Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-21291 March 28, 1969

PRECIOLITA V. CORLISS, plaintiff-appellant,

vs.
THE MANILA RAILROAD CO., defendant-appellant.

Moises C. Nicomedes for plaintiff-appellant.

The Government Corporate Counsel for defendant-appellee.

FERNANDO, J.:

Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-
being, and with reason. The future, bright with promise, looms ahead. One's powers are
still to be tested, but one feels ready for whatever challenge may come his way. There is
that heady atmosphere of self-confidence, at times carried to excess. The temptation to
take risks is there, ever so often, difficult, if not impossible, to resist. There could be
then a lessening of prudence and foresight, qualities usually associated with age. For
death seems so remote and contingent an event. Such is not always the case though,
and a slip may be attended with consequences at times unfortunate, even fatal.

Some such thought apparently was in the mind of the lower court when it dismissed
the complaint for recovery of damages filed by plaintiff-appellant, Preciolita V. Corliss
whose husband, the late Ralph W. Corliss, was, at the tender age of twenty-one, the
victim of a grim tragedy, when the jeep he was driving collided with a locomotive of
defendant-appellee Manila Railroad Company, close to midnight on the evening of Feb
21, 1957, at the railroad crossing in Balibago, Angeles, Pampanga, in front of the Clark
Air Force Base. In the decision appealed from, the lower court, after summarizing the
evidence, concluded that the deceased "in his eagerness to beat, so to speak, the
oncoming locomotive, took the risk and attempted to reach the other side, but
unfortunately he became the victim of his own miscalculation." 1

The negligence imputed to defendant-appellee was thus ruled out by the lower court,
satisfactory proof to that effect, in its opinion, being lacking. Hence this appeal direct to
us, the amount sought in the concept of damages reaching the sum of P282,065.40. An
examination of the evidence of record fails to yield a basis for a reversal of the decision
appealed from. We affirm.

According to the decision appealed from, there is no dispute as to the following: "In
December 1956, plaintiff, 19 years of age, married Ralph W. Corliss Jr., 21 years of age,
...; that Corliss Jr. was an air police of the Clark Air Force Base; that at the time of the
accident, he was driving the fatal jeep; that he was then returning in said jeep, together
with a P.C. soldier, to the Base; and that Corliss Jr. died of serious burns at the Base
Hospital the next day, while the soldier sustained serious physical injuries and burns." 2
 Then came a summary of the testimony of two of the witnesses for plaintiff-appellant.
Thus: "Ronald J. Ennis, a witness of the plaintiff, substantially declared in his
deposition, ..., that at the time of the accident, he also awaiting transportation at the
entrance of Clark Field, which was about 40 to 50 yards away from the tracks and that
while there he saw the jeep coming towards the Base. He said that said jeep slowed
down before reaching the crossing, that it made a brief stop but that it did not stop —
dead stop. Elaborating, he declared that while it was slowing down, Corliss Jr. shifted
into first gear and that was what he meant by a brief stop. He also testified that he could
see the train coming from the direction of San Fernando and that he heard a warning
but that it was not sufficient enough to avoid the accident." 3 Also: "Virgilio de la Paz,
another witness of the plaintiff, testified that on the night of February 21, 1957, he was
at the Balibago checkpoint and saw the train coming from Angeles and a jeep going
towards the direction of Clark Field. He stated that he heard the whistle of the
locomotive and saw the collision. The jeep, which caught fire, was pushed forward. He
helped the P.C. soldier. He stated that he saw the jeep running fast and heard the
tooting of the horn. It did not stop at the railroad crossing, according to him." 4

After which reference was made to the testimony of the main witness for defendant-
appellee, Teodorico Capili, "who was at the engine at the time of the mishap," and who
"testified that before the locomotive, which had been previously inspected and found to
be in good condition approached, the crossing, that is, about 300 meters away, he blew
the siren and repeated it in compliance with the regulations until he saw the jeep
suddenly spurt and that although the locomotive was running between 20 and 25
kilometers an hour and although he had applied the brakes, the jeep was caught in the
middle of the tracks." 5

1. The above finding as to the non-existence of negligence attributable to defendant-

appellee Manila Railroad Company comes to us encased in the armor of what
admittedly appears to be a careful judicial appraisal and scrutiny of the evidence of
record. It is thus proof against any attack unless sustained and overwhelming. Not that
it is invulnerable, but it is likely to stand firm in the face of even the most formidable
barrage.

In the more traditional terminology, the lower court judgment has in its favor the
presumption of correctness. It is entitled to great respect. After all, the lower court had
the opportunity of weighing carefully what was testified to and apparently did not
neglect it. There is no affront to justice then if its finding be accorded acceptance
subject of course the contingency of reversal if error or errors, substantial in character,
be shown in the conclusion thus arrived at. It is a fair statement of the governing,
principle to say that the appellate function is exhausted when there is found to be a
rational basis for the result reached by the trial court.

As was held in a 1961 decision: "We have already ruled, that when the credibility of
witnesses is the one at issue, the trial court's judgment as to their degree of credence
deserves serious consideration by this Court." 6 An earlier expression of the same view
is found in Jai-Alai Corporation v. Ching Kiat: "After going over the record, we find no
reason for rejecting the findings of the court below. The questions raised hinge on
credibility and it is well-settled that in the absence of compelling reasons, its
determination is best left to the trial judge why had the advantage of hearing the parties
testify and observing their demeanor on the witness stand." 7
 In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record
suggests any arbitrary or abusive conduct on the part of the trial judge in the
formulation of the ruling. His conclusion on the matter is sufficiently borne out by the
evidence presented. We are denied, therefore, the prerogative to disturb that finding,
consonant to the time honored tradition of the Tribunal to hold trial judges better
situated to make conclusions on questions of fact'." 8 On this ground alone we can rest
the affirmance of the judgment appealed from.lâwphi1.ñet

2. Nor is the result different even if no such presumption were indulged in and the
matter examined as if we were exercising original and not appellate jurisdiction. The
sad and deplorable situation in which plaintiff-appellant now finds herself, to the
contrary notwithstanding we find no reason for reversing the judgment of the lower
court.

This action is predicated on negligence, the Civil Code making clear that whoever by
act or omission causes damage to another, there being negligence, is under obligation
to pay for the damage done. 9 Unless it could be satisfactorily shown, therefore, that
defendant-appellee was guilty of negligence then it could not be held liable. The crucial
question, therefore, is the existence of negligence.

The above Civil Code provision, which is a reiteration of that found in the Civil Code of
Spain, formerly applicable in this jurisdiction, 10 had been interpreted in earlier
decisions. Thus, in Smith v. Cadwallader Gibson Lumber Co., 11 Manresa was cited to
the following effect "'Among the questions most frequently raised and upon which the
majority of cases have been decided with respect to the application of this liability, are
those referring to the determination of the damage or prejudice, and to the fault or
negligence of the person responsible therefor. These are the two indispensable factors
in the obligations under discussion, for without damage or prejudice there can be no
liability, and although this element is present no indemnity can be awarded unless
arising from some person's fault or negligence'."

Negligence was defined by us in two 1912 decisions, United States v. Juanillo 12 and
United States v. Barias. 13 Cooley' formulation was quoted with approval in both the
Juanillo and Barias decisions. Thus: "Judge Cooley in his work on Torts (3d ed.), Sec.
1324, defines negligence to be: "The failure to observe for the protection of the
interests of another person that degree of care, precaution and vigilance which the
circumstance justly demand whereby such other person suffers injury." There was
likewise a reliance on Ahern v. Oregon Telephone Co. 14 Thus: "Negligence is want of
the care required by the circumstances. It is a relative or comparative, not an absolute
term and its application depends upon the situation of the parties and the degree of
care and vigilance which the circumstances reasonably require. Where the danger is
great, a high degree of care is necessary, and the failure to observe it is a want of
ordinary care under the circumstances."

To repeat, by such a test, no negligence could be imputed to defendant-appellee, and

the action of plaintiff-appellee must necessary fail. The facts being what they are,
compel the conclusion that the liability sought to be fastened on defendant-appellee
had not arisen.
 3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment
appealed from on the ground that there was a failure to appreciate the true situation.
Thus the first three assigned errors are factual in character. The third assigned error
could be summarily disposed of. It would go against the evidence to maintain the view
that the whistle was not sounded and the brakes not applied at a distance of 300 meters
before reaching the crossing.

The first two assigned errors would make much of the failure of the lower court to hold
that the crossing bars not having been put down and there being no guard at the gate-
house, there still was a duty on the part of Corliss to stop his jeep to avoid a collision
and that Teodorico Capili, who drove the engine, was not qualified to do so at the time
of the accident. For one cannot just single out circumstance and then confidently
assign to it decisive weight and significance. Considered separately, neither of the two
above errors assigned would call for a judgment different in character. Nor would a
combination of acts allegedly impressed with negligence suffice to alter the result. The
quantum of proof required still not been met. The alleged errors fail of their said effect.
The case for plaintiff-appellant, such as it had not been improved. There is no
justification for reversing the judgment of the lower court.

It cannot be stressed too much that the decisive considerations are too variable, too
dependent in the lid analysis upon a common sense estimate of the situation as it
presented itself to the parties for us to be able to say that this or that element having
been isolated, negligence is shown. The factors that enter the judgment are too many
and diverse for us to imprison them in a formula sufficient of itself to yield the correct
answer to the multi-faceted problems the question of negligence poses. Every case
must be dependent on its facts. The circumstances indicative of lack of due care must
be judged in the light of what could reasonably be expected of the parties. If the
objective standard of prudence be met, then negligence is ruled out.

In this particular case, it would be to show less than fidelity to the controlling facts to
impute negligence to defendant-appellee. The first three errors assigned certainly do
not call for that conclusion.

4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-

appellant apparently had in mind this portion of the opinion of the lower court: "The
weight of authorities is to the effect that a railroad track is in itself a warning or a signal
of danger to those who go upon it, and that those who, for reasons of their own, ignore
such warning, do so at their own risk and responsibility. Corliss Jr., who undoubtedly
had crossed the checkpoint frequently, if not daily, must have known that locomotive
engines and trains usually pass at that particular crossing where the accident had
taken place." 15

Her assignment of error, however, would single out not the above excerpt from the
decision appealed from but what to her is the apparent reliance of the lower court
on Mestres v. Manila Electric Railroad & Light Co. 16 and United States v. Manlabat &
Pasibi. 17 In the Manabat case, the doctrine announced by this Court follows: "A person
in control of an automobile who crosses a railroad, even at a regular road crossing, and
who does not exercise that precaution and that control over it as to be able to stop the
same almost immediately upon the appearance of a train, is guilty of criminal
negligence, providing a collision occurs and injury results. Considering the purposes
and the general methods adopted for the management of railroads and railroad trains,
we think it is incumbent upon one approaching a railroad crossing to use all of his
faculties of seeing and hearing. He should approach a railroad crossing cautiously and
carefully. He should look and listen and do everything that a reasonably prudent man
would do before he attempts to cross the track." The Mestres doctrine in a suit arising
from a collision between an automobile and a street car is substantially similar. Thus: "It
may be said, however, that, where a person is nearing a street crossing toward which a
car is approaching, the duty is on the party to stop and avoid a collision who can most
readily adjust himself to the exigencies of the case, and where such person can do so
more readily, the motorman has a right to presume that such duty will be performed."

It is true, as plaintiff-appellant would now allege that there has been a drift away from
the apparent rigid and inflexible doctrine thus set forth in the two above cases
evidenced by Lilius v. Manila Railroad Co., 18 the controlling facts of which, however, are
easily distinguishable from what had been correctly ascertained in the present case.
Such a deviation from the earlier principle announced is not only true of this jurisdiction
but also of the United States.

This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he had
the following to say: "Especially noteworthy in this respect is the attempt Mr. Justice
Holmes, in Baltimore & Ohio Railway v. Goodman, to 'lay down a standard once for all,'
which would require an automobile driver approaching a railroad crossing with an
obstructed view to stop, look and listen, and if he cannot be sure otherwise that no train
is coming to get out of the car. The basic idea behind this is sound enough: it is by no
means proper care to cross a railroad track without taking reasonable precautions
against a train, and normally such precautions will require looking, hearing, and a stop,
or at least slow speed, where the view is obstructed." 19

Then, barely seven years later, in 1934, came Pakora v. Wabash Railway, 20 where,
according to Prosser, it being shown that "the only effective stop must be made upon
the railway tracks themselves, in a position of obligation danger, the court disregarded
any such uniform rule, rejecting the 'get out of the car' requirement as 'an uncommon
precaution, likely to be futile and sometimes even dangerous,' and saying that the
driver need not always stop. 'Illustrations such as these,' said Mr. Justice Cardozo 'bear
witness to the need for caution in framing standards of behavior that amount to rules of
law.... Extraordinary situations may not wisely or fairly be subjected to tests or
regulations that are fitting for the commonplace or normal." 21

What Justice Cardozo announced would merely emphasize what was set forth earlier
that each and every, case on questions of negligence is to be decided in accordance
with the peculiar circumstances that present themselves. There can be no hard and fast
rule. There must be that observance of that degree of care, precaution, and vigilance
which the situation demands. Thus defendant-appellee acted. It is undeniable then that
no negligence can rightfully be imputed to it.

What commends itself for acceptance is this conclusion arrived at by the lower court:
"Predicated on the testimonies of the plaintiff's witnesses, on the knowledge of the
deceased and his familiarity with the setup of the checkpoint, the existence of the
tracks; and on the further fact that the locomotive had blown its siren or whistle, which
was heard by said witnesses, it is clear that Corliss Jr. was so sufficiently warned in
advance of the oncoming train that it was incumbent upon him to avoid a possible
accident — and this consisted simply in stopping his vehicle before the crossing and
allowing the train to move on. A prudent man under similar circumstances would have
acted in this manner. This, unfortunately, Corliss, Jr. failed to do." 22

WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the
complaint, is affirmed. Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro,

Capistrano, Teehankee and Barredo, JJ., concur.
G.R. No. 122039 May 31, 2000

VICENTE CALALAS, petitioner,

vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO
SALVA, respondents.

MENDOZA, J.:

This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated
March 31, 1991, reversing the contrary decision of the Regional Trial Court, Branch 36,
Dumaguete City, and awarding damages instead to private respondent Eliza Jujeurche
Sunga as plaintiff in an action for breach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G.
Sunga, then a college freshman majoring in Physical Education at the Siliman
University, took a passenger jeepney owned and operated by petitioner Vicente
Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was given
by the conductor an "extension seat," a wooden stool at the back of the door at the rear
end of the vehicle.

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a
passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the
outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio
Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As a
result, Sunga was injured. She sustained a fracture of the "distal third of the left tibia-
fibula with severe necrosis of the underlying skin." Closed reduction of the fracture,
long leg circular casting, and case wedging were done under sedation. Her
confinement in the hospital lasted from August 23 to September 7, 1989. Her attending
physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on
a cast for a period of three months and would have to ambulate in crutches during said
period.

On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging
violation of the contract of carriage by the former in failing to exercise the diligence
required of him as a common carrier. Calalas, on the other hand, filed a third-party
complaint against Francisco Salva, the owner of the Isuzu truck.

The lower court rendered judgment against Salva as third-party defendant and
absolved Calalas of liability, holding that it was the driver of the Isuzu truck who was
responsible for the accident. It took cognizance of another case (Civil Case No. 3490),
filed by Calalas against Salva and Verena, for quasi-delict, in which Branch 37 of the
same court held Salva and his driver Verena jointly liable to Calalas for the damage to
his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed on the
ground that Sunga's cause of action was based on a contract of carriage, not quasi-
delict, and that the common carrier failed to exercise the diligence required under the
Civil Code. The appellate court dismissed the third-party complaint against Salva and
adjudged Calalas liable for damages to Sunga. The dispositive portion of its decision
reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET

ASIDE, and another one is entered ordering defendant-appellee Vicente
Calalas to pay plaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

(3) P10,000.00 as attorney's fees; and

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.

SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the
negligence of Verena was the proximate cause of the accident negates his liability and
that to rule otherwise would be to make the common carrier an insurer of the safety of
its passengers. He contends that the bumping of the jeepney by the truck owned by
Salva was a caso fortuito. Petitioner further assails the award of moral damages to
Sunga on the ground that it is not supported by evidence.

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver
and the owner of the truck liable for quasi-delict ignores the fact that she was never a
party to that case and, therefore, the principle of res judicata does not apply.

Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in
Civil Case No. 3490 was whether Salva and his driver Verena were liable for quasi-delict
for the damage caused to petitioner's jeepney. On the other hand, the issue in this case
is whether petitioner is liable on his contract of carriage. The first, quasi-delict, also
known as culpa aquiliana or culpa extra contractual, has as its source the negligence of
the tortfeasor. The second, breach of contract or culpa contractual, is premised upon
the negligence in the performance of a contractual obligation.

Consequently, in quasi-delict, the negligence or fault should be clearly established

because it is the basis of the action, whereas in breach of contract, the action can be
prosecuted merely by proving the existence of the contract and the fact that the
obligor, in this case the common carrier, failed to transport his passenger safely to his
destination.2 In case of death or injuries to passengers, Art. 1756 of the Civil Code
provides that common carriers are presumed to have been at fault or to have acted
negligently unless they prove that they observed extraordinary diligence as defined in
Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the common
carrier the burden of proof.

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding
Salva and his driver Verena liable for the damage to petitioner's jeepney, should be
binding on Sunga. It is immaterial that the proximate cause of the collision between the
jeepney and the truck was the negligence of the truck driver. The doctrine of proximate
cause is applicable only in actions for quasi-delict, not in actions involving breach of
contract. The doctrine is a device for imputing liability to a person where there is no
relation between him and another party. In such a case, the obligation is created by law
itself. But, where there is a pre-existing contractual relation between the parties, it is
the parties themselves who create the obligation, and the function of the law is merely
to regulate the relation thus created. Insofar as contracts of carriage are concerned,
some aspects regulated by the Civil Code are those respecting the diligence required of
common carriers with regard to the safety of passengers as well as the presumption of
negligence in cases of death or injury to passengers. It provides:

Art. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence in
the vigilance over the goods and for the safety of the passengers
transported by them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further

expressed in articles 1734, 1735, and 1746, Nos. 5, 6, and 7, while the
extraordinary diligence for the safety of the passengers is further set forth
in articles 1755 and 1756.

Art. 1755. A common carrier is bound to carry the passengers safely as

far as human care and foresight can provide, using the utmost diligence of
very cautious persons, with due regard for all the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers

are presumed to have been at fault or to have acted negligently, unless
they prove that they observed extraordinary diligence as prescribed by
articles 1733 and 1755.

In the case at bar, upon the happening of the accident, the presumption of negligence
at once arose, and it became the duty of petitioner to prove that he had to observe
extraordinary diligence in the care of his passengers.

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight
could provide, using the utmost diligence of very cautious persons, with due regard for
all the circumstances" as required by Art. 1755? We do not think so. Several factors
militate against petitioner's contention.

First, as found by the Court of Appeals, the jeepney was not properly parked, its rear
portion being exposed about two meters from the broad shoulders of the highway, and
facing the middle of the highway in a diagonal angle. This is a violation of the R.A. No.
4136, as amended, or the Land Transportation and Traffic Code, which provides:

Sec. 54. Obstruction of Traffic. — No person shall drive his motor vehicle
in such a manner as to obstruct or impede the passage of any vehicle, nor,
while discharging or taking on passengers or loading or unloading freight,
obstruct the free passage of other vehicles on the highway.

Second, it is undisputed that petitioner's driver took in more passengers than the
allowed seating capacity of the jeepney, a violation of §32(a) of the same law. It
provides:

Exceeding registered capacity. — No person operating any motor vehicle

shall allow more passengers or more freight or cargo in his vehicle than
its registered capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril greater than
that to which the other passengers were exposed. Therefore, not only was petitioner
unable to overcome the presumption of negligence imposed on him for the injury
sustained by Sunga, but also, the evidence shows he was actually negligent in
transporting passengers.

We find it hard to give serious thought to petitioner's contention that Sunga's taking an
"extension seat" amounted to an implied assumption of risk. It is akin to arguing that the
injuries to the many victims of the tragedies in our seas should not be compensated
merely because those passengers assumed a greater risk of drowning by boarding an
overloaded ferry. This is also true of petitioner's contention that the jeepney being
bumped while it was improperly parked constitutes caso fortuito. A caso fortuito is an
event which could not be foreseen, or which, though foreseen, was inevitable.3 This
requires that the following requirements be present: (a) the cause of the breach is
independent of the debtor's will; (b) the event is unforeseeable or unavoidable; (c) the
event is such as to render it impossible for the debtor to fulfill his obligation in a normal
manner, and (d) the debtor did not take part in causing the injury to the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its
body protruding two meters into the highway.

Finally, petitioner challenges the award of moral damages alleging that it is excessive
and without basis in law. We find this contention well taken.

In awarding moral damages, the Court of Appeals stated:

Plaintiff-appellant at the time of the accident was a first-year college

student in that school year 1989-1990 at the Silliman University, majoring
in Physical Education. Because of the injury, she was not able to enroll in
the second semester of that school year. She testified that she had no
more intention of continuing with her schooling, because she could not
walk and decided not to pursue her degree, major in Physical Education
"because of my leg which has a defect already."
 Plaintiff-appellant likewise testified that even while she was under
confinement, she cried in pain because of her injured left foot. As a result
of her injury, the Orthopedic Surgeon also certified that she has "residual
bowing of the fracture side." She likewise decided not to further pursue
Physical Education as her major subject, because "my left leg . . . has a
defect already."

Those are her physical pains and moral sufferings, the inevitable
bedfellows of the injuries that she suffered. Under Article 2219 of the Civil
Code, she is entitled to recover moral damages in the sum of P50,000.00,
which is fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for damages
predicated on a breach of contract for it is not one of the items enumerated under Art.
2219 of the Civil Code.5 As an exception, such damages are recoverable: (1) in cases in
which the mishap results in the death of a passenger, as provided in Art. 1764, in
relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is
guilty of fraud or bad faith, as provided in Art. 2220.6

In this case, there is no legal basis for awarding moral damages since there was no
factual finding by the appellate court that petitioner acted in bad faith in the
performance of the contract of carriage. Sunga's contention that petitioner's admission
in open court that the driver of the jeepney failed to assist her in going to a nearby
hospital cannot be construed as an admission of bad faith. The fact that it was the
driver of the Isuzu truck who took her to the hospital does not imply that petitioner was
utterly indifferent to the plight of his injured passenger. If at all, it is merely implied
recognition by Verena that he was the one at fault for the accident.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its
resolution, dated September 11, 1995, are AFFIRMED, with the MODIFICATION that the
award of moral damages is DELETED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-65295 March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,

vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.

FELICIANO, J:

In the early morning of 15 November 1975 — at about 1:30 a.m. — private respondent
Leonardo Dionisio was on his way home — he lived in 1214-B Zamora Street, Bangkal,
Makati — from a cocktails-and-dinner meeting with his boss, the general manager of a
marketing corporation. During the cocktails phase of the evening, Dionisio had taken "a
shot or two" of liquor. Dionisio was driving his Volkswagen car and had just crossed the
intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far
from his home, and was proceeding down General Lacuna Street, when his car
headlights (in his allegation) suddenly failed. He switched his headlights on "bright" and
thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. The
dump truck, owned by and registered in the name of petitioner Phoenix Construction
Inc. ("Phoenix"), was parked on the right hand side of General Lacuna Street (i.e., on
the right hand side of a person facing in the same direction toward which Dionisio's car
was proceeding), facing the oncoming traffic. The dump truck was parked askew (not
parallel to the street curb) in such a manner as to stick out onto the street, partly
blocking the way of oncoming traffic. There were no lights nor any so-called "early
warning" reflector devices set anywhere near the dump truck, front or rear. The dump
truck had earlier that evening been driven home by petitioner Armando U. Carbonel, its
regular driver, with the permission of his employer Phoenix, in view of work scheduled
to be carried out early the following morning, Dionisio claimed that he tried to avoid a
collision by swerving his car to the left but it was too late and his car smashed into the
dump truck. As a result of the collision, Dionisio suffered some physical injuries
including some permanent facial scars, a "nervous breakdown" and loss of two gold
bridge dentures.

Dionisio commenced an action for damages in the Court of First Instance of Pampanga
basically claiming that the legal and proximate cause of his injuries was the negligent
manner in which Carbonel had parked the dump truck entrusted to him by his employer
Phoenix. Phoenix and Carbonel, on the other hand, countered that the proximate cause
of Dionisio's injuries was his own recklessness in driving fast at the time of the accident,
while under the influence of liquor, without his headlights on and without a curfew pass.
Phoenix also sought to establish that it had exercised due rare in the selection and
supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel
and ordered the latter:

(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital
bills and the replacement of the lost dentures of plaintiff;

(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of
expected income for plaintiff brought about the accident in controversy
and which is the result of the negligence of the defendants;

(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral
damages for the unexpected and sudden withdrawal of plaintiff from his
lifetime career as a marketing man; mental anguish, wounded feeling,
serious anxiety, social humiliation, besmirched reputation, feeling of
economic insecurity, and the untold sorrows and frustration in life
experienced by plaintiff and his family since the accident in controversy
up to the present time;

(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages
for the wanton disregard of defendants to settle amicably this case with
the plaintiff before the filing of this case in court for a smaller amount.

(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as
and for attorney's fees; and

(6) The cost of suit. (Emphasis supplied)

Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-
G.R. No. 65476 affirmed the decision of the trial court but modified the award of
damages to the following extent:

1. The award of P15,000.00 as compensatory damages was

reduced to P6,460.71, the latter being the only amount that
the appellate court found the plaintiff to have proved as
actually sustained by him;

2. The award of P150,000.00 as loss of expected income was

reduced to P100,000.00, basically because Dionisio had
voluntarily resigned his job such that, in the opinion of the
appellate court, his loss of income "was not solely
attributable to the accident in question;" and

3. The award of P100,000.00 as moral damages was held by

the appellate court as excessive and unconscionable and
hence reduced to P50,000.00.

