[No. L-4160.

July 29, 1952]

ANITA TAN, plaintiff and appellant, vs. STANDARD VACUUM OIL Co., JULITO STO. DOMINGO, IGMIDIO Rico, and
RURAL TRANSIT Co., defendants and appellees.

1.CRIMINAL PROCEDURE; CIVIL ACTIONS ARISING FROM OFFENSES.—Rule 107, section 1(d) means that the
acquittal of the accused from the criminal charge will not necessarily extinguish the civil liability unless the court declares
in the judgment that the fact from which. the civil liability might arise did not exist. Where the court states "that the
evidence throws no light on the cause of fire and that it was an unfortunate accident for which the accused cannot be held
responsible," this declaration fits well into the exception of the rule which exempts the accused, from civil liability.

2.ID. ; ID. ; RES JUDICATA.—The principle of res judicata cannot apply to the employer of the accused driver for the
simple reason that it was not included as co-accused in the criminal case. It cannot therefore enjoy the benefit resulting
from the acquittal of the driver. This benefit can be claimed by the latter, if a subsequent action is later taken against him
under the Revised Penal Code. And this action can only be maintained if proper reservation is made and there is no
express declaration that the basis of the civil action has not existed. The case against the employer should not be
dismissed, more so when its civil liability is predicated on facts other than those attributed to the driver in the criminal
case.

3.ID.; ID.; NEED FOR RESERVATION OF A CIVIL ACTION; CULPA AQUILIANA.—There is no need for the owner of the
burned house to make a reservation of her right to file a separate civil action inasmuch as the civil action contemplated is
not derived from the criminal liability but one based on culpa aquiliama under the old Civil Code. (Arts. 1902 to 1910).
Parker vs. Panlilio, supra, p. 1.

4.ID.; ID.; ID.; CIVIL ACTION BASED ON PREVENTION OF A GREATER HARM.—Where the damage caused to the
plaintiff's house was brought about mainly because of the driver's desire to avoid a greater evil or harm, and where the
defendant company is one of those for whose benefit a greater harm has been prevented, the case comes within the
purview of article 101, Rule 2, of the revised Penal Code. The acquittal of the driver cannot, therefore, be deemed a bar to
a civil action against this company because its civil liability is completely divorced from the criminal liability of the accused.
And the rule regarding reservation of the right to file a separate civil action does not apply to it.

APPEAL from an order of the Court of First Instance of Manila. Peña, J.

The facts are stated in the opinion of the Court.

Alberto R. de Joya for appellant.

Ross, Selph, Carrascoso & Janda for appellees Standard Vacuum Oil Company, Sto. Domingo and Rico.

Arnaldo J. Guzman for appellee Rural Transit Co.

BAUTISTA ANGELO, J.:

Anita Tan is the owner of a house of strong materials located in the City of Manila, Philippines. On May 3, 1949, the
Standard Vacuum Oil Company ordered the delivery to the Rural Transit Company at its garage at Rizal Avenue
Extension, City of Manila, of 1,925 gallons of gasoline using a gasoline tank-truck trailer. The truck was driven by Julito
Sto. Domingo, who was helped by Igmidio Rico. While the gasoline was being discharged to the underground tank, it
caught fire, whereupon Julito Sto. Domingo drove the truck across the Rizal Avenue Extension and upon reaching the
middle of the street he abandoned the truck which continued moving to the opposite side of the street causing the
buildings on that side to be burned and destroyed. The house of Anita Tan was among those destroyed and for its repair
she spent P12,000.

As an aftermath of the fire, Julito Sto. Domingo and Igmidio Rico were charged with arson through reckless imprudence in
the Court of First Instance of Manila where, after trial, both were acquitted, the court holding that their negligence was not
proven and the fire was due to an unfortunate accident.

Anita Tan then brought this action against the Standard Vacuum Oil Company and the Rural Transit Company, including
the two employees, seeking to recover the damages she has suffered for the destruction of her house.

Defendants filed separate motions to dismiss alleging in substance that (a) plaintiff's action is barred by a prior judgment
and (b) plaintiff's complaint states no cause of action; and this motion having been sustained, plaintiff elevated the case to
this Court imputing eight errors to the court a quo.
The record discloses that the lower court dismissed this case in view of the acquittal of the two employees of defendant
Standard Vacuum Oil Company who were charged with arson through reckless imprudence in the Court of First Instance
of Manila. In concluding that the accused were not guilty of the acts charged because the fire was accidental, the court
made the f ollowing findings: "the accused Igmidio Rico cannot in any manner be held responsible for the fire to the three
houses and goods therein above mentioned. He was not the cause of it, and he took all the necessary precautions
against such contingency as he was confronted with. The evidence throws no light on the cause of the fire. The witnesses
for the prosecution and for the defense testified that they did not know what caused the fire. It was an unfortunate
accident for which the accused Igmidio Rico cannot be held responsible." And a similar finding was made with respect to
the other accused Julito Sto. Domingo. The record also discloses that the information filed against the accused by the
Fiscal contains an itemized statement of the damages suffered by the victims, including the one suffered by Anita Tan,
thereby indicating the intention of the prosecution to demand indemnity from the accused in the same action, but that
notwithstanding this statement with respect to damages, Anita Tan did not make any reservation of her right to file a
separate civil action against the accused as required by the Rules of Court Rule 107, section 1-(a). As Anita Tan failed to
make reservation, and the accused were acquitted, the lower court ruled that she is now barred from filing this action
against the defendants.

This ruling in so far as defendants Julito Sto. Domingo and Igmidio Rico are concerned is correct. The rule is that
"extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration
in a final judgment that the fact from which the civil might arise did not exist" (Rule 107, section 1-d, Rules of Court). This
provision means that the acquittal of the accused from the criminal charge will not necessarily extinguish the civil liability
unless the court declares in the judgment that the fact from which the civil liability might arise did not exist. Here it is true
that Julito Sto. Domingo and Igmidio Rico were acquitted, the court holding that they were not responsible for the fire that
destroyed the house of the plaintiff,—which as a rule will not necessarily extinguish their civil liability,—but the court went
further by stating that the evidence throws no light on the cause of fire and that it was an unfortunate accident for which
the accused cannot be held responsible. In our opinion, this declaration fits well into the exception of the rule which
exempts the two accused from civil liability. When the court acquitted the accused because the fire was due to an
unfortunate accident it actually said that the fire was due to a fortuitous event for which the accused are not to blame. It
actually exonerated them from civil liability.

But the case takes on a different aspect with respect to the other defendants. For one thing, the principle of res judicata
cannot apply to them for the simple reason that they were not included as co-accused in the criminal case. Not having
been included in the criminal case they cannot enjoy the benefit resulting from the acquittal of the accused. This benefit
can only be claimed by the accused if a subsequent action is later taken against them under the Revised Penal Code.
And this action can only be maintained if proper reservation is made and there is no express declaration that the basis of
the civil action has not existed. It is, therefore, an error for the lower court to dismiss the case against these two
defendants more so when their civil liability is predicated on facts other than those attributed to the two employees in the
criminal case.

Take, for instance, the case of the Standard Vacuum Oil Company. This company is sued not precisely because of
supposed negligent acts of its two employees Julito Sto. Domingo and Igmidio Rico but because of acts of its own which
might have contributed to the fire that destroyed the house of the plaintiff. The complaint contains definite allegations of
negligent acts properly attributable to the company which if proven and not refuted may serve as basis of its civil liability.
Thus, in paragraph 5 of the first cause of action, it is expressly alleged that this company, through its employees, failed to
take the necessary precautions or measures to insure safety and avoid harm to person and damage to property as well as
to observe that degree of care, precaution and vigilance which the circumstances justly demanded, thereby causing the
gasoline they were unloading to catch fire. The precautions or measures which this company has allegedly failed to take
to prevent fire are not clearly stated, but they are matters of evidence which need not now be determined. Suffice it to say
that such allegation furnishes enough basis for a cause of action against this company. There Is no need for the plaintiff to
make a reservation of her right to file a separate civil action, for as this court already held in a number of cases, such
reservation is not necessary when the civil action contemplated is not derived from the criminal liability but one based on
culpa aquiliana under the old Civil Code (articles 1902 to 1910). These two acts are separate and distinct and should not
be confused one with the other. Plaintiff can choose either (Asuncion Parker vs. Hon. A. J. Panlilio supra, p. 1.)

The case of the Rural Transit Co. is even more different as it is predicated on a special provision of the Revised Penal
Code. Thus, article 101, Rule 2, of said Code provides:

"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 liabilit y,
which shall be enforced subject to the following rules:

* * * * * * *

"Second. In cases falling within subdivision 4 of article 11, the persons for whose benefit the harm has been prevented
shall be civilly liable in proportion to the benefit which they may have received."
And on this point, the complaint contains the following averments:

"3. That after the corresponding trial the said defendants were acquitted and defendant Julito Sto. Domingo was acquitted,
on the ground that he so acted causing damage to another in order to avoid a greater evil or injury, under article 11,
paragraph 4 of the Revised Penal Code, as shown by the pertinent portion of the decision of this Honorable Court in said
case, dated October 28, 1949, which reads as follows:

'Under the foregoing facts, there can be no doubt that had the accused Julito Sto. Domingo not taken the gasoline tank-
truck trailer out in the street, a bigger conflagration would have occurred in Rizal Avenue Extension, and, perhaps, there
might have been several deaths and bearing in mind the provisions of Article 11, paragraph 4 of the Revised Penal Code
the accused Julito Sto. Domingo incurred no criminal liability.'

"4. That it was consequently the defendant Rural Transit Co., from whose premises the burning gasoline tank-truck trailer
was driven out by defendant Julito ,Sto. Domingo in order to avoid a greater evil or injury, for whose benefit the harm has
been prevented under article 101, second subsection of the Revised Penal Code."

Considering the above quoted law and facts, the cause of action against the Rural Transit Company can hardly be
disputed, it appearing that the damage caused to the plaintiff was brought about mainly because of the desire of driver
Julito Sto. Domingo to avoid greater evil or harm, which would have been the case had he not brought the tank-truck
trailer to the middle of the street, for then the fire would have caused the explosion of the gasoline deposit of the company
which would have resulted in a conflagration of much greater proportion and consequences to the houses nearby or
surrounding it. It cannot be denied that this company is one of those for whose benefit a greater harm has been
prevented, and as such it comes within the purview of said penal provision. The acquittal of the accused cannot,
therefore, be deemed a bar to a civil action against this company because its civil liability is completely divorced from the
criminal liability of the accused. The rule regarding reservation of the right to file a separate civil action does not apply to it.

Wherefore, the order appealed from is hereby modified as follows: it is affirmed with regard to defendants Julito Sto.
Domingo and Igmidio Rico; but it is reversed with regard to defendants Standard Vacuum Oil Company and Rural Transit
Company, with costs.

Pablo, Bengzon, Padilla, Tuason, and Labrador, JJ., concur.

Parás, C. J., concurs in the result.

Order affirmed as to defendants Sto. Domingo and Rico; reversed with regard to defendants standard Vacuum Oil, Co.
and Rural Transit Co. Tan vs. Standard Vacuum Oil Co., et al., 91 Phil. 672, No. L-4160 July 29, 1952
G.R. No. 102007. September 2, 1994.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO BAYOTAS y CORDOVA, accused-appellant.

Criminal Law; Actions; Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as
the civil liability based solely thereon.—Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard, “the death of the
accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based
solely on the offense committed, i.e., civil liability ex delicto in senso strictiore.”

Same; Same; The claim for civil liability survives notwithstanding the death of accused, if the same may also be
predicated on a source of survives notwithstanding the death of accused, if the same may also be obligation other than
delict.—Corollarily, the claim for civil liability predicated on a source of obligation other than delict. Article 1157 of the Civil
Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or
omission: a)Law; b) Contracts; c) Quasi-contracts; d) x x x x x x x x x; e) Quasi-delicts.

Same; Same; Where the civil liability survives, an action for recovery therefor may be pursued but only by way of filing a
separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended.—Where
the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued but only by way
of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended.
This separate civil action may be enforced either against the executor/administrator or the estate of the accused,
depending on the source of obligation upon which the same is based as explained above.

Same; Same; Private offended party need not fear a forfeiture of his right to file the separate civil action by prescription.—
Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by prescription, in
cases where during the prosecution of the criminal action and prior to its extinction, the private-offended party instituted
together therewith the civil action. In such case, the statute of limitations on the civil liability is deemed interrupted during
the pendency of the criminal case, conformably with provisions of Article 1155 of the Civil Code, that should thereby avoid
any apprehension on a possible privation of right by prescription.

Same; Same; Death of appellant Bayotas extinguished his criminal liability and the civil liability based solely on the act
complained of, i.e., rape.—Applying this set of rules to the case at bench, we hold that the death of appellant Bayotas
extinguished his criminal liability and the civil liability based solely on the act complained of, i.e., rape. Consequently, the
appeal is hereby dismissed without qualification.

APPEAL from a decision of the Regional Trial Court of Roxas City, Br. 16.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.

Public Attorney‟s Office for accused-appellant.

ROMERO, J.:

In Criminal Case No. C-3217 filed before Branch 16, RTC Roxas City, Rogelio Bayotas y Cordova was charged with Rape
and eventually convicted thereof on June 19, 1991 in a decision penned by Judge Manuel E. Autajay. Pending appeal of
his conviction, Bayotas died on February 4, 1992 at the National Bilibid Hospital due to cardio respiratory arrest secondary
to hepatic encephalopathy secondary to hipato carcinoma gastric malingering. Consequently, the Supreme Court in its
Resolution of May 20, 1992 dismissed the criminal aspect of the appeal. However, it required the Solicitor General to file
its comment with regard to Bayotas‟ civil liability arising from his commission of the offense charged.

In his comment, the Solicitor General expressed his view that the death of accused-appellant did not extinguish his civil
liability as a result of his commission of the offense charged. The Solicitor General, relying on the case of People v.
Sendaydiego1 insists that the appeal should still be resolved for the purpose of reviewing his conviction by the lower court
on which the civil liability is based.

Counsel for the accused-appellant, on the other hand, opposed the view of the Solicitor General arguing that the death of
the accused while judgment of conviction is pending appeal extinguishes both his criminal and civil penalties. In support of
his position, said counsel invoked the ruling of the Court of Appeals in People v. Castillo and Ocfemia2 which held that the
civil obligation in a criminal case takes root in the criminal liability and, therefore, civil liability is extinguished if accused
should die before final judgment is rendered.

We are thus confronted with a single issue: Does death of the accused pending appeal of his conviction extinguish his
civil liability?

In the aforementioned case of People v. Castillo, this issue was settled in the affirmative. This same issue posed therein
was phrased thus: Does the death of Alfredo Castillo affect both his criminal responsibility and his civil liability as a
consequence of the alleged crime?
It resolved this issue thru the following disquisition:

“Article 89 of the Revised Penal Code is the controlling statute. It reads, in part:

„ART. 89. How criminal liability is totally extinguished.—Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to the pecuniary penalties liability therefor is
extinguished only when the death of the offender occurs before final judgment;‟ With reference to Castillo‟s criminal
liability, there is no question.

The law is plain. Statutory construction is unnecessary. Said liability is extinguished.

The civil liability, however, poses a problem. Such liability is extinguished only when the death of the offender occurs
before final judgment. Saddled upon us is the task of ascertaining the legal import of the term „final judgment.‟ Is it final
judgment as contradistinguished from an interlocutory order? Or, is it a judgment which is final and executory?

We go to the genesis of the law. The legal precept contained in Article 89 of the Revised Penal Code heretofore
transcribed is lifted from Article 132 of the Spanish El Codigo Penal de 1870 which, in part, recites:

„La responsabilidad penal se extingue.

1. Por la muerte del reo en cuanto a las penas personales siempre, y respecto a las pecuniarias, solo cuando a su
fallecimiento no hubiere recaido sentencia firme.‟

xxx xxx xxx

The code of 1870 x x x it will be observed employs the term „sentencia firme.‟ What is „sentencia firme‟ under the old
statute? XXVIII Enciclopedia Juridica Española, p. 473, furnishes the ready answer: It says:

„SENTENCIA FIRME. La sentencia que adquiere la fuerza de las definitivas por no haberse utilizado por las partes
litigantes recurso alguno contra ella dentro de los terminos y plazos legales concedidos al efecto.‟

„Sentencia firme‟ really should be understood as one which is definite. Because, it is only when judgment is such that, as
Medina y Maranon puts it, the crime is confirmed—„en condena determinada;‟ or, in the words of Groizard, the guilt of the
accused becomes—„una verdad legal.‟ Prior thereto, should the accused die, according to Viada, „no hay legalmente, en
tal caso, ni reo, ni delito, ni responsabilidad criminal de ninguna clase.‟ And, as Judge Kapunan well explained, when a
defendant dies before judgment becomes executory, „there cannot be any determination by final judgment whether or not
the felony upon which the civil action might arise exists,‟ for the simple reason that „there is no party defendant.‟ (I
Kapunan, Revised Penal Code, Annotated, p. 421. Senator Francisco holds the same view. Francisco, Revised Penal
Code, Book One, 2nd ed., pp. 859-860)

The legal import of the term „final judgment‟ is similarly reflected in the Revised Penal Code. Articles 72 and 78 of that
legal body mention the term „final judgment‟ in the sense that it is already enforceable. This also brings to mind Section 7,
Rule 116 of the Rules of Court which states that a judgment in a criminal case becomes final „after the lapse of the period
for perfecting an appeal or when the sentence has been partially or totally satisfied or served, or the defendant has
expressly waived in writing his right to appeal.‟

By fair intendment, the legal precepts and opinions here collected funnel down to one positive conclusion: The term final
judgment employed in the Revised Penal Code means judgment beyond recall. Really, as long as a judgment has not
become executory, it cannot be truthfully said that defendant is definitely guilty of the felony charged against him.

Not that the meaning thus given to final judgment is without reason. For where, as in this case, the right to institute a
separate civil action is not reserved, the decision to be rendered must, of necessity, cover „both the criminal and the civil
aspects of the case.‟ People vs. Yusico (November 9, 1942), 2 O.G., No. 100, p. 964. See also: People vs. Moll, 68 Phil.,
626, 634; Francisco, Criminal Procedure, 1958 ed., Vol. I, pp. 234, 236. Correctly, Judge Kapunan observed that as „the
civil action is based solely on the felony committed and of which the offender might be found guilty, the death of the
offender extinguishes the civil liability.‟ I Kapunan, Revised Penal Code, Annotated, supra.

Here is the situation obtaining in the present case: Castillo‟s criminal liability is out. His civil liability is sought to be
enforced by reason of that criminal liability. But then, if we dismiss, as we must, the criminal action and let the civil aspect
remain, we will be faced with the anomalous situation whereby we will be called upon to clamp civil liability in a case
where the source thereof—criminal liability—does not exist. And, as was well stated in Bautista, et al. vs. Estrella, et al.,
CA-G.R. No. 19226-R, September 1, 1958, „no party can be found and held criminally liable in a civil suit,‟ which solely
would remain if we are to divorce it from the criminal proceeding.”

This ruling of the Court of Appeals in the Castillo case3 was adopted by the Supreme Court in the cases of People of the
Philippines v. Bonifacio Alison, et al.,4 People of the Philippines v. Jaime Jose, et al.5 and People of the Philippines v.
Satorre6 by dismissing the appeal in view of the death of the accused pending appeal of said cases.
As held by then Supreme Court Justice Fernando in the Alison case:

“The death of accused-appellant Bonifacio Alison having been established, and considering that there is as yet no final
judgment in view of the pendency of the appeal, the criminal and civil liability of the said accused-appellant Alison was
extinguished by his death (Art. 89, Revised Penal Code; Reyes‟ Criminal Law, 1971 Rev. Ed., p. 717, citing People v.
Castillo and Ocfemia C.A., 56 O.G. 4045); consequently, the case against him should be dismissed.”

On the other hand, this Court in the subsequent cases of Buenaventura Belamala v. Marcelino Polinar7 and Lamberto
Torrijos v. The Honorable Court of Appeals8 ruled differently. In the former, the issue decided by this court was: Whether
the civil liability of one accused of physical injuries who died before final judgment is extinguished by his demise to the
extent of barring any claim therefor against his estate. It was the contention of the administrator-appellant therein that the
death of the accused prior to final judgment extinguished all criminal and civil liabilities resulting from the offense, in view
of Article 89, paragraph 1 of the Revised Penal Code. However, this court ruled therein:

“We see no merit in the plea that the civil liability has been extinguished, in view of the provisions of the Civil Code of the
Philippines of 1950 (Rep. Act No. 386) that became operative eighteen years after the revised Penal Code. As pointed out
by the Court below, Article 33 of the Civil Code establishes a civil action for damages on account of physical injuries,
entirely separate and distinct from the criminal action.

„ART. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct
from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evi-dence.‟

Assuming that for lack of express reservation, Belamala‟s civil action for damages was to be considered instituted
together with the criminal action still, since both proceedings were terminated without final adjudication, the civil action of
the offended party under Article 33 may yet be enforced separately.”

In Torrijos, the Supreme Court held that:

“x x x xxx xxx

It should be stressed that the extinction of civil liability follows the extinction of the criminal liability under Article 89, only
when the civil liability arises from the criminal act as its only basis. Stated differently, where the civil liability does not exist
independently of the criminal responsibility, the extinction of the latter by death, ipso facto extinguishes the former,
provided, of course, that death supervenes before final judgment. The said principle does not apply in instant case
wherein the civil liability springs neither solely nor originally from the crime itself but from a civil contract of purchase and
sale. (Italics ours)

xxx xxx x x x.”

In the above case, the court was convinced that the civil liability of the accused who was charged with estafa could
likewise trace its genesis to Articles 19, 20 and 21 of the Civil Code since said accused had swindled the first and second
vendees of the property subject matter of the contract of sale. It therefore concluded: “Consequently, while the death of
the accused herein extinguished his criminal liability including fine, his civil liability based on the laws of human relations
remains.”

Thus it allowed the appeal to proceed with respect to the civil liability of the accused, notwithstanding the extinction of his
criminal liability due to his death pending appeal of his conviction.

To further justify its decision to allow the civil liability to survive, the court relied on the following ratiocination: Since
Section 21, Rule 3 of the Rules of Court9 requires the dismissal of all money claims against the defendant whose death
occurred prior to the final judgment of the Court of First Instance (CFI), then it can be inferred that actions for recovery of
money may continue to be heard on appeal, when the death of the defendant supervenes after the CFI had rendered its
judgment. In such case, explained this tribunal, “the name of the offended party shall be included in the title of the case as
plaintiff-appellee and the legal representative or the heirs of the deceased-accused should be substituted as defendants-
appellants.”

It is, thus, evident that as jurisprudence evolved from Castillo to Torrijos, the rule established was that the survival of the
civil liability depends on whether the same can be predicated on sources of obligations other than delict. Stated differently,
the claim for civil liability is also extinguished together with the criminal action if it were solely based thereon, i.e., civil
liability ex delicto.

However, the Supreme Court in People v. Sendaydiego, et al.10 departed from this long-established principle of law. In
this case, accused Sendaydiego was charged with and convicted by the lower court of malversation thru falsification of
public documents. Sendaydiego‟s death supervened during the pendency of the appeal of his conviction.
This court in an unprecedented move resolved to dismiss Sendaydiego‟s appeal but only to the extent of his criminal
liability. His civil liability was allowed to survive although it was clear that such claim thereon was exclusively dependent
on the criminal action already extinguished. The legal import of such decision was for the court to continue exercising
appellate jurisdiction over the entire appeal, passing upon the correctness of Sendaydiego‟s conviction despite dismissal
of the criminal action, for the purpose of determining if he is civilly liable. In doing so, this Court issued a Resolution of July
8, 1977 stating thus:

“The claim of complainant Province of Pangasinan for the civil liability survived Sendaydiego because his death occurred
after final judgment was rendered by the Court of First Instance of Pangasinan, which convicted him of three complex
crimes of malversation through falsification and ordered him to indemnify the Province in the total sum of P61,048.23
(should be P57,048.23).

The civil action for the civil liability is deemed impliedly instituted with the criminal action in the absence of express waiver
or its reservation in a separate action (Sec. 1, Rule 111 of the Rules of Court). The civil action for the civil liability is
separate and distinct from the criminal action (People and Manuel vs. Coloma, 105 Phil. 1287; Roa vs. De la Cruz, 107
Phil. 8).

When the action is for the recovery of money and the defendant dies before final judgment in the Court of First Instance, it
shall be dismissed to be prosecuted in the manner especially provided in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of
the Rules of Court).

The implication is that, if the defendant dies after a money judgment had been rendered against him by the Court of Fi rst
Instance, the action survives him. It may be continued on appeal (Torrijos vs. Court of Appeals, L-40336, October 24,
1975; 67 SCRA 394).

The accountable public officer may still be civilly liable for the funds improperly disbursed although he has no criminal
liability (U.S. vs. Elvina, 24 Phil. 230; Philippine National Bank vs. Tugab, 66 Phil. 583).

In view of the foregoing, notwithstanding the dismissal of the appeal of the deceased Sendaydiego insofar as his criminal
liability is concerned, the Court Resolved to continue exercising appellate jurisdiction over his possible civil liability for the
money claims of the Province of Pangasinan arising from the alleged criminal acts complained of, as if no criminal case
had been instituted against him, thus making applicable, in determining his civil liability, Article 30 of the Civil Code x x x
and, for that purpose, his counsel is directed to inform this Court within ten (10) days of the names and addresses of the
decedent‟s heirs or whether or not his estate is under administration and has a duly appointed judicial administrator. Said
heirs or administrator will be substituted for the deceased insofar as the civil action for the civil liability is concerned (Secs.
16 and 17, Rule 3, Rules of Court).”

Succeeding cases11 raising the identical issue have maintained adherence to our ruling in Sendaydiego; in other words,
they were a reaffirmance of our abandonment of the settled rule that a civil liability solely anchored on the criminal (civil
liability ex delicto) is extinguished upon dismissal of the entire appeal due to the demise of the accused.

But was it judicious to have abandoned this old ruling? A reexamination of our decision in Sendaydiego impels us to revert
to the old ruling.

To restate our resolution of July 8, 1977 in Sendaydiego: The resolution of the civil action impliedly instituted in the
criminal action can proceed irrespective of the latter‟s extinction due to death of the accused pending appeal of his
conviction, pursuant to Article 30 of the Civil Code and Section 21, Rule 3 of the Revised Rules of Court.

Article 30 of the Civil Code provides:

“When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal
proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient
to prove the act complained of.”

Clearly, the text of Article 30 could not possibly lend support to the ruling in Sendaydiego. Nowhere in its text is there a
grant of authority to continue exercising appellate jurisdiction over the accused‟s civil liability ex delicto when his death
supervenes during appeal. What Article 30 recognizes is an alternative and separate civil action which may be brought to
demand civil liability arising from a criminal offense independently of any criminal action. In the event that no criminal
proceedings are instituted during the pendency of said civil case, the quantum of evidence needed to prove the criminal
act will have to be that which is compatible with civil liability and that is, preponderance of evidence and not proof of guilt
beyond reasonable doubt. Citing or invoking Article 30 to justify the survival of the civil action despite extinction of the
criminal would in effect merely beg the question of whether civil liability ex delicto survives upon extinction of the criminal
action due to death of the accused during appeal of his conviction. This is because whether asserted in the criminal action
or in a separate civil action, civil liability ex delicto is extinguished by the death of the accused while his conviction is on
appeal. Article 89 of the Revised Penal Code is clear on this matter:

“Art. 89. How criminal liability is totally extinguished.—Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is extinguished
only when the death of the offender occurs before final judgment;

xxx xxx x x x.”

However, the ruling in Sendaydiego deviated from the expressed intent of Article 89. It allowed claims for civil liability ex
delicto to survive by ipso facto treating the civil action impliedly instituted with the criminal, as one filed under Article 30, as
though no criminal proceedings had been filed but merely a separate civil action. This had the effect of converting such
claims from one which is dependent on the outcome of the criminal action to an entirely new and separate one, the
prosecution of which does not even necessitate the filing of criminal proceedings.12 One would be hard put to pinpoint the
statutory authority for such a transformation. It is to be borne in mind that in recovering civil liability ex delicto, the same
has perforce to be determined in the criminal action, rooted as it is in the court‟s pronouncement of the guilt or innocence
of the accused. This is but to render fealty to the intendment of Article 100 of the Revised Penal Code which provides that
“every person criminally liable for a felony is also civilly liable.” In such cases, extinction of the criminal action due to death
of the accused pending appeal inevitably signifies the concomitant extinction of the civil liability. Mors Omnia Solvi. Death
dissolves all things.

In sum, in pursuing recovery of civil liability arising from crime, the final determination of the criminal liability is a condition
precedent to the prosecution of the civil action, such that when the criminal action is extinguished by the demise of
accused-appellant pending appeal thereof, said civil action cannot survive. The claim for civil liability springs out of and is
dependent upon facts which, if true, would constitute a crime. Such civil liability is an inevitable consequence of the
criminal liability and is to be declared and enforced in the criminal proceeding. This is to be distinguished from that which
is contemplated under Article 30 of the Civil Code which refers to the institution of a separate civil action that does not
draw its life from a criminal proceeding. The Sendaydiego resolution of July 8, 1977, however, failed to take note of this
fundamental distinction when it allowed the survival of the civil action for the recovery of civil liability ex delicto by tr eating
the same as a separate civil action referred to under Article 30. Surely, it will take more than just a summary judicial
pronouncement to authorize the conversion of said civil action to an independent one such as that contemplated under
Article 30.

Ironically however, the main decision in Sendaydiego did not apply Article 30, the resolution of July 8, 1977
notwithstanding. Thus, it was held in the main decision:

“Sendaydiego‟s appeal will be resolved only for the purpose of showing his criminal liability which is the basis of the civil
liability for which his estate would be liable.”13

In other words, the Court, in resolving the issue of his civil liability, concomitantly made a determination on whether
Sendaydiego, on the basis of evidence adduced, was indeed guilty beyond reasonable doubt of committing the offense
charged. Thus, it upheld Sendaydiego‟s conviction and pronounced the same as the source of his civil liability.
Consequently, although Article 30 was not applied in the final determination of Sendaydiego‟s civil liability, there was a
reopening of the criminal action already extinguished which served as basis for Sendaydiego‟s civil liability. We reiterate:
Upon death of the accused pending appeal of his conviction, the criminal action is extinguished inasmuch as there is no
longer a defendant to stand as the accused; the civil action instituted therein for recovery of civil liability ex delicto is ipso
facto extinguished, grounded as it is on the criminal. Section 21, Rule 3 of the Rules of Court was also invoked to serve as
another basis for the Sendaydiego resolution of July 8, 1977. In citing Sec. 21, Rule 3 of the Rules of Court, the Court
made the inference that civil actions of the type involved in Sendaydiego consist of money claims, the recovery of which
may be continued on appeal if defendant dies pending appeal of his conviction by holding his estate liable therefor.
Hence, the Court‟s conclusion:

“ „When the action is for the recovery of money‟ „and the defendant dies before final judgment in the court of First
Instance, it shall be dismissed to be prosecuted in the manner especially provided‟ in Rule 87 of the Rules of Court (Sec.
21, Rule 3 of the Rules of Court).

The implication is that, if the defendant dies after a money judgment had been rendered against him by the Court of First
Instance, the action survives him. It may be continued on appeal.”

Sadly, reliance on this provision of law is misplaced. From the standpoint of procedural law, this course taken in
Sendaydiego cannot be sanctioned. As correctly observed by Justice Regalado:

“x x x xxx x x x.

I do not, however, agree with the justification advanced in both Torrijos and Sendaydiego which, relying on the provisions
of Section 21, Rule 3 of the Rules of Court, drew the strained implication therefrom that where the civil liability instituted
together with the criminal liabilities had already passed beyond the judgment of the then Court of First Instance (now the
Regional Trial Court), the Court of Appeals can continue to exercise appellate jurisdiction thereover despite the
extinguishment of the component criminal liability of the deceased. This pronouncement, which has been followed in the
Court‟s judgments subsequent and consonant to Torrijos and Sendaydiego, should be set aside and abandoned as being
clearly erroneous and unjustifiable. Said Section 21 of Rule 3 is a rule of civil procedure in ordinary civil actions. There is
neither authority nor justification for its application in criminal procedure to civil actions instituted together with and a s part
of criminal actions. Nor is there any authority in law for the summary conversion from the latter category of an ordinary
civil action upon the death of the offender. x x x.”

Moreover, the civil action impliedly instituted in a criminal proceeding for recovery of civil liability ex delicto can hardly be
categorized as an ordinary money claim such as that referred to in Sec. 21, Rule 3 enforceable before the estate of the
deceased accused.

Ordinary money claims referred to in Section 21, Rule 3 must be viewed in light of the provisions of Section 5, Rule 86
involving claims against the estate, which in Sendaydiego was held liable for Sendaydiego‟s civil liability. “What are
contemplated in Section 21 of Rule 3, in relation to Section 5 of Rule 86,14 are contractual money claims while the claims
involved in civil liability ex delicto may include even the restitution of personal or real property.”15

Section 5, Rule 86 provides an exclusive enumeration of what claims may be filed against the estate. These are: funeral
expenses, expenses for the last illness, judgments for money and claim arising from contracts, expressed or implied. It is
clear that money claims arising from delict do not form part of this exclusive enumeration. Hence, there could be no legal
basis in (1) treating a civil action ex delicto as an ordinary contractual money claim referred to in Section 21, Rule 3 of the
Rules of Court and (2) allowing it to survive by filing a claim therefor before the estate of the deceased accused. Rather, i t
should be extinguished upon extinction of the criminal action engendered by the death of the accused pending finality of
his conviction.

