
announced in article 1902 of the Civil Code, which imposes upon all persons who by their
fault or negligence, do injury to another, the obligation of making good the damage caused.
One who places a powerful automobile in the hands of a servant whom he knows to be
ignorant of the method of managing such a vehicle, is himself guilty of an act of negligence
which makes him liable for all the consequences of his imprudence. The obligation to make
good the damage arises at the very instant that the unskillful servant, while acting within the
scope of his employment causes the injury. The liability of the master is personal and direct.
But, if the master has not been guilty of any negligence whatever in the selection and
direction of the servant, he is not liable for the acts of the latter, whatever done within the
marcelo|torts and damages|full text
scope of his employment or not, if the damage done by the servant does not amount to a
breach of the contract between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the
servant relieves the master from liability for the latter's acts — on the contrary, that proof
shows that the responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability
arising from extra-contractual culpa is always based upon a voluntary act or omission which,
without willful intent, but by mere negligence or inattention, has caused damage to another. A
master who exercises all possible care in the selection of his servant, taking into
consideration the qualifications they should possess for the discharge of the duties which it is
his purpose to confide to them, and directs them with equal diligence, thereby performs his
duty to third persons to whom he is bound by no contractual ties, and he incurs no liability
whatever if, by reason of the negligence of his servants, even within the scope of their
employment, such third person suffer damage. True it is that under article 1903 of the Civil
Code the law creates a presumption that he has been negligent in the selection or direction of
his servant, but the presumption is rebuttable and yield to proof of due care and diligence in
this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto
Rico Code, has held that these articles are applicable to cases of extra-
contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of
Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action brought upon the
theory of the extra-contractual liability of the defendant to respond for the damage caused by
the carelessness of his employee while acting within the scope of his employment. The Court,
after citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the negligence
of a servant or employee there instantly arises a presumption of law that there was
negligence on the part of the master or employer either in selection of the servant or
employee, or in supervision over him after the selection, or both; and (2) that that presumption
is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows
necessarily that if the employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on
that of his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in relations with strangers, the
negligence of the servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-
contractual culpa based upon negligence, it is necessary that there shall have been some
fault attributable to the defendant personally, and that the last paragraph of article 1903
merely establishes a rebuttable presumption, is in complete accord with the authoritative
opinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is
imposed by reason of the breach of the duties inherent in the special relations of authority or
Page 53
superiority existing between the person called upon to repair the damage and the one who, by
his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions
of their servants or agents, when such acts or omissions cause damages which amount to the
breach of a contact, is not based upon a mere presumption of the master's negligence in their
selection or control, and proof of exercise of the utmost diligence and care in this regard does
not relieve the master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual
obligation has its source in the breach or omission of those mutual duties which civilized
society imposes upon it members, or which arise from these relations, other than contractual,
of certain members of society to others, generally embraced in the concept of status. The
legal rights of each member of society constitute the measure of the corresponding legal
duties, mainly negative in character, which the existence of those rights imposes upon all
other members of society. The breach of these general duties whether due to willful intent or
to mere inattention, if productive of injury, give rise to an obligation to indemnify the injured
party. The fundamental distinction between obligations of this character and those which arise
from contract, rests upon the fact that in cases of non-contractual obligation it is the wrongful
or negligent act or omission itself which creates the vinculum juris, whereas in contractual
relations the vinculum exists independently of the breach of the voluntary duty assumed by
the parties when entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or
omission, it is competent for the legislature to elect — and our Legislature has so elected —
whom such an obligation is imposed is morally culpable, or, on the contrary, for reasons of
public policy, to extend that liability, without regard to the lack of moral culpability, so as to
include responsibility for the negligence of those person who acts or mission are imputable,
by a legal fiction, to others who are in a position to exercise an absolute or limited control over
them. The legislature which adopted our Civil Code has elected to limit extra-contractual
liability — with certain well-defined exceptions — to cases in which moral culpability can be
directly imputed to the persons to be charged. This moral responsibility may consist in having
failed to exercise due care in the selection and control of one's agents or servants, or in the
control of persons who, by reason of their status, occupy a position of dependency with
respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to render service
to another, is wholly different from that to which article 1903 relates. When the sources of the
obligation upon which plaintiff's cause of action depends is a negligent act or omission, the
burden of proof rests upon plaintiff to prove the negligence — if he does not his action fails.
But when the facts averred show a contractual undertaking by defendant for the benefit of
plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is not
necessary for plaintiff to specify in his pleadings whether the breach of the contract is due to
willful fault or to negligence on the part of the defendant, or of his servants or agents. Proof of
the contract and of its nonperformance is sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor
should assume the burden of proof of its existence, as the only fact upon which his action is
marcelo|torts and damages|full text
based; while on the contrary, in a case of negligence which presupposes the existence of a
contractual obligation, if the creditor shows that it exists and that it has been broken, it is not
necessary for him to prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the
breach was due to the negligent conduct of defendant or of his servants, even though such be
in fact the actual cause of the breach, it is obvious that proof on the part of defendant that the
negligence or omission of his servants or agents caused the breach of the contract would not
constitute a defense to the action. If the negligence of servants or agents could be invoked as
a means of discharging the liability arising from contract, the anomalous result would be that
person acting through the medium of agents or servants in the performance of their contracts,
would be in a better position than those acting in person. If one delivers a valuable watch to
watchmaker who contract to repair it, and the bailee, by a personal negligent act causes its
destruction, he is unquestionably liable. Would it be logical to free him from his liability for the
breach of his contract, which involves the duty to exercise due care in the preservation of the
watch, if he shows that it was his servant whose negligence caused the injury? If such a
theory could be accepted, juridical persons would enjoy practically complete immunity from
damages arising from the breach of their contracts if caused by negligent acts as such
juridical persons can of necessity only act through agents or servants, and it would no doubt
be true in most instances that reasonable care had been taken in selection and direction of
such servants. If one delivers securities to a banking corporation as collateral, and they are
lost by reason of the negligence of some clerk employed by the bank, would it be just and
reasonable to permit the bank to relieve itself of liability for the breach of its contract to return
the collateral upon the payment of the debt by proving that due care had been exercised in
the selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa
contractual as a mere incident to the performance of a contract has frequently been
recognized by the supreme court of Spain. (Sentencias of June 27, 1894; November 20,
1896; and December 13, 1896.) In the decisions of November 20, 1896, it appeared that
plaintiff's action arose ex contractu, but that defendant sought to avail himself of the
provisions of article 1902 of the Civil Code as a defense. The Spanish Supreme Court
rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by fault or
negligence, such as those to which article 1902 of the Civil Code relates, but of damages
caused by the defendant's failure to carry out the undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for
damage done by the negligent acts of their servants will show that in no case has the court
ever decided that the negligence of the defendant's servants has been held to constitute a
defense to an action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a
carriage was not liable for the damages caused by the negligence of his driver. In that case
the court commented on the fact that no evidence had been adduced in the trial court that the
defendant had been negligent in the employment of the driver, or that he had any knowledge
of his lack of skill or carefulness.
Page 54
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the
plaintiff sued the defendant for damages caused by the loss of a barge belonging to plaintiff
which was allowed to get adrift by the negligence of defendant's servants in the course of the
performance of a contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if
the "obligation of the defendant grew out of a contract made between it and the plaintiff . . . we
do not think that the provisions of articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to
recover damages for the personal injuries caused by the negligence of defendant's chauffeur
while driving defendant's automobile in which defendant was riding at the time. The court
found that the damages were caused by the negligence of the driver of the automobile, but
held that the master was not liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time as to give the
owner a reasonable opportunity to observe them and to direct the driver to desist therefrom. .
. . The act complained of must be continued in the presence of the owner for such length of
time that the owner by his acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil.
Rep., 8), it is true that the court rested its conclusion as to the liability of the defendant upon
article 1903, although the facts disclosed that the injury complaint of by plaintiff constituted a
breach of the duty to him arising out of the contract of transportation. The express ground of
the decision in this case was that article 1903, in dealing with the liability of a master for the
negligent acts of his servants "makes the distinction between private individuals and public
enterprise;" that as to the latter the law creates a rebuttable presumption of negligence in the
selection or direction of servants; and that in the particular case the presumption of
negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as
though founded in tort rather than as based upon the breach of the contract of carriage, and
an examination of the pleadings and of the briefs shows that the questions of law were in fact
discussed upon this theory. Viewed from the standpoint of the defendant the practical result
must have been the same in any event. The proof disclosed beyond doubt that the
defendant's servant was grossly negligent and that his negligence was the proximate cause of
plaintiff's injury. It also affirmatively appeared that defendant had been guilty of negligence in
its failure to exercise proper discretion in the direction of the servant. Defendant was,
therefore, liable for the injury suffered by plaintiff, whether the breach of the duty were to be
regarded as constituting culpa aquiliana or culpa contractual. As Manresa points out (vol. 8,
pp. 29 and 69) whether negligence occurs an incident in the course of the performance of a
contractual undertaking or its itself the source of an extra-contractual undertaking obligation,
its essential characteristics are identical. There is always an act or omission productive of
damage due to carelessness or inattention on the part of the defendant. Consequently, when
the court holds that a defendant is liable in damages for having failed to exercise due care,
either directly, or in failing to exercise proper care in the selection and direction of his
servants, the practical result is identical in either case. Therefore, it follows that it is not to be
inferred, because the court held in the Yamada case that defendant was liable for the
damages negligently caused by its servants to a person to whom it was bound by contract,
marcelo|torts and damages|full text
and made reference to the fact that the defendant was negligent in the selection and control
of its servants, that in such a case the court would have held that it would have been a good
defense to the action, if presented squarely upon the theory of the breach of the contract, for
defendant to have proved that it did in fact exercise care in the selection and control of the
servant.
The true explanation of such cases is to be found by directing the attention to the relative
spheres of contractual and extra-contractual obligations. The field of non- contractual
obligation is much more broader than that of contractual obligations, comprising, as it does,
the whole extent of juridical human relations. These two fields, figuratively speaking,
concentric; that is to say, the mere fact that a person is bound to another by contract does not
relieve him from extra-contractual liability to such person. When such a contractual relation
exists the obligor may break the contract under such conditions that the same act which
constitutes the source of an extra-contractual obligation had no contract existed between the
parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry
him in safety and to provide safe means of entering and leaving its trains (civil code, article
1258). That duty, being contractual, was direct and immediate, and its non-performance could
not be excused by proof that the fault was morally imputable to defendant's servants.
The railroad company's defense involves the assumption that even granting that the negligent
conduct of its servants in placing an obstruction upon the platform was a breach of its
contractual obligation to maintain safe means of approaching and leaving its trains, the direct
and proximate cause of the injury suffered by plaintiff was his own contributory negligence in
failing to wait until the train had come to a complete stop before alighting. Under the doctrine
of comparative negligence announced in the Rakes case (supra), if the accident was caused
by plaintiff's own negligence, no liability is imposed upon defendant's negligence and plaintiff's
negligence merely contributed to his injury, the damages should be apportioned. It is,
therefore, important to ascertain if defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before
alighting, the particular injury suffered by him could not have occurred. Defendant contends,
and cites many authorities in support of the contention, that it is negligence per se for a
passenger to alight from a moving train. We are not disposed to subscribe to this doctrine in
its absolute form. We are of the opinion that this proposition is too badly stated and is at
variance with the experience of every-day life. In this particular instance, that the train was
barely moving when plaintiff alighted is shown conclusively by the fact that it came to stop
within six meters from the place where he stepped from it. Thousands of person alight from
trains under these conditions every day of the year, and sustain no injury where the company
has kept its platform free from dangerous obstructions. There is no reason to believe that
plaintiff would have suffered any injury whatever in alighting as he did had it not been for
defendant's negligent failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in
Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
Page 55
The test by which to determine whether the passenger has been guilty of negligence in
attempting to alight from a moving railway train, is that of ordinary or reasonable care. It is to
be considered whether an ordinarily prudent person, of the age, sex and condition of the
passenger, would have acted as the passenger acted under the circumstances disclosed by
the evidence. This care has been defined to be, not the care which may or should be used by
the prudent man generally, but the care which a man of ordinary prudence would use under
similar circumstances, to avoid injury." (Thompson, Commentaries on Negligence, vol. 3, sec.
3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil.
rep., 809), we may say that the test is this; Was there anything in the circumstances
surrounding the plaintiff at the time he alighted from the train which would have admonished a
person of average prudence that to get off the train under the conditions then existing was
dangerous? If so, the plaintiff should have desisted from alighting; and his failure so to desist
was contributory negligence.1awph!l.net
As the case now before us presents itself, the only fact from which a conclusion can be drawn
to the effect that plaintiff was guilty of contributory negligence is that he stepped off the car
without being able to discern clearly the condition of the platform and while the train was yet
slowly moving. In considering the situation thus presented, it should not be overlooked that
the plaintiff was, as we find, ignorant of the fact that the obstruction which was caused by the
sacks of melons piled on the platform existed; and as the defendant was bound by reason of
its duty as a public carrier to afford to its passengers facilities for safe egress from its trains,
the plaintiff had a right to assume, in the absence of some circumstance to warn him to the
contrary, that the platform was clear. The place, as we have already stated, was dark, or
dimly lighted, and this also is proof of a failure upon the part of the defendant in the
performance of a duty owing by it to the plaintiff; for if it were by any possibility concede that it
had right to pile these sacks in the path of alighting passengers, the placing of them
adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence on the part of the plaintiff in this case
the following circumstances are to be noted: The company's platform was constructed upon a
level higher than that of the roadbed and the surrounding ground. The distance from the steps
of the car to the spot where the alighting passenger would place his feet on the platform was
thus reduced, thereby decreasing the risk incident to stepping off. The nature of the platform,
constructed as it was of cement material, also assured to the passenger a stable and even
surface on which to alight. Furthermore, the plaintiff was possessed of the vigor and agility of
young manhood, and it was by no means so risky for him to get off while the train was yet
moving as the same act would have been in an aged or feeble person. In determining the
question of contributory negligence in performing such act — that is to say, whether the
passenger acted prudently or recklessly — the age, sex, and physical condition of the
passenger are circumstances necessarily affecting the safety of the passenger, and should be
considered. Women, it has been observed, as a general rule are less capable than men of
alighting with safety under such conditions, as the nature of their wearing apparel obstructs
the free movement of the limbs. Again, it may be noted that the place was perfectly familiar to
the plaintiff as it was his daily custom to get on and of the train at this station. There could,
therefore, be no uncertainty in his mind with regard either to the length of the step which he
marcelo|torts and damages|full text
was required to take or the character of the platform where he was alighting. Our conclusion
is that the conduct of the plaintiff in undertaking to alight while the train was yet slightly under
way was not characterized by imprudence and that therefore he was not guilty of contributory
negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as
a copyist clerk, and that the injuries he has suffered have permanently disabled him from
continuing that employment. Defendant has not shown that any other gainful occupation is
open to plaintiff. His expectancy of life, according to the standard mortality tables, is
approximately thirty-three years. We are of the opinion that a fair compensation for the
damage suffered by him for his permanent disability is the sum of P2,500, and that he is also
entitled to recover of defendant the additional sum of P790.25 for medical attention, hospital
services, and other incidental expenditures connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum
of P3,290.25, and for the costs of both instances. So ordered.
FGU INSURANCE CORPORATION, petitioner, vs. G.P. SARMIENTO TRUCKING
CORPORATION and LAMBERT M. EROLES, respondents.
DECISION
VITUG, J.:
G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on 18 June 1994 thirty (30)
units of Condura S.D. white refrigerators aboard one of its Isuzu truck, driven by Lambert
Eroles, from the plant site of Concepcion Industries, Inc., along South Superhighway in
Alabang, Metro Manila, to the Central Luzon Appliances in Dagupan City. While the truck was
traversing the north diversion road along McArthur highway in Barangay Anupol, Bamban,
Tarlac, it collided with an unidentified truck, causing it to fall into a deep canal, resulting in
damage to the cargoes.
FGU Insurance Corporation (FGU), an insurer of the shipment, paid to Concepcion Industries,
Inc., the value of the covered cargoes in the sum of P204,450.00. FGU, in turn, being the
subrogee of the rights and interests of Concepcion Industries, Inc., sought reimbursement of
the amount it had paid to the latter from GPS. Since the trucking company failed to heed the
claim, FGU filed a complaint for damages and breach of contract of carriage against GPS and
its driver Lambert Eroles with the Regional Trial Court, Branch 66, of Makati City. In its
answer, respondents asserted that GPS was the exclusive hauler only of Concepcion
Industries, Inc., since 1988, and it was not so engaged in business as a common
carrier.Respondents further claimed that the cause of damage was purely accidental.
The issues having thus been joined, FGU presented its evidence, establishing the extent of
damage to the cargoes and the amount it had paid to the assured. GPS, instead of submitting
its evidence, filed with leave of court a motion to dismiss the complaint by way of demurrer to
evidence on the ground that petitioner had failed to prove that it was a common carrier.
Page 56
The trial court, in its order of 30 April 1996,[1] granted the motion to dismiss, explaining thusly:
Under Section 1 of Rule 131 of the Rules of Court, it is provided that Each party must prove
his own affirmative allegation, xxx.
In the instant case, plaintiff did not present any single evidence that would prove that
defendant is a common carrier.
xxxxxxxxx
Accordingly, the application of the law on common carriers is not warranted and the
presumption of fault or negligence on the part of a common carrier in case of loss, damage or
deterioration of goods during transport under 1735 of the Civil Code is not availing.
Thus, the laws governing the contract between the owner of the cargo to whom the plaintiff
was subrogated and the owner of the vehicle which transports the cargo are the laws on
obligation and contract of the Civil Code as well as the law on quasi delicts.
Under the law on obligation and contract, negligence or fault is not presumed. The law on
quasi delict provides for some presumption of negligence but only upon the attendance of
some circumstances.Thus, Article 2185 provides:
Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.
Evidence for the plaintiff shows no proof that defendant was violating any traffic
regulation. Hence, the presumption of negligence is not obtaining.
Considering that plaintiff failed to adduce evidence that defendant is a common carrier and
defendants driver was the one negligent, defendant cannot be made liable for the damages of
the subject cargoes.[2]
The subsequent motion for reconsideration having been denied,[3] plaintiff interposed an
appeal to the Court of Appeals, contending that the trial court had erred (a) in holding that the
appellee corporation was not a common carrier defined under the law and existing
jurisprudence; and (b) in dismissing the complaint on a demurrer to evidence.
The Court of Appeals rejected the appeal of petitioner and ruled in favor of GPS. The
appellate court, in its decision of 10 June 1999, [4] discoursed, among other things, that -
"x x x in order for the presumption of negligence provided for under the law governing
common carrier (Article 1735, Civil Code) to arise, the appellant must first prove that the
appellee is a common carrier. Should the appellant fail to prove that the appellee is a common
carrier, the presumption would not arise; consequently, the appellant would have to prove that
the carrier was negligent.
"x x x x x x x x x
marcelo|torts and damages|full text
"Because it is the appellant who insists that the appellees can still be considered as a
common carrier, despite its `limited clientele, (assuming it was really a common carrier), it
follows that it (appellant) has the burden of proving the same. It (plaintiff-appellant) `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. (Summa Insurance Corporation vs.
Court of Appeals, 243 SCRA 175). This, unfortunately, the appellant failed to do -- hence, the
dismissal of the plaintiffs complaint by the trial court is justified.
"x x x x x x x x x
"Based on the foregoing disquisitions and considering the circumstances that the appellee
trucking corporation has been `its exclusive contractor, hauler since 1970, defendant has no
choice but to comply with the directive of its principal, the inevitable conclusion is that the
appellee is a private carrier.
"x x x x x x x x x
"x x x the lower court correctly ruled that 'the application of the law on common carriers is not
warranted and the presumption of fault or negligence on the part of a common carrier in case
of loss, damage or deterioration of good[s] during transport under [article] 1735 of the Civil
Code is not availing.' x x x.
"Finally, We advert to the long established rule that conclusions and findings of fact of a trial
court are entitled to great weight on appeal and should not be disturbed unless for strong and
valid reasons."[5]
Petitioner's motion for reconsideration was likewise denied;[6] hence, the instant
petition,[7] raising the following issues:
I
WHETHER RESPONDENT GPS MAY BE CONSIDERED AS A COMMON CARRIER AS
DEFINED UNDER THE LAW AND EXISTING JURISPRUDENCE.
II
WHETHER RESPONDENT GPS, EITHER AS A COMMON CARRIER OR A PRIVATE
CARRIER, MAY BE PRESUMED TO HAVE BEEN NEGLIGENT WHEN THE GOODS IT
UNDERTOOK TO TRANSPORT SAFELY WERE SUBSEQUENTLY DAMAGED WHILE IN
ITS PROTECTIVE CUSTODY AND POSSESSION.
III
WHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS APPLICABLE IN THE INSTANT
CASE.
On the first issue, the Court finds the conclusion of the trial court and the Court of Appeals to
be amply justified. GPS, being an exclusive contractor and hauler of Concepcion Industries,
Page 57
Inc., rendering or offering its services to no other individual or entity, cannot be considered a
common carrier. Common carriers are persons, corporations, firms or associations engaged
in the business of carrying or transporting passengers or goods or both, by land, water, or air,
for hire or compensation, offering their services to the public,[8]whether to the public in
general or to a limited clientele in particular, but never on an exclusive basis. [9] The true test of
a common carrier is the carriage of passengers or goods, providing space for those who opt
to avail themselves of its transportation service for a fee.[10] Given accepted standards, GPS
scarcely falls within the term common carrier.
The above conclusion nothwithstanding, GPS cannot escape from liability.
In culpa contractual, upon which the action of petitioner rests as being the subrogee of
Concepcion Industries, Inc., the mere proof of the existence of the contract and the failure of
its compliance justify, prima facie, a corresponding right of relief.[11] The law, recognizing the
obligatory force of contracts,[12] will not permit a party to be set free from liability for any kind of
misperformance of the contractual undertaking or a contravention of the tenor thereof.[13] A
breach upon the contract confers upon the injured party a valid cause for recovering that
which may have been lost or suffered. The remedy serves to preserve the interests of the
promisee that may include his expectation interest, which is his interest in having the benefit
of his bargain by being put in as good a position as he would have been in had the contract
been performed, or his reliance interest, which is his interest in being reimbursed for loss
caused by reliance on the contract by being put in as good a position as he would have been
in had the contract not been made; or his restitution interest, which is his interest in having
restored to him any benefit that he has conferred on the other party.[14] Indeed, agreements
can accomplish little, either for their makers or for society, unless they are made the basis for
action.[15] The effect of every infraction is to create a new duty, that is, to make recompense to
the one who has been injured by the failure of another to observe his contractual
obligation[16] unless he can show extenuating circumstances, like proof of his exercise of due
diligence (normally that of the diligence of a good father of a family or, exceptionally by
stipulation or by law such as in the case of common carriers, that of extraordinary diligence)
or of the attendance of fortuitous event, to excuse him from his ensuing liability.
Respondent trucking corporation recognizes the existence of a contract of carriage between it
and petitioners assured, and admits that the cargoes it has assumed to deliver have been lost
or damaged while in its custody. In such a situation, a default on, or failure of compliance with,
the obligation in this case, the delivery of the goods in its custody to the place of destination -
gives rise to a presumption of lack of care and corresponding liability on the part of the
contractual obligor the burden being on him to establish otherwise. GPS has failed to do so.
Respondent driver, on the other hand, without concrete proof of his negligence or fault, may
not himself be ordered to pay petitioner. The driver, not being a party to the contract of
carriage between petitioners principal and defendant, may not be held liable under the
agreement. A contract can only bind the parties who have entered into it or their successors
who have assumed their personality or their juridical position. [17] Consonantly with the
axiom res inter alios acta aliis neque nocet prodest, such contract can neither favor nor
prejudice a third person. Petitioners civil action against the driver can only be based on culpa
marcelo|torts and damages|full text
aquiliana, which, unlike culpa contractual, would require the claimant for damages to prove
negligence or fault on the part of the defendant.[18]
A word in passing. Res ipsa loquitur, a doctrine being invoked by petitioner, holds a defendant
liable where the thing which caused the injury complained of is shown to be under the latters
management and the accident is such that, in the ordinary course of things, cannot be
expected to happen if those who have its management or control use proper care. It affords
reasonable evidence, in the absence of explanation by the defendant, that the accident arose
from want of care.[19] It is not a rule of substantive law and, as such, it does not create an
independent ground of liability. Instead, it is regarded as a mode of proof, or a mere
procedural convenience since it furnishes a substitute for, and relieves the plaintiff of, the
burden of producing specific proof of negligence. The maxim simply places on the defendant
the burden of going forward with the proof.[20] Resort to the doctrine, however, may be allowed
only when (a) the event is of a kind which does not ordinarily occur in the absence of
negligence; (b) other responsible causes, including the conduct of the plaintiff and third
persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within
the scope of the defendant's duty to the plaintiff.[21] Thus, it is not applicable when an
unexplained accident may be attributable to one of several causes, for some of which the
defendant could not be responsible.[22]
Res ipsa loquitur generally finds relevance whether or not a contractual relationship exists
between the plaintiff and the defendant, for the inference of negligence arises from the
circumstances and nature of the occurrence and not from the nature of the relation of the
parties.[23] Nevertheless, the requirement that responsible causes other than those due to
defendants conduct must first be eliminated, for the doctrine to apply, should be understood
as being confined only to cases of pure (non-contractual) tort since obviously the presumption
of negligence in culpa contractual, as previously so pointed out, immediately attaches by a
failure of the covenant or its tenor. In the case of the truck driver, whose liability in a civil
action is predicated on culpa acquiliana, while he admittedly can be said to have been in
control and management of the vehicle which figured in the accident, it is not equally shown,
however, that the accident could have been exclusively due to his negligence, a matter that
can allow, forthwith, res ipsa loquitur to work against him.
If a demurrer to evidence is granted but on appeal the order of dismissal is reversed, the
movant shall be deemed to have waived the right to present evidence.[24] Thus, respondent
corporation may no longer offer proof to establish that it has exercised due care in
transporting the cargoes of the assured so as to still warrant a remand of the case to the trial
court.
WHEREFORE, the order, dated 30 April 1996, of the Regional Trial Court, Branch 66, of
Makati City, and the decision, dated 10 June 1999, of the Court of Appeals, are AFFIRMED
only insofar as respondent Lambert M. Eroles is concerned, but said assailed order of the trial
court and decision of the appellate court are REVERSED as regards G.P. Sarmiento Trucking
Corporation which, instead, is hereby ordered to pay FGU Insurance Corporation the value of
the damaged and lost cargoes in the amount of P204,450.00. No costs.
Page 58
PHILIPPINE NATIONAL RAILWAYS, Petitioner,
vs.
ETHEL BRUNTY and JUAN MANUEL M. GARCIA, Respondents.
DECISION
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CA-
G.R. CV No. 47567 and its Resolution2 denying the motion for reconsideration thereof. The
assailed decision affirmed with partial modification the ruling3 of the Regional Trial Court
(RTC) of Manila, Branch 20, directing petitioner Philippine National Railways (PNR) to
indemnify respondents Ethel Brunty and Juan Manuel M. Garcia for the death of Rhonda
Brunty, and to pay actual and moral damages, attorney’s fees and cost of suit.
Rhonda Brunty, daughter of respondent Ethel Brunty and an American citizen, came to the
Philippines for a visit sometime in January 1980. Prior to her departure, she, together with her
Filipino host Juan Manuel M. Garcia, traveled to Baguio City on board a Mercedes Benz
sedan with plate number FU 799, driven by Rodolfo L. Mercelita. It was about 12:00 midnight,
January 25, 1980. By then, PNR Train No. T-71, driven by Alfonso Reyes, was on its way to
Tutuban, Metro Manila4 as it had left the La Union station at 11:00 p.m., January 24, 1980.
By 2:00 a.m., Rhonda Brunty, Garcia and Mercelita were already approaching the railroad
crossing at Barangay Rizal, Moncada, Tarlac. Mercelita, driving at approximately 70 km/hr,
drove past a vehicle, unaware of the railroad track up ahead and that they were about to
collide with PNR Train No. T-71. Mercelita was instantly killed when the Mercedes Benz
smashed into the train; the two other passengers suffered serious physical injuries. 5 A certain
James Harrow6 brought Rhonda Brunty to the Central Luzon Doctor’s Hospital in Tarlac,
where she was pronounced dead after ten minutes from arrival. Garcia, who had suffered
severe head injuries, was brought via ambulance to the same hospital. He was transferred to
the Manila Doctor’s Hospital, and later to the Makati Medical Center for further treatment. 7
On July 28, 1981, Ethel Brunty sent a demand letter8 to the PNR demanding payment of
actual, compensatory, and moral damages, as a result of her daughter’s death. When PNR
did not respond, Ethel Brunty and Garcia, filed a complaint 9 for damages against the PNR
before the RTC of Manila. The case was raffled to Branch 20 and was docketed as Civil Case
No. 83-18645. They alleged that the death of Mercelita and Rhonda Brunty, as well as the
physical injuries suffered by Garcia, were the direct and proximate result of the gross and
reckless negligence of PNR in not providing the necessary equipment at the railroad crossing
in Barangay Rizal, Municipality of Moncada, Tarlac. They pointed out that there was no
flagbar or red light signal to warn motorists who were about to cross the railroad track, and
that the flagman or switchman was only equipped with a hand flashlight. 10 Plaintiffs likewise
averred that PNR failed to supervise its employees in the performance of their respective
tasks and duties, more particularly the pilot and operator of the train.11 They prayed for the
payment of the following damages:
1.) ₱200,000.00 as actual and compensatory damages to plaintiff Ethel Brunty;
marcelo|torts and damages|full text
2.) ₱2,800,000.00 for compensatory damages to plaintiff Ethel Brunty representing lost or
unearned income of Rhonda Brunty;
3.) Such amounts of moral and exemplary damages as may be warranted by the evidence
adduced, to plaintiff Ethel Brunty;
4.) At least ₱64,057.61 as actual damages representing medical expenses to plaintiff Juan
Manuel M. Garcia and at least ₱1,000,000.00 as unearned or lost income of said plaintiff;
5.) At least ₱72,760.00 as actual damages representing cost of the Mercedes Benz car to
plaintiff Juan Manuel M. Garcia;
6.) Such amounts of moral and exemplary damages as may be warranted by the evidence
adduced, to plaintiff Juan Manuel M. Garcia; and
7.) Attorney’s fees equivalent to at least 15% of the total award to plaintiffs herein.12
In its Answer,13 PNR claimed that it exercised the diligence of a good father of a family not
only in the selection but also in the supervision of its employees. 14 By way of special and
affirmative defense, it stressed that it had the right of way on the railroad crossing in question,
and that it has no legal duty to put up a bar or red light signal in any such crossing. It insisted
that there were adequate, visible, and clear warning signs strategically posted on the sides of
the road before the railroad crossing. It countered that the immediate and proximate cause of
the accident was Mercelita’s negligence, and that he had the last clear chance to avoid the
accident. The driver disregarded the warning signs, the whistle blasts of the oncoming train
and the flashlight signals to stop given by the guard.15 As counterclaim, it prayed that it be
awarded actual and compensatory damages, and litigation expenses. 16
Plaintiffs filed an Amended Complaint17 dated July 28, 1986 to include, as party plaintiff,
Chemical Industries of the Philippines, Inc. (Chemphil), Garcia’s employer, who claimed to
have paid for the latter’s medical and hospitalization expenses, the services rendered by the
funeral parlor of the deceased, and the expenses in transferring the remains of Rhonda
Brunty to the United States.18
After trial on the merits, the RTC rendered its Decision19 on May 21, 1990 in favor of plaintiffs.
The fallo reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs Ethel Brunty and Juan
Manuel M. Garcia and against the defendant Philippine National Railways directing the latter
to pay the former the sum of:
1. Thirty Thousand Pesos (₱30,000.00) Philippine Currency, for the death of Rhonda Brunty
formerly a resident of 1595 Ashland Avenue, Des Plaines, Illinois, U.S.A.;
2. One Million Pesos (₱1,000,000.00) Philippine Currency for moral and actual damages due
the heirs of Rhonda Brunty;
Page 59
3. Seventy-Two Thousand Seven Hundred Sixty Pesos (₱72,760.00) Philippine Currency for
damages sustained by the Mercedes Benz;
4. Fifty Thousand Pesos (₱50,000.00) Philippine Currency as and for attorney's fees, and;
5. Costs of suit.
SO ORDERED.20
Aggrieved, the PNR appealed the case to the CA, raising the following errors:
I.
THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT PNR LIABLE FOR
THE DEATH OF RHONDA BRUNTY AND THE CONSEQUENT AWARD OF DAMAGES
DUE THE HEIRS OF RHONDA BRUNTY.
II.
THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT PNR LIABLE FOR
THE DAMAGES SUFFERED BY PLAINTIFF-APPELLEE’S MERCEDES BENZ IN THE
AMOUNT OF SEVENTY-TWO THOUSAND SEVEN HUNDRED AND SIXTY PESOS
(₱72,760.00).
III.
THE LOWER COURT ERRED IN AWARDING ATTORNEY’S FEES TO THE PLAINTIFFS-
APPELLEES.21
In its Brief, PNR insisted that the sole and proximate cause of the accident was the
negligence and recklessness of Garcia and Mercelita. 22 It insisted that it had provided
adequate warning signals at the railroad crossing23 and had exercised due care in the
selection and supervision of its employees.24 The RTC erred in awarding damages to Rhonda
Brunty as she cannot be allowed to receive what she is not in a position to give, having been
a non-resident alien who did not own a property in the Philippines.25 It likewise questioned the
award of damages on the Mercedes Benz as well as the grant of attorney’s fees. 26 At the very
least, Mercelita was guilty of contributory negligence. 27
For their part, appellees countered that appellant was grossly and recklessly negligent in not
properly providing the necessary equipment at the railroad crossing in Rizal, Moncada,
Tarlac;28 appellant was negligent in not exercising due diligence of a good father of a family in
the supervision of its employees, particularly the train operator Alfonso Reyes; 29 the car was
driven in a careful and diligent manner, and at a moderate speed, with due regard to all traffic
rules and regulations at that particular time;30 the doctrine of "last clear chance" is not
applicable;31 Ethel Brunty is a non-resident alien who can rightfully file the instant case;32 and
they are entitled to recover damages from appellant.33
The CA rendered the assailed Decision34 on August 15, 2005. The dispositive portion reads:
marcelo|torts and damages|full text
WHEREFORE, premises considered, the assailed decision is hereby AFFIRMED with
PARTIAL MODIFICATIONS, increasing the death indemnity award from ₱30,000.00 to
₱50,000.00, and deleting the award for damages sustained by the Mercedes Benz.
SO ORDERED.35
The appellate court affirmed the findings of the RTC as to the negligence of the PNR.
Considering the circumstances prevailing at the time of the fatal accident, it ruled that the
alleged safety measures installed by the PNR at the railroad crossing were not merely
inadequate – they did not satisfy the well-settled safety standards in
transportation.36 However, the CA did not agree with the RTC’s findings on the contributory
negligence of Mercelita, the driver of the Mercedes Benz. It held that Mercelita could not have
foreseen the harm that would befall him and the two other passengers under the prevailing
circumstances, thus, could not be considered guilty of contributory negligence.37
The PNR, now petitioner, comes before this Court in this Petition for Review on Certiorari on
the following grounds:
I.
THE COURT OF APPEALS ERRED IN MANIFESTLY OVERLOOKING CERTAIN
RELEVANT FACTS NOT DISPUTED BY THE PARTIES AND WHICH, IF PROPERLY
CONSIDERED, WOULD JUSTIFY A DIFFERENT CONCLUSION SUCH AS:
THE RESPONDENTS’ DRIVER OVERTOOK ANOTHER VEHICLE BY ACCELERATING AT
70 KILOMETERS PER HOUR WITHIN JUST 50 YARDS AWAY FROM THE RAILROAD
TRACKS.
II.
THE FINDINGS OF FACT OF THE COURT OF APPEALS ARE CONTRARY TO THOSE OF
THE TRIAL COURT REGARDING CONTRIBUTORY NEGLIGENCE OF THE
RESPONDENTS’ DRIVER.
III.
THE COURT OF APPEALS ERRED IN NOT APPLYING THE DOCTRINE OF LAST CLEAR
CHANCE IN THE INSTANT CASE.38
Petitioner insists that the proximate cause of the mishap was Mercelita’s disregard of traffic
rules and regulations. Had the court considered the fact that Mercelita had overtaken another
vehicle a few yards before the railroad track, it would have reached a different
conclusion.39 Moreover, petitioner asserts, considering that the decisions of the RTC and the
CA vary as to whether or not Mercelita was guilty of contributory negligence, the findings of
the RTC should prevail. Thus, Mercelita’s contributory negligence should not have been
ignored.40 Lastly, petitioner avers that since there is freedom of control and greater
maneuverability on the part of motor vehicles, it is obvious that in railroad crossings, they
have the last clear chance to prevent or avoid an unwanted accident from taking place. 41
Page 60
In their Comment42 on the petition, respondents reiterate the findings of the RTC and the CA
that the breach by petitioner of its legal duty to provide adequate and necessary public safety
device and equipment within the area or scene of the accident was the proximate cause of the
mishap.43 While it is true that as a general rule, the trial court is in the best position to evaluate
and observe the conduct and demeanor of the witnesses presented during the trial, the CA, in
the exercise of its appellate jurisdiction, has the vested right to modify, reject, or set aside the
trial court’s evaluation and findings.44 As to the application of the doctrine of last clear chance,
respondents claim that said issue is being raised for the first time in this petition. 45 Lastly,
respondents cite foreign jurisprudence stating that if the violation is one which gives rise to
liability per se for any resulting injury, the defenses ordinarily available in actions for diligence
are barred and the contributory negligence of the person injured is no defense. 46
The Court is thus tasked to answer the following factual questions: (1) As between petitioner
and Mercelita, whose negligence resulted in the unfortunate collision? (2) Is Mercelita (the
driver of the Mercedes Benz) guilty of contributory negligence? Finally, the application in this
case of the doctrine of last clear chance is likewise in question.
Negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing
of something which a prudent and reasonable man would not do.47 In Corliss v. Manila
Railroad Company,48 this Court held that negligence is want of the care required by the
circumstances. It is a relative or comparative, not an absolute, term and its application
depends upon the situation of the parties and the degree of care and vigilance which the
circumstances reasonably require.49 In determining whether or not there is negligence on the
part of the parties in a given situation, jurisprudence50 has laid down the following test: Did
defendant, in doing the alleged negligent act, use that reasonable care and caution which an
ordinarily prudent person would have used in the same situation? If not, the person is guilty of
negligence. The law, in effect, adopts the standard supposed to be supplied by the imaginary
conduct of the discreet pater familias of the Roman law.
The issue of who, between the parties, was negligent was thoroughly discussed by both the
RTC and the CA. In petitions for review under Rule 45 of the Revised Rules of Court, only