The award of P10,000.00 as exemplary damages

and P4,500.00 as attorney's fees and costs remained
untouched.
This decision of the Intermediate Appellate Court is now before us on a petition for
review.

Both the trial court and the appellate court had made fairly explicit findings of fact
relating to the manner in which the dump truck was parked along General Lacuna
Street on the basis of which both courts drew the inference that there was negligence
on the part of Carbonel, the dump truck driver, and that this negligence was the
proximate cause of the accident and Dionisio's injuries. We note, however, that both
courts failed to pass upon the defense raised by Carbonel and Phoenix that the true
legal and proximate cause of the accident was not the way in which the dump truck had
been parked but rather the reckless way in which Dionisio had driven his car that night
when he smashed into the dump truck. The Intermediate Appellate Court in its
questioned decision casually conceded that Dionisio was "in some way, negligent" but
apparently failed to see the relevance of Dionisio's negligence and made no further
mention of it. We have examined the record both before the trial court and the
Intermediate Appellate Court and we find that both parties had placed into the record
sufficient evidence on the basis of which the trial court and the appellate court could
have and should have made findings of fact relating to the alleged reckless manner in
which Dionisio drove his car that night. The petitioners Phoenix and Carbonel contend
that if there was negligence in the manner in which the dump truck was parked, that
negligence was merely a "passive and static condition" and that private respondent
Dionisio's recklessness constituted an intervening, efficient cause determinative of the
accident and the injuries he sustained. The need to administer substantial justice as
between the parties in this case, without having to remand it back to the trial court after
eleven years, compels us to address directly the contention put forward by the
petitioners and to examine for ourselves the record pertaining to Dionisio's alleged
negligence which must bear upon the liability, or extent of liability, of Phoenix and
Carbonel.

There are four factual issues that need to be looked into: (a) whether or not private
respondent Dionisio had a curfew pass valid and effective for that eventful night; (b)
whether Dionisio was driving fast or speeding just before the collision with the dump
truck; (c) whether Dionisio had purposely turned off his car's headlights before contact
with the dump truck or whether those headlights accidentally malfunctioned moments
before the collision; and (d) whether Dionisio was intoxicated at the time of the
accident.

As to the first issue relating to the curfew pass, it is clear that no curfew pass was found
on the person of Dionisio immediately after the accident nor was any found in his car.
Phoenix's evidence here consisted of the testimony of Patrolman Cuyno who had taken
Dionisio, unconscious, to the Makati Medical Center for emergency treatment
immediately after the accident. At the Makati Medical Center, a nurse took off Dionisio's
clothes and examined them along with the contents of pockets together with Patrolman
Cuyno. 1 Private respondent Dionisio was not able to produce any curfew pass during
the trial. Instead, he offered the explanation that his family may have misplaced his
curfew pass. He also offered a certification (dated two years after the accident) issued
by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of
Camp Olivas, San Fernando, Pampanga, which was said to have authority to issue
curfew passes for Pampanga and Metro Manila. This certification was to the effect that
private respondent Dionisio had a valid curfew pass. This certification did not, however,
specify any pass serial number or date or period of effectivity of the supposed curfew
pass. We find that private respondent Dionisio was unable to prove possession of a
valid curfew pass during the night of the accident and that the preponderance of
evidence shows that he did not have such a pass during that night. The relevance of
possession or non-possession of a curfew pass that night lies in the light it tends to
shed on the other related issues: whether Dionisio was speeding home and whether he
had indeed purposely put out his headlights before the accident, in order to avoid
detection and possibly arrest by the police in the nearby police station for travelling
after the onset of curfew without a valid curfew pass.

On the second issue — whether or not Dionisio was speeding home that night — both
the trial court and the appellate court were completely silent.

The defendants in the trial court introduced the testimony of Patrolman Cuyno who was
at the scene of the accident almost immediately after it occurred, the police station
where he was based being barely 200 meters away. Patrolman Cuyno testified that
people who had gathered at the scene of the accident told him that Dionisio's car was
"moving fast" and did not have its headlights on. 2 Dionisio, on the other hand, claimed
that he was travelling at a moderate speed at 30 kilometers per hour and had just
crossed the intersection of General Santos and General Lacuna Streets and had started
to accelerate when his headlights failed just before the collision took place. 3

Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and
did not fag within any of the recognized exceptions to the hearsay rule since the facts
he testified to were not acquired by him through official information and had not been
given by the informants pursuant to any duty to do so. Private respondent's objection
fails to take account of the fact that the testimony of Patrolman Cuyno is admissible not
under the official records exception to the hearsay rule 4 but rather as part of the res
gestae. 5 Testimonial evidence under this exception to the hearsay rule consists of
excited utterances made on the occasion of an occurrence or event sufficiently
startling in nature so as to render inoperative the normal reflective thought processes
of the observer and hence made as a spontaneous reaction to the occurrence or event,
and not the result of reflective thought. 6

We think that an automobile speeding down a street and suddenly smashing into a
stationary object in the dead of night is a sufficiently startling event as to evoke
spontaneous, rather than reflective, reactions from observers who happened to be
around at that time. The testimony of Patrolman Cuyno was therefore admissible as part
of the res gestae and should have been considered by the trial court. Clearly,
substantial weight should have been ascribed to such testimony, even though it did not,
as it could not, have purported to describe quantitatively the precise velocity at winch
Dionisio was travelling just before impact with the Phoenix dump truck.

A third related issue is whether Dionisio purposely turned off his headlights, or whether
his headlights accidentally malfunctioned, just moments before the accident. The
Intermediate Appellate Court expressly found that the headlights of Dionisio's car went
off as he crossed the intersection but was non-committal as to why they did so. It is the
petitioners' contention that Dionisio purposely shut off his headlights even before he
reached the intersection so as not to be detected by the police in the police precinct
which he (being a resident in the area) knew was not far away from the intersection. We
believe that the petitioners' theory is a more credible explanation than that offered by
private respondent Dionisio — i.e., that he had his headlights on but that, at the crucial
moment, these had in some mysterious if convenient way malfunctioned and gone off,
although he succeeded in switching his lights on again at "bright" split seconds before
contact with the dump truck.

A fourth and final issue relates to whether Dionisio was intoxicated at the time of the
accident. The evidence here consisted of the testimony of Patrolman Cuyno to the
effect that private respondent Dionisio smelled of liquor at the time he was taken from
his smashed car and brought to the Makati Medical Center in an unconscious
condition. 7 This testimony has to be taken in conjunction with the admission of Dionisio
that he had taken "a shot or two" of liquor before dinner with his boss that night. We do
not believe that this evidence is sufficient to show that Dionisio was so heavily under the
influence of liquor as to constitute his driving a motor vehicle per se an act of reckless
imprudence. 8 There simply is not enough evidence to show how much liquor he had in
fact taken and the effects of that upon his physical faculties or upon his judgment or
mental alertness. We are also aware that "one shot or two" of hard liquor may affect
different people differently.

The conclusion we draw from the factual circumstances outlined above is that private
respondent Dionisio was negligent the night of the accident. He was hurrying home that
night and driving faster than he should have been. Worse, he extinguished his
headlights at or near the intersection of General Lacuna and General Santos Streets
and thus did not see the dump truck that was parked askew and sticking out onto the
road lane.

Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate
Court that the legal and proximate cause of the accident and of Dionisio's injuries was
the wrongful — or negligent manner in which the dump truck was parked in other
words, the negligence of petitioner Carbonel. That there was a reasonable relationship
between petitioner Carbonel's negligence on the one hand and the accident and
respondent's injuries on the other hand, is quite clear. Put in a slightly different manner,
the collision of Dionisio's car with the dump truck was a natural and foreseeable
consequence of the truck driver's negligence.

The petitioners, however, urge that the truck driver's negligence was merely a "passive
and static condition" and that private respondent Dionisio's negligence was an
"efficient intervening cause and that consequently Dionisio's negligence must be
regarded as the legal and proximate cause of the accident rather than the earlier
negligence of Carbonel. We note that the petitioners' arguments are drawn from a
reading of some of the older cases in various jurisdictions in the United States but we
are unable to persuade ourselves that these arguments have any validity for our
jurisdiction. We note, firstly, that even in the United States, the distinctions between
"cause" and "condition" which the 'petitioners would have us adopt have already been
"almost entirely discredited." Professors and Keeton make this quite clear:

Cause and condition. Many courts have sought to distinguish between the
active "cause" of the harm and the existing "conditions" upon which that
cause operated. If the defendant has created only a passive static
condition which made the damage possible, the defendant is said not to
 be liable. But so far as the fact of causation is concerned, in the sense of
necessary antecedents which have played an important part in producing
the result it is quite impossible to distinguish between active forces and
passive situations, particularly since, as is invariably the case, the latter
are the result of other active forces which have gone before. The
defendant who spills gasoline about the premises creates a "condition,"
but the act may be culpable because of the danger of fire. When a spark
ignites the gasoline, the condition has done quite as much to bring about
the fire as the spark; and since that is the very risk which the defendant
has created, the defendant will not escape responsibility. Even the lapse
of a considerable time during which the "condition" remains static will not
necessarily affect liability; one who digs a trench in the highway may still
be liable to another who fans into it a month afterward. "Cause" and
"condition" still find occasional mention in the decisions; but the
distinction is now almost entirely discredited. So far as it has any validity
at all, it must refer to the type of case where the forces set in operation by
the defendant have come to rest in a position of apparent safety, and
some new force intervenes. But even in such cases, it is not the distinction
between "cause" and "condition" which is important but the nature of the
risk and the character of the intervening cause. 9

We believe, secondly, that the truck driver's negligence far from being a "passive and
static condition" was rather an indispensable and efficient cause. The collision between
the dump truck and the private respondent's car would in an probability not have
occurred had the dump truck not been parked askew without any warning lights or
reflector devices. The improper parking of the dump truck created an unreasonable
risk of injury for anyone driving down General Lacuna Street and for having so created
this risk, the truck driver must be held responsible. In our view, Dionisio's negligence,
although later in point of time than the truck driver's negligence and therefore closer to
the accident, was not an efficient intervening or independent cause. What the
Petitioners describe as an "intervening cause" was no more than a foreseeable
consequent manner which the truck driver had parked the dump truck. In other words,
the petitioner truck driver owed a duty to private respondent Dionisio and others
similarly situated not to impose upon them the very risk the truck driver had created.
Dionisio's negligence was not of an independent and overpowering nature as to cut, as
it were, the chain of causation in fact between the improper parking of the dump truck
and the accident, nor to sever the juris vinculum of liability. It is helpful to quote once
more from Professor and Keeton:

Foreseeable Intervening Causes. If the intervening cause is one which in

ordinary human experience is reasonably to be anticipated or one which
the defendant has reason to anticipate under the particular
circumstances, the defendant may be negligence among other reasons,
because of failure to guard against it; or the defendant may be negligent
only for that reason. Thus one who sets a fire may be required to foresee
that an ordinary, usual and customary wind arising later wig spread it
beyond the defendant's own property, and therefore to take precautions
to prevent that event. The person who leaves the combustible or explosive
material exposed in a public place may foresee the risk of fire from some
independent source. ... In all of these cases there is an intervening cause
 combining with the defendant's conduct to produce the result and in each
case the defendant's negligence consists in failure to protect the plaintiff
against that very risk.

Obviously the defendant cannot be relieved from liability by the fact that
the risk or a substantial and important part of the risk, to which the
defendant has subjected the plaintiff has indeed come to pass.
Foreseeable intervening forces are within the scope original risk, and
hence of the defendant's negligence. The courts are quite generally
agreed that intervening causes which fall fairly in this category will not
supersede the defendant's responsibility.

Thus it has been held that a defendant will be required to anticipate the
usual weather of the vicinity, including all ordinary forces of nature such
as usual wind or rain, or snow or frost or fog or even lightning; that one
who leaves an obstruction on the road or a railroad track should foresee
that a vehicle or a train will run into it; ...

The risk created by the defendant may include the intervention of the
foreseeable negligence of others. ... [The standard of reasonable conduct
may require the defendant to protect the plaintiff against 'that occasional
negligence which is one of the ordinary incidents of human life, and
therefore to be anticipated.' Thus, a defendant who blocks the sidewalk
and forces the plaintiff to walk in a street where the plaintiff will be
exposed to the risks of heavy traffic becomes liable when the plaintiff is
run down by a car, even though the car is negligently driven; and one who
parks an automobile on the highway without lights at night is not relieved
of responsibility when another negligently drives into it. --- 10

We hold that private respondent Dionisio's negligence was "only contributory," that the
"immediate and proximate cause" of the injury remained the truck driver's "lack of due
care" and that consequently respondent Dionisio may recover damages though such
damages are subject to mitigation by the courts (Article 2179, Civil Code of the
Philippines).

Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine.
The theory here of petitioners is that while the petitioner truck driver was negligent,
private respondent Dionisio had the "last clear chance" of avoiding the accident and
hence his injuries, and that Dionisio having failed to take that "last clear chance" must
bear his own injuries alone. The last clear chance doctrine of the common law was
imported into our jurisdiction by Picart vs. Smith 11 but it is a matter for debate
whether, or to what extent, it has found its way into the Civil Code of the Philippines. The
historical function of that doctrine in the common law was to mitigate the harshness of
another common law doctrine or rule that of contributory negligence. 12 The common
law rule of contributory negligence prevented any recovery at all by a plaintiff who was
also negligent, even if the plaintiff's negligence was relatively minor as compared with
the wrongful act or omission of the defendant. 13 The common law notion of last clear
chance permitted courts to grant recovery to a plaintiff who had also been negligent
provided that the defendant had the last clear chance to avoid the casualty and failed to
do so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear
chance doctrine has to play in a jurisdiction where the common law concept of
contributory negligence as an absolute bar to recovery by the plaintiff, has itself been
rejected, as it has been in Article 2179 of the Civil Code of the Philippines. 15

Is there perhaps a general concept of "last clear chance" that may be extracted from its
common law matrix and utilized as a general rule in negligence cases in a civil law
jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in
technical terms, is to determine whose negligence — the plaintiff's or the defendant's —
was the legal or proximate cause of the injury. That task is not simply or even primarily
an exercise in chronology or physics, as the petitioners seem to imply by the use of
terms like "last" or "intervening" or "immediate." The relative location in the continuum
of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of
the relevant factors that may be taken into account. Of more fundamental importance
are the nature of the negligent act or omission of each party and the character and
gravity of the risks created by such act or omission for the rest of the community. The
petitioners urge that the truck driver (and therefore his employer) should be absolved
from responsibility for his own prior negligence because the unfortunate plaintiff failed
to act with that increased diligence which had become necessary to avoid the peril
precisely created by the truck driver's own wrongful act or omission. To accept this
proposition is to come too close to wiping out the fundamental principle of law that a
man must respond for the forseeable consequences of his own negligent act or
omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in
society and to allocate them among the members of society. To accept the petitioners'
pro-position must tend to weaken the very bonds of society.

Petitioner Carbonel's proven negligence creates a presumption of negligence on the

part of his employer Phoenix 16 in supervising its employees properly and adequately.
The respondent appellate court in effect found, correctly in our opinion, that Phoenix
was not able to overcome this presumption of negligence. The circumstance that
Phoenix had allowed its truck driver to bring the dump truck to his home whenever
there was work to be done early the following morning, when coupled with the failure to
show any effort on the part of Phoenix to supervise the manner in which the dump truck
is parked when away from company premises, is an affirmative showing of culpa in
vigilando on the part of Phoenix.

Turning to the award of damages and taking into account the comparative negligence
of private respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon
the other hand, 17 we believe that the demands of substantial justice are satisfied by
allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages awarded by
the respondent appellate court, except the award of P10,000.00 as exemplary damages
and P4,500.00 as attorney's fees and costs, shall be borne by private respondent
Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix
who shall be solidarity liable therefor to the former. The award of exemplary damages
and attorney's fees and costs shall be borne exclusively by the petitioners. Phoenix is of
course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for
disturbing the reduced award of damages made by the respondent appellate court.

WHEREFORE, the decision of the respondent appellate court is modified by reducing

the aggregate amount of compensatory damages, loss of expected income and moral
damages private respondent Dionisio is entitled to by 20% of such amount. Costs
against the petitioners.

SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. Nos. 74387-90 November 14, 1988

BATANGAS LAGUNA TAYABAS BUS COMPANY & ARMANDO PON, petitioners,

vs.

INTERMEDIATE APPELLATE COURT, THE HEIRS OF PAZ VDA. DE PAMFILO, THE

HEIRS OF NORMA NERI, and BAYLON SALES and NENA VDA. DE ROSALES,
respondents.

Sibal, Custodia, Santos & Nofuente for petitioners.

Restituto L. Opis for respondents Pamfilos and Rosaleses.

Citizens Legal Assistance Office for N. Neri and Baylon Sales.

PARAS, J.:

Before Us is a Petition to Review by Certiorari, the decision 1 of the respondent

appellate court which affirmed with modification the joint decision of the trial court in
four (4) cases involving similar facts and issues, finding favorably for the plaintiffs
(private respondents herein), the dispositive portion of said appellate judgment reading
as follows:

WHEREFORE, with the modification that the death indemnity is raised to P30,000.00 to
each set of the victims' heirs, the rest of the judgment appealed from is hereby affirmed
in toto. Costs against the defendants-appellants.

SO ORDERED. (p. 20, Rollo)

From the records of the case We have gathered the following antecedent facts:

The collision between Bus No. 1046 of the Batangas Laguna Tayabas Bus Company
(BLTB, for brevity) driven by Armando Pon and Bus No. 404 of Superlines
Transportation Company (Superlines, for brevity) driven by Ruben Dasco took place at
the highway traversing Barangay Isabong, Tayabas, Quezon in the afternoon of August
11, 1978, which collision resulted in the death of Aniceto Rosales, Francisco Pamfilo
and Romeo Neri and in several injuries to Nena Rosales (wife of Anecito) and Baylon
Sales, all passengers of the BLTB Bus No. 1046. The evidence shows that as BLTB Bus
No. 1046 was negotiating the bend of the highway, it tried to overtake a Ford Fiera car
just as Bus No. 404 of Superlines was coming from the opposite direction. Seeing thus,
Armando Pon (driver of the BLTB Bus) made a belated attempt to slacken the speed of
his bus and tried to return to his proper lane. It was an unsuccessful try as the two (2)
buses collided with each other.

Nena Vda. de Rosales and Baylon Sales and the surviving heirs of the deceased
Francisco Pamfilo, Aniceto Rosales and Romeo Neri instituted separate cases in the
Court of First Instance of Marinduque against BLTB and Superlines together with their
respective drivers praying for damages, attorney's fees and litigation expenses plus
costs. Criminal cases against the drivers of the two buses were filed in the Court of First
Instance of Quezon.

Defendants BLTB and Superlines, together with their drivers Pon and Dasco, denied
liability by claiming that they exercised due care and diligence and shifted the fault,
against each other. They all interposed counterclaims against the plaintiffs and
crossclaims against each other.

After trial on the merits, the lower court exonerated defendants Superlines and its
driver Dasco from liability and attributed sole responsibility to defendants BLTB and its
driver Pon, and ordered them jointly and severally to pay damages to the plaintiffs.
Defendants BLTB and Armando Pon appealed from the decision of the lower court to
respondent appellate court which affirmed with modification the judgment of the lower
court as earlier stated.

Hence, this petition to review by certiorari of defendant BLTB assigning a lone error, to
wit:

THE INTERMEDIATE APPELLATE COURT ERRED IN ADJUDGING THAT THE ACTIONS

OF PRIVATE RESPONDENTS ARE BASED ON CULPA CONTRACTUAL. (p. 12, Rollo)

It is argued by petitioners that if the intention of private respondents were to file an

action based on culpa contractual or breach of contract of carriage, they could have
done so by merely impleading BLTB and its driver Pon. As it was in the trial court,
private respondents filed an action against all the defendants basing their action on
culpa aquiliana or tort.

Petitioners' contentions deserve no merit. A reading of the respondent court's decision

shows that it anchored petitioners' liability both on culpa contractual and culpa
aquiliana, to wit:

The proximate cause of the collision resulting in the death of three and injuries to two of
the passengers of BLTB was the negligence of the driver of the BLTB bus, who
recklessly operated and drove said bus by overtaking a Ford Fiera car as he was
negotiating the ascending bend of the highway (tsn, October 4, 1979, pp. 9-10, 35, 36,
61; Exhibit 6 Superlines, p. 47) which was divided into two lanes by a continuous yellow
strip (tsn, October 4, 1979, p. 36). The driver of the BLTB bus admitted in his cross-
examination that the continuous yellow line on the ascending bend of the highway
signifies a no-overtaking zone (tsn, October 4, 1979, p. 36). It is no surprise then that
the driver of the Superlines bus was exonerated by the lower court. He had a valid
reason to presuppose that no one would overtake in such a dangerous situation. These
facts show that patient imprudence of the BLTB driver.
It is well settled that a driver abandoning his proper lane for the purpose of overtaking
another vehicle in ordinary situation has the duty to see that the road is clear and not to
proceed if he can not do so in safety (People v. Enriquez, 40 O.G. No. 5, 984).

... Before attempting to pass the vehicle ahead, the rear driver must see that the road is
clear and if there is no sufficient room for a safe passage, or the driver ahead does not
turn out so as to afford opportunity to pass, or if, after attempting to pass, the driver of
the overtaking vehicle finds that he cannot make the passage in safety, the latter must
slacken his speed so as to avoid the danger of a collision, even bringing his car to a
stop if necessary. (3-4 Huddy Encyclopedia of Automobile Law, Sec. 212, p. 195).

The above rule becomes more particularly applicable in this case when the overtaking
took place on an ascending curved highway divided into two lanes by a continuous
yellow line. Appellant Pon should have remembered that:

When a motor vehicle is approaching or rounding a curve there is special necessity for
keeping to the right side of the road and the driver has not the right to drive on the left
hand side relying upon having time to turn to the right if a car is approaching from the
opposite direction comes into view. (42 C.J. 42 906).

Unless there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap, he was violating any traffic
regulation. (Art. 2165, Civil Code).

In failing to observe these simple precautions, BLTB's driver undoubtedly failed to act
with the diligence demanded by the circumstances.

We now come to the subject of liability of the appellants.

For his own negligence in recklessly driving the truck owned by his employer, appellant
Armando Pon is primarily liable (Article 2176, Civil Code).<äre||anº•1àw>

On the other hand the liability of Pon's employer, appellant BLTB, is also primary, direct
and immediate in view of the fact that the death of or injuries to its passengers was
through the negligence of its employee (Marahan v. Mendoza, 24 SCRA 888, 894), and
such liability does not cease even upon proof that BLTB had exercised all the diligence
of a good father of a family in the selection and supervision of its employees (Article
1759, Civil Code).

The common carrier's liability for the death of or injuries to its passengers is based on
its contractual obligation to carry its passengers safely to their destination. That
obligation is so serious that the Civil Code requires "utmost diligence of very cautious
person (Article 1755, Civil Code). They are presumed to have been at fault or to have
acted negligently unless they prove that they have observed extraordinary diligence"
(Article 1756, Civil Code). In the present case, the appellants have failed to prove
extraordinary diligence. Indeed, this legal presumption was confirmed by the fact that
the bus driver of BLTB was negligent. It must follow that both the driver and the owner
must answer for injuries or death to its passengers.
The liability of BLTB is also solidarily with its driver (Viluan v. Court of Appeals, 16 SCRA
742, 747) even though the liability of the driver springs from quasi delict while that of
the bus company from contract. (pp. 17-19, Rollo)

Conclusively therefore in consideration of the foregoing findings of the respondent

appellate court it is settled that the proximate cause of the collision resulting in the
death of three and injuries to two of the passengers of BLTB was the sole negligence of
the driver of the BLTB Bus, who recklessly operated and drove said bus in a lane where
overtaking is not allowed by Traffic Rules and Regulations. Such negligence and
recklessness is binding against petitioner BLTB, more so when We consider the fact
that in an action based on a contract of carriage, the court need not make an express
finding of fault or negligence on the part of the carrier in order to hold it responsible for
the payment of the damages sought by the passenger. By the contract of carriage, the
carrier BLTB assumed the express obligation to transport the passengers to their
destination safely and to observe extraordinary diligence with a due regard for all the
circumstances, and any injury that might be suffered by its passengers is right away
attributable to the fault or negligence of the carrier (Art. 1756, New Civil Code).

Petitioners also contend that "a common carrier is not an absolute insurer against all
risks of travel and are not liable for acts or accidents which cannot be foreseen or
inevitable and that responsibility of a common carrier for the safety of its passenger
prescribed in Articles 1733 and 1755 of the New Civil Code is not susceptible of a
precise and definite formulation." (p. 13, Rollo) Petitioners' contention holds no water
because they had totally failed to point out any factual basis for their defense of force
majeure in the light of the undisputed fact that the cause of the collision was the sole
negligence and recklessness of petitioner Armando Pon. For the defense of force
majeure or act of God to prosper the accident must be due to natural causes and
exclusively without human intervention.

WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 119092 December 10, 1998

SANITARY STEAM LAUNDRY, INC., petitioner,

vs.
THE COURT OF APPEALS, NICANOR BERNABE III, JOSEFINA BERNABE, in their
individual capacities and as HEIRS OF JASON BERNABE, JOHN JOSEPH BERNABE,
VICTOR IGNACIO, JULIETA ENRIQUEZ and RAMON ENRIQUEZ, RENE TABLANTE,
LEOMAR MACASPAC, JR., CHARITO ESTOLANO, NENITA SALUNOY, in their individual
capacities and as HEIRS OF DALMACIO SALUNOY, respondents.