Accordingly, we rule: if the private offended party, upon extinction of the civil liability ex delicto desires to recover
damages from the same act or omission complained of, he must subject to Section 1, Rule 11116 (1985 Rules on
Criminal Procedure as amended) file a separate civil action, this time predicated not on the felony previously charged but
on other sources of obligation. The source of obligation upon which the separate civil action is premised determines
against whom the same shall be enforced.

If the same act or omission complained of also arises from quasi-delict or may, by provision of law, result in an injury to
person or property (real or personal), the separate civil action must be filed against the executor or administrator17 of the
estate of the accused pursuant to Sec. 1, Rule 87 of the Rules of Court:

“SECTION 1. Actions which may and which may not be brought against executor or administrator.—No action upon a
claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but
actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and
actions to recover damages for an injury to person or property, real or personal, may be commenced against him.”

This is in consonance with our ruling in Belamala18 where we held that, in recovering damages for injury to perso ns thru
an independent civil action based on Article 33 of the Civil Code, the same must be filed against the executor or
administrator of the estate of deceased accused and not against the estate under Sec. 5, Rule 86 because this rule
explicitly limits the claim to those for funeral expenses, expenses for the last sickness of the decedent, judgment for
money and claims arising from contract, express or implied. Contractual money claims, we stressed, refers only to purely
personal obligations other than those which have their source in delict or tort.

Conversely, if the same act or omission complained of also arises from contract, the separate civil action must be filed
against the estate of the accused, pursuant to Sec. 5, Rule 86 of shall be paid by the offended party upon the filing thereof
in court for trial.

From this lengthy disquisition, we summarize our ruling herein:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability
based solely thereon. As opined by Justice Regalado, in this regard, “the death of the accused prior to final judgment
terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed,
i.e., civil liability ex delicto in senso strictiore.”

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be predicated
on a source of obligation other than delict.19 Article 1157 of the Civil Code enumerates these other sources of obligation
from which the civil liability may arise as a result of the same act or omission:

a) Law20

b) Contracts

c) Quasi-contracts

d) x x x xxx xxx

e) Quasi-delicts
3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued but
only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as
amended. This separate civil action may be enforced either against the executor/ administrator or the estate of the
accused, depending on the source of obligation upon which the same is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by prescription, in
cases where during the prosecution of the criminal action and prior to its extinction, the private-offended party instituted
together therewith the civil action. In such case, the statute of limitations on the civil liability is deemed interrupted during
the pendency of the criminal case, conformably with provisions of Article 115521 of the Civil Code, that should thereby
avoid any apprehension on a possible privation of right by prescription.22

Applying this set of rules to the case at bench, we hold that the death of appellant Bayotas extinguished his criminal
liability and the civil liability based solely on the act complained of, i.e., rape. Consequently, the appeal is hereby
dismissed without qualification.

WHEREFORE, the appeal of the late Rogelio Bayotas is DISMISSED with costs de oficio.

SO ORDERED.

Narvasa (C.J.), Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and
Mendoza, JJ., concur.

Cruz, J., On leave.

Appeal dismissed.

Note.—e outcome or result of the criminal case whether an acquittal or conviction is inconsequential and will be of no
moment in a civil action for damages based on Article 33 of the Civil Code. (Diong Bi Chu vs. Court of Appeals, 192
SCRA 554 [1990])

——o0o—— People vs. Bayotas, 236 SCRA 239, G.R. No. 102007 September 2, 1994
No. L-24101. September 30, 1970.
MARIA TERESA Y. CUADRA, minor represented by her father ULISES P. CUADRA, ET AL., plaintiffs-appellees,
vs. ALFONSO MONFORT,defendant-appellant.

Civil Law; Minors; Damages; Diligence of a good father of a family; Liability of parents for damages caused by their minor
children.—In the present case there is nothing from which it may be inferred that the defendant could have prevented the
damage by the observance of due care, or that he was in any way remiss in the exercise of his parental authority in failing
to foresee such damage, or the act which caused it. On the contrary, his child was at school, where it was his duty to send
her and where she was, as he had the right to expect her to be, under the care and supervision of the teacher. And as far
as the act which caused the injury was concerned, it was an innocent prank not unusual among children at play and which
no parent, however careful, would have any special reason to anticipate, much less guard against. Nor did it reveal any
mischievous propensity, or indeed any trait in the child‟s character which would reflect unfavorably on her upbringing and
for which the blame would be attributed to her parents.

BARREDO, J.:dissenting

Civil Law; Minors; Damages; What constitutes fault within contemplation of law on torts; Knowledge of consequence of
minor‟s acts could be determined by her age.—She was 13 years and should have known that by jokingly saying aloud
“that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her,” it was likely that
something would happen to her friend, as in fact, she was hurt.

Same; Same; Same; Liability of the father.—There being no evidence that he had properly advised his daughter to
behave properly and not to play dangerous jokes on her classmates and playmates, he can be liable under Article 2180 of
the Civil Code.

APPEAL from a decision of the Court of First Instance of Negros Occidental. Enriquez, J.

The facts are stated in the opinion of the Court.

Rodolfo J. Herman for plaintiffs-appellees.

Luis G. Torres & Abraham E. Tionko for defendant-appellant.

MAKALINTAL, J.:

This is an action for damages based on quasi-delict, decided by the Court of First Instance of Negros Occidental favorably
to the plaintiffs and appealed by the defendant to the Court of Appeals, which certified the same to us since the facts are
not in issue.

Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13, were classmates in Grade Six at the Mabini Elementary School
in Bacolod City. On July 9, 1962 their teacher assigned them, together with three other classmates, to weed the grass in
the school premises. While thus engaged Maria Teresa Monfort found a plastic headband, an ornamental object
commonly worn by young girls over their hair. Jokingly she said aloud that she had found an earthworm and, evidently to
frighten the Cuadra girl, tossed the object at her. At that precise moment the latter turned around to face her friend, and
the object hit her right eye. Smarting from the pain, she rubbed the injured part and treated it with some powder. The next
day, July 10, the eye became swollen and it was then that the girl related the incident to her parents, who thereupon took
her to a doctor for treatment. She underwent surgical operation twice, first on July 20 and again on August 4, 1962, and
stayed in the hospital for a total of twenty-three days, for all of which the parents spent the sum of P1,703.75. Despite the
medical efforts, however, Maria Teresa Cuadra completely lost the sight of her right eye.

In the civil suit subsequently instituted by the parents in behalf of their minor daughter against Alfonso Monfort, Maria
Teresa Monfort‟s father, the defendant was ordered to pay P1,703.00 as actual damages; P20,000.00 as moral damages;
and P2,000.00 as attorney‟s fees, plus the costs of the suit.

The legal issue posed in this appeal is the liability of a parent for an act of his minor child which causes damage to
another under the specific facts related above and the applicable provisions of the Civil Code, particularly Articles 2176
and 2180 thereof, which read:

“ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.”

“ART. 2180. The obligation imposed by Article 2176 is demandable not only for one‟s own acts or omissions, but also for
those of persons for whom one is responsible.

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.

***
The responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.”

The underlying basis of the liability imposed by Article 2176 is the fault or negligence accompanying the act or the
omission, there being no willfulness or intent to cause damage thereby. When the act or omission is that of one person for
whom another is responsible, the latter then becomes himself liable under Article 2180, in the different cases enumerated
therein, such as that of the father or the mother under the circumstances above quoted. The basis of this vicarious,
although primary, liability is, as in Article 2176, fault or negligence, which is presumed from that which accompanied the
causative act or omission. The presumption is merely prima facie and may therefore be rebutted. This is the clear and
logical inference that may be drawn from the last paragraph of Article 2180, which states “that the responsibility treated of
in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of
a family to prevent damage.”

Since the fact thus required to be proven is a matter of defense, the burden of proof necessarily rests on the defendant.
But what is the exact degree of diligence contemplated, and how does a parent prove it in connection with a particular act
or omission of a minor child, especially when it takes place in his absence or outside his immediate company? Obviously
there can be no meticulously calibrated measure applicable; and when the law simply refers to “all the diligence of a good
father of the family to prevent damage,” it implies a consideration of the attendant circumstances in every individual case,
to determine whether or not by the exercise of such diligence the damage could have been prevented.

In the present case there is nothing from which it may be inferred that the defendant could have prevented the damage by
the observance of due care, or that he was in any way remiss in the exercise of his parental authority in failing to foresee
such damage, or the act which caused it. On the contrary, his child was at school, where it was his duty to send her and
where she was, as he had the right to expect her to be, under the care and supervision of the teacher. And as far as the
act which caused the injury was concerned, it was an innocent prank not unusual among children at play and which no
parent, however careful, would have any special reason to anticipate much less guard against. Nor did it reveal any
mischievous propensity, or indeed any trait in the child‟s character which would reflect unfavorably on her upbringing and
for which the blame could be attributed to her parents.

The victim, no doubt, deserves no little commiseration and sympathy for the tragedy that befell her. But if the defendant is
at all obligated to compensate her suffering, the obligation has no legal sanction enforceable in court, but only the moral
compulsion of good conscience.

The decision appealed from is reversed, and the complaint is dismissed, without pronouncement as to costs.

Reyes, J.B.L., Actg. C.J., Dizon, Zaldivar, Castro, Teehankee, Villamor and Makasiar, JJ., concur.

Concepcion, C.J., is on leave.

Fernando, J., did not take part.

Barredo, J., dissents in a separate opinion.

DISSENTING OPINION

BARREDO,J.,dissenting:

I am afraid I cannot go along with my esteemed colleagues in holding that the act of appellant‟s daughter does not
constitute fault within the contemplation of our law on torts. She was 13 years and should have known that by jokingly
saying “aloud that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her,” it was
likely that something would happen to her friend, as in fact, she was hurt.

As to the liability of appellant as father, I prefer to hold that there being no evidence that he had properly advised his
daughter to behave properly and not to play dangerous jokes on her classmate and playmates, he can be liable under
Article 2180 of the Civil Code. There is nothing in the record to show that he had done anything at all to even try to
minimize the damage caused upon plaintiff child.

Decision reversed.

Notes.—Liability for quasi-delict committed by minor.—There is a holding that a minor is civilly liable for his acts, if they
constitute a crime, under Article 100 of the Revised Penal Code, and if they constitute a tort or culpa aquiliana, under
Article 32, paragraph 2, of the old Civil Code, now Article 38 of the new Civil Code (Magtibay vs. Tiangco, 74 Phil. 576).

There is likewise a holding that the liability imposed upon a parent by Article 2180 of the new Civil Code (Article 1903 of
the old Code) for any damages caused by a minor child who lives with him is based on the parental authority and duty of
the parent in instructing and punishing the child, and the only way in which this liability can be relieved against is by proof
of exercise of all diligence of a good father of a family to prevent the damage. This liability is not affected by the fact that,
at the time the damage is caused, the child is engaged in activities under instruction of the city school‟s supervisor and
not, for the time being, under direct control of the parents, if the school attended by the child is an academic educational
institution inasmuch as the corresponding paragraph of the Article places the liability upon the teacher or director only
where the educational institution is one for arts and trade (Exconde vs. Capuno, L-10134, June 29, 1957, three justices
dissenting).

This ruling was reiterated in Mercado vs. Court of Appeals, L-14342, May 30, 1960, where the Court added the following
observation: “The clause „so long as they remain in their custody‟ in the last paragraph of Article 2180 of the Civil Code
contemplates a situation where the pupil lives and boards with the teacher, such that the control, direction and influence
on the pupil supersedes those of the parents. In these circumstances, the control or influence over the conduct and
actions of the pupil would pass from the father and mother to the teacher; and so would the responsibility for the torts of
the pupil. Such a situation does not appear in the case at bar; the pupils appear to go to school during school hours and
go back to their homes with their parents after school is over. The situation contemplated in the said provision of law does
not apply, nor does paragraph 2 of said article 2180, which makes father or mother responsible for the damages caused
by their minor children.” Cuadra vs. Monfort, 35 SCRA 160, No. L-24101 September 30, 1970
G.R. No. 85044. June 3, 1992.*
MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners, vs. THE HON. COURT OF APPEALS;
THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, IIocos Sur; VICTOR BUNDOC; and CLARA BUNDOC,
respondents.

Supreme Court; Motions; While notice of time and place of hear-ing is mandatory in motion, Supreme Court may suspend
its rules thereon to prevent manifest injustice to appellant—As in fact repeatedly held by this Court, what is mandatory is
the service of the motion on the opposing counsel indicating the time.and place of hearing. In view, however, of the nature
of the issue raised in the instant Petition, and in order that substantial justice may be served, the Court, invoking its right
to suspend the application of technical rules to prevent manifest injustice, elects to treat the notice of appeal as having
been seasonably filed before the trial court, and the motion (and supplemental motion) for reconsideration filed by
petitioner in the trial court as having interrupted the reglementary period for appeal.

Actions; Quasi-delicts; Parents and Child; Adoption; The natural parents of a minor still living with the former when the
latter accidentally shot a girl with an air rifle are liable for damages thus caused rather than the adopter even if petition for
adoption filed before the accident and granted thereafter.—We do not believe that parental authority is properly regarded
as having been retroactively transferred to and vested in the adopting parents, the Rapisura spouses, at the time the air
rifle shooting happened. We do not consider that retroactive effect may be given to the decree of adoption so as to
impose a liability upon the adopting parents accruing at a time when the adopting parents had no actual or physical
custody over the adopted child. Retroactive effect may perhaps be given to the granting of the petition for adoption where
such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case,
however, to hold that parental authority had been retroactively lodged in the Rapisura spouses so as to burden them with
liability for a tortious act that they could not have foreseen and which they could not have prevented (since they were at
the time in the United States and had no physical custody over the child Adelberto) would be unfair and unconscionable.
Such a result, moreover, would be inconsistent with the philosophical and policy basis underlying the doctrine of vicarious
liability. Put a little differently, no presumption of parental dereliction on the part of the adopting parents, the Rapisura
spouses, could have arisen since Adelberto was not in fact subject to their control at the time the tort was committed.

Same; Same.—Under the above Article 35, parental authority is provisionally vested in the adopting parents during the
period of trial custody, i.e., before the issuance of a decree of adoption, precisely because the adopting parents are given
actual custody of the child during such trial period. In the instant case, the trial custody period either had not yet begun or
had already been completed at the time of the air rifle shooting; in any case, actual custody of Adelberto was then with his
natural parents, not the adopting parents.

PETITION for review of the decision of the Court of Appeals

The facts are stated in the opinion of the Court.

FELICIANO, J.:

On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an air rifle causing
injuries which resulted in her death. Accordingly, a civil complaint for damages was filed with the Regional Trial Court,
Branch 20, Vigan, Ilocos Sur, docketed as Civil Case No. 3457-V, by petitioner Macario Tamargo, Jennifer's adopting
parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural parents, against respondent spouses Victor
and Clara Bundoc, Adelberto's natural parents with whom he was living at the time of the tragic incident, In addition to this
case for damages, a criminal information for Homicide through Reckless Imprudence was filed [Criminal Case No. 1722-
V] against Adelberto Bundoc. Adelberto, however, was acquitted and exempted from criminal liability on the ground that
he had acted without discernment.

Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura had filed a petition to adopt the
minor Adelberto Bundoc in Special Proceedings No. 0373-T before the then Court of First Instance of Ilocos Sur. This
petition for adoption was granted on 18 November 1982, that is, after Adelberto had shot and killed Jennifer.

In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the result of the foregoing petition for
adoption, claimed that not they, but rather the adopting parents, namely the spouses Sabas and Felisa Rapisura, were
indispensable parties to the action since parental authority had shifted to the adopting parents from the moment the
successful petition for adoption was filed.

Petitioners in their Reply contended that since Adelberto Bundoc was then actually living with his natural parents, parental
authority had not ceased nor been relinquished by the mere filing and granting of a petition for adoption.

The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that respondent natural parents of Adelberto
indeed were not indispensable parties to the action.

Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the 15-day reglementary period, or on
14 December 1987, petitioners filed a motion for reconsideration followed by a supplemental motion for reconsideration
on 15 January 1988. It appearing, however, that the motions failed to comply with Sections 4 and 5 of Rule 15 of the
Revised Rules of Court—that notice of the motion shall be given to all parties concerned at least three (3) days before the
hearing of said motion; and that said notice shall state the time and place of hearing—both motions were denied by the
trial court in an Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice of appeal. In its Order dated 6 June
1988, the trial court dismissed the notice of appeal, this time ruling that the notice had been filed beyond the 15-day
reglementary period ending 22 December 1987.

Petitioners went to the Court of Appeals on a petition for mandamus and certiorari questioning the trial court's Decision
dated 3 December 1987 and the Orders dated 18 April 1988 and 6 June 1988. The Court of Appeals dismissed the
petition, ruling that petitioners had lost their right to appeal.

In the present Petition for Review, petitioners once again contend that respondent spouses Bundoc are the indispensable
parties to the action for damages caused by the acts of their minor child, Adelberto Bundoc. Resolution of this Petition
hinges on the following issues: (1) whether or not petitioners, notwithstanding loss of their right to appeal, may still file the
instant Petition; conversely, whether the Court may still take cognizance of the case even through petitioners' appeal had
been filed out of time; and (2) whether or not the effects of adoption, insofar as parental authority is concerned, may be
given retroactive effect so as to make the adopting parents the indispensable parties in a damage case filed against their
adopted child, for acts committed by the latter when actual custody was yet lodged with the biological parents.

1. It will be recalled that petitioners' motion (and supplemental motion) for reconsideration filed before the trial court, not
having complied with the requirements of Section 13, Rule 41, and Section 4, Rule 15, of the Revised Rules of Court,
were considered pro forma and hence did not interrupt and suspend the reglementary period to appeal: the trial court held
that the motions, not having contained a notice of time and place of hearing, had become useless pieces of paper which
did not interrupt the reglementary period.1 As in fact repeatedly held by this Court, what is mandatory is the service of the
motion on the opposing counsel indicating the time and place of hearing.2

In view, however, of the nature of the issue raised in the instant Petition, and in order that substantial justice may be
served, the Court, invoking its right to suspend the application of technical rules to prevent manifest injustice, elects to
treat the notice of appeal as having been seasonably filed before the trial court, and the motion (and supplemental motion)
for reconsideration filed by petitioner in the trial court as having interrupted the reglementary period for appeal. As the
Court held in Gregorio v. Court of Appeals:3

"Dismissal of appeal purely on technical grounds is frowned upon where the policy of the courts is to encourage hearings
of appeal on their merits. The rules of procedure ought not be applied in a very rigid technical sense, rules of procedure
are used only to help secure not override, substantial justice. If a technical and rigid enforcement of the rules is made,
their aim would be defeated."4

2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air rifle gave rise to a
cause of action on quasi-delict against him. As Article 2176 of the Civil Code provides:

"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 x
x x."

Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity, the mother, for
any damages that may be caused by a minor child who lives with them. Article 2180 of the Civil Code reads:

"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.

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.

xxx xxx xxx

The responsibility treated of in this Article shall cease when the person herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage." (Italics supplied)

This principle of parental liability is a species of what is frequently designated as vicarious liability, or the doctrine of
"imputed negligence" under Anglo-American tort law, where a person is not only liable for torts committed by himself, but
also for torts committed by others with whom he has a certain relationship and for whom he is responsible. Thus, parental
liability is made a natural or logical consequence of the duties and responsibilities of parents—their parental authority—
which includes the instructing, controlling and disciplining of the child.5 The basis for the doctrine of vicarious liability was
explained by the Court in Cangco v. Manila Railroad Co. 6 in the following terms:

"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—to limit such liability to cases in which the person upon 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 persons whose
acts or omissions 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 extracontractual 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 one's own acts, or 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 reasons of their status,
occupy a position of dependency with respect to the person made liable for their conduct."7 (Italics supplied)

The civil liability imposed upon parents for the torts of their minor children living with them, may be seen to be based upon
the parental authority vested by the Civil Code upon such parents. The civil law assumes that when an unemancipated
child living with its parents commits a tortious act, the parents were negligent in the performance of their legal and natural
duty closely to supervise the child who is in their custody and control. Parental liability is, in other words, anchored upon
parental authority coupled with presumed parental dereliction in the discharge of the duties accompanying such authori ty.
The parental dereliction is, of course, only presumed and the presumption can be overturned under Article 2180 of the
Civil Code by proof that the parents had exercised all the diligence of a good father of a family to prevent the damage.

In the instant case, the shooting of Jennifer by Adelberto with an air rifle occurred when parental authority was still lodged
in respondent Bundoc spouses, the natural parents of the minor Adelberto. It would thus follow that the natural parents
who had then actual custody of the minor Adelberto, are the indispensable parties to the suit for damages.

The natural parents of Adelberto, however, stoutly maintain that because a decree of adoption was issued by the adoption
court in favor of the Rapisura spouses, parental authority was vested in the latter as adopting parents as of the time of the
filing of the petition for adoption that is, before Adelberto had shot Jennifer with an air rifle. The Bundoc spouses contend
that they were therefore free of any parental responsibility for Adelberto's allegedly tortious conduct.

Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code8 which reads as follows:

"Article 36. Decree of Adoption.—If, after considering the report of the Department of Social Welfare or duly licensed child
placement agency and the evidence submitted before it, the court is satisfied that the petitioner is qualified to maintain,
care for, and educate the child, that the trial custody period has been completed, and that the best interests of the child
will be promoted by the adoption, a decree of adoption shall be entered, which shall be effective as of the date the original
petition was filed. The decree shall state the name by which the child is thenceforth to be known." (Italics supplied)

The Bundoc spouses further argue that the above Article 36 should be read in relation to Article 39 of the same Code:

"Art, 39. Effect of Adoption.—The adoption shall:

xxx xxx xxx

(2) Dissolve the authority vested in the natural parents, except where the adopter is the spouse of the surviving natural
parent;"

xxx xxx xxx" (Italics supplied)

And urge that their parental authority must be deemed to have been dissolved as of the time the petition for adoption was
filed.

The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for the torts of a minor
child is the relationship existing between the parents and the minor child living with them and over whom, the law
presumes, the parents exercise supervision and control. Article 58 of the Child and Youth Welfare Code, re-enacted this
rule:

"Article 58. Torts—Parents and guardians are responsible for the damage caused by the child under their parental
authority in accordance with the Civil Code." (Italics supplied)

Article 221 of the Family Code of the Philippines9 has similarly insisted upon the requisite that the child, doer of the
tortious act, shall have been in the actual custody of the parents sought to be held liable for the ensuing damage:

"Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated children living in their company and under their parental authority
subject to the appropriate defenses provided by law." (Italics supplied)

We do not believe that parental authority is properly regarded as having been retroactively transferred to and vested in the
adopting parents, the Rapisura spouses, at the time the air rifle shooting happened. We do not consider that retroactive
effect may be given to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time
when the adopting parents had no actual or physical custody over the adopted child. Retroactive effect may perhaps be
given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or
advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively
lodged in the Rapisura spouses so as to burden them with liability for a tortious act that they could not have foreseen and
which they could not have prevented (since they were at the time in the United States and had no physical custody over
the child Adelberto) would be unfair and unconscionable. Such a result, moreover, would be inconsistent with the
philosophical and policy basis underlying the doctrine of vicarious liability. Put a little differently, no presumption of
parental dereliction on the part of the adopting parents, the Rapisura spouses, could have arisen since Adelberto was not
in fact subject to their control at the time the tort was committed.

Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above. Article 35 provides as follows:

"Art. 35. Trial Custody.—No petition for adoption shall be finally granted unless and until the adopting parents are given by
the courts a supervised trial custody period of at least six months to assess their adjustment and emotional readiness for
the legal union. During the period of trial custody, parental authority shall be vested in the adopting parents." (Italics
supplied)

Under the above Article 35, parental authority is provisionallyvested in the adopting parents during the period of trial
custody, i.e., before the issuance of a decree of adoption, preciselybecause the adopting parents are given actual custody
of thechild during such trial period. In the instant case, the trialcustody period either had not yet begun or had already
beencompleted at the time of the air rifle shooting; in any case,actual custody of Adelberto was then with his natural
parents,not the adopting parents.

Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were indispensable parties to the
suit for damages brought by petitioners, and that the dismissal by the trial court of petitioners' complaint, the indispensable
parties being already before the court, constituted grave abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE COURSE and the Decision of the
Court of Appeals dated 6 September 1988, in CA-G.R. No. SP15016 is hereby REVERSED and SET ASIDE. Petitioners'
complaint filed before the trial court is hereby REINSTATED and this case is REMANDED to that court for further
proceedings consistent with this Decision. Costs against respondent Bundoc spouses. This Decision is immediately
executory.

SO ORDERED.

Gutierrez, Jr. (Chairman), Bidin, Davide, Jr. and Romero, JJ., concur.

Petition granted; decision reversed and set aside.

Note.—The notice of hearing is an integral component of procedural due process. It is intended to afford the adverse
parties a chance to be heard before the motion is resolved by the court (Estipona vs. Navarro, 69 SCRA 285).

——o0o—— Tamargo vs. Court of Appeals, 209 SCRA 518, G.R. No. 85044 June 3, 1992
G.R. No. 70890. September 18, 1992.*
CRESENCIO LIBI** and AMELIA YAP LIBI, petitioners, vs. HON. INTERMEDIATE APPELLATE COURT, FELIPE
GOTIONG and SHIRLEY GOTIONG, respondents.

Civil Law; Damages; Liability of parents for damages caused by their minor children under Article 2180 of the Civil
Code.—In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites Fuellas vs. Cadano,
et al. which supposedly holds that “(t)he subsidiary liability of parents for damages caused by their minor children imposed
by Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts and criminal offenses,” followed by
an extended quotation ostensibly from the same case explaining why under Article 2180 of the Civil Code and Article 101
of the Revised Penal Code parents should assume subsidiary liability for damages caused by their minor children. The
quoted passages are set out two paragraphs back, with pertinent underscoring for purposes of the discussion hereunder.
Now, we do not have any objection to the doctrinal rule holding the parents liable, but the categorization of their liability as
being subsidiary, and not primary, in nature requires a hard second look considering previous decisions of this court on
the matter which warrant comparative analyses. Our concern stems from our readings that if the liability of the parents for
crimes or quasidelicts of their minor children is subsidiary, then the parents can neither invoke nor be absolved of civil
liability on the defense that they acted with the diligence of a good father of a family to prevent damages. On the other
hand, if such liability imputed to the parents is considered direct and primary, that diligence would constitute a valid and
substantial defense. We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in
Article 2180 of the Civil Code, is primary and not subsidiary. In fact, if we apply Article 2194 of said code which provides
for solidary liability of joint tortfeasors, the persons responsible for the act or omission, in this case the minor and the
father and, in case of his death or incapacity, the mother, are solidarily liable. Accordingly, such parental liability is primary
and not subsidiary, hence the last paragraph of Article 2180 provides that “(t)he responsibility treated of in this article shall
cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.”

Criminal Law; Civil liability of parents for crimes committed by their minor children.—Accordingly, just like the rule in Article
2180 of the Civil Code, xxx the civil liability of the parents for crimes committed by their minor children is likewise direct
and primary, and also subject to the defense of lack of fault or negligence on their part, that is, the exercise of the
diligence of a good father of a family. That in both quasi-delicts and crimes the parents primarily respond for such
damages is buttressed by the corresponding provisions in both codes that the minor transgressor shall be answerable or
shall respond with his own property only in the absence or in case of insolvency of the former. Thus, for civil liability ex
quasi delicto of minors, Article 2182 of the Civil Code states that “(i)f the minor causing damage has no parents or
guardian, the minor x x x shall be answerable with his own property in an action against him where a guardian ad litem
shall be appointed.” For civil liability ex delicto of minors, an equivalent provision is found in the third paragraph of Article
101 of the Revised Penal Code, to wit: “Should there be no person having such x x x minor under his authority, legal
guardianship or control, or if such person be insolvent, said x x x minor shall respond with (his) own property, excepting
property exempt from execution, in accordance with civil law.”

PETITION for review of the decision of the then Intermediate Appellate Court.

The facts are stated in the opinion of the Court.

Alex Y. Tan for petitioners.

Mario D. Ortiz and Danilo V. Ortiz for private respondents.

REGALADO, J.:

One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A tragic illustration is
provided by the instant case, wherein two lovers died while still in the prime of their years, a bitter episode for those
whose lives they have touched. While we cannot expect to award complete assuagement to their families through
seemingly prosaic legal verbiage, this disposition should at least terminate the acrimony and rancor of an extended
judicial contest resulting from the unfortunate occurrence.

In this final denouement of the judicial recourse the stages whereof were alternately initiated by the parties, petitioners are
now before us seeking the reversal of the judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV
No. 69060 with the following decretal portion:

“WHEREFORE, the decision of the lower court dismissing plaintiff‟s complaint is hereby reversed; and instead, judgment
is hereby rendered sentencing defendants, jointly and solidarily, to pay to plaintiffs the following amounts:
1. Moral damages, P30,000.00;

2. Exemplary damages, P10,000.00;

3. Attorney‟s fees, P20,000.00, and costs.

However, denial of defendants-appellees‟ counterclaims is affirmed.”1

Synthesized from the findings of the lower courts, it appears that respondent spouses are the legitimate parents of Julie
Ann Gotiong who, at the time of the deplorable incident which took place and from which she died on January 14, 1979,
was an 18-year old first year commerce student of the University of San Carlos, Cebu City; while petitioners are the
parents of Wendell Libi, then a minor between 18 and 19 years of age living with his aforesaid parents, and who also died
in the same event on the same date.

For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi were sweethearts until December,
1978 when Julie Ann broke up her relationship with Wendell after she supposedly found him to be sadistic and
irresponsible. During the first and second weeks of January, 1979, Wendell kept pestering Julie Ann with demands for
reconciliation but the latter persisted in her refusal, prompting the former to resort to threats against her. In order to avoid
him, Julie Ann stayed in the house of her best friend, Malou Alfonso, at the corner of Maria Cristina and Juana Osmeña
Streets, Cebu City, from January 7 to 13, 1978.

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted with the same firearm, a
Smith and Wesson revolver licensed in the name of petitioner Cresencio Libi, which was recovered from the scene of the
crime inside the residence of private respondents at the corner of General Maxilom and D. Jakosalem streets of the same
city.

Due to the absence of an eyewitness account of the circumstances surrounding the death of both minors, their parents
who are the contending parties herein, posited their respective theories drawn from their interpretation of circumstantial
evidence, available reports, documents and evidence of physical facts.

Private respondents, bereaved over the death of their daughter, submitted that Wendell caused her death by shooting her
with the aforesaid firearm and, thereafter, turning the gun on himself to commit suicide. On the other hand, petitioners,
puzzled and likewise distressed over the death of their son, rejected the imputation and contended that an unknown third
party, whom Wendell may have displeased or antagonized by reason of his work as a narcotics informer of the
Constabulary Anti-Narcotics Unit (CANU), must have caused Wendell‟s death and then shot Julie Ann to eliminate any
witness and thereby avoid identification.

As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the then Court of First Instance of Cebu
against the parents of Wendell to recover damages arising from the latter‟s vicarious liability under Article 2180 of the Civil
Code. After trial, the court below rendered judgment on October 20, 1980 as follows:

“WHEREFORE, premises duly considered, judgment is hereby rendered dismissing plaintiffs‟ complaint for insufficiency of
the evidence. Defendants‟ counterclaim is likewise denied for lack of sufficient merit.”2

On appeal to respondent court, said judgment of the lower court dismissing the complaint of therein plaintiffs-appellants
was set aside and another judgment was rendered against defendants-appellees who, as petitioners in the present appeal
by certiorari, now submit for resolution the following issues in this case:

1. Whether or not respondent court correctly reversed the trial court in accordance with established decisional laws; and

2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent court to make petitioners liable for
vicarious liability.3

In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of Cebu, submitted his findings
and opinions on some postulates for determining whether or not the gunshot wound was inflicted on Wendell Libi by his
own suicidal act. However, undue emphasis was placed by the lower court on the absence of gunpowder or tattooing
around the wound at the point of entry of the bullet. It should be emphasized, however, that this is not the only
circumstance to be taken into account in the determination of whether it was suicide or not.

It is true that said witness declared that he found no evidence of contact or close-contact of an explosive discharge in the
entrance wound. However, as pointed out by private respondents, the body of deceased Wendell Libi must have been
washed at the funeral parlor, considering the hasty interment thereof a little after eight (8) hours from the occurrence
wherein he died. Dr. Cerna himself could not categorically state that the body of Wendell Libi was left untouched at the
funeral parlor before he was able to conduct his autopsy. It will also be noted that Dr. Cerna was negligent in not
conducting a paraffin test on Wendell Libi, hence possible evidence of gunpowder residue on Wendell‟s hands was
forever lost when Wendell was hastily buried.
More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell Libi about eight (8) hours after
the incident or, to be exact, eight (8) hours and twenty (20) minutes based on the record of death; that when he arri ved at
the Cosmopolitan Funeral Homes, the body of the deceased was already on the autopsy table and in the stage of rigor
mortis; and that said body was not washed, but it was dried.4 However, on redirect examination, he admitted that during
the 8-hour interval, he never saw the body nor did he see whether said body was wiped or washed in the area of the
wound on the head which he examined because the deceased was inside the morgue.5 In fact, on cross-examination, he
had earlier admitted that as far as the entrance of the wound, the trajectory of the bullet and the exit of the wound are
concerned, it is possible that Wendell Libi shot himself.6

He further testified that the muzzle of the gun was not pressed on the head of the victim and that he found no bur ning or
singeing of the hair or extensive laceration on the gunshot wound of entrance which are general characteristics of contact
or near-contact fire. On direct examination, Dr. Cerna nonetheless made these clarification:

“Q Is it not a fact that there are certain guns which are so made that there would be no black residue or tattooing that
could result from these guns because they are what we call clean?