questions of law may be put into issue, and questions of fact as a general rule, cannot be
entertained. The finding of negligence by the RTC, as affirmed by the CA, is a question of fact
which this Court cannot pass upon as it would entail going into factual matters on which the
finding of negligence was based.51 The established rule is that factual findings of the CA
affirming those of the trial court are conclusive and binding on this Court. 52
The records of the instant case show that both the RTC and the CA carefully examined the
factual circumstances surrounding the case, and we find no cogent reason to disturb the
same. It is, however, worthy to emphasize that petitioner was found negligent because of its
failure to provide the necessary safety device to ensure the safety of motorists in crossing the
railroad track. As such, it is liable for damages for violating the provisions of Article 2176 of
the New Civil Code, viz:
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-
marcelo|torts and damages|full text
existing contractual relation between the parties, is called a quasi-delict and is governed by
the provisions of this Chapter.
In a long line of cases, the Court held that in order to sustain a claim based on quasi-delict,
the following requisites must concur: (1) damage to plaintiff; (2) negligence, by act or
omission, of which defendant, or some person for whose acts he must respond was guilty;
and (3) connection of cause and effect between such negligence and damage. 53 Applying the
foregoing requisites, the CA correctly made the following conclusions:
It was clearly established that plaintiffs-appellees (respondents herein) sustained damage or
injury as a result of the collision. That there was negligence on the part of PNR is, likewise,
beyond cavil. Considering the circumstances prevailing at the time of the fatal accident, the
alleged safety measures installed by the PNR at the railroad crossing is not only inadequate
but does not satisfy well-settled safety standards in transportation. x x x
xxxx
x x x An examination of the photographs of the railroad crossing at Moncada, Tarlac
presented as evidence by PNR itself would yield the following: (1.) absence of flagbars or
safety railroad bars; (2.) inadequacy of the installed warning signals; and (3.) lack of proper
lighting within the area. Thus, even if there was a flagman stationed at the site as claimed by
PNR (petitioner), it would still be impossible to know or see that there is a railroad
crossing/tracks ahead, or that there is an approaching train from the Moncada side of the road
since one’s view would be blocked by a cockpit arena. x x x54
Moreover, the CA held that a vehicle coming from the Moncada side would have difficulty in
knowing that there is an approaching train because of the slight curve, more so, at an unholy
hour as 2:00 a.m. Thus, it is imperative on the part of the PNR to provide adequate safety
equipment in the area.55
It may broadly be stated that railroad companies owe to the public a duty of exercising a
reasonable degree of care to avoid injury to persons and property at railroad crossings, which
duties pertain both in the operation of trains and in the maintenance of the
crossings.56 Moreover, every corporation constructing or operating a railway shall make and
construct at all points where such railway crosses any public road, good, sufficient, and safe
crossings and erect at such points, at a sufficient elevation from such road as to admit a free
passage of vehicles of every kind, a sign with large and distinct letters placed thereon, to give
notice of the proximity of the railway, and warn persons of the necessity of looking out for
trains.57
This Court has previously determined the liability of the PNR for damages for its failure to put
a cross bar, or signal light, flagman or switchman, or semaphores. Such failure is evidence of
negligence and disregard of the safety of the public, even if there is no law or ordinance
requiring it because public safety demands that said device or equipment be installed. 58
In view of the foregoing, we affirm the factual findings of the CA as well as its conclusion on
petitioner’s negligence.
Page 61
As to whether or not Mercelita was guilty of contributory negligence, we agree with petitioner.
Contributory negligence is conduct on the part of the injured party, contributing as a legal
cause to the harm he has suffered, which falls below the standard to which he is required to
conform for his own protection.59 To hold a person as having contributed to his injuries, it must
be shown that he performed an act that brought about his injuries in disregard of warning or
signs of an impending danger to health and body.60 To prove contributory negligence, it is still
necessary to establish a causal link, although not proximate, between the negligence of the
party and the succeeding injury. In a legal sense, negligence is contributory only when it
contributes proximately to the injury, and not simply a condition for its occurrence. 61
The court below found that there was a slight curve before approaching the tracks; the place
was not properly illuminated; one’s view was blocked by a cockpit arena; and Mercelita was
not familiar with the road. Yet, it was also established that Mercelita was then driving the
Mercedes Benz at a speed of 70 km/hr and, in fact, had overtaken a vehicle a few yards
before reaching the railroad track. Mercelita should not have driven the car the way he did.
However, while his acts contributed to the collision, they nevertheless do not negate
petitioner’s liability. Pursuant to Article 217962 of the New Civil Code, the only effect such
contributory negligence could have is to mitigate liability, which, however, is not applicable in
this case, as will be discussed later.1âwphi1
As to whether or not the doctrine of last clear chance is applicable, we rule in the negative.
The doctrine of last clear chance states that where both parties are negligent but the negligent
act of one is appreciably later than that of the other, or where it is impossible to determine
whose fault or negligence caused the loss, the one who had the last clear opportunity to avoid
the loss but failed to do so, is chargeable with the loss. Stated differently, the antecedent
negligence of plaintiff does not preclude him from recovering damages caused by the
supervening negligence of defendant, who had the last fair chance to prevent the impending
harm by the exercise of due diligence.63 The proximate cause of the injury having been
established to be the negligence of petitioner, we hold that the above doctrine finds no
application in the instant case.
We note that the damages awarded by the appellate court consist of (1) ₱50,000.00 as
indemnity for the death of Rhonda Brunty; (2) ₱1,000,000.00 as actual and moral damages
due the heirs of Rhonda Brunty; and (3) ₱50,000.00 as and by way of attorney’s fees. No
damages, however, were awarded for the injuries suffered by Garcia, yet, the latter never
interposed an appeal before the CA nor even before this Court. The record is, likewise, bereft
of any allegation and proof as to the relationship between Mercelita (the driver) and Rhonda
Brunty. Hence, the earlier finding of contributory negligence on the part of Mercelita, which
generally has the effect of mitigation of liability, does not apply.
As to the amount of damages awarded, a modification of the same is in order, specifically on
the award of actual and moral damages in the aggregate amount of ₱1,000,000.00.
Actual or compensatory damages are those awarded in order to compensate a party for an
injury or loss he suffered. They arise out of a sense of natural justice, aimed at repairing the
wrong done. To be recoverable, they must be duly proved with a reasonable degree of
certainty. A court cannot rely on speculation, conjecture, or guesswork as to the fact and
amount of damages, but must depend upon competent proof that they have suffered, and on
marcelo|torts and damages|full text
evidence of the actual amount thereof.64 Respondents, however, failed to present evidence for
such damages; hence, the award of actual damages cannot be sustained. However, as the
heirs of Rhonda Brunty undeniably incurred expenses for the wake and burial of the latter, we
deem it proper to award temperate damages in the amount of ₱25,000.00 pursuant to
prevailing jurisprudence.65 This is in lieu of actual damages as it would be unfair for the
victim’s heirs to get nothing, despite the death of their kin, for the reason alone that they
cannot produce receipts.66
The relatives of the victim who incurred physical injuries in a quasi-delict are not proscribed
from recovering moral damages in meritorious cases.67 We, therefore, sustain the award of
moral damages in favor of the heirs of Rhonda Brunty.
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
caused a person. Although incapable of pecuniary computation, moral damages must
nevertheless be somehow proportional to and in approximation of the suffering inflicted. 68 In
the instant case, the moral suffering of the heirs of Rhonda Brunty was sufficiently established
by Ethel Brunty in her deposition,69 viz:
Q: What have you felt as a result of the death of Rhonda?
A: I felt earnest anguish and mixed feelings of anger and extreme sorrow because she died
so far away and alone, and because her death could so easily be prevented if there had been
adequate and appropriate warning signals at the railroad crossing and it is just an unbearable
and irreparable loss. In so many ways, she was my life. It seemed to me that losing her was
just like losing my own life, or worst, and even now, there is no end to our bereavement. I am
still on constant medication to be able to sleep and to be able to perform my duties effectively
in my job but it does not take away the pain of loss.70
In People v. Teehankee, Jr.,71 and in Metro Manila Transit Corporation v. Court of
Appeals,72 we awarded moral damages in the amount of ₱1,000,000.00 to the heirs of the
deceased. In Victory Liner, Inc. v. Heirs of Malecdan,73the award of ₱100,000.00 as moral
damages was held in keeping with the purpose of the law, while in Macalinao v. Ong, 74 the
amount of ₱50,000.00 was held sufficient.1âwphi1
Considering the circumstances attendant in this case, we find that an award of ₱500,000.00
as moral damages to the heirs of Rhonda Brunty is proper. In view of recent jurisprudence,
indemnity of ₱50,000.00 for the death of Rhonda Brunty and attorney’s fees amounting to
₱50,000.00 is likewise proper.
WHEREFORE, premises considered, the Decision of the Court of Appeals dated August 15,
2005 is AFFIRMED WITH MODIFICATIONS. The award of actual damages is deleted, and in
lieu thereof, temperate damages of ₱25,000.00 is awarded to the heirs of Rhonda Brunty. The
award of moral damages is reduced to ₱500,000.00.
Page 62
ROBERTO C. SICAM and AGENCIA de R.C. SICAM, INC., petitioners,
vs.
LULU V. JORGE and CESAR JORGE, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Review on Certiorari filed by Roberto C. Sicam, Jr. (petitioner
Sicam) and Agencia de R.C. Sicam, Inc. (petitioner corporation) seeking to annul the
Decision1 of the Court of Appeals dated March 31, 2003, and its Resolution2 dated August 8,
2003, in CA G.R. CV No. 56633.
It appears that on different dates from September to October 1987, Lulu V. Jorge (respondent
Lulu) pawned several pieces of jewelry with Agencia de R. C. Sicam located at No. 17 Aguirre
Ave., BF Homes Parañaque, Metro Manila, to secure a loan in the total amount
of P59,500.00.
On October 19, 1987, two armed men entered the pawnshop and took away whatever cash
and jewelry were found inside the pawnshop vault. The incident was entered in the police
blotter of the Southern Police District, Parañaque Police Station as follows:
Investigation shows that at above TDPO, while victims were inside the office, two (2) male
unidentified persons entered into the said office with guns drawn. Suspects(sic) (1) went
straight inside and poked his gun toward Romeo Sicam and thereby tied him with an electric
wire while suspects (sic) (2) poked his gun toward Divina Mata and Isabelita Rodriguez and
ordered them to lay (sic) face flat on the floor. Suspects asked forcibly the case and assorted
pawned jewelries items mentioned above.
Suspects after taking the money and jewelries fled on board a Marson Toyota unidentified
plate number.3
Petitioner Sicam sent respondent Lulu a letter dated October 19, 1987 informing her of the
loss of her jewelry due to the robbery incident in the pawnshop. On November 2, 1987,
respondent Lulu then wrote a letter4 to petitioner Sicam expressing disbelief stating that when
the robbery happened, all jewelry pawned were deposited with Far East Bank near the
pawnshop since it had been the practice that before they could withdraw, advance notice
must be given to the pawnshop so it could withdraw the jewelry from the bank. Respondent
Lulu then requested petitioner Sicam to prepare the pawned jewelry for withdrawal on
November 6, 1987 but petitioner Sicam failed to return the jewelry.
On September 28, 1988, respondent Lulu joined by her husband, Cesar Jorge, filed a
complaint against petitioner Sicam with the Regional Trial Court of Makati seeking
indemnification for the loss of pawned jewelry and payment of actual, moral and exemplary
damages as well as attorney's fees. The case was docketed as Civil Case No. 88-2035.
Petitioner Sicam filed his Answer contending that he is not the real party-in-interest as the
pawnshop was incorporated on April 20, 1987 and known as Agencia de R.C. Sicam, Inc; that
marcelo|torts and damages|full text
petitioner corporation had exercised due care and diligence in the safekeeping of the articles
pledged with it and could not be made liable for an event that is fortuitous.
Respondents subsequently filed an Amended Complaint to include petitioner corporation.
Thereafter, petitioner Sicam filed a Motion to Dismiss as far as he is concerned considering
that he is not the real party-in-interest. Respondents opposed the same. The RTC denied the
motion in an Order dated November 8, 1989.5
After trial on the merits, the RTC rendered its Decision6 dated January 12, 1993, dismissing
respondents’ complaint as well as petitioners’ counterclaim. The RTC held that petitioner
Sicam could not be made personally liable for a claim arising out of a corporate transaction;
that in the Amended Complaint of respondents, they asserted that "plaintiff pawned assorted
jewelries in defendants' pawnshop"; and that as a consequence of the separate juridical
personality of a corporation, the corporate debt or credit is not the debt or credit of a
stockholder.
The RTC further ruled that petitioner corporation could not be held liable for the loss of the
pawned jewelry since it had not been rebutted by respondents that the loss of the pledged
pieces of jewelry in the possession of the corporation was occasioned by armed robbery; that
robbery is a fortuitous event which exempts the victim from liability for the loss, citing the case
of Austria v. Court of Appeals;7 and that the parties’ transaction was that of a pledgor and
pledgee and under Art. 1174 of the Civil Code, the pawnshop as a pledgee is not responsible
for those events which could not be foreseen.
Respondents appealed the RTC Decision to the CA. In a Decision dated March 31, 2003, the
CA reversed the RTC, the dispositive portion of which reads as follows:
WHEREFORE, premises considered, the instant Appeal is GRANTED, and the Decision
dated January 12, 1993,of the Regional Trial Court of Makati, Branch 62, is hereby
REVERSED and SET ASIDE, ordering the appellees to pay appellants the actual value of the
lost jewelry amounting to P272,000.00, and attorney' fees of P27,200.00.8
In finding petitioner Sicam liable together with petitioner corporation, the CA applied the
doctrine of piercing the veil of corporate entity reasoning that respondents were misled into
thinking that they were dealing with the pawnshop owned by petitioner Sicam as all the
pawnshop tickets issued to them bear the words "Agencia de R.C. Sicam"; and that there was
no indication on the pawnshop tickets that it was the petitioner corporation that owned the
pawnshop which explained why respondents had to amend their complaint impleading
petitioner corporation.
The CA further held that the corresponding diligence required of a pawnshop is that it should
take steps to secure and protect the pledged items and should take steps to insure itself
against the loss of articles which are entrusted to its custody as it derives earnings from the
pawnshop trade which petitioners failed to do; that Austria is not applicable to this case since
the robbery incident happened in 1961 when the criminality had not as yet reached the levels
attained in the present day; that they are at least guilty of contributory negligence and should
Page 63
be held liable for the loss of jewelries; and that robberies and hold-ups are foreseeable risks
in that those engaged in the pawnshop business are expected to foresee.
The CA concluded that both petitioners should be jointly and severally held liable to
respondents for the loss of the pawned jewelry.
Petitioners’ motion for reconsideration was denied in a Resolution dated August 8, 2003.
Hence, the instant petition for review with the following assignment of errors:
THE COURT OF APPEALS ERRED AND WHEN IT DID, IT OPENED ITSELF TO
REVERSAL, WHEN IT ADOPTED UNCRITICALLY (IN FACT IT REPRODUCED AS ITS
OWN WITHOUT IN THE MEANTIME ACKNOWLEDGING IT) WHAT THE RESPONDENTS
ARGUED IN THEIR BRIEF, WHICH ARGUMENT WAS PALPABLY UNSUSTAINABLE.
THE COURT OF APPEALS ERRED, AND WHEN IT DID, IT OPENED ITSELF TO
REVERSAL BY THIS HONORABLE COURT, WHEN IT AGAIN ADOPTED UNCRITICALLY
(BUT WITHOUT ACKNOWLEDGING IT) THE SUBMISSIONS OF THE RESPONDENTS IN
THEIR BRIEF WITHOUT ADDING ANYTHING MORE THERETO DESPITE THE FACT
THAT THE SAID ARGUMENT OF THE RESPONDENTS COULD NOT HAVE BEEN
SUSTAINED IN VIEW OF UNREBUTTED EVIDENCE ON RECORD.9
Anent the first assigned error, petitioners point out that the CA’s finding that petitioner Sicam
is personally liable for the loss of the pawned jewelries is "a virtual and uncritical reproduction
of the arguments set out on pp. 5-6 of the Appellants’ brief."10
Petitioners argue that the reproduced arguments of respondents in their Appellants’ Brief
suffer from infirmities, as follows:
(1) Respondents conclusively asserted in paragraph 2 of their Amended Complaint that
Agencia de R.C. Sicam, Inc. is the present owner of Agencia de R.C. Sicam Pawnshop, and
therefore, the CA cannot rule against said conclusive assertion of respondents;
(2) The issue resolved against petitioner Sicam was not among those raised and litigated in
the trial court; and
(3) By reason of the above infirmities, it was error for the CA to have pierced the corporate
veil since a corporation has a personality distinct and separate from its individual stockholders
or members.
Anent the second error, petitioners point out that the CA finding on their negligence is likewise
an unedited reproduction of respondents’ brief which had the following defects:
(1) There were unrebutted evidence on record that petitioners had observed the diligence
required of them, i.e, they wanted to open a vault with a nearby bank for purposes of
safekeeping the pawned articles but was discouraged by the Central Bank (CB) since CB
rules provide that they can only store the pawned articles in a vault inside the pawnshop
premises and no other place;
marcelo|torts and damages|full text
(2) Petitioners were adjudged negligent as they did not take insurance against the loss of the
pledged jelweries, but it is judicial notice that due to high incidence of crimes, insurance
companies refused to cover pawnshops and banks because of high probability of losses due
to robberies;
(3) In Hernandez v. Chairman, Commission on Audit (179 SCRA 39, 45-46), the victim of
robbery was exonerated from liability for the sum of money belonging to others and lost by
him to robbers.
Respondents filed their Comment and petitioners filed their Reply thereto. The parties
subsequently submitted their respective Memoranda.
We find no merit in the petition.
To begin with, although it is true that indeed the CA findings were exact reproductions of the
arguments raised in respondents’ (appellants’) brief filed with the CA, we find the same to be
not fatally infirmed. Upon examination of the Decision, we find that it expressed clearly and
distinctly the facts and the law on which it is based as required by Section 8, Article VIII of the
Constitution. The discretion to decide a case one way or another is broad enough to justify the
adoption of the arguments put forth by one of the parties, as long as these are legally tenable
and supported by law and the facts on records.11
Our jurisdiction under Rule 45 of the Rules of Court is limited to the review of errors of law
committed by the appellate court. Generally, the findings of fact of the appellate court are
deemed conclusive and we are not duty-bound to analyze and calibrate all over again the
evidence adduced by the parties in the court a quo.12 This rule, however, is not without
exceptions, such as where the factual findings of the Court of Appeals and the trial court are
conflicting or contradictory13 as is obtaining in the instant case.
However, after a careful examination of the records, we find no justification to absolve
petitioner Sicam from liability.
The CA correctly pierced the veil of the corporate fiction and adjudged petitioner Sicam liable
together with petitioner corporation. The rule is that the veil of corporate fiction may be
pierced when made as a shield to perpetrate fraud and/or confuse legitimate issues. 14 The
theory of corporate entity was not meant to promote unfair objectives or otherwise to shield
them.15
Notably, the evidence on record shows that at the time respondent Lulu pawned her jewelry,
the pawnshop was owned by petitioner Sicam himself. As correctly observed by the CA, in all
the pawnshop receipts issued to respondent Lulu in September 1987, all bear the words
"Agencia de R. C. Sicam," notwithstanding that the pawnshop was allegedly incorporated in
April 1987. The receipts issued after such alleged incorporation were still in the name of
"Agencia de R. C. Sicam," thus inevitably misleading, or at the very least, creating the wrong
impression to respondents and the public as well, that the pawnshop was owned solely by
petitioner Sicam and not by a corporation.
Page 64
Even petitioners’ counsel, Atty. Marcial T. Balgos, in his letter16 dated October 15, 1987
addressed to the Central Bank, expressly referred to petitioner Sicam as the proprietor of the
pawnshop notwithstanding the alleged incorporation in April 1987.
We also find no merit in petitioners' argument that since respondents had alleged in their
Amended Complaint that petitioner corporation is the present owner of the pawnshop, the CA
is bound to decide the case on that basis.
Section 4 Rule 129 of the Rules of Court provides that an admission, verbal or written, made
by a party in the course of the proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it was made through palpable mistake or
that no such admission was made.
Thus, the general rule that a judicial admission is conclusive upon the party making it and
does not require proof, admits of two exceptions, to wit: (1) when it is shown that such
admission was made through palpable mistake, and (2) when it is shown that no such
admission was in fact made. The latter exception allows one to contradict an admission
by denying that he made such an admission.17
The Committee on the Revision of the Rules of Court explained the second exception in this
wise:
x x x if a party invokes an "admission" by an adverse party, but cites the admission "out of
context," then the one making the "admission" may show that he made no "such" admission,
or that his admission was taken out of context.
x x x that the party can also show that he made no "such admission", i.e., not in the
sense in which the admission is made to appear.
That is the reason for the modifier "such" because if the rule simply states that the admission
may be contradicted by showing that "no admission was made," the rule would not really be
providing for a contradiction of the admission but just a denial.18 (Emphasis supplied).
While it is true that respondents alleged in their Amended Complaint that petitioner
corporation is the present owner of the pawnshop, they did so only because petitioner Sicam
alleged in his Answer to the original complaint filed against him that he was not the real party-
in-interest as the pawnshop was incorporated in April 1987. Moreover, a reading of the
Amended Complaint in its entirety shows that respondents referred to both petitioner Sicam
and petitioner corporation where they (respondents) pawned their assorted pieces of jewelry
and ascribed to both the failure to observe due diligence commensurate with the business
which resulted in the loss of their pawned jewelry.
Markedly, respondents, in their Opposition to petitioners’ Motion to Dismiss Amended
Complaint, insofar as petitioner Sicam is concerned, averred as follows:
Roberto C. Sicam was named the defendant in the original complaint because the pawnshop
tickets involved in this case did not show that the R.C. Sicam Pawnshop was a corporation. In
marcelo|torts and damages|full text
paragraph 1 of his Answer, he admitted the allegations in paragraph 1 and 2 of the Complaint.
He merely added "that defendant is not now the real party in interest in this case."
It was defendant Sicam's omission to correct the pawnshop tickets used in the subject
transactions in this case which was the cause of the instant action. He cannot now ask for the
dismissal of the complaint against him simply on the mere allegation that his pawnshop
business is now incorporated. It is a matter of defense, the merit of which can only be reached
after consideration of the evidence to be presented in due course. 19
Unmistakably, the alleged admission made in respondents' Amended Complaint was taken
"out of context" by petitioner Sicam to suit his own purpose. Ineluctably, the fact that petitioner
Sicam continued to issue pawnshop receipts under his name and not under the corporation's
name militates for the piercing of the corporate veil.
We likewise find no merit in petitioners' contention that the CA erred in piercing the veil of
corporate fiction of petitioner corporation, as it was not an issue raised and litigated before the
RTC.
Petitioner Sicam had alleged in his Answer filed with the trial court that he was not the real
party-in-interest because since April 20, 1987, the pawnshop business initiated by him was
incorporated and known as Agencia de R.C. Sicam. In the pre-trial brief filed by petitioner
Sicam, he submitted that as far as he was concerned, the basic issue was whether he is the
real party in interest against whom the complaint should be directed. 20 In fact, he
subsequently moved for the dismissal of the complaint as to him but was not favorably acted
upon by the trial court. Moreover, the issue was squarely passed upon, although erroneously,
by the trial court in its Decision in this manner:
x x x The defendant Roberto Sicam, Jr likewise denies liability as far as he is concerned for
the reason that he cannot be made personally liable for a claim arising from a corporate
transaction.
This Court sustains the contention of the defendant Roberto C. Sicam, Jr. The amended
complaint itself asserts that "plaintiff pawned assorted jewelries in defendant's pawnshop." It
has been held that " as a consequence of the separate juridical personality of a corporation,
the corporate debt or credit is not the debt or credit of the stockholder, nor is the stockholder's
debt or credit that of a corporation.21
Clearly, in view of the alleged incorporation of the pawnshop, the issue of whether petitioner
Sicam is personally liable is inextricably connected with the determination of the question
whether the doctrine of piercing the corporate veil should or should not apply to the case.
The next question is whether petitioners are liable for the loss of the pawned articles in their
possession.
Petitioners insist that they are not liable since robbery is a fortuitous event and they are not
negligent at all.
We are not persuaded.
Page 65
Article 1174 of the Civil Code provides:
Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation requires the assumption of risk, no person
shall be responsible for those events which could not be foreseen or which, though foreseen,
were inevitable.
Fortuitous events by definition are extraordinary events not foreseeable or avoidable. It is
therefore, not enough that the event should not have been foreseen or anticipated, as is
commonly believed but it must be one impossible to foresee or to avoid. The mere difficulty to
foresee the happening is not impossibility to foresee the same. 22
To constitute a fortuitous event, the following elements must concur: (a) the cause of the
unforeseen and unexpected occurrence or of the failure of the debtor to comply with
obligations must be independent of human will; (b) it must be impossible to foresee the event
that constitutes the caso fortuito or, if it can be foreseen, it must be impossible to avoid; (c)
the occurrence must be such as to render it impossible for the debtor to fulfill obligations in a
normal manner; and, (d) the obligor must be free from any participation in the aggravation of
the injury or loss. 23
The burden of proving that the loss was due to a fortuitous event rests on him who invokes
it.24 And, in order for a fortuitous event to exempt one from liability, it is necessary that one
has committed no negligence or misconduct that may have occasioned the loss. 25
It has been held that an act of God cannot be invoked to protect a person who has failed to
take steps to forestall the possible adverse consequences of such a loss. One's negligence
may have concurred with an act of God in producing damage and injury to another;
nonetheless, showing that the immediate or proximate cause of the damage or injury was a
fortuitous event would not exempt one from liability. When the effect is found to be partly the
result of a person's participation -- whether by active intervention, neglect or failure to act --
the whole occurrence is humanized and removed from the rules applicable to acts of God. 26
Petitioner Sicam had testified that there was a security guard in their pawnshop at the time of
the robbery. He likewise testified that when he started the pawnshop business in 1983, he
thought of opening a vault with the nearby bank for the purpose of safekeeping the valuables
but was discouraged by the Central Bank since pawned articles should only be stored in a
vault inside the pawnshop. The very measures which petitioners had allegedly adopted show
that to them the possibility of robbery was not only foreseeable, but actually foreseen and
anticipated. Petitioner Sicam’s testimony, in effect, contradicts petitioners’ defense of
fortuitous event.
Moreover, petitioners failed to show that they were free from any negligence by which the loss
of the pawned jewelry may have been occasioned.
Robbery per se, just like carnapping, is not a fortuitous event. It does not foreclose the
possibility of negligence on the part of herein petitioners. In Co v. Court of Appeals,27 the
Court held:
marcelo|torts and damages|full text
It is not a defense for a repair shop of motor vehicles to escape liability simply because the
damage or loss of a thing lawfully placed in its possession was due to carnapping.
Carnapping per se cannot be considered as a fortuitous event. The fact that a thing was
unlawfully and forcefully taken from another's rightful possession, as in cases of
carnapping, does not automatically give rise to a fortuitous event. To be considered as
such, carnapping entails more than the mere forceful taking of another's property. It
must be proved and established that the event was an act of God or was done solely by
third parties and that neither the claimant nor the person alleged to be negligent has
any participation. In accordance with the Rules of Evidence, the burden of proving that
the loss was due to a fortuitous event rests on him who invokes it — which in this case
is the private respondent. However, other than the police report of the alleged carnapping
incident, no other evidence was presented by private respondent to the effect that the incident
was not due to its fault. A police report of an alleged crime, to which only private respondent is
privy, does not suffice to establish the carnapping. Neither does it prove that there was no
fault on the part of private respondent notwithstanding the parties' agreement at the pre-trial
that the car was carnapped. Carnapping does not foreclose the possibility of fault or
negligence on the part of private respondent.28
Just like in Co, petitioners merely presented the police report of the Parañaque Police Station
on the robbery committed based on the report of petitioners' employees which is not sufficient
to establish robbery. Such report also does not prove that petitioners were not at fault.
On the contrary, by the very evidence of petitioners, the CA did not err in finding that
petitioners are guilty of concurrent or contributory negligence as provided in Article 1170 of
the Civil Code, to wit:
Art. 1170. 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. 29
Article 2123 of the Civil Code provides that with regard to pawnshops and other
establishments which are engaged in making loans secured by pledges, the special laws and
regulations concerning them shall be observed, and subsidiarily, the provisions on pledge,
mortgage and antichresis.
The provision on pledge, particularly Article 2099 of the Civil Code, provides that the creditor
shall take care of the thing pledged with the diligence of a good father of a family. This means
that petitioners must take care of the pawns the way a prudent person would as to his own
property.
In this connection, Article 1173 of the Civil Code further provides:
Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence
which is required by the nature of the obligation and corresponds with the circumstances of
the persons, of time and of the place. When negligence shows bad faith, the provisions of
Articles 1171 and 2201, paragraph 2 shall apply.
If the law or contract does not state the diligence which is to be observed in the performance,
that which is expected of a good father of a family shall be required.
Page 66
We expounded in Cruz v. Gangan30 that negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs, would do; or the doing of something which a prudent and reasonable man
would not do.31 It is want of care required by the circumstances.
A review of the records clearly shows that petitioners failed to exercise reasonable care and
caution that an ordinarily prudent person would have used in the same situation. Petitioners
were guilty of negligence in the operation of their pawnshop business. Petitioner Sicam
testified, thus:
Court:
Q. Do you have security guards in your pawnshop?
A. Yes, your honor.
Q. Then how come that the robbers were able to enter the premises when according to you
there was a security guard?
A. Sir, if these robbers can rob a bank, how much more a pawnshop.
Q. I am asking you how were the robbers able to enter despite the fact that there was a
security guard?
A. At the time of the incident which happened about 1:00 and 2:00 o'clock in the afternoon
and it happened on a Saturday and everything was quiet in the area BF Homes Parañaque
they pretended to pawn an article in the pawnshop, so one of my employees allowed him to
come in and it was only when it was announced that it was a hold up.
Q. Did you come to know how the vault was opened?
A. When the pawnshop is official (sic) open your honor the pawnshop is partly open. The
combination is off.
Q. No one open (sic) the vault for the robbers?
A. No one your honor it was open at the time of the robbery.
Q. It is clear now that at the time of the robbery the vault was open the reason why the
robbers were able to get all the items pawned to you inside the vault.
A. Yes sir.32
revealing that there were no security measures adopted by petitioners in the operation of the
pawnshop. Evidently, no sufficient precaution and vigilance were adopted by petitioners to
protect the pawnshop from unlawful intrusion. There was no clear showing that there was any
security guard at all. Or if there was one, that he had sufficient training in securing a
pawnshop. Further, there is no showing that the alleged security guard exercised all that was
marcelo|torts and damages|full text
necessary to prevent any untoward incident or to ensure that no suspicious individuals were
allowed to enter the premises. In fact, it is even doubtful that there was a security guard, since
it is quite impossible that he would not have noticed that the robbers were armed with caliber
.45 pistols each, which were allegedly poked at the employees.33 Significantly, the alleged
security guard was not presented at all to corroborate petitioner Sicam's claim; not one of
petitioners' employees who were present during the robbery incident testified in court.
Furthermore, petitioner Sicam's admission that the vault was open at the time of robbery is
clearly a proof of petitioners' failure to observe the care, precaution and vigilance that the
circumstances justly demanded. Petitioner Sicam testified that once the pawnshop was open,
the combination was already off. Considering petitioner Sicam's testimony that the robbery
took place on a Saturday afternoon and the area in BF Homes Parañaque at that time was
quiet, there was more reason for petitioners to have exercised reasonable foresight and
diligence in protecting the pawned jewelries. Instead of taking the precaution to protect them,
they let open the vault, providing no difficulty for the robbers to cart away the pawned articles.
We, however, do not agree with the CA when it found petitioners negligent for not taking steps
to insure themselves against loss of the pawned jewelries.
Under Section 17 of Central Bank Circular No. 374, Rules and Regulations for Pawnshops,
which took effect on July 13, 1973, and which was issued pursuant to Presidential Decree No.
114, Pawnshop Regulation Act, it is provided that pawns pledged must be insured, to wit:
Sec. 17. Insurance of Office Building and Pawns- The place of business of a pawnshop and
the pawns pledged to it must be insured against fire and against burglary as well as for the
latter(sic), by an insurance company accredited by the Insurance Commissioner.
However, this Section was subsequently amended by CB Circular No. 764 which took effect
on October 1, 1980, to wit:
Sec. 17 Insurance of Office Building and Pawns – The office building/premises and pawns of
a pawnshop must be insured against fire. (emphasis supplied).
where the requirement that insurance against burglary was deleted. Obviously, the Central
Bank considered it not feasible to require insurance of pawned articles against burglary.
The robbery in the pawnshop happened in 1987, and considering the above-quoted
amendment, there is no statutory duty imposed on petitioners to insure the pawned jewelry in
which case it was error for the CA to consider it as a factor in concluding that petitioners were
negligent.
Nevertheless, the preponderance of evidence shows that petitioners failed to exercise the
diligence required of them under the Civil Code.
The diligence with which the law requires the individual at all times to govern his conduct
varies with the nature of the situation in which he is placed and the importance of the act
which he is to perform.34 Thus, the cases of Austria v. Court of Appeals,35 Hernandez v.
Chairman, Commission on Audit36 and Cruz v. Gangan37 cited by petitioners in their
Page 67
pleadings, where the victims of robbery were exonerated from liability, find no application to
the present case.
In Austria, Maria Abad received from Guillermo Austria a pendant with diamonds to be sold on
commission basis, but which Abad failed to subsequently return because of a robbery
committed upon her in 1961. The incident became the subject of a criminal case filed against
several persons. Austria filed an action against Abad and her husband (Abads) for recovery of
the pendant or its value, but the Abads set up the defense that the robbery extinguished their
obligation. The RTC ruled in favor of Austria, as the Abads failed to prove robbery; or, if
committed, that Maria Abad was guilty of negligence. The CA, however, reversed the RTC
decision holding that the fact of robbery was duly established and declared the Abads not
responsible for the loss of the jewelry on account of a fortuitous event. We held that for the
Abads to be relieved from the civil liability of returning the pendant under Art. 1174 of the Civil
Code, it would only be sufficient that the unforeseen event, the robbery, took place without
any concurrent fault on the debtor’s part, and this can be done by preponderance of evidence;
that to be free from liability for reason of fortuitous event, the debtor must, in addition to the
casus itself, be free of any concurrent or contributory fault or negligence. 38
We found in Austria that under the circumstances prevailing at the time the Decision was
promulgated in 1971, the City of Manila and its suburbs had a high incidence of crimes
against persons and property that rendered travel after nightfall a matter to be sedulously
avoided without suitable precaution and protection; that the conduct of Maria Abad in
returning alone to her house in the evening carrying jewelry of considerable value would have
been negligence per se and would not exempt her from responsibility in the case of robbery.
However we did not hold Abad liable for negligence since, the robbery happened ten years
previously; i.e., 1961, when criminality had not reached the level of incidence obtaining in
1971.
In contrast, the robbery in this case took place in 1987 when robbery was already prevalent
and petitioners in fact had already foreseen it as they wanted to deposit the pawn with a
nearby bank for safekeeping. Moreover, unlike in Austria, where no negligence was
committed, we found petitioners negligent in securing their pawnshop as earlier discussed.
In Hernandez, Teodoro Hernandez was the OIC and special disbursing officer of the Ternate
Beach Project of the Philippine Tourism in Cavite. In the morning of July 1, 1983, a Friday, he
went to Manila to encash two checks covering the wages of the employees and the operating
expenses of the project. However for some reason, the processing of the check was delayed
and was completed at about 3 p.m. Nevertheless, he decided to encash the check because
the project employees would be waiting for their pay the following day; otherwise, the workers
would have to wait until July 5, the earliest time, when the main office would open. At that
time, he had two choices: (1) return to Ternate, Cavite that same afternoon and arrive early
evening; or (2) take the money with him to his house in Marilao, Bulacan, spend the night
there, and leave for Ternate the following day. He chose the second option, thinking it was the
safer one. Thus, a little past 3 p.m., he took a passenger jeep bound for Bulacan. While the
jeep was on Epifanio de los Santos Avenue, the jeep was held up and the money kept by
Hernandez was taken, and the robbers jumped out of the jeep and ran. Hernandez chased
the robbers and caught up with one robber who was subsequently charged with robbery and
marcelo|torts and damages|full text
pleaded guilty. The other robber who held the stolen money escaped. The Commission on
Audit found Hernandez negligent because he had not brought the cash proceeds of the
checks to his office in Ternate, Cavite for safekeeping, which is the normal procedure in the
handling of funds. We held that Hernandez was not negligent in deciding to encash the check
and bringing it home to Marilao, Bulacan instead of Ternate, Cavite due to the lateness of the
hour for the following reasons: (1) he was moved by unselfish motive for his co-employees to
collect their wages and salaries the following day, a Saturday, a non-working, because to
encash the check on July 5, the next working day after July 1, would have caused discomfort
to laborers who were dependent on their wages for sustenance; and (2) that choosing Marilao
as a safer destination, being nearer, and in view of the comparative hazards in the trips to the
two places, said decision seemed logical at that time. We further held that the fact that two
robbers attacked him in broad daylight in the jeep while it was on a busy highway and in the
presence of other passengers could not be said to be a result of his imprudence and
negligence.
Unlike in Hernandez where the robbery happened in a public utility, the robbery in this case
took place in the pawnshop which is under the control of petitioners. Petitioners had the
means to screen the persons who were allowed entrance to the premises and to protect itself
from unlawful intrusion. Petitioners had failed to exercise precautionary measures in ensuring
that the robbers were prevented from entering the pawnshop and for keeping the vault open
for the day, which paved the way for the robbers to easily cart away the pawned articles.
In Cruz, Dr. Filonila O. Cruz, Camanava District Director of Technological Education and
Skills Development Authority (TESDA), boarded the Light Rail Transit (LRT) from Sen. Puyat
Avenue to Monumento when her handbag was slashed and the contents were stolen by an
unidentified person. Among those stolen were her wallet and the government-issued cellular
phone. She then reported the incident to the police authorities; however, the thief was not
located, and the cellphone was not recovered. She also reported the loss to the Regional
Director of TESDA, and she requested that she be freed from accountability for the cellphone.
The Resident Auditor denied her request on the ground that she lacked the diligence required
in the custody of government property and was ordered to pay the purchase value in the total
amount of P4,238.00. The COA found no sufficient justification to grant the request for relief
from accountability. We reversed the ruling and found that riding the LRT cannot per se be
denounced as a negligent act more so because Cruz’s mode of transit was influenced by time
and money considerations; that she boarded the LRT to be able to arrive in Caloocan in time
for her 3 pm meeting; that any prudent and rational person under similar circumstance can
reasonably be expected to do the same; that possession of a cellphone should not hinder one
from boarding the LRT coach as Cruz did considering that whether she rode a jeep or bus,
the risk of theft would have also been present; that because of her relatively low position and
pay, she was not expected to have her own vehicle or to ride a taxicab; she did not have a
government assigned vehicle; that placing the cellphone in a bag away from covetous eyes
and holding on to that bag as she did is ordinarily sufficient care of a cellphone while traveling
on board the LRT; that the records did not show any specific act of negligence on her part and
negligence can never be presumed.
Unlike in the Cruz case, the robbery in this case happened in petitioners' pawnshop and they
were negligent in not exercising the precautions justly demanded of a pawnshop.
Page 68
WHEREFORE, except for the insurance aspect, the Decision of the Court of Appeals dated
March 31, 2003 and its Resolution dated August 8, 2003, are AFFIRMED.
Costs against petitioners.
FAR EASTERN SHIPPING COMPANY, petitioner, vs. COURT OF APPELAS and
PHILIPPINE PORTS AUTHORITY, respondents.
[G.R. No. 130150. October 1, 1998]
MANILA PILOTS ASSOCIATION, petitioner, vs. PHILIPPINE PORTS AUTHORITY and
FAR EASTERN SHIPPING COMPANY, respondents.
DECISION
REGALADO, J.:
These consolidated petitions for review on certiorari seek in unison to annul and set aside the
decision[1] of respondent Court of Appeals of November 15, 1996 and its resolution[2]dated
July 31, 1997 in CA-G.R. CV No. 24072, entitled Philippine Ports Authority, Plaintiff-
Appellee vs. Far Eastern Shipping Company, Senen C. Gavino and Manila Pilots
Association.Defendants-Appellants, which affirmed with modification the judgment of the trial
court holding the defendants-appellants therein solidarily liable for damages in favor of herein
private respondent.
There is no dispute about the facts as found by the appellate court, thus --
x x x On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, owned
and operated by the Far Eastern Shipping Company (FESC for brevitys sake), arrived at the
Port of Manila from Vancouver, British Columbia at about 7:00 oclock in the morning. The
vessel was assigned Berth 4 of the Manila International Port, as its berthing space. Captain
Roberto Abellana was tasked by the Philippine Port Authority to supervise the berthing of the
vessel. Appellant Senen Gavino was assigned by the appellant Manila Pilots Association
(MPA for brevitys sake) to conduct docking maneuvers for the safe berthing of the vessel to
Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge,