MENDOZA, J.:

This case involves a collision between a Mercedes Bent panel truck of petitioner
Sanitary Steam Laundry and a Cimarron which caused the death of three persons and
the injuries of several others. The accident took place at the Aguinaldo Highway in
Imus, Cavite on August 31, 1980. All the victims were riding in the Cimarron. One of
those who died was the driver. The Regional Trial Court of Makati found petitioner's
driver to be responsible for the vehicular accident and accordingly held petitioner liable
to private respondents for P472,262.30 in damages and attorney's fees. Its decision
was affirmed in toto by the Court of Appeals. It is here for a review of the appellate
court's decision.

The passengers of the Cimarron were mostly employees of the Project Management
Consultants, Inc. (PMCI). They had just visited the construction site of a company
project at Lian, Batangas. The other passengers were family members and friends
whom they invited to an excursion to the beach after the visit to the construction site.
The group stayed at Lian beach until 5:30 p.m., when they decided to go back to Manila.

The Cimarron, with Plate No. 840-45, was owned by Salvador Salenga, father of one of
the employees of PMCI. Driving the vehicle was Rolando Hernandez. It appears that at
about 8:00 p.m., as it was traveling along Aguinaldo Highway in Imus, Cavite on its way
back to Manila, the Cimarron was hit on its front portion by petitioner's panel truck,
bearing Plate No. 581 XM, which was traveling in the opposite direction. The panel truck
was on its way to petitioner's plant in Dasmariñas, Cavite after delivering some linen to
the Makati Medical Center. The driver, Herman Hernandez, claimed that a jeepney in
front of him suddenly stopped. He said he stepped on the brakes to avoid hitting the
jeepney and that this caused his vehicle to swerve to the left and encroach on a portion
of the opposite lane. As a result, his panel truck collided with the Cimarron on the north-
bound lane.
The driver of the Cimarron, Rolando Hernandez, and two of his passengers, namely,
Jason Bernabe and Dalmacio Salunoy, died. Several of the other passengers of the
Cimarron were injured and taken to various hospitals.

On December 4, 1980, private respondents filed this civil case for damages before the
then Court of First Instance of Rizal, Pasig Branch, against petitioner.

On November 23, 1990, the Regional Trial Court of Makati, to which the case was
transferred following the reorganization of the judiciary, rendered judgment for private
respondents. The dispositive portion of its decision reads:

It is for the reasons stated above that the court is persuaded to award the
damages incurred by the plaintiffs as proved in the trial as follows:

Actual or compensatory expenses:

a. Charito Estolano P35,813.87 (Exh. J)

b. Nicanor Bernabe III 20,024.94

& Josefina C. Bernabe

c. Julieta, Ailyn & 45,830.45 (Exh. QQ)

Josefina Enriquez

and Josefina Valeiro

d. Leonor Macaspac 2,740.00

e. Victor Rey Ignacio 14,820.64 (Exh. EEE)

f. Rene Tablante 10,032.40 (Exh. QQQ)

g. Nenita Salonoy, widow; 20,000.00

and Jack & Manilyn,

children

Moral damages should also be awarded as follows:

For the injuries sustained by:

a. Charito Estolano P10,000.00 (Exh. F)

b. Julieta P. Enriquez 15,000.00 (Exh. MM)

 c. Ailyn C. Enriquez 8,000.00 (Exh. NN)

d. Josefina R. Enriquez 10,000.00 (Exh. OO)

e. Josefina P. Valerio 2,000.00 (Exh. PP)

f. Nenita Salonoy 20,000.00 (Exh. DD)

g. Nicanor Bernabe III 8,000.00 (Exh. Q)

h. Josephine Bernabe 2,000.00 (Exh. R)

i. John Joseph Bernabe 10,000.00

j. Manilyn G. Salonoy 10,000.00 (Exh. EE)

k. Jack Salonoy 10,000.00 (Exh. JJ)

l. Leonor C. Macaspac 2,000.00 (Exh. AAA)

m. Victor Ignacio 8,000.00 (Exh. DDD)

n. Rene Tablanta 8,000.00 (Exh. FFF)

and finally the heirs of Jason Bernabe should be awarded the sum of
P50,000.00 for the latter's death. The heirs of Dalmacio Salunoy should be
given the sum of P100,000.00 for moral damages and unearned income.

The foregoing considered, judgment is rendered in favor of plaintiffs

ordering defendant to pay the amounts aforecited and to pay the further
sum of P50,000.00 for attorney's fees and the costs.

SO ORDERED.

As already stated, the Court of Appeals, to which the decision of the trial court was
appealed, affirmed the decision on January 26, 1995. Hence, this appeal.

First. Petitioner contends that the driver of the Cimarron was guilty of contributory
negligence and, therefore, its liability should be mitigated, if not totally extinguished. It
claims that the driver of the Cimarron was guilty or violation of traffic rules and
regulations at the time of the mishap. Hence, in accordance with Art. 2185 of the Civil
Code, he was presumed to be negligent.

According to petitioner, the negligence consisted of the following.

1. The Cimarron was overloaded because there were from 20 to 25 passengers inside
when the passenger capacity of the vehicle was only 17.

2. The front seat of the Cimarron was occupied by four adults, including the driver.
3. The Cimarron had only one headlight on (its right headlight) as its left headlight was
not functioning.

Petitioner cites Art. III, §2 of R.A. No. 4136, known as the Land Transportation and
Traffic Code, which provides that "No person operating any vehicle shall allow more
passengers or more freight or cargo in his vehicle than its registered carry capacity"
and Art. IV, §3(e) which states that "Every motor vehicle of more than one meter of
projected width, while in use on any public highway shall bear two headlights. . . which
not later than one-half hour after sunset and until at least one-half hour before sunrise
and whenever weather conditions so require, shall both be lighted."

Petitioner asserts that the fact that its panel truck encroached on a portion of the lane
of the Cimarron does not show that its driver was negligent. Petitioner cites the case
of Bayasen v. Court of Appeals,1 which allegedly held that the sudden swerving of a
vehicle caused by its driver stepping on the brakes is not negligence per se. Petitioner
further claims that even if petitioner's swerving to the lane of respondents were
considered proof of negligence, this fact would not negate the presumption of
negligence on the part of the other driver arising from his violations of traffic rules and
regulations.

Petitioner likewise invokes the ruling in Mckee v. Intermediate Appellate Court,2 in

which a driver who invaded the opposite lane and caused a collision between his car
and a truck coming from the opposite lane, was exonerated based on the doctrine of
last clear chance, which states that a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent,
is solely responsible for the consequences of the accident.

Petitioner contends that the ruling in that case should be applied to the present case.
According to petitioner, although the driver of the panel truck was initially negligent,
the driver of the Cimarron had the last opportunity to avoid the accident. However,
because of his negligence (i.e., the aforementioned violations of traffic rules and
regulations such as the use of only one headlight at night and the overcrowding at the
front seat of the vehicle), he was not able to avoid a collision with the panel truck.

We find the foregoing contention to be without merit.

First of all, it has not been shown how the alleged negligence of the Cimarron driver
contributed to the collision between the vehicles. Indeed, petitioner has the burden of
showing a causal connection between the injury received and the violation of the Land
Transportation and Traffic Code. He must show that the violation of the statute was the
proximate or legal cause of the injury or that it substantially contributed thereto.
Negligence, consisting in whole or in part, of violation of law, like any other negligence,
is without legal consequence unless it is a contributing cause of the injury. 3 Petitioner
says that "driving an overloaded vehicle with only one functioning headlight during
nighttime certainly increases the risk of accident,"4 that because the Cimarron had only
one headlight, there was "decreased visibility," and that the tact that the vehicle was
overloaded and its front seat overcrowded "decreased [its]
maneuverability,"5 However, mere allegations such as these are not sufficient to
discharge its burden of proving clearly that such alleged negligence was the
contributing cause of the injury.
Furthermore, based on the evidence in this case, there was no way either driver could
have avoided the collision. The panel truck driver testified: 6

Q. You stated you were following a jeepney along the

highway in Imus, Cavite, what happened afterwards, if any?

A. The passenger jeepney I was following made a sudden

stop so I stepped on the brakes.

Q. Upon stepping on your brakes, what happened if any?

A. The Mercedes Benz (panel) suddenly swerved to the left,

sir.

Q. How big was the swerving to the left?

A. The distance which my vehicle swerved beyond the

middle line or center line to the left was about this distance,
sir (witness demonstrating by using both hands the
distance).

ATTY. ALILING:

Can we stipulate that it is 1 foot, Your Honor.

ATTY. GONZALES:

A little more, 1 1/2 feet.

ATTY. ALILING:

1 1/4 feet.

ATTY. GONZALES:

Between 1 1/4 and 1 1/2 feet.

The panel truck driver's testimony is consistent with the testimonies of private
respondents that the panel truck went out of control and simply smashed into the
Cimarron in which they were riding. Thus, Nicanor Bernabe III
testified:7

Q: And did you see how the accident happened?

A: I just saw a glare of light. That is all and then the impact.

Q: Where did you see that glare of light?

A: Coming in front ahead of us.

 Q: When you say ahead of you, was it . . . ?

A: Towards us.

xxx xxx xxx

Q: And from what did those glare of light come from.

A: Based on information I received, the light came from the

headlights of a certain panel owned by Sanitary Steam
Laundry, Inc.

xxx xxx xxx

Q: You said that the lights were going towards you. Now, at
what pace did these lights come toward you?

A: Fast pace.

Charito Estolano, another passenger who was seated in front of the Cimarron, similarly
testified that they just saw the panel truck hurtling toward them. She said: 8

Q Now, you said earlier that you were involved in an

accident.
What was that accident?

A An approaching vehicle hit us.

Q Now, why do you know that there was the approaching

vehicle?

A There was a light which glared us and I knew that it came

from a vehicle. We were blinded.

Q Where was this vehicle headed for?

A Headed for Cavite.

Q Coming from?

A Coming from Manila, I think.

Q So that, actually, in relation to your vehicle, it was coming

from the opposite direction?

A Yes, sir.
 Q Now, you said that the light headed towards your vehicle.
On which side of the highway was your Tamaraw vehicle
travelling at that time?

A We were on the right lane.

Q Did you actually see this light from the vehicle coming
from the opposite direction heading towards your vehicle?

A Yes, sir,

Q And what happened after that?

A After that, there was an impact.

Q All right. Will you tell the Court which bumped which?

A We were bumped by the vehicle which was coming from

the opposite direction.

The foregoing testimonies show that the driver of the panel truck lost control of his
vehicle and bumped the Cimarron. Hence, even if both headlights of the Cimarron were
lighted, it would have been bumped just the same because the driver of the panel truck
could not stop despite the fact that he applied the brakes. Petitioner's contention that
because of "decreased visibility," caused by the fact that the Cimarron allegedly had
only one headlight on, its driver failed to see the Cimarron is without any basis in fact.
Only its driver claimed that the Cimarron had only one headlight on. The police
investigator did not state in his report or in his testimony that the Cimarron had only one
headlight on.

Nor is there any basis in fact for petitioner's contention that because of overcrowding in
the front seat of the Cimarron there was "decreased maneuverability" which prevented
the Cimarron driver from avoiding the panel truck. There is absolutely no basis for this
claim. There is nothing in the testimonies of the passengers of the Cimarron,
particularly Charito Estolano, who was seated in front, which suggest that the driver
had no elbow room for maneuvering the vehicle. To the contrary, from the testimony of
some of the witnesses,9 it appears that the driver of the Cimarron tried to avoid the
collision but because of the emergency created by the speeding panel truck coming
from the opposite direction he was not able to fully move his Cimarron away from the
path of the oncoming vehicle. We are convinced that no "manuevering" which the
Cimarron driver could have done would have avoided a collision with the panel truck,
given the suddenness of the events. Clearly, the overcrowding in the front seat was
immaterial.

All these point to the fact that the proximate cause of the accident was the negligence
of petitioner's driver. As the trial court noted, the swerving of petitioner's panel truck to
the opposite lane could mean not only that petitioner's driver was running the vehicle at
a very high speed but that he was tailgating the passenger jeepney ahead of it as well.
Petitioner's driver claimed that the distance between the panel truck and the passenger
jeepney in front was about 12 meters. 10 If this was so, he would have had no difficulty
bringing his panel truck to a stop. It is very probable that the driver did not really apply
his brakes (which is why there were no skid marks) but that finding the jeepney in front
of him to be in close proximity, he tried to avoid hitting it by swerving his vehicle to the
left. In the process, however, he invaded a portion of the opposite lane and
consequently hit the Cimarron. Indeed, the panel truck driver testified that his vehicle
was running at the speed of 60 miles per hour. 11 He tried to correct himself when asked
by petitioner's counsel whether the panel truck speedometer indicated miles or
kilometers by saying that the speedometer measured kilometers and not miles, but on
cross examination his testimony got muddled. 12

Be that as it may, whether the driver meant 60 miles per hour (which could be 96.77
kilometers per hour) or 60 kilometers per hour, the fact remains that the panel truck
was overspeeding because the maximum allowable speed for truck and buses on open
country roads, such as the Aguinaldo Highway in Imus, Cavite, is only 50 kilometers per
hour. 13

The case of Bayasen, which petitioner invokes, cannot apply to this case. There was no
swerving of the vehicle in that case but skidding, and it was caused by the fact that the
road was wet and slippery. In this case, the road was dry and safe. There was no
reason for the vehicle to swerve because of road condition. The only explanation for
this occurrence was human error.

Petitioner's reliance on the McKee case is also misplaced. In that case, the driver of the
vehicle at fault, a truck, had an opportunity to avoid the collision but he ignored the
signals from the other vehicle, a car, to slow down and allow it to safely pass the bridge.
In this case, there was no such opportunity given the Cimarron on the night of the
mishap. Everything happened so quickly that before the passengers of the Cimarron
knew it, the vehicle had been bumped by the truck.

Second. On its liability as employer of the negligent driver, petitioner contends that the
non-submission of the NBI clearance and police clearance of its driver does not mean
that it failed to exercise the diligence of a good father of the family in the selection and
supervision of its employees. It argues that there is no law requiring employees to
submit NBI and police clearance prior to their employment. Hence, petitioner's failure
to require submission of these documents does not mean that it did not exercise due
diligence in the selection and supervision of its employees. On the other hand, it asserts
that its employment of Herman Hernandez as a driver means that he had passed the
screening tests of the company, including submission of the aforementioned
documents. Petitioner maintains that the presumption is that the said driver submitted
NBI and police clearance.

Petitioner likewise contends that the Court of Appeal's position that it failed to exercise
due diligence in the selection and supervision of its employees by not requiring its
prospective employees to undergo psychological and physical tests before employment
has no basis in law because there is no law requiring such tests prior to hiring
employees.
The petitioner's contention has no merit. The Court of Appeals did not say that
petitioner's failure to submit NBI and police clearances of its driver was proof that
petitioner failed to exercise due diligence in the selection of its employees. What the
Court of Appeals said was that petitioner's policy of requiring prospective employees to
submit NBI and police clearance and to have at least two (2) years experience as driver
prior to employment was not enough to prove the exercise of due diligence and that
even this policy petitioner failed to prove by its failure to present the driver's NBI and
police records during the trial.

With respect to the requirement of passing psychological and physical tests prior to his
employment, although no law requires it, such circumstance would certainly be a
reliable indicator of the exercise of due diligence. As the trial court said: 14

. . . No tests of skill, physical as well as mental and emotional, were

conducted on their would-be employees. No on-the-job training and
seminars reminding employees, especially drivers, of road courtesies and
road rules and regulations were done. There were no instructions given to
defendant's drivers as to how to react in cases of emergency nor what to
do after an emergency occurs. There was even failure on the part of
defendant to present its concerned employee's 204 file. All these could
only mean failure on the part of defendant to exercise the diligence
required of it of a good father of a family in the selection and supervision
of its employees.

Indeed, driving exacts a more than usual toll on the senses. 15 Accordingly, it
behooves employers to exert extra care in the selection and supervision of their
employees. They must go beyond the minimum requirements fixed by law. In this
case, David Bautista, the office manager of petitioner in its Dasmariñas plant,
said that petitioner has a policy of requiring job applicants to submit clearances
from the police and the NBI. In the case of applicants for the position of driver
they are required to have at least two (2) years driving experience and to be
holders of a professional driver's license for at least two years. But the supposed
company policies on employment were not in writing. Nor did Bautista show in
what manner he supervised the drivers to ensure that they drove their vehicles in
a safe way.

Third. With respect to the question of damages, we find no reversible error committed
in the award of actual damages to private respondents. To justify an award of actual
damages, there must be competent proof of the actual amount of loss. Credence can be
given only to claims which are duly supported by receipts. 16 Here, the actual damages
claimed by private respondents were duly supported by receipts and appear to have
been really incurred.

As to the moral damages awarded, we find them to be reasonable and necessary in

view of the circumstances of this case. Moral damages are awarded to allow the victims
to obtain means, diversion, or amusement to alleviate the moral suffering they had
undergone due to the defendant's culpable action. 17 In this case, private respondents
doubtless suffered some ordeal because some of them lost their loved ones, while
others lost their future. Within the meaning of Art. 2217 of the Civil Code, they suffered
sleepless night, mental anguish, serious anxiety, and wounded feelings. An award of
moral damages in their favor is thus justified.

The award of P50,000,00 to the heirs of Jason Bernabe as death indemnity is likewise in
accordance with law. 18 However, the award of P100,000 to the heirs of Dalmacio
Salunoy, denominated in the decision of the trial court as "moral damages and
unearned income" cannot be upheld. The heirs were already included among those
awarded moral damages. Marilyn Salunoy was ordered to be paid P10,000, Jack
Salunoy, P10,000, and their mother Nenita Salunoy, P20,000, as moral damages. The
amount of P100,000 was presumably awarded primarily for loss of earning capacity but
even then the amount must be modified. In accordance with our cases 19 on this
question, the formula for determining the life expectancy of Dalmacio Salunoy must be
determined by applying the formula 2/3 multiplied by (80 minus the age of the
deceased). Since Salunoy was 46 years of age at the time of his death, as stated in his
death certificate, then his life expectancy was 22.6 years, or up to 68 years old.

Next, his net earnings must be computed. At the time of his death. Dalmacio Salunoy
was earning more than P900.00 a month as bookkeeper at the PMCI so that his annual
gross earning was about P11,000.00. From this amount, about 50% should be deducted
as reasonable and necessary living expenses because it seems his wife occasionally
finds work and thus helps in the household expenses.

Based on the foregoing, his net earning capacity was P124,300.00 computed as
follows: 20

net earning life Gross reasonable &

capacity (x) = expectany x annual less necessary

income living

expenses

x = [2 (80-46)] x [P11,000 - P5,500]

= 22.6 x 5,500

= P124,300.00

In addition, the heirs of Dalmacio Salunoy should be paid P50,000.00 as death

indemnity.

Finally, the award of attorney's fees should be disallowed as the trial court did not give
any justification for granting it in its decision. It is now settled that awards of attorney's
fees must be based on findings of fact and law, stated in the decision of the trial court. 21
WHEREFORE, the decision of the Court of Appeals is MODIFIED in the sense that the
award of P100,000.00 denominated "for moral damages and unearned income" is
deleted, and in lieu thereof the amount of P124,300.00 for loss of earning capacity and
the further amount of P50,000.00 for death indemnity are awarded to the heirs of
Dalmacio Salunoy and the award of P50,000.00 for attorney's fees is disallowed. In all
other respects the appealed decision is AFFIRMED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-30741 January 30, 1930

TOMAS BERNAL and FORTUNATA ENVERSO, plaintiffs-appellants,

vs.
J. V. HOUSE and TACLOBAN ELECTRIC and ICE PLANT, LTD., defendants-appellee.

Kapunan and Kapunan for appellants.

Camus and Delgado for appellees.

MALCOLM, J.:

The parents of the five-year old child, Purificacion Bernal, appeal from a judgment of
the Court of First Instance of Leyte, which denied them P15,000 damages from J.V.
House and the Tacloban Electric & Ice Plant, Ltd., for the death of the child as a
consequence of burns alleged to have been caused by the fault and negligence of the
defendants.

The salient facts as found by the trial judge are the following:

On the evening of April 10, 1925, the procession of Holy Friday was held in Tacloban,
Leyte. Fortunata Enverso with her daughter Purificacion Bernal came from another
municipality to attend the religious celebration. After the procession was over, the
woman and her daughter, accompanied by two other persons by the names of Fausto
and Elias, passed along a public street named Gran Capitan. The little girl was allowed
to get a short distance in advance of her mother and her friends. When in front of the
offices of the Tacloban Electric & Ice Plant, Ltd., and automobile appeared from the
opposite direction which so frightened the child that she turned to run, with the result
that she fell into the street gutter. At that time there was hot water in this gutter or ditch
coming from the Electric Ice Plant of J.V. House. When the mother and her companions
reached the child, they found her face downward in the hot water. Her clothes were
immediately removed and, then covered with a garment, the girl was taken to the
provincial hospital. There she was attended by the resident physician, Dr. Victoriano A.
Benitez. Despite his efforts, the child died that same night at 11:40 o'clock.

Dr. Benitez, who, of course, was in a better position than any one to know the cause of
the death, and who had no reason to depart from the true facts, certified that the cause
of death was "Burns, 3rd Degree, whole Body", and that the contributory causes were
"Congestion of the Brain and visceras of the chest & abdomen". The same physician in
his general record in the Leyte Hospital for this patient, under diagnosis in full, stated:
"Burned 3rd Degree, whole body". The treatment record of the attending nurse was
much to the same effect.
The defense was that the hot water was permitted to flow down the side of the street
Gran Captain with the knowledge and consent of the authorities; that the cause of death
was other than the hot water; and that in the death the plaintiffs contributed by their
own fault and negligence. The trial judge, however, after examination of the evidence
presented by the defendants, failed to sustain their theory of the case, except as to the
last mentioned special defense. We are shown no good reason for the departing from
the conclusion of the trial judge to the effect that the sudden death of the child
Purification Bernal was due principally to the nervous shock and organic calefaction
produced by the extensive burns from the hot water. "The danger from burns is
proportional rather to the extent of surface involved than to the depth of the burn".
(Wharton & Stille's Medical Jurisprudence, vol. 3, p. 263). The same authority
continues. "Burns of the first degree, covering two-thirds of the body surface, are rarely
recovered from. . . . Children seem especially susceptible to the effect of burns." (Pp.
263, 264).

Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless
was led to order the dismissal of the action because of the contributory negligence of
the plaintiffs. It is from this point that a majority of the court depart from the stand taken
by the trial judge. The mother and her child had a perfect right to be on the principal
street of Tacloban, Leyte, on the evening when the religious procession was held. There
was nothing abnormal in allowing the child to run along a few paces in advance of the
mother. No one could foresee the coincidence of an automobile appearing and of a
frightened child running and falling into a ditch filled with hot water. The doctrines
announced in the much debated case of Rakes vs. Atlantic, Gulf and Pacific Co. ([1907],
7 Phil., 359), still rule. Article 1902 of the Civil Code must again be enforced. The
contributory negligence of the child and her mother, if any, does not operate as a bar to
recovery, but in its strictest sense could only result in reduction of the damages.

Having reached the conclusion that liability exists, we next turn to discover who can
recover damages for the obligation, and against whom the action will lie. The plaintiffs
are Tomas Bernal and Fortunata Enverso. The latter was the mother of Purificacion
Bernal and the former was the natural father, who had never legally recognized his
child. The daughter lived with the mother, and presumably was supported by her. Under
these facts, recovery should be permitted the mother but not the father. As to the
defendants, they are J.V. House and the Tacloban Electric & Ice Plant, Ltd., J.V. House
was granted a franchise by Act No. 2700 of the Philippine Legislature approved on
March 9, 1917. He only transferred this franchise formally to the Tacloban Electric & Ice
Plant, Ltd. on March 30, 1926, that is, nearly a year after the death of the child
Purificacion Bernal. Under these facts, J.V. House is solely responsible.

Counsel for appellees point out that there is no satisfactory proof to establish the
pecuniary loss. That is true. But in cases of this character the law presumes a loss
because of the impossibility of exact computation. There is not enough money in the
entire world to compensate a mother for the death of her child. In criminal cases, the
rule has been to allow as a matter of course P1,000 as indemnity to the heirs of the
deceased. In the case of Manzanares vs. Moreta ([1918], 38 Phil., 821), which in many
respects is on all fours with the case at bar, the same amount of P1,000 was allowed the
mother of the dead boy eight or nine years of age. The same criterion will have to be
followed in this instance.
The result will, therefore, be to accept the findings of fact made by the trial judge; to set
aside the legal deductions flowing from those facts; to hold that the death of the child
Purificacion Bernal was the result of fault and negligence in permitting hot water to flow
through the public streets, there to endanger the lives of passers-by who were
unfortunately enough to fall into it; to rule that the proper plaintiff is the mother
Fortunata Enverso and not the natural father Tomas Bernal; to likewise rule that the
person responsible to the plaintiff is J.V. House and not the entity the Tacloban Electric
& Ice Plant, Ltd.; and finally to adjudge that the amount of recovery, without the
tendering of special proof, should be fixed, as in other cases, at P1,000.

Concordant with the pronouncements just made, the judgment appealed from shall in
part be reversed and in the court of origin another judgment shall issue in favor of
Fortunata Enverso and against J.V. House for the amount of P1,000, and for the costs of
both instances.

Street, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.

Johnson, J., dissents.
FIRST DIVISION

[G.R. No. 7567. November 12, 1912. ]

THE UNITED STATES, Plaintiff-Appellee, v. SEGUNDO BARIAS, Defendant-Appellant.

Bruce, Lawrence, Ross & Block for Appellant.

Solicitor-General Harvey for Appellee.

SYLLABUS

1. NEGLIGENCE DEFINED. — Negligence is "the failure to observe, for the protection of

the interests of another person, that degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other person suffers injury."cralaw
virtua1aw library

2. ID.; ID. — Silvela’s observation that "if a moment’s attention and reflexion would have
shown a person that the act which he was about to perform was liable to have the
harmful consequences which it had, such person acted with temerity and may be guilty
of imprudencia temeraria," cited with approval.