A Yes, sir. I know that there are what we call smokeless powder.

ATTY. ORTIZ:

Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those indications that you said may not rule out
the possibility that the gun was closer than 24 inches, is that correct?

A If the . . . assuming that the gun used was . . . the bullet used was a smokeless powder.

Q At any rate, doctor, from . . . disregarding those other matters that you have noticed, the singeing, etc., from the
trajectory, based on the trajectory of the bullet as shown in your own sketch, is it not a fact that the gun could have been
fired by the person himself, the victim himself, Wen- dell Libi, because it shows a point of entry a little above the right ear
and point of exit a little above that, to be very fair and on your oath?

A As far as the point of entrance is concerned and as far as the trajectory of the bullet is concerned and as far as the
angle or the manner of fire is concerned, it could have been fired by the victim.”7

As shown by the evidence, there were only two used bullets8 found at the scene of the crime, each of which were the
bullets that hit Julie Ann Gotiong and Wendell Libi, respectively. Also, the sketch prepared by the Medico-Legal Division of
the National Bureau of Investigation,9 shows that there is only one gunshot wound of entrance located at the right temple
of Wendell Libi. The necropsy report prepared by Dr. Cerna states:

xxx

“Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with con-tusion collar widest inferiorly by 0.2 cm., edges inverted,
oriented upward, located at the head, temporal region, right, 2.8 cms. behind and 5.5 cms. above right external auditory
meatus, directed slightly forward, upward and to the left, involving skin and soft tissues, making a punch-in fracture on the
temporal bone, right, penetrating cranial cavity, lacerating extensively along its course the brain tissues, fracturing parietal
bone, left, and finally making an EXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted, parietal region, left, 2.0 cms.
behind and 12.9 cms. above left external auditory meatus.

xxx

“Evidence of contact or close-contact fire, such as burning around the gunshot wound of entrance, gunpowder tatooing
(sic), smudging, singeing of hair, extensive laceration or bursting of the gunshot wound of entrance, or separation of the
skin from the underlying tissue, are absent.”10

On cross-examination, Dr. Cerna demonstrated his theory which was made of record, thus:

“Q Now, will you please use yourself as Wendell Libi, and following the entrance of the wound, the trajectory of the bullet
and the exit of the wound, and measuring yourself 24 inches, will you please indicate to the Honorable Court how would it
have been possible for Wendell Libi to kill himself? Will you please indicate the 24 inches?

WITNESS:

A Actually, sir, the 24 inches is approximately one arm‟s length.

ATTY. SENINING: I would like to make of record that the witness has demonstrated by extending his right arm almost
straight towards his head.”11
Private respondents assail the fact that the trial court gave credence to the testimonies of defendants‟ witnesses Lydia
Ang and James Enrique Tan, the first being a resident of an apartment across the street from the Gotiongs and the
second, a resident of the house adjacent to the Gotiong residence, who declared having seen a “shadow” of a person at
the gate of the Gotiong house after hearing shots therefrom.

On cross-examination, Lydia Ang testified that the apartment where she was staying faces the gas station; that it is the
second apartment; that from her window she can see directly the gate of the Gotiongs; and, that there is a firewall
between her apartment and the gas station.12 After seeing a man jump from the gate of the Gotiongs to the rooftop of the
Tans, she called the police station but the telephone lines were busy. Later on, she talked with James Enrique Tan and
told him that she saw a man leap from the gate towards his rooftop.13

However, James Enrique Tan testified that he saw a “shadow” on top of the gate of the Gotiongs, but denied having
talked with anyone regarding what he saw. He explained that he lives in a duplex house with a garden in front of it; that
his house is next to Felipe Gotiong‟s house; and he further gave the following answers to these questions:

“ATTY. ORTIZ: (TO WITNESS).

Q What is the height of the wall of the Gotiong‟s in relation to your house?

WITNESS:

A It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

WITNESS:

A From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q From your living room window, is that correct?

WITNESS:

A Yes, but not very clear because the wall is high.”14

Analyzing the foregoing testimonies, we agree with respondent court that the same do not inspire credence as to the
reliability and accuracy of the witnesses‟ observations, since the visual perceptions of both were obstructed by high walls
in their respective houses in relation to the house of herein private respondents. On the other hand, witness Manolo
Alfonso, testifying on rebuttal, attested without contradiction that he and his sister, Malou Alfonso, were waiti ng for Julie
Ann Gotiong when they heard her scream; that when Manolo climbed the fence to see what was going on inside the
Gotiong house, he heard the first shot; and, not more than five (5) seconds later, he heard another shot. Consequently, he
went down from the fence and drove to the police station to report the incident.15 Manolo‟s direct and candid testimony
establishes and explains the fact that it was he whom Lydia Ang and James Enrique Tan saw as the “shadow” of a man at
the gate of the Gotiong house.

We have perforce to reject petitioners‟ effete and unsubstantiated pretension that it was another man who shot Wendell
and Julie Ann. It is significant that the Libi family did not even point to or present any suspect in the crime nor did they file
any case against any alleged “John Doe.” Nor can we sustain the trial court‟s dubious theory that Wendell Libi did not die
by his own hand because of the overwhelming evidence—testimonial, documentary and pictorial—the confluence of
which point to Wendell as the assailant of Julie Ann, his motive being revenge for her rejection of his persistent pleas for a
reconciliation.

Petitioners‟ defense that they had exercised the due diligence of a good father of a family, hence they should not be civilly
liable for the crime committed by their minor son, is not borne out by the evidence on record either.

Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi, owns a gun which he kept in a
safety deposit box inside a drawer in their bedroom. Each of these petitioners holds a key to the safety deposit box and
Amelita‟s key is always in her bag, all of which facts were known to Wendell. They have never seen their son Wendell
taking or using the gun. She admitted, however, that on that fateful night the gun was no longer in the safety deposit
box.16 We, accordingly, cannot but entertain serious doubts that petitioner spouses had really been exercising the
diligence of a good father of a family by safely locking the fatal gun away. Wendell could not have gotten hold thereof
unless one of the keys to the safety deposit box was negligently left lying around or he had free access to the bag of his
mother where the other key was.
The diligence of a good father of a family required by law in a parent and child relationship consists, to a large extent, of
the instruction and supervision of the child. Petitioners were gravely remiss in their duties as parents in not diligently
supervising the activities of their son, despite his minority and immaturity, so much so that it was only at the time of
Wendell‟s death that they allegedly discovered that he was a CANU agent and that Cresencio‟s gun was missing from the
safety deposit box. Both parents were sadly wanting in their duty and responsibility in monitoring and knowing the
activities of their children who, for all they know, may be engaged in dangerous work such as being drug informers,17 or
even drug users. Neither was a plausible explanation given for the photograph of Wendell, with a handwritten dedication
to Julie Ann at the back thereof,18 holding upright what clearly appears as a revolver and on how or why he was in
possession of that firearm.

In setting aside the judgment of the court a quo and holding petitioners civilly liable, as explained at the start of this
opinion, respondent court waved aside the protestations of diligence on the part of petitioners and had this to say:

“x x x It is still the duty of parents to know the activity of their children who may be engaged in this dangerous activity
involving the menace of drugs. Had the defendants-appellees been diligent in supervising the activities of their son,
Wendell, and in keeping said gun from his reach, they could have prevented Wendell from killing Julie Ann Gotiong.
Therefore, appellants are liable under Article 2180 of the Civil Code which provides:

„The father, and in case of his death or incapacity, the mother, are responsible for the damages caused by their minor
children who live in their company.‟

“Having been grossly negligent in preventing Wendell Libi from having access to said gun which was allegedly kept in a
safety deposit box, defendants-appellees are subsidiarily liable for the natural consequence of the criminal act of said
minor who was living in their company. This vicarious liability of herein defendants-appellees has been reiterated by the
Supreme Court in many cases, prominent of which is the case of Fuellas vs. Cadano, et. al. (L-14409, Oct. 31, 1961, 3
SCRA 361-367), which held that:

„The subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of the New Civil
Code covers obligations arising from both quasi-delicts and criminal offenses.‟

„The subsidiary liability of parent‟s arising from the criminal acts of their minor children who acted with discernment is
determined under the provisions of Article 2180, N.C.C. and under Article 101 of the Revised Penal Code, because to
hold that the former only covers obligations which arise from quasidelicts and not obligations which arise from criminal
offenses, would result in the absurdity that while for an act where mere negligence intervenes the father or mother may
stand subsidiarily liable for the damages caused by his or her son, no liability would attach if the damage is caused with
criminal intent.‟ (3 SCRA 361-362).

“x x x In the instant case, minor son of herein defendantsappellees, Wendell Libi somehow got hold of the key to the
drawer where said gun was kept under lock without defendant-spouses ever knowing that said gun had been missing
from that safety box since 1978 when Wendell Libi ha(d) a picture taken wherein he proudly displayed said gun and
dedicated this picture to his sweetheart, Julie Ann Gotiong; also since then, Wendell Libi was said to have kept said gun in
his car, in keeping up with his supposed role of a CANU agent. x x x.”

xxx

“Based on the foregoing discussions of the assigned errors, this Court holds that the lower court was not correct in
dismissing herein plaintiffs-appellants‟ complaint because as preponderantly shown by evidence, defendants-appellees
utterly failed to exercise all the diligence of a good father of the family in preventing their minor son from committing this
crime by means of the gun of defendants-appellees which was freely accessible to Wendell Libi for they have not regularly
checked whether said gun was still under lock, but learned that it was missing from the safety deposit box only after the
crime had been committed.” (Emphases ours.)19

We agree with the conclusion of respondent court that petitioners should be held liable for the civil liability based on what
appears from all indications was a crime committed by their minor son. We take this opportunity however, to digress and
discuss its ratiocination therefor on jurisprudential dicta which we feel require clarification.

In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites Fuellas vs. Cadano, et al.20
which supposedly holds that “(t)he subsidiary liability of parents for damages caused by their minor children imposed by
Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts and criminal offenses,” followed by
an extended quotation ostensibly from the same case explaining why under Article 2180 of the Civil Code and Article 101
of the Revised Penal Code parents should assume subsidiary liability for damages caused by their minor children. The
quoted passages are set out two paragraphs back, with pertinent underscoring for purposes of the discussion hereunder.
Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the categorization of their liability
as being subsidiary, and not primary, in nature requires a hard second look considering previous decisions of this court on
the matter which warrant comparative analyses. Our concern stems from our readings that if the liability of the parents for
crimes or quasi-delicts of their minor children is subsidiary, then the parents can neither invoke nor be absolved of civil
liability on the defense that they acted with the diligence of a good father of a family to prevent damages. On the other
hand, if such liability imputed to the parents is considered direct and primary, that diligence would constitute a valid and
substantial defense.

We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in Article 2180 of the
Civil Code, is primary and not subsidiary. In fact, if we apply Article 2194 of said code which provides for solidary liability
of joint tortfeasors, the persons responsible for the act or omission, in this case the minor and the father and, in case of
his death or incapacity, the mother, are solidarily liable. Accordingly, such parental liability is primary and not subsidiar y,
hence the last paragraph of Article 2180 provides that “(t)he responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.”

We are also persuaded that the liability of the parents for felonies committed by their minor children is likewise primary,
not subsidiary. Article 101 of the Revised Penal Code provides:

“Art 101. Rules regarding civil liability in certain cases.—

xxx

First. In cases of subdivisions x x x 2, and 3 of Article 12, the civil liability for acts committed by x x x 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.” (Emphases supplied.)21

Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision the civil liability of the parents
for crimes committed by their minor children is likewise direct and primary, and also subject to the defense of lack of fault
or negligence on their part, that is, the exercise of the diligence of a good father of a family.

That in both quasi-delicts and crimes the parents primarily respond for such damages is buttressed by the corresponding
provisions in both codes that the minor transgressor shall be answerable or shall respond with his own property only in the
absence or in case of insolvency of the former. Thus, for civil liability ex quasi delicto of minors, Article 2182 of the Civil
Code states that “(i)f the minor causing damage has no parents or guardian, the minor x x x shall be answerable with his
own property in an action against him where a guardian ad litem shall be appointed.” For civil liability ex delicto of minors,
an equivalent provision is found in the third paragraph of Article 101 of the Revised Penal Code, to wit:

“Should there be no person having such x x x minor under his authority, legal guardianship or control, or if such person be
insolvent, said x x x minor shall respond with (his) own property, excepting property exempt from execution, in accordance
with civil law.”

The civil liability of parents for felonies committed by their minor children contemplated in the aforesaid rule in Article 101
of the Revised Penal Code in relation to Article 2180 of the Civil Code has, aside from the aforesaid case of Fuellas, been
the subject of a number of cases adjudicated by this Court, viz.: Exconde vs. Capuno, et al.,22 Araneta vs. Arreglado,23
Salen, et al. vs. Balce,24 Paleyan, etc., et al. vs. Bangkili, et al.,25 and Elcano, et al, vs. Hill, et al.26 Parentheticall y, the
aforesaid cases were basically on the issue of the civil liability of parents for crimes committed by their minor children over
9 but under 15 years of age, who acted with discernment, and also of minors 15 years of age or over, since these
situations are not covered by Article 101, Revised Penal Code. In both instances, this Court held that the issue of parental
civil liability should be resolved in accordance with the provisions of Article 2180 of the Civil Code for the reasons well
expressed in Salen and adopted in the cases hereinbefore enumerated that to hold that the civil liability under Article 2180
would apply only to quasi-delicts and not to criminal offenses would result in the absurdity that in an act involving mere
negligence the parents would be liable but not where the damage is caused with criminal intent. In said cases, however,
there are unfortunate variances resulting in a regrettable inconsistency in the Court‟s determination of whether the liability
of the parents, in cases involving either crimes or quasidelicts of their minor children, is primary or subsidiary.

In Exconde, where the 15-year old minor was convicted of double homicide through reckless imprudence, in a separate
civil action arising from the crime the minor and his father were held jointly and severally liable for failure of the l atter to
prove the diligence of a good father of a family. The same liability in solidum and, therefore, primary liability was imposed
in a separate civil action in Araneta on the parents and their 14-year old son who was found guilty of frustrated homicide,
but on the authority of Article 2194 of the Civil Code providing for solidary responsibility of two or more persons who are
liable for a quasi-delict.

However, in Salen, the father was declared subsidiarily liable for damages arising from the conviction of his son, who was
over 15 but less than 18 years of age, by applying Article 2180 but, this time, disregarding Article 2194 of the Civil Code.
In the present case, as already explained, the petitioners herein were also held liable but supposedly in line with Fuellas
which purportedly declared the parents subsidiarily liable for the civil liability for serious physical injuries committed by
their 13-year old son. On the other hand, in Paleyan, the mother and her 19-year old son were adjudged solidarily liable
for damages arising from his conviction for homicide by the application of Article 2180 of the Civil Code since this is
likewise not covered by Article 101 of the Revised Penal Code. Finally, in Elcano, although the son was acquitted in a
homicide charge due to “lack of intent, coupled with mistake,” it was ruled that while under Article 2180 of the Civil Code
there should be solidary liability for damages, since the son, “although married, was living with his father and getting
subsistence from him at the time of the occurrence,” but “is now of age, as a matter of equity” the father was only held
subsidiarily liable.

It bears stressing, however, that the Revised Penal Code provides for subsidiary liability only for persons causing
damages under the compulsion of irresistible force or under the impulse of an uncontrollable fear;27 innkeepers,
tavernkeepers and proprietors of establishments;28 employers, teachers, persons and corporations engaged in
industry;29 and principals, accomplices and accessories for the unpaid civil liability of their co-accused in the other
classes.30

Also, coming back to respondent court‟s reliance on Fuellas in its decision in the present case, it is not exactly accurate to
say that Fuellas provided for subsidiary liability of the parents therein. A careful scrutiny shows that what respondent court
quoted verbatim in its decision now on appeal in the present case, and which it attributed to Fuellas, was the syllabus on
the law report of said case which spoke of “subsidiary” liability. However, such categorization does not specifically appear
in the text of the decision in Fuellas. In fact, after reviewing therein the cases of Exconde, Araneta and Salen and the
discussions in said cases of Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code, this Court
concluded its decision in this wise:

“Moreover, the case at bar was decided by the Court of Appeals on the basis of evidence submitted therein by both
parties, independent of the criminal case. And responsibility for fault or negligence under Article 2176 upon which the
present action was instituted, is entirely separate and distinct from the civil liability arising from fault or negligence under
the Penal Code (Art. 2177), and having in mind the reasons behind the law as heretofore stated, any discussion as to the
minor‟s criminal responsibility is of no moment.”

Under the foregoing considerations, therefore, we hereby rule that the parents are and should be held primarily liable for
the civil liability arising from criminal offenses committed by their minor children under their legal authority or control, or
who live in their company, unless it is proven that the former acted with the diligence of a good father of a family to
prevent such damages. That primary liability is premised on the provisions of Article 101 of the Revised Penal Code with
respect to damages ex delicto caused by their children 9 years of age or under, or over 9 but under 15 years of age who
acted without discernment; and, with regard to their children over 9 but under 15 years of age who acted with
discernment, or 15 years or over but under 21 years of age, such primary liability shall be imposed pursuant to Article
2180 of the Civil Code.31

Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or
incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides that the same shall
devolve upon the father and, in case of his death or incapacity, upon the mother or, in case of her death or incapacity,
upon the guardian, but the liability may also be voluntarily assumed by a relative or family friend of the youthful
offender.32 However, under the Family Code, this civil liability is now, without such alternative qualification, the
responsibility of the parents and those who exercise parental authority over the minor offender.33

For civil liability arising from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles
2180 and 2182 of the Civil Code, as so modified.

In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a felony or a quasi-delict committed
by Wendell Libi, respondent court did not err in holding petitioners liable for damages arising therefrom. Subject to the
preceding modifications of the premises relied upon by it therefor and on the bases of the legal imperatives herein
explained, we conjoin in its findings that said petitioners failed to duly exercise the requisite diligentissimi patris familias to
prevent such damages.

ACCORDINGLY, the instant petition is DENIED and the assailed judgment of respondent Court of Appeals is hereby
AFFIRMED, with costs against petitioners.

SO ORDERED.
Narvasa (C.J.), Gutierrez, Jr., Cruz, Padilla, Bidin, GriñoAquino, Medialdea, Romero, Nocon and Bellosillo, JJ., concur.
Feliciano, J., On leave.
Davide, Jr., J., No part. I used to be counsel of one of the parties.
Melo and Campos, Jr., JJ., No part.
Petition denied; judgment affirmed.

Note.—Employer‟s liability in quasi-delict is primary and solidary and the award of temperate, moral and exemplary
damages as well as attorney‟s fees lies upon the discretion of the court (Pleno vs. Court of Appeals, 161 SCRA 208).

——o0o——

Libi vs. Intermediate Appellate Court, 214 SCRA 16, G.R. No. 70890 September 18, 1992
No. L-47745. April 15, 1988.*
JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA, PANTALEON A.
AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A. AMADORA,
SERREC A. AMADORA, VICENTE A. AMADORA and MARIA TISCALINA A. AMADORA, petitioners, vs.
HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH, SERGIO P.
DAMASO, JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON, thru his parents and natural
guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA, thru his guardian, ATTY. FRANCISCO
ALONSO, respondents.

Civil Law; Torts; Article 2180 of the Civil Code should apply to all schools, academic as well as non-academic.—After an
exhaustive examination of the problem, the Court has come to the conclusion that the provision in question should apply
to all schools, academic as well as non-academic. Where the school is academic rather than technical or vocational in
nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, following
the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head
thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall
be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof
who shall be anBwerable. Following the canon of reddendo singula singulis, “teachers” should apply to the words “„pupHs
and students” and “heads of establishments of arts and trades” to the word “apprentices.”

Same; Same; Same; No substantial distinction between the academic and the non-academic schools insofar as torts
committed by their students are concerned.—There is really no substantial distinction between the academic and the non-
academic schools insofar as torts committed by their students are concerned. The same vigilance is expected from the
teacher over the students under his control and supervision, whatever the nature of the school where he is teaching, The
suggestion in the Sxconde and Mercado Cases is that the provision would make the teacher or even the head of the
school of arts and trades liable for an injury caused by any student in its custody but if that same tort were committed in
an academic school, no liability would attach to the teacher or the school head. All other circumstances being the same,
the teacher or the head of the academic school would be absolved whereas the teacher and the head of the nonacademic
school would be held liable, and simply because the latter is a school of arts and trades.

Same; Same; Same; Same; No plausible reason why different degrees of vigilance should be exercised by the school
authorities.—The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the
basis only of the nature of their respective schools. There does not seem to be any plausible reason for relaxLng that
vigilance simply because the school is academic in nature and for increasing such vigilance where the school is
nonacademic. Notably, the injury subject of liability is caused by the student and not by the school itself nor it is a result of
the operations of the school or its equipment. The injury contemplated may be caused by any student regardless of the
school where he is registered. The teacher certainly should not be able to excuse himself by simply showing that he is
teaching in an academic school where, on the other hand, the head would be held liable if the school were non-academic.

Same; Same; Same; Same; Same; Reason for the disparity.—The reason for the disparity can be traced to the fact that
historically the head of the school of arts and trades exercised a closer tutelage over his pupils than the head of the
academic school. The old schools of arts and trades were engaged in the training of artisans apprenticed to their master
who personally and directly instructed them on the technique and secrets of their craft. The head of the school of arts and
trades was such a master and so was personally involved in the task of teaching his students, who usually even boarded
with him and so came under his constant control, supervision and influence. By contrast, the head of the academic school
was not as involved with his students and exercised only administrative duties over the teachers who were the persons
directly dealing with the students. The head of the academic school had then (as now) only a vicarious relationship with
the students. Consequently, while he could not be directly faulted for the acts of the students, the head of the school of
arts and trades, because of his closer ties with them, could be so blamed.

Same; Same; Same; Same; Same; Same; Distinction no longer obtains at present—It is conceded that the distinction no
longer obtains at present in view of the expansion of the schools of arts and trades, the consequent increase in their
enrollment, and the corresponding diminution of the direct and personal contact of their heads with the students. Article
2180, however, remains unchanged. In its present state, the provision must be interpreted by the Court according to its
clear and original mandate until the legislature, taking into account the changes in the situation subject to be regulated,
sees fit to enact the necessary amendment.

Same; Same; Custody requirement; Article 2180 of the Civil Code does not mean that the student must be boarding with
the school authorities but the student should be within the control and under its influence at the time of the occurrence of
the injury.—From a reading of the provision under examination, it is clear that while the custody requirement, to repeat
Palisoc vs. Brillantes, does not mean that the student must be boarding with the school authorities, it does signify that the
student should be within the control and under the influence of the school authorities at the time of the occurrence of the
injury. This does not necessarily mean that such custody be co-terminous with the semester, beginning with the start of
classes and ending upon the close thereof, and excluding the time before or after such period, such as the period of
registration, and in the case of graduating students, the period before the commencement exercises. In the view of the
Court, the student is in the custody of the school authorities as long as he is under the control and influence of the school
and within its premises, whether the semester has not yet begun or has already ended.
Same; Same; Same; Extent ofresponsibility;As long as the student is in the school premises in pursuance of a legitimate
purpose, the responsibility of the school authorities over the student continues.—As long as it can be shown that the
student is in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student
right, and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the
student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the company
of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and
subject to the discipline of the school authorities under the provisions of Article 2180.

Same; Same; Same; Same; Teacher-in-charge must answer for his student‟s torts.—During all these occasions, it is
obviously the teacherin-charge who must answer for his students‟ torts, in practically the same way that the parents are
responsible for the child when he is in their custody. The teacher-in-charge is the one designated by the dean, principal,
or other administrative superior to exercise supervision over the pupils in the specific classes or sections to which they are
assigned. It is not necessary that at the time of the injury, the teacher be physically present and in a position to prevent it.
Custody does not connote immediate and actual physical control but refers more to the influence exerted on the child and
the discipline instilled in him as a result of such influence. Thus, for the injuries caused by the student, the teacher and not
the parent shall be held responsible if the tort was committed within the premises of the school at any time when its
authority could be validly exercised over him.

Same; Same; Same; Same; Same; The school may be held to answer for the acts of its teachers or even of the head
thereof under the general principle of respondent superior but may exculpate itself from liability by proof that it had
exercised the diligence of a bonus paterfamilias.—In any event, it should be noted that the liability imposed by this article
is supposed to fall directly on the teacher or the head of the school of arts and trades and not on the school itself. If at all,
the school, whatever its nature, may be held to answer for the acts of its teachers or even of the head thereof under the
general principle of respondent superior, but then it may exculpate itself from liability by proof that it had exercised the
diligence of a bonus paterfamilias,

Same; Sarne; Same; Same; Same; Same; Such defense also available to the teacher or the head of the school of arts
and trade,—Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly
held to answer for the tort committed by the student. As long as the defendant can show that he had taken the necessary
precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Article 2180.

Same; Same; Same; Same; Same; Same; Same; Liability attaches to the teacher and the head of the technical school
although the wrongdoer was already of age.—In this connection, it should be observed that the teacher will be held liable
not only when he is acting in loco parentis for the law does not require that the offending student be of minority age.
Unlike the parent, who will be liable only if his child is still a minor, the teacher is held answerable by the law for the act of
the student under him regardless of the student‟s age. Thus, in the Palisoc Case, liability attached to the teacher and the
head of the technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent more
favorably than the teacher.

PETITION for certiorari to review the decision of the Court of Appeals.

The facts are stated in the opinion of the court.

Jose S. Amadora & Associates for petitioners.

Padilla Law Office for respondents.

CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where he would
ascend the stage and in the presence of his relatives and friends receive his high school diploma, These ceremonies were
scheduled on April 16, 1972. As it turned out, though, fate would intervene and deny him that awaited experience. On
April 13, 1972, while they were in the auditorium of their school, the Colegio de San Jose-Recoletes, a classmate, Pablito
Daffon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as welL The victim was only seventeen
years old.1

Daffon was convicted of homicide thru reckless imprudence.2 Additionally, the herein petitioners, as the victim‟s parents,
Sled a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos, its rector,
the high school principal, the dean of boys, and the physics teacher, together with Daffon and two other students, through
their respective parents, The complaint against the students was later dropped. After trial, the Court of First Instance of
Cebu held the remaining defendants liable to the plaintiffs in the sum of P294,984.00, representing death compensation,
loss of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and attorney‟s fees.3
On appeal to the respondent court, however, the decision was reversed and all the defendants were completely
absolved.4
In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the respondent
court found that Article 2180 was not applicable as the Colegio de San Jose-Recoletos was not a school of arts and
trades but an academic institution of learning. It also held that the students were not in the custody of the school at the
time of the incident as the semester had already ended, that there was no clear identification of the fatal gun, and that in
any event the defendants had exercised the necessary diligence in preventing the injury.5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and while in its
auditorium was shot to death by Pablito Daffon, a classmate. On the implications and consequences of these facts, the
parties sharply disagree.

The petitioners contend that their son was in the school to finish his physics experiment as a prerequisite to his
graduation; hence, he was then under the custody of the private respondents. The private respondents submit that Alfredo
Amadora had gone to the school only for the purpose of submitting his physics report and that he was no longer in their
custody because the semester had already ended.

There is also the question of the identity of the gun used which the petitioners consider important because of an earlier
incident which they claim underscores the negligence of the school and at least one of the private respondents. It is not
denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys, confiscated from Jose Gumban an
unlicensed pistol but later returned it to him without making a report to the principal or taking any further action.6 As
Gumban was one of the companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners contend that
this was the same pistol that had been confiscated from Gumban and that their son would not have been killed if it had not
been returned by Damaso. The respondents say, however, that there is no proof that the gun was the same firearm that
killed Alfredo.

Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is invoked by
both parties in support of their conflicting positions. The pertinent part of this article reads as follows:

“Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and
students or apprentices so long as they remain in their custody.”

Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit: Exconde v.
Capuno,7 Mercado v. Court of Appeals,8 and Palisoc v. Brillantes.9 These will be briefly reviewed in this opinion for a
better resolution of the case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Seout, attended a Rizal
Day parade on instructions of the city school supervisor. After the parade, the boy boarded a jeep, took over its wheel and
drove it so recklessly that it turned turtle, resulting in the death of two of its passengers. Dante was found guilty of double
homicide with reckless imprudence. In the separate civil action filed against them, his father was held solidarily liable with
him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter dictum
(as it was not a party to the case) on the ground that it was not a school of arts and trades. Justice J.B.L. Reyes, with
whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school authorities who should
be held liable. Liability under this rule, he said, was imposed on (1) teachers in general; and (2) heads of schools of arts
and trades in particular. The modifying clause “of establishments of arts and trades” should apply only to “heads” and not
“teachers.”

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor blade
during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the culprit‟s parents
for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself had also not been sued)
that the school was not liable because it was not an establishment of arts and trades. Morever. the custody requirement
had not been proved as this contemplates a situation where the student lives and boards with the teacher, such that the
control, direction and influences on the pupil supersede those of the parents.” Justice J.B.L. Reyes did not take part but
the other members of the court concurred in this decision promulgated on May 30,1960.

In Palisoc vs. Brillantes, decided on October 4, 1971, a 16year old student was killed by a classmate with fist blows in the
laboratory of the Manila Technical Institute. Although the wrongdoer-—who was already of age—was not boarding in the
school, the head thereof and the teacher in charge were held solidarily liable with him. The Court declared through Justice
Teehankee:

“The phrase used in the cited article—'so long as (the students) remain in their custody'—means the protective and
supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they
are at attendance in the school, including recess time. There is nothing in the law that requires that for such liability to
attach, the pupil or student who commits the tortious act must live and board in the school, as erroneously held by the
lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set
aside by the present decision.”
This decision was concurred in by five other members,10 including Justice J.B.L. Reyes, who stressed, in answer to the
dissenting opinion, that even students already of age were covered by the provision since they were equally in the
custody of the school and subject to its discipline. Dissenting with three others,11 Justice Makalintal was for retaining the
custody interpretation in Mercado and submitted that the rule should apply only to torts committed by students not yet of
age as the school would be acting only in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes‟ dissent in the Exconde Case but added that “since
the school involved at bar is a non-academic school, the question as to the applicability of the cited codal provision to
academic institutions will have to await another case wherein it may properly be raised.”

This is the case.

Unlike in Exconde and Mercado, the Colegio de San JoseRecoletos has been directly impleaded and is sought to be held
liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic institution of learning.
The parties herein have also directly raised the question of whether or not Article 2180 covers even establishments which
are technically not schools of arts and trades, and, if so, when the offending student is supposed to be “in its custody.”

After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question
should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or
vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such
student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it
is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in
general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the
head thereof who shall be answerable. Following the canon of reddendo singula singulis, “teachers” should apply to the
words “pupils and students” and “heads of establishments of arts and trades” to the word “apprentices.”

The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said in part:

“I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades and not to academic
ones. What substantial difference is there between them insofar as concerns the proper supervision and vigilance over
their pupils? It cannot be seriously contended that an academic teacher is exempt from the duty of watching that his pupils
do not commit a tort to the detriment of third persons, so long as they are in a position to exercise authority and
supervision over the pupil. In my opinion, in the phrase „teachers or heads of establishments of arts and trades‟ used in
Art. 1903 of the old Civil Code, the words „arts and trades‟ does not qualify teachers‟ but only Tieads of establishments.‟
The phrase is only an updated version of the equivalent terms „preceptores „x artesanos‟ used in the Italian and Prench
Civil Codes.

“If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some culpa in vigilando
that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem clear that
where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the
one answerable for the torts committed while under his custody, for the very reason that the parent is not supposed to
interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under
instruction. And if there is no authority, there can be no responsibility.‟

There is really no substantial distinction between the academic and the non-academic schools insofar as torts committed
by their students are concerned. The same vigilance is expected from the teacher over the students under his control and
supervision, whatever the nature of the school where he is teaching. The suggestion in the Exconde and Mercado Cases
is that the provision would make the teacher or even the head of the school of arts and trades liable for an injury caused
by any student in its custody but if that same tort were committed in an academic school, no liability would attach to the
teacher or the school head. All other circumstances being the same, the teacher or the head of the academic school
would be absolved whereas the teacher and the head of the non-academic school would be held liable, and simply
because the latter is a school of arts and trades.

The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the basis only of
the nature of their respective schools. There does not seem to be any plausible reason for relaxing that vigilance simply
because the school is academic in nature and for increasing such vigilance where the school is non-academic. Notably,
the injury subject of liability is caused by the student and not by the school itself nor is it a result of the operations of
the,school or its equipment. The injury contemplated may be caused by any student regardless of the school where he is
registered. The teacher certainly should not be able to excuse himself by simply showing that he is teaching in an
academic school where, on the other hand, the head would be held liable if the school were non-academic.