with the master of the vessel, Victor Kavankov, beside him. After a briefing of Gavino by
Kavankov of the particulars of the vessel and its cargo, the vessel lifted anchor from the
quarantine anchorage and proceeded to the Manila International Port. The sea was calm and
the wind was ideal for docking maneuvers.
When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half
mile from the pier, Gavino ordered the engine stopped. When the vessel was already about
2,000 feet from the pier, Gavino ordered the anchor dropped. Kavankov relayed the orders to
the crew of the vessel on the bow. The left anchor, with two (2) shackles were
dropped.However, the anchor did not take hold as expected. The speed of the vessel did not
slacken. A commotion ensued between the crew members. A brief conference ensued
marcelo|torts and damages|full text
between Kavankov and the crew members. When Gavino inquired what was all the
commotion about, Kavankov assured Gavino that there was nothing of it.
After Gavino noticed that the anchor did not take hold, he ordered the engines half-
astern. Abellana, who was then on the pier apron, noticed that the vessel was approaching
the pier fast. Kavankov likewise noticed that the anchor did not take hold. Gavino thereafter
gave the full-astern code. Before the right anchor and additional shackles could be dropped,
the bow of the vessel rammed into the apron of the pier causing considerable damage to the
pier. The vessel sustained damage too. (Exhibit 7-Far Eastern Shipping). Kavankov filed his
sea protest (Exhibit 1-Vessel). Gavino submitted his report to the Chief Pilot (Exhibit 1-Pilot)
who referred the report to the Philippine Ports Authority (Exhibit 2-Pilot) Abellana likewise
submitted his report of the incident (Exhibit B).
Per contract and supplemental contract of the Philippine Ports Authority and the contractor for
the rehabilitation of the damaged pier, the same cost the Philippine Ports Authority the
amount of P1,126,132.25 (Exhibits D and E).[3]
On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor
General, filed before the Regional Trial Court of Manila, Branch 39, a complaint for a sum of
money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the Manila Pilots
Association, docketed as Civil Case No. 83-14958,[4] praying that the defendants therein be
held jointly and severally liable to pay the plaintiff actual and exemplary damages plus costs
of suit. In a decision dated August 1, 1985, the trial court ordered the defendants therein
jointly and severally to pay the PPA the amount of P1,053,300.00 representing actual
damages and the cost of suit.[5]
The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the
pilot of a commercial vessel, under compulsory pilotage, solely liable for the damage caused
by the vessel to the pier, at the port of destination, for his negligence? And (2) Would the
owner of the vessel be liable likewise if the damage is caused by the concurrent negligence of
the master of vessel and the pilot under a compulsory pilotage?
As stated at the outset, respondent appellate court affirmed the findings of the court a
quo except that it found no employer-employee relationship existing between herein private
respondents Manila Pilots Association (MPA, for short) and Capt. Gavino.[6] This being so, it
ruled instead that the liability of MPA is anchored, not on Article 2180 of the Civil Code, but on
the provisions of Customs Administrative Order No. 15-65,[7] and accordingly modified said
decision of the trial court by holding MPA, along with its co-defendants therein, still solidarily
liable to PPA but entitled MPA to reimbursement from Capt. Gavino for such amount of the
adjudged pecuniary liability in excess of the amount equivalent to seventy-five percent (75%)
of its prescribed reserve fund.[8]
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the
Court of Appeals and both of them elevated their respective plaints to us via separate
petitions for review on certiorari.
In G.R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed
that the Court of Appeals seriously erred:
Page 69
1. in not holding Senen C. Gavino and the Manila Pilots Association as the parties solely
responsible for the resulting damages sustained by the pier deliberately ignoring the
established jurisprudence on the matter.
2. in holding that the master had not exercised the required diligence demanded from him by
the circumstances at the time the incident happened;
3. in affirming the amount of damages sustained by the respondent Philippine Ports Authority
despite a strong and convincing evidence that the amount is clearly exorbitant and
unreasonable;
4. in not awarding any amount of counterclaim prayed for by the petitioner in its answer; and
5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila Pilots'
Association in the event that it be held liable.[9]
Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of
the incident, it was a compulsory pilot, Capt. Gavino, who was in command and had complete
control in the navigation and docking of the vessel. It is the pilot who supersedes the master
for the time being in the command and navigation of a ship and his orders must be obeyed in
all respects connected with her navigation. Consequently, he was solely responsible for the
damage caused upon the pier apron, and not the owners of the vessel. It claims that the
master of the boat did not commit any act of negligence when he failed to countermand or
overrule the orders of the pilot because he did not see any justifiable reason to do so.In other
words, the master cannot be faulted for relying absolutely on the competence of the
compulsory pilot. If the master does not observe that a compulsory pilot is incompetent or
physically incapacitated, the master is justified in relying on the pilot.[10]
Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent
court on the solidary liability of FESC, MPA and Capt. Gavino, stresses the concurrent
negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov,* shipmaster of MV
Pavlodar, as the basis of their solidary liability for damages sustained by PPA. It posits that
the vessel was being piloted by Capt. Gavino with Capt. Kabankov beside him all the while on
the bridge of the vessel, as the former took over the helm of MV Pavlodar when it rammed
and damaged the apron of the pier of Berth No. 4 of the Manila International Port. Their
concurrent negligence was the immediate and proximate cause of the collision between the
vessel and the pier - Capt. Gavino, for his negligence in the conduct of docking maneuvers for
the safe berthing of the vessel; and Capt. Kabankov, for failing to countermand the orders of
the harbor pilot and to take over and steer the vessel himself in the face of imminent danger,
as well as for merely relying on Capt. Gavino during the berthing procedure. [11]
On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and
later transferred to the Third Division, MPA, now as petitioner in this case, avers the
respondent court's errors consisted in disregarding and misinterpreting Customs
Administrative Order No. 15-65 which limits the liability of MPA. Said pilots' association
asseverates that it should not be held solidarily liable with Capt. Gavino who, as held by
respondent court, is only a member, not an employee, thereof. There being no employer-
employee relationship, neither can MPA be held liable for any vicarious liability for the
marcelo|torts and damages|full text
respective exercise of profession by its members nor be considered a joint tortfeasor as to be
held jointly and severally liable.[12] It further argues that there was erroneous reliance on
Customs Administrative Order No. 15-65 and the constitution and by-laws of MPA, instead of
the provisions of the Civil Code on damages which, being a substantive law, is higher in
category than the aforesaid constitution and by-laws of a professional organization or an
administrative order which bears no provision classifying the nature of the liability of MPA for
the negligence its member pilots.[13]
As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage
services since July 28, 1994 and has ceased to be a member of petitioner pilots'
association. He is not joined as a petitioner in this case since his whereabouts are
unknown.[14]
FESC's comment thereto relied on the competence of the Court of Appeals in construing
provisions of law or administrative orders as basis for ascertaining the liability of MPA, and
expressed full accord with the appellate court's holding of solidary liability among itself, MPA
and Capt. Gavino. It further avers that the disputed provisions of Customs Administrative
Order No. 15-65 clearly established MPA's solidary liability.[15]
On the other hand, public respondent PPA, likewise through representations by the Solicitor
General, assumes the same supportive stance it took in G.R. No. 130068 in declaring its total
accord with the ruling of the Court of Appeals that MPA is solidarily liable with Capt. Gavino
and FESC for damages, and in its application to the fullest extent of the provisions of
Customs Administrative Order No. 15-65 in relation to MPA's constitution and by-laws which
spell out the conditions of and govern their respective liabilities. These provisions are clear
and ambiguous as regards MPA's liability without need for interpretation or
construction. Although Customs Administrative Order No. 15-65 is a mere regulation issued
by an administrative agency pursuant to delegated legislative authority to fix details to
implement the law, it is legally binding and has the same statutory force as any valid
statute.[16]
Upon motion[17] by FESC dated April 24, 1998 in G.R. No. 130150, said case was
consolidated with G.R. No. 130068.[18]
Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that
the conduct of the respective counsel for FESC and PPA leaves much to be desired, to the
displeasure and disappointment of this Court.
Section 2, Rule 42 of the 1997 Rules of Civil Procedure[19] incorporates the former Circular
No. 28-91 which provided for what has come to be known as the certification against forum
shopping as an additional requisite for petitions filed with the Supreme Court and the Court of
Appeals, aside from the other requirements contained in pertinent provisions of the Rules of
Court therefor, with the end in view of preventing the filing of multiple complaints involving the
same issues in the Supreme Court, Court of Appeals or different divisions thereof or any other
tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42 provides:
Page 70
xxxxxxxxx
The petitioner shall also submit together with the petition a certification under oath that he has
not therefore commenced any other action involving the same issues in the Supreme Court,
the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is
such other action or proceeding, he must state the status of the same; and if he should
thereafter learn that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom. (Italics supplied.)
For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically
requires that such petition shall contain a sworn certification against forum shopping as
provided in the last paragraph of Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty.
Herbert A. Tria, is the counsel of record for FESC in both G.R. No. 130068 and G.R. No.
130150.
G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing
by FESC through counsel on August 22, 1997 of a verified motion for extension of time to file
its petition for thirty (30) days from August 28, 1997 or until September 27, 1997.[20] Said
motion contained the following certification against forum shopping[21] signed by Atty. Herbert
A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other action or proceeding involving
the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency;
that to the best of my own knowledge, no such action or proceeding is pending in the
Supreme Court, the Court of Appeals, or any other tribunal or agency; that if I/we should
thereafter learn that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or any other tribunal or agency, I/we undertake to
report that fact within five (5) days therefrom to this Honorable Court.
This motion having been granted, FESC subsequently filed its petition on September 26,
1997, this time bearing a "verification and certification against forum-shopping" executed by
one Teodoro P. Lopez on September 24, 1997,[22] to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation to Section 2, Rule 42 of the Revised Rules
of Civil Procedure
marcelo|torts and damages|full text
I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state:
1. That I am the Manager, Claims Department of Filsov Shipping Company, the local agent of
petitioner in this case.
2. That I have caused the preparation of this Petition for Review on Certiorari.
3. That I have read the same and the allegations therein contained are true and correct based
on the records of this case.
4. That I certify that petitioner has not commenced any other action or proceeding involving
the same issues in the Supreme Court or Court of Appeals, or any other tribunal or
agency, that to the best of my own knowledge, no such action or proceeding is pending in the
Supreme Court, the Court of Appeals or any other tribunal or agency, that I should thereafter
learn that a similar action or proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals, or any other tribunal or agency, I undertake to report the fact
within five (5) days therefrom to this Honorable Court. (Italics supplied for emphasis.)
Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending
with the Third Division was duly filed on August 29, 1997 with a copy thereof furnished on the
same date by registered mail to counsel for FESC.[23] Counsel of record for MPA, Atty. Jesus
P. Amparo, in his verification accompanying said petition dutifully revealed to the Court that--
xxxxxxxxx
3. Petitioner has not commenced any other action or proceeding involving the same issues in
his Honorable Court, the Court of Appeals or different Divisions thereof, or any other tribunal
or agency, but to the best of his knowledge, there is an action or proceeding pending in this
Honorable Court, entitled Far Eastern Shipping Co., Petitioner, vs. Philippine Ports Authority
and Court of Appeals with a Motion for Extension of time to file Petition for Review by
Certiorari filed sometime on August 18, 1997. If undersigned counsel will come to know of any
other pending action or claim filed or pending he undertakes to report such fact within five (5)
days to this Honorable Court.[24] (Italics supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29,
1997 and taking judicial notice of the average period of time it takes local mail to reach its
destination, by reasonable estimation it would be fair to conclude that when FESC filed its
petition in G.R. No. 130068 on September 26, 1997, it would already have received a copy of
the former and would then have knowledge of the pendency of the other petition initially filed
with the First Division. It was therefore incumbent upon FESC to inform the Court of that fact
through its certification against forum shopping. For failure to make such disclosure, it would
appear that the aforequoted certification accompanying the petition in G.R. No. 130068 is
defective and could have been a ground for dismissal thereof.
Even assuming that FESC has not yet received its copy of MPA's petition at the time it filed its
own petition and executed said certification, its signatory did state "that if I should thereafter
learn that a similar action or proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals or any other tribunal or agency, I undertake to report the fact
Page 71
within five (5) days therefrom in this Honorable Court."[25] Scouring the records page by page
in this case, we find that no manifestation concordant with such undertaking was then or at
any other time thereafter ever filed by FESC nor was there any attempt to bring such matter to
the attention of the Court. Moreover, it cannot feign non-knowledge of the existence of such
other petition because FESC itself filed the motion for consolidation in G.R. No. 130150 of
these two cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario,
displays an unprofessional tendency of taking the Rules for granted, in this instance
exemplified by its pro forma compliance therewith but apparently without full comprehension
of and with less than faithful commitment to its undertakings to this Court in the interest of
just, speedy and orderly administration of court proceedings.
As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the
court.[26] He is an officer of the court exercising a privilege which is indispensable in the
administration of justice.[27] Candidness, especially towards the courts, is essential for the
expeditious administration of justice. Courts are entitled to expect only complete honesty from
lawyers appearing and pleading before them.[28] Candor in all dealings is the very essence of
honorable membership in the legal profession.[29] More specifically, a lawyer is obliged to
observe the rules of procedure and not to misuse them to defeat the ends of justice.[30] It
behooves a lawyer, therefore, to exert every effort and consider it his duty to assist in the
speedy and efficient administration of justice.[31] Being an officer of the court, a lawyer has a
responsibility in the proper administration of justice. Like the court itself, he is an instrument to
advance its ends -- the speedy, efficient, impartial, correct and inexpensive adjudication of
cases and the prompt satisfaction of final judgments. A lawyer should not only help attain
these objectives but should likewise avoid any unethical or improper practices that impede,
obstruct or prevent their realization, charged as he is with the primary task of assisting in the
speedy and efficient administration of justice.[32]
Sad to say, the members of said law firm sorely failed to observe their duties as responsible
members of the Bar. Their actuations are indicative of their predisposition to take lightly the
avowed duties of officers of the Court to promote respect for law and for legal
processes.[33] We cannot allow this state of things to pass judicial muster.
In view of the fact that at around the time these petitions were commenced, the 1997 Rules of
Civil Procedure had just taken effect, the Court treated infractions of the new Rules then with
relative liberality in evaluating full compliance therewith. Nevertheless, it would do well to
remind all concerned that the penal provisions of Circular No. 28-91 which remain operative
provides, inter alia:
3. Penalties.-
xxxxxxxxx
(c) The submission of a false certification under Par. 2 of the Circular shall likewise constitute
contempt of court, without prejudice to the filing of criminal action against the guilty party.The
lawyer may also be subjected to disciplinary proceedings.
marcelo|torts and damages|full text
It must be stressed that the certification against forum shopping ordained under the Rules is
to be executed by the petitioner, and not by counsel. Obviously it is the petitioner, and not
always the counsel whose professional services have been retained for a particular case, who
is in the best position to know whether he or it actually filed or caused the filing of a petition in
that case. Hence, a certification against forum shopping by counsel is a defective
certification. It is clearly equivalent to non-compliance with the requirement under Section 2,
Rule 42 in relation to Section 4, Rule 45, and constitutes a valid cause for dismissal of the
petition.
Hence, the initial certification appended to the motion for extension of time to file petition n
G.R. No. 130068 executed in behalf of FESC by Atty. Tria is procedurally deficient. But
considering that it was a superfluity at that stage of the proceeding, it being unnecessary to
file such a certification with a mere motion for extension, we shall disregard such error.
Besides, the certification subsequently executed by Teodoro P. Lopez in behalf of FESC
cures that defect to a certain extent, despite the inaccuracies earlier pointed out. In the same
vein, we shall consider the verification signed in behalf of MPA by its counsel, Atty. Amparo,
in G.R. No. 130150 as substantial compliance inasmuch as it served the purpose of the Rules
of informing the Court of the pendency of another action or proceeding involving the same
issues.
It bears stressing that procedural rules are instruments in the speedy and efficient
administration of justice. They should be used to achieve such end and not to derail it.[34]
Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor
General at the time, the same legal team of the Office of the Solicitor General (OSG, for short)
composed of Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon,
with the addition of Assistant Solicitor General Pio C. Guerrero very much later in the
proceedings, represented PPA throughout the appellate proceedings in both G.R. No. 130068
and G.R. No. 130150 and was presumably fully acquainted with the facts and issues of the
case, it took the OSG an inordinately and almost unreasonably long period of time to file its
comment, thus unduly delaying the resolution of these cases. It took several changes of
leadership in the OSG -- from Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo
P. Galvez -- before the comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning
that no further extensions shall be granted, and personal service on the Solicitor General
himself of the resolution requiring the filing of such comment before the OSG indulged the
Court with the long required comment on July 10, 1998.[35] This, despite the fact that said
office was required to file its comment way back on November 12, 1997. [36] A closer scrutiny
of the records likewise indicates that petitioner FESC was not even furnished a copy of said
comment as required by Section 5, Rule 42. Instead, a copy thereof was inadvertently
furnished to MPA which, from the point of view of G.R. No. 130068, was a non-party.[37] The
OSG fared slightly better in G.R. No. 130150 in that it took only six (6) extensions, or a total of
180 days, before the comment was finally filed.[38] And while it properly furnished petitioner
MPA with a copy of its comment, it would have been more desirable and expedient in this
case to have furnished its therein co-respondent FESC with a copy thereof, if only as a matter
of professional courtesy.[39]
Page 72
This undeniably dilatory disinclination of the OSG to seasonably file required pleadings
constitutes deplorable disservice to the tax-paying public and can only be categorized as
censurable inefficiency on the part of the government law office. This is most certainly
professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take the initiative of filing a motion
for consolidation in either G.R. No. 130068 or G.R. No. 130150, considering its familiarity with
the background of the case and if only to make its job easier by having to prepare and file
only one comment. It could not have been unaware of the pendency of one or the other
petition because, being counsel for respondent in both cases, petitioner is required to furnish
it with a copy of the petition under pain of dismissal of the petition for failure otherwise. [40]
Besides, in G.R. 130068, it prefaces its discussions thus --
Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants in the
case before the respondent Court of Appeals, has taken a separate appeal from the said
decision to this Honorable Court, which was docketed as G.R. No. 130150 and entitled
"Manila Pilots' Association, Petitioner, versus Philippine Ports Authority and Far Eastern
Shipping Co., Respondents.[41]
Similarly, in G.R. No. 130150, it states -
Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal from the
said decision to this Honorable Court, docketed as G.R. No. 130068, entitled "Far Eastern
Shipping Co. vs. Court of Appeals and Philippine Ports Authority."[42]
We find here a lackadaisical attitude and complacency on the part of the OSG in the handling
of its cases and an almost reflexive propensity to move for countless extensions, as if to test
the patience of the Court, before favoring it with the timely submission of required pleadings.
It must be emphasized that the Court can resolve cases only as fast as the respective parties
in a case file the necessary pleadings. The OSG, be needlessly extending the pendency of
these cases through its numerous motions for extension, came very close to exhausting this
Court's forbearance and has regrettably fallen short of its duties as the People's Tribune.
The OSG is reminded that just like other members of the Bar, the canons under the Code of
Professional Responsibility apply with equal force on lawyers in government service in the
discharge of their official tasks.[43] These ethical duties are rendered even more exacting as to
them because, as government counsel, they have the added duty to abide by the policy of the
State to promote a high standard of ethics in public service.[44] Furthermore, it is incumbent
upon the OSG, as part of the government bureaucracy, to perform and discharge its duties
with the highest degree of professionalism, intelligence and skill[45] and to extend prompt,
courteous and adequate service to the public.[46]
Now, on the merits of the case. After a judicious examination of the records of this case, the
pleadings filed, and the evidence presented by the parties in the two petitions, we find no
cogent reason to reverse and set aside the questioned decision. While not entirely a case of
first impression, we shall discuss the issues seriatim and, correlatively by way of a judicial
marcelo|torts and damages|full text
once-over, inasmuch as the matters raised in both petitions beg for validation and updating of
well worn maritime jurisprudence. Thereby, we shall write finis to the endless finger-pointing in
this shipping mishap which has been stretched beyond the limits of judicial tolerance.
The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage
pursuant to Section 8, Article III of Philippine Ports Authority Administrative Order No. 03-
85,[47] which provides that:
SEC. 8. Compulsory Pilotage Service.- For entering a harbor and anchoring thereat, or
passing through rivers or straits within a pilotage district, as well as docking and undocking at
any pier/wharf, or shifting from one berth or another, every vessel engaged in coastwise and
foreign trade shall be under compulsory pilotage. x x x
In case of compulsory pilotage, the respective duties and responsibilities of the compulsory
pilot and the master have been specified by the same regulation in this wise:
SEC. 11. Control of vessels and liability for damage. - On compulsory pilotage grounds, the
Harbor Pilot, providing the service to a vessel shall be responsible for the damage caused to
a vessel or to life and property at ports due to his negligence or fault. He can only be absolved
from liability if the accident is caused by force majeure or natural calamities provided he has
exercised prudence and extra diligence to prevent or minimize damage.
The Master shall retain overall command of the vessel even on pilotage grounds whereby he
can countermand or overrule the order or command of the Harbor Pilot on board. In such
event, any damage caused to a vessel or to life and property at ports by reason of the fault or
negligence of the Master shall be the responsibility and liability of the registered owner of the
vessel concerned without prejudice to recourse against said Master.
Such liability of the owner or Master of the vessel or its pilots shall be determined by
competent authority in appropriate proceedings in the light of the facts and circumstances of
each particular case.
SEC. 32. Duties and responsibilities of the Pilot or Pilots' Association. - The duties and
responsibilities of the Harbor Pilot shall be as follows:
xxxxxxxxx
f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his
work as a pilot thereof until he leaves it anchored or berthed safely; Provided, however, that
his responsibility shall cease at the moment the Master neglects or refuses to carry out his
order.
Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in
Chapter I thereof for the responsibilities of pilots:
Par. XXXIX. - A Pilot shall be held responsible for the direction of a vessel from the time he
assumes control thereof until he leaves it anchored free from shoal; Provided, That his
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responsibility shall cease at the moment the master neglects or refuses to carry out his
instructions.
xxxxxxxxx
Par. XLIV. - Pilots shall properly and safely secure or anchor vessels under their control when
requested to do so by the master of such vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt.
Gavino solely responsible for the damages caused to the pier. It avers that since the vessel
was under compulsory pilotage at the time with Capt. Gavino in command and having
exclusive control of the vessel during the docking maneuvers, then the latter should be
responsible for damages caused to the pier.[48] It likewise holds the appellate court in error for
holding that the master of the ship, Capt. Kabankov, did not exercise the required diligence
demanded by the circumstances.[49]
We start our discussion of the successive issues bearing in mind the evidentiary rule in
American jurisprudence that there is a presumption of fault against a moving vessel that
strikes a stationary object such as a dock or navigational aid. In admiralty, this presumption
does more than merely require the ship to go forward and produce some evidence on the
presumptive matter. The moving vessel must show that it was without fault or that the collision
was occasioned by the fault of the stationary object or was the result of inevitable accident.It
has been held that such vessel must exhaust every reasonable possibility which the
circumstances admit and show that in each, they did all that reasonable care required.[50] In
the absence of sufficient proof in rebuttal, the presumption of fault attaches to a moving
vessel which collides with a fixed object and makes a prima facie case of fault against the
vessel.[51]Logic and experience support this presumption:
The common sense behind the rule makes the burden a heavy one. Such accidents simply do
not occur in the ordinary course of things unless the vessel has been mismanaged in some
way. It is not sufficient for the respondent to produce witnesses who testify that as soon as the
danger became apparent everything possible was done to avoid an accident. The question
remains, How then did the collision occur? The answer must be either that, in spite of the
testimony of the witnesses, what was done was too little or too late or, if not, then the vessel
was at fault for being in a position in which an unavoidable collision would occur. [52]
The task, therefore, in these cases is to pinpoint who was negligent - the master of the ship,
the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out
of ports, or in certain waters. In a broad sense, the term "pilot" includes both (1) those whose
duty it is to guide vessels into or out of ports, or in particular waters and (2) those entrusted
with the navigation of vessels on the high seas.[53] However, the term "pilot" is more generally
understood as a person taken on board at a particular place for the purpose of conducting a
ship through a river, road or channel, or from a port.[54]
marcelo|torts and damages|full text
Under English and American authorities, generally speaking, the pilot supersedes the master
for the time being in the command and navigation of the ship, and his orders must be obeyed
in all matters connected with her navigation. He becomes the master pro hac vice and should
give all directions as to speed, course, stopping and reversing, anchoring, towing and the
like. And when a licensed pilot is employed in a place where pilotage is compulsory, it is his
duty to insist on having effective control of the vessel, or to decline to act as pilot.Under
certain systems of foreign law, the pilot does not take entire charge of the vessel, but is
deemed merely the adviser of the master, who retains command and control of the navigation
even on localities where pilotage is compulsory.[55]
It is quite common for states and localities to provide for compulsory pilotage, and safety laws
have been enacted requiring vessels approaching their ports, with certain exceptions, to take
on board pilots duly licensed under local law. The purpose of these laws is to create a body of
seamen thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart, and
thus protect life and property from the dangers of navigation.[56]
In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65
prescribes the rules of compulsory pilotage in the covered pilotage districts, among which is
the Manila Pilotage District, viz. --
PARAGRAPH I. - Pilotage for entering a harbor and anchoring thereat, as well as docking and
undocking in any pier or shifting from one berth to another shall be compulsory, except
Government vessels and vessels of foreign governments entitled to courtesy, and other
vessels engaged solely in river or harbor work, or in a daily ferry service between ports which
shall be exempt from compulsory pilotage provisions of these regulations: provided, however,
that compulsory pilotage shall not apply in pilotage districts whose optional pilotage is allowed
under these regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila
International Port. Upon assuming such office as compulsory pilot, Capt. Gavino is held to the
universally accepted high standards of care and diligence required of a pilot, whereby he
assumes to have skill and knowledge in respect to navigation in the particular waters over
which his license extends superior to and more to be trusted than that of the master.[57] A pilot
should have a thorough knowledge of general and local regulations and physical conditions
affecting the vessel in his charge and the waters for which he is licensed, such as a particular
harbor or river. He is not held to the highest possible degree of skill and care, but must have
and exercise the ordinary skill and care demanded by the circumstances, and usually shown
by an expert in his profession. Under extraordinary circumstances, a pilot must exercise
extraordinary care.[58]
In Atlee vs. The Northwestern Union Packet Company,[59] Mr. Justice Miller spelled out in
great detail the duties of a pilot:
x x x (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge
of the topography through which he steers his vessel. In the long course of a thousand miles
in one of these rivers, he must be familiar with the appearance of the shore on each side of
the river as he goes along. Its banks, towns, its landings, its houses and trees, are all
landmarks by which he steers his vessel. The compass is of little use to him. He must know
Page 74
where the navigable channel is, in its relation to all these external objects, especially in the
night. He must also be familiar with all dangers that are permanently located in the course of
the river, as sand-bars, snags, sunken rocks or trees or abandoned vessels or barges. All this
he must know and remember and avoid. To do this, he must be constantly informed of the
changes in the current of the river, of the sand-bars newly made, of logs or snags, or other
objects newly presented, against which his vessel might be injured.
xxxxxxxxx
It may be said that this is exacting a very high order of ability in a pilot. But when we consider
the value of the lives and property committed to their control, for in this they are absolute
masters, the high compensation they receive, the care which Congress has taken to secure
by rigid and frequent examinations and renewal of licenses, this very class of skill, we do not
think we fix the standard too high.
Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to
such strict standard of care and diligence required of pilots in the performance of their
duties. Witness this testimony of Capt. Gavino:
Court:
You have testified before that the reason why the vessel bumped the pier was because the
anchor was not released immediately or as soon as you have given the order. Do you
remember having stated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to understand that is that anchor was released
immediately at the time you gave the order, the incident would not have happened. Is that
correct?
A Yes, sir, but actually it was only a presumption on my part because there was a commotion
between the officers who are in charge of the dropping of the anchor and the captain. I could
not understand their language, it was in Russian, so I presumed the anchor was not dropped
on time.
Q So, you are not sure whether it was really dropped on time or not?
A I am not sure, your Honor.
xxxxxxxxx
Q You are not even sure what could have caused the incident. What factor could have caused
the incident?
marcelo|torts and damages|full text
A Well, in this case now, because either the anchor was not dropped on time or the anchor
did not hold, that was the cause of the incident, your Honor.[60]
It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for
the possibly injurious consequences his commands as pilot may have. Prudence required that
he, as pilot, should have made sure that his directions were promptly and strictly followed. As
correctly noted by the trial court -
Moreover, assuming that he did indeed give the command to drop the anchor on time, as pilot
he should have seen to it that the order was carried out, and he could have done this in a
number of ways, one of which was to inspect the bow of the vessel where the anchor
mechanism was installed. Of course, Captain Gavino makes reference to a commotion
among the crew members which supposedly caused the delay in the execution of the
command. This account was reflected in the pilot's report prepared four hours later, but Capt.
Kavankov, while not admitting whether or not such a commotion occurred, maintained that the
command to drop anchor was followed "immediately and precisely." Hence, the Court cannot
give much weight or consideration to this portion of Gavino's testimony." [61]
An act may be negligent if it is done without the competence that a reasonable person in the
position of the actor would recognize as necessary to prevent it from creating an
unreasonable risk of harm to another.[62] Those who undertake any work calling for special
skills are required not only to exercise reasonable care in what they do but also possess a
standard minimum of special knowledge and ability.[63]
Every man who offers his services to another, and is employed, assumes to exercise in the
employment such skills he possesses, with a reasonable degree of diligence. In all these
employments where peculiar skill is requisite, if one offers his services he is understood as
holding himself out to the public as possessing the degree of skill commonly possessed by
others in the same employment, and if his pretensions are unfounded he commits a species
of fraud on every man who employs him in reliance on his public profession.[64]
Furthermore, there is an obligation on all persons to take the care which, under ordinary
circumstances of the case, a reasonable and prudent man would take, and the omission of
that care constitutes negligence.[65] Generally, the degree of care required is graduated
according to the danger a person or property attendant upon the activity which the actor
pursues or the instrumentality which he uses. The greater the danger the greater the degree
of care required. What is ordinary under extraordinary of conditions is dictated by those
conditions; extraordinary risk demands extraordinary care. Similarly, the more imminent the
danger, the higher the degree of care.[66]
We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt.
Gavino was indeed negligent in the performance of his duties:
xxxxxxxxx
x x x As can be gleaned from the logbook, Gavino ordered the left anchor and two (2)
shackles dropped at 8:30 o'clock in the morning. He ordered the engines of the vessel
stopped at 8:31 o'clock. By then, Gavino must have realized that the anchor did not hit a hard
Page 75
object and was not clawed so as to reduce the momentum of the vessel. In point of fact, the
vessel continued travelling towards the pier at the same speed. Gavino failed to react. At 8:32
o'clock, the two (2) tugboats began to push the stern part of the vessel from the port side but
the momentum of the vessel was not contained. Still, Gavino did not react. He did not even
order the other anchor and two (2) more shackles dropped to arrest the momentum of the
vessel. Neither did he order full-astern. It was only at 8:34 o'clock, or four (4) minutes, after
the anchor was dropped that Gavino reacted. But his reaction was even (haphazard) because
instead of arresting fully the momentum of the vessel with the help of the tugboats, Gavino
ordered merely "half-astern". It took Gavino another minute to order a "full-astern". By then, it
was too late. The vessel's momentum could no longer be arrested and, barely a minute
thereafter, the bow of the vessel hit the apron of the pier. Patently, Gavino miscalculated. He
failed to react and undertake adequate measures to arrest fully the momentum of the vessel
after the anchor failed to claw to the seabed. When he reacted, the same was even
(haphazard). Gavino failed to reckon the bulk of the vessel, its size and its cargo. He
erroneously believed that only one (1) anchor would suffice and even when the anchor failed
to claw into the seabed or against a hard object in the seabed, Gavino failed to order the other
anchor dropped immediately. His claim that the anchor was dropped when the vessel was
only 1,000 feet from the pier is but a belated attempt to extricate himself from the quagmire of
his own insouciance and negligence. In sum, then, Appellants' claim that the incident was
caused by "force majeure" is barren of factual basis.
xxxxxxxxx
The harbor pilots are especially trained for this job. In the Philippines, one may not be a
harbor pilot unless he passed the required examination and training conducted then by the
Bureau of Custom, under Customs Administrative Order No. 15-65, now under the Philippine
Ports Authority under PPA Administrative Order 63-85. Paragraph XXXIX of the Customs
Administrative Order No. 15-65 provides that "the pilot shall be held responsible for the
direction of the vessel from the time he assumes control thereof, until he leaves it anchored
free from shoal: Provided, that his responsibility shall cease at the moment the master
neglects or refuse(s) to carry out his instructions." The overall direction regarding the
procedure for docking and undocking the vessel emanates from the harbor pilot. In the
present recourse, Gavino failed to live up to his responsibilities and exercise reasonable care
or that degree of care required by the exigencies of the occasion. Failure on his part to
exercise the degree of care demanded by the circumstances is negligence (Reese versus
Philadelphia & RR Co. 239 US 463, 60 L ed. 384, 57 Am Jur. 2d 12age 418).[67]
This affirms the findings of the trial court regarding Capt. Gavino's negligence:
This discussion should not however, divert the court from the fact that negligence in
manuevering the vessel must be attributed to Capt. Senen Gavino. He was an experienced
pilot and by this time should have long familiarized himself with the depth of the port and the
distance he could keep between the vessel and port in order to berth safely. [68]
The negligence on the part of Capt. Gavino is evident; but Capt. Kabankov is no less
responsible for the allision. His unconcerned lethargy as master of the ship in the face of
troublous exigence constitutes negligence.
marcelo|torts and damages|full text
While it is indubitable that in exercising his functions a pilot-is in sole command of the
ship[69] and supersedes the master for the time being in the command and navigation of a ship
and that he becomes master pro hac vice of a vessel piloted by him,[70] there is overwhelming
authority to the effect that the master does not surrender his vessel to the pilot and the pilot is
not the master. The master is still in command of the vessel notwithstanding the presence of a
pilot. There are occasions when the master may and should interfere and even displace the
pilot, as when the pilot is obviously incompetent or intoxicated and the circumstances may
require the master to displace a compulsory pilot because of incompetency or physical
incapacity. If, however, the master does not observe that a compulsory pilot is incompetent or
physically incapacitated, the master is justified in relying on the pilot, but not blindly. [71]
The master is not wholly absolved from his duties while a pilot is on board his vessel, and
may advise with or offer suggestions to him. He is still in command of the vessel, except so
far as her navigation is concerned, and must cause the ordinary work of the vessel to be
properly carried on and the usual precaution taken. Thus, in particular, he is bound to see that
there is sufficient watch on deck, and that the men are attentive to their duties, also that
engines are stopped, towlines cast off, and the anchors clear and ready to go at the pilot's
order.[72]
A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the
discharge of his duties as master of the ship, leaving the entire docking procedure up to the
pilot, instead of maintaining watchful vigilance over this risky maneuver:
Q Will you please tell us whether you have the right to intervene in docking of your ship in the
harbor?
A No sir, I have no right to intervene in time of docking, only in case there is imminent danger
to the vessel and to the pier.
Q Did you ever intervene during the time that your ship was being docked by Capt. Gavino?
A No sir, I did not intervene at the time when the pilot was docking my ship.
Q Up to the time it was actually docked at the pier, is that correct'?
A No sir, I did not intervene up to the very moment when the vessel was docked.
xxxxxxxxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there anything unusual that happened during
the docking?
A Yes sir, our ship touched the pier and the pier was damaged.
Court (to the witness)
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Q When you said touched the pier, are you leading the court to understand that your ship
bumped the pier?
A I believe that my vessel only touched the pier but the impact was very weak.
Q Do you know whether the pier was damaged as a result of that slight or weak impact?
A Yes sir, after the pier was damaged.
xxxxxxxxx
Q Being most concerned with the safety of your vessel, in the maneuvering of your vessel, to
the port, did you observe anything irregular in the maneuvering by Capt. Gavino at the time he
was trying to cause the vessel to be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety maneuver of the ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the court to understand that there was nothing
irregular in the docking of the ship?
A Yes sir, during the initial period, of the docking, there was nothing unusual that happened.
Q What about in the last portion of the docking of the ship, was there anything unusual or
abnormal that happened?
A None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold
the vessel.
Q You want us to understand, Mr. Witness, that the dropping of the anchor of the vessel was
not timely?
A I don't know the depth of this port but I think, if the anchor was dropped earlier and with
more shackles, there could not have been an incident.
Q So you could not precisely tell the court that the dropping of the anchor was timely because
you are not well aware of the seabed, is that correct?
A Yes sir, that, is right.
xxxxxxxxx
marcelo|torts and damages|full text
Q Alright, Capt. Kavankov, did you come to know later whether the anchor held its ground so
much so that the vessel could not travel?
A It is difficult for me to say definitely. I believe that the anchor did not hold the ship.
Q You mean you don't know whether the anchor blades stuck to the ground to stop the ship
from further moving?
A Yes sir, it is possible.
Q What is possible?
A I think, the 2 shackles were not enough to hold the vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold the ship, did you not make any
protest to the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent whether the 2 shackles were also dropped
to hold the ship?
A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be an
experienced pilot and he should be more aware as to the depths of the harbor and the ground
and I was confident in his actions.
xxxxxxxxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the bridge of the vessel before the incident
happened, were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from that point of view?
A That is right.
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Q Whatever the pilot can read from the panel of the bridge, you also could read, is that Q You want us to understand that you did not see an imminent danger to your ship, is that
correct? what you mean?