3. ID.; ID. — "The diligence with which the law requires the individual at all times to
govern his conduct varies with the nature of the situation in which he is placed and with
the importance of the act which he is to perform." (U. S. v. Reyes, 1 Phil. Rep., 375,
377.)

4. ID.; STREET RAILWAYS; DUTIES AND RESPONSIBILITIES OF MOTORMEN. — Held,

that a motorman operating a street car on a public street in a densely populated section
of the city of Manila is bound to know and to recognize that any negligence on his part in
observing the track over which he is running his car may result in fatal accidents. He
has no right, when he starts from a standstill, to assume that the track before his car is
clear. It is his duty to satisfy himself of that fact by keeping a sharp lookout and doing
everything in his power to avoid the danger which is necessarily incident to the
operation of heavy street cars on thoroughfares in populous sections of the city.

5. ID.; ID.; ID. — In the absence of some regulation of his employers, a motorman who
has brought his car to a standstill is not bound to keep his eyes directly to the front
while the car is stopped, but before setting it again in motion, it is his duty to satisfy
himself that the track is clear, and for that purpose to look and to see the track just in
front of his car.

6. ID.; ID.; ID. — The reasons of public policy which impose upon street car companies
and their employees the duty of exercising the utmost degree of diligence in securing
the safety of passengers, apply with equal force to the duty of avoiding infliction of
injuries upon pedestrians and others upon the public streets and thoroughfares over
which such companies are authorized to run their cars.

7. ID.; ID.; ID. — It is the manifest duty of a motorman operating an electric street car on
a public thoroughfare in as thickly settled district, to satisfy himself that the track is
clear immediately in front of his car before setting it in motion from a standstill and for
that purpose to incline his body slightly forward, if that be necessary, in order to bring
the track immediately in front of his car within his line of vision.

DECISION

CARSON, J. :

This is an appeal from a sentence imposed by the Honorable A. S. Crossfield, judge of

the Court of First Instance of Manila, for homicide resulting from reckless negligence.
The information charges:jgc:chanrobles.com.ph

"That on or about November 2, 1911, in the city of Manila, Philippine Islands, the said
Segundo Barias was a motorman on street car No. 9, run 7, of the Pasay-Cervantes
lines of the Manila Electric Railroad and Light Company, a corporation duly organized
and doing business in the city of Manila, Philippine Islands; as such motorman he was
controlling and operating said street car along Rizal Avenue, formerly Calle Cervantes,
of this city, and as such motorman of said street car he was under obligation to run the
same with due care and diligence to avoid any accident that might occur to vehicles
and pedestrians who were traveling on said Rizal Avenue; said accused, at said time
and place, did willfully, with reckless imprudenced and inexcusable negligence and in
violation of the regulations promulgated to that effect, control and operate said street
car, without heeding the pedestrians crossing Rizal Avenue from one side to the other,
thus knocking down and causing by his carelessness and imprudent negligence that
said street car No. 9, operated and controlled by said accused, as hereinbefore stated,
should knock down and pass over the body and head of one Fermina Jose, a girl 2 years
old, who at said time and place was crossing the said Rizal Avenue, the body of said girl
being dragged along the street-car track on said Rizal Avenue for a long distance, thus
crushing and destroying her head and causing her sudden death as a result of the injury
received; that if the acts executed by the accused had been done with malice, he would
be guilty of the serious crime of homicide."cralaw virtua1aw library

The defendant was a motorman for the Manila Electric Railroad and Light Company. At
about 6 o’clock on the morning of November 2, 1911, he was driving his car along Rizal
Avenue and stopped it near the intersection of that street with Calle Requesen to take
on some passengers. When the car stopped, the defendant looked backward,
presumably to note whether all the passengers were aboard, and then started his car.
At that moment Ferminia Jose, a child about 3 years old, walked or ran in front of the
car. She was knocked down and dragged some little distance underneath the car, and
was left dead upon the track. The motorman proceeded with his car to the end of the
track, some distance from the place of the accident, and apparently knew nothing of it
until his return, when he was informed of what had happened.

There is no substantial dispute as to the facts. It is true that one witness testified that
the defendant started the car without turning his head, and while he was still looking
backwards and that this testimony was directly contradicted by that of another witness.
But we do not deem it necessary to make an express finding as to the precise direction
in which the defendant’s head was turned at the moment when he started his car. It is
sufficient for the purpose of our decision to hold, as we do, that the evidence clearly
discloses that he started his car from a standstill without looking over the track
immediately in front of the car to satisfy himself that it was clear. He did not see the
child until after he had run his car over it, and after he had returned to the place where
it was found dead, and we think we are justified in saying that wherever he was looking
at the moment when he started his car, he was not looking at the track immediately in
front of the car, and that he had not satisfied himself that this portion of the track was
clear immediately before putting the car in motion.

The trial court found the defendant guilty of imprudencia temeraria (reckless
negligence) as charged in the information, and sentenced him to one year and one
month of imprisonment in Bilibid Prison, and to pay the costs of the action.

The sole question raised by this appeal is whether the evidence shows such
carelessness or want of ordinary care on the part of the defendant as to amount to
reckless negligence (imprudencia temeraria).

Judge Cooley in his work on Torts (3d ed., 1324) defines negligence to be: "The failure
to observe, for the protection of the interests of another person, that degree of care,
precaution and vigilance which the circumstances justly demand, whereby such other
person suffers injury."cralaw virtua1aw library

In the case of U. S. v. Nava, (1 Phi. Rep., 580), we held that: "Reckless negligence
consists of the failure to take such precautions or advance measures in the
performance of an act as the most common prudence would suggest whereby injury is
caused to persons or to property."cralaw virtua1aw library

Silvela says in his "Derecho Penal," in speaking of reckless imprudence (imprudencia

temeraria):jgc:chanrobles.com.ph

"The word ’negligencia’ used in the code, and the term ’imprudencia’ with which this
punishable act is defined, express this idea in such a clear manner that it is not
necessary to enlarge upon it. He who has done everything on his part to prevent his
actions from causing damage to another, although he has not succeeded in doing so,
notwithstanding his efforts, is the victim of an accident, and cannot be considered
responsible for the same." (Vol. 2, p. 127 [153].)

"Temerario is, in our opinion, one who omits, with regard to his actions, which are liable
to cause injury to another, that care and diligence, that attention, which can be required
of the least careful, attentive, or diligent. If a moment’s attention and reflection would
have shown a person that the act which he was about to perform was liable to have the
harmful consequence which it had, such person acted with temerity and may be guilty
of ’imprudencia temeraria." It may be that in practice this idea has been given a greater
scope and acts of imprudence which did not show carelessness as carried to such a
high degree, might have been punished as ’imprudencia temeraria;’ but in our opinion,
the proper meaning of the word does not authorize another interpretation." (Id., p 133
[161].)

Groizard, commenting upon "imprudencia temeraria," on page 389, volume 8, of his

work on the Penal Code, says:jgc:chanrobles.com.ph
"Prudence is that cardinal virtue which teaches us to discern and distinguish the good
from the bad, in order to adopt or to flee from it. It also means good judgment,
temperance, and moderation in one’s action.’Temerario’ without reflection and without
examining the same. Consequently, he who from lack of good judgment, temperance, or
moderation in his action, exposes himself without reflection and examination to the
danger of committing a crime, must be held responsible under the provision of law
aforementioned."cralaw virtua1aw library

Negligence is want of the care required by the circumstances. It is a relative or

comparative, not an absolute, term and its application depends upon the situation of the
parties and the degree of care and vigilance which the circumstances reasonably
require. Where the danger is great, a high degree of care is necessary, and the failure
to observe it is a want of ordinary care under the circumstances. (Ahern v. Oregon
Telephone Co., 24 Oreg., 276, 294; 35 Pac., 549.)

Ordinary care, if the danger is great, may rise to the grade of a very exact and
unchangeable attention. (Parry Mfg. Co. v. Eaton, 41 Ind. App., 81, 1908; 83 N. E., 510.)

In the case of U. S. v. Reyes (1 Phil. Rep., 375-377), we held that: "The diligence with
which the law requires the individual at all times to govern his conduct varies with the
nature of the situation in which he is placed and with the importance of the act which he
is to perform."cralaw virtua1aw library

The question to be determined then, is whether, under all the circumstances, and
having in mind the situation of the defendant when he put his car in motion and ran it
over the child, he was guilty of a failure to take such precautions or advance measures
as common prudence would suggest.

The evidence shows that the thoroughfare on which the incident occurred was a public
street in a densely populated section of the city. The hour was six in the morning, or
about the time when the residents of such streets begin to move about. Under such
conditions a motorman of an electric street car was clearly charged with a high degree
of diligence in the performance of his duties. He was bound to know and to recognize
that any negligence on his part in observing the track over which he was running his car
might result in fatal accidents. He had no right to assume that the track before his car
was clear. It was his duty to satisfy himself of that fact by keeping a sharp lookout, and
to do everything in his power to avoid the danger which is necessarily incident to the
operation of heavy street cars on public thoroughfares in populous sections of the city.

Did he exercise the degree of diligence required of him? We think this question must be
answered in the negative. We do not go so far as to say that having brought his car to a
standstill it was his bounden duty to keep his eyes directed to the front. Indeed, in the
absence of some regulation of his employers, we can well understand that, at times, it
might be highly proper and prudent for him to gland back before again setting his car in
motion, to satisfy himself that he understood correctly a signal to go forward or that all
the passengers had safely alighted or gotten on board. But we do insist that before
setting his car again in motion, it was his duty to satisfy himself that the track was clear,
and, for that purpose, to look and to see the track just in front of his car. This the
defendant did not do, and the result of his negligence was the death of the child.
In the case of Smith v. St. Paul City Ry. Co., (32 Min., p. 1), the supreme court of
Minnesota, in discussing the diligence required of street railway companies in the
conduct of their business observed that: "The defendant was a carrier of passengers
for hire, owning and controlling the tracks and cars operated thereon. It is therefore
subject to the rules applicable to passenger carriers. (Thompson’s Carriers, 442;
Barrett v. Third Ave. R. Co., 1 Sweeny, 568; 8 Abb. Pr. (N. S.) , 205.) As respects
hazards and dangers incident to the business or employment, the law enjoins upon
such carrier the highest degree of care consistent with its undertaking, and it is
responsible for the slightest negligence. (Wilson v. Northern Pacific R. Co., 26 minn.,
278; Warren v. Fitchburg R. Co., 8 Allen, 233; 43 Am. Dec. 354, 356, notes and cases.) . .
. The severe rule which enjoins upon the carrier such extraordinary care and diligence,
is intended, for reasons of public policy, to secure the safe carriage of passengers, in
so far as human skill and foresight can affect such result." The case just cited was a
civil case, and the doctrine therein announced d especial reference to the care which
should be exercised in securing the safety of passengers. But we hold that the reasons
of public policy which imposed upon street car companies and their employees the duty
of exercising the utmost degree of diligence in securing the safety of passengers, apply
with equal force to the duty of avoiding the infliction of injuries upon pedestrians and
others on the public streets and thoroughfares over which these companies are
authorized to run their cars. And while, in a criminal case, the courts will require proof
of the guilt of the company or its employees beyond a reasonable doubt, nevertheless
the care or diligence required of the company and its employees is the same in both
cases, and the only question to be determined is whether the proof shows beyond a
reasonable doubt that the failure to exercise such care or diligence was the cause of
the accident, and that the defendant was guilty thereof.

Counsel for the defendant insist that the accident might have happened despite the
exercise of the utmost care by the defendant, and they have introduced photographs
into the record for the purpose of proving that while the motorman was standing in his
proper place on the front platform of the car, a child might have walked up immediately
in front of the car, a child might have walked up immediately in front of the car without
coming within the line of his vision. Examining the photographs, we think that this
contention may have some foundation in fact; but only to this extent, that standing
erect, at the position he would ordinarily assume while the car is in motion, the eye of
the average motorman might just miss seeing the top of the head of a child, about three
years old, standing or walking close up to the front of the car. But it is also very evident
that by inclining the head and shoulders forward very slightly, and glancing in front of
the car, a person in the position of a motorman could not fail to see a child on the track
immediately in front of his car; and we hold that it is the manifest duty of a motorman,
who is about to start his car on a public thoroughfare in a thickly-settled district, to
satisfy himself that the track is clear immediately in front of his car, a person in the
position of a motorman could not fail to see a child on the track immediately in front of
his car; and we hold that it is the manifest duty of a motorman, who is about to start his
car on a public thoroughfare in a thickly-settled district, to satisfy himself that the track
is clear immediately in front of his car, and to incline his body slightly forward, if that be
necessary, in order to bring the whole track within his line of vision. Of course, this may
not be, and usually is not necessary when the car is in motion, but we think that it is
required by the dictates of the most ordinary prudence in starting from a standstill.
We are not unmindful of our remarks in the case of U. S. v. Bacho (10 Phil. Rep., 577), to
which our attention is directed by counsel for Appellant. In that case we said
that:jgc:chanrobles.com.ph

". . . In the general experience of mankind, accidents apparently unavoidable and often
inexplicable are unfortunately too frequent to permit us to conclude that some one must
be criminally liable for negligence in every case where an accident occurs. it is the duty
of the prosecution in each case to prove by competent evidence not only the existence
of criminal negligence, but that the accused was guilty thereof."cralaw virtua1aw
library

Nor do we overlook the ruling in the case of U. S. v. Barnes (12 Phil. Rep., 93), to which
our attention is also invited, wherein we held that the defendant was not guilty of
reckless negligence, where it appeared that he killed another by the discharge of his
gun under such circumstances that he might have been held guilty of criminally
reckless negligence had he had knowledge at that moment that another person was in
such position as to be in danger if the gun should be discharged. In this latter case the
defendant had no reason to anticipate that the person who was injured was in the line of
fire, or that there was any probability that he or anyone else would place himself in the
line of fire. In the case at bar, however, it was, as we have seen, the manifest duty of the
motorman to take reasonable precautions in starting his car to see that in doing so he
was not endangering the life of any pedestrian, old or young; and to this end it was
further his duty to guard against the reasonable possibility that some one might be on
the evidence showing, is it does, that the child was killed at the moment when the car
was set in motion, we are justified in holding that, had the motorman seen the child, he
could have avoided the accident; the accident was not, therefore, "unavoidable or
inexplicable," and it appearing that the motorman, by the exercise of ordinary diligence,
might have seen the child before he set the car in motion, his failure to satisfy himself
that the track was clear before doing so was reckless negligence, of which he was
properly convicted in the court below.

We think, however, that the penalty should be reduced to that of six months and one day
of prision correccional. Modified by substituting for so much thereof as imposes the
penalty of one year and one month of imprisonment, the penalty of six months and one
day of prision correccional, the judgment of the lower court convicting and sentencing
the appellant is affirmed, with the costs of both instances against him. So ordered.
FIRST DIVISION

[G.R. No. 129792. December 21, 1999]

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA

PANELO, Petitioners, v. HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR
and CRISELDA R. AGUILAR, Respondents.

DECISION

DAVIDE, JR., C.J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners
seek the reversal of the 17 June 1996 decision1 of the Court of Appeals in C.A. G.R. No.
CV 37937 and the resolution2denying their motion for reconsideration. The assailed
decision set aside the 15 January 1992 judgment of the Regional Trial Court (RTC),
Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages
and attorneys fees to private respondents Conrado and Criselda (CRISELDA) Aguilar.

Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store,

Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the stores
branch manager, operations manager, and supervisor, respectively. Private
respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).

In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of
Syvels Department Store, Makati City. CRISELDA was signing her credit card slip at the
payment and verification counter when she felt a sudden gust of wind and heard a loud
thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her
young body pinned by the bulk of the stores gift-wrapping counter/structure. ZHIENETH
was crying and screaming for help. Although shocked, CRISELDA was quick to ask the
assistance of the people around in lifting the counter and retrieving ZHIENETH from the
floor.3

ZHIENETH was quickly rushed to the Makati Medical Center where she was operated
on. The next day ZHIENETH lost her speech and thereafter communicated with
CRISELDA by writing on a magic slate. The injuries she sustained took their toil on her
young body. She died fourteen (14) days after the accident or on 22 May 1983, on the
hospital bed. She was six years old.4

The cause of her death was attributed to the injuries she sustained. The provisional
medical certificate5 issued by ZHIENETHs attending doctor described the extent of her
injuries:

Diagnoses:

1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury

2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver

3. Rupture, stomach, anterior & posterior walls

4. Complete transection, 4th position, duodenum

5. Hematoma, extensive, retroperitoneal

6. Contusion, lungs, severe

CRITICAL

After the burial of their daughter, private respondents demanded upon petitioners the
reimbursement of the hospitalization, medical bills and wake and funeral
expenses6 which they had incurred. Petitioners refused to pay. Consequently, private
respondents filed a complaint for damages, docketed as Civil Case No. 7119 wherein
they sought the payment of P157,522.86 for actual damages, P300,000 for moral
damages, P20,000 for attorneys fees and an unspecified amount for loss of income and
exemplary damages.

In their answer with counterclaim, petitioners denied any liability for the injuries and
consequent death of ZHIENETH. They claimed that CRISELDA was negligent in
exercising care and diligence over her daughter by allowing her to freely roam around
in a store filled with glassware and appliances. ZHIENETH too, was guilty of
contributory negligence since she climbed the counter, triggering its eventual collapse
on her. Petitioners also emphasized that the counter was made of sturdy wood with a
strong support; it never fell nor collapsed for the past fifteen years since its
construction.

Additionally, petitioner Jarco Marketing Corporation maintained that it observed the

diligence of a good father of a family in the selection, supervision and control of its
employees. The other petitioners likewise raised due care and diligence in the
performance of their duties and countered that the complaint was malicious for which
they suffered besmirched reputation and mental anguish. They sought the dismissal of
the complaint and an award of moral and exemplary damages and attorneys fees in
their favor.

In its decision7 the trial court dismissed the complaint and counterclaim after finding
that the preponderance of the evidence favored petitioners. It ruled that the proximate
cause of the fall of the counter on ZHIENETH was her act of clinging to it. It believed
petitioners witnesses who testified that ZHIENETH clung to the counter, afterwhich the
structure and the girl fell with the structure falling on top of her, pinning her stomach. In
contrast, none of private respondents witnesses testified on how the counter fell. The
trial court also held that CRISELDAs negligence contributed to ZHIENETHs accident.

In absolving petitioners from any liability, the trial court reasoned that the counter was
situated at the end or corner of the 2nd floor as a precautionary measure hence, it
could not be considered as an attractive nuisance.8 The counter was higher than
ZHIENETH. It has been in existence for fifteen years. Its structure was safe and well-
balanced. ZHIENETH, therefore, had no business climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court its
findings that: (1) the proximate cause of the fall of the counter was ZHIENETHs
misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners were
not negligent in the maintenance of the counter; and (4) petitioners were not liable for
the death of ZHIENETH.

Further, private respondents asserted that ZHIENETH should be entitled to the

conclusive presumption that a child below nine (9) years is incapable of contributory
negligence. And even if ZHIENETH, at six (6) years old, was already capable of
contributory negligence, still it was physically impossible for her to have propped
herself on the counter. She had a small frame (four feet high and seventy pounds) and
the counter was much higher and heavier than she was. Also, the testimony of one of
the stores former employees, Gerardo Gonzales, who accompanied ZHIENETH when
she was brought to the emergency room of the Makati Medical Center belied petitioners
theory that ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was
asked by the doctor what she did, ZHIENETH replied, [N]othing, I did not come near the
counter and the counter just fell on me.9 Accordingly, Gonzales testimony on
ZHIENETHs spontaneous declaration should not only be considered as part of res
gestae but also accorded credit.

Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her
to have let go of ZHIENETH at the precise moment that she was signing the credit card
slip.

Finally, private respondents vigorously maintained that the proximate cause of

ZHIENETHs death, was petitioners negligence in failing to institute measures to have
the counter permanently nailed.

On the other hand, petitioners argued that private respondents raised purely factual
issues which could no longer be disturbed. They explained that ZHIENETHs death while
unfortunate and tragic, was an accident for which neither CRISELDA nor even
ZHIENETH could entirely be held faultless and blameless. Further, petitioners adverted
to the trial courts rejection of Gonzales testimony as unworthy of credence.

As to private respondents claim that the counter should have been nailed to the ground,
petitioners justified that it was not necessary. The counter had been in existence for
several years without any prior accident and was deliberately placed at a corner to
avoid such accidents. Truth to tell, they acted without fault or negligence for they had
exercised due diligence on the matter. In fact, the criminal case10 for homicide through
simple negligence filed by private respondents against the individual petitioners was
dismissed; a verdict of acquittal was rendered in their favor.

The Court of Appeals, however, decided in favor of private respondents and reversed
the appealed judgment. It found that petitioners were negligent in maintaining a
structurally dangerous counter. The counter was shaped like an inverted L 11 with a top
wider than the base. It was top heavy and the weight of the upper portion was neither
evenly distributed nor supported by its narrow base. Thus, the counter was defective,
unstable and dangerous; a downward pressure on the overhanging portion or a push
from the front could cause the counter to fall. Two former employees of petitioners had
already previously brought to the attention of the management the danger the counter
could cause. But the latter ignored their concern. The Court of Appeals faulted the
petitioners for this omission, and concluded that the incident that befell ZHIENETH
could have been avoided had petitioners repaired the defective counter. It was
inconsequential that the counter had been in use for some time without a prior incident.

The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at
the time of the incident, was absolutely incapable of negligence or other tort. It
reasoned that since a child under nine (9) years could not be held liable even for an
intentional wrong, then the six-year old ZHIENETH could not be made to account for a
mere mischief or reckless act. It also absolved CRISELDA of any negligence, finding
nothing wrong or out of the ordinary in momentarily allowing ZHIENETH to walk while
she signed the document at the nearby counter.

The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It
found them biased and prejudiced. It instead gave credit to the testimony of
disinterested witness Gonzales. The Court of Appeals then awarded P99,420.86 as
actual damages, the amount representing the hospitalization expenses incurred by
private respondents as evidenced by the hospital's statement of account.12 It denied an
award for funeral expenses for lack of proof to substantiate the same. Instead, a
compensatory damage of P50,000 was awarded for the death of ZHIENETH.

We quote the dispositive portion of the assailed decision,13 thus:

WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE
and another one is entered against [petitioners], ordering them to pay jointly and
severally unto [private respondents] the following:

1. P50,000.00 by way of compensatory damages for the death of Zhieneth

Aguilar, with legal interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses incurred; with
legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorneys fees; and
5. Costs.

Private respondents sought a reconsideration of the decision but the same was denied
in the Court of Appeals resolution14 of 16 July 1997.

Petitioners now seek the reversal of the Court of Appeals decision and the
reinstatement of the judgment of the trial court. Petitioners primarily argue that the
Court of Appeals erred in disregarding the factual findings and conclusions of the trial
court. They stress that since the action was based on tort, any finding of negligence on
the part of the private respondents would necessarily negate their claim for damages,
where said negligence was the proximate cause of the injury sustained. The injury in the
instant case was the death of ZHIENETH. The proximate cause was ZHIENETHs act of
clinging to the counter. This act in turn caused the counter to fall on her. This and
CRISELDAs contributory negligence, through her failure to provide the proper care and
attention to her child while inside the store, nullified private respondents claim for
damages. It is also for these reasons that parents are made accountable for the
damage or injury inflicted on others by their minor children. Under these
circumstances, petitioners could not be held responsible for the accident that befell
ZHIENETH.

Petitioners also assail the credibility of Gonzales who was already separated from
Syvels at the time he testified; hence, his testimony might have been tarnished by ill-
feelings against them.

For their part, private respondents principally reiterated their arguments that neither
ZHIENETH nor CRISELDA was negligent at any time while inside the store; the findings
and conclusions of the Court of Appeals are substantiated by the evidence on record;
the testimony of Gonzales, who heard ZHIENETH comment on the incident while she
was in the hospitals emergency room should receive credence; and finally, ZHIENETHs
part of the res gestae declaration that she did nothing to cause the heavy structure to
fall on her should be considered as the correct version of the gruesome events.

We deny the petition.

The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental
or attributable to negligence; and (2) in case of a finding of negligence, whether the
same was attributable to private respondents for maintaining a defective counter or to
CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside
the store premises.

An accident pertains to an unforeseen event in which no fault or negligence attaches to

the defendant.15 It is a fortuitous circumstance, event or happening; an event happening
without any human agency, or if happening wholly or partly through human agency, an
event which under the circumstances is unusual or unexpected by the person to whom
it happens.16

On the other hand, negligence is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of human affairs,
would do, or the doing of something which a prudent and reasonable man would not
do.17 Negligence is the failure to observe, for the protection of the interest of another
person, that degree of care, precaution and vigilance which the circumstances justly
demand, whereby such other person suffers injury.18

Accident and negligence are intrinsically contradictory; one cannot exist with the other.
Accident occurs when the person concerned is exercising ordinary care, which is not
caused by fault of any person and which could not have been prevented by any means
suggested by common prudence.19

The test in determining the existence of negligence is enunciated in the landmark case
of Picart v. Smith,20 thus: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would have used in the
same situation? If not, then he is guilty of negligence.21
We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETHs
death could only be attributed to negligence.

We quote the testimony of Gerardo Gonzales who was at the scene of the incident and
accompanied CRISELDA and ZHIENETH to the hospital:

Q While at the Makati Medical Center, did you hear or notice anything while the child
was being treated?

A At the emergency room we were all surrounding the child. And when the doctor
asked the child what did you do, the child said nothing, I did not come near the
counter and the counter just fell on me.

Q (COURT TO ATTY. BELTRAN)

You want the words in Tagalog to be translated?

ATTY. BELTRAN

Yes, your Honor.

COURT

Granted. Intercalate wala po, hindi po ako lumapit doon. Basta bumagsak.22

This testimony of Gonzales pertaining to ZHIENETHs statement formed (and should be

admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of Court,
thus:

Part of res gestae. Statements made by a person while a startling occurrence is

taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. So, also,
statements accompanying an equivocal act material to the issue, and giving it a
legal significance, may be received as part of the res gestae.