These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the torts
committed by his students, why is it the head of the school only who is held liable where the injury is caused in a school of
arts and trades? And in the case of the academic or non-technical school, why not apply the rule also to the head thereof
instead of imposing the liability only on the teacher?
The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades exercised a
closer tutelage over his pupils than the head of the academic school. The old schools of arts and trades were engaged in
the training of artisans apprenticed to their master who personally and directly instructed them on the technique and
secrets of their craft. The head of the school of arts and trades was such a master and so was personally involved in the
task of teaching his students, who usually even boarded with him and so came under his constant control, supervision
and influence. By contrast, the head of the academic school was not as involved with his students and exercised only
administrative duties over the teachers who were the persons directly dealing with the students. The head of the
academic school had then (as now) only a vicarious relationship with the students. Consequently, while he could not be
directly faulted for the acts of the students, the head of the school of arts and trades, because of his closer ties with them,
could be so blamed.

It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and trades,
the consequent increase in their enrollment, and the corre-sponding diminution of the direct and personal contract of their
heads with the students. Article 2180, however, remains unchanged. In its present state, the provision must be interpreted
by the Court according to its clear and original mandate until the legislature, taking into account the changes in the
situation subject to be regulated, sees fit to enact the necessary amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of arts and
trades over the students. Is such responsibility co-extensive with the period when the student is actually undergoing
studies during the school term, as contended by the respondents and impliedly admitted by the petitioners themselves?

From a reading of the provision under examination, it is clear that while the custody requirement, to repeat Palisoc v.
Brillantes, does not mean that the student must be boarding with the school authorities, it does signify that the student
should be within the control and under the influence of the school authorities at the time of the occurrence of the injury,
This does not necessarily mean that such, custody be co-terminous with the semester, beginning with the start of classes
and ending upon the close thereof, and excluding the time before or after such period, such as the period of registration,
and in the case of graduating students, the period before the commencement exercises. In the view of the Court, the
student is in the custody of the school authorities as long as he is under the control and influence of the school and within
its premises, whether the semester has not yet begun or has already ended.

t is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes
notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither should
such discipline be deemed ended upon the last day of classes notwithstanding that there may still be certain requisites to
be satisfied for completion of the course, such as submission of reports, term papers, clearances and the like. During
such periods, the student is still subject to the disciplinary authority of the school and cannot consider himself released
altogether from observance of its rules.

As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in the
exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the enjoyment of
a legitimate student privilege, the responsibility of the school authorities over the student continues. Indeed, even if the
student should be doing nothing more than relaxing in the campus in the company of his classmates and friends and
enjoying the ambience and atmosphere of the school, he is still within the custody and subject to the discipline of the
school authorities under the provisions of Article 2180.

During all these occasions, it is obviously the teacher-incharge who must answer for his students‟ torts, in practically the
same way that the parents are responsible for the child when he is in their custody. The teacher-in-charge is the one
designated by the dean, principal, or other administrative superior to exercise supervision over the pupils in the specific
classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher be physically
present and in a position to prevent it. Custody does not connote immediate and actual physical control but refers more to
the influence exerted on the child and the discipline instilled in him as a result of such influence. Thus, for the injuries
caused by the student, the teacher and not the parent shall be held responsible if the tort was committed within the
premises of the school at any time when its authority could be validly exercised over him.

In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the teacher or the
head of the school of arts and trades and not on the school itself. If at all, the school, whatever its nature, may be held to
answer for the acts of its teachers or even of the head thereof under the general principle of respondent superior, but then
it may exculpate itself from liability by proof that it had exercised the diligence of a bonus paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held to
answer for the tort committed by the student. As long as the defendant can show that he had taken the necessary
precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Article 2180, which
also states that:
“The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damages.”

In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco parentis fo r
the law does not require that the offending student be of minority age. Unlike the parent, who will be liable only if his child
is still a minor, the teacher is held answerable by the law for the act of the student under him regardless of the student‟s
age. Thus, in the Palisoc Case, liability attached to the teacher and the head of the technical school although the
wrongdoer was already of age. In this sense, Article 2180 treats the parent more favorably than the teacher.

The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in Palisoc that
the school may be unduly exposed to liabUity under this article in view of the increasing activism among the students that
is likely to cause violence and resulting injuries in the school premises. That is a valid fear, to be sure. Nevertheless, it
should be repeated that, under the present ruling, it is not the school that will be held directly liable. Moreover, the defense
of due diligence is available to it in case it is sought to be held answerable as principal for the acts or omission of its head
or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate
supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the maintenance
of discipline among them. In almost all cases now, in fact, these measures are effected through the assistance of an
adequate security force to help the teacher physically enforce those rules upon the students. This should bolster the claim
of the school that it has taken adequate steps to prevent any inj ury that may be committed by its students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly answerable for
the damage caused by his students as long as they are in the schooJ premises and presumably under his influence, In
this respect, the Court is disposed not to expect from the teacher the same measure of responsibility imposed on the
parent for their influence over the child is not equal in degree. Obviously, the parent can expect more obedience from the
child because the latter‟s dependence on him is greater than on the teacher. It need not be stressed that such
dependence includes the child‟s support and sustenance whereas submission to the teacher‟s influence, besides being
co-terminous with the period of cusTody, is usually enforced only because of the students‟ desire to pass the course. The
parent can instill more lasting discipline on the child than the teacher and so should be held to a greater accountability
than the teacher for the tort committed by the child.

And if it is also considered that under the article in question, the teacher or the head of the school of arts and trades is
responsible for the damage caused by the student or apprentice even if he is already of age—and therefore less tractable
than the minor—then there should all the more be justification to require from the school authorities less accountability as
long as they can prove reasonable diligence in preventing the injury. After all, if the parent himself is no longer liable for
the student‟s acts because he has reached majority age and so is no longer under the former‟s control, there is then all
the more reason for leniency in assessing the teacher‟s responsibility for the acts of the student.

Applying the foregoing considerations, the Court has arrived at the following conclusions:

1, At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-
Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school
auditorium to finish his physics experiment or merely to submit his physics report for what is important is that he was there
for a legitimate purpose. As previously observed, even the mere savoring of the company of his friends in the premises of
the school is a legitimate purpose that would have also brought him in the custody of the school authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the teacher-
incharge as previously defined. Each of them was exercising only a general authority over the student body and not the
direct control and influence exerted by the teacher placed in charge of particular classes or sections and thus immediately
involved in its discipUne. The evidence of the parties does not disclose who the teacher-in-charge of the offending student
was. The mere fact that Alfredo Amadora had gone to school that day in connection with his physics report did not
necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of Alfredo‟s killer,

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent in enforcing
discipline upon Daffon or that he had waived observance of the rules and regulations of the school or condoned their
nonobservance. His absence when the tragedy happened cannot be considered against him because he was not
supposed or required to report to school on that day. And while it is true that the offending student was still in the custody
of the teacher-in-charge even if the latter was physically absent when the tort was committed, it has not been established
that it was caused by his laxness in enforcing discipline upon the student. On the contrary, the private respondents have
proved that they had exercised due diligence, through the enforcement of the school regulations, in maintaining that
discipline.

4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable, especially in view of
the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and returned the same
later to him without taking disciplinary action or reporting the matter to higher authorities. While this was clearly negligence
on his part, for which he deserves sanctions from the school, it does not necessarily link him to the shooting of Amador as
it has not been shown that he confiscated and returned pistol was the gun that killed the petitioners‟ son.

5. Finally, as previously observed, the Colegio de San JoseRecoletos cannot be held directly liable under the article
because only the teacher or the head of the school of arts and trades is made responsible for the damage caused by the
student or apprentice. Neither can it be held to answer for the tort committed by any of the other private respondents for
none of them has been found to have been charged with the custody of the offending student or has been remiss in the
discharge of his duties in connection with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced that
none of the respondents is liable for the injury inflicted by Pablito Daffon on Alfredo Amadora that resulted in the latter‟s
death at the auditorium of the Colegio de San Jose-Recoletos on April 13,1972. While we deeply sympathize with the
petitioners over the loss of their son under the tragic circumstances here related, we nevertheless are unable to extend
them the material relief they seek, as a balm to their grief, under the law they have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.

Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortés and Grino-Aquino, JJ., concur.
Teehankee, C.J., did not participate in deliberations.
Fernan and Padilla, JJ., no part, formerly counsel for Colegio de San Jose-Recoletos.
Gutierrez, Jr., J., concur but please see additional statement.
Herrera, J., with separate concurring and dissenting opinion.
MELENCIO-HERRERA, J., concurring and dissenting:
I concur, except with respect to the restricted meaning given the term “teacher” in Article 2180 of the Civil Code as
“teacherin-charge.” This would limit liability to occasions where there are classes under the immediate charge of a
teacher, which does not seem to be the intendment of the law.

As I understand it, the philosophy of the law is that whoever stands in loco parentis will have the same duties and
obligations as parents whenever in such a standing. Those persons are mandatorily held liable for the tortious acts of
pupils and students so long as the latter remain in their custody, meaning their protective and supervisory custody.

Thus, Article 349 of the Civil Code enumerates the persons who stand in loco parentis and thereby exercise substitute
parental authority:

“Art 349,. The following persons shall exercise substitute parental authority:

xxx

(2) Teachers and professors;

xxx

(4) Directors of trade establishments, with regard to apprentices;”

Article 352 of the Civil Code further provides:

“Art. 352. The relationB between teacher and pupil, professor and student, are fixed by government regulations and those
of each school or institution. x x x”

But even such rules and regulations as may be fixed can not contravene the concept of substitute parental authority. The
rationale of liability of school heads and teachers for the tortious acts of their pupils was explained in Palisoc vs. Brillantes
(41 SCRA 548), thus:

“The protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it
becomes their obligation 05 well as that of the school itself to provide proper supervision of the students‟ activities during
the whole time that they are at attendance in the school, including recess time, as well as to take the necessary
precautions to protect the students in their custody from dangers and hazards that would reasonably be anticipated,
including injuries that some students themselves may inflict wilfully or through negligence on their fellow students. (Italics
supplied)

Of course, as provided for in the same Article 2180, the responsibility treated of shall cease when the persons mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.

And while a school is, admittedly, not directly liable since Article 2180 speaks only of teachers and schools heads, yet, by
virtue of the same provision, the school, as their employer, may be held liable for the failure of its teachers or school
heads to perform their mandatory legal duties as substitute parents (Sangco, Philippine Law on Torts & Damages, 1978
ed., p. 201). Again, the school may exculpate itself from liability by proving that it had exercised the diligence of a good
father of the family.
“Art. 2180. x x x

“Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in any business or industry.

xxx xxx

Parenthetically, from the enumeration in Article 348 of the Civil Code, supra, it is apparent that the Code Commission had
already segregated the classification of “teachers and professors” vis-a-vis their pupils, from “directors of trade
establishments, with regard to their apprentices.”

GUTIERREZ, JR., J., concurring opinion:

I concur in the Court‟s opinion so carefully analyzed and crafted by Justice Isagani A. Cruz. However, H. would like to
stress the need for a major amendment to, if not a complete scrapping of, Article 2180 of the Civil Code insofar as it refers
to teachers or heads of establishments of arts and trades in relation to pupils and students or apprentices. The seventh
paragraph of Art. 2180 is a relic of the past and contemplates a situation long gone and out of date. In a Palisoc v.
Brillantes (41 SCRA 548) situation, it is bound to result in mischief and injustice.

irst, we no longer have masters and apprentices toiling in schools of arts and trades. Students in “technologicaT colleges
and universities are no different from students in liberal arts or professional schools. Apprentices now work in regular
shops and factories and their relationship to the employer is covered by laws governing the employment relationship and
not by laws governing the teacher—student relationship.

Second, except for kindergarten, elementary, and perhaps early high school students, teachers are often no longer
objects of veneration who are given the respect due to substitute parents. Many students in their late teens or early adult
years view some teachers as part of a bourgeois or reactionary group whose advice on behaviour, deportment, and other
non-academic matters is not only resented but actively rejected. It seems most unfair to hold teachers liable on a
presumption juris tantum of negligence for acts of students even under circumstances where strictly speaking there could
be no in loco parentis relationship, Why do teachers have to prove the contrary of negligence to be freed from solidary
liabiUty for the acts of bomb-throwing or pistol packing students who would just as soon hurt them as they would other
members of the so-called establishment.

The ordinary rules on quasi-delicts should apply to teachers and schools of whatever nature insofar as grown up students
are concerned. The provision of Art. 2180 of the Civil Code involved in this case has outlived its purpose. The Court
cannot make law. It can only apply the law with its imperfections. However, the Court can suggest that such a law should
be amended or repealed.

Petition denied.

Note.—Trial is necessary for any final decision of the two cases on the merits or on the issues as to the power of a school
over its students, like the case of re-enrollment of an expelled student. (University of the Phttippines vs. Fernandez, 137
SCRA l.)

——o0o—— Amadora vs. Court of Appeals, 160 SCRA 315, No. L-47745 April 15, 1988
G.R. No. 84698. February 4,1992.*
PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM, BENJAMIN P. PAULINO, ANTONIO M.
MAGTALAS, COL. PEDRO SACRO, AND LT. M. SORIANO, petitioners, vs. COURT OF APPEALS, HON. REGINA
ORDOÑEZ-BENITEZ, in her capacity as Presiding Judge of Branch 47, Regional Trial Court, Manila, SEGUNDA R.
BAUTISTA, and ARSENIA D. BAUTISTA, respondents.

Civil Law; Quasi-Delicts; Article 2180 of the Civil Code provides that the damage should have been caused by pupils or
students of the educational institution.—Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the
rule of in loco parentis. This Court discussed this doctrine in the afore-cited cases of Exconde, Mendoza, Palisoc and,
more recently, in Amadora vs. Court of Appeals. In all such cases, it had been stressed that the law (Article 2180) plainly
provides that the damage should have been caused or inflicted by pupils or students of the educational institution sought
to be held liable for the acts of its pupils or students while in its custody. However, this material situation does not exist in
the present case for, as earlier indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the
school could be made liable.

Same; Contracts; An academic institution enters into a contract when it accepts students for enrollment; The contract
between school and student is one "imbued with public interest".—Institutions of learning must also meet the implicit or
"built-in" obligation of providing their students with an atmosphere that promotes or assists in attaining its primary
undertaking of imparting knowledge. Certainly, no student can absorb the intricacies of physics or higher mathematics or
explore the realm of the arts and other sciences when bullets are flying or grenades exploding in the air or where there
looms around the school premises a constant threat to life and limb. Necessarily, the school must ensure that adequate
steps are taken to maintain peace and order within the campus premises and to prevent the breakdown thereof.

Same; Human Relations; Article 21; 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.—Air France penalized the racist
policy of the airline which emboldened the petitioner's employee to forcibly oust the private respondent to cater to the
comfort of a white man who allegedly "had a better right to the seat." In Austro-American, supra, the public
embarrassment caused to the passenger was the justification for the Circuit Court of Appeals, (Second Circuit), to award
damages to the latter. From the foregoing, it can be concluded that should the act which breaches a contract be done in
bad faith and be violative of Article 21, then there is a cause to view the act as constituting a quasi-delict. In the
circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between the school and
Bautista had been breached thru the former's negligence in providing proper security measures. This would be for the trial
court to determine. And, even if there be a finding of negligence, the same could give rise generally to a breach of
contractual obligation only. Using the test of Cangco, supra, the negligence of the school would not be relevant absent a
contract. In fact, that negligence becomes material only because of the contractual relation between PSBA and Bautista.
In other words, a contractual relation is a condition sine qua non to the school's liability. The negligence of the school
cannot exist independently on the contract, unless the negligence occurs under the circumstances set out in Article 21 of
the Civil Code.

PETITION to review the decision of the Court of Appeals. Campos, Jr., J.

The facts are stated in the opinion of the Court.

Balgos and Perez for petitioners.

Collantes, Ramirez & Associates for private respondents.

PADILLA, J.:

A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the second-floor premises of
the Philippine School of Business Administration (PSBA) prompted the parents of the deceased to file suit in the Regional
Trial Court of Manila (Branch 47) presided over by Judge (now Court of Appeals justice) Regina Ordoñez-Benitez, for
damages against the said PSBA and its corporate officers. At the time of his death, Carlitos was enrolled in the third year
commerce course at the PSBA. It was established that his assailants were not members of the school's academic
community but were elements from outside the school.

Specifically, the suit impleaded the PSBA and the following school authorities: Juan D. Lim (President), Benjamin P.
Paulino (Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt. M.
Soriano (Assistant Chief of Security). Substantially, the plaintiffs (now private respondents) sought to adjudge them liable
for the victim's untimely demise due to their alleged negligence, recklessness and lack of security precautions, means and
methods before, during and after the attack on the victim. During the proceedings a quo, Lt. M. Soriano terminated his
relationship with the other petitioners by resigning from his position in the school.

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they are presumably sued under
Article 2180 of the Civil Code, the complaint states no cause of action against them, as jurisprudence on the subject is to
the effect that academic institutions, such as the PSBA, are beyond the ambit of the rule in the afore-stated article.
The respondent trial court, however, overruled petitioners' contention and thru an order dated 8 December 1987, denied
their motion to dismiss. A subsequent motion for reconsideration was similarly dealt with by an order dated 25 January
1988. Petitioners then assailed the trial court's dispositions before the respondent appellate court which, in a decision**
promulgated on 10 June 1988, affirmed the trial court's orders. On 22 August 1988, the respondent appellate court
resolved to deny the petitioners' motion for reconsideration. Hence, this petition.

At the outset, it is to be observed that the respondent appellate court primarily anchored its decision on the law of
quasidelicts, as enunciated in Articles 2176 and 2180 of the Civil Code.1 Pertinent portions of the appellate court's now
assailed ruling state:

"Article 2180 (formerly Article 1903) of the Civil Code is an adoptation from the old Spanish Civil Code'. The comments of
Manresa and learned authorities on its meaning should give way to present day changes. The law is not fixed and flexible
(sic); it must be dynamic. In fact, the greatest value and significance of law as a rule of conduct in (sic) its flexibility to
adopt to changing social conditions and its capacity to meet the new challenges of progress.

Construed in the light of modern day educational systems, Article 2180 cannot be construed in its narrow concept as held
in the old case of Exconde vs. Capuno2 and Mercado vs. Court of Appeals3; hence, the ruling in the Palisoc4 case that it
should apply to all kinds of educational institutions, academic or vocational.

At any rate, the law holds the teachers and heads of the school staff liable unless they relieve themselves of such liability
pursuant to the last paragraph of Article 2180 by 'proving that they observed all the diligence to prevent damage.' This can
only be done at a trial on the merits of the case."5

While we agree with the respondent appellate court that the motion to dismiss the complaint was correctly denied and the
complaint should be tried on the merits, we do not however agree with the premises of the appellate court's ruling.

Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco parentis. This Court
discussed this doctrine in the afore-cited cases of Exconde, Mendoza, Palisoc and, more recently, in Amadora vs. Court
of Appeals.6 In all such cases, it had been stressed that the law (Article 2180) plainly provides that the damage should
have been caused or inflicted by pupils or students of the educational institution sought to be held liable for the acts of i ts
pupils or students while in its custody. However, this material situation does not exist in the present case for, as earlier
indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the school could be made liable.

However, does the appellate court's failure to consider such material facts mean the exculpation of the petitioners from
liability? It does not necessarily follow.

When an academic institution accepts students for enrollment, there is established a contract between them, resulting in
bilateral obligations which both parties are bound to comply with.7 For its part, the school undertakes to provide the
student with an education that would presumably suffice to equip him with the necessary tools and skills to pursue higher
education or a profession. On the other hand, the student covenants to abide by the school's academic requirements and
observe its rules and regulations.

Institutions of learning must also meet the implicit or "builtin" obligation of providing their students with an atmosphere that
promotes or assists in attaining its primary undertaking of imparting knowledge. Certainly, no student can absorb the
intricacies of physics or higher mathematics or explore the realm of the arts and other sciences when bullets are flying or
grenades exploding in the air or where there looms around the school premises a constant threat to life and limb.
Necessarily, the school must ensure that adequate steps are taken to maintain peace and order within the campus
premises and to prevent the breakdown thereof.

Because the circumstances of the present case evince a contractual relation between the PSBA and Carlitos Bautista, the
rules on quasi-delict do not really govern.8 A perusal of Article 2176 shows that obligations arising from quasi-delicts or
tort, also known as extra-contractual obligations, arise only between parties not otherwise bound by contract, whether
express or implied. However, this impression has not prevented this Court from determining the existence of a tort even
when there obtains a contract. In Air France vs. Carrascoso (124 Phil. 722), the private respondent was awarded
damages for his unwarranted expulsion from a first-class seat aboard the petitioner airline. It is noted, however, that the
Court referred to the petitioner-airline's liability as one arising from tort, not one arising from a contract of carriage. In
effect, Air France is authority for the view that liability from tort may exist even if there is a contract, for the act that breaks
the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed. 231).

This view was not all that revolutionary, for even as early as 1918, this Court was already of a similar mind. In Cangco vs.
Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated thus:

"The field of non-contractual obligation is much more broader than that of contractual obligation, 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 a breach of the contract would have constituted the source of an extra-contractual obligation had no contract
existed between the parties."
Immediately what comes to mind is the chapter of the Civil Code on Human Relations, particularly Article 21, which
provides:

"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." (emphasis supplied).

Air France penalized the racist policy of the airline which emboldened the petitioner's employee to forcibly oust the private
respondent to cater to the comfort of a white man who allegedly "had a better right to the seat." In Austro-American,
supra, the public embarrassment caused to the passenger was the justification for the Circuit Court of Appeals, (Second
Circuit), to award damages to the latter. From the foregoing, it can be concluded that should the act which breaches a
contract be done in bad faith and be violative of Article 21, then there is a cause to view the act as constituting a quasi -
delict.

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between the
school and Bautista had been breached thru the former's negligence in providing proper security measures. This would be
for the trial court to determine. And, even if there be a finding of negligence, the same could give rise generally to a
breach of contractual obligation only. Using the test of Cangco, supra, the negligence of the school would not be relevant
absent a contract. In fact, that negligence becomes material only because of the contractual relation between PSBA and
Bautista. In other words, a contractual relation is a condition sine qua non to the school's liability. The negligence of the
school cannot exist independently on the contract, unless the negligence occurs under the circumstances set out in Article
21 of the Civil Code.

This Court is not unmindful of the attendant difficulties posed by the obligation of schools, above-mentioned for
conceptually a school, like a common carrier, cannot be an insurer of its students against all risks. This is specially true in
the populous student communities of the so-called "university belt" in Manila where there have been reported several
incidents ranging from gang wars to other forms of hooliganism. It would not be equitable to expect of schools to
anticipate all types of violent trespass upon their premises, for notwithstanding the security measures installed, the same
may still fail against an individual or group determined to carry out a nefarious deed inside school premises and environs.
Should this be the case, the school may still avoid liability by proving that the breach of its contractual obligation to the
students was not due to its negligence, here statutorily defined to be the omission of that degree of diligence which is
required by the nature of the obligation and corresponding to the circumstances of persons, time and place.9

As the proceedings a quo have yet to commence on the substance of the private respondents' complaint, the record is
bereft of all the material facts. Obviously, at this stage, only the trial court can make such a determination from the
evidence still to unfold.

WHEREFORE, the foregoing premises considered, the petition is DENIED. The Court of origin (RTC, Manila, Br. 47) is
hereby ordered to continue proceedings consistent with this ruling of the Court. Costs against the petitioners.

SO ORDERED.

Melencio-Herrera (Chairman), Paras, Regalado and Nocon, JJ., concur.

Petition denied.

Note.—A person while not criminally liable may still be civilly liable. (Lontoc v. MD Transit & Taxi Co., Inc., 160 SCRA
367)

——o0o—— Phil. School of Business Administration vs. Court of Appeals, 205 SCRA 729, G.R. No. 84698 February 4,
1992
G.R. No. 74431. November 6, 1989.*
PURITA MIRANDA VESTIL and AGUSTIN VESTIL, petitioners, vs. INTERMEDIATE APPELLATE COURT, DAVID UY
and TERESITA UY, respondents.

Damages; Possession; The possessor of an animal or whoever may make use of the same shall be responsible for the
damage it may cause; Case at bar.—In the proceedings now before us, Purita Vestil insists that she is not the owner of
the house or of the dog left by her father as his estate has not yet been partitioned and there are other heirs to the
property. Pursuing the logic of the Uys, she claims, even her sister living in Canada would be held responsible for the acts
of the dog simply because she is one of Miranda‟s heirs. However, that is hardly the point. What must be determined is
the possession of the dog that admittedly was staying in the house in question, regardless of the ownership of the dog or
of the house. Article 2183 reads as follows: The possessor of an animal or whoever may make use of the same is
responsible for the damage which it may cause, although it may escape or be lost. This responsibility shall cease only in
case the damage should come from force majeure or from the fault of the person who has suffered damage. Thus, in
Afialda v. Hisole, a person hired as caretaker of a carabao gored him to death and his heirs thereupon sued the owner of
the animal for damages. The complaint was dismissed on the ground that it was the caretaker‟s duty to prevent the
carabao from causing injury to any one, including himself.

Same; Same; Same; Art. 2183 of the Civil Code holds that the possessor liable even if the animal should “escape or be
lost”; Even removed from his control, possessor still liable.—The petitioner‟s contention that they could not be expected to
exercise remote control of the dog is not acceptable. In fact, Article 2183 of the Civil Code holds the possessor liable even
if the animal should “escape or be lost” and so be removed from his control. And it does not matter either that, as the
petitioners also contend, the dog was tame and was merely provoked by the child into biting her. The law does not speak
only of vicious animals but covers even tame ones as long as they cause injury. As for the alleged provocation, the
petitioners forget that Theness was only three years old at the time she was attacked and can hardly be faulted for
whatever she might have done to the animal.

Same; Same; Same; Equity; Obligation imposed by Art. 2183 of the Civil Code is based on natural equity and principle of
social interest.—According to Manresa, the obligation imposed by Article 2183 of the Civil Code is not based on the
negligence or on the presumed lack of vigilance of the possessor or user of the animal causing the damage. It is based on
natural equity and on the principle of social interest that he who possesses animals for his utility, pleasure or service must
answer for the damage which such animal may cause.

PETITION to review the decision of the Intermediate Appellate Court. Campos, Jr., J.

The facts are stated in the opinion of the Court.

Pablo P. Garcia for petitioners.

Roberto R. Palmares for private respondents.

CRUZ, J.:

Little Theness Tan Uy was dead at the age of three. Her parents said she died because she was bitten by a dog of the
petitioners, but the latter denied this, claiming they had nothing to do with the dog. The Uys sued the Vestils, who were
sustained by the trial court. On appeal, the decision of the court a quo was reversed in favor of the Uys. The Vestils are
now before us. They ask us to set aside the judgment of the respondent court and to reinstate that of the trial court.

On July 29, 1975, Theness was bitten by a dog while she was playing with a child of the petitioners in the house of the
late Vicente Miranda, the father of Purita Vestil, at F. Ramos Street in Cebu City. She was rushed to the Cebu General
Hospital, where she was treated for “multiple lacerated wounds on the forehead”1 and administered an anti-rabies vaccine
by Dr. Antonio Tautjo. She was discharged after nine days but was re-admitted one week later due to “vomiting of
saliva.”2 The following day, on August 15, 1975, the child died. The cause of death was certified as broncho-pneumonia.3

Seven months later, the Uys sued for damages, alleging that the Vestils were liable to them as the possessors of “Andoy,”
the dog that bit and eventually killed their daughter. The Vestils rejected the charge, insisting that the dog belonged to the
deceased Vicente Miranda, that it was a tame animal, and that in any case no one had witnessed it bite Theness. After
trial, Judge Jose R. Ramolete of the Court of First Instance of Cebu sustained the defendants and dismissed the
complaint.4

The respondent court arrived at a different conclusion when the case was appealed.5 It found that the Vestils were in
possession of the house and the dog and so should be responsible under Article 2183 of the Civil Code for the injuries
caused by the dog. It also held that the child had died as a result of the dog bites and not for causes independent thereof
as submitted by the appellees. Accordingly, the Vestils were ordered to pay the Uys damages in the amount of
P30,000.00 for the death of Theness, P12,000.00 for medical and hospitalization expenses, and P2,000.00 as attorney‟s
fees.
In the proceedings now before us, Purita Vestil insists that she is not the owner of the house or of the dog left by her
father as his estate has not yet been partitioned and there are other heirs to the property. Pursuing the logic of the Uys,
she claims, even her sister living in Canada would be held responsible for the acts of the dog simply because she is one
of Miranda‟s heirs. However, that is hardly the point. What must be determined is the possession of the dog that
admittedly was staying in the house in question, regardless of the ownership of the dog or of the house.

Article 2183 reads as follows:

The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause,
although it may escape or be lost. This responsibility shall cease only in case the damage should come from force
majeure or from the fault of the person who has suffered damage.

Thus, in Afialda v. Hisole,6 a person hired as caretaker of a carabao gored him to death and his heirs thereupon sued the
owner of the animal for damages. The complaint was dismissed on the ground that it was the caretaker‟s duty to prevent
the carabao from causing injury to any one, including himself.

Purita Vestil‟s testimony that she was not in possession of Miranda‟s house is hardly credible. She said that the occupants
of the house left by her father were related to him (“one way or the other”) and maintained themselves out of a common
fund or by some kind of arrangement (on which, however, she did not elaborate).7 She mentioned as many as ten of such
relatives who had stayed in the house at one time or another although they did not appear to be close kin.8 She at least
implied that they did not pay any rent, presumably because of their relation with Vicente Miranda notwithstanding that she
herself did not seem to know them very well.

There is contrary evidence that the occupants of the house were boarders (or more of boarders than relatives) who paid
the petitioners for providing them with meals and accommodations. It also appears that Purita Vestil had hired a maid,
Dolores Jumao-as, who did the cooking and cleaning in the said house for its occupants.9 Her mother, Pacita, who was a
nursemaid of Purita herself, categorically declared that the petitioners were maintaining boarders in the house where
Theness was bitten by a dog.10 Another witness, Marcial Lao, testified that he was indeed a boarder and that the Vestils
were maintaining the house for business purposes.11 And although Purita denied paying the water bills for the house, the
private respondents submitted documentary evidence of her application for water connection with the Cebu Water District,
which strongly suggested that she was administering the house in question.12

While it is true that she is not really the owner of the house, which was still part of Vicente Miranda‟s estate, there is no
doubt that she and her husband were its possessors at the time of the incident in question. She was the only heir residing
in Cebu City and the most logical person to take care of the property, which was only six kilometers from her own
house.13 Moreover, there is evidence showing that she and her family regularly went to the house, once or twice weekly,
according to at least one witness,14 and used it virtually as a second house. Interestingly, her own daughter was playing
in the house with Theness when the little girl was bitten by the dog.15 The dog itself remained in the house even after the
death of Vicente Miranda in 1973 and until 1975, when the incident in question occurred. It is also noteworthy that the
petitioners offered to assist the Uys with their hospitalization expenses although Purita said she knew them only
casually.16

The petitioners also argue that even assuming that they were the possessors of the dog that bit Theness, there was no
clear showing that she died as a result thereof. On the contrary, the death certificate17 declared that she died of broncho-
pneumonia, which had nothing to do with the dog bites for which she had been previously hospitalized.

The Court need not involve itself in an extended scientific discussion of the causal connection between the dog bites and
the certified cause of death except to note that, first, Theness developed hydrophobia, a symptom of rabies, as a result of
the dog bites, and second, that asphyxia broncho-pneumonia, which ultimately caused her death, was a complication of
rabies.

That Theness became afraid of water after she was bitten by the dog is established by the following testimony of Dr.
Tautjo:

COURT: I think there was mention of rabies in the report in the second admission?

A: Now, the child was continuously vomiting just before I referred to Dr. Co earlier in the morning and then the father,
because the child was asking for water, the father tried to give the child water and this child went under the bed, she did
not like to drink the water and there was fright in her eyeballs. For this reason, because I was in danger there was rabies, I
called Dr. Co.

Q: In other words, the child had hydrophobia?

A: Yes, sir.18

As for the link between rabies and broncho-pneumonia, the doctor had the following to say under oath:
A: Now, as I said before, broncho-pneumonia can result from physical, chemical and bacterial means. x x x It can be the
result of infection, now, so if you have any other disease which can lower your resistance you can also get pneumonia.

xxx

Q: Would you say that a person who has rabies may die of complication which is broncho-pneumonia?

A: Yes.

Q: For the record, I am manifesting that this book shown the witness is known as CURRENT DIANOSIS & TREATMENT,
1968 by Henry Brainerd, Sheldon Margen and Milton Chaton. Now, I invite your attention, doctor, to page 751 of this book
under the title “Rabies.” There is on this page, “Prognosis” as a result of rabies and it says:

Once the symptoms have appeared death inevitably occurs after 2-3 days as a result of cardiac or respiratory failure or
generalized paralysis.

After a positive diagnosis of rabies or after a bite by a suspected animal if the animal cannot be observed or if the bite
is on the head, give rabies vaccine (duck embryo). Do you believe in this statement?

A: Yes.

Q: Would you say therefore that persons who have rabies may die of respiratory failure which leave in the form of bron-
cho-pneumonia?

A: Broncho-pneumonia can be a complication of rabies.19

On the strength of the foregoing testimony, the Court finds that the link between the dog bites and the certified cause of
death has been satisfactorily established. We also reiterate our ruling in Sison v. Sun Life Assurance Company of
Canada,20 that the death certificate is not conclusive proof of the cause of death but only of the fact of death. Indeed, the
evidence of the child‟s hydrophobia is sufficient to convince us that she died because she was bitten by the dog even if
the death certificate stated a different cause of death.