A What is the meaning of panel'? A Yes sir, up to the very last moment, I believed that there was no imminent danger.

Q All indications necessary for men on the bridge to be informed of the movements of the Q Because of that, did you ever intervene in the command of the pilot?
ship?
A Yes sir, I did not intervene because I believed that the command of the pilot to be correct.
A That is right.
Solicitor Abad (to the witness)
Q And whatever sound the captain... Capt. Gavino would hear from the bridge, you could also
hear? Q As a captain of M/V Pavlodar, you consider docking maneuvers a serious matter, is it not?

A That is right. A Yes sir, that is right.

Q Now, you said that when the command to lower the anchor was given, it was obeyed, is Q Since it affects not only the safety of the port or pier, but also the safety of the vessel and
that right? the cargo, is it not?

A This command was executed by the third mate and boatswain. A That is right.

Court (to the witness) Q So that, I assume that you were watching Capt. Gavino very closely at the time he was
making his commands?
Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with the duties of
the pilot and that, in your opinion, you can only intervene if the ship is placed in imminent A I was close to him, I was hearing his command and being executed.
danger, is that correct?
Q And that you were also alert for any possible mistakes he might commit in the maneuvering
A That is right, I did say that. of the vessel?

Q In your observation before the incident actually happened, did you observe whether or not A Yes sir, that is right.
the ship, before the actual incident, the ship was placed in imminent danger?.
Q But at no time during the maneuver did you issue order contrary to the orders Capt. Gavino
A No sir, I did not observe. made?

Q By that answer, are you leading the court to understand that because you did not intervene
and because you believed that it was your duty to intervene when the vessel is placed in
imminent danger to which you did not observe any imminent danger thereof, you have not
intervened in any manner to the command of the pilot?
A That is right, sir.
xxxxxxxxx
Q Assuming that you disagreed with the pilot regarding the step being taken by the pilot in
maneuvering the vessel. whose command will prevail, in case of imminent danger to the
vessel?
A I did not consider the situation as having an imminent danger. I believed that the vessel will
dock alongside the pier.
A No sir.
Q So that you were in full accord with all of Capt. Gavino's orders?
A Yes sir.
Q Because, otherwise, you would have issued order that would supersede his own order?
A In that case, I should take him away from his command or remove the command from him.
Court (to the witness)
Q You were in full accord with the steps being taken by Capt. Gavino because you relied on
his knowledge, on his familiarity of the seabed and shoals and other surroundings or
conditions under the sea, is that correct?

marcelo|torts and damages|full text Page 78

A Yes sir, that is right. Solicitor Abad (to the witness)

xxxxxxxxx Q Is it not a fact that the vessel bumped the pier?

Solicitor Abad (to the witness) A That is right, it bumped the pier.

Q And so after the anchors were ordered dropped and they did not take hold of the seabed,
you were alerted that there was danger already on hand?
A No sir, there was no imminent danger to the vessel.
Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottom and
it did not, there was no danger to the ship?
A Yes sir, because the anchor dragged on the ground later.
Q For the main reason that the anchor of the vessel did not hold the ground as expected?
A Yes sir, that is my opinion.[73]
Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the
situation:
Q Now, after the anchor was dropped, was there any point in time that you felt that the vessel
was in imminent danger.

Q And after a few moments when the anchor should have taken hold the seabed but not done
(sic), as you expected, you already were alerted that there was danger to the ship, is that
correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A No, at that time, the vessel was not in imminent danger, sir."[74]
This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to
Capt. Gavino's anxious assessment of the situation:
Q When a pilot is on board a vessel, it is the pilot's command which should be followed-at that
moment until the vessel is, or goes to port or reaches port?

A Yes sir, I was alerted.
Q And this alert you assumed was the ordinary alertness that you have for normal docking?
A Yes sir, I mean that it was usual condition of any man in time of docking to be alert.
Q And that is the same alertness when the anchor did not hold onto the ground, is that
correct?
A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground.
A Yes, your Honor, but it does not take away from the Captain his prerogative to countermand
the pilot.
Q In what way?
A In any case, which he thinks the pilot is not maneuvering correctly, the Captain always has
the prerogative to countermand the pilot's order.
Q But insofar as competence, efficiency and functional knowledge of the seabed which are
vital or decisive in the safety (sic) bringing of a vessel to the port, he is not competent?

Q Since, as you said that you agreed all the while with the orders of Capt. Gavino, you also
therefore agreed with him in his failure to take necessary precaution against the eventuality
that the anchor will not hold as expected?
Atty. Del Rosario:
A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, the safety of
the vessel rest(s) upon the Captain, the Master of the vessel.
Q In this case, there was not a disagreement between you and the Captain of the vessel in
the bringing of the vessel to port?

May I ask that the question ... A No, your Honor.

Solicitor Abad: Court:

Never mind, I will reform the question. May proceed.

xxxxxxxxx Atty. Catris:

marcelo|torts and damages|full text Page 79

In fact, the Master of the vessel testified here that he was all along in conformity with the
orders you gave to him, and, as matter of fact, as he said, he obeyed all your orders. Can you
tell, if in the course of giving such normal orders for the saf(e) docking of the MV Pavlodar, do
you remember of any instance that the Master of the vessel did not obey your command for
the safety docking of the MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court that there was no disagreement insofar as the
bringing of the vessel safely to the port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do you remember of a time during the
course of the docking that the MV Pavlodar was in imminent danger of bumping the pier?
A When we were about more than one thousand meters from the pier. I think, the anchor was
not holding, so I immediately ordered to push the bow at a fourth quarter, at the back of the
vessel in order to swing the bow away from the pier and at the same time, I ordered for a full
astern of the engine."[75]
These conflicting reactions can only imply, at the very least, unmindful disregard or, worse,
neglectful relinquishment of duty by the shipmaster, tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been charged with the task of docking the vessel
in the berthing space, it is undisputed that the master of the vessel had the corresponding
duty to countermand any of the orders made by the pilot, aid even maneuver the vessel
himself, in case of imminent danger to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all throughout the man(eu)vering
procedures he did not notice anything was going wrong, and even observed that the order
given to drop the anchor, was done at the proper time. He even ventured the opinion that the
accident occurred because the anchor failed to take hold but that this did not alarm him
because there was still time to drop a second anchor.
Under normal circumstances, the above-mentioned facts would have caused the master of a
vessel to take charge of the situation and see to the man(eu)vering of the vessel
himself. Instead, Capt. Kavankov chose to rely blindly upon his pilot, who by this time was
proven ill-equipped to cope with the situation.
xxxxxxxxx
marcelo|torts and damages|full text
It is apparent that Gavino was negligent but Far Eastern's employee Capt. Kavankov was no
less responsible for as master of the vessel he stood by the pilot during the man(eu)vering
procedures and was privy to every move the latter made, as well as the vessel's response to
each of the commands. His choice to rely blindly upon the pilot's skills, to the point that
despite being appraised of a notice of alert he continued to relinquish control of the vessel to
Gavino, shows indubitably that he was not performing his duties with the diligence required of
him and therefore may be charged with negligence along with defendant Gavino. [76]
As correctly affirmed by the Court of Appeals -
We are in full accord with the findings and disquisitions of the Court a quo.
In the present recourse, Captain Viktor Kavankov had been a mariner for thirty-two years
before the incident. When Gavino was (in) the command of the vessel, Kavankov was beside
Gavino, relaying the commands or orders of Gavino to the crewmembers-officers of the
vessel concerned. He was thus fully aware of the docking maneuvers and procedure Gavino
undertook to dock the vessel. Irrefragably, Kavankov was fully aware of the bulk and size of
the vessel and its cargo as well as the weight of the vessel. Kavankov categorically admitted
that, when the anchor and two (2) shackles were dropped to the sea floor, the claws of the
anchor did not hitch on to any hard object in the seabed. The momentum of the vessel was
not arrested. The use of the two (2) tugboats was insufficient. The momentum of the vessel,
although a little bit arrested, continued (sic) the vessel going straightforward with its bow
towards the port (Exhibit "A-1"). There was thus a need for the vessel to move "full-astern"
and to drop the other anchor with another shackle or two '(2), for the vessel to avoid hitting the
pier. Kavankov refused to act even as Gavino failed to act. Even as Gavino gave mere "half-
astern" order, Kavankov supinely stood by. The vessel was already about twenty (20) meters
away from the pier when Gavino gave the 'full-astern" order. Even then, Kavankov did nothing
to prevent the vessel from hitting the pier simply because he relied on the competence and
plan of Gavino. While the "full-astern" maneuver momentarily arrested the momentum of the
vessel, it was, by then, too late. All along, Kavankov stood supinely beside Gavino, doing
nothing but relay the commands of Gavino. Inscrutably, then, Kavankov was negligent.
xxxxxxxxx
The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of
the vessel. It has been held that the incompetence of the navigator, the master of the vessel
or its crew makes the vessel unseaworthy (Tug Ocean Prince versus United States of
America, 584 F. 2nd, page 1151). Hence, the Appellant FESC is likewise liable for the
damage sustained by the Appellee."[77]
We find strong and well-reasoned support in time-tested American maritime jurisprudence, on
which much of our laws and jurisprudence on the matter are based, for the conclusions of the
Court of Appeals adjudging both Capt. Gavino and Capt. Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in The
Steamship China vs. Walsh,[78] that it is the duty of the master to interfere in cases of the
pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and
Page 80
in all cases of great necessity. The master has the same power to displace the pilot that he
has to remove any subordinate officer of the vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that:
Nor are we satisfied with the conduct of the master in leaving the pilot in sole charge of the
vessel. While the pilot doubtless supersedes the master for the time being in the command
and navigation of the ship, and his orders must be obeyed in all matters connected with her
navigation, the master is not wholly absolved from his duties while the pilot is on board, and
may advise with him, and even displace him in case he is intoxicated or manifestly
incompetent. He is still in command of the vessel, except so far as her navigation is
concerned, and bound to see that there is a sufficient watch on deck, and that the men are
attentive to their duties.
xxx (N)otwithstanding the pilot has charge, it is the duty of the master to prevent accident, and
not to abandon the vessel entirely to the pilot; but that there are certain duties he has to
discharge (notwithstanding there is a pilot on board) for the benefit of the owners. x x x that in
well conducted ships the master does not regard the presence of a duly licensed pilot in
compulsory pilot waters as freeing him from every obligation to attend to the safety of the
vessel; but that, while the master sees that his officers and crew duly attend to the pilot's
orders, he himself is bound to keep a vigilant eye on the navigation of the vessel, and, when
exceptional circumstances exist, not only to urge upon the pilot to use every precaution, but to
insist upon, such being taken."[79] (Italics for emphasis.)
In Jure vs. United Fruit Co.,[80] which, like the present petitions, involved compulsory pilotage,
with a similar scenario where at and prior to the time of injury, the vessel was in the charge of
a pilot with the master on the bridge of the vessel beside said pilot, the court therein ruled:
The authority of the master of a vessel is not in complete abeyance while a pilot, who is
required by law to be accepted, is in discharge of his functions. x x x It is the duty of the
master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger
which he does not foresee, and in all cases of great necessity . The master has the same
power to displace the pilot that he has to remove any subordinate officer of the vessel. He
may exercise it, or not, according to his discretion. There was evidence to support findings
that plaintiff's injury was due to the negligent operation of the Atenas, and that the master of
that vessel was negligent in failing to take action to avoid endangering a vessel situated as
the City of Canton was and persons or property thereon.
A phase of the evidence furnished support for the inferences x x x that he negligently failed to
suggest to the pilot the danger which was disclosed, and means of avoiding such danger; and
that the master's negligence in failing to give timely admonition to the pilot proximately
contributed to the injury complained of. We are of opinion that the evidence mentioned tended
to prove conduct of the pilot, known to the master, giving rise to a case of danger or great
necessity, calling for the intervention of the master. A master of a vessel is not Without fault in
acquiescing in conduct of a pilot which involves apparent and avoidable danger, whether such
danger is to the vessel upon which the pilot is, or to another vessel, or persons or property
thereon or on shore. (Italics ours.)
marcelo|torts and damages|full text
Still in another case involving a nearly identical setting, the captain of a vessel alongside the
compulsory pilot was deemed to be negligent, since, in the words of the court, "he was in a
position to exercise his superior authority if he had deemed the speed excessive on the
occasion in question. I think it was clearly negligent of him not to have recognized the
danger to any craft moored at Gravell Dock and that he should have directed the pilot to
reduce his speed as required by the local governmental regulations. His failure amounted to
negligence and renders the respondent liable."[81] (Italics supplied.) Though a compulsory pilot
might be regarded as an independent contractor, he is at all times subject to the ultimate
control of the ship's master.[82]
In sum, where a compulsory pilot is in charge of a ship, the master being required to permit
him to navigate it, if the master observes that the pilot is incompetent or physically incapable,
then it is the duty of the master to refuse to permit the pilot to act. But if no such reasons are
present, then the master is justified in relying upon the pilot, but not blindly. Under the
circumstances of this case, if a situation arose where the master, exercising that reasonable
vigilance which the master of a ship should exercise, observed, or should have observed, that
the pilot was so navigating the vessel that she was going, or was likely to go, into danger, and
there was in the exercise of reasonable care and vigilance an opportunity for the master to
intervene so as to save the ship from danger, the master should have acted
accordingly.[83] The master of a vessel must exercise a degree of vigilance commensurate
with the circumstances.[84]
Inasmuch as the matter of negligence is a question of fact,[85] we defer to the findings of the
trial court, especially as this is affirmed by the Court of Appeals.[86] But even beyond that, our
own evaluation is that Capt. Kabankov's shared liability is due mainly to the fact that he failed
to act when the perilous situation should have spurred him into quick and decisive action as
master of the ship. In the face of imminent or actual danger, he did not have to wait for the
happenstance to occur before countermanding or overruling the pilot. By his own admission,
Capt. Kabankov concurred with Capt. Gavino's decisions, and this is precisely the reason why
he decided not to countermand any of the latter's orders. Inasmuch as both lower courts
found Capt. Gavino negligent, by expressing full agreement therewith Capt. Kabankov was
just as negligent as Capt. Gavino.
In general, a pilot is personally liable for damages caused by his own negligence or default to
the owners of the vessel, and to third parties for damages sustained in a collision. Such
negligence of the pilot in the performance of duty constitutes a maritime tort. [87] At common
law, a shipowner is not liable for injuries inflicted exclusively by the negligence of a pilot
accepted by a vessel compulsorily.[88] The exemption from liability for such negligence shall
apply if the pilot is actually in charge and solely in fault. Since, a pilot is responsible only for
his own personal negligence, he cannot be held accountable for damages proximately caused
by the default of others,[89] or, if there be anything which concurred with the fault of the pilot in
producing the accident, the vessel master and owners are liable.
Since the colliding vessel is prima facie responsible, the burden of proof is upon the party
claiming benefit of the exemption from liability. It must be shown affirmatively that the pilot
was at fault, and that there was no fault on the part of the officers or crew, which might have
been conducive to the damage. The fact that the law compelled the master to take the pilot
Page 81
does not exonerate the vessel from liability. The parties who suffer are entitled to have their
remedy against the vessel that occasioned the damage, and are not under necessity to look
to the pilot from whom redress is not always had for compensation. The owners of the vessel
are responsible to the injured party for the acts of the pilot, and they must be left to recover
the amount as well as they can against him. It cannot be maintained that the circumstance of
having a pilot on board, and acting in conformity to his directions operate as a discharge of
responsibility of the owners.[90] Except insofar as their liability is limited or exempted by
statute, the vessel or her owner are liable for all damages caused by the negligence or other
wrongs of the owners or those in charge of the vessel. Where the pilot of a vessel is not a
compulsory one in the sense that the owner or master of the vessel are bound to accept him,
but is employed voluntarily, the owners of the vessel are, all the more, liable for his negligent
act.[91]
In the United States, the owners of a vessel are not personally liable for the negligent acts of
a compulsory pilot, but by admiralty law, the fault or negligence of a compulsory pilot is
imputable to the vessel and it may be held liable therefor in rem. Where, however, by the
provisions of the statute the pilot is compulsory only in the sense that his fee must be paid,
and is not in compulsory charge of the vessel, there is no exemption from liability. Even
though the pilot is compulsory, if his negligence was not the sole cause of the injury, but the
negligence of the master or crew contributed thereto, the owners are liable.[92] But the liability
of the ship in rem does not release the pilot from the consequences of his own
negligence.[93] The rationale for this rule is that the master is not entirely absolved of
responsibility with respect to navigation when a compulsory pilot is in charge.[94]
By way of validation and in light of the aforecited guidepost rulings in American maritime
cases, we declare that our rulings during the early years of this century in City of Manila
vs.Gambe, [95] China Navigation Co., Ltd. vs. Vidal,[96] and Yap Tico & Co. vs. Anderson, et
al.[97] have withstood the proverbial test of time and remain good and relevant case law to this
day.
City of Manila stands for the doctrine that the pilot who was in command and complete control
of a vessel, and not the owners, must be held responsible for an accident which was solely
the result of the mistake of the pilot in not giving proper orders, and which did not result from
the failure of the owners to equip the vessel with the most modern and improved
machinery. In China Navigation Co., the pilot deviated from the ordinary and safe course,
without heeding the warnings of the ship captain. It was this careless deviation that caused
the vessel to collide with a pinnacle rock which, though uncharted, was known to pilots and
local navigators. Obviously, the captain was blameless. It was the negligence of the pilot
alone which was the proximate cause of the collision. The Court could not but then rule that -
The pilot in the case at bar having deviated from the usual and ordinary course followed by
navigators in passing through the strait in question, without a substantial reason, was guilty of
negligence, and that negligence having been the proximate cause of the damages, he is liable
for such damages as usually and naturally flow therefrom. x x x.
x x x (T)he defendant should have known of the existence and location of the rock upon which
the vessel struck while under his control and management. x x x.
marcelo|torts and damages|full text
Consistent with the pronouncements in these two earlier cases, but on a slightly different tack,
the Court in Yap Tico & Co. exonerated the pilot from liability for the accident where the
order's of the pilot in the handling of the ship were disregarded by the officers and crew of the
ship. According to the Court, a pilot is "x x x responsible for a full knowledge of the channel
and the navigation only so far as he can accomplish it through the officers and crew of the
ship, and I don't see that he can be held responsible for damage when the evidence shows,
as it does in this case, that the officers and crew of the ship failed to obey his orders."
Nonetheless, it is possible for a compulsory pilot and the master of the vessel to be
concurrently negligent and thus share the blame for the resulting damage as Joint
tortfeasors,[98] but only under the circumstances obtaining in and demonstrated by the instant
petitions.
It may be said, as a general rule, that negligence in order to render a person liable need not
be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more
efficient causes other than plaintiff's, is the proximate cause of the injury. Accordingly, where
several causes combine to produce injuries, a person is not relieved from liability because he
is responsible for only one of them, it being sufficient that the negligence of the person
charged with injury is an efficient cause without which the injury would not have resulted to as
great an extent, and that such cause is not attributable to the person injured. It is no defense
to one of the concurrent tortfeasors that the injury would not have resulted from his
negligence alone, without the negligence or wrongful acts of the other concurrent
tortfeasor.[99] Where several causes producing an injury are concurrent and each is an
efficient cause without which the injury would not have happened, the injury may be attributed
to all or any of the causes and recovery may be had against any or all of the responsible
persons although under the circumstances of the case, it may appear that one of them was
more culpable, and that the duty owed by them to the injured person was not the same. No
actor's negligence ceases to be a proximate cause merely because it does not exceed the
negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as
though his acts were the sole cause of the injury.[100]
There is no contribution between joint tortfeasors whose liability is solidary since both of them
are liable for the total damage. Where the concurrent or successive negligent acts or
omissions of two or more persons, although acting independently, are in combination the
direct and proximate cause of a single injury to a third person, it is impossible to determine in
what proportion each contributed to the injury and either of them is responsible for the whole
injury. Where their concurring negligence resulted in injury or damage to a third party, they
become joint tortfeasors and are solidarity liable for the resulting damage under Article
2194[101] of the Civil Code.[102]
As for the amount of damages awarded by the trial court, we find the same to be
reasonable. The testimony of Mr. Pascual Barral, witness for PPA, on cross and redirect
examination, appears to be grounded on practical considerations:
Q So that the cost of the two additional piles as well as the (two) square meters is already
included in this -P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Page 82
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent only for the six piles that was
damaged as well as the corresponding two piles.
A The area was corresponding, was increased by almost two in the actual payment. That was
why the contract was decreased, the real amount was P1,124,627.40 and the final one
is P1300,999.77.
Q Yes, but that P1,300,999.77 included the additional two new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place in 1980 and you started the repair
and reconstruction in 1982, that took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing damage in 1980 was aggravated for
the 2 year period that the damage portion was not repaired?
A I don't think so because that area was at once marked and no vehicles can park, it was
closed.
Q Even if or even natural elements cannot affect the damage?
A Cannot, sir.
xxxxxxxxx
Q You said in the cross-examination that there were six piles damaged by the accident, but
that in the reconstruction of the pier, PPA drove and constructed 8 piles. Will you explain to us
why there was change in the number of piles from the original number?
A In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive piles at the
same point. You have to redesign the driving of the piles. We cannot drive the piles at the
same point where the piles are broken or damaged or pulled out. We have to redesign, and
you will note that in the reconstruction, we redesigned such that it necessitated 8 piles.
marcelo|torts and damages|full text
Q Why not, why could you not drive the same number of piles and on the same spot?
A The original location was already disturbed. We cannot get required bearing capacity. The
area is already disturbed.
Q Nonetheless, if you drove the original number of piles, six, on different places, would not
that have sustained the same load?
A It will not suffice, sir."[103]
We quote the findings of the lower court with approval:
With regards to the amount of damages that is to be awarded to plaintiff, the Court finds that
the amount of P1,053,300.00 is justified. Firstly, the doctrine of res ipsa loquitur best
expounded upon in the landmark case of Republic vs. Luzon Stevedoring Corp. (21 SCRA
279) establishes the presumption that in the ordinary course of events the ramming of the
dock would not have occurred if proper care was used.
Secondly, the various estimates and plans justify the cost of the port construction price. The
new structure constructed not only replaced the damaged one but was built of stronger
materials to forestall the possibility of any similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00 which
represents actual damages caused by the damage to Berth 4 of the Manila International
Port.Co-defendants Far Eastern Shipping, Capt. Senen Gavino and Manila Pilots Association
are solidarity liable to pay this amount to plaintiff.[104]
The Solicitor General rightly commented that the adjudicated amount of damages represents
the proportional cost of repair and rehabilitation of the damaged section of the pier.[105]
Except insofar as their liability is limited or exempted by statute, the vessel or her owners are
liable for all damages caused by the negligence or other wrongs of the owners or those in
charge of the vessel. As a general rule, the owners or those in possession and control of a
vessel and the vessel are liable for all natural and proximate damages caused to persons or
property by reason of her negligent management or navigation.[106]
FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not
only because it appears to be a mere afterthought, being tardily raised only in this petition, but
also because there is no allegation or evidence on record about Berth No. 4 being unsafe and
unreliable, although perhaps it is a modest pier by international standards.There was,
therefore, no error on the part of the Court of Appeals in dismissing FESC's counterclaim.
II. G.R. No. 130150
This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly
and solidarity liable with its member pilot, Capt. Gavino, in the absence of employer-employee
relationship and in applying Customs Administrative Order No. 15-65, as basis for the
adjudged solidary liability of MPA and Capt. Gavino.
Page 83
The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are:
"PAR. XXVII.-- In all pilotage districts where pilotage is compulsory, there shall be created and
maintained by the pilots or pilots' association, in the manner hereinafter prescribed, a reserve
fund equal to P1,000.00 for each pilot thereof for the purpose of paying claims for damages to
vessels or property caused through acts or omissions of its members while rendered in
compulsory pilotage service. In Manila, the reserve fund shall be P2,000.00 for each pilot.
PAR. XXVIII.-- A pilots' association shall not be liable under these regulations for damage to
any vessel, or other property, resulting from acts of a member of an association in the actual
performance of his duty for a greater amount than seventy-five per centum (75%) of its
prescribed reserve fund; it being understood that if the association is held liable for an amount
greater than the amount above-stated, the excess shall be paid by the personal funds of the
member concerned.
PAR. XXXI.-- If a payment is made from the reserve fund of an association on account of
damages caused by a member thereof, and he shall have been found at fault, such member
shall reimburse the association in the amount so paid as soon as practicable; and for this
purpose, not less than twenty-five per centum of his dividends shall be retained each month
until the full amount has been returned to the reserve fund.
PAR. XXXIV. - Nothing in these regulations shall relieve any pilots' association or members
thereof, individually or collectively, from civil responsibility for damages to life or property
resulting from the acts of members in the performance of their duties.
Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timely
amended this applicable maritime regulation, state:
Article IV
SEC. 17. Pilots' Association -- The Pilots in a Pilotage District shall organize themselves into a
Pilots' Association or firm, the members of which shall promulgate their own By-Laws not in
conflict with the rules and regulations promulgated by the Authority. These By-Laws shall be
submitted not later than one (1) month after the organization of the Pilots' Association for
approval by the General Manager of the Authority. Subsequent amendments thereto shall
likewise be submitted for approval.
SEC. 25. Indemnity Insurance and Reserve Fund--
a) Each Pilots' Association shall collectively insure its membership at the rate of P50,000.00
each member to cover in whole or in part any liability arising from any accident resulting in
damage to vessel(s), port facilities and other properties and/or injury to persons or death
which any member may have caused in the course of his performance of pilotage duties. x x
x.
b) The Pilotage Association shall likewise set up and maintain a reserve fund which shall
answer for any part of the liability referred to in the immediately preceding paragraph which is
left unsatisfied by the insurance proceeds, in the following manner:
marcelo|torts and damages|full text
1) Each pilot in the Association shall contribute from his own account an amount of P4,000.00
(P6,000.00 in the Manila Pilotage District) to the reserve fund. This fund shall not be
considered part of the capital of the Association nor charged as an expense thereof.
2) Seventy-five percent (75%) of the reserve fund shall be set aside for use, in the payment of
damages referred to above incurred in the actual performance of pilots' duties and the excess
shall be paid from the personal funds of the member concerned.
xxxxxxxxx
5) If payment is made from the reserve fund of an Association on account of damage caused
by a member thereof who is found at fault, he shall reimburse the Association in the amount
so paid as soon as practicable; and for this purpose, not less than twenty-five percentum
(25%) of his dividend shall be retained each month until the full amount has been returned to
the reserve fund. Thereafter, the pilot involved shall be entitled to his full dividend.
6) When the reimbursement has been completed as prescribed in the preceding paragraph,
the ten percentum (10%) and the interest withheld from the shares of the other pilots in
accordance with paragraph (4) hereof shall be returned to them.
c) Liability of Pilots' Association -- Nothing in these regulations shall relieve any Pilots'
Association or members thereof, individually or collectively, from any civil, administrative
and/or criminal responsibility for damages to life or property resulting from the individual acts
of its members as well as those of the Association's employees and crew in the performance
of their duties.
The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of
FESC, MPA and Capt. Gavino, correctly based MPA's liability not on the concept of employer-
employee relationship between Capt. Gavino and itself, but on the provisions of Customs
Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a quo,
the Appellant Gavino was not and has never been an employee of the MPA but was only a
member thereof. The Court a quo, it is noteworthy,, did not state the factual basis on which it
anchored its finding that Gavino was the employee of MPA. We are in accord with MPA's
pose. Case law teaches Us that, for an employer-employee relationship to exist the
confluence of the following elements must be established: (1) selection and engagement of
employees; (2) the payment of wages; (3) the power of dismissal; (4) the employer's power to
control the employees with respect to the means and method by which the work is to be
performed (Ruga versus NLRC, 181SCRA 266).
xxxxxxxxx
The liability of MPA for damages is not anchored on Article 2180 of the New Civil Code as
erroneously found and declared by the Court a quo but under the provisions of Customs
Administrative Order No. 15-65, supra, in tandem with the by-laws of the MPA."[107]
Page 84
There being no employer-employee relationship, clearly Article 2180[108] of the Civil Code is
inapplicable since there is no vicarious liability of an employer to speak of. It is so stated in
American law, as follows:
The well-established rule is that pilot associations are immune to vicarious liability for the tort
of their members. They are not the employer of their members and exercise no control over
them once they take the helm of the vessel. They are also not partnerships because the
members do not function as agents for the association or for each other. Pilots' associations
are also not liable for negligently assuring, the competence of their members because as
professional associations they made no guarantee of the professional conduct of their
members to the general public.[109]
Where under local statutes and regulations, pilot associations lack the necessary legal
incidents of responsibility, they have been held not liable for damages caused by the default
of a member pilot.[110] Whether or not the members of a pilots' association are in legal effect a
copartnership depends wholly on the powers and duties of the members in relation to one
another under the provisions of the governing statutes and regulations. The relation of a pilot
to his association is not that of a servant to the master, but of an associate assisting and
participating in a common purpose. Ultimately, the rights and liabilities between a pilots'
association and an individual member depend largely upon the constitution, articles or by-
laws of the association, subject to appropriate government regulations.[111]
No reliance can be placed by MPA on the cited American rulings as to immunity from liability
of a pilots' association in light of existing positive regulation under Philippine law. The Court of
Appeals properly applied the clear and unequivocal provisions of Customs Administrative
Order No. 15-65. In doing so, it was just being consistent with its finding of the non-existence
of employer-employee relationship between MPA and Capt. Gavino precludes the application
of Article 2180 of the Civil Code.
True, Customs Administrative Order No. 15-65 does not categorically characterize or label
MPA's liability as solidary in nature. Nevertheless, a careful reading and proper analysis of the
correlated provisions lead to the conclusion that MPA is solidarity liable for the negligence of
its member pilots, without prejudice to subsequent reimbursement from the pilot at fault.
Article 1207 of the Civil Code provides that there is solidary liability only when the obligation
expressly so states, or when the law or the nature of the obligation requires solidarity.Plainly,
Customs Administrative Order No. 15-65, which as an implementing rule has the force and
effect of law, can validly provide for solidary liability. We note the Solicitor General's comment
hereon, to wit:
x x x Customs Administrative Order No. 15-65 may be a mere rule and regulation issued by
an administrative agency pursuant to a delegated authority to fix "the details" in the execution
or enforcement of a policy set out in the law itself. Nonetheless, said administrative order,
which adds to the procedural or enforcing provisions of substantive law, is legally binding and
receives the same statutory force upon going into effect. In that sense, it has equal, not lower,
statutory force and effect as a regular statute passed by the legislature." [112]
marcelo|torts and damages|full text
MPA's prayer for modification of the appellate court's decision under review by exculpating
petitioner MPA "from liability beyond seventy-five percent (75%) of Reserve Fund" is
unnecessary because the liability of MPA under Par. XXVIII of Customs Administrative Order
No. 15-65 is in fact limited to seventy-five percent (75%) of its prescribed reserve fund, any
amount of liability beyond that being for the personal account of the erring pilot and subject to
reimbursement in case of a finding of fault by the member concerned. This is clarified by the
Solicitor General:
Moreover, contrary to petitioners pretensions, the provisions of Customs Administrative Order
No. 15-65 do not limit the liability of petitioner as a pilots' association to an absurdly small
amount of seventy-five per centum (75%) of the member pilots' contribution of P2,000.00 to
the reserve fund. The law speaks of the entire reserve fund required to be maintained by the
pilots' association to answer (for) whatever liability arising from the tortious act of its
members. And even if the association is held liable for an amount greater than the reserve
fund, the association may not resist the liability by claiming to be liable only up to seventy-five
per centum (75%) of the reserve fund because in such instance it has the right to be
reimbursed by the offending member pilot for the excess."[113]
WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are
DENIED and the assailed decision of the Court of Appeals is AFFIRMED in toto.
Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate,
Atty. Herbert A. Tria, is REPRIMANDED and WARNED that a repetition of the same or similar
acts of heedless disregard of its undertakings under the Rules shall be dealt with more
severely.
The original members of the legal team of the Office of the Solicitor General assigned to this
case, namely, Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon,
are ADMONISHED and WARNED that a repetition of the same or similar acts of unduly
delaying proceedings due to delayed filing of required pleadings shall also be dealt with more
stringently.
The Solicitor General is DIRECTED to look into the circumstances of this case and to adopt
provident measures to avoid a repetition of this incident and which would ensure prompt
compliance with orders of this Court regarding the timely filing of requisite pleadings, in the
interest of just, speedy and orderly administration of justice.
Let copies of this decision be spread upon the personal records of the lawyers named herein
in the Office of the Bar Confidant.
SO ORDERED.
PHILIPPINE NATIONAL RAILWAYS and VIRGILIO J. BORJA, G.R. No. 157658
Petitioners,
Page 85
 Present:

- versus - The factual antecedents are as follows:

YNARES-SANTIAGO, J.,

COURT OF APPEALS (Second Division), CORAZON C. AMORES,
MA. EMILIE A. MOJICA, CECILE C. SISON, DINO C. AMORES,
LARISA C. AMORES, ARMAND JINO C. AMORES and JOHN C.
AMORES,
Respondents.
Chairperson, In the early afternoon of April 27, 1992, Jose Amores (Amores) was traversing the railroad
tracks in Kahilum II Street, Pandacan, Manila. Before crossing the railroad track, he stopped
AUSTRIA-MARTINEZ, for a while then proceeded accordingly.[3] Unfortunately, just as Amores was at the
intersection, a Philippine National Railways (PNR) train with locomotive number T-517 turned
CHICO-NAZARIO, up and collided with the car.[4]
NACHURA, and At the time of the mishap, there was neither a signal nor a crossing bar at the intersection to
warn motorists of an approaching train. Aside from the railroad track, the only visible warning
REYES, JJ. sign at that time was the defective standard signboard STOP, LOOK and LISTEN wherein the
sign Listen was lacking while that of Look was bent.[5] No whistle blow from the train was
likewise heard before it finally bumped the car of Amores.[6] After impact, the car was dragged
about ten (10) meters beyond the center of the crossing.[7] Amores died as a consequence
Promulgated: thereof.

October 15, 2007 On July 22, 1992, the heirs of Amores, consisting of his surviving wife and six children, herein
respondents, filed a Complaint for Damages[8] against petitioners PNR and Virgilio J. Borja
(Borja), PNRs locomotive driver at the time of the incident, before the RTC of Manila. The
case was raffled to Branch 28 and was docketed as Civil Case No. 92-61987. In their
x------------------------------------------------------------------------------------x
complaint, respondents averred that the trains speedometer was defective, and that the
petitioners negligence was the proximate cause of the mishap for their failure to take
precautions to prevent injury to persons and property despite the dense population in the
vicinity. They then prayed for actual and moral damages, as well as attorneys fees. [9]

DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, seeking to annul and set aside the Decision[1] of the Court of
Appeals (CA) in CA-G.R. CV No. 54906 which reversed the Decision[2] of the Regional Trial
Court (RTC) of Manila, Branch 28, in Civil Case No. 92-61987.
In their Answer,[10] the petitioners denied the allegations, stating that the train was railroad-
worthy and without any defect. According to them, the proximate cause of the death of
Amores was his own carelessness and negligence, and Amores wantonly disregarded traffic
rules and regulations in crossing the railroad tracks and trying to beat the approaching
train. They admitted that there was no crossing bar at the site of the accident because it was
merely a barangay road.[11] PNR stressed that it exercised the diligence of a good father of a
family in the selection and supervision of the locomotive driver and train engineer, Borja, and
that the latter likewise used extraordinary diligence and caution to avoid the
accident. Petitioners further asserted that respondents had the last clear chance to avoid the
accident but recklessly failed to do so.
After trial on the merits, on August 22, 1996, the RTC rendered judgment in favor of the
petitioners, the dispositive portion of which reads:

marcelo|torts and damages|full text Page 86


WHEREFORE, judgment is hereby rendered dismissing the complaint of the plaintiffs and the
defendants counterclaim.
The costs shall be halved and paid equally by the parties.
The counsel for the defendants is hereby ordered to inform this court who is the legal
representative of the deceased defendant, Virgilio Borja, within ten (10) days from receipt of a
copy of this decision.
SO ORDERED.[12]
The RTC rationalized that the proximate cause of the collision was Amores fatal misjudgment
and the reckless course of action he took in crossing the railroad track even after seeing or
hearing the oncoming train.
On appeal, the CA reversed the RTC decision, as follows:
WHEREFORE, the assailed Decision of the Regional Trial Court of Manila, Branch 28 is
hereby REVERSED. The defendants PNR and the estate of Virgilio J. Borja are jointly and
severally liable to pay plaintiffs the following:
1) The amount of P122,300.00 for the cost of damage to the car; and,
2) The amount of P50,000 as moral damages.
marcelo|torts and damages|full text
For lack of official receipts for funeral expenses and specimen of the last pay slip of the
deceased, the claim for reimbursement of funeral expenses and claim for payment of support
is hereby DENIED for lack of basis. Costs against Defendants.
SO ORDERED.[13]
In reversing the trial courts decision, the appellate court found the petitioners negligent. The
court based the petitioners negligence on the failure of PNR to install a semaphore or at the
very least, to post a flagman, considering that the crossing is located in a thickly populated
area. Moreover, the signboard Stop, Look and Listen was found insufficient because of its
defective condition as described above. Lastly, no negligence could be attributed to Amores
as he exercised reasonable diligence in crossing the railroad track.
Aggrieved by this reversal, the petitioners filed the present petition for review on certiorari,
raising the following grounds:
I
THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN
RENDERING ITS DECISION REVERSING THE DECISION OF THE REGIONAL TRIAL
COURT OF MANILA BRANCH 28, IN NOT TAKING INTO CONSIDERATION THE
PROVISION OF SECTION 42, R.A. 4136 OF THE LAND TRANSPORTATION AND TRAFFIC
CODE.
II
THE DECISION OF THE COURT OF APPEALS IS CONTRARY TO THE EVIDENCE ON
RECORD ADDUCED IN THE TRIAL ON THE MERIT IN CIVIL CASE NO. 92-61987.[14]
Page 87
The petitioners insist that Amores must have heard the trains whistle and heeded the warning
but, noting that the train was still a distance away and moving slowly, he must have calculated
that he could beat it to the other side of the track before the train would arrive at the
intersection. The petitioners likewise add that the train was railroad-worthy and that its
defective speedometer did not affect the trains operation. Lastly, they insist that evidence
showed sufficient warning signs strategically installed at the crossing to alert both motorists
and pedestrians.
Respondents, on the other hand, argue that the cause of the accident was petitioners
carelessness, imprudence and laxity in failing to provide a crossing bar and keeper at the
Kahilum II railway intersection. Considering that Kahilum II Street is in the middle of a thickly
populated squatters area, and many pedestrians cross the railroad track, notwithstanding the
fact that it is a public street and a main thoroughfare utilized in going to Herran Street, the
presence of adequate warning signals would have prevented the untimely death of Amores.
Another crucial point raised by the respondents is the manner in which Borja applied the
brakes of the train only when the locomotive was already very near Amores car, as admitted
by witness Querimit. Finally, respondents claim that Borjas failure to blow the locomotives
horn, pursuant to the usual practice of doing the same 100 meters before reaching the
Kahilum II crossing point is an earmark of recklessness on the part of the petitioners.
The petition must fail.
The only issue to be resolved in the present case is whether the appellate court was correct in
ascribing negligence on the part of the petitioners. It was ascertained beyond quandary that
the proximate cause of the collision is the negligence and imprudence of the petitioner PNR
and its locomotive driver, Borja, in operating the passenger train.
As the action is predicated on negligence, the relevant provision is Article 2176 of the New
Civil Code, which states that:
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 was no pre-existing
contractual relation between the parties, is called quasi-delict and is governed by the
provisions of this chapter.
marcelo|torts and damages|full text
We have thoroughly reviewed the records of the case and we find no cogent reason to
reverse the appellate courts decision. Negligence has been defined as the failure to observe
for the protection of the interests of another person that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such other person suffers
injury.[15] Using the aforementioned philosophy, it may be reliably concluded that there is no
hard and fast rule whereby such degree of care and vigilance is calibrated; it is dependent
upon the circumstances in which a person finds himself. All that the law requires is that it is
perpetually compelling upon a person to use that care and diligence expected of sensible men
under comparable circumstances.[16]
We hold that the petitioners were negligent when the collision took place. The transcript of
stenographic notes reveals that the train was running at a fast speed because notwithstanding
the application of the ordinary and emergency brakes, the train still dragged the car some
distance away from the point of impact. Evidence likewise unveils the inadequate precautions
taken by petitioner PNR to forewarn the public of the impending danger. Aside from not
having any crossing bar, no flagman or guard to man the intersection at all times was posted
on the day of the incident. A reliable signaling device in good condition, not just a dilapidated
Stop, Look and Listen signage because of many years of neglect, is needed to give notice to
the public. It is the responsibility of the railroad company to use reasonable care to keep the
signal devices in working order.Failure to do so would be an indication of negligence.
As held in the case of Philippine National Railway v. Brunty,[17] it may broadly be stated that
railroad companies owe to the public a duty of exercising a reasonable degree of care to
avoid injury to persons and property at railroad crossings, which duties pertain both to the
operation of trains and to the maintenance of the crossings.Moreover, every corporation
constructing or operating a railway shall make and construct at all points where such railway
crosses any public road, good, sufficient, and safe crossings, and erect at such points, at
sufficient elevation from such road as to admit a free passage of vehicles of every kind, a sign
with large and distinct letters placed thereon, to give notice of the proximity of the railway, and
warn persons of the necessity of looking out for trains.[18] The failure of the PNR to put a cross
bar, or signal light, flagman or switchman, or semaphore is evidence of negligence and
disregard of the safety of the public, even if there is no law or ordinance requiring it, because
public safety demands that said device or equipment be installed.
The petitioners insist that a train has a right-of-way in a railroad crossing under the existing
laws. They derive their theory from Section 42 (d), Article III of R.A. 4136, otherwise known as
the Land Transportation and Traffic Code, which states that:
The driver of a vehicle upon a highway shall bring to a full stop such vehicle before traversing
any through highway or railroad crossing: Provided, That when it is apparent that no hazard
Page 88
exists, the vehicle may be slowed down to five miles per hour instead of bringing it to a full
stop.
They claim that motorists are enjoined by law to stop, look and listen before crossing railroad
tracks and that a heavier responsibility rests upon the motorists in avoiding accidents at level
crossings.
It is true that one driving an automobile must use his faculties of seeing and hearing when
nearing a railroad crossing. However, the obligation to bring to a full stop vehicles moving in
public highways before traversing any through street only accrues from the time the said
through street or crossing is so designated and sign-posted. From the records of the case, it
can be inferred that Amores exercised all the necessary precautions required of him as to
avoid injury to himself and to others. The witnesses testimonies showed that Amores
slackened his speed, made a full stop, and then proceeded to cross the tracks when he saw
that there was no impending danger to his life. Under these circumstances, we are convinced
that Amores did everything, with absolute care and caution, to avoid the collision.
It is settled that every person or motorist crossing a railroad track should use ordinary
prudence and alertness to determine the proximity of a train before attempting to cross. We
are persuaded that the circumstances were beyond the control of Amores for no person would
sacrifice his precious life if he had the slightest opportunity to evade the catastrophe. Besides,
the authority in this jurisdiction is that the failure of a railroad company to install a semaphore
or at the very least, to post a flagman or watchman to warn the public of the passing train
amounts to negligence.[19]
In view of the foregoing, We will now discuss the liability of petitioner PNR. Article 2180 [20] of
the New Civil Code discusses the liability of the employer once negligence or fault on the part
of the employee has been established. The employer is actually liable on the assumption
of juris tantum that the employer failed to exercise diligentissimi patris families in
the selection and supervision of its employees. The liability is primary and can only be
negated by showing due diligence in the selection and supervision of the employee, a factual
matter that has not been demonstrated.[21] Even the existence of hiring procedures and
supervisory employees cannot be incidentally invoked to overturn the presumption of
negligence on the part of the employer.[22]
marcelo|torts and damages|full text
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated March 31,
2003 in CA-G.R. CV No. 54906 is hereby AFFIRMED.
MA. LOURDES VALENZUELA, petitioner, vs. COURT OF APPEALS, RICHARD LI and
ALEXANDER COMMERCIAL, INC., respondents.
[G.R. No. 117944. February 7, 1996]
RICHARD LI, petitioner, vs. COURT OF APPEALS and MA. LOURDES
VALENZUELA, respondents.
DECISION
KAPUNAN, J.:
These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem
from an action to recover damages by petitioner Lourdes Valenzuela in the Regional Trial
Court of Quezon City for injuries sustained by her in a vehicular accident in the early morning
of June 24, 1990. The facts found by the trial court are succinctly summarized by the Court of
Appeals below:
This is an action to recover damages based on quasi-delict, for serious physical injuries
sustained in a vehicular accident.
Plaintiffs version of the accident is as follows: At around 2:00 in the morning of June 24, 1990,
plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No.
FFU 542 from her restaurant at Marcos highway to her home at Palanza Street, Araneta
Avenue. She was travelling along Aurora Blvd. with a companion, Cecilia Ramon, heading
towards the direction of Manila. Before reaching A. Lake Street, she noticed something wrong
with her tires; she stopped at a lighted place where there were people, to verify whether she
had a flat tire and to solicit help if needed. Having been told by the people present that her
rear right tire was flat and that she cannot reach her home in that cars condition, she parked
along the sidewalk, about 1 feet away, put on her emergency lights, alighted from the car, and
went to the rear to open the trunk. She was standing at the left side of the rear of her car
pointing to the tools to a man who will help her fix the tire when she was suddenly bumped by
a 1987 Mitsubishi Lancer driven by defendant Richard Li and registered in the name of
defendant Alexander Commercial, Inc. Because of the impact plaintiff was thrown against the
windshield of the car of the defendant, which was destroyed, and then fell to the ground. She
was pulled out from under defendants car. Plaintiffs left leg was severed up to the middle of
her thigh, with only some skin and sucle connected to the rest of the body. She was brought
to the UERM Medical Memorial Center where she was found to have a traumatic amputation,
leg, left up to distal thigh (above knee). She was confined in the hospital for twenty (20) days
and was eventually fitted with an artificial leg. The expenses for the hospital confinement (P
Page 89
120,000.00) and the cost of the artificial leg (P27,000.00) were paid by defendants from the
car insurance.
In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary
damages in the amount of P100,000.00 and other medical and related expenses amounting
to a total of P180,000.00, including loss of expected earnings.
Defendant Richard Li denied that he was negligent. He was on his way home, travelling
at 55 kph; considering that it was raining, visibility was affected and the road was wet. Traffic
was light. He testified that he was driving along the inner portion of the right lane of Aurora
Blvd. towards the direction of Araneta Avenue, when he was suddenly confronted, in the
vicinity of A. Lake Street, San Juan, with a car coming from the opposite direction, travelling at
80 kph, with full bright lights. Temporarily blinded, he instinctively swerved to the right to avoid
colliding with the oncoming vehicle, and bumped plaintiffs car, which he did not see because it
was midnight blue in color, with no parking lights or early warning device, and the area was
poorly lighted. He alleged in his defense that the left rear portion of plaintiffs car was
protruding as it was then at a standstill diagonally on the outer portion of the right lane
towards Araneta Avenue (par. 18, Answer). He confirmed the testimony of plaintiffs witness
that after being bumped the car of the plaintiff swerved to the right and hit another car parked
on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was reckless
or negligent, as she was not a licensed driver.
The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the
sketch of the three cars involved in the accident, testified that the plaintiffs car was near the
sidewalk; this witness did not remember whether the hazard lights of plaintiffs car were on,
and did not notice if there was an early warning device; there was a street light at the corner
of Aurora Blvd. and F. Roman, about 100 meters away. It was not mostly dark, i.e. things can
be seen (p. 16, tsn, Oct. 28, 1991).
A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car
and opened the trunk compartment, defendants car came approaching very fast ten meters
from the scene; the car was zigzagging. The rear left side of plaintiffs car was bumped by the
front right portion of defendants car; as a consequence, the plaintiffs car swerved to the right
and hit the parked car on the sidewalk. Plaintiff was thrown to the windshield of defendants
car, which was destroyed, and landed under the car. He stated that defendant was under the
influence of liquor as he could smell it very well (pp. 43, 79, tsn., June 17, 1991).
After trial, the lower court sustained the plaintiffs submissions and found defendant Richard Li
guilty of gross negligence and liable for damages under Article 2176 of the Civil Code. The
trial court likewise held Alexander Commercial, Inc., Lis employer, jointly and severally liable
for damages pursuant to Article 2180. It ordered the defendants to jointly and severally pay
the following amounts:
1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff
as a result of her severed left leg;
2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiffs
Bistro La Conga restaurant three (3) weeks after the accident on June 24, 1990; (b)
marcelo|torts and damages|full text
P20,000.00, a month, as unrealized profits of the plaintiff in her Bistro La Conga restaurant,
from August, 1990 until the date of this judgment; and (c) P30,000.00, a month, for unrealized
profits in plaintiffs two (2) beauty salons from July, 1990 until the date of this decision;
3. P1,000,000.00, in moral damages;
4. P50,000.00, as exemplary damages,
5. P60,000.00, as reasonable attorneys fees; and
6. Costs.
As a result of the trial courts decision, defendants filed an Omnibus Motion for New Trial and
for Reconsideration, citing testimony in Criminal Case O.C. No. 804367 (People vs. Richard
Li), tending to show that the point of impact, as depicted by the pieces of glass/debris from the
parties cars, appeared to be at the center of the right lane of Aurora Blvd. The trial court
denied the motion. Defendants forthwith filed an appeal with the respondent Court of Appeals.
In a Decision rendered March 30, 1994, the Court of Appeals found that there was ample
basis from the evidence of record for the trial courts finding that the plaintiffs car was properly
parked at the right, beside the sidewalk when it was bumped by defendants car.[1]Dismissing
the defendants argument that the plaintiffs car was improperly parked, almost at the center of
the road, the respondent court noted that evidence which was supposed to prove that the car
was at or near center of the right lane was never presented during the trial of the case.[2] The
respondent court furthermore observed that:
Defendant Lis testimony that he was driving at a safe speed of 55 km./hour is self serving; it
was not corroborated. It was in fact contradicted by eyewitness Rodriguez who stated that he
was outside his beerhouse located at Aurora Boulevard after A. Lake Street, at or about 2:00
a.m. of June 24, 1990 when his attention was caught by a beautiful lady (referring to the
plaintiff) alighting from her car and opening the trunk compartment; he noticed the car of
Richard Li approaching very fast ten (10) meters away from the scene; defendants car was
zigzagging, although there were no holes and hazards on the street, and bumped the leg of
the plaintiff who was thrown against the windshield of defendants car, causing its destruction.
He came to the rescue of the plaintiff, who was pulled out from under defendants car and was
able to say hurting words to Richard Li because he noticed that the latter was under the
influence of liquor, because he could smell it very well (p. 36, et. seq., tsn, June 17, 1991). He
knew that plaintiff owned a beerhouse in Sta. Mesa in the 1970s, but did not know either
plaintiff or defendant Li before the accident.
In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the
plaintiff, the Court of Appeals, in its decision, however, absolved the Lis employer, Alexander
Commercial, Inc. from any liability towards petitioner Lourdes Valenzuela and reduced the
amount of moral damages to P500,000.00. Finding justification for exemplary damages, the
respondent court allowed an award of P50,000.00 for the same, in addition to costs, attorneys
fees and the other damages. The Court of Appeals, likewise, dismissed the defendants
counterclaims.[3]
Page 90
Consequently, both parties assail the respondent courts decision by filing two separate
petitions before this Court. Richard Li, in G.R. No. 117944, contends that he should not be
held liable for damages because the proximate cause of the accident was Ma. Lourdes
Valenzuelas own negligence. Alternatively, he argues that in the event that this Court finds
him negligent, such negligence ought to be mitigated by the contributory negligence of
Valenzuela.
On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent
courts decision insofar as it absolves Alexander Commercial, Inc. from liability as the owner of
the car driven by Richard Li and insofar as it reduces the amount of the actual and moral
damages awarded by the trial court.[4]
As the issues are intimately related, both petitions are hereby consolidated. It is plainly
evident that the petition for review in G.R. No. 117944 raises no substantial questions of law.
What it, in effect, attempts to have this Court review are factual findings of the trial court, as
sustained by the Court of Appeals finding Richard Li grossly negligent in driving the Mitsubishi
Lancer provided by his company in the early morning hours of June 24, 1990. This we will not
do. As a general rule, findings of fact of the Court of Appeals are binding and conclusive upon
us, and this Court will not normally disturb such factual findings unless the findings of fact of
the said court are palpably unsupported by the evidence on record or unless the judgment
itself is based on a misapprehension of facts.[5]
In the first place, Valenzuelas version of the incident was fully corroborated by an
uninterested witness, Rogelio Rodriguez, the owner-operator of an establishment located just
across the scene of the accident. On trial, he testified that he observed a car being driven at a
very fast speed, racing towards the general direction of Araneta Avenue.[6] Rodriguez further
added that he was standing in front of his establishment, just ten to twenty feet away from the
scene of the accident, when he saw the car hit Valenzuela, hurtling her against the windshield
of the defendants Mitsubishi Lancer, from where she eventually fell under the defendants car.
Spontaneously reacting to the incident, he crossed the street, noting that a man reeking with
the smell of liquor had alighted from the offending vehicle in order to survey the
incident.[7] Equally important, Rodriguez declared that he observed Valenzuelas car parked
parallel and very near the sidewalk,[8] contrary to Lis allegation that Valenzuelas car was close
to the center of the right lane. We agree that as between Lis self-serving asseverations and
the observations of a witness who did not even know the accident victim personally and who
immediately gave a statement of the incident similar to his testimony to the investigator
immediately after the incident, the latters testimony deserves greater weight. As the court
emphasized:
The issue is one of credibility and from Our own examination of the transcript, We are not
prepared to set aside the trial courts reliance on the testimony of Rodriguez negating
defendants assertion that he was driving at a safe speed. While Rodriguez drives only a
motorcycle, his perception of speed is not necessarily impaired. He was subjected to cross-
examination and no attempt was made to question his competence or the accuracy of his
statement that defendant was driving very fast. This was the same statement he gave to the
police investigator after the incident, as told to a newspaper report (Exh. P). We see no
compelling basis for disregarding his testimony.
marcelo|torts and damages|full text
The alleged inconsistencies in Rodriguez testimony are not borne out by an examination of
the testimony. Rodriguez testified that the scene of the accident was across the street where
his beerhouse is located about ten to twenty feet away (pp. 35-36, tsn, June 17, 1991). He did
not state that the accident transpired immediately in front of his establishment. The ownership
of the Lambingan sa Kambingan is not material; the business is registered in the name of his
mother, but he explained that he owns the establishment (p. 5, tsn., June 20, 1991).
Moreover, the testimony that the streetlights on his side of Aurora Boulevard were on the
night the accident transpired (p. 8) is not necessarily contradictory to the testimony of Pfc.
Ramos that there was a streetlight at the corner of Aurora Boulevard and F. Roman
Street (p. 45, tsn., Oct. 20, 1991).
With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a
heavy rain and the rain has stopped and he was outside his establishment at the time the
accident transpired (pp. 64-65, tsn., June 17, 1991). This was consistent with plaintiffs
testimony that it was no longer raining when she left Bistro La Conga (pp. 10-11, tsn., April
29, 1991). It was defendant Li who stated that it was raining all the way in an attempt to
explain why he was travelling at only 50-55 kph. (p. 11, tsn., Oct. 14, 1991). As to the
testimony of Pfc. Ramos that it was raining, he arrived at the scene only in response to a
telephone call after the accident had transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no
substantial inconsistencies in Rodriguezs testimony that would impair the essential integrity of
his testimony or reflect on his honesty. We are compelled to affirm the trial courts acceptance
of the testimony of said eyewitness.
Against the unassailable testimony of witness Rodriguez we note that Lis testimony was
peppered with so many inconsistencies leading us to conclude that his version of the accident
was merely adroitly crafted to provide a version, obviously self-serving, which would exculpate
him from any and all liability in the incident. Against Valenzuelas corroborated claims, his
allegations were neither backed up by other witnesses nor by the circumstances proven in the
course of trial. He claimed that he was driving merely at a speed of 55 kph. when out of
nowhere he saw a dark maroon lancer right in front of him, which was (the) plaintiffs car. He
alleged that upon seeing this sudden apparition he put on his brakes to no avail as the road
was slippery.[9]
One will have to suspend disbelief in order to give credence to Lis disingenuous and patently
self-serving asseverations. The average motorist alert to road conditions will have no difficulty
applying the brakes to a car traveling at the speed claimed by Li. Given a light rainfall, the
visibility of the street, and the road conditions on a principal metropolitan thoroughfare
like Aurora Boulevard, Li would have had ample time to react to the changing conditions of
the road if he were alert - as every driver should be - to those conditions. Driving exacts a
more than usual toll on the senses. Physiological fight or flight[10] mechanisms are at work,
provided such mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness,
etc.[11]Lis failure to react in a manner which would have avoided the accident could therefore
have been only due to either or both of the two factors: 1) that he was driving at a very fast
speed as testified by Rodriquez; and 2) that he was under the influence of alcohol. [12] Either
factor working independently would have diminished his responsiveness to road conditions,
since normally he would have slowed down prior to reaching Valenzuelas car, rather than be
Page 91
in a situation forcing him to suddenly apply his brakes. As the trial court noted (quoted with
approval by respondent court):
Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the
incident, he said that while driving along Aurora Blvd., out of nowhere he saw a dark maroon
lancer right in front of him, which was plaintiffs car, indicating, again, thereby that, indeed, he
was driving very fast, oblivious of his surroundings and the road ahead of him, because if he
was not, then he could not have missed noticing at a still far distance the parked car of the
plaintiff at the right side near the sidewalk which had its emergency lights on, thereby avoiding
forcefully bumping at the plaintiff who was then standing at the left rear edge of her car.
Since, according to him, in his narration to the San Juan Police, he put on his brakes when he
saw the plaintiffs car in front of him, but that it failed as the road was wet and slippery, this
goes to show again, that, contrary to his claim, he was, indeed, running very fast. For, were it
otherwise, he could have easily completely stopped his car, thereby avoiding the bumping of
the plaintiff, notwithstanding that the road was wet and slippery. Verily, since, if, indeed, he
was running slow, as he claimed, at only about 55 kilometers per hour, then, inspite of the wet
and slippery road, he could have avoided hitting the plaintiff by the mere expedient or
applying his brakes at the proper time and distance.
It could not be true, therefore, as he now claims during his testimony, which is contrary to
what he told the police immediately after the accident and is, therefore, more believable, that
he did not actually step on his brakes, but simply swerved a little to the right when he saw the
on-coming car with glaring headlights, from the opposite direction, in order to avoid it.
For, had this been what he did, he would not have bumped the car of the plaintiff which was
properly parked at the right beside the sidewalk. And, it was not even necessary for him to
swerve a little to the right in order to safely avoid a collision with the on-coming car,
considering that Aurora Blvd. is a double lane avenue separated at the center by a dotted
white paint, and there is plenty of space for both cars, since her car was running at the right
lane going towards Manila and the on-coming car was also on its right lane going to Cubao. [13]
Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi
Lancer, the next question for us to determine is whether or not Valenzuela was likewise guilty
of contributory negligence in parking her car alongside Aurora Boulevard, which entire area Li
points out, is a no parking zone.
We agree with the respondent court that Valenzuela was not guilty of contributory negligence.
Contributory negligence is conduct on the part of the injured party, contributing as a legal
cause to the harm he has suffered, which falls below the standard to which he is required to
conform for his own protection. [14] Based on the foregoing definition, the standard or act to
which, according to petitioner Li, Valenzuela ought to have conformed for her own protection
was not to park at all at any point of Aurora Boulevard, a no parking zone. We cannot agree.
Courts have traditionally been compelled to recognize that an actor who is confronted with an
emergency is not to be held up to the standard of conduct normally applied to an individual
who is in no such situation. The law takes stock of impulses of humanity when placed in
marcelo|torts and damages|full text
threatening or dangerous situations and does not require the same standard of thoughtful and
reflective care from persons confronted by unusual and oftentimes threatening
conditions.[15] Under the emergency rule adopted by this Court in Gan vs Court of
Appeals,[16] an individual who suddenly finds himself in a situation of danger and is required to
act without much time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence if he fails to undertake what subsequently and
upon reflection may appear to be a better solution, unless the emergency was brought by his
own negligence.[17]
Applying this principle to a case in which the victims in a vehicular accident swerved to the
wrong lane to avoid hitting two children suddenly darting into the street, we held, in Mc Kee
vs. Intermediate Appellate Court,[18] that the driver therein, Jose Koh, adopted the best means
possible in the given situation to avoid hitting the children. Using the emergency rule the court
concluded that Koh, in spite of the fact that he was in the wrong lane when the collision with
an oncoming truck occurred, was not guilty of negligence.[19]
While the emergency rule applies to those cases in which reflective thought, or the
opportunity to adequately weigh a threatening situation is absent, the conduct which is
required of an individual in such cases is dictated not exclusively by the suddenness of the
event which absolutely negates thoughtful care, but by the over-all nature of the
circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will
not be faulted for stopping at a point which is both convenient for her to do so and which is not
a hazard to other motorists. She is not expected to run the entire boulevard in search for a
parking zone or turn on a dark Street or alley where she would likely find no one to help her. It
would be hazardous for her not to stop and assess the emergency (simply because the entire
length of Aurora Boulevard is a no-parking zone) because the hobbling vehicle would be both
a threat to her safety and to other motorists. In the instant case, Valenzuela, upon reaching
that portion of Aurora Boulevard close to A. Lake St., noticed that she had a flat tire. To avoid
putting herself and other motorists in danger, she did what was best under the situation. As
narrated by respondent court:
She stopped at a lighted place where there were people, to verify whether she had a flat tire
and to solicit help if needed. Having been told by the people present that her rear right tire
was flat and that she cannot reach her home she parked along the sidewalk, about 1 feet
away, behind a Toyota Corona Car.[20] In fact, respondent court noted, Pfc. Felix Ramos, the
investigator on the scene of the accident confirmed that Valenzuelas car was parked very
close to the sidewalk.[21] The sketch which he prepared after the incident showed Valenzuelas
car partly straddling the sidewalk, clear and at a convenient distance from motorists passing
the right lane of Aurora Boulevard. This fact was itself corroborated by the testimony of
witness Rodriguez.[22]
Under the circumstances described, Valenzuela did exercise the standard reasonably dictated
by the emergency and could not be considered to have contributed to the unfortunate
circumstances which eventually led to the amputation of one of her lower extremities. The
emergency which led her to park her car on a sidewalk in Aurora Boulevard was not of her
own making, and it was evident that she had taken all reasonable precautions.
Page 92
Obviously in the case at bench, the only negligence ascribable was the negligence of Li on
the night of the accident. Negligence, as it is commonly understood is conduct which creates
an undue risk of harm to others.[23] It is the failure to observe that degree of care, precaution,
and vigilance which the circumstances justly demand, whereby such other person suffers
injury.[24] We stressed, in Corliss vs. Manila Railroad Company,[25] that negligence is the want
of care required by the circumstances.
The circumstances established by the evidence adduced in the court below plainly
demonstrate that Li was grossly negligent in driving his Mitsubishi Lancer. It bears emphasis
that he was driving at a fast speed at about 2:00 A.M. after a heavy downpour had settled into
a drizzle rendering the street slippery. There is ample testimonial evidence on record to show
that he was under the influence of liquor. Under these conditions, his chances of effectively
dealing with changing conditions on the road were significantly lessened. As Prosser and
Keaton emphasize:
[U]nder present day traffic conditions, any driver of an automobile must be prepared for the
sudden appearance of obstacles and persons on the highway, and of other vehicles at
intersections, such as one who sees a child on the curb may be required to anticipate its
sudden dash into the street, and his failure to act properly when they appear may be found to
amount to negligence. [26]
Lis obvious unpreparedness to cope with the situation confronting him on the night of the
accident was clearly of his own making.
We now come to the question of the liability of Alexander Commercial, Inc. Lis employer. In
denying liability on the part of Alexander Commercial, the respondent court held that:
There is no evidence, not even defendant Lis testimony, that the visit was in connection with
official matters. His functions as assistant manager sometimes required him to perform work
outside the office as he has to visit buyers and company clients, but he admitted that on the
night of the accident he came from BF Homes Paraaque he did not have business from the
company (pp. 25-26, tsn, Sept. 23, 1991). The use ofthe company car was partly required by
the nature of his work, but the privilege of using it for non-official business is a benefit,
apparently referring to the fringe benefits attaching to his position.
Under the civil law, an employer is liable for the negligence of his employees in the discharge
of their respective duties, the basis of which liability is not respondeat superior, but the
relationship of pater familias, which theory bases the liability of the master ultimately on his
own negligence and not on that of his servant (Cuison v. Norton and Harrison Co., 55 Phil.
18). Before an employer may be held liable for the negligence of his employee, the act or
omission which caused damage must have occurred while an employee was in the actual
performance of his assigned tasks or duties (Francis High School vs. Court of Appeals, 194
SCRA 341). In defining an employers liability for the acts done within the scope of the
employees assigned tasks, the Supreme Court has held that this includes any act done by an
employee, in furtherance of the interests of the employer or for the account of the employer at
the time of the infliction of the injury or damage (Filamer Christian Institute vs. Intermediate
Appellate Court, 212 SCRA 637). An employer is expected to impose upon its employees the
marcelo|torts and damages|full text
necessary discipline called for in the performance of any act indispensable to the business
and beneficial to their employer (at p. 645).
In light of the foregoing, We are unable to sustain the trial courts finding that since defendant
Li was authorized by the company to use the company car either officially or socially or even
bring it home, he can be considered as using the company car in the service of his employer
or on the occasion of his functions. Driving the company car was not among his functions as
assistant manager; using it for non-official purposes would appear to be a fringe benefit, one
of the perks attached to his position. But to impose liability upon the employer under Article
2180 of the Civil Code, earlier quoted, there must be a showing that the damage was caused
by their employees in the service of the employer or on the occasion of their functions. There
is no evidence that Richard Li was at the time of the accident performing any act in
furtherance of the companys business or its interests, or at least for its benefit. The imposition
of solidary liability against defendant Alexander Commercial Corporation must therefore fail. [27]
We agree with the respondent court that the relationship in question is not based on the
principle of respondeat superior, which holds the master liable for acts of the servant, but that
of pater familias, in which the liability ultimately falls upon the employer, for his failure to
exercise the diligence of a good father of the family in the selection and supervision of his
employees. It is up to this point, however, that our agreement with the respondent court ends.
Utilizing the bonus pater familias standard expressed in Article 2180 of the Civil Code,[28]we
are of the opinion that Lis employer, Alexander Commercial, Inc. is jointly and solidarily liable
for the damage caused by the accident of June 24, 1990.
First, the case of St. Francis High School vs. Court of Appeals[29] upon which respondent court
has placed undue reliance, dealt with the subject of a school and its teachers supervision of
students during an extracurricular activity. These cases now fall under the provision on
special parental authority found in Art. 218 of the Family Code which generally encompasses
all authorized school activities, whether inside or outside school premises.
Second, the employers primary liability under the concept of pater familias embodied by Art.
2180 (in relation to Art. 2176) of the Civil Code is quasi-delictual or tortious in character. His
liability is relieved on a showing that he exercised the diligence of a good father of the family
in the selection and supervision of its employees. Once evidence is introduced showing that
the employer exercised the required amount of care in selecting its employees, half of the
employers burden is overcome. The question of diligent supervision, however, depends on
the circumstances of employment.
Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its
employee during the performance of the latters assigned tasks would be enough to relieve
him of the liability imposed by Article 2180 in relation to Article 2176 of the Civil Code. The
employer is not expected to exercise supervision over either the employees private activities
or during the performance of tasks either unsanctioned by the former or unrelated to the
employees tasks. The case at bench presents a situation of a different character, involving a
practice utilized by large companies with either their employees of managerial rank or their
representatives.
Page 93
It is customary for large companies to provide certain classes of their employees with
courtesy vehicles. These company cars are either wholly owned and maintained by the
company itself or are subject to various plans through which employees eventually acquire
their vehicles after a given period of service, or after paying a token amount. Many companies
provide liberal car plans to enable their managerial or other employees of rank to purchase
cars, which, given the cost of vehicles these days, they would not otherwise be able to
purchase on their own.
Under the first example, the company actually owns and maintains the car up to the point of
turnover of ownership to the employee; in the second example, the car is really owned and
maintained by the employee himself. In furnishing vehicles to such employees, are companies
totally absolved of responsibility when an accident involving a company-issued car occurs
during private use after normal office hours?
Most pharmaceutical companies, for instance, which provide cars under the first plan, require
rigorous tests of road worthiness from their agents prior to turning over the car (subject of
company maintenance) to their representatives. In other words, like a good father of a family,
they entrust the company vehicle only after they are satisfied that the employee to whom the
car has been given full use of the said company car for company or private purposes will not
be a threat or menace to himself, the company or to others. When a company gives full use
and enjoyment of a company car to its employee, it in effect guarantees that it is, like every
good father, satisfied that its employee will use the privilege reasonably and responsively.
In the ordinary course of business, not all company employees are given the privilege of using
a company-issued car. For large companies other than those cited in the example of the
preceding paragraph, the privilege serves important business purposes either related to the
image of success an entity intends to present to its clients and to the public in general, or for
practical and utilitarian reasons - to enable its managerial and other employees of rank or its
sales agents to reach clients conveniently. In most cases, providing a company car serves
both purposes. Since important business transactions and decisions may occur at all hours in
all sorts of situations and under all kinds of guises, the provision for the unlimited use of a
company car therefore principally serves the business and goodwill of a company and only
incidentally the private purposes of the individual who actually uses the car, the managerial
employee or company sales agent. As such, in providing for a company car for business use
and/or for the purpose of furthering the companys image, a company owes a responsibility to
the public to see to it that the managerial or other employees to whom it entrusts virtually
unlimited use of a company issued car are able to use the company issue capably and
responsibly.
In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his
testimony before the trial court, he admitted that his functions as Assistant Manager did not
require him to scrupulously keep normal office hours as he was required quite often to
perform work outside the office, visiting prospective buyers and contacting and meeting with
company clients.[30] These meetings, clearly, were not strictly confined to routine hours
because, as a managerial employee tasked with the job of representing his company with its
clients, meetings with clients were both social as well as work-related functions. The service
car assigned to Li by Alexander Commercial, Inc. therefore enabled both Li - as well as the
marcelo|torts and damages|full text
corporation - to put up the front of a highly successful entity, increasing the latters goodwill
before its clientele. It also facilitated meeting between Li and its clients by providing the former
with a convenient mode of travel.
Moreover, Lis claim that he happened to be on the road on the night of the accident because
he was coming from a social visit with an officemate in Paraaque was a bare allegation which
was never corroborated in the court below. It was obviously self-serving. Assuming he really
came from his officemates place, the same could give rise to speculation that he and his
officemate had just been from a work-related function, or they were together to discuss sales
and other work related strategies.
In fine, Alexander Commercial, Inc. has not demonstrated, to our satisfaction, that it exercised
the care and diligence of a good father of the family in entrusting its company car to Li. No
allegations were made as to whether or not the company took the steps necessary to
determine or ascertain the driving proficiency and history of Li, to whom it gave full and
unlimited use of a company car.[31] Not having been able to overcome the burden of
demonstrating that it should be absolved of liability for entrusting its company car to Li, said
company, based on the principle of bonus pater familias, ought to be jointly and severally
liable with the former for the injuries sustained by Ma. Lourdes Valenzuela during the
accident.
Finally, we find no reason to overturn the amount of damages awarded by the respondent
court, except as to the amount of moral damages. In the case of moral damages, while the
said damages are not intended to enrich the plaintiff at the expense of a defendant, the award
should nonetheless be commensurate to the suffering inflicted. In the instant case we are of
the opinion that the reduction in moral damages from an amount of P 1,000,000.00 to
P500,000.00 by the Court of Appeals was not justified considering the nature of the resulting
damage and the predictable sequelae of the injury.
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her
left lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will
forever be deprived of the full ambulatory functions of her left extremity, even with the use of
state of the art prosthetic technology. Well beyond the period of hospitalization (which was
paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During her lifetime, the prosthetic devise will have to
be replaced and re-adjusted to changes in the size of her lower limb effected by the biological
changes of middle-age, menopause and aging. Assuming she reaches menopause, for
example, the prosthetic will have to be adjusted to respond to the changes in bone resulting
from a precipitate decrease in calcium levels observed in the bones of all post-menopausal
women. In other words, the damage done to her would not only be permanent and lasting, it
would also be permanently changing and adjusting to the physiologic changes which her body
would normally undergo through the years. The replacements, changes, and adjustments will
require corresponding adjustive physical and occupational therapy. All of these adjustments, it
has been documented, are painful.
Page 94
The foregoing discussion does not even scratch the surface of the nature of the resulting
damage because it would be highly speculative to estimate the amount of psychological pain,
damage and injury which goes with the sudden severing of a vital portion of the human body.
A prosthetic device, however technologically advanced, will only allow a reasonable amount
of functional restoration of the motor functions of the lower limb. The sensory functions are
forever lost. The resultant anxiety, sleeplessness, psychological injury, mental and physical
pain are inestimable.
As the amount of moral damages are subject to this Courts discretion, we are of the opinion
that the amount of P1,000,000.00 granted by the trial court is in greater accord with the extent
and nature of the injury -. physical and psychological - suffered by Valenzuela as a result of
Lis grossly negligent driving of his Mitsubishi Lancer in the early morning hours of the
accident.
WHEREFORE, PREMISES CONSIDERED, the decision of the court of Appeals is modified
with the effect of REINSTATING the judgment of the Regional Trial Court.
ELENA AMEDO, plaintiff-appellant,
vs.
RIO Y OLABARRIETA, INC., defendant-appellee.
Cesareo Perez and Meliton C. Parducho for appellant.
M. Almario and Jose T. Lajom for appellee.
CONCEPCION, J.:
This case was instituted on October 18, 1950. In her original complaint, plaintiff Elena Amedo
sought to collect from defendant Rio y Olabarrieta, Inc., the sum of P2,038.40 as
compensation for the death of her son, Filomeno Managuit, who worked for the defendant as
a seaman of the M/S Pilar II. The main allegation of said original complaint was:
That on May 27, 1949 at about 11:30 o'clock in the morning, while the deceased Filomeno
Managuit was on board M/S "Pilar II" as such seaman, he jumped into the water to retrieve a
2-peso bill belonging to him, and as a consequence of which, he was drowned.
On November 1, 1950, defendant filed a motion to dismiss upon the ground that said
allegation does not show that the death of plaintiff's son was due to an "accident arising out of
and in the course of employment," and that, accordingly, the complaint does not state a cause
of action. This motion was granted and the complaint dismissed, accordingly, by an order
dated December 11, 1950. A motion for the reconsideration of this order having been denied,
plaintiff appealed to this Court, which, on October 30, 1952, rendered a decision affirming the
order appealed from, but "without prejudice to the right of the plaintiff, the mother of the
deceased seaman, to file an amended complaint within fifteen (15) days from notice by the
clerk of the trial court that the record of this case had been remanded to and received by the
trial court, without costs." Hence, on December 22, 1952, plaintiff filed an amended complaint,
paragraph 4 of which alleges:
marcelo|torts and damages|full text
That on May 27, 1949, at or about 11:30 o'clock in the morning while the said Filomeno
Managuit was in the course of his employment, performing his duties as such ordinary
seaman on defendant's M/S "Pilar II", which was anchored then about 1 1/2 miles from the
seashore of Arceli Dumarang, Palawan, his two-peso bill was blown by the breeze into the
sea and in his effort to retrieve the same from the waters he was drowned.
A motion to dismiss this amended complaint upon the ground of failure to state a cause of
action was granted and the case, consequently, dismissed without costs. Are consideration of
this action having been denied, the case is once again before us on appeal.
Plaintiff's claim is admittedly predicated upon Act No. 3428, otherwise known as the
Workmen's Compensation Act. The same was amended, first, by Act No. 3812, then, by
Commonwealth Act No. 210 and, lastly, by Republic Act 772. The latter, however, took effect
on June 20,1952 or after the accident upon which plaintiff bases her cause of action. Hence,
in the consideration of this case, we shall disregard the provisions of said Republic Act No.
772. Sections 2 and 4 of Act No. 2428, prior to its latest amendment, read:
Sec. 2. Grounds for compensation. — When any employee receives a personal injury from
any accident arising out of and in the course of the employment, or contracts any illness
directly caused by such employment, or the result of the nature of such employment, his
employer shall pay compensation in the sums and to the persons hereinafter specified.
Sec. 4. Injuries not covered. — Compensation shall not be allowed for injuries caused (1) by
the voluntary intent of the employee to inflict such injury upon himself or another person; (2)
by drunkenness on the part of the laborer who had the accident; (3) by notorious negligence
of the same.
Pursuant to these provisions — in so far as pertinent to the case at bar — three conditions are
essential to hold an employer liable to compensate his employee for a personal injury
sustained by him from an accident, namely: (1) the accident must arise out of the
employment; (2) it must happen in the course of the employment; and (3) it must not be
caused by the "notorious negligence" of the employee.
Admittedly, the death of Filomeno Managuit was due to an accident. The point in issue is
whether such accident occurred under the three (3) conditions aforementioned. Referring to
the first two requirements, we said, in Afable et al. vs. Singer Sewing Machine Co. (58 Phil.,
39, 42):
The phrase "due to and in the pursuance of" used in section 2 of Act No. 3428 was changed
in Act No. 3812 to "arising out of and in the course of". Discussing this phrase, the Supreme
Court of Illinois in the case of Muller Construction Co. vs. Industrial Board (283 Ill., 148; 118
N. E., 1028; 1 W. C. L., 943), said:
"The words "arising out of" refer to the origin or cause of the accident and are descriptive of its
character, while the words `in the course of' refer to the time, place, and circumstances under
which the accident takes place. (Fitzgerald vs. Clarke & Sons, 1 B.W.C.C., 197 Dietzen
Co. vs. Industrial Board, 279 Ill. 11; 116 N.E. 684.) By the use of these words it was not the
intention of the legislature to make the employer an insurer against all accidental injuries
Page 95
which might happen to an employee while in the course of the employment, but only for such
injuries arising from or growing out of the risks peculiar to the nature of work in the scope of
the workmen's employment or incidental to such employment, and accidents in which it is
possible to trace the injury to some risk or hazard to which the employee is exposed ina
special degree by reason of such employment. Risks to which all persons similarly situated
are equally exposed and not traceable in some special degree to the particular employment
are excluded."
Adopting a liberal view, it may be conceded that the death of Filomeno took place "in the
course of" his employment, in that it happened at the "time" when, and at the "place" where-
according to the amended complaint-he was working. However, the accident which produced
this tragic result did not "arise out of" his employment. Indeed, the latter was not "the origin or
cause of said accident. The blowing of his 2-peso bill may have grown out of, or arisen from,
his employment. It was the result of a risk peculiar to his work as a seaman or incidental to
such work. But, his death was the consequence of his decision to jump into the water to
retrieve said bill. The hazardous nature of this act was not due specially to the nature of his
employment. It was a risk to which any person on board the M/S Pilar II, such as a passenger
thereof or an ordinary visitor, would have been exposed had he, likewise, jumped into the sea,
as Filomeno had.
Irrespective of whether or not the accident in question arose out of, or took place in the course
of the employment, was it caused by his "notorious negligence"? The phrase "notorious
negligence" has been held to be tantamount to "gross negligence", which, in turn, has been
defined as follows:
Gross negligence is define to be the want of even slight care and diligence. (Mobile and M. R.
Co. vs. Aschcraft [1872] 48 Ala., 15.)
By gross negligence is meant "such entire want of care as to raise a presumption that the
person in fault is conscious of the probable consequences of carelessness, and is indifferent,
or worse, to the danger of injury to person or property of others." ... The negligence must
amount to a reckless disregard of the safety of person or property." (Wall vs. Cameron [1882]
6 Colo., 275; see, also, The Law Governing Labor Disputes in the Philippines by Francisco,
2nd ed., p. 877.)
It cannot be denied that in jumping into the sea, one mile and a half from the seashore of
Arceli, Dumarang, Palawan, Filomeno failed to exercise "even slight care and diligence," that
he displayed a "reckless disregard of the safety" of his person, that he could not have been
but conscious of the probable consequences" of his carelessness and that he was "indifferent,
or worse, to the danger of injury.
Thus, in the case of Government of the Philippines vs. The Manila Electric Co. (40 Off. Gaz.,
9th Suppl., 232),an employee of the Bureau of Posts who died by electrocution, as the lines
which he was repairing came into contact with those of the Manila Electric, was held to be
guilty of gross negligence, he having been previously warned that the service of electric light
had been reestablished and that he should, therefore be careful in handling the wires. The
same conclusion was reached in De la Cruz vs. Hijos de I. de la Rama and Co. (62 Phil.,
653), involving a truck driver who died, because his truck fell into a ditch in consequence of a
marcelo|torts and damages|full text
false manuever he made to avoid collision with another car which unexpectedly appeared on
the road, while he was driving on the wrong side of the highway, at a speed of 40 to 50 km. an
hour.
To the same effect was the decision in Jahara vs. Mindanao Lumber Co. (57 Phil., 853),
referring to a laborer who was run over by a car, as he fell therefrom, when he tried to board it
while moving backward. Similarly, the death of a carpenter as he slipped from the roof of a
building he was repairing was blamed on his gross negligence in Caunan vs. Compania
General de Tabacos (56 Phil., 542,545), he having worn rubber shoes despite the fact that
the roof was wet.
The case of Reyes vs. The City of Manila (G. R. No. 29112, July 18, 1933) referred to a
watchman assigned to a road-roller, who sat on a piece of board one end of which was over a
box placed on the hind wheels of the road-roller and the other end over a box of tools on the
same rollert two meters above the ground. As he tried to drive away the mosquitoes and flying
ants which bothered him, the board slipped off the wheel of the roller. So, he fell to the ground
and his knee and left pelvis bumped against the cement sidewalk, sustaining physical injuries
as a consequence thereof. It was held that he had been grossly negligent in seating on the
piece of board which was precariously placed and in making motions for the purpose of
driving away the mosquitoes and flying ants. Again in Guilas vs. The Province of
Pampanga (G. R. No. 37744, July 21, 1933), a laborer on board a truck who stood up as it
was approaching a curve and fell over when the vehicle turned the curved, was held guilty of
gross negligence.
In none of these cases was the danger as apparent or imminent as when Filomeno Managuit
jumped into the sea to recover his 2-peso bill. Hence, there is more reason to hold that his
death was caused by his notorious negligence.
His case is easily distinguishable from that of Cuevo vs. Barredo (G.R. No. 45669, decided
February 24, 1938, the employee involved therein, who appeared to be a good swimmer,
having acted in obedience to an order of his foreman, to save or protect a property of the
employer. It is, also, distinguishable from accidents occurring while the laborer or employee is
answering a call of nature, or throwing away his cigarette (Columbia Casualty Co. vs.
Parham, 69 Ga. App. 258), or picking up his pipe, which had fallen, or retrieving his shoes
from a car into which a fellow worker had thrown it (Donovan vs. Bush Terminal Co., 6 N. Y.
S. 2nd 860, 255 App. Div. 737), these acts not being dangerous per se and the employee
being legally justified or supposed to perform either of them in the course of his employment.
So, also, if, while Filomeno Managuit was working, his 2-peso bill merely fell from his pocket,
and as he picked up the bill from the floor something accidentally fell upon him and injured
him, he would surely be entitled to compensation, his act being obviously innocent. In such
case, it could be said, in the words of the Lord President in Lauchlan vs. Anderson (S. C.
529), that "He had the right to be at the place ...; he was within the time during which he was
employed ...;and he was doing a thing which a man while working may reasonably do-a
workman of his sort may reasonably smoke, he may reasonably drop his pipe, and he may
reasonably pick it up again." (See Ramos vs. Poblete et al., 40 Off. Gaz., 3474). Jumping into
the sea, however, is entirely different, the danger which it entails being clear, potent and
obvious.
Page 96
In view of the foregoing the decision appealed from is hereby affirmed, without special
pronouncement as to costs.
It is so ordered.
MARINDUQUE IRON MINES AGENTS, INC., Petitioner, vs. THE WORKMEN’S
COMPENSATION COMMISSION, THE HEIRS OF PEDRO MAMADOR and GERONIMO
MA. COLL, Respondents.
DECISION
BENGZON, J.:
The Marinduque Iron Mines Agents Inc. questions by certiorari the order of the Workmen’s
Compensation Commissioner confirming the referee’s award of compensation to the heirs of
Pedro Mamador for his accidental death.
Only the right to compensation is disputed; chan roblesvirtualawlibrarynot the amount.
“It appears,” says the award, “that on August 23, 1951, at 6:chanroblesvirtuallawlibrary00 a.m.
in Bo. Sumangga, Mogpog, Marinduque, the deceased Mamador together with other laborers
of the Respondent-corporation, (Marinduque Iron Mines Agents Inc.) boarded a truck
belonging to the latter, which was then driven by one Procopio Macunat, also employed by
the corporation, and on its way to their place of work at the mine camp at Talantunan, while
trying to overtake another truck on the company road, it turned over and hit a coconut tree,
resulting in the death of said Mamador and injury to the others.”
Procopio Macunat was prosecuted, convicted and sentenced to indemnify the heirs of the
deceased. (Criminal Case No. 1491). He has paid nothing however, to the latter.
In his first proposition Petitioner challenges the validity of the proceedings before the
Commission, asserting it had not been given the opportunity to cross-examine the opposing
witnesses. According to Respondents.
“The records show that pursuant to a request made by this Commission on March 28, 1953 to
investigate the above-entitled case, the Public Defender of Boac, Marinduque,
notified RespondentGeronimo Ma. Coll and the general manager of
the Respondent company, Mr. Eric Lenze, to appear before him in an investigation, first on
May 12, 1953, when neither of them appeared, and the second on May 29, 1953, when only
Mr. Geronimo Ma. Coll. appeared. The sworn testimony of Mr. Ma. Coll was then taken down
in a question and answer method. On August 18, 1953, thru Referee Ramon Villaflor, this
Commission wrote the Respondent company to comment on the enclosed copy of the sworn
declaration of Ma. Coll. The Respondent company, thru its Vice President, denied its liability
under the Workmen’s Compensation Act, as amended. In an investigation conducted on
February 8, 1954 by the undersigned referee, the Respondent company thru Mr. Lenze who
was assisted by counsel, was allowed to examine the records of the case including the sworn
marcelo|torts and damages|full text
declaration of Ma. Coll and was given all the opportunity to rebut the same by additional
evidence.”
In our opinion, Petitioner’s grievance does not rest on any sound basis, because it was given
notice, and therefore had the chance, to examine (and cross-examine) the witnesses against
it. The statute even permits the Commissioner (or his referee) to take testimony without notice
(section 48 Act 3428 as amended) provided of course such ex parte evidence is reduced to
writing, and the adverse party is afforded opportunity to examine and rebut the same which
was done in this instance.
Anyway we are not shown how its failure to cross-examine the witnesses prejudiced
the Petitioner’s position.
In its second proposition, Petitioner maintains that this claim is barred by section 6 of the
Workmen’s Compensation Law, because (a) Macunat was prosecuted and required to
indemnify the heirs of the deceased and (b) an amicable settlement was concluded between
said heirs and Macunat.
Section 6 provides as follows:chanroblesvirtuallawlibrary
“Sec. 6. Liability of third parties. — In case an employee suffers an injury for which
compensation is due under this Act by any other person besides his employer, it shall be
optional with such injured employee either to claim compensation from his employer, under
this Act, or sue such other person for damages, in accordance with law; chan
roblesvirtualawlibraryand in case compensation is claimed and allowed in accordance with
this Act, the employer who paid such compensation or was found liable to pay the same, shall
succeed the injured employee to the right of recovering from such person what he
paid:chanroblesvirtuallawlibrary Provided, That in case the employer recovers from such third
person damages in excess of those paid or allowed under this Act, such excess shall be
delivered to the injured employee or any other person entitled thereto, after deduction of the
expenses of the employer and the costs of the proceedings. The sum paid by the employer
for compensation or the amount of compensation to which the employee or his dependents
are entitled, shall not be admissible as evidence in any damage suit or action.”
It is the Petitioner’s contention that Criminal Case No. 1491 and its outcome constituted an
election by the employee (or his heirs) to sue the third person, such election having the effect
of releasing the employer. However, Criminal Case No. 1491 was not a suit for damages
against the third person, it being alleged, without contradiction that the heirs did not intervene
therein and have not so far received the indemnity ordered by the court. At any rate, we have
already decided in Nava vs. Inchausti Co. 1 that the indemnity granted the heirs in a criminal
prosecution of the “other person” does not affect the liability of the employer to pay
compensation. 2
As to the alleged “amicable settlement,” it consists of an affidavit wherein, for the sum of 150
pesos, Mamador’s widow promised “to forgive Macunat for the wrong committed and not to
bring him before the authorities for prosecution.” Upon making such promise —
Petitioner argues — she elected one of the remedies, (against the third person) and is barred
from the other remedy (against the employer). The contention may not be sustained,
Page 97
inasmuch as all the widow promised was to forego the offender’s criminal prosecution. Note CONCEPCION ILAO-ORETA, G.R. No. 172406
further that a question may be raised whether she could bind the other heirs of the deceased.
Petitioner,
The most important aspect of this appeal, is the effect of the deceased’s having violated the
employer’s prohibition against laborers riding the haulage trucks. Petitioner claims such Present:
violation was the laborer’s “notorious negligence” which, under the law, precludes recovery.
The Commission has not declared that the prohibition was known to Mamador. Yet the
employer does not point out in the record evidence to that effect. Supposing Mamador knew
the prohibition, said the referee, “can we truthfully say that he boarded the fatal truck with full QUISUMBING, J., Chairperson,
apprehension of the existence of the danger, if any at all, that an ordinary prudent man would
try to avoid? I do not believe so, and even in the presence of doubt, the same must be CARPIO,
resolved in his favor. Unless of course, we can attribute to him a desire to end his life.
Nowhere in the records of this case can we find the slightest insinuation of that desire.” - versus - CARPIO MORALES,

There is no doubt that mere riding on haulage truck or stealing a ride thereon is not TINGA, and
negligence, ordinarily. It couldn’t be, because transportation by truck is not dangerous per se.
It is argued that there was notorious negligence in this particular instance because there was VELASCO, JR., JJ.
the employer’s prohibition. Does violation of this order constitute negligence? Many courts
hold that violation of a statute or ordinance constitutes negligence per se. Others consider the
circumstances.
Promulgated:
However there is practical unanimity in the proposition that violation of a rule promulgated by
SPOUSES EVA MARIE and BENEDICTO NOEL October 11, 2007
a Commission or board is not negligence per se; chan roblesvirtualawlibrarybut it may be
RONQUILLO,
evidence of negligence. (C.J.S., Vol. 65, p. 427.)
Respondents.
This order of the employer (prohibition rather) couldn’t be of a greater obligation than the rule
of a Commission or board. And the referee correctly considered this violation as possible
evidence of negligence; chan roblesvirtualawlibrarybut it declared that under the
circumstance, the laborer could not be declared to have acted with negligence. Correctly, it is
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
believed, since the prohibition had nothing to do with personal safety of the riders.

Such finding is virtually a finding of fact which we may not overrule in this certiorari
proceeding.
DECISION

Nevertheless, even granting there was negligence, it surely was not “notorious” negligence,
which we have interpreted to mean the same thing as “gross” negligence 3 — implying
“conscious indifference to consequences” “pursuing a course of conduct which would
naturally and probably result in injury” “utter disregard of consequences.” (38 Am. Jur., 691)
Getting or accepting a free ride on the company’s haulage truck couldn’t be gross negligence,
because as the referee found, “no danger or risk was apparent.”
There being no other material point raised in the petition for review, the award of
compensation is hereby affirmed, with costs against Petitioner.
CARPIO MORALES, J.:
Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto
(Noel) Ronquillo (the Ronquillo spouses or the spouses), had not been blessed with a child
despite several years of marriage. They thus consulted petitioner, Dr. Concepcion Ilao-Oreta
(Dr. Ilao-Oreta), an obstetrician-gynecologist-consultant at the St. Lukes MedicalCenter where
she was, at the time material to the case, the chief of the Reproductive Endocrinology and
Infertility Section.

marcelo|torts and damages|full text Page 98

Upon Dr. Ilao-Oretas advice, Eva Marie agreed to undergo a laparoscopic procedure whereby On appeal by the spouses, the Court of Appeals, by Decision[6] of April 21, 2006, finding
a laparascope would be inserted through the patients abdominal wall to get a direct view of Dr. Ilao-Oreta grossly negligent,[7] modified the trial courts decision as follows:
her internal reproductive organ in order to determine the real cause of her infertility.

The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be performed by Dr. Ilao-
Oreta. At around 7:00 a.m. of said date, Eva Marie, accompanied by her husband Noel,
checked in at the St. Lukes Medical Center and underwent pre-operative procedures including
the administration of intravenous fluid and enema.
WHEREFORE, the trial Courts decision dated March 9, 2001 is affirmed, subject to the
modification that the amount of actual damages, for which both defendants-appellees are
jointly and severally liable to plaintiffs-appellants, is increased to P16,069.40. Furthermore,
defendant-appellee Dr. Ilao-Oreta is also held liable to pay plaintiff-appellants the following:

Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure, however, and no prior
notice of its cancellation was received. It turned out that the doctor was on a return flight (a) P50,000.00 as moral damages;
from Hawaii to, and arrived at 10:00 p.m. of April 5, 1999 in, Manila.

(b) P25,000.00 as exemplary damages; and

On May 18, 1999, the Ronquillo spouses filed a complaint[1] against Dr. Ilao-Oreta and the St.
Lukes Medical Center for breach of professional and service contract and for damages before
the Regional Trial Court (RTC) of Batangas City. They prayed for the award of actual
damages including alleged loss of income of Noel while accompanying his wife to the (c) P20,000.00 as attorneys fees.
hospital, moral damages, exemplary damages, the costs of litigation, attorneys fees, and
other available reliefs and remedies.[2]

SO ORDERED.[8] (Underscoring supplied)

In her Answer,[3] Dr. Ilao-Oreta gave her side of the case as follows: She went on a
honeymoon to Hawaii and was scheduled to leave Hawaii at 3:00 p.m. of April 4,
1999 for Manila. Aware that her trip from Hawaii to Manila would take about 12 hours,
inclusive of a stop-over at the Narita Airport in Japan, she estimated that she would arrive
in Manila in the early morning of April 5, 1999. She thus believed in utmost good faith that she
would be back in Manila in time for the scheduled conduct of the laparoscopic procedure. She
Hence, the present Petition for Review[9] of Dr. Ilao-Oreta raising the following arguments:
failed to consider the time difference between Hawaii and the Philippines, however.