It is axiomatic that matters relating to declarations of pain or suffering and statements

made to a physician are generally considered declarations and admissions.23 All that is
required for their admissibility as part of the res gestae is that they be made or uttered
under the influence of a startling event before the declarant had the time to think and
concoct a falsehood as witnessed by the person who testified in court. Under the
circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender
age and in extreme pain, to have lied to a doctor whom she trusted with her life. We
therefore accord credence to Gonzales testimony on the matter, i.e., ZHIENETH
performed no act that facilitated her tragic death. Sadly, petitioners did, through their
negligence or omission to secure or make stable the counters base.

Gonzales earlier testimony on petitioners insistence to keep and maintain the

structurally unstable gift-wrapping counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the second floor, will you
please describe the gift wrapping counter, were you able to examine?

A Because every morning before I start working I used to clean that counter
and since it is not nailed and it was only standing on the floor, it was shaky.

xxx

Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon on [sic]
May 9 1983?

A At that hour on May 9, 1983, that counter was standing beside the verification
counter. And since the top of it was heavy and considering that it was not nailed, it
can collapse at anytime, since the top is heavy.

xxx

Q And what did you do?

A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is
fond of putting display decorations on tables, he even told me that I would put some
decorations. But since I told him that it not [sic] nailed and it is shaky he told me
better inform also the company about it. And since the company did not do anything
about the counter, so I also did not do anything about the counter.24 [Emphasis
supplied]

Ramon Guevarra, another former employee, corroborated the testimony of Gonzales,

thus:

Q Will you please described [sic] to the honorable Court the counter where you
were assigned in January 1983?

xxx

A That counter assigned to me was when my supervisor ordered me to carry that

counter to another place. I told him that the counter needs nailing and it has to be
nailed because it might cause injury or accident to another since it was shaky.

Q When that gift wrapping counter was transferred at the second floor on February
12, 1983, will you please describe that to the honorable Court?

A I told her that the counter wrapper [sic] is really in good [sic] condition; it was
shaky. I told her that we had to nail it.

Q When you said she, to whom are you referring to [sic]?

A I am referring to Ms. Panelo, sir.

Q And what was the answer of Ms. Panelo when you told her that the counter was
shaky?

A She told me Why do you have to teach me. You are only my subordinate and you
are to teach me? And she even got angry at me when I told her that.

xxx

Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any
employee of the management do to that (sic)

xxx

Witness:

None, sir. They never nailed the counter. They only nailed the counter after the
accident happened.25 [Emphasis supplied]

Without doubt, petitioner Panelo and another store supervisor were personally
informed of the danger posed by the unstable counter. Yet, neither initiated any
concrete action to remedy the situation nor ensure the safety of the stores employees
and patrons as a reasonable and ordinary prudent man would have done. Thus, as
confronted by the situation petitioners miserably failed to discharge the due diligence
required of a good father of a family.

On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish
that the formers testimonies were biased and tainted with partiality. Therefore, the
allegation that Gonzales and Guevarras testimonies were blemished by ill feelings
against petitioners since they (Gonzales and Guevarra) were already separated from
the company at the time their testimonies were offered in court was but mere
speculation and deserved scant consideration.

It is settled that when the issue concerns the credibility of witnesses, the appellate
courts will not as a general rule disturb the findings of the trial court, which is in a better
position to determine the same. The trial court has the distinct advantage of actually
hearing the testimony of and observing the deportment of the witnesses.26 However, the
rule admits of exceptions such as when its evaluation was reached arbitrarily or it
overlooked or failed to appreciate some facts or circumstances of weight and
substance which could affect the result of the case.27 In the instant case, petitioners
failed to bring their claim within the exception.

Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that
favors children below nine (9) years old in that they are incapable of contributory
negligence. In his book,28 former Judge Cezar S. Sangco stated:

In our jurisdiction, a person under nine years of age is conclusively presumed to

have acted without discernment, and is, on that account, exempt from criminal
liability. The same presumption and a like exemption from criminal liability obtains
in a case of a person over nine and under fifteen years of age, unless it is shown
that he has acted with discernment. Since negligence may be a felony and a quasi-
delict and required discernment as a condition of liability, either criminal or civil, a
child under nine years of age is, by analogy, conclusively presumed to be incapable
of negligence; and that the presumption of lack of discernment or incapacity for
negligence in the case of a child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is that a child under nine years of
age must be conclusively presumed incapable of contributory negligence as a
matter of law. [Emphasis supplied]

Even if we attribute contributory negligence to ZHIENETH and assume that she climbed
over the counter, no injury should have occurred if we accept petitioners theory that
the counter was stable and sturdy. For if that was the truth, a frail six-year old could not
have caused the counter to collapse. The physical analysis of the counter by both the
trial court and Court of Appeals and a scrutiny of the evidence29on record reveal
otherwise, i.e., it was not durable after all. Shaped like an inverted L, the counter was
heavy, huge, and its top laden with formica. It protruded towards the customer waiting
area and its base was not secured.30

CRISELDA too, should be absolved from any contributory negligence. Initially,

ZHIENETH held on to CRISELDAs waist, later to the latter’s hand.31 CRISELDA
momentarily released the childs hand from her clutch when she signed her credit card
slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of her
child. Further, at the time ZHIENETH was pinned down by the counter, she was just a
foot away from her mother; and the gift-wrapping counter was just four meters away
from CRISELDA.32 The time and distance were both significant. ZHIENETH was near her
mother and did not loiter as petitioners would want to impress upon us. She even
admitted to the doctor who treated her at the hospital that she did not do anything; the
counter just fell on her.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the
challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937
is hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.
 EN BANC

G.R. No. L-10073 December 24, 1915

BUTARO YAMADA, Plaintiff-Appellee, vs. THE MANILA RAILROAD CO., defendant, and
BACHRACH GARAGE & TAXICAB CO., Defendant-Appellant.

G.R. No. L-10074 December 24, 1915

KENJIRO KARABAYASHI, Plaintiff-Appellee, vs. THE MANILA RAILROAD CO.,

defendant, and BACHRACH GARAGE & TAXICAB CO., Defendant-Appellant.

G.R. No. L-10075 December 24, 1915

TAKUTARU UYEHARA, Plaintiff-Appellee, vs. THE MANILA RAILROAD CO., defendant,

and BACHRACH GARAGE & TAXICAB CO., Defendant-Appellant.

D.R. Williams for appellant.

Rohde and Wright for appellees.

MORELAND, J.:

The three cases dealt with in this decision differ in their facts only with respect to the
injury suffered by the respective plaintiffs. The law applicable to them is the same and,
at the request of counsel, they will be decided at the same time. Plaintiffs claim
damages against both the railroad and the garage company because of injuries
suffered by them in a collision between a train owned by and operated over tracks
belonging to the railroad company and an automobile the property of the Bachrach
Garage & Taxicab Co.chanroblesvirtualawlibrary chanrobles virtual law library

On January 2, 1913, the plaintiffs, together with three companions, hired an automobile
from the defendant taxicab company for a trip to Cavite Viejo. The automobile was
secured at a certain price hour and was driven and controlled by a chauffeur supplied
by the taxicab company. The journey to Cavite Viejo was made without incident but, on
the return trip, while crossing the tracks of defendant railroad company in the barrio of
San Juan, municipality of Cavite Viejo, the automobile was struck by a train and the
plaintiffs injured.chanroblesvirtualawlibrary chanrobles virtual law library

The trial court dismissed the complaint on the merits as to the Manila Railroad Company
and held the defendant taxicab company liable for damages to the plaintiffs in various
amounts. The taxicab company appealed.chanroblesvirtualawlibrary chanrobles virtual
law library

It appears from the record, and was found by the trial court, that the driver of the
automobile drove his machine upon the railroad tracks without observing the
precautions which ordinary care and prudence would require, without reducing speed
and without taking any precaution looking to determining whether there was danger
from a train or locomotive. The trial court accordingly found that the driver was guilty of
gross negligence and that said negligence was the proximate cause of the accident. It
also found that the driver had been, in effect, instructed by the taxicab company to
approach and pass over railroad tracks in the manner and form followed and observed
on the occasion in question, and that, for that reason, the taxicab company was liable
for the damages caused.chanroblesvirtualawlibrary chanrobles virtual law library

Several errors are assigned by the appellant. The first one relates to the finding of the
trial court: "That the driver of the automobile did not slacken speed, which was fast,
upon approaching the railroad crossing, which was clearly visible and had to be
approached on an upward grade, or take any other precaution to avert accident. ... and
I can but conclude that the driver of the automobile was grossly negligent and careless
in not taking such precaution as would have notified him of the coming of the train. On
the contrary, he proceeded with reckless speed and regardless of possible or
threatened danger. If he had been driving the automobile at a proper rate of speed for
going over railroad crossing he could easily have stopped before going over the
railroad crossing after seeing the train."chanrobles virtual law library

The argument of the appellant which is devoted to this findings seems to admit impliedly
at least that the driver of the automobile maintained his rate of speed as he approached
and went upon the railroad crossing; and that he took no precaution to ascertain the
approach of a train.chanroblesvirtualawlibrary chanrobles virtual law library

The appellant contended on the trial and offered evidence to prove that, on
approaching the railroad crossing from the direction in which the automobile was
travelling at the time, the view of the railroad tracks in both directions was obstructed
by bushes and trees growing alongside thereof, and that it was impossible for a person
approaching the crossing even though on guard, to detect by sight the approach of a
train. If that were the case, it was clearly the duty of the driver to reduce the speed of
his car and the noise thereof to such an extent that he would be able to determine from
the unrestricted and uninterrupted use of all his faculties whether or not a train was
near. It is the law that a person must use ordinary care and prudence in passing over a
railroad crossing. While we are not prepared to lay down any absolute rule as to what
precise acts of precaution are necessary to be done or left undone by a person who
may have need to pass over a railroad crossing, we may say that it is always incumbent
on him to use ordinary care and diligence. What acts are necessary to constitute such
care and diligence must depend on the circumstances of each particular case. The
degree of care differs in different cases. Greater care is necessary in crossing a road
where the cars are running at a high rate of speed and close together than where they
are running at less speed and remote from one another. But in every case due care
should be exercised. It is very possible that where, on approaching a crossing, the view
of the tracks in both directions is unobstructed for such a distance as to render it
perfectly safe to pass over without the use of any other faculty than sight, such use
alone is sufficient and it is not necessary to stop or even to slacken speed or listen. On
the other hand, where the view of the tracks is obstructed, them it is driver's duty to
slacken speed, to reduce the noise, if any, of the vehicle, to look and to listen, if
necessary, or do any other act necessary to determine that a train is not in dangerous
proximity to the crossing.chanroblesvirtualawlibrary chanrobles virtual law library

In the case at bar the appellant's own showing is to the effect that the view of the track
in the direction from which the train was coming was obstructed in such manner that
neither the track nor a train could be seen as a traveler approached the crossing; and
yet, in spite of that fact, the chauffeur drove upon the tracks without investigation or
precaution of any kind. The very fact that a train was approaching and was so near as to
collide with the automobile is strong evidence of the fact that no precautions were
taken to determine that fact. It is undoubted that if the driver had taken the simplest
means of permitting his own faculties to exercise themselves fairly, there would have
been no accident, as the presence of the train would have been discovered in an
instant; but he chose, rather, to give his senses no opportunity to protect him or his
passengers and drove on the track at full speed with all the noise which an automobile
produces at such speed on an upgrade and the sense of hearing impaired by the rush of
the wind. Railroad trains rarely pass over tracks without noise and their presence,
generally speaking, is easily detected by persons who take ordinary
precautions.chanroblesvirtualawlibrary chanrobles virtual law library

Under this assignment the appellant's main effort is being to the demonstration of the
fact that there was a custom established among automobile drivers of Manila by which
they habitually drove their cars over railroad crossings in the manner in which the
automobile was driven by defendant's servant on the occasion in controversy. To prove
that custom counsel presents the evidence of the president of the defendant company,
Mr. Bachrach, who testified on the trial that all of his drivers, including the one in
charge of the car on the night of the accident, operated cars in that manner and that it
was the custom among automobile drivers generally. Counsel also cites the testimony
of the witness Palido, living near the scene of the accident, who testified that, as a
general rule, automobiles passed over the railroad crossing without changing speed.
This testimony was corroborated by the defendant company's driver who had the
automobile in charge at the time of the occurrence. Basing himself on this alleged
custom counsel contends that "When a person does what is usual and customary, i. e.,
proceeds as he and others engaged in a like occupation have been accustomed to
proceed, the action cannot be characterized as reckless, nor, strictly speaking as
negligent." To this the obvious reply may be made, for the moment admitting the
existence of the custom, that a practice which is dangerous to human life cannot ripen
into a custom which will protect anyone who follows it. To go upon a railroad crossing
without making any effort to ascertain the approach of a train is so hazardous an act
and one so dangerous to life, that no one may be permitted to excuse himself who does
it, provided injury result. One who performs an act so inherently dangerous cannot,
when an accident occurs, take refuge behind the plea that others have performed the
same act safely.chanroblesvirtualawlibrary chanrobles virtual law library

Under the second error assigned, the appellant contends with much vigor that the
plaintiffs cannot recover for the reason that the negligence of the driver of the
automobile, if any, was imputable to them, they having permitted the driver to approach
and pass over the railroad crossing without the use of ordinary care and diligence to
determine the proximity of a train or locomotive, and having made no effort to caution or
instruct him or compel him to take reasonable care in making the crossing. With this
contention we cannot agree. We think the better rule, and one more consonant with the
weight of authority, is that a person who hires a public automobile and gives the driver
direction as to the place to which he wishes to be conveyed, but exercise no other
control over the conduct of the driver, is not responsible for acts of negligence of the
latter or prevented from recovering for injuries suffered from a collision between the
automobile and a train, caused by the negligence either of the locomotive engineer or
the automobile driver. (Little vs. Hackett, 116 U.S., 366.) The theory on which the
negligence of the driver has in some instances been imputed to the occupant of the
vehicle is that, having trusted the driver by selecting the particular conveyance, the
plaintiff so far identified himself with the owner and his servants that, in case of injury
resulting from their negligence, he was considered a party thereto. This was the theory
upon which the case of Thorogood vs. Bryan (8 C.B., 115) was decided, which is the
leading case in favor of the principle contended for by appellant. The Supreme Court of
the United States, however, in Little vs. Hackett (116 U.S., 366), had this to say
concerning the ground on which the Thorogood case was decided: "The truth is, the
decision in Thorogood vs. Bryan rests upon indefensible ground. The identification of
the passenger with the negligent driver or the owner, without his personal cooperation
or encouragement, is a gratuitous assumption. There is no such identity. The parties
are not in the same position. The owner of public conveyance is a carrier, and the driver
or the servant of the passenger, and his asserted identity with them is contradicted by
the daily experience of the world."chanrobles virtual law library

Further discussing the same question the court said: "There is no distinction in
principle whether the passenger be on public conveyance like a railroad train or an
omnibus, or be on a hack hired from a public stand in the street for a drive. Those on a
hack do not become responsible for the negligence of the driver if they exercise no
control over him further than to indicate the route they wish to travel or the places to
which they wish to go. If he is their agent so that his negligence can be imputed to them
to prevent their recovery against a third party, he must be their agent in all other
respects, so far as the management of the carriage is concerned, and responsibility to
third parties would attach to them for injuries caused by his negligence in the course of
his employment. But, as we have already stated, responsibility cannot, within any
recognized rules of law, be fastened upon one who has in no way interfered with and
the with and controlled in the matter causing the injury. From the simple fact of hiring
the carriage or riding in it no such liability can arise. The party hiring or riding must in
some way have cooperated in producing the injury complained of before he incur any
liability for it. 'If the law were otherwise,' as said by Mr. Justice Depue in his elaborate
opinion in the latest case in New Jersey, 'not only the hirer of the coach but also all the
passengers in it would be under a constraint to mount the box and superintend the
conduct of the driver in the management and control of his team, or be put for remedy
exclusively to an action against the irresponsible driver or equally irresponsible owner
of a coach taken, it may be, from a coach stand, for the consequences of an injury
which was the product of the cooperating wrongful acts of the driver and of a third
person, and that too, though the passengers were ignorant of the character of the
driver, and of the responsibility of the owner of the team, and strangers to the route
over which they were to be carried.' (New York, Lake Erie & Western Railroad vs.
Steinbrenner, 47 N.J.L. [18 Vroom], 161, 171.)"chanrobles virtual law library

We are of the opinion, therefore, that the rule is as we have stated it. Ordinarily where
one rides in public vehicle with the driver thereof and is injured by the negligence of a
third person, to which negligence that of the driver contributes his contributory
negligence is not imputable to the passenger unless said passenger has or is in the
position to have and exercise some control over the driver with reference to the matter
wherein he was negligent. Whether the person injured exercises any control over the
conduct of the driver further than to indicate the place to which he wishes to drive is a
question of fact to be determined by the trial court on all of the evidence in the case.
(Duval vs. Railroad Co., 134 N. C., 331; Hampel vs. Detroit etc. R. R. Co., 110 Am. St.
Rep., 275; Cotton vs. Willmar etc. R. R. Co., 99 Minn., 366; Shultz vs. Old Colony Street
Ry. Co., 193 Mass., 309; Wilson vs. Puget Sound Elec. Ry. Co., 52 Wash., 522;
Johnson vs. Coey, 237 Ill., 88; Hindu vs. Steere, 209 Mass. 442.)chanrobles virtual law
library

The appellant assigns as the third error the finding of the trial court "that the defendant
Manila Railroad Company was not guilty of negligence which contributed to the causing
of the accident complained of."chanrobles virtual law library

In this connection it appears that, prior to the beginning of the action now before us,
two actions were instituted, both growing out of the accident which forms the basis of
the actions before us: (1) A criminal action against the engineer of the train, in which
the engineer was acquitted; and (2) a civil action for damages by the garage and
taxicab company, the appellant herein, against the defendant railroad company, for
damages to the automobile which was destroyed as a result of the accident, in which
judgment was for defendant. There is evidence in the record showing that the
locomotive engineer gave due and timely signals on approaching the crossing in
question. The trial court found that the employees of the railroad company fully
performed their duty as the train approached the crossing on the night in question and
that, therefore, the railroad company in nowise contributed to the accident. We do not
believe that the record will justify us in a reversal of this finding. There is abundant
evidence to support it and we have nothing before us by which that evidence may be
impeached. That the bell was rung and the whistle was blown on nearing the crossing,
giving due and timely warning to all persons approaching, was testified to not only by
servants of the corporation but by passengers on the train. We find nothing in the
record which materially impairs the credibility of these witnesses or to show that their
evidence is improbable or unreasonable; and we would be going far under such
circumstances in discarding it and reversing a judgment based
thereon.chanroblesvirtualawlibrary chanrobles virtual law library

The appellant under this assignment of error presents other facts which he claims show
necessarily that the company was negligent. He asserts: "(1) That this accident
occurred in the heart of the barrio of San Juan (Cavite Viejo), within approximately one
hundred meters of the railroad station, that is, in a populous community; (2) that the
railroad company did not maintain either a flagman or protecting gates at the grade
crossing where the accident occurred, while the sign "Railroad Crossing" was broken
on the side toward the road; (3) that trees and undergrowth had been permitted to grow
on and adjoining the right of way and houses were constructed thereon, in such manner
as to obstruct the view of persons approaching the railroad track until within a few
meters thereof; and (4) that the approach to the crossing is twisting, and on either side
thereof are ditches about two meters deep."chanrobles virtual law library

With respect to the existence of trees and undergrowth on the railroad company's right
of way, the evidence is conflicting, plaintiff maintaining and attempting to prove that
such trees and undergrowth existed, while defendant company contended and offered
evidence to show that no such growth existed at the time of the accident. On this
conflict of evidence the trial court found: "Evidence on the part of the defendant
Bachrach Garage & Taxicab Co. is to the effect that the view from the crossing along
the track towards Manila was obstructed by bushes growing on the railroad right to way
along the track, while the preponderance of the evidence discloses that for a distance
of twelve or fifteen meters from the a view of the track for a considerable distance is
wholly unobstructed, and I can but conclude that the driver of the unobstructed, and I
can but conclude that the driver of the automobile was grossly negligent and careless
in not taking such precaution as would have notified him of the coming of the train. On
the contrary, he proceeded with reckless speed and regardless of possible or
threatened danger."chanrobles virtual law library

Here again we are met with a contradiction in the evidence of witnesses who, so far as
appears, are equally entitled to credit, which conflict has been resolved by the trial
court in favor of the witnesses for the defendant railroad company. Counsel for
appellant has failed to give any reason why we should we should accept the testimony
of appellant's witnesses rather than those of the railroad company and he has also
neglected to point out any error committed by the trial court in making its finding in this
regard. A careful examination of the record discloses no reason why the judgment of
the trial court on this point should be disturbed, there appearing nothing on which we
could base a judgment declaring that the trial court erred in making its
decision.chanroblesvirtualawlibrary chanrobles virtual law library

As to the other facts set forth on which appellant predicates negligence on the part of
the railroad company, we find them, even if admitted, to be insufficient to establish
negligence. It is not negligence on the part of the railroad company to maintain grade
crossing, even in populous district; nor is it negligence not to maintain a flagman at
such crossing. It is true that a railroad company is held to greater caution in the more
thronged streets of the densely populated portions of the city than in the less
frequented streets in suburban parts or in towns; but this does not mean that it is
negligence to maintain grade crossing in such densely populated portions or that it is
negligence not to maintain a flagman at crossings located in such districts. It simply
means that the company in operating its trains over such crossings must exercise care
commensurate with the use of crossings in any given
locality.chanroblesvirtualawlibrary chanrobles virtual law library

The main contention of the appellant is based on the claim that, even admitting as
proved all of the facts alleged by the plaintiffs, the appellant is not liable. It is
maintained that up to the time the accident occurred the defendant taxicab company
had fully performed its duty to the public, it being undisputed in the record that the
driver was competent and had a long and satisfactory record, having driven cars for the
defendant for 5 or 6 years without accident or misadventure, and that his negligence, if
any, in attempting to pass over the crossing on the occasion before us, cannot legally
be imputed to the taxicab company so as to make it liable for the damages resulting
therefrom. In supporting of this argument the case of Johnson vs. David (5 Phil., Rep.,
663), is cited as determinative of the question under consideration. The appellant,
however, having denied the fact of negligence, we might, before entering on a
discussion of the applicability of the principles enunciated in Johnson vs. David to the
facts before us, repeat what we have already said, that it appears from the record, and
was found by the trial court, that the driver of the automobile drove his machine upon
the railroad tracks without observing the precautions which ordinary care and
prudence would have required. He made substantially no effort toward ascertaining
whether there was danger from a train or locomotive. The trial court found, as was quite
necessary under the facts, that the driver was guilty of gross negligence and that such
negligence was the proximate cause of the accident. It also found that the taxicab
company had permitted its drivers to approach and pass over railroad tracks in the
manner and form followed and observed on the occasion in question until it had become
a custom among its drivers, known and sanctioned by the company; and that, for that
reason, the taxicab company was liable for the damages caused. We are of the opinion
that the trial court is fully supported in the finding that the conduct of the officials of the
taxicab company, and notably the president thereof, amounted, in law, to a sanction of
the custom established among its automobile drivers in passing over railroad
crossings. Counsel is met, therefore, at the opening of his discussion on this branch of
the case, with the question: Did the defendant taxicab company fully discharge its duty
when it furnished a suitable and proper car and selected driver who had been with the
company for 5 or 6 years and who had not had an accident or misadventure before? We
think not. It was the duty of the company not only to furnish a suitable and proper car
and select a competent operator, but also to supervise and, where necessary, instruct
him properly.chanroblesvirtualawlibrary chanrobles virtual law library

Returning now to the applicability of the case of Johnson vs. David to the facts before
us:chanrobles virtual law library

The Civil Code, in dealing with the liability of a master for the negligent acts of his
servant, makes a distinction between private individuals and public enterprises. (Art.
1903, Civil Code.) That article, together with the preceding article, is as follows:

ART 1902. 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.chanroblesvirtualawlibrary chanrobles virtual law library

ART. 1903. The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for the persons for whom they should be
responsible.
The father, and on his death or incapacity the mother is liable for the damages caused
by the minors who live with them.chanroblesvirtualawlibrary chanrobles virtual law
library

Guardians are liable for the damages caused by minors or incapacitated persons who
are under their authority and live with them.chanroblesvirtualawlibrary chanrobles
virtual law library

Owners or directors of an establishment or enterprise are equally liable for the

damages caused by their employees in the service of the branches in which the latter
may be employed or on account of their duties.chanroblesvirtualawlibrary chanrobles
virtual law library

The State is liable in this sense when it acts through a special agent, but not when the
damage should have been caused by the official to whom properly it pertained to do the
act performed, in which case the provisions of the proceeding article shall be
applicable.chanroblesvirtualawlibrary chanrobles virtual law library

Finally, master or directors of arts and trades are liable for the damages caused by
their pupils or apprentices while they are under their
custody.chanroblesvirtualawlibrary chanrobles virtual law library

The liability referred to in this articles shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage.