The petitioner‟s contention that they could not be expected to exercise remote control of the dog is not acceptable. In fact,
Article 2183 of the Civil Code holds the possessor liable even if the animal should “escape or be lost” and so be removed
from his control. And it does not matter either that, as the petitioners also contend, the dog was tame and was merely
provoked by the child into biting her. The law does not speak only of vicious animals but covers even tame ones as long
as they cause injury. As for the alleged provocation, the petitioners forget that Theness was only three years old at the
time she was attacked and can hardly be faulted for whatever she might have done to the animal.

It is worth observing that the above defenses of the petitioners are an implied rejection of their original posture that there
was no proof that it was the dog in their father‟s house that bit Theness.

According to Manresa, the obligation imposed by Article 2183 of the Civil Code is not based on the negligence or on the
presumed lack of vigilance of the possessor or user of the animal causing the damage. It is based on natural equity and
on the principle of social interest that he who possesses animals for his utility, pleasure or service must answer for the
damage which such animal may cause.21

We sustain the findings of the Court of Appeals and approve the monetary awards except only as to the medical and
hospitalization expenses, which are reduced to P2,026.69, as prayed for in the complaint. While there is no recompense
that can bring back to the private respondents the child they have lost, their pain should at least be assuaged by the civil
damages to which they are entitled.

WHEREFORE, the challenged decision is AFFIRMED as above modified. The petition is DENIED, with costs against the
petitioners. It is so ordered.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Decision affirmed with modifications. Petition denied.

Notes.—Where there is a question of damages aside from the issue of interpretation of the law, the petition for certiorari
was properly brought to the Court of Appeals (One Heart Sporting Club, Inc. vs. Cities of Dipolog & Dapitan, 108 SCRA
416).

There can be no uniform or exact rule for measuring value of human life (People vs. Medrana, 110 SCRA 130).

——o0o—— Vestil vs. Intermediate Appellate Court, 179 SCRA 47, G.R. No. 74431 November 6, 1989
No. L-18390. August 6, 1971.
PEDRO J. VELASCO, plaintiff-appellant, vs. MANILA ELECTRIC CO., WILLIAM SNYDER, its President; JOHN
COTTON and HERMENEGILDO B. REYES, its Vice-Presidents; and ANASTACIO A. AGAN, City Engineer of
Quezon City, defendants-appellees.

Civil law; General rule on habitual or customary inconveniences resulting from proximity of others.—The general rule is
that everyone is bound to bear the habitual or customary inconveniences that result from the proximity of others, and so
long as this level is not surpassed, he may not complain against them. But if the prejudice exceeds the inconveniences
that such proximity habitually brings, the neighbor who causes such disturbance is held responsible for the resulting
damage, being guilty of causing nuisance.

Same; When noise may constitute an actionable nuisance.—A noise may constitute an actionable nuisance, but it must
be a noise which affects injuriously the health or comfort of ordinary people in the vicinity to an unreasonable extent. Injury
to a particular person in a peculiar position or of specially sensitive characteristics will not render the noise an actionable
nuisance. In the conditions of present living noise seems inseparable from the conduct of many necessary occupations.
Its presence is a nuisance in the popular sense in which that word is used, but in the absence of statute noise becomes
actionable only when it passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the
listener. What those limits are cannot be fixed by any definite measure of quantity or quality. They depend upon the
circumstances of the particular case. They may be affected, but are not controlled, by zoning ordinances. The delimitation
of designated areas to use for manufacturing, industry or general business is not a license to emit every noise profitably
attending the conduct of any one of them.

Same; Test.—The test is whether rights of property, of health or of comfort are so injuriously affected by the noise in
question that the sufferer is subjected to a loss which goes beyond the reasonable limit imposed upon him by the
condition of living, or of holding property, in a particular locality in fact devoted to uses which involve the emission of noise
although ordinary care is taken to confine it within reasonable bounds; or in the vicinity of property of another owner who
though creating a noise is acting with reasonable regard for the rights of those affected by it.

Same; Commercial or industrial activities may become nuisances.—There can be no doubt but that commercial and
industrial activities which are lawful in themselves may become nuisances if they are so offensive to the senses that they
render the enjoyment of life and property uncomfortable.

Same; When noise emanating from electrical machinery and appliances becomes a nuisance; Factors to consider.—The
creation of trifling annoyance and inconvenience does not constitute an actionable nuisance, and the locality and
surroundings are of importance. The fact that the cause of the complaint must be substantial has often led to expressions
in the opinions that to be a nuisance the noise must be defending or loud or excessive and unreasonable. Usually it was
shown to be of that character. The determining factor when noise alone is the cause of complaint is not its intensity or
volume. It is that the noise is of such character as to produce actual physical discomfort and annoyance to a person of
ordinary sensibilities, rendering adjacent property less comfortable and valuable. If the noise does that it can well be said
to be substantial and unreasonable in degree; and reasonableness is a question of fact dependent upon the
circumstances and conditions. There can be no fixed standard as to what kind of noise constitutes a nuisance.

Same; When noise generated by a Meralco substation constitutes an actionable nuisance.—The noise continuously
emitted by a Meralco substation, day and night, constitutes an actionable nuisance for which the appellant is entitled to
relief, by requiring the appellee company to adopt the necessary measures to deaden or reduce the sound at the plaintiff‟s
house, by replacing the interlink wire fence with a partition made of sound absorbent material, since the relocation of the
substation is manifestly impracticable and would be prejudicial to the customers of the Electric Company who are being
serviced from the substation.

Same; Absence of complaint to the operation of Meralco substation does not bar action.—The absence of suit neither
lessens the company‟s liability under the law nor weakens the right of others against it to demand their just due.

Same; Factors mitigating liability in damages.—There are several factors that mitigate defendant‟s liability in damages.
The first is that the noise from the substation does not appear to be an exclusive causative factor of plaintiff-appellant‟s
illnesses. Financial worries can affect unfavorably the debtor‟s disposition and mentality. The other factor militating
against full recovery by the petitioner Velasco is his passivity in the fact of the damage caused to him by the noise of the
substation. Realizing as a physician that the latter was disturbing or depriving him of sleep and affecting both his physical
and mental well being, he did not take any steps to bring action to abate the nuisance or to remove himself from the
affected area as soon as the deleterious effects became noticeable.

Same; Injured party must minimize damages.—Article 2203 of the Civil Code clearly obligates the injured party to
undertake measures that will alleviate and not aggravate his condition after the infliction of the injury, and places upon hi m
the burden of explaining why he could not do so.

City Ordinance; Quezon City Engineer; Duties.—It was not the City Engineer‟s duty to require the Meralco to secure a
permit before the construction but for Meralco to apply for it, as per Section 1, Ordinance No. 1530, of Quezon City. No
law or ordinance has been cited specifying that it is the city engineer‟s duty to initiate the removal or demolition of, or for
the criminal prosecution of, those persons who are responsible for the nuisance.

DIRECT APPEAL from a decision of the Court of First Instance of Rizal.

The facts are stated in the opinion of the Court.

Q. Paredes, B. Evangelista & R. T. Durian for plaintiff-appellant.

Ross, Selph & Carrascoso for defendants-appellees Manila Electric Co., etc., et al.

Asst. City Fiscal Jaime R. Agloro for defendant-appellee Anastacio A. Agan, etc.

REYES, J.B.L., J.:

The present case is direct appeal (prior to Republic Act 5440) by the herein plaintiff-appellant, Pedro J. Velasco (petitioner
in L-14035; respondent in L-13992)* from the decision of the Court of First Instance of Rizal, Quezon City Branch, in its
Civil Case No. 1355, absolving the defendants from a complaint for the abatement of the substation as a nuisance and for
damages to his health and business in the amount of P487,600.00.

In 1948, appellant Velasco bought from the People‟s Homesite and Housing Corporation three (3) adjoining lots situated
at the corner of South D and South 6 Streets, Diliman, Quezon City. These lots are within an area zoned out as a “first
residence” district by the City Council of Quezon City. Subsequently, the appellant sold two (2) lots to the Meralco, but
retained the third lot, which was farthest from the street-corner, whereon he built his house.

In September, 1953, the appellee company started the construction of the sub-station in question and finished it the
following November, without prior building permit or authority from the Public Service Commission (Meralco vs. Public
Service Commission, 109 Phil. 603). The facility reduces high voltage electricity to a current suitable for distribution to the
company‟s consumers, numbering not less than 8,500 residential homes, over 300 commercial establishments and about
30 industries (T.s.n., 19 October 1959, page 1765). The substation has a rated capacity of “2 transformers at 5000 Kva
each or a total of 10,000 Kva without fan cooling; or 6250 Kva each or a total of 12,500 Kva with fan cooling” (Exhibit “A-
3”). It was constructed at a distance of 10 to 20 meters from the appellant‟s house (T.s.n., 16 July 1956, page 62; 19
December 1956, page 343; 1 June 1959, page 29). The company built a stone and cement wall at the sides along the
streets but along the side adjoining the appellant‟s property it put up a sawale wall but later changed it to an interlink wi re
fence.

It is undisputed that a sound unceasingly emanates from the substation. Whether this sound constitutes an actionable
nuisance or not is the principal issue in this case.

Plaintiff-appellant Velasco contends that the sound constitutes an actionable nuisance under Article 694 of the Civil Code
of the Philippines, reading as follows:

“A nuisance is any act, omission, establishment, business, condition of property or anything else which:

(1) Injuries or endangers the health or safety of others; or

(2) Annoys or offends the senses;

xxxxx xxxxx xxxxx”

Because subjection to the sound since 1954 had disturbed the concentration and sleep of said appellant, and impaired his
health and lowered the value of his property. Wherefore, he sought a judicial decree for the abatement of the nuisance
and asked that he be declared entitled to recover compensatory, moral and other damages under Article 2202 of the Civil
Code.

“ART. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable
consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could
have reasonably been foreseen by the defendant.”

After trial, as already observed, the court below dismissed the claim of the plaintiff, finding that the sound of the substation
was unavoidable and did not constitute nuisance; that it could not have caused the diseases of anxiety neurosis,
pyelonephritis, ureteritis, lumbago and anemia; and that the items of damage claimed by plaintiff were not adequate
proved. Plaintiff then appealed to this Court.

The general rule is that everyone is bound to bear the habitual or customary inconveniences that result from the proximity
of others, and so long as this level is not surpassed, he may not complain against them. But if the prejudice exceeds the
inconveniences that such proximity habitually brings, the neighbor who causes such disturbance is held responsible for
the resulting damage,1 being guilty of causing nuisance.
While no previous adjudications on the specific issue have been made in the Philippines, our law of nuisances is of
American origin, and a review of authorities clearly indicates the rule to be that the causing or maintenance of disturbing
noise or sound may constitute an actionable nuisance (V. Ed. Note, 23 ALR, 2d 1289). The basic principles are laid down
in Tortorella vs. Traiser & Co., Inc., 90 ALR 1206:

“A noise may constitute an actionable nuisance, Rogers vs. Elliott, 146 Mass. 349, 15 N.E. 768, 4 Am. St. Rep. 316,
Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N.E. 371, Ann. Cas. 1915B, 1954, Stodder v. Rosen Talking
Machine Co., 241 Mass. 245, 135 N.E. 251, 22 A. L. R. 1197, but it must be a noise which affects injuriously the health or
comfort of ordinary people in the vicinity to an unreasonable extent. Injury to a particular person in a peculiar position or of
specially sensitive characteristics will not render the noise an actionable nuisance. Rogers v. Elliott, 146 Mass. 349, 15
N.E. 768, 4 Am. St. Rep. 316. In the conditions of present living noise seems inseparable from the conduct of many
necessary occupations.

Its presence is a nuisance in the popular sense in which that word is used, but in the absence of statute noise becomes
actionable only when it passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the
maker to the needs of the listener. What those limits are cannot be fixed by any definite measure of quantity or quality.
They depend upon the circumstances of the particular case. They may be affected, but are not controlled, by zoning
ordinances. Beane v. H. J. Porter, Inc., 280 Mass 538, 182 N. E. 823, Marshal v. Holbrook, 276 Mass 341, 177 N. E. 504,
Strachan v. Beacon Oil Co., 251 Mass. 479, 146 N. E. 787. The delimitation of designated areas to use for manufacturing,
industry or general business is not a license to emit every noise profitably attending the conduct of any one of them.
Beane v. H. J. Porter, Inc., 280 Mass. 538, 182 N. E. 823. The test is whether rights of property of health or of comfort are
so injuriously affected by the noise in question that the sufferer is subjected to a loss which goes beyond the reasonable
limit imposed upon him by the condition of living, or of holding property, in a particular locality in fact devoted to uses
which involve the emission of noise although ordinary care is taken to confine it within reasonably bounds: or in the vicinity
of property of another owner who though creating a noise is acting with reasonable regard for the rights of those affected
by it. Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N.E. 371, Ann. Cas. 1915B, 1054.”

With particular reference to noise emanating from electrical machinery and appliances, the court, in Kentucky & West
Virginia Power Co. v. Anderson, 156 S. W. 2d 857, after a review of authorities, ruled as follows:

“There can be no doubt but that commercial and industrial activities which are lawful in themselves may become
nuisances if they are so offensive to the senses that they render the enjoyment of life and property uncomfortable. It is no
defense that skill and care have been exercised and the most improved methods and appliances employed to prevent
such result. Wheat Culvert Company v. Jenkins, 246 Ky. 319, 55 S. W. 2d 4; 46 C.J. 683, 705; 20 R. C. L. 438;
Annotations, 23 A. L. R. 1407; 90 A. L. R. 1207. Of course, the creation of trifling annoyance and inconvenience does not
constitute an actionable nuisance, and the locality and surroundings are of importance. The fact that the cause of the
complaint must be substantial has often led to expressions in the opinions that to be a nuisance the noise must be
deafening or loud or excessive and unreasonable. Usually it was shown to be of that character. The determinati ng factor
when noise alone is the cause of complaint is not its intensity or volume. It is that the noise is of such character as to
produce actual physical discomfort and annoyance to a person of ordinary sensibilities, rendering adjacent property less
comfortable and valuable. If the noise does that it can well be said to be substantial and unreasonable in degree; and
reasonableness is a question of fact dependent upon all the circumstances and conditions. 20 R. C. L. 445, 453; Wheat
Culvert Company v. Jenkins, supra. There can be no fixed standard as to what kind of noise constitutes a nuisance. It is
true some witnesses in this case say they have been annoyed by the humming of these transformers, but that fact is not
conclusive as to the nonexistence of the cause of complaint, the test being the effect which is had upon an ordinary
person who is neither sensitive nor immune to the annoyance concerning which the complaint is made. In the absence of
evidence that the complainant and his family are supersensitive to distracting noises, it is to be assumed that they are
persons of ordinary and normal sensibilities. Roukovina v. Island Farm Creamery Company, 160 Minn. 335, 200 N. W.
350, 38 A. L. R. 1502.

xxxxx xxxxx xxxxx

In Wheat Culvert Company vs. Jenkins, supra, we held an injunction was properly decreed to stop the noise from the
operation of a metal culvert factory at night which interfered with the sleep of the occupants of an adjacent residence. It i s
true the clanging, riveting and hammering of metal plates produces a sound different in character from the steady hum or
buzz of the electric machinery described in this case. In the Jenkins case the noise was loud, discordant and intermittent.
Here it is interminable and monotonous. Therein lies the physical annoyance and disturbance. Though the noise be
harmonious and slight and trivial in itself, the constant and monotonous sound of a cricket on the earth, or the drip of a
leaking faucet is irritating, uncomfortable, distracting and disturbing to the average man and woman. So it is that the
intolerable, steady monotony of this ceaseless sound, loud enough to interfere with ordinary conversation in the dwelling,
produces a result generally deemed sufficient to constitute the cause of it an actionable nuisance. Thus, it has been held
the continuous and monotonous playing of a phonograph for advertising purposes on the street even though there were
various records, singing, speaking and instrumental, injuriously affected plaintiff‟s employees by a gradual wear on their
nervous systems, and otherwise, is a nuisance authorizing an injunction and damages. Frank F. Stodder, et al. v. Rosen
Talking Machine Company, 241 Mass. 245, 135 N.E. 251, 22 A. L. R. 1197.”
The principles thus laid down make it readily apparent that inquiry must be directed at the character and intensity of the
noise generated by the particular substation of the appellee. As can be anticipated, character and loudness of sound
being of subjective appreciation in ordinary witnesses, not much help can be obtained from the testimonial evidence. That
of plaintiff Velasco is too plainly biased and emotional to be of much value. His exaggerations are readily apparent in
paragraph V of his amended complaint, signed by him as well as his counsel, wherein the noise complained of as—

“fearful hazardous noise and clangor are produced by the said electric transformer of the MEC‟s substation,
approximating a noise of a reactivated about-to-explode volcano, perhaps like the nerve wracking noise of the torture
chamber in Germany‟s Dachau or Buchenwald” (Record on Appeal, page 6).

The estimate of the other witnesses on the point of inquiry are vague and imprecise, and fail to give a definite idea of the
intensity of the sound complained of. Thus:

OSCAR SANTOS, Chief Building Inspector, Department of Engineering, Quezon City ____ “the sound (at the front door of
plaintiff Velasco‟s house) becomes noticeable only when I tried to concentrate . . . . . . . .” (T.s.n., 16 July 1956, page 50)

SERAFIN VILLARAZA, Building Inspector ____ “. . . . . like a high pitch note.” (the trial court‟s description as to the
imitation of noise made by witness: “. . . . . . more of a hissing sound) (T.s.n., 16 July 1956, pages 59-60)

CONSTANCIO SORIA, City Electrician ____ “. . . . . humming sound” . . . . . “of a running car”. (T.s.n., 16 July 1956, page
87)

JOSE R. ALVAREZ, Sanitary Engineer, Quezon City Health Department ____ “. . . . . substation emits a continuous
rumbling sound which is audible within the premises and at about radius of 70 meters.” “I stayed there from 6:00 p.m to
about 1:00 o‟clock in the morning” . . . . . “increases with the approach of twilight.” (T.s.n., 5 Sep-tember 1956, pages 40-
44)

NORBERTO S. AMORANTO, Quezon, City Mayor ____ (for 30 minutes in the street at a distance of 12 to 15 meters from
sub-station) “I felt no effect on myself.” “. . . . . no [piercing noise]” (T.s.n., 18 September 1956, page 189)

PACIFICO AUSTRIA, architect, appellant‟s neighbor: “. . . . . like an approaching airplane . . . . . around five kilometers
away.” (T.s.n., 19 November 1956, pages 276-277)

ANGEL DEL ROSARIO, radiologist, appellant‟s neighbor: “. . . . . as if it is a running motor or a running dynamo, which
disturbs the ear and the hearing of a person.” (T.s.n., 4 December 1956, page 21)

ANTONIO D. PAGUIA, lawyer _ _ _ _ “It may be likened to the sound emitted by the whistle of a boat at a far distance but
it is very audible.” (T.s.n., 19 December 1956, page 309)

RENE RODRIGUEZ, sugar planter and sugar broker, appellant‟s neighbor _ _ _ _ “It sounds like a big motor running
continuously.” (T.s.n., 19 December 1956, page 347)

SIMPLICIO BELISARIO, Army captain _ _ _ _ (on a visit to Velasco) “I can compare the noise to an airplane C-47 being
started—the motor.” [Did not notice the noise from the substation when passing by, in a car, Velasco‟s house] (T.s.n., 7
January 1957, pages 11-12)

MANOLO CONSTANTINO, businessman, appellant‟s neighbor _ _ _ _ “It disturbs our concentration of mind.” (T.s.n., 10
January 1957, page 11)

PEDRO PICA, businessman, appellant‟s neighbor: “. . . . . We can hear it very well [at a distance of 100 to 150 meters].
(T.s.n., 10 January 1957, page 41)

CIRENEO PUNZALAN, lawyer _ _ _ _ “. . . . . a continuous droning, . . . . . like the sound of an airplane.” (T.s.n., 17
January 1957, page 385)

JAIME C. ZAGUIRRE, Chief, Neuro-Psychiatry Section, V. Luna Gen. Hospital _ _ _ _ “. . . . . comparatively the sound
was really loud to bother a man sleeping.” (T.s.n., 17 January 1957, page 406)

We are thus constrained to rely on quantitative measurements shown by the record. Under instructions from the Director
of Health, samplings of the sound intensity were taken by Dr. Jesus Almonte using a sound level meter and other
instruments. Within the compound of the plaintiff-appellant, near the wire fence serving as property line between him and
the appellee, on 27 August 1957 at 11:45 a.m., the sound level under the sampaloc tree was 46-48 decibels, while behind
Velasco‟s kitchen, the meter registered 49-50; at the same places on 29 August 1957, at 6:00 a.m., the readings were 56-
59 and 61-62 decibels, respectively; on 7 September 1957, at 9:30 a.m., the sound level under the sampaloc tree was 74-
76 decibels; and on 8 September 1957 at 3:35 in the morning, the reading under the same tree was 70 decibels, while
near the kitchen it was 79-80 decibels. Several measurements were also taken inside and outside the house (Exhibit “NN-
7, b-f”). The ambient sound of the locality, or that sound level characteristic of it or that sound predominating minus the
sound of the sub-station is from 28 to 32 decibels. (T.s.n., 26 March 1958, pages 6-7)
Mamerto Buenafe, superintendent of the appellee‟s electrical laboratory, also took sound level samplings. On 19
December 1958, between 7:00 to 7:30 o‟clock in the evening, at the substation compound near the wire fence or property
line, the readings were 55 and 54 and still near the fence close to the sampaloc tree, it was 52 decibels; outside but close
to the concrete wall, the readings were 42 to 43 decibels; and near the transformers, it was 76 decibels (Exhibit “13”).

Buenafe also took samplings at the North General Hospital on 4 January 1959 between 9:05 to 9:45 in the evening. In the
different rooms and wards from the first to the fourth floors, the readings varied from 45 to 67 decibels.

Technical charts submitted in evidence show the following intensity levels in decibels of some familiar sounds: average
residence: 40; average office: 55; average automobile, 15 feet: 70; noisiest spot at Niagara Falls: 92 (Exhibit “11-B”);
average dwelling: 35; quiet office: 40; average office: 50; conversation: 60; pneumatic rock drill: 130 (Exhibit “12”); quiet
home—average living room: 40; home ventilation fan, outside sound of good home airconditioner or automobile at 50 feet:
70 (Exhibit “15-A”).

Thus the impartial and objective evidence points to the sound emitted by the appellee‟s substation transformers being of
much higher level than the ambient sound of the locality. The measurements taken by Dr. Almonte, who is not connected
with either party, and is a physician to boot (unlike appellee‟s electrical superintendent Buenafe), appear more reliable.
The conclusion must be that, contrary to the finding of the trial court, the noise continuously emitted, day and night,
constitutes an actionable nuisance for which the appellant is entitled to relief, by requiring the appellee company to adopt
the necessary measures to deaden or reduce the sound at the plaintiff‟s house, by replacing the interlink wire fence with a
partition made of sound absorbent material, since the relocation of the substation is manifestly impracticable and would be
prejudicial to the customers of the Electric Company who are being serviced from the substation.

Appellee company insists that as the plaintiff‟s own evidence (Exhibit “NN-7[c]”) the intensity of the sound (as measured
by Dr. Almonte) inside appellant‟s house is only 46 to 47 decibels at the consultation room, and 43 to 45 decibels within
the treatment room, the appellant had no ground to complain. This argument is not meritorious, because the noise at the
bedrooms was determined to be around 64-65 decibels, and the medical evidence is to the effect that the basic root of the
appellant‟s ailments was his inability to sleep due to the incessant noise with consequent irritation, thus weakening his
constitution and making him easy prey to pathogenic germs that could not otherwise affect a person of normal health.

In Kentucky and West Virginia Co., Inc. vs. Anderson, 156 SW. 857, the average of three readings along the plaintiff‟s
fence was only 44 decibels but, because the sound from the sub-station was interminable and monotonous, the court
authorized an injunction and damages. In the present case, the three readings along the property line are 52, 54 and 55
decibels. Plaintiff‟s case is manifestly stronger.

Appellee company argues that the plaintiff should not be heard to complain because the sound level at the North General
Hospital, where silence is observed, is even higher than at his residence. This comparison lacks basis because it has not
been established that the hospital is located in surroundings similar to the residential zone where the plaintiff lived or that
the sound at the hospital is similarly monotonous and ceaseless as the sound emitted by the sub-station.

Constancio Soria testified that “The way the transformers are built, the humming sound cannot be avoided”. On this
testimony, the company emphasizes that the substation was constructed for public convenience. Admitting that the sound
cannot be eliminated, there is no proof that it can not be reduced. That the sub-station is needed for the Meralco to be
able to serve well its customers is no reason, however, why it should be operated to the detriment and discomfort of
others.2

The fact that the Meralco had received no complaint although it had been operating hereabouts for the past 50 years with
substations similar to the one in controversy is not a valid argument. The absence of suit neither lessens the company‟s
liability under the law nor weakens the right of others against it to demand their just due.

As to the damages caused by the noise, appellant Velasco, himself a physician, claimed that the noise, as a precipitating
factor, has caused him anxiety neurosis, which, in turn, predisposed him to, or is concomitant with, the other ailments
which he was suffering at the time of the trial, namely, pyelonephritis, ureteritis and others; that these resulted in the loss
of his professional income and reduced his life expectancy. The breakdown of his claims is as follows:

Loss of professional earnings .......................................P 12,600

Damage to life expectancy ...........................................180,000

Moral damages .............................................................100,000

Loss due to frustration of sale of house ........................125,000

Exemplary damages .....................................................25,000

Attorneys‟ fees .............................................................45,000

A host of expert witnesses and voluminous medical literature, laboratory findings and statistics of income were introduced
in support of the above claims.

The medical evidence of plaintiff‟s doctors preponderates over the expert evidence for defendant-appellee, not merely
because of its positive character but also because the physicians presented by plaintiff had actually treated him, while the
defense experts had not done so. Thus the evidence of the latter was to a large extent conjectural. That appellant‟s
physical ailments should be due to infectious organisms does not alter the fact that the loss of sleep, irritation and tension
due to excessive noise weakened his constitution and made him easy prey to the infection.

Regarding the amount of damages claimed by appellant, it is plain that the same are exaggerated. To begin with, the
alleged loss of earnings at the rate of P19,000 per annum is predicated on the Internal Revenue assessment, Exhibit
“QQ-1”, wherein appellant was found to have undeclared income of P8,338.20 in additional to his declared gross income
of P10,975.00 for 1954. There is no competent showing, however, that the source of such undeclared income was
appellant‟s profession. In fact, the inference would be to the contrary, for his gross income from the previous years 1951
to 1953 [Exhibits “QQ-1(d)” to “QQ-1(f)”] was only P8,085.00, P5,860.00 and P7,120.00, respectively, an average of
P7,000.00 per annum. Moreover, while his 1947 and 1948 income was larger (P9,995.00 and P11,900.00), it appears that
P5,000 thereof was the appellant‟s annual salary from the Quezon Memorial Foundation, which was not really connected
with the usual earnings derived from practice as a physician. Considering, therefore, his actual earnings, the claimed
moral damages of P100,000.00 are utterly disproportionate. The alleged losses for shortening of appellant‟s life
expectancy are not only inflated but speculative.

As to the demand for exemplary or punitive damages, there appears no adequate basis for their award. While the
appellee Manila Electric Company was convicted for erecting the substation in question without permit from the Public
Service Commission, We find reasonable its explanation that its officials and counsel had originally deemed that such
permit was not required as the installation was authorized by the terms of its franchise (as amended by Republic Act No.
150) requiring it to spend within 5 years not less than forty million pesos for maintenance and additions to its electric
system, including needed power plants and substations. Neither the absence of such permit from the Public Service
Commission nor the lack of permit from the Quezon City authorities (a permit that was subsequently granted) is
incompatible with the Company‟s good faith, until the courts finally ruled that its interpretation of the franchise was
incorrect.

There are, moreover, several factors that mitigate defendant‟s liability in damages. The first is that the noise from the
substation does not appear to be an exclusive causative factor of plaintiff-appellant‟s illnesses. This is proved by the
circumstance that no other person in Velasco‟s own household nor in his immediate neighborhood was shown to have
become sick despite the noise complained of. There is also evidence that at the time the plaintiff-appellant appears to
have been largely indebted to various credit institutions, as a result of his unsuccessful gubernatorial campaign, and this
court can take judicial cognizance of the fact that financial worries can affect unfavorably the debtor‟s disposition and
mentality.

The other factor militating against full recovery by the petitioner Velasco in his passivity in the face of the damage caused
to him by the noise of the substation. Realizing as a physician that the latter was disturbing or depriving him of sleep and
affecting both his physical and mental well being, he did not take any steps to bring action to abate the nuisance or
remove himself from the affected area as soon as the deleterious effects became noticeable. To evade them appellant did
not even have to sell his house; he could have leased it and rented other premises for sleeping and maintaining his office
and thus preserve his health as ordinary prudence demanded. Instead he obstinately stayed until his health became
gravely affected, apparently hoping that he would thereby saddle appellee with large damages.

The law in this jurisdiction is clear. Article 2203 prescribes that “The party suffering loss or injury must exercise the
diligence of a good father of a family to minimize the damages resulting from the act or omission in question”. This codal
rule, which embodies the previous jurisprudence on the point,3 clearly obligates the injured party to undertake measures
that will alleviate and not aggravate his condition after the infliction of the injury, and places upon him the burden of
explaining why he could not do so. This was not done.

Appellant Velasco introduced evidence to the effect that he tried to sell his house to Jose Valencia, Jr., in September,
1953, and on a 60 day option, for P95,000.00, but that the prospective buyer backed out on account of his wife objecting
to the noise of the substation. There is no reliable evidence, however, how much were appellant‟s lot and house worth,
either before the option was given to Valencia or after he refused to proceed with the sale or even during the intervening
period. The existence of a previous offer for P125,000.00, as claimed by the plaintiff, was not corroborated by Valencia.
What Valencia testified to in his deposition is that when they were negotiating on the price Velasco mentioned to him
about an offer by someone for P125,000.00. The testimony of Valencia proves that in the dialog between him and
Velasco, part of the subject of their conversation was about the prior offer, but it does not corroborate or prove the reality
of the offer for P125,000.00. The testimony of Velasco on this point, standing alone, is not credible enough, what with his
penchant for metaphor and exaggeration, as previously adverted to. It is urged in appellant‟s brief, along the lines of his
own testimony, that since one (1) transformer was measured by witness Jimenez with a noise intensity of 47.2 decibels at
a distance of 30.48 meters, the two (2) transformers of the substation should create an intensity of 94.4 decibels at the
same distance. If this were true, then the residence of the plaintiff is more noisy than the noisiest spot at the Niagara Falls,
which registers only 92 decibels (Exhibit “15-A”).
Since there is no evidence upon which to compute any loss or damage allegedly incurred by the plaintiff by the frustration
of the sale on account of the noise, his claim therefore was correctly disallowed by the trial court. It may be added that
there is no showing of any further attempts on the part of appellant to dispose of the house, and this fact suffices to raise
doubts as to whether he truly intended to dispose of it. He had no actual need to do so in order to escape deterioration of
his health, as heretofore noted.

Despite the wide gap between what was claimed and what was proved, the plaintiff is entitled to damages for the
annoyance and adverse effects suffered by him since the substation started functioning in January, 1954. Considering all
the circumstances disclosed by the record, as well as appellant‟s failure to minimize the deleterious influences from the
substation, this Court is of the opinion that an award in the amount of P20,000.00, by way of moderate and moral
damages up to the present, is reasonable. Recovery of attorney‟s fees and litigation expenses in the sum of P5,000.00 is
also justified—the factual and legal issues were intricate (the transcript of the stenographic notes is about 5,000 pages,
side from an impressive number of exhibits), and raised for the first time in this jurisdiction.4

The last issue is whether the City Engineer of Quezon City, Anastacio A. Agan, a co-defendant, may be held solidarity
liable with Meralco.

Agan was included as a party defendant because he allegedly (1) did not require the Meralco to secure a building permit
for the construction of the substation; (2) even defended its construction by not insisting on such building permit; and (3)
did not initiate its removal or demolition and the criminal prosecution of the officials of the Meralco.

The record does not support these allegations. On the fist plea, it was not Agan‟s duty to require the Meralco to secure a
permit before the construction but for Meralco to apply for it, as per Section 1, Ordinance No. 1530, of Quezon Ci ty. The
second allegation is not true, because Agan wrote the Meralco requiring it to submit the plan and to pay permit fees
(T.s.n., 14 January 1960, pages 2081-2082). On the third allegation, no law or ordinance has been cited specifying that it
is the city engineer‟s duty to initiate the removal or demolition of, or for the criminal prosecution of, those persons who are
responsible for the nuisance. Republic Act 537, Section 24 (d), relied upon by the plaintiff, requires an order by, or
previous approval of, the mayor for the city engineer to cause or order the removal of buildings or structures in violation of
law or ordinances, but the mayor could not be expected to take action because he was of the belief, as he testified, that
the sound “did not have any effect on his body”.

FOR THE FOREGOING REASONS, the appealed decision is hereby reversed in part and affirmed in part.

The defendant-appellee Manila Electric Company is hereby ordered to either transfer its substation at South D and South
6 Streets, Diliman, Quezon City, or take appropriate measures to reduce its noise at the property line between the
defendant company‟s compound and that of the plaintiff-appellant to an average of forty (40) to fifty (50) decibels within 90
days from finality of this decision; and to pay the said plaintiff-appellant P20,000.00 in damages and P5,000.00 for
attorney‟s fees. In all other respects, the appealed decision is affirmed. No costs.