THE COURT A QUO ERRED IN FINDING PETITIONER TO HAVE ACTED WITH GROSS
In its Answer,[4] the St. Lukes Medical Center contended that the spouses have no cause of
NEGLIGENCE AND AWARDING MORAL DAMAGES TO RESPONDENTS.[10]
action against it since it performed the pre-operative procedures without delay, and any cause
of action they have would be against Dr. Ilao-Oreta.

THE COURT A QUO ERRED IN AWARDING EXEMPLARY DAMAGES TO

[5] RESPONDENTS.[11]
By Decision of March 9, 2001, Branch 84 of the Batangas RTC, finding that the failure of the
doctor to arrive on time was not intentional, awarded Eva Marie only actual damages in the
total amount of P9,939 and costs of suit. It found no adequate proof that Noel had been
deprived of any job contract while attending to his wife in the hospital.
THE COURT A QUO [ERRED] IN AWARDING ATTORNEYS FEES TO RESPONDENTS.[12]

marcelo|torts and damages|full text Page 99

 A: I called immediately the hospital and I talked with the nurses, I asked about the patient,
Mrs. Ronquillo, and they told me that she has already left at around 7:00.
THE COURT A QUO ERRED IN INCREASING THE AWARD OF ACTUAL DAMAGES IN
FAVOR OF RESPONDENTS.[13]

Q: And after calling the hospital, what happened?

Gross negligence implies a want or absence of or failure to exercise slight care or diligence, A: I wanted to call the plaintiffs, but I didnt have their number at that time, so in the morning I
or the entire absence of care. It evinces a thoughtless disregard of consequences without went to my office early at 8:00 and looked for her chart, because her telephone number was
exerting any effort to avoid them.[14] It is characterized by want of even slight care, acting or written in the chart. So, I called them right away.
omitting to act in a situation where there is a duty to act, not inadvertently but willfully and
intentionally with a conscious indifference to consequences in so far as other persons may be
affected.[15]
Q: Were you able to contact them?

The records show that before leaving for Hawaii, Dr. Ilao-Oreta left an admitting order with her
secretary for one of the spouses to pick up, apprised Eva Marie of the necessary preparations A: I was able to reach Mr. Ronquillo.
for the procedure, and instructed the hospital staff to perform pre-operative
treatments.[16] These acts of the doctor reflect an earnest intention to perform the procedure
on the day and time scheduled.
Q: In the course of your conversation, what did you tell Mr. Ronquillo?

The records also show that on realizing that she missed the scheduled procedure, Dr. Ilao-
Oreta, upon arrival in Manila, immediately sought to rectify the same, thus: A: I apologized to him, I said I was sorry about the time that I missed the surgery, and I told
him that I can do the case right that same day without Mrs. Ronquillo having to undergo
another [b]arium enema.

[ATTY SINJAN] Q: So, can you tell us the reason why you missed that operation?

Q: What else did you tell him, if any?

[DR. ILAO-ORETA] A: When I scheduled her for the surgery, I looked at my ticket and so I
was to leave Hawaii on April 4 at around 4:00 oclock in the afternoon, so I was computing 12
hours of travel including stop-over, then probably I would be in Manila early morning of April 5, A: I asked him whether I can talk with Mrs. Ronquillo because I wanted to apologize to her
then I have so much time and I can easily do the case at 2:00 oclock, you know it skipped my personally.
mind the change in time.

Q: And what did he say?

Q: So when you arrived at 10:00 [PM] in Manila, what did you do?

A: I could hear on the background that Mrs. Ronquillo was shouting angrily that she didnt
want to talk to me, and that she didnt want re-scheduling of the surgery . . .

marcelo|torts and damages|full text Page 100


ATTY LONTOK: May we move, your Honor, for the striking out of the answer, this is purely
hearsay.
COURT: Remain on the record.
WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo told me Im sorry, Dra., we cannot
re-schedule the surgery.[17] (Underscoring supplied)
Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived in Manila as related
by her.[18]
The evidence then shows that Dr. Ilao-Oreta, who had traveled more than twice to the United
States where she obtained a fellowship in Reproductive Endocrinology and Infertility was
indeed negligent when she scheduled to perform professional service at 2:00 p.m. on April 5,
1999 without considering the time difference between the Philippines and Hawaii.
The doctors act did not, however, reflect gross negligence as defined above. Her argument
that
Although petitioner failed to take into consideration the time difference between
the Philippines and Hawaii, the situation then did not present any clear and apparent harm or
injury that even a careless person may perceive. Unlike in situations where the Supreme
Court had found gross negligence to exist, petitioner could not have been conscious of any
foreseeable danger that may occur since she actually believed that she would make it to
the operation that was elective in nature, the only purpose of which was to determine the real
cause of infertility and not to treat and cure a life threatening disease. Thus, in merely fixing
the date of her appointment with respondent Eva Marie Ronquillo, petitioner was not in the
pursuit or performance of conduct which any ordinary person may deem to probably and
naturally result in injury,[19] (Underscoring in original)
marcelo|torts and damages|full text
thus persuades.
It bears noting that when she was scheduling the date of her performance of the procedure,
Dr. Ilao-Oreta had just gotten married and was preparing for her honeymoon,[20] and it is of
common human knowledge that excitement attends its preparations. Her negligence could
then be partly attributed to human frailty which rules out its characterization as gross.
The doctors negligence not being gross, the spouses are not entitled to recover moral
damages.
Neither are the spouses entitled to recover exemplary damages in the absence of a showing
that Dr. Ilao-Oreta acted in a wanton, fraudulent, reckless, oppressive or malevolent
manner,[21] nor to award of attorneys fees as, contrary to the finding of the Court of Appeals
that the spouses were compelled to litigate and incur expenses to protect their interest,[22] the
records show that they did not exert enough efforts to settle the matter before going to
court. Eva Marie herself testified:
ATTY. SINJIAN:
Q: Isnt it true that before instituting this present case, you did not make any demand on Dr.
Ilao-Oreta regarding the claims which you have allegedly incurred, because of the failed
laparoscopic surgery operation?
A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of St. Lukes . . .
Q: But did you demand?
A: No, I did not demand because
ATTY. SINJIAN: That will be all, your Honor.
Page 101
ATTY. LONTOK: The witness is still explaining.

WITNESS: Im explaining first. Dr. Augusto Reyes told me that he will hold the meeting for me
and Dr. Oreta to settle things and reimburse all the money that I spent from the hospital, and
he even suggested Dr. Oreta to personally talk to me.
ATTY. SINJIAN:
Q: So it was to Dr. Augusto Reyes that you talked?
In fixing the amount of actual damages, the Court of Appeals and the trial court included
expenses which the spouses incurred prior to April 5, 1999 when the breach of contract
complained of occurred.[24] The Court of Appeals also included the alleged P300 spent on fuel
consumption from the spouses residence at San Pascual, Batangas to the St.
Lukes Medical Center in Quezon City and the alleged P500 spent on food in the hospital
canteen, both of which are unsubstantiated by independent or competent proof.[25] The only
piece of documentary evidence supporting the food and fuel expenses is an unsigned
listing.[26] As the fuel and food expenses are not adequately substantiated, they cannot be
included in the computation of the amount of actual damages. So Premiere Development
Bank v. Court of Appeals[27] instructs:

A: Yes.
In the instant case, the actual damages were proven through the sole testimony
of Themistocles Ruguero, the vice president for administration of Panacor. In his testimony,
the witness affirmed that Panacor incurred losses, specifically, in terms of training and
Q: But you did not demand anything or write to Dr. Oreta? seminars, leasehold acquisition, procurement of vehicles and office equipment without,
however, adducing receipts to substantiate the same. The documentary evidence marked as
Exhibit W, which was an ordinary private writing allegedly itemizing the capital expenditures
and losses from the failed operation of Panacor, was not testified to by any witness to
A: No.
ascertain the veracity of its content. Although the lower court fixed the sum of
P4,520,000.00 as the total expenditures incurred by Panacor, it failed to show how and in
what manner the same were substantiated by the claimant with reasonable
certainty. Hence, the claim for actual damages should be received with extreme caution since
Q: Before instituting this case?
it is only based on bare assertion without support from independent evidence. Premieres
failure to prove actual expenditure consequently conduces to a failure of its claim. In
determining actual damages, the court cannot rely on mere assertions, speculations,
conjectures or guesswork but must depend on competent proof and on the best evidence
A: No.[23] (Underscoring supplied)
obtainable regarding the actual amount of loss.[28] (Underscoring supplied)

Finally, Dr. Ilao-Oretas prayer for the reduction of actual damages is well-taken. Article 2201
The list of expenses cannot replace receipts when they should have been issued as a matter
of the Civil Code provides:
of course in business transactions[29] as in the case of purchase of gasoline and of food.

In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is
The documented claim for hospital and medical expenses of the spouses is detailed in the
liable shall be those which are the natural and probable consequences of the breach of the
Statement of Account issued by the hospital, the pertinent entries of which read:
obligation, and which the parties have foreseen or could have reasonably foreseen at the time
the obligation was constituted.

xxxx

marcelo|torts and damages|full text Page 102

 1) the award to respondents-spouses Noel and Eva Marie Ronquillo of actual damages
is REDUCED to P2,288.70, to bear interest at a rate of 6% per annum from the time of the
GROSS HOSPITAL CHARGES 2,416.50 filing of the complaint on May 18, 1999 and, upon finality of this judgment, at the rate of
12% per annum until satisfaction; and
4/5/1999 1699460 DEPOSITOFFICIAL

RECEIPT (5,000.00)
2. The award of moral and exemplary damages and attorneys fees is DELETED.
(5,000.00)
AMADO PICART, plaintiff-appellant,
________
vs.
FRANK SMITH, JR., defendant-appellee.
4/5/1999 SECOND 0284893 UNUSED MED 0439534 (65.55)
Alejo Mabanag for appellant.
FLOOR HINOX 500 MG CAP
G. E. Campbell for appellee.
SECOND 0284894 UNUSED MED 0439893 (62.25)
STREET, J.:
FLOOR PHENERGAN 2 ML
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr.,
the sum of P31,000, as damages alleged to have been caused by an automobile driven by
50MG ______ (127.80)
the defendant. From a judgment of the Court of First Instance of the Province of La Union
absolving the defendant from liability the plaintiff has appealed.
BALANCE DUE (2,711.30)[30]
The occurrence which gave rise to the institution of this action took place on December 12,
=======
1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion
in question the plaintiff was riding on his pony over said bridge. Before he had gotten half way
across, the defendant approached from the opposite direction in an automobile, going at the
As extrapolated from the above-quoted entries in the Statement of Account, P2,288.70 (the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a
gross hospital charges of P2,416.50 less the unused medicine in the amount of P127.80) was horseman on it and blew his horn to give warning of his approach. He continued his course
debited from the P5,000 deposit[31] to thus leave a balance of the deposit in the amount and after he had taken the bridge he gave two more successive blasts, as it appeared to him
of P2,711.30, which the trial court erroneously denominated as confinement fee. The that the man on horseback before him was not observing the rule of the road.
remaining balance of P2,711.30 was the amount refundable to the spouses.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However,
being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the
pony closely up against the railing on the right side of the bridge instead of going to the left.
Following Eastern Shipping Lines, Inc. v. Court of Appeals,[32] this Court awards interest on He says that the reason he did this was that he thought he did not have sufficient time to get
the actual damages to be paid by Dr. Ilao-Oreta at the rate of 6% per annumfrom the time of over to the other side. The bridge is shown to have a length of about 75 meters and a width of
the filing of the complaint on May 18, 1999, and at 12% per annum from the finality of this 4.80 meters. As the automobile approached, the defendant guided it toward his left, that being
judgment until its satisfaction. the proper side of the road for the machine. In so doing the defendant assumed that the
horseman would move to the other side. The pony had not as yet exhibited fright, and the
rider had made no sign for the automobile to stop. Seeing that the pony was apparently quiet,
the defendant, instead of veering to the right while yet some distance away or slowing down,
WHEREFORE, the petition is GRANTED. The decision appealed from is MODIFIED in that continued to approach directly toward the horse without diminution of speed. When he had
gotten quite near, there being then no possibility of the horse getting across to the other side,
the defendant quickly turned his car sufficiently to the right to escape hitting the horse
alongside of the railing where it as then standing; but in so doing the automobile passed in
such close proximity to the animal that it became frightened and turned its body across the

marcelo|torts and damages|full text Page 103

bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg
by the flange of the car and the limb was broken. The horse fell and its rider was thrown off
with some violence. From the evidence adduced in the case we believe that when the
accident occurred the free space where the pony stood between the automobile and the
railing of the bridge was probably less than one and one half meters. As a result of its injuries
the horse died. The plaintiff received contusions which caused temporary unconsciousness
and required medical attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car in
the manner above described was guilty of negligence such as gives rise to a civil obligation to
repair the damage done; and we are of the opinion that he is so liable. As the defendant
started across the bridge, he had the right to assume that the horse and the rider would pass
over to the proper side; but as he moved toward the center of the bridge it was demonstrated
to his eyes that this would not be done; and he must in a moment have perceived that it was
too late for the horse to cross with safety in front of the moving vehicle. In the nature of things
this change of situation occurred while the automobile was yet some distance away; and from
this moment it was not longer within the power of the plaintiff to escape being run down by
going to a place of greater safety. The control of the situation had then passed entirely to the
defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there
were no other persons on the bridge, to take the other side and pass sufficiently far away from
the horse to avoid the danger of collision. Instead of doing this, the defendant ran straight on
until he was almost upon the horse. He was, we think, deceived into doing this by the fact that
the horse had not yet exhibited fright. But in view of the known nature of horses, there was an
appreciable risk that, if the animal in question was unacquainted with automobiles, he might
get exited and jump under the conditions which here confronted him. When the defendant
exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the
law.
The test by which to determine the existence of negligence in a particular case may be stated
as follows: Did the defendant in doing the alleged negligent act use that person would have
used in the same situation? If not, then he is guilty of negligence. The law here in effect
adopts the standard supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor in the situation before him. The
law considers what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation
must of course be always determined in the light of human experience and in view of the facts
involved in the particular case. Abstract speculations cannot here be of much value but this
much can be profitably said: Reasonable men govern their conduct by the circumstances
which are before them or known to them. They are not, and are not supposed to be,
omniscient of the future. Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a prudent man, in the case under
consideration, foresee harm as a result of the course actually pursued? If so, it was the duty
of the actor to take precautions to guard against that harm. Reasonable foresight of harm,
followed by ignoring of the suggestion born of this prevision, is always necessary before
marcelo|torts and damages|full text
negligence can be held to exist. Stated in these terms, the proper criterion for determining the
existence of negligence in a given case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence
is clearly established. A prudent man, placed in the position of the defendant, would in our
opinion, have recognized that the course which he was pursuing was fraught with risk, and
would therefore have foreseen harm to the horse and the rider as reasonable consequence of
that course. Under these circumstances the law imposed on the defendant the duty to guard
against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road. But as we have
already stated, the defendant was also negligent; and in such case the problem always is to
discover which agent is immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference to the prior
negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should
perhaps be mentioned in this connection. This Court there held that while contributory
negligence on the part of the person injured did not constitute a bar to recovery, it could be
received in evidence to reduce the damages which would otherwise have been assessed
wholly against the other party. The defendant company had there employed the plaintiff, as a
laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's
yards located not far away. The rails were conveyed upon cars which were hauled along a
narrow track. At certain spot near the water's edge the track gave way by reason of the
combined effect of the weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It
appeared in evidence that the accident was due to the effects of the typhoon which had
dislodged one of the supports of the track. The court found that the defendant company was
negligent in having failed to repair the bed of the track and also that the plaintiff was, at the
moment of the accident, guilty of contributory negligence in walking at the side of the car
instead of being in front or behind. It was held that while the defendant was liable to the
plaintiff by reason of its negligence in having failed to keep the track in proper repair
nevertheless the amount of the damages should be reduced on account of the contributory
negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in
an omission only. The liability of the company arose from its responsibility for the dangerous
condition of its track. In a case like the one now before us, where the defendant was actually
present and operating the automobile which caused the damage, we do not feel constrained
to attempt to weigh the negligence of the respective parties in order to apportion the damage
according to the degree of their relative fault. It is enough to say that the negligence of the
Page 104
defendant was in this case the immediate and determining cause of the accident and that the JORGE, Promulgated:
antecedent negligence of the plaintiff was a more remote factor in the case.
Respondents. August 8, 2007
A point of minor importance in the case is indicated in the special defense pleaded in the
defendant's answer, to the effect that the subject matter of the action had been previously x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
adjudicated in the court of a justice of the peace. In this connection it appears that soon after
the accident in question occurred, the plaintiff caused criminal proceedings to be instituted
before a justice of the peace charging the defendant with the infliction of serious injuries
(lesiones graves). At the preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding that the acquittal of the
defendant at the trial upon the merits in a criminal prosecution for the offense mentioned DECISION
would be res adjudicata upon the question of his civil liability arising from negligence -- a point
upon which it is unnecessary to express an opinion -- the action of the justice of the peace in
dismissing the criminal proceeding upon the preliminary hearing can have no effect. (See U.
S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.) AUSTRIA-MARTINEZ, J.:

From what has been said it results that the judgment of the lower court must be reversed, and
judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred
pesos (P200), with costs of other instances. The sum here awarded is estimated to include
the value of the horse, medical expenses of the plaintiff, the loss or damage occasioned to
articles of his apparel, and lawful interest on the whole to the date of this recovery. The other
damages claimed by the plaintiff are remote or otherwise of such character as not to be
recoverable. So ordered.
ROBERTO C. SICAM and AGENCIA G.R. NO. 159617
Before us is a Petition for Review on Certiorari filed by Roberto C. Sicam, Jr.
(petitioner Sicam) and Agencia de R.C. Sicam, Inc. (petitioner corporation) seeking to annul
the Decision[1] of the Court of Appeals dated March 31, 2003, and its Resolution[2] dated
August 8, 2003, in CA G.R. CV No. 56633.
It appears that on different dates from September to October 1987, Lulu V. Jorge (respondent
Lulu) pawned several pieces of jewelry with Agencia de R. C. Sicam located at No. 17 Aguirre
Ave., BF Homes Paraaque, Metro Manila, to secure a loan in the total amount of P59,500.00.

de R.C. SICAM, INC.,

Petitioners,

Present: On October 19, 1987, two armed men entered the pawnshop and took away whatever cash
and jewelry were found inside the pawnshop vault. The incident was entered in the police
blotter of the Southern Police District, Paraaque Police Station as follows:

YNARES-SANTIAGO, J.,

Chairperson, Investigation shows that at above TDPO, while victims were inside the office, two (2) male
unidentified persons entered into the said office with guns drawn. Suspects(sic) (1) went
- versus - AUSTRIA-MARTINEZ,
straight inside and poked his gun toward Romeo Sicam and thereby tied him with an electric
wire while suspects (sic) (2) poked his gun toward Divina Mata and Isabelita Rodriguez and
CHICO-NAZARIO, and
ordered them to lay (sic) face flat on the floor. Suspects asked forcibly the case and assorted
pawned jewelries items mentioned above.
NACHURA, JJ.

Suspects after taking the money and jewelries fled on board a Marson Toyota unidentified
LULU V. JORGE and CESAR
plate number.[3]

marcelo|torts and damages|full text Page 105


Petitioner Sicam sent respondent Lulu a letter dated October 19, 1987 informing her of the
loss of her jewelry due to the robbery incident in the pawnshop. On November 2, 1987,
respondent Lulu then wrote a letter[4] to petitioner Sicam expressing disbelief stating that when
the robbery happened, all jewelry pawned were deposited with Far East Bank near the
pawnshop since it had been the practice that before they could withdraw, advance notice
must be given to the pawnshop so it could withdraw the jewelry from the bank. Respondent
Lulu then requested petitioner Sicam to prepare the pawned jewelry for withdrawal
on November 6, 1987 but petitioner Sicam failed to return the jewelry.
On September 28, 1988, respondent Lulu joined by her husband, Cesar Jorge, filed a
complaint against petitioner Sicam with the Regional Trial Court of Makati seeking
indemnification for the loss of pawned jewelry and payment of actual, moral and exemplary
damages as well as attorney's fees. The case was docketed as Civil Case No. 88-2035.
Petitioner Sicam filed his Answer contending that he is not the real party-in-interest as the
pawnshop was incorporated on April 20, 1987 and known as Agencia de R.C. Sicam, Inc; that
petitioner corporation had exercised due care and diligence in the safekeeping of the articles
pledged with it and could not be made liable for an event that is fortuitous.
Respondents subsequently filed an Amended Complaint to include petitioner corporation.
Thereafter, petitioner Sicam filed a Motion to Dismiss as far as he is concerned considering
that he is not the real party-in-interest. Respondents opposed the same. The RTC denied the
motion in an Order dated November 8, 1989.[5]
After trial on the merits, the RTC rendered its Decision[6] dated January 12, 1993, dismissing
respondents complaint as well as petitioners counterclaim. The RTC held that
petitioner Sicam could not be made personally liable for a claim arising out of a corporate
transaction; that in the Amended Complaint of respondents, they asserted that plaintiff
pawned assorted jewelries in defendants' pawnshop; and that as a consequence of the
separate juridical personality of a corporation, the corporate debt or credit is not the debt or
credit of a stockholder.
marcelo|torts and damages|full text
The RTC further ruled that petitioner corporation could not be held liable for the loss of the
pawned jewelry since it had not been rebutted by respondents that the loss of the pledged
pieces of jewelry in the possession of the corporation was occasioned by armed robbery; that
robbery is a fortuitous event which exempts the victim from liability for the loss, citing the case
of Austria v. Court of Appeals;[7] and that the parties transaction was that
of a pledgor and pledgee and under Art. 1174 of the Civil Code, the pawnshop as a pledgee is
not responsible for those events which could not be foreseen.
Respondents appealed the RTC Decision to the CA. In a Decision dated March 31, 2003,
the CA reversed the RTC, the dispositive portion of which reads as follows:
WHEREFORE, premises considered, the instant Appeal is GRANTED, and the Decision
dated January 12, 1993,of the Regional Trial Court of Makati, Branch 62, is hereby
REVERSED and SET ASIDE, ordering the appellees to pay appellants the actual value of the
lost jewelry amounting to P272,000.00, and attorney' fees of P27,200.00.[8]
In finding petitioner Sicam liable together with petitioner corporation, the CA applied the
doctrine of piercing the veil of corporate entity reasoning that respondents were misled into
thinking that they were dealing with the pawnshop owned by petitioner Sicam as all the
pawnshop tickets issued to them bear the words Agencia de R.C. Sicam; and that there was
no indication on the pawnshop tickets that it was the petitioner corporation that owned the
pawnshop which explained why respondents had to amend their
complaint impleading petitioner corporation.
The CA further held that the corresponding diligence required of a pawnshop is that it should
take steps to secure and protect the pledged items and should take steps to insure itself
against the loss of articles which are entrusted to its custody as it derives earnings from the
pawnshop trade which petitioners failed to do; that Austria is not applicable to this case since
the robbery incident happened in 1961 when the criminality had not as yet reached the levels
attained in the present day; that they are at least guilty of contributory negligence and should
be held liable for the loss of jewelries; and that robberies and hold-ups are foreseeable risks
in that those engaged in the pawnshop business are expected to foresee.
The CA concluded that both petitioners should be jointly and severally held liable to
respondents for the loss of the pawned jewelry.
Page 106

Petitioners motion for reconsideration was denied in a Resolution dated August 8, 2003.
Hence, the instant petition for review with the following assignment of errors:
THE COURT OF APPEALS ERRED AND WHEN IT DID, IT OPENED ITSELF TO
REVERSAL, WHEN IT ADOPTED UNCRITICALLY (IN FACT IT REPRODUCED AS ITS
OWN WITHOUT IN THE MEANTIME ACKNOWLEDGING IT) WHAT THE RESPONDENTS
ARGUED IN THEIR BRIEF, WHICH ARGUMENT WAS PALPABLY UNSUSTAINABLE.
THE COURT OF APPEALS ERRED, AND WHEN IT DID, IT OPENED ITSELF TO
REVERSAL BY THIS HONORABLE COURT, WHEN IT AGAIN ADOPTED UNCRITICALLY
(BUT WITHOUT ACKNOWLEDGING IT) THE SUBMISSIONS OF THE RESPONDENTS IN
THEIR BRIEF WITHOUT ADDING ANYTHING MORE THERETO DESPITE THE FACT
THAT THE SAID ARGUMENT OF THE RESPONDENTS COULD NOT HAVE BEEN
SUSTAINED IN VIEW OF UNREBUTTED EVIDENCE ON RECORD.[9]
Anent the first assigned error, petitioners point out that the CAs finding that petitioner Sicam is
personally liable for the loss of the pawned jewelries is a virtual and uncritical reproduction of
the arguments set out on pp. 5-6 of the Appellants brief.[10]
Petitioners argue that the reproduced arguments of respondents in their Appellants Brief
suffer from infirmities, as follows:
(1) Respondents conclusively asserted in paragraph 2 of their Amended Complaint
that Agencia de R.C. Sicam, Inc. is the present owner of Agencia de R.C. Sicam Pawnshop,
and therefore, the CA cannot rule against said conclusive assertion of respondents;
(2) The issue resolved against petitioner Sicam was not among those raised and litigated in
the trial court; and
marcelo|torts and damages|full text
(3) By reason of the above infirmities, it was error for the CA to have pierced the corporate
veil since a corporation has a personality distinct and separate from its individual stockholders
or members.
Anent the second error, petitioners point out that the CA finding on their negligence is likewise
an unedited reproduction of respondents brief which had the following defects:
(1) There were unrebutted evidence on record that petitioners had observed the diligence
required of them, i.e, they wanted to open a vault with a nearby bank for purposes of
safekeeping the pawned articles but was discouraged by the Central Bank (CB) since CB
rules provide that they can only store the pawned articles in a vault inside the pawnshop
premises and no other place;
(2) Petitioners were adjudged negligent as they did not take insurance against the loss of the
pledged jelweries, but it is judicial notice that due to high incidence of crimes, insurance
companies refused to cover pawnshops and banks because of high probability of losses due
to robberies;
(3) In Hernandez v. Chairman, Commission on Audit (179 SCRA 39, 45-46), the victim of
robbery was exonerated from liability for the sum of money belonging to others and lost by
him to robbers.
Respondents filed their Comment and petitioners filed their Reply thereto. The parties
subsequently submitted their respective Memoranda.
We find no merit in the petition.
To begin with, although it is true that indeed the CA findings were exact reproductions of the
arguments raised in respondents (appellants) brief filed with the CA, we find the same to be
not fatally infirmed. Upon examination of the Decision, we find that it expressed clearly and
Page 107
distinctly the facts and the law on which it is based as required by Section 8, Article VIII of the
Constitution. The discretion to decide a case one way or another is broad enough to justify the
adoption of the arguments put forth by one of the parties, as long as these are legally tenable
and supported by law and the facts on records.[11]
Our jurisdiction under Rule 45 of the Rules of Court is limited to the review of errors of law
committed by the appellate court. Generally, the findings of fact of the appellate court are
deemed conclusive and we are not duty-bound to analyze and calibrate all over again the
evidence adduced by the parties in the court a quo.[12] This rule, however, is not without
exceptions, such as where the factual findings of the Court of Appeals and the trial court are
conflicting or contradictory[13] as is obtaining in the instant case.
However, after a careful examination of the records, we find no justification to absolve
petitioner Sicam from liability.
The CA correctly pierced the veil of the corporate fiction and adjudged petitioner Sicam liable
together with petitioner corporation. The rule is that the veil of corporate fiction may be
pierced when made as a shield to perpetrate fraud and/or confuse legitimate issues. [14] The
theory of corporate entity was not meant to promote unfair objectives or otherwise to shield
them.[15]
Notably, the evidence on record shows that at the time respondent Lulu pawned her jewelry,
the pawnshop was owned by petitioner Sicam himself. As correctly observed by the CA, in all
the pawnshop receipts issued to respondent Lulu in September 1987, all bear the
words Agencia de R. C. Sicam, notwithstanding that the pawnshop was allegedly
incorporated in April 1987. The receipts issued after such alleged incorporation were still in
the name of Agencia de R. C. Sicam, thus inevitably misleading, or at the very least, creating
the wrong impression to respondents and the public as well, that the pawnshop was owned
solely by petitioner Sicam and not by a corporation.
Even petitioners counsel, Atty. Marcial T. Balgos, in his letter[16] dated October 15,
1987 addressed to the Central Bank, expressly referred to petitioner Sicam as the proprietor
of the pawnshop notwithstanding the alleged incorporation in April 1987.
marcelo|torts and damages|full text
We also find no merit in petitioners' argument that since respondents had alleged in their
Amended Complaint that petitioner corporation is the present owner of the pawnshop, the CA
is bound to decide the case on that basis.
Section 4 Rule 129 of the Rules of Court provides that an admission, verbal or written, made
by a party in the course of the proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it was made through palpable mistake or
that no such admission was made.
Thus, the general rule that a judicial admission is conclusive upon the party making it and
does not require proof, admits of two exceptions, to wit: (1) when it is shown that such
admission was made through palpable mistake, and (2) when it is shown that no such
admission was in fact made. The latter exception allows one to contradict an admission
by denying that he made such an admission.[17]
The Committee on the Revision of the Rules of Court explained the second exception in this
wise:
x x x if a party invokes an admission by an adverse party, but cites the admission out of
context, then the one making the admission may show that he made no such admission,
or that his admission was taken out of context.
x x x that the party can also show that he made no such admission, i.e., not in the
sense in which the admission is made to appear.
That is the reason for the modifier such because if the rule simply states that the admission
may be contradicted by showing that no admission was made, the rule would not really be
providing for a contradiction of the admission but just a denial.[18] (Emphasis supplied).
While it is true that respondents alleged in their Amended Complaint that petitioner
corporation is the present owner of the pawnshop, they did so only because
petitioner Sicam alleged in his Answer to the original complaint filed against him that he was
not the real party-in-interest as the pawnshop was incorporated in April 1987. Moreover, a
reading of the Amended Complaint in its entirety shows that respondents referred to both
petitioner Sicam and petitioner corporation where they (respondents) pawned their assorted
Page 108
pieces of jewelry and ascribed to both the failure to observe due diligence commensurate with
the business which resulted in the loss of their pawned jewelry.
This Court sustains the contention of the defendant Roberto C. Sicam, Jr. The amended
complaint itself asserts that plaintiff pawned assorted jewelries in defendant's pawnshop. It
has been held that as a consequence of the separate juridical personality of a corporation, the
corporate debt or credit is not the debt or credit of the stockholder, nor is the stockholder's
debt or credit that of a corporation.[21]
Markedly, respondents, in their Opposition to petitioners Motion to Dismiss Amended
Complaint, insofar as petitioner Sicam is concerned, averred as follows:

Roberto C. Sicam was named the defendant in the original complaint because the pawnshop
tickets involved in this case did not show that the R.C. Sicam Pawnshop was a corporation. In
paragraph 1 of his Answer, he admitted the allegations in paragraph 1 and 2 of the Complaint.
He merely added that defendant is not now the real party in interest in this case.
Clearly, in view of the alleged incorporation of the pawnshop, the issue of whether
petitioner Sicam is personally liable is inextricably connected with the determination of the
question whether the doctrine of piercing the corporate veil should or should not apply to the
case.