These two articles are found under chapter 2, title 16, of the Civil Code, dealing with
"obligations which arise from fault or negligence;" and set out the cases, generally
speaking, in which the master is liable for the acts of his servant. That chapter also
contains articles providing for liability for negligent acts of servants in special cases,
among them 1905, which provides that "the possessor of an animal, or the one who
uses it, is liable for the damages it may cause even when said animal escapes from him
or strays," but that this liability shall cease "in the case the damage should arise
from force majeure or from the fault of the person who may have suffered it;" 1906,
which declares that "the owner of a game preserve shall be liable for damages caused
by the game to neighboring estates, should he not have done what may have been
necessary to avoid increase of the same or should he have hindered the efforts of the
owners of said estates to hunt;" 1907, which provides for the liability of the owner of a
building "for damages which may result from the collapse of the whole or a part thereof,
if it should occur through the absence of necessary repairs;" 1908, which states that
"owners shall be liable for damages caused by the explosion of machines which may not
have been cared for with due diligence, and been placed in a safe and proper place;"
"by excessive smoke, which may be noxious to persons of property;" "by the fall of
trees, located in places of transit, when not caused by force majeure;" "by the
emanations of sewers or deposits of infectious matters, when constructed without
precautions proper for the place where they are located;" and "the head of a family who
dwells in a house, or in a part of the same, is liable for the damages by the things which
may be thrown or which may fall therefrom."chanrobles virtual law library
These are the only cases under the Civil Code in which damages may be recovered
from the master for the negligent of his servant. As is seen from a reading of article
1903, a person being driven about by his servant's negligent acts except under certain
circumstances. (Chapman vs. Underwood, 27 Phil., Rep., 374; Johnson vs.
David, supra.) On the other hand, the master is liable for the negligent acts of his
servant where he is the owner or director of a business or enterprise and the negligent
acts are committed while the servant is engaged in his master's employment as such
owner.chanroblesvirtualawlibrary chanrobles virtual law library

The distinction made in the Code has been observed, as would naturally be expected,
by the decisions of this court. In the case of Johnson vs. David, supra, we held that the
defendant was not liable for the acts of his servant in negligently driving a horse and
carriage against plaintiff, who was at the time riding a bicycle in the streets of Manila,
throwing him to the ground and injuring him and his bicycle. It appeared in that case
that the vehicle was owned by the defendant, that it was being driven by the defendant's
coachman on the private affairs of the owner, that it was not a public conveyance driven
for hire or as a part of a business or enterprise. In that case we said: "It would seem,
from an examination of these various provisions, that the obligation to respond for the
negligent acts of another was limited to the particular cases mentioned; in other words,
we are of the opinion and so hold that it was the intention of the legislature in enacting
said chapter 2 to enumerate all the persons for whose negligent acts third persons are
responsible. Article 1902 provides when a person himself is liable for negligence.
Articles 1903, 1904, 1905, 1906, 1907, 1908, and 1910 provide when a person shall be
liable for injuries caused, not by his own negligence but by the negligence of other
persons or things.

xxx xxx xxx

These sections do not include a liability on the part of the plaintiff for injuries resulting
from acts of negligence such as are complained of in the present cause . . .
."chanrobles virtual law library

These case of Chapman vs. Underwood, (27 Phil., Rep., 374) was similar in its facts and
the principles governing it, to that of Johnson vs. David. In that case the plaintiff, while
about to board a street car, was struck by an automobile which, at the time, was being
driven on the wrong side of the street. The automobile was in charge of the servant of
the owner, who was present in the automobile at the time the accident occurred. The
automobile was not a part of defendant's business nor was it being used at the time as a
part or adjunct of any business or enterprise owned or conducted by him. Although the
act of the driver was negligent, and was so declared by this court, it was, nevertheless,
held that the master was not liable for the results of the act. We said:

The defendant, however, is not responsible for the negligence of his driver, under the
facts and circumstances of this case. As we have said in the case of Johnson vs. David
(5 Phil., Rep., 663), the driver does not fall within the list of person in article 1903 of the
Civil Code for whose acts the defendant would be
responsible.chanroblesvirtualawlibrary chanrobles virtual law library

Although in the David case the owner of the vehicle was not present at the time the
alleged negligent acts were committed by the driver, the same rule applies where the
owner is present, unless the negligent acts of the driver are continued for such a length
of time as to give the owner a reasonable opportunity to observe them and to direct his
driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and
permits his driver to continue in a violation of the law by the performance of negligent
acts, after he has had a reasonable opportunity to observe them and to direct that the
driver, becomes himself responsible for such acts. The owner of an automobile who
permits his chauffeur to drive up the Escolta, for example, at a speed of 60 miles an
hour, without any effort to stop him, although he has had a reasonable opportunity to do
so, becomes himself responsible, both criminally and civilly, for the results produced by
the acts of his chauffeur. On the other hand, if the driver, by a sudden act of negligence,
and without the owner having a reasonable opportunity to prevent the act or its
continuance, injures a person or violates the criminal law, the owner of the automobile,
although present therein at the time the act was committed, is not responsible, either
civilly or criminally, therefor. The act complained of must be continued in the presence
of the owner for such a length of time that the owner, by his acquiescence, makes his
driver's act his own.chanroblesvirtualawlibrary chanrobles virtual law library

In the case before us it does not appear from the record that, from the time the
automobile took the wrong side of the road to the commission of the injury, sufficient
time intervened to afford the defendant an opportunity correct the act of his driver.
Instead, it appears with fair clearness that the interval between the turning out to meet
and pass the street car and the happening of the accident was so short as not to be
sufficient to charge defendant with the negligence of the driver.

The case of Bahia vs. Litonjua and Leynes (30 Phil., Rep., 624), was a case of a different
character. There an automobile was being operated by the defendant as a public
vehicle carrying passengers from Balayan to Tuy (Province of Batangas) and return for
hire. On one to the trips, the machine, by reason of a defect in the steering gear,
refused to respond to the guidance of the driver and, as a result a child was run over
and killed. That case, as is seem at a glance, is quite different from the case of
Johnson vs. David and that of Chapman vs. Underwood, in that the automobile was
operated as a business or enterprise on which the defendant had entered for gain; and
this is the particular distinction which is made in article 1903 of the Civil Code which
holds the masters responsible for the negligent acts of the servant when the master is
the owner "of an establishment or enterprise," and the acts complained of are
committed within the scope of the servant's employment in such business. In the case
under discussion we held that, in addition to the requirement to furnish and use proper
and safe machines, it was the duty of a person or corporation operating automobiles for
hire to exercise ordinary care and diligence in the selection of the drivers of his or its
automobiles and in supervision over them while in his or its employ, including the
promulgation of proper rules and regulations and the formulation and due publication of
proper instructions for their guidance in cases where such rules, regulations and the
formulation and due publication of proper instructions for their guidance in cases
where such rules, regulations and instruction are necessary. Discussion article 1903 of
the Civil Code, which, as we have seen, not only established liability in case of
negligence but also provides when that liability ceases, the court in that case said:

From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that
there was negligence on the part of the master or employer either in the selection of the
selection of the servant or employee or in supervision over him after the selection, or
both; and (2) that that presumption is juris tantum and not juris et de jure and
consequently may be rebutted. It follows necessarily that if the employer shows to the
satisfaction of the court that in selection and supervision he has exercised the care and
diligence of a good father of a family, the presumption is overcome and he is relieved
from liability.chanroblesvirtualawlibrary chanrobles virtual law library

This theory bases the responsibility of the master ultimately on his own negligence and
not on that of his servant. This is the notable peculiarity of the Spanish law of
negligence. It is, of course, in striking contrast to the American doctrine that, in
relations with strangers, the negligence of the servant is conclusively the negligence of
the master.chanroblesvirtualawlibrary chanrobles virtual law library

In the case before us the death of the child caused by a defect in the steering gear of
the automobile immediately raised the presumption that Leynes was negligent in
selecting a defective automobile or in his failure to maintain it in good condition after
selection and the burden of proof was on him to show that he had exercised the care of
a good father of a family.

In that case we further said: "From the commencement of the use of the machine until
the accident occurred sufficient time had not elapsed to require an examination of the
machine by the defendant as a part of his duty of inspection and supervision. While it
does not appear that the defendant formulated rules and regulations for the guidance of
the drivers and gave them proper instructions, designed for the protection of the public
and the passengers, the evidence shows, as we have seen, that the death of the child
was not caused by a failure to promulgate rules and regulations. It was caused by a
defect in the machine as to which the defendant has shown himself free from
responsibility."chanrobles virtual law library

We, therefore, see that taxicab company did not perform its full duty when it furnished a
safe and proper car and a driver with a long and satisfactory record. It failed to comply
with one of the essential requirements of the law of negligence in this jurisdiction, that
of supervision and instruction, including the promulgation of proper rules and
regulations and the formulation and publication of proper instructions for their
guidance in cases where such rules and regulations and instructions are necessary. To
repeat, it was found by the trial court, and that finding is fully sustained by the record,
that it was the custom of the driver who operated the machine on the night of the
accident, to approach and pass over railroad crossings without adequate precautions,
and that such custom was known to and had been sanctioned by the officials of the
taxicab company, the president of the company testifying that none of its drivers,
especially the one who operated the car on the night of the accident, were accustomed
to stop or even reduce speed or take any other precaution in approaching and passing
over railroad crossings, no matter of what nature, unless they heard "the signal of a
car." He testified that he himself had ridden behind several of his drivers, among them
the one who handled the automobile on the night of the accident, and that it was settled
practice, to which he made no objection and as to which he gave no instructions, to
approach and pass over railroad crossings without any effort to ascertain the proximity
of a train. These facts and circumstances bring the case within the doctrine enunciated
in the Litonjua case to which reference has already been made, and, at the same time,
remove it from that class of cases governed by Johnson vs. David. Not only has the
defendant taxicab company failed to rebut the presumption of negligence arising from
the carelessness of its servant, but it has, in effect, made those negligent acts its own
by having observed and known the custom of its drivers without disapproving it and
without issuing instructions designed to supersede
it.chanroblesvirtualawlibrary chanrobles virtual law library

We are of the opinion that the trial court erred in fixing the amount of damages which
the plaintiffs suffered. Under the law, each of the plaintiffs, is entitled to recover the
time, doctors' bills and hospital bills and hospital bills and medicines, and any other
item of expense which it was found necessary to undergo by reason of the damages
sustained.chanroblesvirtualawlibrary chanrobles virtual law library

The plaintiff Butaro Yamada is entitled to be reimbursed for his hospital bill of P49, for
the P50 which he paid to Dr. Strahan, and for the loss of time which he suffered at the
rate of P100 a month. The trial court allowed him for certain alleged fees of doctors and
expenses in hospitals and at hot springs in Japan. He was also allowed P150 alleged by
him to have been paid to a Japanese doctor in Manila. We do not believe that the record
warrants these allowances. As to the expenses in Japan, we may say that the injury
occurred to plaintiff on the 2nd of January and he remained in Manila for nearly 6
months before going to Japan. According to the testimony of Dr. Strahan the plaintiff
was in good physical condition long before he left this country for Japan. His testimony
is to the effect that the plaintiff suffered no permanent injuries, the damage being
limited to temporary shocks and bruises, and that he would be ready for his usual
occupation in about 3 months. According to plaintiff's own testimony he went back to
work 2 months after the injury, but, claiming he still felt pains, went to Japan. We do not
believe that we ought to accept the plaintiff's bare statement as to his physical
condition after leaving the Philippine Islands in defiance of the testimony of Dr. Strahan
as to his physical condition 3 months after the injury was received and particularly in
view of the fact that he returned to work at the end of 2 months. As to the P150 alleged
to have been paid to a Japanese doctor in Manila, we have grave doubts whether he
had sufficiently proved that item of expenditure. He does not give the name of the
physician to whom he paid the money and he presents no receipt or voucher from the
person whom he paid. He made no memorandum of the payment at the time or of the
person to whom he paid it or of the date on which it was paid. All of his testimony
relating to the items which constitute his damage was based on a memorandum made
from memory on the morning of the trial. It seems to us that where the sources of
knowledge are to so large an extent within the knowledge and control of the person who
presents the evidence, he should be held rather strictly to presenting the best evidence
that the circumstances permit. If he had offered the Japanese doctor as a witness or if
he had even produced receipts from him, the matter would have borne quite a different
aspect.chanroblesvirtualawlibrary chanrobles virtual law library

We are accordingly of the opinion that the judgment in favor of this plaintiff should
consist simply of the loss of time, amounting to 2 months at P100 a month, his hospital
bill of P49 and his doctor's bill of P50, in all P299, with
costs.chanroblesvirtualawlibrary chanrobles virtual law library

With respect to the plaintiff Takutaru Uyehara, the judgment in his favor must be also
modified. Concerning his condition we have substantially the same testimony by the
same doctor that we had in the case of Yamada. There were no permanent injuries. The
plaintiff suffered merely from shock and bruises. He was quite recovered in 3 months. It
appears that he was earning P200 a month at the time of his injury and that his hospital
expense, including attendance of a physician, was P350. We are satisfied from the
record that he is entitled to P600 for 3 months' loss of wages and to P350 for hospital
expenses and medical attendance. As to the claim for P150 paid to a Japanese doctor,
we have in substance the same circumstances found in connection with the claim of the
plaintiff Yamada, - no name, no date, no memorandum, no receipt; nothing but the
testimony of the plaintiff himself based upon date prepared from memory. It is worthy of
note also that both this plaintiff and plaintiff Yamada claim to have paid exactly the same
amount to Japanese doctors in Manila.chanroblesvirtualawlibrary chanrobles virtual
law library

Judgment is hereby rendered in favor of the plaintiff Takutaru Uyehara for the sum of
P950, and costs.chanroblesvirtualawlibrary chanrobles virtual law library

With respect to the judgment in favor of the plaintiff Kenjiro Karabayashi, we are clear
that it must be reduced in amount. This plaintiff was able, immediately after the
accident occurred, to move about readily an to assist his injured companions. He did
not go to a hospital, or, so far as appeared, consult a physician until some time after the
accident. He alleges that he paid to Japanese doctors P310 and to massage doctors
P130, and that he paid P365 for medicines. The injury was received on the 2d of
January, 1913, and this caution was commenced in October of the same year. It seem
to us incredible that the plaintiff, who suffered and suffers from no physical injury
testified to by any physician, should have paid out during that time more than P800 for
medicines and doctors. That sum exceeds the sums claimed to have been paid out by
the other plaintiffs, who were so badly injured that they were carried in a semiconscious
condition to the hospital and were unable to move without assistance for some
days.chanroblesvirtualawlibrary chanrobles virtual law library

This plaintiff complains of loss of memory as the only result of his injuries and claims
that he is unable to obtain a salary equivalent to that which he was receiving before the
accident. He presents no evidence of such loss of memory except his own statement,
his physical condition at the time of the trial being apparently perfect and there being at
that time no evidence, as he himself admitted, of loss of memory. He presented no
doctor to testify as to services rendered, indeed, he does not even furnish the name of
the person to whom the money was paid, and he shows no receipts and produces no
evidence except his own statement with respect to the amount paid out for medicines.
We believe that, under this testimony, no damages should be allowed to this plaintiff
except possibly salary for the short period during which, by reason of shock, he may
have been unable to render active service. He testified that he lost two and one-half
months' time, during which he did not work at all, and that his services were worth P160
a month.chanroblesvirtualawlibrary chanrobles virtual law library

The judgment of the Court of First Instance with respect to this plaintiff, Kenjiro
Karabayashi, is modified and judgment in his favor and against the Bachrach Garage &
Taxicab Co. for P400 is hereby decreed, with
costs.chanroblesvirtualawlibrary chanrobles virtual law library

It may be urged that the reductions in the amounts allowed the several plaintiffs by the
trial court are arbitrary, the evidence as to the damages sustained being
uncontradicted and the trial court having based its judgment thereon. It is clear,
however, that we are in no way interfering with the rule so many times laid down by this
court that we will not interfere with the judgment of the trial court as to the credibility of
witnesses except where it appears that the court overlooked or misapplied facts or
circumstances of weight and influence appearing in the case. Here the trial court
seems to have overlooked those facts and circumstances top which we have adverted
and which we have made the basis of the modification. It nowhere appears in the
decision of the trial court or elsewhere in the record that it took any of those facts and
circumstances into consideration. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14088 September 30, 1961

CONCEPCION PELLOSA VDA. DE IMPERIAL, in her own behalf and as Guardian Ad

Litem of her minor child,
REX IMPERIAL, JR., plaintiffs-appellants,
vs.
HEALD LUMBER COMPANY, defendant-appellee.

--------------------------------

G.R. No. L-14089 September 30, 1961

LOURDES FERRER VDA. DE HERNANDEZ, in her own behalf and as Guardian Ad Litem
of her minor children,
JULIO HERNANDEZ, GABRIEL HERNANDEZ, JR., and ROSARIO
HERNANDEZ, plaintiffs-appellants,
vs.
HEALD LUMBER COMPANY, defendant-appellee.

--------------------------------

G.R. No. L-14112 September 30, 1961

PHILIPPINE AIR LINES, INC., plaintiff-appellant,

vs.
HEALD LUMBER COMPANY, defendant-appellee.

Ponce Enrile, Siguion Reyna, Montecillo and Belo for plaintiffs-appellants.

Ross, Selph and Carrascoso for defendant-appellee.

CONCEPCION, J.:

Appeal from a decision of the Court of First Instance of Baguio dismissing the
complaints in the above entitled three (3) cases, with costs against the plaintiffs.

On June 4, 1954, at about 6:50 a.m., a helicopter (PIC361) of the Philippine Air Lines,
Inc. (PAL), which had been chartered by the Lepanto Consolidated Mining Co., took off
from Nichols Fields, in Makati, Rizal, headed for Mankayan, Mt. Province, via Rosales,
Pangasinan. On board the helicopter were Capt. Gabriel Hernandez and Lt. Rex
Imperial. The helicopter reached Rosales at 8:22 a.m., and, fifty-three (53) minutes
later, or at 9:15 a.m., it undertook the last leg of its flight to Mankayan. However, the
helicopter did not reach this place for it crashed on the way. A search party —
composed of, among others, Capts. Willis Rohlings and Jaime Manzano, both of the PAL
— organized to track down the missing helicopter, found it in a ravine located in the
barrio of Ampusungan, Benguet, Mt. Province within the lumber concession of
defendant-appellee, Heald Lumber Co. which is several kilometers before reaching
Mankayan. The helicopter was a total wreck and both Capt. Hernandez and Lt. Imperial
were dead. The body of the former was strapped to his seat, but that of the latter was
several feet away from the wreckage. At the time of the flight, Capt. Hernandez was a
duly licensed helicopter pilot, whereas Lt. Imperial, although a licensed plane pilot, was
then under training as helicopter pilot.

Owing to this accident, three (3) actions were instituted in the court aforementioned,
against said defendant, namely: (1) case No. 580 (G.R. No. L-14112), filed by PAL on
March 2, 1956; (2) case No. 591 (G.R. No. L-14088), filed by Concepcion Pellosa de
Imperial, widow of the deceased Lt. Imperial, on April 13, 1956; and 3) case No. 592
(G.R. No. L-14089), filed by Lourdes Ferrer de Hernandez, widow of Capt. Hernandez,
on the date last mentioned.

In the first case, the PAL sought to recover the following:

Value of the helicopter P80,000.00

Compensation for the death of Capt. 40,000.00
Hernandez & Lt. Imperial at P20,000 each
Consequential damages due to the loss of 53,400.00
the helicopter
Funeral expenses for Capt. Hernandez 2,542.00
and Lt. Imperial
Expenses incurred in the training of Capt. 17,405.82
Hernandez in the U.S. and Lt. Imperial for
operation of helicopter
Moral damages resulting from harmful 30,000.00
publicity of the crash

TOTAL P223,347.82

upon the ground that the mishap was due to the fact that the helicopter had collided
"with defendant's tramway steel cables strung in parallel of approximately 3,000 yards
in length between two mountains approximately 3,000 to 5,000 feet high in the vicinity of
defendant's logging area in Ampusungan, Mountain Province."

In each of the other cases, the respective plaintiffs therein prayed for judgment as
follows:

Actual and compensatory damages P150,000.00

Exemplary damages 50,000.00
Moral damages 50,000.00
 Expenses of litigation 10,000.00
Attorney's fees 20,000.00

TOTAL P280,000.00

upon the theory that the death of Lt. Imperial and Capt. Hernandez was due to
defendant's alleged "gross negligence" and "flagrant violation of applicable laws and
regulations."

Being interrelated, the three (3) cases were jointly heard, and, in due course,
thereafter, the lower court, presided by Hon. Jesus de Veyra, rendered the decision
appealed from, finding that plaintiffs had "failed to make out a case of negligence on the
part of the defendant" and, accordingly, dismissing the three (3) complaints. Hence,
this appeal by the plaintiffs. The three (3) cases are before us the amount of the demand
in each being in excess of P200,000, exclusive of costs and interest.

Appellants maintain that the accident is imputable to the defendant, because the
helicopter, particularly its main rotor blades, had hit or collided with defendant's
aforementioned steel cables.

In this connection, Capt. Rohlings, who, at the time of the occurrence, was Assistant
Superintendent of the Flight Control of the PAL, testified that, during the investigation
conducted by him at the site of the crash, he found on the rotor blades of the helicopter.

several long marks which contained small indentations which were parallel to
each other, parallel lines, if you would put it that way, these marks were covered
by blackish substance of some kind which I took to be of grease of some kind.
(t.s.n, p. 95.)

Capt. Manzano, the Superintendent of Helicopter Operations of the PAL, tried to

corroborate this testimony of Capt. Rohlings. Both opined that the marks were due to
the contact of said rotor blades with the steel cables of defendant herein. Photographs
(Exhibits E-21, E-22 and E-24) allegedly taken by Capt. Rohlings — of the rotor blades,
purporting to show the aforementioned markings, were introduced in evidence in lieu of
said rotor blades.

It is admitted, however, that the helicopter had hit a tree before falling into a ravine.
Moreover, commenting on appellants' evidence, His Honor, the trial Judge, had the
following to say:

The evidence for the plaintiffs as to the cause of the crash is not conclusive. The
main rotor blade was not preserved, so this Court was not able to satisfy itself as
to the nature of the two long seriated streaks on the main rotor blade. The
composition of these streaks was not determined — whether they were grease
from the steel cable or marks from hitting a pine tree — for it can be equally
argued that these seriated streaks could have been caused by the strands of a
greasy steel cable or the rough bark of a pine tree. (Decision, Record on Appeal,
pp. 19-20.)
Upon the other hand, defendant endeavored to prove that the mishap had been due to
two (2) causes, namely: (1) exhaustion of the fuel; and (2) negligence of the pilot.

The record shows that the helicopter had a main tank and an auxiliary tank with a
capacity of twenty-seven (27) and fifteen (15) gallons of fuel, respectively. The main
tank was connected to the engine, but the auxiliary tank was not. In order to transfer
gasoline from the latter to the former, it was necessary to land the helicopter, as the
process could not be undertaken during flight. This was, in all probability, the reason
why the aircraft had to land in Rosales, Pangasinan, before proceeding to Mankayan.

Having left Rosales at 9:15 a.m., after its flight from Nichols Field, of one (1) hour and
thirty-two (32) minutes (from 6:50 to 8:22), the helicopter was supposed to reach
Mankayan at 10:44 a.m., the estimated flying time between Rosales and Mankayan
being one (1) hour and twenty-nine (29) minutes. Upon the other hand, the time of the
crash was placed at around 11:30 a.m., or between 11:00 and 11:30 a.m. By that time
the helicopter had already flown from one (1) hour and forty-five (45) minutes to two (2)
hours and fifteen (15) minutes, since it took off from Rosales, thus exceeding by sixteen
(16) to forty-six (46) minutes the aforementioned estimated flying time. Considering
that, with twenty-seven (27) gallons of gasoline, the helicopter had to refuel after a flight
of one (1) hour and thirty-two (32) minutes (from Nichols Field to Rosales), it is apparent
that, after flying for a longer period of one (1) hour and forty-five (45) minutes to two (2)
hours and fifteen (15) minutes, with a little over fifteen (15) gallons — or at most twenty-
seven (27) gallons of gasoline, the provision of fuel must have already been exhausted.

Col. Arnaiz, aircraft dispatcher of PAL, testified that the "maximum flight endurance" of
the helicopter was "two hours and fifty minutes including the auxiliary tank." The Flight
Plan (Exhibit B-1), as explained by Col. Arnaiz, shows that the estimated flying time from
Nichols Field to Rosales was one (1) hour and forty-two (42) minutes, and from Rosales
to Mankayan, one (1) hour and twenty-nine (29) minutes, or an aggregate estimated
flying time of three (3) hours and eleven (11) minutes, or twenty-one (21) minutes longer
than the estimated "maximum flight endurance" of the helicopter. Even if we deduct
from said total estimated flying time, from Nichols Field to Mankayan, the ten (10)
minutes saved in the flight from Nichols Field to Rosales, Pangasinan, the result would
still be eleven (11) minutes beyond the said "maximum flight endurance" of the
helicopter. In fact, the crash site (Ampusungan) is only about sixteen (16) kilometers,
or ten (10) minutes flying time, to Mankayan. In other words, the accident took place in
the area in which the helicopter was to have fully consumed its entire supply of
gasoline, thus justifying the belief that it was forced to land in Ampusungan due to lack
of gasoline, and that, as the engine ceased to function, its maneuverability must have
become impaired, in view of which it crashed, thus causing it to fall into a ravine in
defendant's concession.1awphîl.nèt

Several factors indicate strongly that this was in all likelihood what happened for: (1)
the site of the crash was more than a mile (over three [3] miles, according to the
defendant) off the plotted course, altho, under normal conditions, no reasonably
prudent pilot — according to appellants witness, Capt. Manzano — would have
attempted to land in the vicinity of the scene of the occurrence; (2) the wrecked
helicopter emitted no smell of gasoline and there was no sign of fire resulting from the
crash, despite the fact that the helicopter was using high octane gasoline, which,
admittedly, is highly inflammable and would have probably set the craft aflame upon
hitting the pine tree above referred to, had there been some gasoline in the tank at that
time; and (3) the helicopter was a total wreck, thus showing that the impact must have
been strong.