Concepcion, C.J., Makalintal, Zaldivar, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Dizon and Castro, JJ., on official leave, did not take part.

Decision affirmed.

Notes.—(a) Nuisance; right to abatement and damages on account thereof.—In De Ayala et al. vs. Barretto et al., 33 Phil.
538, a suit for permanent injunction was instituted against the erection and operation of a combined brewery and ice plant
on Calle General Solano in the city of Manila, on the ground that it will be a nuisance. The suit was brought by twenty-two
persons who were either residents or property owners on Calle General Solano. General Solano had long been a
fashionable residence street and the dwellings located upon it were large and expensive. At the time of the bringing of the
suit, however, it was slowly becoming a trading and manufacturing center, for which purposes or kinds of activity it was
specially attractive by reason of its transportation facilities by both land and water (it is parallel and adjacent to the Pa sig
River). There were already upon this street a coal yard, a warehouse, and a cigarette factory, all very near the proposed
location of the defendant‟s brewery, and there were also a public school and a club on it. Just across the river was located
the large power plant of the electric railroad and light company, consuming about 50 tons of coal per day. To the north of
this street were located some sawmills and lumber yards and to the west, across the river, were located large warehouses
and a large tobacco factory. The street was used by all kinds of freight vehicles and a double street-car track traversed its
entire length. Launches, tugs, and lighters were continually navigating the Pasig River, which lies to the rear of the south
side of the street. Because of all these facts the Court said that the street was not purely or strictly a residential street. It
then proceeded to state:

There is no doubt that the appropriateness of the locality selected by the defendants as the site of their proposed plant
must have considerable bearing upon the question whether the plant will create a nuisance. (Joyce on Nuisances,
sections 95 et seq.) It appears that the locality in question is gradually being transformed from a fashionable residence
district into an industrial center. In Eller Keller vs. Koehler (68 Ohio, 51), it was said:
“All that can be required of men who engage in lawful business is that they all regard the fitness of locality. In the
residence sections of a city, business of no kind is desirable or welcome. On the other hand, one who becomes a resident
of a trading or manufacturing neighborhood, or who remains, while in the march of events a residence disgradually
becomes a trading or manufacturing neighborhood, should be held bound to submit to the ordinary annoyances,
discomforts and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen
neighborhood. The true rule would be that any discomfort or injury beyond this would be actionable; anything up to that
point would not be actionable.”

After a careful consideration of all the evidence of record, we have come to the conclusion that the locality surrounding the
site of the proposed plant has not sufficiently the impress of a residential district as to justify us in holding that the pl ant
will be incongruous with its surroundings. This conclusion is made easier in view of the fact that another brewery is in fact
closes to several of the plaintiffs than that of the defendants will be. The fact that this latter brewery is not on the same
street is immaterial. Distance is what counts in a matter of this kind. Noise, smells, and smoke are no respector of streets.

Is there evidence of record that the proposed plant will be operated so carelessly as to materially increase the noise,
smells and smoke emanating therefrom. We think not. On the contrary, the evidence is that a brewery, properly run, is not
an unbearable neighbor and that the defendants are installing modern machinery in every respect. x x x We think that the
preponderance of evidence is to the effect that the new brewery will be operated with a minimum of offense to nearby
residents, and that in view of the semi-industrial character of the locality, what noise, etc., is produced, cannot be held to
be unreasonable.

In Bengzon vs. Province of Pangasinan, 62 Phil. 816, the province was held liable for constructing and operating a water
pumping plant in such close proximity to the residence of the plaintiff as to render it uninhabitable because of the noise,
smoke, vibrations, odor and sparks coming from the plant, thus causing a constant annoyance, discomfort and danger
both to the property of the plaintiff and the health and comfort of himself and his family.

——— Velasco vs. Manila Electric Co., 40 SCRA 342, No. L-18390 August 6, 1971
G.R. No. 116100. February 9, 1996.*
SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and MARIA CRISTINA SANTOS, petitioners,
vs. COURT OF APPEALS, HEIRS OF PACIFICO C. MABASA and REGIONAL TRIAL COURT OF PASIG, METRO
MANILA, BRANCH 181, respondents.

Remedial Law; Appeals; An appellee in a civil case, who has not himself appealed may not obtain from the appellate court
any affirmative relief other than what was granted in the decision of the lower court.—For failure to appeal the decision of
the trial court to the Court of Appeals, petitioners cannot obtain any affirmative relief other than those granted in the
decision of the trial court. That decision of the court below has become final as against them and can no longer be
reviewed, much less reversed, by this Court. The rule in this jurisdiction is that whenever an appeal is taken in a civil case,
an appellee who has not himself appealed may not obtain from the appellate court any affirmative relief other than what
was granted in the decision of the lower court. The appellee can only advance any argument that he may deem necessary
to defeat the appellant‟s claim or to uphold the decision that is being disputed, and he can assign errors in his brief if such
is required to strengthen the views expressed by the court a quo. These assigned errors, in turn, may be considered by
the appellate court solely to maintain the appealed decision on other grounds, but not for the purpose of reversing or
modifying the judgment in the appellee‟s favor and giving him other affirmative reliefs.

Civil Law; Action; Damages; To warrant the recovery of damages, there must be a right of action for a legal wrong inflicted
by the defendant, and damage resulting to the plaintiff.—However, the mere fact that the plaintiff suffered losses does not
give rise to a right to recover damages. To warrant the recovery of damages, there must be both a right of action for a
legal wrong inflicted by the defendant, and damage resulting to the plaintiff therefrom. Wrong without damage, or damage
without wrong, does not constitute a cause of action, since damages are merely part of the remedy allowed for the injury
caused by a breach or wrong.

Same; Same; Same; Injury is the illegal invasion of a legal right, damage is the harm which results from the injury and
damages are the compensation awarded for the damage suffered.—There is a material distinction between damages and
injury. Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and
damages are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without
injury in those instances in which the loss or harm was not the result of a violation of a legal duty. These situations are
often called damnum absque injuria.

Same; Same; Same; To maintain an action for injuries, plaintiff must establish that such injuries resulted from a breach of
duty which the defendant owed to the plaintiff.—In order that a plaintiff may maintain an action for the injuries of which he
complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff—a
concurrence of injury to the plaintiff and legal responsibility by the person causing it. The underlying basis for the award of
tort damages is the premise that an individual was injured in contemplation of law. Thus, there must first be the breach of
some duty and the imposition of liability for that breach before damages may be awarded; it is not sufficient to state that
there should be tort liability merely because the plaintiff suffered some pain and suffering.

Same; Same; Same; The law affords no remedy for damages resulting from an act which does not amount to a legal
injury or wrong.—Many accidents occur and many injuries are inflicted by acts or omissions which cause damage or loss
to another but which violate no legal duty to such other person, and consequently create no cause of action in his favor. In
such cases, the consequences must be borne by the injured person alone. The law affords no remedy for damages
resulting from an act which does not amount to a legal injury or wrong.

Same; Same; Same; In order that the law will give redress for an act causing damage, that act must not only be hurtful,
but also wrongful.—In other words, in order that the law will give redress for an act causing damage, that act must be not
only hurtful, but wrongful. There must be damnum et injuria. If, as may happen in many cases, a person sustains actual
damage, that is, harm or loss to his person or property, without sustaining any legal injury, that is, an act or omission
which the law does not deem an injury, the damage is regarded as damnum absque injuria.

Civil Law; Article 21, Civil Code; Principle of Abuse of Right; Requisites.—In the case at bar, although there was damage,
there was no legal injury. Contrary to the claim of private respondents, petitioners could not be said to have violated the
principle of abuse of right. In order that the principle of abuse of right provided in Article 21 of the Civil Code can be
applied, it is essential that the following requisites concur: (1) The defendant should have acted in a manner that is
contrary to morals, good customs or public policy; (2) The acts should be willful; and (3) There was damage or injur y to
the plaintiff.

Same; Same; Same; There is no cause of action for lawful acts done by one person on his property although such acts
incidentally caused damage or loss to another.—A person has a right to the natural use and enjoyment of his own
property, according to his pleasure, for all the purposes to which such property is usually applied. As a general rule,
therefore, there is no cause of action for acts done by one person upon his own property in a lawful and proper manner,
although such acts incidentally cause damage or an unavoidable loss to another, as such damage or loss is damnum
absque injuria. When the owner of property makes use thereof in the general and ordinary manner in which the property is
used, such as fencing or enclosing the same as in this case, nobody can complain of having been injured, because the
inconvenience arising from said use can be considered as a mere consequence of community life.
Same; Same; Same; One may use any lawful means to accomplish a lawful purpose and though the means adopted may
cause damage to another, no cause of action arises in the latter‟s favor.—The proper exercise of a lawful right cannot
constitute a legal wrong for which an action will lie, although the act may result in damage to another, for no legal right has
been invaded. One may use any lawful means to accomplish a lawful purpose and though the means adopted may cause
damage to another, no cause of action arises in the latter‟s favor. Any injury or damage occasioned thereby is damnum
absque injuria. The courts can give no redress for hardship to an individual resulting from action reasonably calculated to
achieve a lawful end by lawful means.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Maria T.M. Leviste for petitioners.

Roberto B. Arca for private respondents.

REGALADO, J.:

This petition for review on certiorari assails the decision of respondent Court of Appeals in CA-G.R. CV No. 29115,
promulgated on November 10, 1993, which affirmed with modification the decision of the trial court, as well as its
resolution dated July 8, 1994 denying petitioner‟s motion for reconsideration.1

On August 26, 1982, Civil Case No. 47466 for the grant of an easement of right of way was filed by Pacifico Mabasa
against Cristino Custodio, Brigida R. Custodio, Rosalina R. Morato, Lito Santos and Maria Cristina C. Santos before the
Regional Trial Court of Pasig and assigned to Branch 22 thereof.2

The generative facts of the case, as synthesized by the trial court and adopted by the Court of Appeals, are as follows:

Perusing the record, this Court finds that the original plaintiff Pacifico Mabasa died during the pendency of this case and
was substituted by Ofelia Mabasa, his surviving spouse [and children].

The plaintiff owns a parcel of land with a two-door apartment erected thereon situated at Interior P. Burgos St., Palingon,
Tipas, Tagig, Metro Manila. The plaintiff was able to acquire said property through a contract of sale with spouses
Mamerto Rayos and Teodora Quintero as vendors last September 1981. Said property may be described to be
surrounded by other immovables pertaining to defendants herein. Taking P. Burgos Street as the point of reference, on
the left side, going to plaintiff‟s property, the row of houses will be as follows: That of defendants Cristino and Brigido
Custodio, then that of Lito and Maria Cristina Santos and then that of Ofelia Mabasa. On the right side (is) that of
defendant Rosalina Morato and then a Septic Tank (Exhibit “D”). As an access to P. Burgos Street from plaintiff‟s
property, there are two possible passageways. The first passageway is approximately one meter wide and is about 20
meters distan(t) from Mabasa‟s residence to P. Burgos Street. Such path is passing in between the previously mentioned
row of houses. The second passageway is about 3 meters in width and length from plaintiff Mabasa‟s residence to P.
Burgos Street; it is about 26 meters. In passing thru said passageway, a less than a meter wide path through the septic
tank and with 5-6 meters in length, has to be traversed.

When said property was purchased by Mabasa, there were tenants occupying the premises and who were acknowledged
by plaintiff Mabasa as tenants. However, sometime in February, 1982, one of said tenants vacated the apartment and
when plaintiff Mabasa went to see the premises, he saw that there had been built an adobe fence in the first passageway
making it narrower in width. Said adobe fence was first constructed by defendants Santoses along their property which is
also along the first passageway. Defendant Morato constructed her adobe fence and even extended said fence in such a
way that the entire passageway was enclosed (Exhibit “1-Santoses and Custodios, Exh. “D” for plaintiff, Exhs. “1-C,” “1-D”
and “1-E”) And it was then that the remaining tenants of said apartment vacated the area. Defendant Ma. Cristina Santos
testified that she constructed said fence because there was an incident when her daughter was dragged by a bicycle
pedalled by a son of one of the tenants in said apartment along the first passageway. She also mentioned some other
inconveniences of having (at) the front of her house a pathway such as when some of the tenants were drunk and would
bang their doors and windows. Some of their footwear were even lost. x x x.3 (Italics in original text; corrections in
parentheses supplied)

On February 27, 1990, a decision was rendered by the trial court, with this dispositive part:

Accordingly, judgment is hereby rendered as follows:

1) Ordering defendants Custodios and Santoses to give plaintiff permanent access—ingress and egress, to the public
street;
2) Ordering the plaintiff to pay defendants Custodios and Santoses the sum of Eight Thousand Pesos (P8,000) as
indemnity for the permanent use of the passageway.

The parties to shoulder their respective litigation expenses.4

Not satisfied therewith, therein plaintiff represented by his heirs, herein private respondents, went to the Court of Appeals
raising the sole issue of whether or not the lower court erred in not awarding damages in their favor. On November 10,
1993, as earlier stated, the Court of Appeals rendered its decision affirming the judgment of the trial court with
modification, the decretal portion of which disposes as follows:

WHEREFORE, the appealed decision of the lower court is hereby AFFIRMED WITH MODIFICATION only insofar as the
herein grant of damages to plaintiffs-appellants. The Court hereby orders defendants-appellees to pay plaintiffs-appellants
the sum of Sixty Five Thousand (P65,000) Pesos as Actual Damages, Thirty Thousand (P30,000) Pesos as Moral
Damages, and Ten Thousand (P10,000) Pesos as Exemplary Damages. The rest of the appealed decision is affirmed to
all respects.5

On July 8, 1994, the Court of Appeals denied petitioner‟s motion for reconsideration.6 Petitioners then took the present
recourse to us, raising two issues, namely, whether or not the grant of right of way to herein private respondents is proper,
and whether or not the award of damages is in order.

With respect to the first issue, herein petitioners are already barred from raising the same. Petitioners did not appeal from
the decision of the court a quo granting private respondents the right of way, hence they are presumed to be satisfied with
the adjudication therein. With the finality of the judgment of the trial court as to petitioners, the issue of propriety of the
grant of right of way has already been laid to rest.

For failure to appeal the decision of the trial court to the Court of Appeals, petitioners cannot obtain any affirmative relief
other than those granted in the decision of the trial court. That decision of the court below has become final as against
them and can no longer be reviewed, much less reversed, by this Court. The rule in this jurisdiction is that whenever an
appeal is taken in a civil case, an appellee who has not himself appealed may not obtain from the appellate court any
affirmative relief other than what was granted in the decision of the lower court. The appellee can only advance any
argument that he may deem necessary to defeat the appellant‟s claim or to uphold the decision that is being disputed, and
he can assign errors in his brief if such is required to strengthen the views expressed by the court a quo. These assigned
errors, in turn, may be considered by the appellate court solely to maintain the appealed decision on other grounds, but
not for the purpose of reversing or modifying the judgment in the appellee‟s favor and giving him other affirmative reliefs.7

However, with respect to the second issue, we agree with petitioners that the Court of Appeals erred in awarding
damages in favor of private respondents. The award of damages has no substantial legal basis. A reading of the decision
of the Court of Appeals will show that the award of damages was based solely on the fact that the original plaintiff,
Pacifico Mabasa, incurred losses in the form of unrealized rentals when the tenants vacated the leased premises by
reason of the closure of the passageway.

However, the mere fact that the plaintiff suffered losses does not give rise to a right to recover damages. To warrant the
recovery of damages, there must be both a right of action for a legal wrong inflicted by the defendant, and damage
resulting to the plaintiff therefrom. Wrong without damage, or damage without wrong, does not constitute a cause of
action, since damages are merely part of the remedy allowed for the injury caused by a breach or wrong.8

There is a material distinction between damages and injury. Injury is the illegal invasion of a legal right; damage is the
loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the
damage suffered. Thus, there can be damage without injury in those instances in which the loss or harm was not the
result of a violation of a legal duty. These situations are often called damnum absque injuria.9

In order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries
resulted from a breach of duty which the defendant owed to the plaintiff—a concurrence of injury to the plaintiff and legal
responsibility by the person causing it.10 The underlying basis for the award of tort damages is the premise that an
individual was injured in contemplation of law. Thus, there must first be the breach of some duty and the imposition of
liability for that breach before damages may be awarded; it is not sufficient to state that there should be tort liability merely
because the plaintiff suffered some pain and suffering.11

Many accidents occur and many injuries are inflicted by acts or omissions which cause damage or loss to another but
which violate no legal duty to such other person, and consequently create no cause of action in his favor. In such cases,
the consequences must be borne by the injured person alone. The law affords no remedy for damages resulting from an
act which does not amount to a legal injury or wrong.12

In other words, in order that the law will give redress for an act causing damage, that act must be not only hurtful, but
wrongful. There must be damnum et injuria.13 If, as may happen in many cases, a person sustains actual damage, that
is, harm or loss to his person or property, without sustaining any legal injury, that is, an act or omission which the law does
not deem an injury, the damage is regarded as damnum absque injuria.14
In the case at bar, although there was damage, there was no legal injury. Contrary to the claim of private respondents,
petitioners could not be said to have violated the principle of abuse of right. In order that the principle of abuse of right
provided in Article 21 of the Civil Code can be applied, it is essential that the following requisites concur: (1) The
defendant should have acted in a manner that is contrary to morals, good customs or public policy; (2) The acts should be
willful; and (3) There was damage or injury to the plaintiff.15

The act of petitioners in constructing a fence within their lot is a valid exercise of their right as owners, hence not contrary
to morals, good customs or public policy. The law recognizes in the owner the right to enjoy and dispose of a thing,
without other limitations than those established by law.16 It is within the right of petitioners, as owners, to enclose and
fence their property. Article 430 of the Civil Code provides that “(e)very owner may enclose or fence his land or tenements
by means of walls, ditches, live or dead hedges, or by any other means without detriment to servitudes constituted
thereon.”

At the time of the construction of the fence, the lot was not subject to any servitudes. There was no easement of way
existing in favor of private respondents, either by law or by contract. The fact that private respondents had no existing
right over the said passageway is confirmed by the very decision of the trial court granting a compulsory right of way in
their favor after payment of just compensation. It was only that decision which gave private respondents the right to use
the said passageway after payment of the compensation and imposed a corresponding duty on petitioners not to interfere
in the exercise of said right.

Hence, prior to said decision, petitioners had an absolute right over their property and their act of fencing and enclosing
the same was an act which they may lawfully perform in the employment and exercise of said right. To repeat, whatever
injury or damage may have been sustained by private respondents by reason of the rightful use of the said land by
petitioners is damnum absque injuria.17

A person has a right to the natural use and enjoyment of his own property, according to his pleasure, for all the purposes
to which such property is usually applied. As a general rule, therefore, there is no cause of action for acts done by one
person upon his own property in a lawful and proper manner, although such acts incidentally cause damage or an
unavoidable loss to another, as such damage or loss is damnum absque injuria.18 When the owner of property makes
use thereof in the general and ordinary manner in which the property is used, such as fencing or enclosing the same as in
this case, nobody can complain of having been injured, because the inconvenience arising from said use can be
considered as a mere consequence of community life.19

The proper exercise of a lawful right cannot constitute a legal wrong for which an action will lie,20 although the act may
result in damage to another, for no legal right has been invaded.21 One may use any lawful means to accomplish a lawful
purpose and though the means adopted may cause damage to another, no cause of action arises in the latter‟s favor. Any
injury or damage occasioned thereby is damnum absque injuria. The courts can give no redress for hardship to an
individual resulting from action reasonably calculated to achieve a lawful end by lawful means.22

WHEREFORE, under the compulsion of the foregoing premises, the appealed decision of respondent Court of Appeals is
hereby REVERSED and SET ASIDE and the judgment of the trial court is correspondingly REINSTATED.

SO ORDERED.

Romero, Puno and Mendoza, JJ., concur.

Judgment reversed and set aside, that of the court a quo reinstated.

Notes.—There is no hard and fast rule which can be applied to determine whether or not the principle of abuse of rights
may be invoked. (Albenson Enterprises Corp. vs. Court of Appeals, 217 SCRA 16 [1993])

In the absence of a wrongful act or omission or of fraud or bad faith, moral damages cannot be awarded and that the
adverse result of an action does not per se make the action wrongful and subject the actor to the payment of damages for
the law could not have meant to impose a penalty on the right to litigate. (Ibid.)

——o0o—— Custodio vs. Court of Appeals, 253 SCRA 483, G.R. No. 116100 February 9, 1996
SIMONA MANZANARES, plaintiff and appellee, vs. RAFAEL MORETA, defendant and appellant.

1.DAMAGES; AUTOMOBILES; LIABILITY FOR FAULT OR NEGLIGENCE IN OPERATJON.—Held: It being shown by

the records that the death of the child Salvador Bona, of from 8 to 9 years of age, was the result of his having been run
over by an automobile, through the fault and negligence of the defendant who managed and directed said vehicle, it
follows that said defendant is. liable for the great damage so caused, and should indemnify the plaintiff, mother of the
deceased, who has thus prematurely lost a child, and has been deprived of the aid and assistance, which, it is presumed,
she would be entitled to in her old age, if said child should have lived to be a man. (Art. 1902 of the Civil Code.)

Per MALCOLM and FISHER JJ., concurring:

2.DAMAGES; COMPARATIVE JURISPRUDENCE.—The Civil law jurisprudence as existing in Spain, France, Porto Rico
and Louisiana, and the common law jurisprudence, on the subject of damages, investigated, compared, and discussed.

3.ID.; DEATH; RIGHT OF ACTION.—Both because of the civil origin of the applicable law in the Philippines, because not
fettered by the harsh common law rule on the subject, because it is the modern and more equitable principle, and
because reason and natural justice are eloquent advocates, an action for damages can be maintained in this jurisdiction.

4.ID.; ID.; ID.; AMOUNT OF RECOVERY; PROOF.—Of whatever nature the damages be, and from whatever cause it
may proceed, the person who has done the injury ought to repair it by an indemnity proportionate to his fault and to the
loss caused thereby. (1 Cushing, Domat's Civil Law, p. 741.)

5.ID.; ID.; ID.; ID.; ID.—In order to give rise to the obligation imposed' by article 1902 of the Civil Code, derived from
Partida 7, Title 15 Law 3, the coincidence of two distinct requisites is necessary, viz: (1) That there exist an injury or
damage not originating in acts or omissions of the prejudiced person himself, and its existence be duly proven by the
person demanding mdemnification therefor; (2) that said injury or damage be caused by the fault or negligence of a
person other than the sufferer. (12 Manresa, Comentarios al Codigo Civil, p. 604.)

6.ID.; ID.; ID.; ID.; ID.—Those seeking to recoup damages must ordinarily establish their pecuniary loss by satisfactory
proof. But m certain cases the law presumes a loss because of the impossibility of exact proof and computation in respect
to the amount of the loss sustained. In other words, the loss can be proved either by evidence or by presumption. For
instance, where the relation of husband and wife or parent and child exist, provided the child is shown to be a minor, the
law presumes a pecuniary loss Som the fact of death and it is not T.ecessary to submit proof as to such loss.

7.ID.; ID.; ID.; ID.; ID.—The discretion of a jury, where there is a jury; or of the trial court, where the court possesses such
faculty, in fixing the amount of damages, will not be interfered with by the appellate court unless this discretion has been
palpably abused.

8.ID. ; ID. ; ID. ; ID. ; ID.—Many American statutes have arbitrarily limited the amounts that could be recovered to $5,000
or $10,000. In Louisiana, $2,500, $3,000 $4,000 and $6,000 were allowed in the respective cases for the death of a child.
In Porto Rico, $1,000 and $1,500 has been allowed for such a loss. In the Philippines, the rule has been in criminal cases
to allow as a matter of course P1,000 as indemnity to the heirs of the deceased.

9.ID. ; ID. ; ID. ; ID. ; ID.—In certain cases, there is no doubt but what the damages could be greatly enhanced by showing
the personal characteristics of the deceased.

10.ID. ; ID. ; ID. ; ID. ; ID.—A male child, 8 or 9 years of age, was killed through the negligence of the defendant in driving
his automobile. The mother of the dead boy is a widow, a poor washerwoman. She brings action against the defendant to
recover damages for her loss in the amount of P5,000. Without there having been tendered any special proof of the
amount of damage suffered, the trial court found the defendant responsible and condemned him to pay the plaintiff the
sum of P1,000. Held: (1) That the plaintiff, having shown that the deceased was her son, 8 or 9 years of age at the time of
death, it was neither necessary nor possible to prove loss of services or support, or to prove special damage; (2) that the
amount in the nature of an indemnity allowed by the trial court is neither excessive nor immoderately inadequate, and
should stand.

APPEAL from a judgment of the Court of First Instance of Manila. Del Rosario, J.

The facts are stated in the opinion of the court.

Sanz & Luzuriaga for appellant.
Jose C. Zulueta for appellee.

TORRES, J.:

In this case which is brought for the recovery of the damages resulting from the death of the child Salvador Bona, of from
8 to 9 years of age, who had been run over by an automobile driven and managed by the defendant on the morning of
March 5, 1916, a judgment was rendered on August 3, 1916, whereby the said defendant was sentenced to pay the sum
of P1,000 as indemnity to the plaintiff, the mother of the deceased child, and to pay the costs. From this judgment, an
appeal was taken by the defendant after his motion for a new trial had been overruled, and the case is now before this
court by bill of exceptions.
The statement of facts is at once admitted, and we find no reason for disturbing the findings made by the trial judge in his
judgment appealed from, wherein the defendant was found liable for the accident which occurred to the said child on
Solana Street on the morning of said day, and consequently, the defendant, as the one who had caused the accident, is
bound to indemnify the mother of the deceased child in the amount of P1,000, which was deemed by the trial judge to be
the value of the damages occasioned to the mother f or the loss and death of a member of her family.

To the reasons given by the trial judge as grounds for his decision, we deem pertinent to add the following:

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 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 precisely at the entrance of Solana Street, this
accident Solana 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 Eeal 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.

In view of the foregoing considerations as well as those contained in the judgment of the trial court, which, we believe to
be in accordance with law and the evidence of record, we believe that the errors assigned by the appellant are thereby
refuted and. that therefore the judgment appealed from, should be, as it hereby is, affirmed, with the costs against the
appellant. So ordered.

Arellano, C. J., Johnson, Araullo, and Street, JJ., concur.

MALCOLM, J., with whom concurs FISHER, J., concurring:

The facts are few and simple. A male child, 8 or 9 years of age, was killed through the negligence of the defendant in
driving his automobile. The mother of the dead boy is a widow, a poor washerwoman. She brings action against the def
endant to recover damages f or her loss in the amount of P5,000. Without there having been tendered any special proof of
the amount of damages suffered, the trial court found the defendant responsible and condemned him to pay to plaintiff the
sum of ¥=1,000. The decision of this Court handed down by Justice Torres, affirms the judgment of the Court of First
Instance. If necessary, the decision of the Supreme Court of Louisiana in the case of Burvant vs. Wolfe ([1910], 126 La.,
787), could be cited as corroborative authority.

The principles of law which measure the pecuniary responsibility of the defendant, not discussed in the main opinion, are
more difficult. Since the time of -Grotius and even before, lawyers and publicists have speculated as to whether the loss of
a human life should be compensated in money, and if so, as to the amount which should be allowed.

At Common Law no civil action lies for damages caused by the death of a human being by the wrongf ul or negligent act
of another. The maxim is actio personalis moritur cum persona. (Mobile Life Ins. Co. vs. Brame [1878], 95 U. S., 754;
Baker vs. Bolton, 1 Campb., 493.) Two different modes of reasoning have arrived at this result. The first and older theory
was the merger of the private right in the public wrong. (The E. B. Ward, Jr. [1883], 16 Fed., 255.) The second and
younger theory was that the death of a human being cannot be complained of as a civil injury. Under the latter doctrine, it
has been repeatedly held that a civil action by a parent for the death of a minor child cannot be maintained. (Kramer vs.
San Francisco Market Street R. Co. [1864], 25 Cal., 434; Jackson vs. Pittsburg, C. C. & St. L. R Co [1894], 140 Ind., 241;
Wilson vs. Bumstead [1881], 12 Neb., 1; Sullivan vs. Union P. R. Co. [1880], 2 Fed., 447; Osborn vs. Gillett [1873], L. R. 8
Exch., 88; Weems vs Mathieson, 4 Macq. H. L. Cas. 215; Gulf, C. & S. F. Ry. Co. vs. Beall [1897], 91 Tex., 310. See 41
L. R. A., 807, Note.)

By the Civil Law, particularly as existing in Spam, France, Porto Rico, and Louisiana, the true principle is somewhat
beclouded. Thus, in Louisiana, a State favored by French and Spanish antecedents, the exact question of whether an
action f or damages caused by the homicide of a human being can be maintained, was presented by able counsel for the
opinion of distinguished jurists. And it was held in a decision, later expressly affirmed, that, under the Civil Law, the action
could not be maintained by the surviving wife or children. (Hubgh vs. New Orleans & Carrollton R R Co [1851], 6 La. Ann.,
495; Hermann vs. New Orleans & Carrollton R. R. Co. [1856], 11 La. AnnL 5; 24 Pothier Pandectes, p. 279; law 13; 7
Partida, title 15, The same question has arisen in Porto Rico. It has there been held that by the Civil Law in force in Porto
Rico a civil action lies for negligence resulting in death. (Borrero vs. Cia. Anonyma de la Luz Electriea de Ponce [1903], 1
Porto Rico Fed., 144; Diaz vs. San Juan Light & Transit Co. [1911], 17 Porto Rico, 64.) The right to sue for death from
negligence of a def endant, by persons entitled to support by the deceased has not been changed by the new Civil Code
of Porto Rico. (Torres vs. Ponce Railway & Light Co. [1903], 1 Porto Rico Fed., 476.)
In Spain, from which both the Civil Law of Porto Rico and the Philippines were derived, it has been decided that such an
action could be maintained. (Decision of the supreme court of Spain of December 14, 1894.) In France, the highest court
has interpreted the Code Napoleon as sanctioning actions by those damaged by the death of another against persons by
whose fault the death happened. (ChaVoix vs. Enfants Duport [1853], 1 Journal du Palais 614; Rollond's case, 19 Sirey,
269.)

That even in those jurisdictions in which the Common Law has force, the observance of the principle has been resisted, is
disclosed by the action of Hawaii in holding that there can be a recovery for death by wrongful act. (The Schooner Robert
Lewers Co. vs. Kekauoha [1902], 114 Fed., 849.) That the impropriety of the judge-made rule was early disclosed, is
shown by the numerous statutes, beginning with Lord Campbell's Act, which were enacted to cover the deficiency by
permitting of a right of action to recover damages for death caused by wrongful act. Even in Louisiana, a- State partially
governed by the Civil Law, because of a statute, an action will now lie for pecuniary and other damages caused by death.
(McCubbin vs. Hastings [1875], 27 La. Ann., 713.) And finally, that eminent authorities recognize liability in case of death
by negligence is disclosed by the mere mention of such names as Grotius, Puffendor;f, and Domat. For instance, Grotius
in his Rights of War and Peace said:

"Exemplo hæc sint. Homicida injustus, tenetur solvere impensás, si quæ factæ sunt in medicos, e iis quos occisus alere
exofficio solebat, puta parentibus, uxoribus liberis dae tantum, quantum illa spes alimentorum, ratione habita ætatis
leberis mulctam pependissi, quo facilius expiaretur. Michael Ephesius ad quintum Nicomachiorum Aristotilis; Alla kai o
Phoneuthies elabe tropon tina—O gare e gune é oi paides, e oi suggenies tou phoneuthentos elabe tropon tina ekeino
dedotai. Sed et qui occisus est accipit aliquo modo. Quæ enim uxor ejus et liberi et cognati accipiunt, ipse quodammodo
accipit. Loquimur de homicida injusto, id est, qui non habuit jus id faciendi unde mors sequitur. Quare si quis jus haburit
sed in caritatem peccavirit ut qui fugere noluit, non tenebitur.

"Vitæ autem in libero homine æstimotio non fit, secus in servo qui vendi potuit." [11 La. Ann., 5.]

"The following may be for example: Any man slaying another, unjustly, is bound to discharge the expenses, if any are
contracted, for physicians, and to give to those whom the slain was in duty accustomed to maintain—such as parents,
wives, children—as much as that hope of maintenance—regard being had to the age of the deceased—was wort: thus,
Hercules is said to have made reparation (paid a fine) to the children of Iphitus, slain by him, in order that expiation might
more easily be made.

"Michael, the Ephesian, says upon the 5th of the Nicomachii of Aritstotle: 'but also the person slain receives, in some sort,
for what the wife or children or relations of the speaking of an unjust manslayer: that is, one who had not the right of doing
that from whence death follows.

"Wherefore, if any one may have had the right, but has sinned against charity, as when one (being assaulted) has been
unwilling to flee, he shall not be bound. But of life, in case of a free man, no valuation is made, otherwise, in case of a
slave who can be sold."

Both because of the civil origin of the applicable law in the Philippines, because we are not fettered by the harsh common
law rule on the subject, because it is the modern and more equitable principle, and because reason and natural justice are
eloquent advocates, we hold that an action for damages can be maintained in this jurisdiction for the death of a person by
wrongful act. It can be admitted, since objection has not been made, that the primary right of action is in the parent.

The second phase of our enquiry, pertaining to the amount of compensation for the loss of a human life, must now be
settled.