It was defendant Sicam's omission to correct the pawnshop tickets used in the subject The next question is whether petitioners are liable for the loss of the pawned articles in their
transactions in this case which was the cause of the instant action. He cannot now ask for the possession.
dismissal of the complaint against him simply on the mere allegation that his pawnshop
business is now incorporated. It is a matter of defense, the merit of which can only be reached
after consideration of the evidence to be presented in due course. [19]
Petitioners insist that they are not liable since robbery is a fortuitous event and they are not
Unmistakably, the alleged admission made in respondents' Amended Complaint was taken negligent at all.
out of context by petitioner Sicam to suit his own purpose. Ineluctably, the fact that
petitioner Sicam continued to issue pawnshop receipts under his name and not under the
corporation's name militates for the piercing of the corporate veil.
We are not persuaded.
We likewise find no merit in petitioners' contention that the CA erred in piercing the veil of
corporate fiction of petitioner corporation, as it was not an issue raised and litigated before the
RTC.
Article 1174 of the Civil Code provides:

Petitioner Sicam had alleged in his Answer filed with the trial court that he was not the real
party-in-interest because since April 20, 1987, the pawnshop business initiated by him was Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by
incorporated and known as Agencia de R.C. Sicam. In the pre-trial brief filed by stipulation, or when the nature of the obligation requires the assumption of risk, no person
petitioner Sicam, he submitted that as far as he was concerned, the basic issue was whether shall be responsible for those events which could not be foreseen or which, though foreseen,
he is the real party in interest against whom the complaint should be directed.[20] In fact, he were inevitable.
subsequently moved for the dismissal of the complaint as to him but was not favorably acted
upon by the trial court. Moreover, the issue was squarely passed upon, although erroneously,
by the trial court in its Decision in this manner:

Fortuitous events by definition are extraordinary events not foreseeable or avoidable. It is

x x x The defendant Roberto Sicam, Jr likewise denies liability as far as he is concerned for therefore, not enough that the event should not have been foreseen or anticipated, as is
the reason that he cannot be made personally liable for a claim arising from a corporate commonly believed but it must be one impossible to foresee or to avoid. The mere difficulty to
transaction. foresee the happening is not impossibility to foresee the same. [22]

marcelo|torts and damages|full text Page 109


To constitute a fortuitous event, the following elements must concur: (a) the cause of the
unforeseen and unexpected occurrence or of the failure of the debtor to comply with
obligations must be independent of human will; (b) it must be impossible to foresee the event
that constitutes the caso fortuito or, if it can be foreseen, it must be impossible to avoid; (c)
the occurrence must be such as to render it impossible for the debtor to fulfill obligations in a
normal manner; and, (d) the obligor must be free from any participation in the aggravation of
the injury or loss. [23]
The burden of proving that the loss was due to a fortuitous event rests on him who invokes
it.[24] And, in order for a fortuitous event to exempt one from liability, it is necessary that one
has committed no negligence or misconduct that may have occasioned the loss. [25]
It has been held that an act of God cannot be invoked to protect a person who has failed to
take steps to forestall the possible adverse consequences of such a loss. One's negligence
may have concurred with an act of God in producing damage and injury to another;
nonetheless, showing that the immediate or proximate cause of the damage or injury was a
fortuitous event would not exempt one from liability. When the effect is found to be partly the
result of a person's participation -- whether by active intervention, neglect or failure to act --
the whole occurrence is humanized and removed from the rules applicable to acts of God. [26]
Petitioner Sicam had testified that there was a security guard in their pawnshop at the time of
the robbery. He likewise testified that when he started the pawnshop business in 1983, he
thought of opening a vault with the nearby bank for the purpose of safekeeping the valuables
but was discouraged by the Central Bank since pawned articles should only be stored in a
vault inside the pawnshop. The very measures which petitioners had allegedly adopted show
that to them the possibility of robbery was not only foreseeable, but actually foreseen and
anticipated. Petitioner Sicams testimony, in effect, contradicts petitioners defense of fortuitous
event.
Moreover, petitioners failed to show that they were free from any negligence by which the loss
of the pawned jewelry may have been occasioned.
Robbery per se, just like carnapping, is not a fortuitous event. It does not foreclose the
possibility of negligence on the part of herein petitioners. In Co v. Court of Appeals,[27]the
Court held:
marcelo|torts and damages|full text
It is not a defense for a repair shop of motor vehicles to escape liability simply because the
damage or loss of a thing lawfully placed in its possession was due
to carnapping. Carnapping per se cannot be considered as a fortuitous event. The fact that a
thing was unlawfully and forcefully taken from another's rightful possession, as in
cases of carnapping, does not automatically give rise to a fortuitous event. To be
considered as such, carnapping entails more than the mere forceful taking of another's
property. It must be proved and established that the event was an act of God or was
done solely by third parties and that neither the claimant nor the person alleged to be
negligent has any participation. In accordance with the Rules of Evidence, the burden
of proving that the loss was due to a fortuitous event rests on him who invokes it
which in this case is the private respondent.However, other than the police report of the
alleged carnapping incident, no other evidence was presented by private respondent to the
effect that the incident was not due to its fault. A police report of an alleged crime, to which
only private respondent is privy, does not suffice to establish the carnapping. Neither does it
prove that there was no fault on the part of private respondent notwithstanding the parties'
agreement at the pre-trial that the car was carnapped. Carnapping does not foreclose the
possibility of fault or negligence on the part of private respondent. [28]
Just like in Co, petitioners merely presented the police report of the Paraaque Police Station
on the robbery committed based on the report of petitioners' employees which is not sufficient
to establish robbery. Such report also does not prove that petitioners were not at fault.
On the contrary, by the very evidence of petitioners, the CA did not err in finding that
petitioners are guilty of concurrent or contributory negligence as provided in Article 1170 of
the Civil Code, to wit:
Art. 1170. 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.[29]
Article 2123 of the Civil Code provides that with regard to pawnshops and other
establishments which are engaged in making loans secured by pledges, the special laws and
regulations concerning them shall be observed, and subsidiarily, the provisions on pledge,
mortgage and antichresis.
The provision on pledge, particularly Article 2099 of the Civil Code, provides that the creditor
shall take care of the thing pledged with the diligence of a good father of a family. This means
that petitioners must take care of the pawns the way a prudent person would as to his own
property.
Page 110

In this connection, Article 1173 of the Civil Code further provides:
Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence
which is required by the nature of the obligation and corresponds with the circumstances of
the persons, of time and of the place. When negligence shows bad faith, the provisions of
Articles 1171 and 2201, paragraph 2 shall apply.
If the law or contract does not state the diligence which is to be observed in the performance,
that which is expected of a good father of a family shall be required.
We expounded in Cruz v. Gangan[30] that negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs, would do; or the doing of something which a prudent and reasonable man
would not do.[31] It is want of care required by the circumstances.
A review of the records clearly shows that petitioners failed to exercise reasonable care and
caution that an ordinarily prudent person would have used in the same situation. Petitioners
were guilty of negligence in the operation of their pawnshop business.
Petitioner Sicam testified, thus:
Court:
Q. Do you have security guards in your pawnshop?
A. Yes, your honor.
Q. Then how come that the robbers were able to enter the premises when according to you
there was a security guard?
A. Sir, if these robbers can rob a bank, how much more a pawnshop.
Q. I am asking you how were the robbers able to enter despite the fact that there was a
security guard?
marcelo|torts and damages|full text
A. At the time of the incident which happened about 1:00 and 2:00 o'clock in the afternoon
and it happened on a Saturday and everything was quiet in the area BF
Homes Paraaque they pretended to pawn an article in the pawnshop, so one of my
employees allowed him to come in and it was only when it was announced that it was a hold
up.
Q. Did you come to know how the vault was opened?
A. When the pawnshop is official (sic) open your honor the pawnshop is partly open. The
combination is off.
Q. No one open (sic) the vault for the robbers?
A. No one your honor it was open at the time of the robbery.
Q. It is clear now that at the time of the robbery the vault was open the reason why the
robbers were able to get all the items pawned to you inside the vault.
A. Yes sir.[32]
revealing that there were no security measures adopted by petitioners in the operation of the
pawnshop. Evidently, no sufficient precaution and vigilance were adopted by petitioners to
protect the pawnshop from unlawful intrusion. There was no clear showing that there was any
security guard at all. Or if there was one, that he had sufficient training in securing a
pawnshop. Further, there is no showing that the alleged security guard exercised all that was
necessary to prevent any untoward incident or to ensure that no suspicious individuals were
allowed to enter the premises. In fact, it is even doubtful that there was a security guard, since
it is quite impossible that he would not have noticed that the robbers were armed with caliber
.45 pistols each, which were allegedly poked at the employees. [33] Significantly, the alleged
security guard was not presented at all to corroborate petitioner Sicam's claim; not
one of petitioners' employees who were present during the robbery incident testified in court.
Furthermore, petitioner Sicam's admission that the vault was open at the time of robbery is
clearly a proof of petitioners' failure to observe the care, precaution and vigilance that the
Page 111
circumstances justly demanded. Petitioner Sicam testified that once the pawnshop was open,
the combination was already off. Considering petitioner Sicam'stestimony that the robbery
took place on a Saturday afternoon and the area in BF Homes Paraaque at that time was
quiet, there was more reason for petitioners to have exercised reasonable foresight and
diligence in protecting the pawned jewelries. Instead of taking the precaution to protect them,
they let open the vault, providing no difficulty for the robbers to cart away the pawned articles.
We, however, do not agree with the CA when it found petitioners negligent for not taking steps
to insure themselves against loss of the pawned jewelries.
Under Section 17 of Central Bank Circular No. 374, Rules and Regulations for Pawnshops,
which took effect on July 13, 1973, and which was issued pursuant to Presidential Decree No.
114, Pawnshop Regulation Act, it is provided that pawns pledged must be insured, to wit:
Sec. 17. Insurance of Office Building and Pawns- The place of business of a pawnshop and
the pawns pledged to it must be insured against fire and against burglary as well as for
the latter(sic), by an insurance company accredited by the Insurance Commissioner.
However, this Section was subsequently amended by CB Circular No. 764 which took effect
on October 1, 1980, to wit:
Sec. 17 Insurance of Office Building and Pawns The office building/premises and pawns of a
pawnshop must be insured against fire. (emphasis supplied).
where the requirement that insurance against burglary was deleted. Obviously, the Central
Bank considered it not feasible to require insurance of pawned articles against burglary.
The robbery in the pawnshop happened in 1987, and considering the above-quoted
amendment, there is no statutory duty imposed on petitioners to insure the pawned jewelry in
which case it was error for the CA to consider it as a factor in concluding that petitioners were
negligent.
Nevertheless, the preponderance of evidence shows that petitioners failed to exercise the
diligence required of them under the Civil Code.
marcelo|torts and damages|full text
The diligence with which the law requires the individual at all times to govern his conduct
varies with the nature of the situation in which he is placed and the importance of the act
which he is to perform.[34] Thus, the cases of Austria v. Court of Appeals,[35] Hernandez v.
Chairman, Commission on Audit[36] and Cruz v. Gangan[37] cited by petitioners in their
pleadings, where the victims of robbery were exonerated from liability, find no application to
the present case.
In Austria, Maria Abad received from Guillermo Austria a pendant with diamonds to be sold on
commission basis, but which Abad failed to subsequently return because of a robbery
committed upon her in 1961. The incident became the subject of a criminal case filed against
several persons. Austria filed an action against Abad and her husband (Abads) for recovery of
the pendant or its value, but the Abads set up the defense that the robbery extinguished their
obligation. The RTC ruled in favor of Austria, as the Abads failed to prove robbery; or, if
committed, that Maria Abad was guilty of negligence. The CA, however, reversed the RTC
decision holding that the fact of robbery was duly established and declared the Abads not
responsible for the loss of the jewelry on account of a fortuitous event. We
held that for the Abads to be relieved from the civil liability of returning the pendant under Art.
1174 of the Civil Code, it would only be sufficient that the unforeseen event, the robbery, took
place without any concurrent fault on the debtors part, and this can be done by
preponderance of evidence; that to be free from liability for reason of fortuitous event, the
debtor must, in addition to the casusitself, be free of any concurrent or contributory fault or
negligence.[38]
We found in Austria that under the circumstances prevailing at the time the Decision was
promulgated in 1971, the City of Manila and its suburbs had a high incidence of crimes
against persons and property that rendered travel after nightfall a matter to be sedulously
avoided without suitable precaution and protection; that the conduct of Maria Abad in
returning alone to her house in the evening carrying jewelry of considerable value would have
been negligence per se and would not exempt her from responsibility in the case of robbery.
However we did not hold Abad liable for negligence since, the robbery happened ten years
previously; i.e., 1961, when criminality had not reached the level of incidence obtaining in
1971.
In contrast, the robbery in this case took place in 1987 when robbery was already prevalent
and petitioners in fact had already foreseen it as they wanted to deposit the pawn with a
nearby bank for safekeeping. Moreover, unlike in Austria, where no negligence was
committed, we found petitioners negligent in securing their pawnshop as earlierdiscussed.
In Hernandez, Teodoro Hernandez was the OIC and special disbursing officer of the Ternate
Beach Project of the Philippine Tourism in Cavite. In the morning of July 1, 1983, a Friday, he
went to Manila to encash two checks covering the wages of the employees and the operating
expenses of the project. However for some reason, the processing of the check was delayed
Page 112
and was completed at about 3 p.m. Nevertheless, he decided to encash the check because
the project employees would be waiting for their pay the following day; otherwise, the workers
would have to wait until July 5, the earliest time, when the main office would open. At that
time, he had two choices: (1) return to Ternate, Cavite that same afternoon and arrive early
evening; or (2) take the money with him to his house in Marilao, Bulacan, spend the night
there, and leave for Ternate the following day. He chose the second option, thinking it was the
safer one. Thus, a little past 3 p.m., he took a passenger jeep bound for Bulacan. While the
jeep was on Epifaniode los Santos Avenue, the jeep was held up and the money kept by
Hernandez was taken, and the robbers jumped out of the jeep and ran. Hernandez chased
the robbers and caught up with one robber who was subsequently charged with robbery and
pleaded guilty. The other robber who held the stolen money escaped. The Commission on
Audit found Hernandez negligent because he had not brought the cash proceeds of the
checks to his office in Ternate, Cavite for safekeeping, which is the normal procedure in the
handling of funds. We held that Hernandez was not negligent in deciding to encash the check
and bringing it home to Marilao, Bulacan instead of Ternate, Cavite due to the lateness of the
hour for the following reasons: (1) he was moved by unselfish motive for his co-employees to
collect their wages and salaries the following day, a Saturday, a non-working, because
to encash the check on July 5, the next working day after July 1, would have caused
discomfort to laborers who were dependent on their wages for sustenance; and (2) that
choosing Marilao as a safer destination, being nearer, and in view of the comparative hazards
in the trips to the two places, said decision seemed logical at that time. We further held that
the fact that two robbers attacked him in broad daylight in the jeep while it was on a busy
highway and in the presence of other passengers could not be said to be a result of his
imprudence and negligence.
and found that riding the LRT cannot per se be denounced as a negligent act more so
because Cruzs mode of transit was influenced by time and money considerations; that she
boarded the LRT to be able to arrive in Caloocan in time for her 3 pm meeting; that any
prudent and rational person under similar circumstance can reasonably be expected to do the
same; that possession of a cellphone should not hinder one from boarding the LRT coach as
Cruz did considering that whether she rode a jeep or bus, the risk of theft would have also
been present; that because of her relatively low position and pay, she was not expected to
have her own vehicle or to ride a taxicab; she did not have a government assigned vehicle;
that placing the cellphone in a bag away from covetous eyes and holding on to that bag as
she did is ordinarily sufficient care of a cellphone while traveling on board the LRT; that the
records did not show any specific act of negligence on her part and negligence can never be
presumed.
Unlike in the Cruz case, the robbery in this case happened in petitioners' pawnshop and they
were negligent in not exercising the precautions justly demanded of a pawnshop.
WHEREFORE, except for the insurance aspect, the Decision of the Court of Appeals
dated March 31, 2003 and its Resolution dated August 8, 2003, are AFFIRMED.

Costs against petitioners.

Unlike in Hernandez where the robbery happened in a public utility, the robbery in this case
took place in the pawnshop which is under the control of petitioners. Petitioners had the
means to screen the persons who were allowed entrance to the premises and to protect itself
from unlawful intrusion. Petitioners had failed to exercise precautionary measures in ensuring
that the robbers were prevented from entering the pawnshop and for keeping the vault open
for the day, which paved the way for the robbers to easily cart away the pawned articles.

In Cruz, Dr. Filonila O. Cruz, Camanava District Director of Technological Education and
Skills Development Authority (TESDA), boarded the Light Rail Transit (LRT)
fromSen. Puyat Avenue to Monumento when her handbag was slashed and the contents
were stolen by an unidentified person. Among those stolen were her wallet and the
government-issued cellular phone. She then reported the incident to the police
authorities; however, the thief was not located, and the cellphone was not recovered. She
also reported the loss to the Regional Director of TESDA, and she requested that she be
freed from accountability for the cellphone. The Resident Auditor denied her request on the
ground that she lacked the diligence required in the custody of government property and was
ordered to pay the purchase value in the total amount of P4,238.00. The COA found no
sufficient justification to grant the request for relief from accountability. We reversed the ruling

marcelo|torts and damages|full text Page 113

CORINTHIAN GARDENS G.R. No. 160795 Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Civil
Procedure seeking the reversal of the Court of Appeals (CA) Decision[2] dated January 31,
ASSOCIATION, INC., 2003 in CA-G.R. CV No. 43217, which reversed and set aside the Decision[3] of the Regional
Trial Court (RTC) of Quezon City, dated March 30, 1993.
Petitioner,

Present:

The Antecedents:
YNARES-SANTIAGO, J.,

- versus - Chairperson,

AUSTRIA-MARTINEZ,
Respondents-spouses Reynaldo and Maria Luisa Tanjangco (the Tanjangcos) own Lots 68
CHICO-NAZARIO, and 69 covered by Transfer Certificates of Title (TCT) No. 242245[4] and
282961[5] respectively, located at Corinthian Gardens Subdivision, Quezon City, which is
SPOUSES REYNALDO and NACHURA, and managed by petitioner Corinthian Gardens Association, Inc. (Corinthian). On the other hand,
respondents-spouses Frank and Teresita Cuaso (the Cuasos) own Lot 65 which is adjacent to
MARIA LUISA TANJANGCO, and SPOUSES FRANK and REYES, JJ. the Tanjangcos lots.

TERESITA CUASO,

Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
Promulgated: Before the Cuasos constructed their house on Lot 65, a relocation survey was necessary. As
Geodetic Engineer Democrito De Dios (Engr. De Dios), operating under the business name
D.M. De Dios Realty and Surveying, conducted all the previous surveys for the subdivision's
developer, Corinthian referred Engr. De Dios to the Cuasos.Before, during and after the
June 27, 2008 construction of the said house, Corinthian conducted periodic ocular inspections in order to
determine compliance with the approved plans pursuant to the Manual of Rules and
Regulations of Corinthian.[6] Unfortunately, after the Cuasos constructed their house
employing the services of C.B. Paraz & Construction Co., Inc. (C.B. Paraz) as builder, their
perimeter fence encroached on the Tanjangcos Lot 69 by 87 square meters.

DECISION
No amicable settlement was reached between the parties. Thus, the Tanjangcos demanded
that the Cuasos demolish the perimeter fence but the latter failed and refused, prompting the
Tanjangcos to file with the RTC a suit against the Cuasos for Recovery of Possession with
Damages.[7]

NACHURA, J.:

Eventually, the Cuasos filed a Third-Party Complaint[8] against Corinthian, C.B. Paraz and
Engr. De Dios. The Cuasos ascribed negligence to C.B. Paraz for its failure to ascertain the

marcelo|torts and damages|full text Page 114

proper specifications of their house, and to Engr. De Dios for his failure to undertake an
accurate relocation survey, thereby, exposing them to litigation. The Cuasos also faulted
Corinthian for approving their relocation survey and building plans without verifying their
accuracy and in making representations as to Engr. De Dios' integrity and competence. The
Cuasos alleged that had Corinthian exercised diligence in performing its duty, they would not
have been involved in a boundary dispute with the Tanjangcos. Thus, the Cuasos opined that
Corinthian should also be held answerable for any damages that they might incur as a result
of such construction.
On March 30, 1993, the RTC rendered a Decision in favor of the Tanjangcos. It ruled that the
Cuasos perimeter wall encroached on the land of the Tanjangos by 87 square meters. It,
however, ruled that the Cuasos were builders in good faith, and gave the Tanjangcos the
option to sell and the Cuasos the option to buy the encroaching portion of the land, at a price
to be agreed upon by the parties within sixty (60) days from receipt of the said Decision. In the
event that the Cuasos were unable and unwilling to purchase the said portion, the perimeter
wall should be demolished at the latters expense. The RTC also ordered the Cuasos to pay
monthly rentals of P2,000.00 commencing from the time of the filing of the complaint. The
RTC likewise held that C.B. Paraz was grossly negligent in not taking into account the correct
boundaries of Cuasos lot when it constructed the house. It, thus, ordered C.B. Paraz to pay
moral and exemplary damages as well as attorneys fees to the Tanjangcos and the
Cuasos. The third-party complaint against Corinthian and Engr. De Dios, on the other hand,
was dismissed for lack of cause of action.
The Tanjangcos filed a Motion for Reconsideration[9] of the said RTC Decision which the RTC,
however, denied in its Order[10] dated June 28, 1993.
Dissatisfied with the RTC ruling, the Tanjangcos, the Cuasos, and C.B. Paraz all appealed to
the CA.
On appeal, the CA reversed and set aside the RTC Decision. It held that the Cuasos acted in
bad faith in land-grabbing the 87 square meter-portion of Lot 69 as of April 5, 1989.
Correlatively, the CA allowed the Tanjangcos to exercise the rights granted under Articles
449, 450, 451 and 549 of the New Civil Code, which include the right to demand the
demolition of the offending perimeter wall after reimbursing the Cuasos the necessary
expenses for the preservation of the encroached area. The Cuasos were ordered to pay
monthly rentals of P10,000.00 for the use, enjoyment and occupancy of the lot from 1989 up
to the time they vacate the property considering the location and category of the same. They
were, likewise, ordered to pay the Tanjangcos P100,000.00, as moral damages, P50,000.00
as exemplary damages, and P150,000.00 as attorneys fees. The CA also imposed six
percent (6%) interest per annum on all the awards. The Cuasos appeal against the
marcelo|torts and damages|full text
Tanjangcos, on the other hand, was dismissed for lack of merit. On the third-party complaints,
Corinthian, C.B. Paraz and Engr. De Dios were all found negligent in performing their
respective duties and so they were ordered to contribute five percent (5%) each, or a total of
fifteen percent (15%) to all judgment sums and amounts that the Cuasos shall eventually pay
under the decision, also with interest of six percent (6%) per annum.
Only Corinthian filed a Motion for Reconsideration[11] of the CA Decision within the 15-day
reglementary period. No motion for reconsideration was filed by the Cuasos, C.B. Paraz
and/or Engr. De Dios.
About six (6) months later, or on August 12, 2003, the Cuasos filed a
Comment/Manifestation[12] praying that they be allowed to adopt Corinthians Motion for
Reconsideration.
In its Resolution[13] dated November 14, 2003, the CA denied Corinthians Motion for
Reconsideration.
Hence, Corinthian filed the instant Petition for Review on Certiorari assailing the CA Decision
and Resolution, and impleading the Cuasos as one of the respondents being the third-party
plaintiffs in the RTC.
This Court gave due course to Corinthians petition and required the parties to submit their
respective memorandum.[14] In compliance, the Cuasos submitted their Memorandum[15] and
Supplement to Memorandum,[16] which were both noted by this Court in its Resolutions dated
January 10, 2005[17] and February 2, 2005, [18]respectively.
In the meantime, the Tanjangcos moved for partial entry of judgment of the CA Decision
which was granted by the CA in its Resolution[19] dated May 26, 2006, directing the issuance
of an Entry of Judgment and a Certification that its Decision dated January 31 2003 has
become final and executory with respect to the Cuasos, C.B. Paraz and Engr. De Dios for
their failure to file an appeal assailing the said Decision before this Court.
The Tanjangcos then moved for the execution of the judgment against the Cuasos,
specifically the demolition of the perimeter fence,[20] which was also granted by the RTC in its
Order[21] dated December 18, 2006.
Page 115

Other than the filing of an Opposition[22] and a Motion for Reconsideration[23] before the RTC,
the Cuasos prayed for the issuance of a temporary restraining order (TRO) and/or preliminary
injunction before this Court to enjoin the demolition of the perimeter fence. They averred that
the premature demolition of the alleged encroaching perimeter wall and other improvements
will cause grave and irreparable damage to them, because what is sought to be demolished is
part of their residence. They claimed that no amount of money will compensate for the
damage they stand to suffer should any demolition subsequently prove to be wrongful. They
argued that before any execution can be carried out, it is necessary to first determine whether
or not Corinthian was negligent in approving the building plan and whether or not it acted in
good faith in doing so. Such determination, according to the Cuasos, will in turn determine
whether or not they were in good faith in constructing the house.[24]
The Tanjangcos opposed the Cuasos' application for TRO. They countered that the only
pending matter with this Court is the appeal by Corinthian; hence, the implementation of the
January 31, 2003 Decision of the CA against the Cuasos will not preempt the outcome of the
said pending incidents. Also, any action taken by this Court on Corinthians petition would not
benefit the Cuasos for they did not appeal the adverse decision against them. Accordingly,
they cannot obtain affirmative relief from this Court by reason or on account of the appeal
taken by Corinthian. The appeal, they added, is personal to Corinthian. Finally, they argued
that the Cuasos are now estopped from questioning the enforcement of the CA Decision since
they issued a managers check to pay the money judgment.[25]
In this Court's Resolution dated July 18, 2007, we denied the Cuasos' application for TRO
and/or writ of preliminary injunction for lack of merit.
The denial was based on sound legal principles. It is axiomatic that to be entitled to the
injunctive writ, one must show that there exists a right to be protected which is directly
threatened by the act sought to be enjoined. Furthermore, there must be a showing that the
invasion of the right is material and substantial, that the right of complainant is clear and
unmistakable, and that there is an urgent and paramount necessity for the writ to issue in
order to prevent serious damage.[26]
In the Cuasos case, their right to injunctive relief had not been clearly and unmistakably
demonstrated. They failed to show proof that there is material and substantial invasion of their
right to warrant the issuance of an injunctive writ. Indeed, the enforcement of the writ of
execution, which would demolish the Cuasos perimeter fence, is manifestly prejudicial to their
interest. However, they possess no clear and unmistakable legal right that merits protection
through the writ of preliminary injunction.[27] Their right to maintain the said fence had been
declared inferior to the Tanjangcos right to the demolition of the fence, after the CA judgment
had become final and executory as to the Cuasos.
marcelo|torts and damages|full text
It bears stressing that the Cuasos failed to appeal the ruling of the CA. This failure to contest
the CA decision before this Court was fatal to their cause. It had the effect of an admission
that they indeed acted in bad faith, as they accepted the CA ruling. The decision of the CA,
therefore, became binding and final as to them.[28] As a matter of fact, the CA already issued a
partial entry of judgment against the Cuasos.
An injunction to stay a final and executory decision is unavailing except only after a showing
that facts and circumstances exist which would render execution unjust or inequitable, or that
a change in the situation of the parties occurred. Here, no such exception exists as shown by
the facts earlier narrated.[29]
While it is true that this Court noted the Memorandum and Supplemental Memorandum filed
by the Cuasos, such notation was made only insofar as Corinthian made them respondents in
this petition. This Court cannot grant to the Cuasos any affirmative relief as they did not file a
petition questioning the CA ruling. Consequently, the Decision of the CA holding that the
Cuasos acted in bad faith and that the perimeter fence may now be demolished cannot be put
in issue by the Cuasos. It is a fundamental principle that a party who does not appeal, or file a
petition for certiorari, is not entitled to any affirmative relief.[30] An appellee who is not an
appellant may assign errors in his brief where his purpose is to maintain the judgment, but he
cannot seek modification or reversal of the judgment or claim affirmative relief unless he has
also appealed.[31] This applies to C.B. Paraz and Engr. De Dios who likewise failed to assail
the aforementioned CA Decision.
With this matter put to rest, we now go to the main issues raised by Corinthian, the sole
petitioner in this case, to wit:
a) Whether or not there is legal basis for the Court of Appeals to hold petitioner Corinthian
Gardens Association, Inc. liable to pay 5% of the judgment money to Sps. Tanjangco on
account of the encroachment made by Sps. Cuaso[; and]
b) Whether or not the Court of Appeals has legal basis to increase unilaterally and without
proof the amount prayed for in the Complaint, i.e., P2,000.00, as reasonable compensation
for the use and enjoyment of the portion of the lot encroached upon, to P10,000.00.[32]
Page 116
Corinthian claims that the approval of the building plan of the Cuasos was not tainted with
negligence as it did not approve the survey relocation plan but merely the architectural,
structural and sanitary plans for Cuasos' house; that the purpose of the said approval is not to
ensure that the house to be erected on a particular lot is constructed within its boundaries but
only to ensure compliance with the Manual of Rules and Regulations; that while Corinthian
conducts actual site inspections, the inspection and approval of the building plans are limited
to table inspection only; that the survey relocation plan was never submitted for Corinthian's
approval; that the acceptance of the builder's bond did not make Corinthian automatically
liable for the encroachment and for damages; and that Corinthian approved the building plan
with the good faith and due diligence required under the circumstances. It, thus, concludes
that it cannot be held liable to pay five
percent (5%) of the money judgment to the Tanjangcos on account of the encroachment
made by the Cuasos. Likewise, it finds no legal basis for the CA to unilaterally increase the
amount of the adjudged rent from P2,000.00 to P10,000.00 which was not prayed for by the
Tanjangcos in their complaint and in the absence of evidence adduced by the parties.[33]
On the other hand, the Tanjangcos stand by the ruling of the CA and opine that Corinthian
was negligent in approving the building plan of the Cuasos. They submit that Corinthian's
claim that it merely conducts table inspections of buildings further bolsters their argument that
Corinthian was negligent in conveniently and unilaterally restricting and limiting the coverage
of its approval, contrary to its own Manual of Rules and Regulations; that the acceptance of a
builder's bond does not automatically make Corinthian liable but the same affirms the fact that
a homeowner can hold it liable for the consequences of the approval of a building plan; and
that Corinthian, by regularly demanding and accepting membership dues, must be wary of its
responsibility to protect the rights and interests of its members. Lastly, the Tanjangcos
contend that a court can take judicial notice of the general increase in the rentals of real
estate, as in this case, where the CA considered the value of their lot in the posh-and-swank
Corinthian Gardens Subdivision and the fact that they were deprived of it for almost two
decades. The Tanjangcos pray that this Court sustain the ruling of the CA.[34]
The instant case is obviously one for tort, as governed by Article 2176 of the Civil Code, which
provides:
ART. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by
the provisions of this Chapter.
In every tort case filed under this provision, plaintiff has to prove by a preponderance of
evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant
marcelo|torts and damages|full text
or some other person for whose act he must respond; and (3) the connection of cause and
effect between the fault or negligence and the damages incurred. [35]
Undeniably, the perimeter fence of the Cuasos encroached on Lot 69 owned by the
Tanjangcos by 87 square meters as duly found by both the RTC and the CA in accordance
with the evidence on record. As a result, the Tanjangcos suffered damage in having been
deprived of the use of that portion of their lot encroached upon. Thus, the primordial issue to
be resolved in this case is whether Corinthian was negligent under the circumstances and, if
so, whether such negligence contributed to the injury suffered by the Tanjangcos.
A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary
prudence and may be one which creates a situation involving an unreasonable risk to another
because of the expectable action of the other, a third person, an animal, or a force of nature.
A negligent act is one from which an ordinary prudent person in the actor's position, in the
same or similar circumstances, would foresee such an appreciable risk of harm to others as to
cause him not to do the act or to do it in a more careful manner.[36]
The test to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in committing the alleged negligent act use that reasonable care
and caution which an ordinary person would have used in the same situation? If not, then he
is guilty of negligence. The law, in effect, adopts the standard supplied by the imaginary
conduct of the discreet paterfamilias in Roman law. The existence of negligence in a given
case is not determined by reference to the personal judgment of the actor in the situation
before him. The law considers what would be reckless, blameworthy, or negligent in a man of
ordinary intelligence and prudence, and determines liability according to that standard. [37]
By this test, we find Corinthian negligent.
While the issue of Corinthian's alleged negligence is factual in character,[38] a review by this
Court is proper because the CA's factual findings differ from those of the RTC's.[39] Thus, after
a meticulous review of the evidence on record, we hold that the CA committed no reversible
error when it deviated from the findings of fact of the RTC. The CA's findings and conclusions
are substantiated by the evidence on record and are more in accord with law and reason.
Indeed, it is clear that Corinthian failed to exercise the requisite diligence in insuring that the
Cuasos abide by its Manual of Rules and Regulations, thereby resulting in the encroachment
on the Tanjangcos property.
We agree with the CA when it aptly held:
Page 117
Corinthian cannot and should not be allowed to justify or excuse its negligence by claiming
that its approval of the Cuasos building plans was only limited to a so-called table inspection;
and not actual site measurement. To accept some such postulate is to put a premium on
negligence. Corinthian was not organized solely for the defendants Cuasos. It is also the
subdivision of the plaintiffs-spouses Tanjangcos - and of all others who have their dwelling
units or abodes therein. Pertinently, its Manual of Rules and Regulations stipulates in Section
3 thereof (under the heading Construction), thus:
A. Rules and Regulations
No new construction can be started unless the building plans are approved by the
Association and the appropriate Builders cash bond and pre-construction fees are paid.The
Association will not allow the entry of construction materials and process identification cards
for workers if the above conditions are not complied with. Likewise, all renovations, repairs,
additions and improvements to a finished house except electrical wiring, will have to be
approved by the Association. Water service connection of a homeowner who undertakes
construction work without prior approval of the Association will be cut-off in addition to the
sanctions previously mentioned.
It goes without saying that this Manual of Rules and Regulations applies to all - or it does not
apply at all. To borrow a popular expression, what is sauce for the gander is sauce for the
goose - or ought to be. To put it matter-of-factly and bluntly, thus, its so-called table inspection
approval of the Cuasos building plans is no less of an approval, as approvals come and
go. And since it is an approval tainted with negligence, the necessary and inevitable
consequences which law and justice attach to such negligence must, as a matter of law and
justice, also necessarily attach to Corinthian.
And then again third party defendant-appellee Corinthian Garden required the posting of a
builders cash bond (Exh. 5-Corinthian) from the defendants-appellants Cuasos and the third-
party defendant C.B. Paraz Construction to secure the performance of their
undertaking. Surely, Corinthian does not imply that while it may take the benefits from the
Builders cash bond, it may, Pilate-like, wash its hands of any responsibility or liability that
would or might arise from the construction or building of the structure for which the cash bond
was in the first place posted.That is not only unjust and immoral, but downright unchristian
and iniquitous.
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Under the same parity of reasoning, the payment by the appellants-Cuasos to the appellee
Corinthian of pre-construction and membership fees in the Association must necessarily entail
the creation of certain obligations on the part of Corinthian. For duties and responsibilities
always go hand in hand with rights and privileges. That is the law of life - and that is the law of
every civilized society. It is an axiom of equity that he who receives the benefits must share
the burdens.[40]
By its Manual of Rules and Regulations, it is reasonable to assume that Corinthian, through
its representative, in the approval of building plans, and in the conduct of periodic inspections
of on-going construction projects within the subdivision, is responsible in insuring compliance
with the approved plans, inclusive of the construction of perimeter walls, which in this case is
the subject of dispute between the Tanjangcos and the Cuasos. [41] It is not just or equitable to
relieve Corinthian of any liability when, by its very own rules, it imposes its authority over all its
members to the end that no new construction can be started unless the plans are approved
by the Association and the appropriate cash bond and pre-construction fees are paid.
Moreover, Corinthian can impose sanctions for violating these rules. Thus, the proposition
that the inspection is merely a table inspection and, therefore, should exempt Corinthian from
liability, is unacceptable. After all, if the supposed inspection is merely a table inspection and
the approval granted to every member is a mere formality, then the purpose of the rules would
be defeated. Compliance therewith would not be mandatory, and sanctions imposed for
violations could be disregarded. Corinthian's imprimatur on the construction of the Cuasos'
perimeter wall over the property of the Tanjangcos assured the Cuasos that everything was in
order.
In sum, Corinthians failure to prevent the encroachment of the Cuasos perimeter wall into
Tanjangcos property despite the inspection conducted constitutes negligence and, at the very
least, contributed to the injury suffered by the Tanjangcos.
On the second issue, our ruling in Spouses Badillo v. Tayag[42] is instructive:
Citing Sia v. Court of Appeals [272 SCRA 141, May 5, 1997], petitioners argue that the MTC
may take judicial notice of the reasonable rental or the general price increase of land in order
to determine the amount of rent that may be awarded to them. In that case, however, this
Court relied on the CA's factual findings, which were based on the evidence
presented before the trial court. In determining reasonable rent,
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the RTC therein took account of the following factors: 1) the realty assessment of the land, 2) All told, the CA committed no reversible error.
the increase in realty taxes, and 3) the prevailing rate of rentals in the vicinity. Clearly, the trial
court relied, not on mere judicial notice, but on the evidence presented before it.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals

is AFFIRMED. Costs against petitioner.
Indeed, courts may fix the reasonable amount of rent for the use and occupation of a disputed
property. However, petitioners herein erred in assuming that courts, in determining the
amount of rent, could simply rely on their own appreciation of land values without considering
any evidence. As we have said earlier, a court may fix the reasonable amount of rent, but it SO ORDERED.
must still base its action on the evidence adduced by the parties.

In Herrera v. Bollos [G.R. No. 138258, January 18, 2002], the trial court awarded rent to the
defendants in a forcible entry case. Reversing the RTC, this Court declared that the
reasonable amount of rent could be determined not by mere judicial notice, but by supporting
evidence:

x x x A court cannot take judicial notice of a factual matter in controversy. The court may take
judicial notice of matters of public knowledge, or which are capable of unquestionable
demonstration, or ought to be known to judges because of their judicial functions. Before
taking such judicial notice, the court must allow the parties to be heard thereon. Hence, there
can be no judicial notice on the rental value of the premises in question without supporting
evidence.

Truly, mere judicial notice is inadequate, because evidence is required for a court to
determine the proper rental value. But contrary to Corinthian's arguments, both the RTCand
the CA found that indeed rent was due the Tanjangcos because they were deprived of
possession and use of their property. This uniform factual finding of the RTC and the CA was
based on the evidence presented below. Moreover, in Spouses Catungal v. Hao,[43] we
considered the increase in the award of rentals as reasonable given the particular
circumstances of each case. We noted therein that the respondent denied the petitioners the
benefits, including rightful possession, of their property for almost a decade.

Similarly, in the instant case, the Tanjangcos were deprived of possession and use of their
property for more than two decades through no fault of their own. Thus, we find no cogent
reason to disturb the monthly rental fixed by the CA.

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