The foregoing considerations suggest, also, that Capt. Hernandez and Lt. Imperial had
acted recklessly in undertaking the flight with a supply of fuel hardly sufficient to enable
them to reach their destination. Besides, the landing report (Exhibit 9) shows that the
portions thereof pertaining to the pilot were accomplished or filled in by Lt. Imperial
upon landing at the Rosales airport. In fact, he signed said report as pilot of the
helicopter. Again, it appears that during the flight from Rosales to Mankayan, the
helicopter had deviated from one to three miles from the course plotted by Capt.
Hernandez, in which Col. Arnaiz concurred "because that was the most logical route to
follow." Had Capt. Hernandez been piloting the machine from Rosales to Mankayan, he
would have had no reason to deviate from the course planned by him, for the "visibility
and ceiling were unlimited in the area and vicinity where the helicopter fell." All
indications are, therefore, to the effect that, at the time of the accident, the helicopter
was being piloted, not by Capt. Hernandez but by Lt. Imperial, in violation of
Aeronautics Bulletin No. 1, Civil Aviation Regulations, of the Bureau of Aeronautics
(CAA)1 as well as of Republic Act No. 776, Section 42 (H),2 for Lt. Imperial was not a
lincesed helicopter pilot and was merely in the initial stage of his training as such pilot.

It is next urged that defendant was negligent in failing to give notice to the Civil
Aeronautics Administration of the presence of the aforementioned tram cables, which,
appellants maintain, constituted a hazard to aerial navigation. However, this pretense is
not borne out by the record. Appellants' witness, Capt. Manzano, testified that although,
in searching for the missing helicopter, his plane flew so low that there was danger of
collision with the mountains, he did not notice said cables. The same were not,
therefore, within the navigable air space. Similarly, Capt. Rohlings described the area
over which the cables were strung as "a congested area full of pine trees" and a
"mountainous terrain — slopping valley," thereby implying that the space from the
cables down was not suitable for air navigation. In short, it has not been satisfactorily
shown that the cables were a hazard to aerial navigation, or that the defendant should
have or could have reasonably foreseen that aircrafts would fly so low over the place as
to get entangled with said cables, for the area is dangerous to navigation owing to its
mountainous terrain "full of pine trees."

In short plaintiffs-appellants have failed to establish their pretense by a preponderance

of evidence, in view of which the decision appealed from must be, as it is hereby
affirmed, with costs against them. It is so ordered.

Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Paredes and De Leon, JJ., concur.
Bautista Angelo, J., is on leave.
 THIRD DIVISION

[G.R. No. 74761. November 6, 1990.]

NATIVIDAD V. ANDAMO and EMMANUEL R. ANDAMO, Petitioners, v. INTERMEDIATE

APPELLATE COURT (First Civil Cases Division) and MISSIONARIES OF OUR LADY OF
LA SALETTE, INC., Respondents.

Lope E. Adriano, for Petitioners.

Padilla Law Office for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; NATURE AND PURPOSE THEREOF DETERMINED BY THE

ALLEGATIONS IN THE COMPLAINT. — It is axiomatic that the nature of an action filed in
court is determined by the facts alleged in the complaint as constituting the cause of
action. The purpose of an action or suit and the law to govern it, including the period of
prescription, is to be determined not by the claim of the party filing the action, made in
his argument or brief, but rather by the complaint itself, its allegations and prayer for
relief. (De Tavera v. Philippine Tuberculosis Society, Inc., G.R. No. L-48928, February
25, 1982, 112 SCRA 243.) The nature of an action is not necessarily determined or
controlled by its title or heading but by the body of the pleading or complaint itself. To
avoid possible denial of substantial justice due to legal technicalities, pleadings as well
as remedial laws should be liberally construed so that the litigants may have ample
opportunity to prove their respective claims. (Dominguez v. Lee, G.R. No. 74960-61,
November 27, 1987, 155 SCRA 703)

2. CIVIL LAW; QUASI-DELICTS; ELEMENTS THEREOF. — A careful examination of the

aforequoted complaint shows that the civil action is one under Articles 2176 and 2177
of the Civil Code on quasi-delicts. All the elements of a quasi-delict are present, to wit:
(a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some
other person for whose acts he must respond; and (c) the connection of cause and
effect between the fault or negligence of the defendant and the damages incurred by
the plaintiff. (Taylor v. Manila Electric Company, 16 Phil. 8; Vergara v. Court of Appeals,
G.R. No. 77679, September 30, 1987, 154 SCRA 564)

3. ID; ID; "FAULT OR NEGLIGENCE," CONSTRUED. — Article 2176 of the Civil Code
imposes a civil liability on a person for damage caused by his act or omission
constituting fault or negligence, and whenever Article 2176 refers to "fault or
negligence", it covers not only acts "not punishable by law" but also acts criminal in
character, whether intentional and voluntary or negligent. Consequently, a separate
civil action lies against the offender in a criminal act, whether or not he is criminally
prosecuted and found guilty or acquitted, provided that the offended party is not
allowed, (if the tortfeasor is actually charged also criminally), to recover damages on
both scores, and would be entitled in such eventuality only to the bigger award of the
two, assuming the awards made in the two cases vary. (Virata v. Ochoa, G.R. No. L-
46179, January 31, 1978, 81 SCRA 472)

4. ID; ID; DISTINGUISHED FROM CRIMINAL NEGLIGENCE. — According to the Report

of the Code Commission, Article 2177 of the Civil Code though at first sight startling, is
not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a distinct and
independent negligence, which is a "culpa aquiliana" or quasi-delict, of ancient origin,
having always had its own foundation and individuality, separate from criminal
negligence. Such distinction between criminal negligence and "culpa extra-
contractual" or "cuasi-delito" has been sustained by decisions of the Supreme Court of
Spain . . .

5. ID; ID; CIVIL ACTION, ENTIRELY INDEPENDENT OF THE CRIMINAL CASE. — In

Azucena v. Potenciano, (5 SCRA 468, 470-471), the Court declared that in quasi-
delicts," (t)he civil action is entirely independent of the criminal case according to
Articles 33 and 2177 of the Civil Code. There can be no logical conclusion than this, for
to subordinate the civil action contemplated in the said articles to the result of the
criminal prosecution — whether it be conviction or acquittal — would render
meaningless the independent character of the civil action and the clear injunction in
Article 31, that his action may proceed independently of the criminal proceedings and
regardless of the result of the latter."cralaw virtua1aw library

6. ID; ID; EFFECT OF ACQUITTAL OR CONVICTION IN THE CRIMINAL CASE. — In the

case of Castillo v. Court of Appeals (176 SCRA 591), this Court held that a quasi-delict
or culpa aquiliana is a separate legal institution under the Civil Code with a substantivity
all its own, and individuality that is entirely apart and independent from a delict or crime
— a distinction exists between the civil liability arising from a crime and the
responsibility for quasi-delicts or culpa extra-contractual. The same negligence causing
damages may produce civil liability arising from a crime under the Penal Code, or
create an action for quasi-delicts or culpa extra-contractual under the Civil Code.
Therefore, the acquittal or conviction in the criminal case is entirely irrelevant in the
civil case, unless, of course, in the event of an acquittal where the court has declared
that the fact from which the civil action arose did not exist, in which case the extinction
of the criminal liability would carry with it the extinction of the civil liability.

7. ID; PROPERTY; USE THEREOF, NOT WITHOUT LIMITATIONS; RECIPROCAL DUTIES

OF ADJOINING LANDOWNERS. — It must be stressed that the use of one’s property is
not without limitations. Article 431 of the Civil Code provides that "the owner of a thing
cannot make use thereof in such a manner as to injure the rights of a third person." SIC
UTERE TUO UT ALIENUM NON LAEDAS. Moreover, adjoining landowners have mutual
and reciprocal duties which require that each must use his own land in a reasonable
manner so as not to infringe upon the rights and interests of others. Although we
recognize the right of an owner to build structures on his land, such structures must be
so constructed and maintained using all reasonable care so that they cannot be
dangerous to adjoining landowners and can withstand the usual and expected forces of
nature. If the structures cause injury or damage to an adjoining landowner or a third
person, the latter can claim indemnification for the injury or damage suffered.

DECISION

FERNAN, J.:

The pivotal issue in this petition for certiorari, prohibition and mandamus is whether a
corporation, which has built through its agents, waterpaths, water conductors and
contrivances within its land, thereby causing inundation and damage to an adjacent
land, can be held civilly liable for damages under Articles 2176 and 2177 of the Civil
Code on quasi-delicts such that the resulting civil case can proceed independently of
the criminal case.

The antecedent facts are as follows:chanrob1es virtual 1aw library

Petitioner spouses Emmanuel and Natividad Andamo are the owners of a parcel of land
situated in Biga (Biluso) Silang, Cavite which is adjacent to that of private respondent,
Missionaries of Our Lady of La Salette, Inc., a religious corporation.cralawnad

Within the land of respondent corporation, waterpaths and contrivances, including an

artificial lake, were constructed, which allegedly inundated and eroded petitioners’
land, caused a young man to drown, damaged petitioners’ crops and plants, washed
away costly fences, endangered the lives of petitioners and their laborers during rainy
and stormy seasons, and exposed plants and other improvements to destruction.

In July 1982, petitioners instituted a criminal action, docketed as Criminal Case No. TG
907-82, before the Regional Trial Court of Cavite, Branch 4 (Tagaytay City), against
Efren Musngi, Orlando Sapuay and Rutillo Mallillin, officers and directors of herein
respondent corporation, for destruction by means of injunction under Article 324 of the
Revised Penal Code.

Subsequently, on February 22, 1983, petitioners filed another action against

respondent corporation, this time a civil case, docketed as Civil Case No. TG-748, for
damages with prayer for the issuance of a writ of preliminary injunction before the same
court. 1

On March 11, 1983, respondent corporation filed its answer to the complaint and
opposition to the issuance of a writ of preliminary injunction. Hearings were conducted
including ocular inspections on the land. However, on April 26, 1984, the trial court,
acting on respondent corporation’s motion to dismiss or suspend the civil action,
issued an order suspending further hearings in Civil Case No. TG-748 until after
judgment in the related Criminal Case No. TG-907-82.

Resolving respondent corporation’s motion to dismiss filed on June 22, 1984, the trial
court issued on August 27,1984 the disputed order dismissing Civil Case No. TG-748 for
lack of jurisdiction, as the criminal case which was instituted ahead of the civil case
was still unresolved. Said order was anchored on the provision of Section 3 (a), Rule III
of the Rules of Court which provides that "criminal and civil actions arising from the
same offense may be instituted separately, but after the criminal action has been
commenced the civil action cannot be instituted until final judgment has been rendered
in the criminal action." 2

Petitioners appealed from that order to the Intermediate Appellate Court.3

On February 17, 1986, respondent Appellate Court, First Civil Cases Division,
promulgated a decision, 4 affirming the questioned order of the trial court. 5 A motion
for reconsideration filed by petitioners was denied by the Appellate Court in its
resolution dated May 19, 1986. 6

Directly at issue is the propriety of the dismissal of Civil Case: No. TG-748 in
accordance with Section 3 (a) of Rule 111 of the Pules of Court. Petitioners contend that
the trial court and the Appellate Court erred in dismissing Civil Case No. TG-748 since it
is predicated on a quasi-delict. Petitioners have raised a valid point.

It is axiomatic that the nature of an action filed in court is determined by the facts
alleged in the complaint as constituting the cause of action. 7 The purpose of an action
or suit and the law to govern it, including the period of prescription, is to be determined
not by the claim of the party filing the action, made in his argument or brief, but rather
by the complaint itself, its allegations and prayer for relief. 8 The nature of an action is
not necessarily determined or controlled by its title or heading but by the body of the
pleading or complaint itself. To avoid possible denial of substantial justice due to legal
technicalities, pleadings as well as remedial laws should be liberally construed so that
the litigants may have ample opportunity to prove their respective claims. 9

Quoted hereunder are the pertinent portions of petitioners’ complaint in Civil Case No.
TG-748:chanrobles.com:cralaw:red

4) That within defendant’s land, likewise located at Biga (Biluso), Silang, Cavite,
adjacent on the right side of the aforesaid land of plaintiffs, defendant constructed
waterpaths starting from the middle-right portion thereof leading to a big hole or
opening, also constructed by defendant, thru the lower portion of its concrete hollow-
blocks fence situated on the right side of its cemented gate fronting the provincial
highway, and connected by defendant to a man-height inter-connected cement culverts
which were also constructed and lain by defendant cross-wise beneath the tip of the
said cemented gate, the left-end of the said inter-connected culverts again connected
by defendant to a big hole or opening thru the lower portion of the same concrete
hollow-blocks fence on the left side of the said cemented gate, which hole or opening is
likewise connected by defendant to the cemented mouth of a big canal, also
constructed by defendant, which runs northward towards a big hole or opening which
was also built by defendant thru the lower portion of its concrete hollow-blocks fence
which separates the land of plaintiffs from that of defendant (and which serves as the
exit-point of the floodwater coming from the land of defendant, and at the same time,
the entrance-point of the same floodwater to the land of plaintiffs, year after year,
during rainy or stormy seasons.

"5) That moreover, on the middle-left portion of its land just beside the land of plaintiffs,
defendant also constructed an artificial lake, the base of which is soil, which utilizes the
water being channeled thereto from its water system thru inter-connected galvanized
iron pipes (No. 2) and complimented by rain water during rainy or stormy seasons, so
much so that the water below it seeps into, and the excess water above it inundates,
portions of the adjoining land of plaintiffs.

"6) That as a result of the inundation brought about by defendant’s aforementioned

water conductors, contrivances and manipulators, a young man was drowned to death,
while herein plaintiffs suffered and will continue to suffer, as
follows:jgc:chanrobles.com.ph

"a) Portions of the land of plaintiffs were eroded and converted to deep, wide and long
canals, such that the same can no longer be planted to any crop or plant.

"b) Costly fences constructed by plaintiffs were, on several occasions, washed away.

"c) during rainy and stormy seasons the lives of plaintiffs and their laborers are always
in danger.

"d) Plants and other improvements on other portions of the land of plaintiffs are
exposed to destruction. . . ." 10

A careful examination of the aforequoted complaint shows that the civil action is one
under Articles 2176 and 2177 of the Civil Code on quasi-delicts. All the elements of a
quasi-delict are present, to wit: (a) damages suffered by the plaintiff; (b) fault or
negligence of the defendant, or some other person for whose acts he must respond;
and (c) the connection of cause and effect between the fault or negligence of the
defendant and the damages incurred by the plaintiff. 11

Clearly, from petitioners’ complaint, the waterpaths and contrivances built by

respondent corporation are alleged to have inundated the land of petitioners. There is
therefore, an assertion of a causal connection between the act of building these
waterpaths and the damage sustained by petitioners. Such action if proven constitutes
fault or negligence which may be the basis for the recovery of damages.

In the case of Samson v. Dionisio, 12 the Court applied Article 1902, now Article 2176 of
the Civil Code and held that "any person who without due authority constructs a bank or
dike, stopping the flow or communication between a creek or a lake and a river, thereby
causing loss and damages to a third party who, like the rest of the residents, is entitled
to the use and enjoyment of the stream or lake, shall be liable to the payment of an
indemnity for loss and damages to the injured party."cralaw virtua1aw library

While the property involved in the cited case belonged to the public domain and the
property subject of the instant case is privately owned, the fact remains that
petitioners’ complaint sufficiently alleges that petitioners have sustained and will
continue to sustain damage due to the waterpaths and contrivances built by respondent
corporation. Indeed, the recitals of the complaint, the alleged presence of damage to
the petitioners, the act or omission of respondent corporation supposedly constituting
fault or negligence, and the causal connection between the act and the damage, with no
pre-existing contractual obligation between the parties make a clear case of a quasi-
delict or culpa aquiliana.chanrobles lawlibrary : rednad

It must be stressed that the use of one’s property is not without limitations. Article 431
of the Civil Code provides that "the owner of a thing cannot make use thereof in such a
manner as to injure the rights of a third person." SIC UTERE TUO UT ALIENUM NON
LAEDAS. Moreover, adjoining landowners have mutual and reciprocal duties which
require that each must use his own land in a reasonable manner so as not to infringe
upon the rights and interests of others. Although we recognize the right of an owner to
build structures on his land, such structures must be so constructed and maintained
using all reasonable care so that they cannot be dangerous to adjoining landowners
and can withstand the usual and expected forces of nature. If the structures cause
injury or damage to an adjoining landowner or a third person, the latter can claim
indemnification for the injury or damage suffered.

Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by
his act or omission constituting fault or negligence, thus:jgc:chanrobles.com.ph

"Article 2176. Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. Such fault or negligence, if there
is no pre-existing contractual relation between the parties, is called a quasi-delict is
governed by the provisions of this chapter."cralaw virtua1aw library

Article 2176, whenever it refers to "fault or negligence", covers not only acts "not
punishable by law" but also acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a separate civil action lies against the offender in
a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, (if the tortfeasor is actually charged
also criminally), to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards made in the two
cases vary. 13

The distinctness of quasi-delicts is shown in Article 2177 of the Civil Code, which
states:jgc:chanrobles.com.ph

"Article 2177. Responsibility for fault or negligence under the preceding article is
entirely separate and distinct from the civil liability arising from negligence under the
Penal Code. But the plaintiff cannot recover damages twice for the same act or
omission of the defendant."cralaw virtua1aw library

According to the Report of the Code Commission "the foregoing provision though at
first sight startling, is not so novel or extraordinary when we consider the exact nature
of criminal and civil negligence. The former is a violation of the criminal law, while the
latter is a distinct and independent negligence, which is a "culpa aquiliana" or quasi-
delict, of ancient origin, having always had its own foundation and individuality,
separate from criminal negligence. Such distinction between criminal negligence and
"culpa extra-contractual" or "cuasi-delito" has been sustained by decisions of the
Supreme Court of Spain . . ." 14

In the case of Castillo v. Court of Appeals, 15 this Court held that a quasi-delict or culpa
aquiliana is a separate legal institution under the Civil Code with a substantivity all its
own, and individuality that is entirely apart and independent from a delict or crime — a
distinction exists between the civil liability arising from a crime and the responsibility
for quasi-delicts or culpa extra-contractual. The same negligence causing damages
may produce civil liability arising from a crime under the Penal Code, or create an
action for quasi-delicts or culpa extra-contractual under the Civil Code. Therefore, the
acquittal or conviction in the criminal case is entirely irrelevant in the civil case, unless,
of course, in the event of an acquittal where the court has declared that the fact from
which the civil action arose did not exist, in which case the extinction of the criminal
liability would carry with it the extinction of the civil liability.chanrobles.com.ph : virtual
law library

In Azucena v. Potenciano, 16 the Court declared that in quasi-delicts," (t)he civil action
is entirely independent of the criminal case according to Articles 33 and 2177 of the
Civil Code. There can be no logical conclusion than this, for to subordinate the civil
action contemplated in the said articles to the result of the criminal prosecution —
whether it be conviction or acquittal — would render meaningless the independent
character of the civil action and the clear injunction in Article 31, that his action may
proceed independently of the criminal proceedings and regardless of the result of the
latter."cralaw virtua1aw library

WHEREFORE, the assailed decision dated February 17, 1986 of the then Intermediate
Appellate Court affirming the order of dismissal of the Regional Trial Court of Cavite,
Branch 18 (Tagaytay City) dated August 17, 1984 is hereby REVERSED and SET ASIDE.
The trial court is ordered to reinstate Civil Case No. TG-748 entitled "Natividad V.
Andamo and Emmanuel R. Andamo v. Missionaries of Our Lady of La Salette, Inc." and
to proceed with the hearing of the case with dispatch. This decision is immediately
executory. Costs against respondent corporation.

SO ORDERED.
 SECOND DIVISION

[G.R. NO. 137775. March 31, 2005]

FGU INSURANCE CORPORATION, Petitioners, v. THE COURT OF APPEALS, SAN

MIGUEL CORPORATION, and ESTATE OF ANG GUI, represented by LUCIO, JULIAN,
and JAIME, all surnamed ANG, and CO TO, Respondents.

[G.R. NO. 140704. March 31, 2005]

ESTATE OF ANG GUI, Represented by LUCIO, JULIAN and JAIME, all surnamed ANG,
and CO TO, Petitioners, v. THE HONORABLE COURT OF APPEALS, SAN MIGUEL
CORP., and FGU INSURANCE CORP., Respondents.

DECISION

CHICO-NAZARIO, J.:

Before Us are two separate Petitions for review assailing the Decision1 of the Court of
Appeals in CA-G.R. CV No. 49624 entitled, "San Miguel Corporation, Plaintiff-Appellee v.
Estate of Ang Gui, represented by Lucio, Julian and Jaime, all surnamed Ang, and Co
To, Defendants-Appellants, Third Party Plaintiffs v. FGU Insurance Corporation, Third-
Party Defendant-Appellant," which affirmed in toto the decision2 of the Regional Trial
Court of Cebu City, Branch 22. The dispositive portion of the Court of Appeals decision
reads:

WHEREFORE, for all the foregoing, judgment is hereby rendered as follows:

1) Ordering defendants to pay plaintiff the sum of P1,346,197.00 and an interest of 6%

per annum to be reckoned from the filing of this case on October 2, 1990;

2) Ordering defendants to pay plaintiff the sum of P25,000.00 for attorney's fees and an
additional sum of P10,000.00 as litigation expenses;

3) With cost against defendants.

For the Third-Party Complaint:

1) Ordering third-party defendant FGU Insurance Company to pay and reimburse

defendants the amount of P632,700.00.3

The Facts

Evidence shows that Anco Enterprises Company (ANCO), a partnership between Ang
Gui and Co To, was engaged in the shipping business. It owned the M/T ANCO tugboat
and the D/B Lucio barge which were operated as common carriers. Since the D/B Lucio
had no engine of its own, it could not maneuver by itself and had to be towed by a
tugboat for it to move from one place to another.
On 23 September 1979, San Miguel Corporation (SMC) shipped from Mandaue City,
Cebu, on board the D/B Lucio, for towage by M/T ANCO, the following cargoes:

Bill of Lading No. Shipment Destination

1 25,000 cases Pale Pilsen Estancia, Iloilo

350 cases Cerveza Negra Estancia, Iloilo

2 15,000 cases Pale Pilsen San Jose, Antique

200 cases Cerveza Negra San Jose, Antique

The consignee for the cargoes covered by Bill of Lading No. 1 was SMC's Beer
Marketing Division (BMD)-Estancia Beer Sales Office, Estancia, Iloilo, while the
consignee for the cargoes covered by Bill of Lading No. 2 was SMC's BMD-San Jose
Beer Sales Office, San Jose, Antique.

The D/B Lucio was towed by the M/T ANCO all the way from Mandaue City to San Jose,
Antique. The vessels arrived at San Jose, Antique, at about one o'clock in the afternoon
of 30 September 1979. The tugboat M/T ANCO left the barge immediately after reaching
San Jose, Antique.

When the barge and tugboat arrived at San Jose, Antique, in the afternoon of 30
September 1979, the clouds over the area were dark and the waves were already big.
The arrastre workers unloading the cargoes of SMC on board the D/B Lucio began to
complain about their difficulty in unloading the cargoes. SMC's District Sales
Supervisor, Fernando Macabuag, requested ANCO's representative to transfer the
barge to a safer place because the vessel might not be able to withstand the big waves.

ANCO's representative did not heed the request because he was confident that the
barge could withstand the waves. This, notwithstanding the fact that at that time, only
the M/T ANCO was left at the wharf of San Jose, Antique, as all other vessels already
left the wharf to seek shelter. With the waves growing bigger and bigger, only Ten
Thousand Seven Hundred Ninety (10,790) cases of beer were discharged into the
custody of the arrastre operator.

At about ten to eleven o'clock in the evening of 01 October 1979, the crew of D/B Lucio
abandoned the vessel because the barge's rope attached to the wharf was cut off by
the big waves. At around midnight, the barge run aground and was broken and the
cargoes of beer in the barge were swept away.

As a result, ANCO failed to deliver to SMC's consignee Twenty-Nine Thousand Two

Hundred Ten (29,210) cases of Pale Pilsen and Five Hundred Fifty (550) cases of
Cerveza Negra. The value per case of Pale Pilsen was Forty-Five Pesos and Twenty
Centavos (P45.20). The value of a case of Cerveza Negra was Forty-Seven Pesos and
Ten Centavos (P47.10), hence, SMC's claim against ANCO amounted to One Million
Three Hundred Forty-Six Thousand One Hundred Ninety-Seven Pesos (P1,346,197.00).
As a consequence of the incident, SMC filed a complaint for Breach of Contract of
Carriage and Damages against ANCO for the amount of One Million Three Hundred
Forty-Six Thousand One Hundred Ninety-Seven Pesos (P1,346,197.00) plus interest,
litigation expenses and Twenty-Five Percent (25%) of the total claim as attorney's fees.

Upon Ang Gui's death, ANCO, as a partnership, was dissolved hence, on 26 January
1993, SMC filed a second amended complaint which was admitted by the Court
impleading the surviving partner, Co To and the Estate of Ang Gui represented by
Lucio, Julian and Jaime, all surnamed Ang. The substituted defendants adopted the
original answer with counterclaim of ANCO "since the substantial allegations of the
original complaint and the amended complaint are practically the same."

ANCO admitted that the cases of beer Pale Pilsen and Cerveza Negra mentioned in the
complaint were indeed loaded on the vessel belonging to ANCO. It claimed however
that it had an agreement with SMC that ANCO would not be liable for any losses or
damages resulting to the cargoes by reason of fortuitous event. Since the cases of beer
Pale Pilsen and Cerveza Negra were lost by reason of a storm, a fortuitous event which
battered and sunk the vessel in which they were loaded, they should not be held liable.
ANCO further asserted that there was an agreement between them and SMC to insure
the cargoes in order to recover indemnity in case of loss. Pursuant to that agreement,
the cargoes to the extent of Twenty Thousand (20,000) cases was insured with FGU
Insurance Corporation (FGU) for the total amount of Eight Hundred Fifty-Eight
Thousand Five Hundred Pesos (P858,500.00) per Marine Insurance Policy No. 29591.