"Damage" has been defined by Escriche as "the detriment, injury, or loss which are occasioned by reason of fault of
another in the property or person." (Escriche, Diccionario Razonado de Legislacion y Jurisprudencia, vol. 2, p. 597.) Of
whatsoever nature the damage be, and from whatsoever cause it may proceed, the person who has done the injury ought
to repair it by an indemnity proportionate to his fault and to the loss caused thereby. (1 Cushing, Domat's Civil Law, p.
741.) Damnum (daño or a loss) must be shown to sustain an action for damages.

Philippine law as found in the well known article 1902 of the Civil Code, derived from Partida VII, Title V, is to this effect. In
order to give rise to the obligation imposed by this article of the Civil Code, the coincidence of two distinct requisites is
necessary, viz: (1) That there exist an injury or damage not originating in acts or omissions of the prejudiced person
himself, and its existence be duly proven by the person demanding indemnification therefore; (2) that said injury or
damage be caused by the fault or negligence of a person other than the sufferer. (12 Manresa, Comentarios al Codigo
Civil, p. 604.)

Those seeking to recoup damages must ordinarily establish their pecuniary loss by satisfactory proof, (Decisions of the
supreme court of Spain, December 14, 1894; November 13 and 26, 1895; December 7, 1896; September 30, 1898, and
December 16, 1903; Sanz vs. Lavin [1906], 6 Phil., 299; To Guioc-Co vs. Del Rosario [1907], 8 Phil., 546; Diaz vs. San
Juan Light & Transit Co. [1911], 17 Porto Rico, 64.) The customary elements of damages must be shown. But in certain
cases, the law presumes a loss because of the impossibility of exact proof and computation in respect to the amount of
the loss sustained. In other words, the loss can be proved either by evidence or by presumption. For instance, where the
relation of husband and wife or parent and child exist, provided the child is shown to be a minor, the law presumes a
pecuniary loss to the survivor from the fact of death, and it is not necessary to submit proof as to such loss. (Chicago vs.
Scholten [1874], 75 111., 468; Rockford, etc. R. Co. vs. Delaney [1876], 82 111., 198; Chicago vs. Hesing [1876], 83 111.,
204; Delaware, etc. R. Co. vs. Jones [1889], 128 Pa. St., 308; Atrops vs. Costello [1894], 8 Wash., 149; Mason vs.
Southern R. Co. [1900], 58 S. C., 70; McKechney vs. Redmond, 94 111. App., 470; Joliet vs. Weston, 22 111. App., 225;
Kelly vs. Twenty-third St. R. Co., 14 N. Y. St., 699; Dunhene vs. Ohio L. Ins. etc. Co., 1 Disn., 257; Diaz vs. San Juan
Light & Transit Co., supra.)

In one of the cited cases, (City of Chicago vs. Hesing) on an action to recover damages resulting to the parents, laboring
people, by the death of their child four years old through negligence on the part of the City of Chicago, the court said:

"Only pecuniary damages can be recovered in such actions as this. Nothing can be given as solace or for bereavement
suffered. Under instructions declaring the true rule for estimating the damages, the jury found for plaintiff, in the sum of
$800, but one of the errors assigned is, the amount found is excessive. As a matter of law, we cannot so declare, and as
a matter of fact, how can we know the amount is in excess of the pecuniary damages sustained? When proof is made of
the age and relationship of the deceased to next of kin, the jury may estimate the pecuniary damages from the facts
proven, in connection with their own knowledge and experiences in relation to matters of common observation. It is not
indispensable there should be proof of actual services of pecuniary value rendered to next of kin, nor that any witness
should express an opinion as to the value of services that may have been or might be rendered. Where the deceased was
a minor, and left a father who would have been entitled to his services had he lived, the law implies a pecuniary loss, for
which compensation, under the statute, may be given."

The discretion of a jury, where there is a jury, or of the trial court, where the court possesses such faculty, in fixing the
amount of damages, will not be interfered with by the appellate court unless this discretion has been palpably abused.
Since in the very nature of things, the value of a human life cannot be exactly estimated in money, and since the elements
which go to make up any value are personal to each case, much must depend on the good sense and sound judgment of
the jury or judge. The rule has been applied to the death of minor children where there was nothing to show passion,
prejudice, or ignorance on the part of the jury. (See 13 Cyc., 375-377.)

The right of action for death and the presumption in favor of compensation being admitted, the difficulty of estimating in
money the worth of a life should not keep a court from judicially compensating the injured party as nearly as may be
possible for the wrong. True, man is incapable of measuring exactly in the delicate scales of justice the value of a human
life. True, the feelings of a mother on seeing her little son torn and mangled—expiring—dead—could never be assuaged
with money. True, all the treasure in nature's vaults could not begin to compensate a parent for the loss of a beloved child.
Nevertheless, within the bounds of human powers, the negligent should make reparation for the loss.

Attempts at approximation in money for death have been made. Many American statutes have arbitrarily limited the
amounts that could be recovered to five thousand dollars or ten thousand dollars. The federal Courts have intimated that
these statutory limits should only be taken as a guide to the permissible amount of damages. (Cheatham vs. Red River
Line [1893], 56 Fed., 248; The Oceanic [1894], 61 Fed., 338; Farmers' L. & T. Co. vs. Toledo A. A. & N. M. Ry. Co. [1895],
67 Fed., 73.) In Louisiana, $2,500, $3,000, $4,000, and $6,000 were allowed in the respective cases for the death of a
child. In Porto Rico, $1,000 and $1,500 has been allowed for such a loss. In the Philippines, the rule has been in criminal
cases to allow as a matter of course ¥=1,000 as indemnity to the heirs of the deceased.

The foregoing is believed to be a fair statement of the pertinent general principles. Before closing, notice should be taken
of the leading decisions of the supreme court of Spain and the supreme court of Porto Rico. The first is the decision of the
supreme court of Spain of December 14, 1894.

Eulogio Santa Maria died in Madrid in 1891, in consequence of a fall from the wall of the racket known as "Jai-Alai," which
he was climbing for the purpose of placing the customary flags to announce the opening of the game. The facts were
investigated through criminal proceedings which were discontinued, and then the widow of the deceased, in her own
behalf and on behalf of her inf ant daughter, Teodora, instituted a civil action in the proper court, alleging that "the cause
of the fatal accident resided in the fault and omission of the owners of the racket, because, as they knew and saw, neither
the place for the raising of the flags nor the road that had to be gone over to reach it were in a condition to insure safety,"
that at his death her husband had left two children, one named Anastasio, of 14 years, had by his first marriage, and
another named Teodora, of 3 years had by his second marriage with the plaintiff; that the damages caused and for which
the defendants should be held responsible were of a twofold character—that is, one having reference to affection and the
other -to the loss of the modest pay which, capitalized at 5 per cent and added to the sum demandable for the first
mentioned consideration, amounted to 21,425 pesetas. The defendants alleged that the death of the plaintiff's husband
could not be ascribed to any fault, omission, or negligence on their part, etc., and prayed that the complaint be dismissed.
After hearing the case the court rendered judgment condemning the defendants to pay the sum of 5,000 pesetas to the
heirs of the deceased as indemnification for the latter's death. An appeal from said judgment having been taken by the
plaintiff, the defendants joined in said appeal and the "Audiencia territorial," in deciding the case, adjudged the defendants
to pay the plaintiff in her own right and as representative of her daughter, Teodora, 5,000 pesetas, as indemnification for
the death of her husband, affirming in these terms, the judgment appealed from, and reserving to the other child of the
deceased, who was not a party in this case, his right likewise to demand indemnification. The defendants then took an
appeal for annulment of judgment to the supreme court, alleging that various laws had been violated and, among other
particulars, that the judgment did not state the amount at which the court valued the life of Santa Maria, nor was anything
allowed the plaintiffs on the score of affection or for damages, nor was the principle mentioned upon which the court had
acted to fix the sum of 5,000 pesetas.

The supreme court of Spain affirmed the judgment appealed from in its opinion of December 14, 1894, the grounds
whereof are the following:

"As to the ground the court had for concluding, in view of the evidence, that the death of the unfortunate Eulogio Santa
Maria was due to the omission on the part of the appellants, owners, and managers of the racket (ball game) known as
'Jai-Alai,' of such precautions as were called for to forestall the dangers attending the placing and removal of the
streamers, which the deceased had been doing with their knowledge and consent, and for their benefit, we find that said
court has correctly applied articles 1093, 1902, and 1903, and that it has not violated articles 1101, 1103, and 1104 of the
Civil Code, because, according to the firstmentioned article, obligations arising from acts or omissions, in which faults or
negligence, not punished by law, occur, are subject to the provisions of said articles 1902 and 1903, and, according to the
latter, indemnification for the damage done lies whenever the act or omission has been the cause of the damage and all
the diligence of a good father of a family has not been observed, either when the act or omission is personal with the
party, or when it has reference to persons for whom he should be responsible; and because the provisions of articles
1101, 1103, and 1104 are of a general character and applicable to all kinds of obligations and do not come in conflict with
the special provisions of articles 1902 and 1903;

"The indemnification corresponding to the damage caused by a guilty act or omission, not constituting a crime, should be
declared, as are all indemnifications, in every suit, in accordance with the particular damage caused to the claimants, and
as in the judgment this has been done with respect to Juana Alonzo Celada and her daughter, the only plaintiffs, by fixing
the sum due them, said judgment does not violate article 1902 of the code, and much less does it violate article 360 of the
Law of Civil Procedure;

"The amount of the indemnification adjudged is based on the evidence taken and on the facts admitted by both parties in
their pleadings at the trial, wherefore there has been no violation of article 1214, through lack of proof, as alleged."

As has heretofore been intimated, the Civil Law in Porto Rico, derived from the same source as that of the Philippines,
can well be looked to for persuasive authority. Thus, as disclosed by the facts in the decision coming from the pen of
Justice Del Toro, one Diaz brought a suit against the San Juan Light & Transit Co. to recover the sum of $6,000 as
damages. The district court of San Juan rendered judgment declaring that the facts and the law were in favor of the
plaintiff and against the defendant, and decreeing that the former should obtain from the latter the sum of $3,000 as
damages. The supreme court of Porto Rico said the issue was, that inasmuch as plaintiff has failed to produce any
evidence of the amount of damage sustained, judgment should not be rendered in this form. After setting forth the
decision of the supreme court of Spain of December 14, 1894, hereinbefore described, and other authorities, the court
said:

"Applying the foregoing principles and those contained in section 1804 of the Revised Civil Code to the specific case
under consideration, we find that in the complaint it is alleged that the complainant sustained damages which he
estimates at $6,000, and that the immediate and natural cause of said damages was the careless act of one of the
employees of the defendant, who was in its service and while in the discharge of his duties.

"The evidence taken does not show that the complainant failed to earn, as a result of the injuries received, a stated sum of
money, or that he had to pay the physician who attended him another stated sum, etc.; but it does show that the
complainant, a man of 51 years of age, who worked as a farmer and hawked about his products, supporting himself and
his family with his labor, while stepping out of one of the electric cars of the defendant, at Sjtop 7½ of the San Juan-Rio
Piedras line, fell to -the ground owing to the carelessness and inattention of the motorman in starting the car before it was
time; that he received a severe blow which rendered him unconscious for some moments, fractured his lower jaw, and
caused abrasions on his legs and other parts of his body; that he remained at the hospital, having his injuries nursed, for
more or less one month, and that, on being examined at the trial—that is, one year and five months after his fall—he
presented on the right side of his face, as a consequence of the fracture, 'a contraction which means a paralysis,' and
could 'speak, but hardly masticate, and only with difficulty could open and close his mouth.' It does not appear from the
evidence that the complainant has been disabled, but it does appear that at the time the evidence was taken he was suff
ering from nervous illness, according to the opinion of Dr. Stahl, one of the experts who testified at the trial.

"Under these circumstances the judge, in accordance with the law and jurisprudence, had to estimate for himself the
damage caused and determine the amount of indemnification which the defendant should pay the complainant, And in so
doing the court did not commit the errors attributed to it by the appellant.

"The question in the present case is not one of punitive or exemplary damages, but of compensation for damages
sustained. In order to allow such compensation it is not necessary that the complainant should prove his loss in terms of
.dollars and cents, it being sufficient, in cases of this nature to prove that the plaintiff, through the fault or negligence of the
defendant and not through his own fault and negligence, had sustained a real damage, consisting of physical. pains, loss
of work, confinement in a hospital, mental suffering, etc.
"The indemnification in this case was fixed by the lower court at $2,000, and although it could perhaps have been
calculated at less, we do not find that it is immoderately inadequate, and this being so we should not alter it." (Diaz vs.
San Juan Light & Transit Co., supra.)

In another case, that of Gonzalez vs. The San Juan Light & Transit Co. ([1911], 17 Porto Rico, 115) recovery for damages
was not permitted. In the latter case, it was said:

"This is an appeal from the first section of the district court of San Juan seeking to reverse a judgment therein rendered on
December 1, 1909, in favor of the defendant. This suit was initiated in the district court of San Juan through a complaint
presented by Ramona Gonzalez Soto, alleging therein that the defendant company, the San Juan Light and Transit Co.,
had negligently caused the death of Juan Cordova Soto, son of the plaintiff, in the ward of Santurce, between stops 21
and 22, on the trolley line of defendant, about December 2, 1904, the father of the deceased not appearing also as a
complainant on account of his death having occurred after that of his son but previous to the filing of the complaint.

"We have stated said first ground alleged for reversal in the form in which it has been expressed by counsel for the
defendant; but possibly it might also have been set forth more clearly as follows: 'Even supposing that the plaintiff had
shown that the death of her son had been caused through the negligence of the defendant company, could damages be
awarded her without showing by proof their existence and the amount thereof? ?' "

"Our Civil Code now in force, in section 1803, reads as f ollows:

" '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.'

"So that the claim of the plaintiff herein is sustained by this precept of the law which establishes her right to be indemnified
by the defendant for the damage caused her on account of the death of her son, if said death was brought about by any
act or omission of said company, through its fault or negligence.

"This is our substantive law in the matter of damages and it is in accordance with its provisions, as interpreted by the
ruling jurisprudence, that courts should decide questions submitted to them for decision, and therefore the plaintiff is
entitled, in cases where there may exist fault or negligence on the part of the defendant company, to recover from the
defendant company the damages that may have been actually caused to her, whatever they may be."

* * * * * * *

"As may be seen, this jurisprudence (of Spain) is in accordance with the legal precept of the code that only those
damages actually caused may be awarded, and, therefore, to enable the court to decide what damages have been
caused, it is necessary to prove the real existence of the damages and the corresponding facts from which the court can
deduce the amount thereof.

"Of course, the plaintiff makes a claim only for herself for pecuniary loss sustained by her on account of the death of her
son, and the boy himself does not make any claim because he did not live to do so; hence the mother would never have
been entitled to any other damages than those arising out of the loss of the services of her son, and never to those
damages which he himself might have been entitled to claim had he not died, or arising from the injuries that he himself
might have suffered on account of the accident. The damages which would give the plaintiff in this case a right to recovery
against the defendant are only the loss of support, or contributions thereto, which the son was accustomed to make to his
mother from his earnings and of which she may have been deprived by his death. But does the evidence introduced by
the plaintiff support her claim to recover such damages? We are of the opinion that it does not, because she has not
proven that her son was really earning the amount alleged in the complaint, nor any other sum whatever, nor how much
money he was earning by his work either in Arecibo or in San Juan during the days immediately precediiig his death or at
any time. And we are of the opinion that this is a necessary requisite, because, as the Civil Code declares that recovery
may be had for the damage caused, the damages accruing to the plaintiff must be shown so that the trial judge may have
data on which to base his decision.

"In this action no evidence whatever has been produced in this respect. The only fact proven in regard to this point is that
Juan Cordova Soto was killed by a collision with the trolley car; that he was earning something when he was previously in
Arecibo. It is not shown what occupation he had, nor how much money he earned while he was there nor while he was in
San Juan, nor is it shown that his mother derived any benefit from his wages; and from this evidence the court cannot
consider as proven the amount of the damages, nor even their existence. It has not been shown that the death of her son
caused any material or pecuniary damages to his mother, the plaintiff herein, nor the amount thereof.

"Therefore, an essential requisite for a judgment against the defendant company is lacking, and even supposing that she
had an action for damages through negligence of the company in the death of the boy, we could not find a judgment
against the defendant company, for lack of evidence in regard to the existence of the pecuniary damages sustained and
facts from which to infer the amount thereof. Therefore, the defendant's motion for a judgment in its favor on this first
ground was properly sustained."
As will be readily perceived, having dug out the applicable authorities, and having set them before us, our task still is far
from complete. On the one hand, the obvious conclusion would be that, inasmuch as plaintiff has failed to prove her
pecuniary IQSS, she cannot recover, or, for the same reason, to return the case to the lower court for further evidence.
This is the obvious way. To one trained in the Common Law, and inculcated with all the doctrines of the American law of
damages, it is the logical way. Is it the just and natural way?

The first reply would be that the civil law authorities are, like the common law cases, against recovery "without proof of
loss. If necessary, however, the three decisions just described, could be differentiated from the present facts. The
decision of the supreme court of Spain, it is to be remembered, involved an action for the death of a man of mature years.
The first decision of the supreme court of Porto Rico recognizes the principle of presumptive recovery. The second
decision of the supreme court of Porto Rico concerned an action for the death of a son of sufficient age to have an
earning capacity. None of these is our case. Here present is the case of a young child, whose death is caused by wrongful
act, leaving a poor mother to be the loser.

To answer in a different way, let us make a comparison. The facts before us, and the facts before the supreme court of
Illinois in analogous cases, are substantially identical. We have proof of the age of the deceased, proof of the name of the
next of kin, and proof that the mother is a laboring woman. Under both the Common Law and the Civil Law, plaintiff's
damage, broadly speaking, is for the loss of the services of the deceased, or for support by the deceased. Plaintiff having
shown that the deceased was her son and that he was 8 or 9 years of age at the time of death, it was neither necessary
nor possible to prove loss of services or support, or to prove special damage as if the object of the loss had been a horse
or other animal. No doubt the damage could be greatly enhanced by showing the personal characteristics of the
deceased. Outside of this, however, the pecuniary loss may be estimated from the facts at hand with reference to the
general knowledge which all possess.

To force the plaintiff to prove her loss exactly would be to ask the impossible—would be in effect to return to the old
common law rule which prohibits a recovery. Physical and gross criteria, as the hewing of wood and carrying of water, are
indeed no standards at all. Even if the case was to be reopened, the plaintiff could with extreme difficulty present any
better evidence than that now before us. As we have the basis of satisfactory facts from which to infer the amount of
damage, as the law presumes a pecuniary loss because of the death, and as the trial judge has made an intelligent
computation, we should rest here, with knowledge that, within the ken of human wisdom, justice has been done.

On a careful consideration of the entire field of the law on the subject of damages, we come to the conclusion that the
amount, in the nature of an indemnity allowed by the trial court, is neither excessive nor immoderately inadequate, and
should stand.

Judgment, therefore, should be affirmed.

Judgment affirmed. Manzanares vs. Moreta., 38 Phil. 821, No. 12306 October 22, 1918
G.R. No. 124354. December 29, 1999.*
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL
RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS, DELOS
SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ, respondents.

Remedial Law; Pleadings and Practice; When a party is represented by counsel, all notices should be sent to the party‟s
lawyer at his given address.—It is elementary that when a party is represented by counsel, all notices should be sent to
the party‟s lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is
no notice at all. In the present case, since a copy of the decision of the appellate court was not sent to the counsel on
record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner.

Same; Evidence; Res Ipsa Loquitur; Doctrine of Res Ipsa Loquitur.—Res ipsa loquitur is a Latin phrase which literally
means “the thing or the transaction speaks for itself.” The phrase “res ipsa loquitur” is a maxim for the rule that the fact of
the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of
negligence, or make out a plaintiff‟s prima facie case, and present a question of fact for defendant to meet with an
explanation. Where the thing which caused the injury complained of is shown to be under the management of the
defendant or his servants and the accident is such as in ordinary course of things does not 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 or was caused by the defendant‟s want of care.

Same; Same; Same; Same; Res Ipsa Loquitur is applied in conjunction with the doctrine of common knowledge.—The
doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is
charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence,
res ipsa loquitur is applied in conjunction with the doctrine of common knowledge.

Same; Same; Same; Same; Mere invocation and application of the doctrine does not dispense with the requirement of
proof of negligence; Requisites before resort to the doctrine may be allowed.—Much has been said that res ipsa loquitur
is not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of liability.
Instead, it is considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode of proof, or a
mere procedural convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific
proof of negligence. In other words, mere invocation and application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along
with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof. Still, before
resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The accident is of a kind
which ordinarily does not occur in the absence of someone‟s negligence; 2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the
plaintiff responsible is eliminated.

Same; Same; Same; Same; When the doctrine of res ipsa loqui-tur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of negligence.—Although generally, expert
medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has
deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need
for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is
that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical
science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone
familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to
whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to
the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable
by any one may be given by non-expert witnesses.

Same; Same; Same; Same; Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be
cautiously applied depending upon the circumstances of each case.—Despite the fact that the scope of res ipsa loquitur
has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift
the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid
or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of
each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional care were not as such as would ordinarily
have followed if due care had been exercised.
Same; Same; Same; Same; Res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired
result of an operation or treatment was not accomplished.—It must be conceded that the doctrine of res ipsa loquitur can
have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific
treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or
why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished.

Hospitals; Damages; Proximate Cause Defined.—Proximate cause has been defined as that which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would
not have occurred. An injury or damage is proximately caused by an act or a 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. It is the dominant, moving or producing cause.

Same; Same; For the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship
in effect exists between hospitals and their attending and visiting physicians.—Private hospitals, hire, fire and exercise
real control over their attending and visiting “consultant” staff. While “consultants” are not, technically employees, a point
which respondent hospital asserts in denying all responsibility for the patient‟s condition, the control exercised, the hiring,
and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the
exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence
cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians.
This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent
doctors for petitioner‟s condition.

Same; Same; The basis for holding an employer solidarily responsible for the negligence of its employee is found in
Article 2180 of the Civil Code.—The basis for holding an employer solidarily responsible for the negligence of its
employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but
also for those of others based on the former‟s responsibility under a relationship of patria potestas. Such responsibility
ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to
prevent damage. In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown,
the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the
diligence of a good father of a family to prevent damage.

Same; Same; Amount of damages awarded may be a continuing one where the injury is chronic and continuing, as when
the patient is comatose.—In these cases, the amount of damages which should be awarded, if they are to adequately and
correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to
the time of trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of
the case, be made with certainty. In other words, temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such
cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these
damages cover two distinct phases.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Luis C.A. Sillano for petitioners.
Macarius S. Galutera for private respondent De los Santos Medical Center.
Tanjuatco, Sta. Maria, Tanjuatco collaborating counsel for DLSMC.
Antonio H. Abad & Associates for respondent doctors.

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. If a
doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or
incompetence or plain human error, may spell the difference between life and death. In this sense, the doctor plays God
on his patient‟s fate.1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made
liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy.2

Petitioners seek the reversal of the decision3 of the Court of Appeals, dated 29 May 1995, which overturned the decision4
of the Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages arising from
negligence in the performance of their professional duties towards petitioner Erlinda Ramos resulting in her comatose
condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. “A”) robust woman (TSN, October
19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly caused by the presence of a stone
in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to Rogelio E.
Ramos, an executive of Philippine Long Distance Telephone Company, she has three children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought professional advice. She was advised to
undergo an operation for the removal of a stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series
of examinations which included blood and urine tests (Exhs. “A” and “C”) which indicated she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her husband Rogelio
met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in
this case, on June 10, 1985. They agreed that their date at the operating table at the DLSMC (another defendant), would
be on June 17, 1985 at 9:00 A.M. Dr. Hosaka decided that she should undergo a “cholecystectomy” operation after
examining the documents (findings from the Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio
E. Ramos, however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he
will get a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the anesthesiologist‟s fee
and which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990,
p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC, located along E.
Rodriguez Avenue, Quezon City (TSN, October 19, 1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation by the hospital staff.
Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the Capitol Medical Center, was also
there for moral support. She reiterated her previous request for Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by Herminda as they went down from her room to the operating
room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to
administer anesthesia. Although not a member of the hospital staff, Herminda introduced herself as Dean of the College
of Nursing at the Capitol Medical Center who was to provide moral support to the patient, to them. Herminda was allowed
to stay inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in (TSN, January 13,
1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect of a delay in the arrival of Dr.
Hosaka. Herminda then went back to the patient who asked, “Mindy, wala pa ba ang Doctor”? The former replied, “Huwag
kang mag-alaala, darating na iyon” (ibid.).

Thereafter, Herminda went out of the operating room and informed the patient‟s husband, Rogelio, that the doctor was not
yet around (id., p. 13). When she returned to the operating room, the patient told her, “Mindy, inip na inip na ako, ikuha mo
ako ng ibang Doctor.” So, she went out again and told Rogelio about what the patient said (id., p. 15). Thereafter, she
returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was “already dying [and] waiting for the arrival of the doctor” even as he did his
best to find somebody who will allow him to pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-20).
He also thought of the feeling of his wife, who was inside the operating room waiting for the doctor to arrive (ibid.). At
almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive
(id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse
remarked, “Nandiyan na si Dr. Hosaka, dumating na raw.” Upon hearing those words, he went down to the lobby and
waited for the operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard somebody say that “Dr.
Hosaka is already here.” She then saw people inside the operating room “moving, doing this and that, [and] preparing the
patient for the operation” (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she then saw Dr.
Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, “ang hirap maintubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan” (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on
what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw this anesthesiol ogist trying
to intubate the patient. The patient‟s nailbed became bluish and the patient was placed in a trendelenburg position —a
position where the head of the patient is placed in a position lower than her feet which is an indication that there is a
decrease of blood supply to the patient‟s brain (id., pp. 19-20). Immediately thereafter, she went out of the operating room,
and she told Rogelio E. Ramos “that something wrong was x x x happening” (ibid.). Dr. Calderon was then able to
intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed towards the door of
the operating room. He also saw several doctors rushing towards the operating room. When informed by Herminda Cru z
that something wrong was happening, he told her (Herminda) to be back with the patient inside the operating room (TSN,
October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the former that
something went wrong during the intubation. Reacting to what was told to him, Rogelio reminded the doctor that the
condition of his wife would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19,
1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. The doctors
explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985, the patient was
released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25 which is the subject of a
promissory note and affidavit of undertaking executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a comatose condition. She cannot do anything. She cannot move any part of
her body. She cannot see or hear. She is living on mechanical means. She suffered brain damage as a result of the
absence of oxygen in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from
the hospital, she has been staying in their residence, still needing constant medical attention, with her husband Rogelio
incurring a monthly expense ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also
diagnosed to be suffering from “diffuse cerebral parenchymal damage” (Exh. “G”; see also TSN, December 21, 1989, p.
6).5

Thus, on 8 January 1986, petitioners filed a civil case6 for damages with the Regional Trial Court of Quezon City against
herein private respondents alleging negligence in the management and care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda‟s injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the damage sustained by Erlinda was due to
lack of oxygen in her brain caused by the faulty management of her airway by private respondents during the anesthesia
phase. On the other hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage was Erlinda‟s allergic reaction to the anesthetic agent,
Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited provisions of
law and jurisprudence to the case at bar, this Court finds and so holds that defendants are liable to plaintiffs for damages.
The defendants were guilty of, at the very least, negligence in the performance of their duty to plaintiff-patient Erlinda
Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not only intubating
the patient, but also in not repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard
to the fact that the patient was inside the operating room for almost three (3) hours. For after she committed a mistake in
intubating [the] patient, the patient‟s nailbed became bluish and the patient, thereafter, was placed in trendel enburg
position, because of the decrease of blood supply to the patient‟s brain. The evidence further shows that the hapless
patient suffered brain damage because of the absence of oxygen in her (patient‟s) brain for approximately four to five
minutes which, in turn, caused the patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta Gutierrez whom he had
chosen to administer anesthesia on the patient as part of his obligation to provide the patient a „good anesthesiologist,‟
and for arriving for the scheduled operation almost three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the doctors in their
„practice of medicine‟ in the operating room. Moreover, the hospital is liable for failing through its responsible officials, to
cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have acted with due care and prudence
in rendering medical services to plaintiff-patient. For if the patient was properly intubated as claimed by them, the patient
would not have become comatose. And, the fact that another anesthesiologist was called to try to intubate the patient
after her (the patient‟s) nailbed turned bluish, belie their claim. Furthermore, the defendants should have rescheduled the
operation to a later date. This, they should have done, if defendants acted with due care and prudence as the patient‟s
case was an elective, not an emergency case.
xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against the defendants.
Accordingly, the latter are ordered to pay, jointly and severally, the former the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned from November 15, 1985 or
in the total sum of P632,000.00 as of April 15, 1992, subject to its being updated;

2) the sum of P100,000.00 as reasonable attorney‟s fees;

3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000.00 by way of exemplary damages;
and,

4) the costs of the suit.

SO ORDERED.7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a Decision,
dated 29 May 1995, reversing the findings of the trial court. The decretal portion of the decision of the appellate court
reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the complaint below against
the appellants is hereby ordered DISMISSED. The counterclaim of appellant De Los Santos Medical Center is GRANTED
but only insofar as appellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal
interest for justice must be tempered with mercy.

SO ORDERED.8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly
addressed as “Atty. Rogelio Ramos.” No copy of the decision, however, was sent nor received by the Coronel Law Office,
then counsel on record of petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay,
only on 20 June 1995, or four (4) days before the expiration of the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for extension of time to file a motion
for reconsideration. The motion for reconsideration was submitted on 4 July 1995. However, the appellate court denied
the motion for extension of time in its Resolution dated 25 July 1995.9 Meanwhile, petitioners engaged the services of
another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for
reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to the counsel
on record. Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a
motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be extended; precisely,
the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as June 9, 1995. Computation wise, the period to file a Motion
for Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was received by the Court of Appeals
already on July 4, necessarily, the 15-day period already passed. For that alone, the latter should be denied.

Even assuming admissibility of the Motion for Reconsideration, but after considering the Comment/Opposition, the former,
for lack of merit, is hereby DENIED.

SO ORDERED.10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty.
Sillano filed before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The
Court granted the motion for extension of time and gave petitioners additional thirty (30) days after the expiration of the
fifteen-day (15) period counted from the receipt of the resolution of the Court of Appeals within which to submit the
petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within the extended period given by
the Court.

Petitioners assail the decision of the Court Of Appeals on the following grounds:

I. IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA.

CALDERON AND DR. JAMORA;
II. IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;
III. IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.11
Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the petition in
relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In their Comment,12 private
respondents contend that the petition should not be given due course since the motion for reconsideration of the
petitioners on the decision of the Court of Appeals was validly dismissed by the appellate court for having been filed
beyond the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is
attributable to the fact that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the
Coronel Law Office. In fact, a copy of the decision of the appellate court was instead sent to and received by petitioner
Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the appellate court apparently mistook him for the counsel on
record. Thus, no copy of the decision of the appellate court was furnished to the counsel on record. Petitioner, not being a
lawyer and unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal counsel
only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the party‟s lawyer at his given
address. With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present
case, since a copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be
no sufficient notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken against
petitioner. Moreover, since the Court of Appeals already issued a second Resolution, dated 29 March 1996, which
superseded the earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we
believe that the receipt of the former should be considered in determining the timeliness of the filing of the present
petition. Based on this, the petition before us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa loquitur to the
instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means “the thing or the transaction speaks for itself.” The phrase “re s
ipsa loquitur” is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances,
may permit an inference or raise a presumption of negligence, or make out a plaintiff‟s prima facie case, and present a
question of fact for defendant to meet with an explanation.13 Where the thing which caused the injury complained of is
shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of
things does not 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 or was caused by the defendant‟s want of
care.14

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is
charged with negligence.15 It is grounded in the superior logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself.16 Hence,
res ipsa loquitur is applied in conjunction with the doctrine of common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or
constitute an independent or separate ground of liability.17 Instead, it is considered as merely evidentiary or in the nature
of a procedural rule.18 It is regarded as a mode of proof, or a mere procedural convenience since it furnishes a substitute
for, and relieves a plaintiff of, the burden of producing specific proof of negligence.19 In other words, mere invocation and
application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process
of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof.20 Still, before resort to the doctrine may be allowed, the following
requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of someone‟s negligence;

2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.21

In the above requisites, the fundamental element is the “control of the instrumentality” which caused the damage.22 Such
element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a
plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the
essential elements of the doctrine were present in a particular incident.23
Medical malpractice24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when
the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as
the cause of that harm.25 The application of res ipsa loquitur in medical negligence cases presents a question of law
since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given
inference.26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof
of negligence.27 The reason is that the general rule on the necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which
may be testified to by anyone familiar with the facts.28 Ordinarily, only physicians and surgeons of skill and experience
are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and
care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by non-expert witnesses.29 Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without
the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of
care.30 Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res
ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it
occurred.31 When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or
omission complained of and the injury sustained while under the custody and management of the defendant without need
to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there
is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the
body of the patient after an operation,32 injuries sustained on a healthy part of the body which was not under, or in the
area, of treatment,33 removal of the wrong part of the body when another part was intended,34 knocking out a tooth while
a patient‟s jaw was under anesthetic for the removal of his tonsils,35 and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an operation for appendicitis,36 among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically
apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is
not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule
to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would ordinarily have followed if due care had been exercised.37
A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or
surgeon which involves the merits of a diagnosis or of a scientific treatment.38 The physician or surgeon is not required at
his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce
the desired result.39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired
result of an operation or treatment was not accomplished.40 The real question, therefore, is whether or not in the process
of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond
the regular scope of customary professional activity in such operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent cause or causes of the untoward consequence.41 If there was
such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain
the matter, by evidence of exculpation, if he could.42

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage
sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa
loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell,43 where the Kansas Supreme Court in applying the res
ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care, custody and
control of his physician who had complete and exclusive control over him, but the operation was never performed. At the
time of submission he was neurologically sound and physically fit in mind and body, but he suffered irreparable damage
and injury rendering him decerebrate and totally incapacitated. The injury was one which does not ordinarily occur in the
process of a mastoid operation or in the absence of negligence in the administration of an anesthetic, and in the use and
employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia in the absence of negligence. Upon these facts and under these
circumstances a layman would be able to say, as a matter of common knowledge and observation, that the consequences
of professional treatment were not as such as would ordinarily have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was under the influence of anesthetics
and unconscious, and the circumstances are such that the true explanation of event is more accessible to the defendants
than to the plaintiff for they had the exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is stated under the
doctrine of res ipsa loquitur.44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a routine general surgery to be performed on her gall bladder. On
that fateful day she delivered her person over to the care, custody and control of private respondents who exercised
complete and exclusive control over her. At the time of submission, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in mind and body. However, during the administration of anesthesia and
prior to the performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing
surgery, she went out of the operating room already decerebrate and totally incapacitated. Obviously, brain damage,
which Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder operation. In fact, this
kind of situation does not happen in the absence of negligence of someone in the administration of anesthesia and in the
use of endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a consequence
of administering such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents,
who are the physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence
because she was under the influence of anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive control of the physicians, we hold that a practical administration of
justice dictates the application of res ipsa loquitur. Upon these facts and under these circumstances the Court would be
able to say, as a matter of common knowledge and observation, if negligence attended the management and care of the
patient. Moreover, the liability of the physicians and the hospital in this case is not predicated upon an alleged failure to
secure the desired results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no
operation or treatment was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is
applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia
cases. Each case must be viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed therein, the
Court now comes to the issue of whether the Court of Appeals erred in finding that private respondents were not negligent
in the care of Erlinda during the anesthesia phase of the operation and, if in the affirmative, whether the alleged
negligence was the proximate cause of Erlindas comatose condition. Corollary thereto, we shall also determine if the
Court of Appeals erred in relying on the testimonies of the witnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra. Gutierrez, Dra.
Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she
was candid enough to admit that she experienced some difficulty in the endotracheal intubation45 of the patient and thus,
cannot be said to be covering her negligence with falsehood. The appellate court likewise opined that private respondents
were able to show that the brain damage sustained by Erlinda was not caused by the alleged faulty intubation but was
due to the allergic reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified
on by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda
Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the wrongful insertion of the tube
since the latter, being a nurse, was allegedly not knowledgeable in the process of intubation. In so holding, the appellate
court returned a verdict in favor of respondents physicians and hospital and absolved them of any liability towards Er-linda
and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to disprove the
presumption of negligence on their part in the care of Erlinda and their negligence was the proximate cause of her piteous
condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of th e
injury but also in providing the Court the legal nexus upon which liability is based. As will be shown hereinafter, private
respondents‟ own testimonies which are reflected in the transcript of stenographic notes are replete of signposts indicative
of their negligence in the care and management of Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne by the
records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested to by Prof. Herminda
Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner‟s sister-in-law, who was in the operating room
right beside the patient when the tragic event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?

ATTY. ALCERA: She will be incompetent Your Honor.

COURT: Witness may answer if she knows.

A: As I have said, I was with the patient, I was beside the stretcher holding the left hand of the patient and all of a sudden I
heard some remarks coming from Dra. Perfecta Gutierrez herself. She was saying “Ang hirap maintubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan.”

xxx

ATTY. PAJARES:

Q: From whom did you hear those words “lumalaki ang tiyan?

A: From Dra. Perfecta Gutierrez.

xxx

Q. After hearing the phrase “lumalaki ang tiyan,” what did you notice on the person of the patient?

A: I notice (sic) some bluish discoloration on the nailbeds ofthe left hand where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particulartime?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient‟s nailbed became bluish and I saw
thepatient was placed in trendelenburg position.

xxx

Q: Do you know the reason why the patient was placed in that trendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease of blood supply to the brain.46

xxx

The appellate court, however, disbelieved Dean Cruz‟s testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part of nursing
procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and cannot, intubate. Even on
the assumption that she is fully capable of determining whether or not a patient is properly intubated, witness Herminda
Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is no
evidence that she ever auscultated the patient or that she conducted any type of examination to check if the endotracheal
tube was in its proper place, and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz‟s
categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra.
Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases.47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in the
process of intubation, witness Cruz is not competent to testify on whether or not the intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she
can very well testify upon matters on which she is capable of observing such as, the statements and acts of the physician
and surgeon, external appearances, and manifest conditions which are observable by any one.48 This is precisely
allowed under the doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted
rule that expert testimony is not necessary for the proof of negligence in nontechnical matters or those of which an
ordinary person may be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render
expert testimony unnecessary.49 We take judicial notice of the fact that anesthesia procedures have become so common,
that even an ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell if the tube
was properly inserted. This kind of observation, we believe, does not require a medical degree to be acceptable.

At any rate, without doubt, petitioner‟s witness, an experienced clinical nurse whose long experience and scholarship led
to her appointment as Dean of the Capitol Medical Center School of Nursing, was fully capable of determining whether or
not the intubation was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff
nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo
City; and then Dean of the Capitol Medical Center School of Nursing.50 Reviewing witness Cruz‟ statements, we find that
the same were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which
would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she experienced
difficulty in inserting the tube into Erlinda‟s trachea, to wit:

ATTY. LIGSAY:

Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not immediately see the
trachea?

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

Q: When you said “mahirap yata ito, what were you referring to?

A: “Mahirap yata itong i-intubate,” that was the patient.

Q: So, you found some difficulty in inserting the tube?

A: Yes, because of (sic) my first attempt, I did not see right away.51

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered hardship in
the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the
normal anatomy of a person)52 making it harder to locate and, since Erlinda is obese and has a short neck and protruding
teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough assessment of Erlindas airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the observation was
made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the
possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the
anesthesiologist reviews the patient‟s medical records and visits with the patient, traditionally, the day before elective
surgery.53 It includes taking the patient‟s medical history, review of current drug therapy, physical examination and
interpretation of laboratory data.54 The physical examination performed by the anesthesiologist is directed primarily
toward the central nervous system, cardiovascular system, lungs and upper airway.55 A thorough analysis of the patient‟s
airway normally involves investigating the following: cervical spine mobility, temporomandibular mobility, prominent central
incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental distance.56 Thus, physical
characteristics of the patient‟s upper airway that could make tracheal intubation difficult should be studied.57 Where the
need arises, as when initial assessment indicates possible problems (such as the alleged short neck and protruding teeth
of Erlinda) a thorough examination of the patient‟s airway would go a long way towards decreasing patient morbidity and
mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation
itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by
her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of
Erlinda. She was likewise not properly informed of the possible difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez‟ act of seeing her patient for the first time only an hour before the
scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician‟s centuries-old
Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial court‟s
ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried to muddle the
difference between an elective surgery and an emergency surgery just so her failure to perform the required pre-operative
evaluation would escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so you can introduce yourself
to establish good doctor-patient relationship and gainthe trust and confidence of the patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative procedure of the anesthesiologist and in my case, with
elective cases and normal cardio-pulmonary clearance like that, I usually don‟t do it except on emergency and on cases
that have an abnormalities (sic).58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the fastidious
demands of preoperative procedure so that an anesthesiologist is able to see the patient only a few minutes before
surgery, if at all. Elective procedures, on the other hand, are operative procedures that can wait for days, weeks or even
months. Hence, in these cases, the anesthesiologist possesses the luxury of time to make a proper assessment, including
the time to be at the patient‟s bedside to do a proper interview and clinical evaluation. There is ample time to explain the
method of anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent. Usually, the
pre-operative assessment is conducted at least one day before the intended surgery, when the patient is relaxed and
cooperative.

Erlinda‟s case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to make a
thorough evaluation of Erlinda‟s case prior to the operation and prepare her for anesthesia. However, she never saw the
patient at the bedside. She herself admitted that she had seen petitioner only in the operating room, and only on the
actual date of the cholecystectomy. She negligently failed to take advantage of this important opportunity. As such, her
attempt to exculpate herself must fail. Having established that respondent Dra. Gutierrez failed to perform pre-operative
evaluation of the patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly
the proximate cause of Erlinda‟s comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda‟s coma was due to
bronchospasm59 mediated by her allergic response to the drug, Thiopental Sodium, introduced into her system. Towards
this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the Philippine
Specialty Board of Internal Medicine, who advanced private re-spondents‟ theory that the oxygen deprivation which led to
anoxic encephalopathy,60 was due to an unpredictable drug reaction to the short-acting barbiturate. We find the theory of
private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly enlightening the court
about anesthesia practice and procedure and their complications. Dr. Jamora is likewise not an allergologist and could not
therefore properly advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist and, as
such, could not have been capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of
the supposed culprit, Thiopental Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora‟s testimony as an expert witness in the anesthetic practice
of Pentothal administration is further supported by his own admission that he formulated his opinions on the drug not from
the practical experience gained by a specialist or expert in the administration and use of Sodium Pentothal on patients,
but only from reading certain references, to wit:
ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a method of management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what you have read from books and not by your own
personal application of the medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my appendectomy.

Q: And because they have used it on you and on account of your own personal experience you feel that you can testify on
pentothal here with medical authority?

A: No. That is why I used references to support my claims.61

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia, internal
medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of neurology. While
admittedly, many bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr.
Jamoras field, the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the disciplines
of anesthesiology, allergology and pharmacology. On the basis of the foregoing transcript, in which the pulmonologist
himself admitted that he could not testify about the drug with medical authority, it is clear that the appellate court erred in
giving weight to Dr. Jamora‟s testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidence62 regarding expert witnesses states:

Sec. 49. Opinion of expert witness.—The opinion of a witness on a matter requiring special knowledge, skill, experience
or training which he is shown to possess, may be received in evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which
he or she is to testify, either by the study of recognized authorities on the subject or by practical experience.63 Clearly, Dr.
Jamora does not qualify as an expert witness based on the above standard since he lacks the necessary knowledge, skill,
and training in the field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong field,
private respondents‟ intentionally avoided providing testimony by competent and independent experts in the proper areas.

Moreover, private respondents‟ theory, that Thiopental Sodium may have produced Erlinda‟s coma by triggering an
allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing—some of the
more common accompanying signs of an allergic reaction—appears on record. No laboratory data were ever presented to
the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm happens
only very rarely. If courts were to accept private respondents‟ hypothesis without supporting medical proof, and against
the weight of available evidence, then every anesthetic accident would be an act of God. Evidently, the Thiopentalallergy
theory vigorously asserted by private respondents was a mere afterthought. Such an explanation was advanced in order
to absolve them of any and all responsibility for the patient‟s condition.

In view of the evidence at hand, we are inclined to believe petitioners‟ stand that it was the faulty intubation which was the
proximate cause of Erlinda‟s comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the result would not have occurred.64 An injury or damage is
proximately caused by an act or a 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.65 It is the dominant,
moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause which
triggered the chain of events leading to Erlindas brain damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was likewise
observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, “Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan.” Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda.
The development of abdominal distention, together with respiratory embarrassment indicates that the endotracheal tube
entered the esophagus instead of the respiratory tree. In other words, instead of the intended endotracheal intubation
what actually took place was an esophageal intubation. During intubation, such distention indicates that air has entered
the gastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into the esophagus would
certainly cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. That
abdominal distention had been observed during the first intubation suggests that the length of time utilized in inserting the
endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly significant. Due to the delay
in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis.66 As stated in the testimony of Dr. Hosaka, the
lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were already blue.67 However, private
respondents contend that a second intubation was executed on Erlinda and this one was successfully done. We do not
think so. No evidence exists on record, beyond private respondents‟ bare claims, which supports the contention that the
second intubation was successful. Assuming that the endotracheal tube finally found its way into the proper orifice of the
trachea, the same gave no guarantee of oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was
again observed immediately after the second intubation. Proceeding from this event (cyanosis), it could not be claimed, as
private respondents insist, that the second intubation was accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda already suffered
brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes.68

The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-
third (1/3) of deaths and serious injuries associated with anes thesia.69 Nevertheless, ninety-eight percent (98%) or the
vast majority of difficult intubations may be anticipated by performing a thorough evaluation of the patient‟s airway prior t o
the operation.70 As stated beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative protocol
which could have prevented this unfortunate incident. Had appropriate diligence and reasonable care been used in the
pre-operative evaluation, respondent physician could have been much more prepared to meet the contingency brought
about by the perceived anatomic variations in the patient‟s neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together with a change in technique.71 In other words, an experienced
anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have had little difficulty going around
the short neck and protruding teeth.72 Having failed to observe common medical standards in pre-operative management
and intubation, respondent Dra. Gutierrez‟ negligence resulted in cerebral anoxia and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the so-called
“captain of the ship,”73 it is the surgeon‟s responsibility to see to it that those under him perform their task in the proper
manner. Respondent Dr. Hosaka‟s negligence can be found in his failure to exercise the proper authority (as the “captain”
of the operative team) in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no evidence
on record exists to show that respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient.
Furthermore, it does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at
the same time as Erlindas cholecystectomy, and was in fact over three hours late for the latter‟s operation. Because of
this, he had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that he
was remiss in his professional duties towards his patient. Thus, he shares equal responsibility for the events which
resulted in Erlinda‟s condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals)
of filling up specialist staff with attending and visiting “consultants,”74 who are allegedly not hospital employees, presents
problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more
apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their
work within the hospital premises. Doctors who apply for “consultant” slots, visiting or attending, are required to submit
proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate
board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by
members of the hospital administration or by a review committee set up by the hospital who either accept or reject the
application.75 This is particularly true with respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-
pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient
audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital,
and/or for the privilege of admitting patients into the hospital. In addition to these, the physician‟s performance as a
specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls
short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting “consultant” staff.
While “consultants” are not, technically employees, a point which respondent hospital asserts in denying all responsibility
for the patient‟s condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such
a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the
purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether
or not respondent hospital is solidarily liable with respondent doctors for petitioner‟s condition.76

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the
Civil Code which considers a person accountable not only for his own acts but also for those of others based on the
former‟s responsibility under a relationship of patria potestas.77 Such responsibility ceases when the persons or entity
concerned prove that they have observed the diligence of a good father of the family to prevent damage.78 In other
words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father
of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed
to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the
latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In
neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under
the last paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with
its physicians for Erlinda‟s condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of the
witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents were unable to
rebut the presumption of negligence. Upon these disquisitions we hold that private respondents are solidarily liable for
damages under Article 217679 of the Civil Code.

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos (should be
P616,000.00) in compensatory damages to the plaintiff, “subject to its being updated” covering the period from 15
November 1985 up to 15 April 1992, based on monthly expenses for the care of the patient estimated at P8,000.00.

At current levels, the P8,000/monthly amount established by the trial court at the time of its decision would be grossly
inadequate to cover the actual costs of home-based care for a comatose individual. The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care for the patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were forced to bring home the patient to avoid mounting hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in the care of
the chronically ill for the purpose of providing a proper milieu adequate to meet minimum standards of care. In the instant
case for instance, Erlinda has to be constantly turned from side to side to prevent bedsores and hypostatic pneumonia.

Feeding is done by nasogastric tube. Food preparation should be normally made by a dietitian to provide her with the
correct daily caloric requirements and vitamin supplements. Furthermore, she has to be seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which
can lead to respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least
reflect the correct minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at
home to avoid bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages present us with
some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly
proved. The Civil Code provides:

Art. 2199.—Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory
damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible
future complications directly arising from the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the
injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one
which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with
certainty.80 In other words, temperate damages can and should be awarded on top of actual or compensatory damages
in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover
two distinct phases.

As it would not be equitable—and certainly not in the best interests of the administration of justice—for the victim in such
cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages
previously awarded—temperate damages are appropriate. The amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has
remained in that condition for over a decade. Having premised our award for compensatory damages on the amount
provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the value
awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which
generally specializes in such care. They should not be compelled by dire circumstances to provide substandard care at
home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an award
of P1,500,000.00 in temperate damages would therefore be reasonable.81

In Valenzuela vs. Court of Appeals,82 this Court was confronted with a situation where the injury suffered by the plaintiff
would have led to expenses which were difficult to estimate because while they would have been a direct result of the
injury (amputation), and were certain to be incurred by the plaintiff, they were likely to arise only in the future. We awarded
P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

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 readjusted 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 postmenopausal 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.

x x x.

A prosthetic devise, 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.83

The injury suffered by Erlinda as a consequence of private respondents‟ negligence is certainly much more serious than
the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state for over
fourteen years now. The burden of care has so far been heroically shouldered by her husband and children, who, in the
intervening years have been deprived of the love of a wife and a mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to
quantify. Even the temperate damages herein awarded would be inadequate if petitioner‟s condition remains unchanged
for the next ten years.

We recognized, in Valenzuela that a discussion of the victim‟s actual injury would not even scratch the surface of the
resulting moral damage because it would be highly speculative to estimate the amount of emotional and moral pain,
psychological damage and injury suffered by the victim or those actually affected by the victim‟s condition.84 The husband
and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patient‟s illness, knowing
any hope of recovery is close to nil. They have fashioned their daily lives around the nursing care of petitioner, altering
their long term goals to take into account their life with a comatose patient. They, not the respondents, are charged with
the moral responsibility of the care of the victim. The family‟s moral injury and suffering in this case is clearly a real on e.
For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the
length and nature of the instant suit we are of the opinion that attorney‟s fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and,
they rarely set out to intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases
because where negligence exists and is proven, the same automatically gives the injured a right to reparation for the
damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose of preventing
complications. A physician‟s experience with his patients would sometimes tempt him to deviate from established
community practices, and he may end a distinguished career using unorthodox methods without incident. However, when
failure to follow established procedure results in the evil precisely sought to be averted by observance of the procedure
and a nexus is made between the deviation and the injury or damage, the physician would necessarily be called to
account for it. In the case at bar, the failure to observe preoperative assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents‟ case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in
favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages
computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that
petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages; 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and attorney‟s fees; and, 5) the costs of the suit.

SO ORDERED.

Davide, Jr. (C.J., Chairman), Puno, Pardo and Ynares-Santiago, JJ., concur.

Judgment modified.

Note.—Proximate cause is determined on the facts of each case upon mixed considerations of logic, common sense,
policy and precedent. (Philippine Bank of Commerce vs. Court of Appeals, 269 SCRA 695 [1997])

——o0o—— Ramos vs. Court of Appeals, 321 SCRA 584, G.R. No. 124354 December 29, 1999
No. L-25414. July 30, 1971.
LEOPOLDO ARANETA, petitioner, vs. BANK OF AMERICA, respondent.

Civil Code; Adverse reflection against financial credit is a material loss; Temperate damages are awarded.—The financial
credit of a businessman is a prized and valuable asset, it being a significant part of the foundation of his business. Any
adverse reflection thereon constitutes some material loss to him. As stated in the case of Atlanta National Bank vs. Davis,
96 Ga 334, 23 SE 190, citing 2 Morse Banks, Sec. 458, “it can hardly be possible that a customer‟s check can be
wrongfully refused payment without some impeachment of his credit, which must in fact be an actual injury, though he
cannot, from the nature of the case, furnish independent, distinct proof thereof.”

Same; Concept of temperate damages.—In some States of the American Union, temperate damages are allowed. There
are cases where from the nature of the case, definite proof of pecuniary loss cannot be offered, although the court is
convinced that there has been such loss. For instance, injury to one‟s commercial credit or to the goodwill of a business
firm is often hard to show with certainty in terms of money. Should damages be denied for that reason? The judge should
be empowered to calculate moderate damages in such cases, rather than that the plaintiff should suffer, without redress
from the defendant‟s wrongful act.

Same; Court may increase amount of attorney‟s fees.—Considering the nature and extent of the services rendered by the
petitioner‟s counsel both in the trial and appellate courts, the amount should be increased to P4,000. This may be done
motu proprio by this Court under Article 2208 of the Civil Code, which provides that attorney‟s fees may be recovered in
the instances therein enumerated and “in any other case where the Court deems it first and equitable that attorney‟s fees.
. . should be recovered,” provided the amount thereof be reasonable in all cases.

Remedial law; Review of the evidence and reappraisal of its probative value is not within the appellate jurisdiction of the
Supreme Court.—A review of the evidence and a reappraisal of its probative value is not within the appellate jurisdiction
of this Court.

PETITION for review by certiorari of a decision of the Court of Appeals. Alvendia, J.

The facts are stated in the opinion of the Court.

Gatchalian & Sison for petitioner.

Lichauco, Picazo & Agcaoili for respondent.

MAKALINTAL, J.:

Petition for review by certiorari of the decision of the Court of Appeals in CA-G.R. No. L-34508-R modifying that of the
Court of First Instance of Manila in the Civil Case No. 52442.

Leopoldo Araneta, the petitioner herein, was a local merchant engaged in the import and export business. On June 30,
1961 he issued a check for $500 payable to cash and drawn against the San Francisco main office of the Bank of
America, where he had been maintaining a dollar current account since 1948. At that time he had a credit balance of
$523.81 in his account, confirmed by the bank‟s assistant cashier in a letter to Araneta dated September 7, 1961.
However, when the check was received by the bank on September 8, 1961, a day after the date of the letter, it was
dishonored and stamped with the notation “Account Closed.”

Upon inquiry by Araneta as to why his check had been dishonored, the Bank of America acknowledged that it was an
error, explaining that for some reason the check had been encoded with wrong account number, and promising that “we
shall make every effort to see that this does not reoccur.” The bank sent a letter of apology to the payee of the check, a
Mr. Harry Gregory of Hongkong, stating that “the check was returned through an error on our part and should not reflect
adversely upon Mr. Araneta.” In all probability the matter would have been considered closed, but another incident of a
similar nature occurred later.

On May 25, and 31, 1962 Araneta issued Check No. 110 for $500 and Check No. 111 for $150, respectively, both payable
to cash and drawn against the Bank of America. These two checks were received by the bank on June 3, 1962. The first
check appeared to have come into the hands of Rufina Saldaña, who deposited it to her account with the First National
City Bank of New York, which in turn cleared it through the Federal Reserve Bank. The second check appeared to have
been cleared through the Wells Fargo Bank. Despite the sufficiency of Araneta‟s deposit balance to cover both checks,
they were again stamped with the notation “Account Closed” and returned to the respective clearingbanks.

In the particular case of Check No. 110, it was actually paid by the Bank of America to the First National City Bank.
Subsequently, however, the Bank of America, claiming that the payment had been inadvertently made, returned the check
to the First National City Bank with the request that the amount thereof be credited back to the Bank of America. In turn,
the First National City Bank wrote to the depositor of the check, Rufina Saldaña, informing her about its return with the
notation “Account Closed” and asking her consent to the deduction of its amount from her deposit. However, before Mrs.
Saldaña‟s reply could be received, the Bank of America recalled the check from the First National City Bank and honored
it.
In view of the foregoing incidents, Araneta, through counsel, sent a letter to the Bank of America demanding damages in
the sum of $20,000. While admitting responsibility for the inconvenience caused to Araneta, the bank claimed that the
amount demanded was excessive, and offered to pay the sum of P2,000.00. The offer was rejected.

On December 11, 1962 Araneta filed the complaint in this case against the Bank of America for the recovery of
thefollowing:

1. Actual or compensatory damages.............................. P 30,000.00

2. Moral damages.......................................................... 20,000.00
3. Temperatedamages..................................................50,000.00
4. Exemplarydamages..................................................10,000.00
5. Attorney‟sfees..........................................................10,000.00

T O T A L .......................................... P120,000.00

The judgment of the trial court awarded all the items prayed for, but on appeal by the defendant the Court of Appeals
eliminated the award of compensatory and temperate damages and reduced the moral damages to P8,-000.00, the
exemplary damages to P1,000.00 and the attorney‟s fees to P1,000.00.

Not satisfied with the decision of the appellate court, the plaintiff filed the instant petition for review, alleging two reasons
why it should be allowed, as follows:

“(1) The Court of Appeals erred in holding that temperate damages cannot be awarded without proof of actual pecuniary
loss. There is absolutely no legal basis for this ruling; worse yet, it runs counter to the very provisions of ART. 2216 of the
New Civil Code and to the established jurisprudence on the matter;

“(2) The Court of Appeals erred in not holding that moral damages may be recovered as an item separate and distinct
from the damages recoverable for injury to business standing and commercial credit. This involves the application of
paragraph (2) of Art. 2205 of the New Civil Code which up to now has not yet received an authoritative interpretation from
the Supreme Court. x x x.”

In his brief, however, the petitioner assigned five (5) errors committed by the appellate court, namely: (1) in concluding
that the petitioner, on the basis of the evidence, had not sufficiently proven his claim for actual damages, where such
evidence, both testimonial and documentary, stands uncontradicted on the record; (2) in holding that temperate damages
cannot be awarded to the petitioner without proof of actual pecuniary loss; (3) in not granting moral damages for mental
anguish, besmirched reputation, wounded feelings, social humiliation, etc., separate and distinct from the damages
recoverable for injury to business reputation; (4) in reducing, without any ostensible reason, the award of exempl ary
damages granted by the lower court; and (5) in reducing, without special reason, the award of attorney‟s fees by the lower
court.

We consider the second and third errors, as they present the issues raised in the petition for review and on the basis of
which it was given due course.

In disallowing the award of temperate damages, the Court of Appeals ruled:

“In view of all the foregoing considerations we hold that the plaintiff has not proven his claim that the two checks for $500
each were in partial payment of two orders for jewels worth P50,000 each. He has likewise not proven the actual damage
which he claims he has suffered. And in view of the fact that he has not proven the existence of the supposed contract for
him to buy jewels at a profit there is not even an occasion for an award of temperate damages on this score.”

This ruling is now assailed as erroneous and without legal basis. The petitioner maintains that in an action by a depositor
against a bank for damages resulting from the wrongful dishonor of the depositor‟s checks, temperate damages for injury
to business standing or commercial credit may be recovered even in the absence of definite proof of direct pecuniary loss
to the plaintiff, a finding—as it was found by the Court of Appeals—that the wrongful acts of the respondent had adversely
affected his credit being sufficient for the purpose. The following provisions of the Civil Code are invoked:

“ART. 2205. Damages may be recovered:

(1) For loss or impairment of earning capacity in cases of temporary or permanent personal injury;

(2) For injury to the plaintiff‟s business standing or commercial credit.”

“ART. 2216. No proof of pecuniary loss is necessary in order that moral, nominal, temperate, liquidated or exemplary
damages may be adjudicated. The assessment of such damages, except liquidated ones, is left to the discretion of the
court, according to the circumstances of each case.”
Also invoked by the petitioner is the case of Atlanta National Bank vs. Davis, 96 Ga 334, 23 SE 190;1 and the following
citations in American Jurisprudence:

“In some states what are called „temperate damages‟ are allowed in certain classes of cases, without proof of actual or
special damages, where the wrong done must in fact have caused actual damage to the plaintiff, though from the nature
of the case, he cannot furnish independent, distinct proof thereof. Temperate damages are more than nominal damages,
and, rather, are such as would be a reasonable compensation for the injury sustained. x x x.” (15 Am. Jur. 400)

“x x x. It has been generally, although not universally, held, in an action based upon the wrongful act of a bank in
dishonoring checks of a merchant or trader having sufficient funds on deposit with the bank, that substantial damages will
be presumed to follow such act as a necessary and natural consequence, and accordingly, that special damages need
not be shown. One of the reasons given for this rule is that the dishonor of a merchant‟s or trader‟s check is tantamount or
analogous, to a slander of his trade or business, imputing to him insolvency or bad faith. x x x.” (10 Am. Jur. 2d. 545)

On the other hand the respondent argues that since the petitioner invokes Article 2205 of the Civil Code, which speaks of
actual or compensatory damages for injury to business standing or commercial credit, he may not claim them as
temperate damages and thereby dispense with proof of pecuniary loss under Article 2216. The respondent cites Article
2224, which provides that “temperate or moderate damages, which are more than nominal but less than compensatory
damages may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from
the nature of the case, be proved with certainty,” and contends that the petitioner failed to show any such loss in this case.

The question, therefore, is whether or not on the basis of the findings of the Court of Appeals, there is reason to conclude
that the petitioner did sustain some pecuniary loss although no sufficient proof of the amount thereof has been adduced.
In rejecting the claim for temperate damages the said Court referred specifically to the petitioner‟s failure to prove “the
existence of a supposed contract for him to buy jewels at a profit,” in connection with which he issued the two checks
which were dishonored by the respondent. This may be true as far as it goes, that is, with particular reference to the
alleged loss in that particular transaction. But it does not detract from the finding of the same Court that actual damages
had been suffered, thus:

“. . . Obviously, the check passed the hands of other banks since it was cleared in the United States. The adverse
reflection against the credit of Araneta with said banks was not cured nor explained by the letter of apology to Mr.
Gregory.”

x x x

“. . .This incident obviously affected the credit of Araneta with Miss Saldaña.

x x x

“However, in so far as the credit of Araneta with the First National City Bank, with Miss Rufina Saldaña and with any other
persons who may have come to know about the refusal of the defendant to honor said checks, the harm was done. . .”

The financial credit of a businessman is a prized and valuable asset, it being a significant part of the foundation of his
business. Any adverse reflection thereon constitutes some material loss to him. As stated in the case Atlanta National
Bank vs. Davis, supra, citing 2 Morse Banks, Sec. 458, “it can hardly be possible that a customer‟s check can be
wrongfully refused payment without some impeachment of his credit, which must in fact be an actual injury, though he
cannot, from the nature of the case, furnish independent, distinct proof thereof.”

Tne Code Commission, in explaining the concept of temperate damages under Article 2224, makes the following
comment:

“In some States of the American Union, temperate damages are allowed. There are cases where from the nature of the
case, definite proof of pecuniary loss cannot be offered, although the court is convinced that there has been such loss.
For instance, injury to one‟s commercial credit or to the goodwill of a business firm is often hard to show with certainty in
terms of money. Should damages be denied for that reason? The judge should be empowered to calculate moderate
damages in such cases, rather than that the plaintiff should suffer, without redress from the defendant‟s wrongful act.”

The petitioner, as found by the Court of Appeals, is a merchant of long standing and good reputation in the Philippines.
Some of his record is cited in the decision appealed from. We are of the opinion that his claim for temperate damages is
legally justified. Considering all the circumstances, including the rather small size of the petitioner‟s account with the
respondent, the amounts of the checks which were wrongfully dishonored, and the fact that the respondent tried to rectify
the error soon after it was discovered, although the rectification came after the damage had been caused, we believe that
an award of P5,000 by way of temperate damages is sufficient.
Under the third error assigned by the petitioner in his brief, which is the second of the two reasons relieve upon in his
petition for review, he contends that moral damages should have been granted for the injury to his business standing or
commercial credit, separately from his wounded feelings and mental anguish. It is true that under Article 2217 of the Civil
Code, “besmirched reputation” is a ground upon which moral damages may be claimed, but the Court of Appeals did take
this element into consideration in adjudging the sum of P8,000 in his favor. We quote from the decision:

“. . . the damages to his reputation as an established and well known international trader entitled him to recover moral
damages.”

x x x

“. . . It was likewise established that when plaintiff learned that his checks were not honored by the drawee Bank, his
wounded feelings and the mental anguish suffered by him caused his blood pressure to rise beyond normal limits, thereby
necessitating medical attendance for an extended period.”

The trial court awarded attorney‟s fees in the amount of P10,000. This was reduced by the Court of Appeals to only
P1,000. Considering the nature and extent of the services rendered by the petitioner‟s counsel both in the trial and
appellate courts, the amount should be increased to P4,000. This may be done motu proprio by this Court under Article
2208 of the Civil Code, which provides that attorney‟s fees may be recovered in the instances therein enumerated and “in
any other case where the Court deems, it first and equitable that attorney‟s fees . . . should be re-covered,” provided the
amount thereof be reasonable in all cases.

We do not entertain the first and fourth errors assigned by the petitioner. Neither of them was raised and ruled upon as
reasons for the allowance of his petition for review, as required by Section 2 of Rule 45. Besides, the first error involves a
question of fact and calls for a review of the evidence and a reappraisal of its probative value—a task not within the
appellate jurisdiction of this case. And with respect to the fourth error, while there was gross negligence on the part of the
respondent, the record shows, as hereinbefore observed, that it tried to rectify its error soon after the same was
discovered, although not in time to prevent the damage to the petitioner.

WHEREFORE, the judgment of the Court of Appeals is modified by awarding temperate damages to the petitioner in the
sum of P5,000 and increasing the attorney‟s fees to P4,000; and is affirmed in all other respects. Costs against the
respondent.

Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.
Dizon, J., is on leave.

Judgment affirmed with modifications. Araneta vs. Bank of America, 40 SCRA 144, No. L-25414 July 30, 1971