Subsequently, ANCO, with leave of court, filed a Third-Party Complaint against FGU,
alleging that before the vessel of ANCO left for San Jose, Antique with the cargoes
owned by SMC, the cargoes, to the extent of Twenty Thousand (20,000) cases, were
insured with FGU for a total amount of Eight Hundred Fifty-Eight Thousand Five
Hundred Pesos (P858,500.00) under Marine Insurance Policy No. 29591. ANCO further
alleged that on or about 02 October 1979, by reason of very strong winds and heavy
waves brought about by a passing typhoon, the vessel run aground near the vicinity of
San Jose, Antique, as a result of which, the vessel was totally wrecked and its cargoes
owned by SMC were lost and/or destroyed. According to ANCO, the loss of said
cargoes occurred as a result of risks insured against in the insurance policy and during
the existence and lifetime of said insurance policy. ANCO went on to assert that in the
remote possibility that the court will order ANCO to pay SMC's claim, the third-party
defendant corporation should be held liable to indemnify or reimburse ANCO whatever
amounts, or damages, it may be required to pay to SMC.

In its answer to the Third-Party complaint, third-party defendant FGU admitted the
existence of the Insurance Policy under Marine Cover Note No. 29591 but maintained
that the alleged loss of the cargoes covered by the said insurance policy cannot be
attributed directly or indirectly to any of the risks insured against in the said insurance
policy. According to FGU, it is only liable under the policy to Third-party Plaintiff ANCO
and/or Plaintiff SMC in case of any of the following:

a) total loss of the entire shipment;

b) loss of any case as a result of the sinking of the vessel; or

c) loss as a result of the vessel being on fire.

Furthermore, FGU alleged that the Third-Party Plaintiff ANCO and Plaintiff SMC failed to
exercise ordinary diligence or the diligence of a good father of the family in the care and
supervision of the cargoes insured to prevent its loss and/or destruction.

Third-Party defendant FGU prayed for the dismissal of the Third-Party Complaint and
asked for actual, moral, and exemplary damages and attorney's fees.

The trial court found that while the cargoes were indeed lost due to fortuitous event,
there was failure on ANCO's part, through their representatives, to observe the degree
of diligence required that would exonerate them from liability. The trial court thus held
the Estate of Ang Gui and Co To liable to SMC for the amount of the lost shipment. With
respect to the Third-Party complaint, the court a quo found FGU liable to bear Fifty-
Three Percent (53%) of the amount of the lost cargoes. According to the trial court:

. . . Evidence is to the effect that the D/B Lucio, on which the cargo insured, run-
aground and was broken and the beer cargoes on the said barge were swept away. It is
the sense of this Court that the risk insured against was the cause of the loss .

...

Since the total cargo was 40,550 cases which had a total amount of P1,833,905.00 and
the amount of the policy was only for P858,500.00, defendants as assured, therefore,
were considered co-insurers of third-party defendant FGU Insurance Corporation to the
extent of 975,405.00 value of the cargo. Consequently, inasmuch as there was partial
loss of only P1,346,197.00, the assured shall bear 53% of the loss'4 [Emphasis ours]

The appellate court affirmed in toto the decision of the lower court and denied the
motion for reconsideration and the supplemental motion for reconsideration.

Hence, the petitions.

The Issues

In G.R. No. 137775, the grounds for review raised by petitioner FGU can be summarized
into two: 1) Whether or not respondent Court of Appeals committed grave abuse of
discretion in holding FGU liable under the insurance contract considering the
circumstances surrounding the loss of the cargoes; and 2) Whether or not the Court of
Appeals committed an error of law in holding that the doctrine of res judicata applies in
the instant case.

In G.R. No. 140704, petitioner Estate of Ang Gui and Co To assail the decision of the
appellate court based on the following assignments of error: 1) The Court of Appeals
committed grave abuse of discretion in affirming the findings of the lower court that the
negligence of the crewmembers of the D/B Lucio was the proximate cause of the loss of
the cargoes; and 2) The respondent court acted with grave abuse of discretion when it
ruled that the appeal was without merit despite the fact that said court had accepted
the decision in Civil Case No. R-19341, as affirmed by the Court of Appeals and the
Supreme Court, as res judicata.

Ruling of the Court

First, we shall endeavor to dispose of the common issue raised by both petitioners in
their respective petitions for review, that is, whether or not the doctrine of res
judicata applies in the instant case.

It is ANCO's contention that the decision in Civil Case No. R-19341,5 which was decided
in its favor, constitutes res judicata with respect to the issues raised in the case at bar.

The contention is without merit. There can be no res judicata as between Civil Case No.
R-19341 and the case at bar. In order for res judicata to be made applicable in a case,
the following essential requisites must be present: 1) the former judgment must be final;
2) the former judgment must have been rendered by a court having jurisdiction over the
subject matter and the parties; 3) the former judgment must be a judgment or order on
the merits; and 4) there must be between the first and second action identity of parties,
identity of subject matter, and identity of causes of action.6

There is no question that the first three elements of res judicata as enumerated above
are indeed satisfied by the decision in Civil Case No. R-19341. However, the doctrine is
still inapplicable due to the absence of the last essential requisite of identity of parties,
subject matter and causes of action.

The parties in Civil Case No. R-19341 were ANCO as plaintiff and FGU as defendant
while in the instant case, SMC is the plaintiff and the Estate of Ang Gui represented by
Lucio, Julian and Jaime, all surnamed Ang and Co To as defendants, with the latter
merely impleading FGU as third-party defendant.

The subject matter of Civil Case No. R-19341 was the insurance contract entered into
by ANCO, the owner of the vessel, with FGU covering the vessel D/B Lucio, while in the
instant case, the subject matter of litigation is the loss of the cargoes of SMC, as
shipper, loaded in the D/B Lucio and the resulting failure of ANCO to deliver to SMC's
consignees the lost cargo. Otherwise stated, the controversy in the first case involved
the rights and liabilities of the shipowner vis - à-vis that of the insurer, while the present
case involves the rights and liabilities of the shipper vis - à-vis that of the shipowner.
Specifically, Civil Case No. R-19341 was an action for Specific Performance and
Damages based on FGU Marine Hull Insurance Policy No. VMF-MH-13519 covering the
vessel D/B Lucio, while the instant case is an action for Breach of Contract of Carriage
and Damages filed by SMC against ANCO based on Bill of Lading No. 1 and No. 2, with
defendant ANCO seeking reimbursement from FGU under Insurance Policy No. MA-
58486, should the former be held liable to pay SMC.

Moreover, the subject matter of the third-party complaint against FGU in this case is
different from that in Civil Case No. R-19341. In the latter, ANCO was suing FGU for the
insurance contract over the vessel while in the former, the third-party complaint arose
from the insurance contract covering the cargoes on board the D/B Lucio.
The doctrine of res judicata precludes the re-litigation of a particular fact or issue
already passed upon by a court of competent jurisdiction in a former judgment, in
another action between the same parties based on a different claim or cause of action.
The judgment in the prior action operates as estoppel only as to those matters in issue
or points controverted, upon the determination of which the finding or judgment was
rendered.7 If a particular point or question is in issue in the second action, and the
judgment will depend on the determination of that particular point or question, a former
judgment between the same parties or their privies will be final and conclusive in the
second if that same point or question was in issue and adjudicated in the first suit. 8

Since the case at bar arose from the same incident as that involved in Civil Case No. R-
19341, only findings with respect to matters passed upon by the court in the former
judgment are conclusive in the disposition of the instant case. A careful perusal of the
decision in Civil Case No. R-19341 will reveal that the pivotal issues resolved by the
lower court, as affirmed by both the Court of Appeals and the Supreme Court, can be
summarized into three legal conclusions: 1) that the D/B Lucio before and during the
voyage was seaworthy; 2) that there was proper notice of loss made by ANCO within
the reglementary period; and 3) that the vessel D/B Lucio was a constructive total loss.

Said decision, however, did not pass upon the issues raised in the instant case. Absent
therein was any discussion regarding the liability of ANCO for the loss of the cargoes.
Neither did the lower court pass upon the issue of the alleged negligence of the
crewmembers of the D/B Lucio being the cause of the loss of the cargoes owned by
SMC.

Therefore, based on the foregoing discussion, we are reversing the findings of the
Court of Appeals that there is res judicata.

Anent ANCO's first assignment of error, i.e., the appellate court committed error in
concluding that the negligence of ANCO's representatives was the proximate cause of
the loss, said issue is a question of fact assailing the lower court's appreciation of
evidence on the negligence or lack thereof of the crewmembers of the D/B Lucio. As a
rule, findings of fact of lower courts, particularly when affirmed by the appellate court,
are deemed final and conclusive. The Supreme Court cannot review such findings on
appeal, especially when they are borne out by the records or are based on substantial
evidence.9 As held in the case of Donato v. Court of Appeals,10 in this jurisdiction, it is a
fundamental and settled rule that findings of fact by the trial court are entitled to great
weight on appeal and should not be disturbed unless for strong and cogent reasons
because the trial court is in a better position to examine real evidence, as well as to
observe the demeanor of the witnesses while testifying in the case.11

It is not the function of this Court to analyze or weigh evidence all over again, unless
there is a showing that the findings of the lower court are totally devoid of support or
are glaringly erroneous as to constitute palpable error or grave abuse of discretion.12

A careful study of the records shows no cogent reason to fault the findings of the lower
court, as sustained by the appellate court, that ANCO's representatives failed to
exercise the extraordinary degree of diligence required by the law to exculpate them
from liability for the loss of the cargoes.
First, ANCO admitted that they failed to deliver to the designated consignee the Twenty
Nine Thousand Two Hundred Ten (29,210) cases of Pale Pilsen and Five Hundred Fifty
(550) cases of Cerveza Negra.

Second, it is borne out in the testimony of the witnesses on record that the barge D/B
Lucio had no engine of its own and could not maneuver by itself. Yet, the patron of
ANCO's tugboat M/T ANCO left it to fend for itself notwithstanding the fact that as the
two vessels arrived at the port of San Jose, Antique, signs of the impending storm were
already manifest. As stated by the lower court, witness Mr. Anastacio Manilag testified
that the captain or patron of the tugboat M/T ANCO left the barge D/B Lucio immediately
after it reached San Jose, Antique, despite the fact that there were already big waves
and the area was already dark. This is corroborated by defendants' own witness, Mr.
Fernando Macabueg.13

The trial court continued:

At that precise moment, since it is the duty of the defendant to exercise and observe
extraordinary diligence in the vigilance over the cargo of the plaintiff, the patron or
captain of M/T ANCO, representing the defendant could have placed D/B Lucio in a very
safe location before they left knowing or sensing at that time the coming of a typhoon.
The presence of big waves and dark clouds could have warned the patron or captain of
M/T ANCO to insure the safety of D/B Lucio including its cargo. D/B Lucio being a barge,
without its engine, as the patron or captain of M/T ANCO knew, could not possibly
maneuver by itself. Had the patron or captain of M/T ANCO, the representative of the
defendants observed extraordinary diligence in placing the D/B Lucio in a safe place,
the loss to the cargo of the plaintiff could not have occurred. In short, therefore,
defendants through their representatives, failed to observe the degree of diligence
required of them under the provision of Art. 1733 of the Civil Code of the Philippines. 14

Petitioners Estate of Ang Gui and Co To, in their Memorandum, asserted that the
contention of respondents SMC and FGU that "the crewmembers of D/B Lucio should
have left port at the onset of the typhoon is like advising the fish to jump from the frying
pan into the fire and an advice that borders on madness."15

The argument does not persuade. The records show that the D/B Lucio was the only
vessel left at San Jose, Antique, during the time in question. The other vessels were
transferred and temporarily moved to Malandong, 5 kilometers from wharf where the
barge remained.16 Clearly, the transferred vessels were definitely safer in Malandong
than at the port of San Jose, Antique, at that particular time, a fact which petitioners
failed to dispute

ANCO's arguments boil down to the claim that the loss of the cargoes was caused by
the typhoon Sisang, a fortuitous event (caso fortuito), and there was no fault or
negligence on their part. In fact, ANCO claims that their crewmembers exercised due
diligence to prevent or minimize the loss of the cargoes but their efforts proved no
match to the forces unleashed by the typhoon which, in petitioners' own words was, by
any yardstick, a natural calamity, a fortuitous event, an act of God, the consequences of
which petitioners could not be held liable for.17

The Civil Code provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public
policy are bound to observe extraordinary diligence in the vigilance over the goods and
for the safety of the passengers transported by them, according to all the
circumstances of each case.

Such extraordinary diligence in vigilance over the goods is further expressed in Articles
1734, 1735, and 1745 Nos. 5, 6, and 7 . . .

Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of
the goods, unless the same is due to any of the following causes only:

(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;

...

Art. 1739. In order that the common carrier may be exempted from responsibility, the
natural disaster must have been the proximate and only cause of the loss. However, the
common carrier must exercise due diligence to prevent or minimize loss before, during
and after the occurrence of flood, storm, or other natural disaster in order that the
common carrier may be exempted from liability for the loss, destruction, or
deterioration of the goods . . . (Emphasis supplied)ςrαlαωlιbrαrÿ

Caso fortuito or force majeure (which in law are identical insofar as they exempt an
obligor from liability)18 by definition, are extraordinary events not foreseeable or
avoidable, events that could not be foreseen, or which though foreseen, were
inevitable. It is therefore not enough that the event should not have been foreseen or
anticipated, as is commonly believed but it must be one impossible to foresee or to
avoid.19

In this case, the calamity which caused the loss of the cargoes was not unforeseen nor
was it unavoidable. In fact, the other vessels in the port of San Jose, Antique, managed
to transfer to another place, a circumstance which prompted SMC's District Sales
Supervisor to request that the D/B Lucio be likewise transferred, but to no avail. The
D/B Lucio had no engine and could not maneuver by itself. Even if ANCO's
representatives wanted to transfer it, they no longer had any means to do so as the
tugboat M/T ANCO had already departed, leaving the barge to its own devices. The
captain of the tugboat should have had the foresight not to leave the barge alone
considering the pending storm.

While the loss of the cargoes was admittedly caused by the typhoon Sisang, a natural
disaster, ANCO could not escape liability to respondent SMC. The records clearly show
the failure of petitioners' representatives to exercise the extraordinary degree of
diligence mandated by law. To be exempted from responsibility, the natural disaster
should have been the proximate and only cause of the loss.20 There must have been no
contributory negligence on the part of the common carrier. As held in the case
of Limpangco Sons v. Yangco Steamship Co.:21

. . . To be exempt from liability because of an act of God, the tug must be free from any
previous negligence or misconduct by which that loss or damage may have been
occasioned. For, although the immediate or proximate cause of the loss in any given
instance may have been what is termed an act of God, yet, if the tug unnecessarily
exposed the two to such accident by any culpable act or omission of its own, it is not
excused.22

Therefore, as correctly pointed out by the appellate court, there was blatant negligence
on the part of M/T ANCO's crewmembers, first in leaving the engine-less barge D/B
Lucio at the mercy of the storm without the assistance of the tugboat, and again in
failing to heed the request of SMC's representatives to have the barge transferred to a
safer place, as was done by the other vessels in the port; thus, making said blatant
negligence the proximate cause of the loss of the cargoes.

We now come to the issue of whether or not FGU can be held liable under the insurance
policy to reimburse ANCO for the loss of the cargoes despite the findings of the
respondent court that such loss was occasioned by the blatant negligence of the
latter's employees.

One of the purposes for taking out insurance is to protect the insured against the
consequences of his own negligence and that of his agents. Thus, it is a basic rule in
insurance that the carelessness and negligence of the insured or his agents constitute
no defense on the part of the insurer.23 This rule however presupposes that the loss has
occurred due to causes which could not have been prevented by the insured, despite
the exercise of due diligence.

The question now is whether there is a certain degree of negligence on the part of the
insured or his agents that will deprive him the right to recover under the insurance
contract. We say there is. However, to what extent such negligence must go in order to
exonerate the insurer from liability must be evaluated in light of the circumstances
surrounding each case. When evidence show that the insured's negligence or
recklessness is so gross as to be sufficient to constitute a willful act, the insurer must
be exonerated.

In the case of Standard Marine Ins. Co. v. Nome Beach L. & T. Co.,24 the United States
Supreme Court held that:

The ordinary negligence of the insured and his agents has long been held as a part of
the risk which the insurer takes upon himself, and the existence of which, where it is the
proximate cause of the loss, does not absolve the insurer from liability. But willful
exposure, gross negligence, negligence amounting to misconduct, etc., have often
been held to release the insurer from such liability.25 [Emphasis ours]

...

In the case of Williams v. New England Insurance Co., 3 Cliff. 244, Fed. Cas. No. 17,731,
the owners of an insured vessel attempted to put her across the bar at Hatteras Inlet.
She struck on the bar and was wrecked. The master knew that the depth of water on the
bar was such as to make the attempted passage dangerous. Judge Clifford held that,
under the circumstances, the loss was not within the protection of the policy, saying:

Authorities to prove that persons insured cannot recover for a loss occasioned by their
own wrongful acts are hardly necessary, as the proposition involves an elementary
principle of universal application. Losses may be recovered by the insured, though
remotely occasioned by the negligence or misconduct of the master or crew, if
proximately caused by the perils insured against, because such mistakes and
negligence are incident to navigation and constitute a part of the perils which those
who engage in such adventures are obliged to incur; but it was never supposed that the
insured could recover indemnity for a loss occasioned by his own wrongful act or by
that of any agent for whose conduct he was responsible.26 [Emphasis ours]

From the above-mentioned decision, the United States Supreme Court has made a
distinction between ordinary negligence and gross negligence or negligence amounting
to misconduct and its effect on the insured's right to recover under the insurance
contract. According to the Court, while mistake and negligence of the master or crew
are incident to navigation and constitute a part of the perils that the insurer is obliged to
incur, such negligence or recklessness must not be of such gross character as to
amount to misconduct or wrongful acts; otherwise, such negligence shall release the
insurer from liability under the insurance contract.

In the case at bar, both the trial court and the appellate court had concluded from the
evidence that the crewmembers of both the D/B Lucio and the M/T ANCO were blatantly
negligent. To wit:

There was blatant negligence on the part of the employees of defendants-appellants

when the patron (operator) of the tug boat immediately left the barge at the San Jose,
Antique wharf despite the looming bad weather. Negligence was likewise exhibited by
the defendants-appellants' representative who did not heed Macabuag's request that
the barge be moved to a more secure place. The prudent thing to do, as was done by
the other sea vessels at San Jose, Antique during the time in question, was to transfer
the vessel to a safer wharf. The negligence of the defendants-appellants is proved by
the fact that on 01 October 1979, the only simple vessel left at the wharf in San Jose
was the D/B Lucio.27 [Emphasis ours]

As stated earlier, this Court does not find any reason to deviate from the conclusion
drawn by the lower court, as sustained by the Court of Appeals, that ANCO's
representatives had failed to exercise extraordinary diligence required of common
carriers in the shipment of SMC's cargoes. Such blatant negligence being the proximate
cause of the loss of the cargoes amounting to One Million Three Hundred Forty-Six
Thousand One Hundred Ninety-Seven Pesos (P1,346,197.00)

This Court, taking into account the circumstances present in the instant case,
concludes that the blatant negligence of ANCO's employees is of such gross character
that it amounts to a wrongful act which must exonerate FGU from liability under the
insurance contract.

WHEREFORE, premises considered, the Decision of the Court of Appeals dated 24

February 1999 is hereby AFFIRMED with MODIFICATION dismissing the third-party
complaint.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21438 September 28, 1966

AIR FRANCE, petitioner,

vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.

Lichauco, Picazo and Agcaoili for petitioner.

Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:

The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael
Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages;
P393.20 representing the difference in fare between first class and tourist class for the
portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate,
from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees;
and the costs of suit.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's
plane ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all
other respects", with costs against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of
record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left
Manila for Lourdes on March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent,
Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane
ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first
class", but at Bangkok, the Manager of the defendant airline forced plaintiff to
vacate the "first class" seat that he was occupying because, in the words of the
witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged,
had a "better right" to the seat. When asked to vacate his "first class" seat, the
plaintiff, as was to be expected, refused, and told defendant's Manager that his
seat would be taken over his dead body; a commotion ensued, and, according to
said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the
 tourist class; when they found out that Mr. Carrascoso was having a hot
discussion with the white man [manager], they came all across to Mr.
Carrascoso and pacified Mr. Carrascoso to give his seat to the white man"
(Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his
"first class" seat in the plane.3

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of
respondent Court of Appeals. Petitioner charges that respondent court failed to make
complete findings of fact on all the issues properly laid before it. We are asked to
consider facts favorable to petitioner, and then, to overturn the appellate court's
decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by
any court of record without expressing therein clearly and distinctly the facts and the
law on which it is based". 5 This is echoed in the statutory demand that a judgment
determining the merits of the case shall state "clearly and distinctly the facts and the
law on which it is based"; 6 and that "Every decision of the Court of Appeals shall
contain complete findings of fact on all issues properly raised before it". 7

A decision with absolutely nothing to support it is a nullity. It is open to direct

attack. 8 The law, however, solely insists that a decision state the "essential ultimate
facts" upon which the court's conclusion is drawn. 9 A court of justice is not hidebound
to write in its decision every bit and piece of evidence 10 presented by one party and the
other upon the issues raised. Neither is it to be burdened with the obligation "to specify
in the sentence the facts" which a party "considered as proved". 11 This is but a part of
the mental process from which the Court draws the essential ultimate facts. A decision
is not to be so clogged with details such that prolixity, if not confusion, may result. So
long as the decision of the Court of Appeals contains the necessary facts to warrant its
conclusions, it is no error for said court to withhold therefrom "any specific finding of
facts with respect to the evidence for the defense". Because as this Court well
observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify (in
the decision) the contentions of the appellant and the reasons for refusing to believe
them is not sufficient to hold the same contrary to the requirements of the provisions of
law and the Constitution". It is in this setting that in Manigque, it was held that the mere
fact that the findings "were based entirely on the evidence for the prosecution without
taking into consideration or even mentioning the appellant's side in the controversy as
shown by his own testimony", would not vitiate the judgment. 13 If the court did not
recite in the decision the testimony of each witness for, or each item of evidence
presented by, the defeated party, it does not mean that the court has overlooked such
testimony or such item of evidence. 14 At any rate, the legal presumptions are that
official duty has been regularly performed, and that all the matters within an issue in a
case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the
written statement of the ultimate facts as found by the court ... and essential to support
the decision and judgment rendered thereon". 16 They consist of the
court's "conclusions" with respect to the determinative facts in issue". 17 A question of
law, upon the other hand, has been declared as "one which does not call for an
examination of the probative value of the evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a
judgment of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not
appropriately the business of this Court to alter the facts or to review the questions of
fact. 20

With these guideposts, we now face the problem of whether the findings of fact of the
Court of Appeals support its judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from
petitioner a first class ticket. But petitioner asserts that said ticket did not represent the
true and complete intent and agreement of the parties; that said respondent knew that
he did not have confirmed reservations for first class on any specific flight, although he
had tourist class protection; that, accordingly, the issuance of a first class ticket was no
guarantee that he would have a first class ride, but that such would depend upon the
availability of first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief
before the Court of Appeals under its third assignment of error, which reads: "The trial
court erred in finding that plaintiff had confirmed reservations for, and a right to, first
class seats on the "definite" segments of his journey, particularly that from Saigon to
Beirut". 21

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class

ticket was no guarantee that the passenger to whom the same had been issued,
would be accommodated in the first-class compartment, for as in the case of
plaintiff he had yet to make arrangements upon arrival at every station for the
necessary first-class reservation. We are not impressed by such a reasoning. We
cannot understand how a reputable firm like defendant airplane company could
have the indiscretion to give out tickets it never meant to honor at all. It received
the corresponding amount in payment of first-class tickets and yet it allowed the
passenger to be at the mercy of its employees. It is more in keeping with the
ordinary course of business that the company should know whether or riot the
tickets it issues are to be honored or not.22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's
contention, thus:

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no
question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2",
"C" and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's
testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this
OK mean?
 A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

xxx xxx xxx

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

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified

that the reservation for a "first class" accommodation for the plaintiff was confirmed.
The court cannot believe that after such confirmation defendant had a verbal
understanding with plaintiff that the "first class" ticket issued to him by defendant
would be subject to confirmation in Hongkong. 23

We have heretofore adverted to the fact that except for a slight difference of a few
pesos in the amount refunded on Carrascoso's ticket, the decision of the Court of First
Instance was affirmed by the Court of Appeals in all other respects. We hold the view
that such a judgment of affirmance has merged the judgment of the lower
court. 24 Implicit in that affirmance is a determination by the Court of Appeals that the
proceeding in the Court of First Instance was free from prejudicial error and "all
questions raised by the assignments of error and all questions that might have been
raised are to be regarded as finally adjudicated against the appellant". So also, the
judgment affirmed "must be regarded as free from all error". 25 We reached this policy
construction because nothing in the decision of the Court of Appeals on this point would
suggest that its findings of fact are in any way at war with those of the trial court. Nor
was said affirmance by the Court of Appeals upon a ground or grounds different from
those which were made the basis of the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class

seat, notwithstanding the fact that seat availability in specific flights is therein
confirmed, then an air passenger is placed in the hollow of the hands of an airline. What
security then can a passenger have? It will always be an easy matter for an airline aided
by its employees, to strike out the very stipulations in the ticket, and say that there was
a verbal agreement to the contrary. What if the passenger had a schedule to fulfill? We
have long learned that, as a rule, a written document speaks a uniform language; that
spoken word could be notoriously unreliable. If only to achieve stability in the relations
between passenger and air carrier, adherence to the ticket so issued is desirable. Such
is the case here. The lower courts refused to believe the oral evidence intended to
defeat the covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts
upon which the Court of Appeals predicated the finding that respondent Carrascoso
had a first class ticket and was entitled to a first class seat at Bangkok, which is a
stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions
by the Court of Appeals of petitioner's statement of its position", as charged by
petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent
Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this
because, as petitioner states, Carrascoso went to see the Manager at his office in
Bangkok "to confirm my seat and because from Saigon I was told again to see the
Manager". 30 Why, then, was he allowed to take a first class seat in the plane at
Bangkok, if he had no seat? Or, if another had a better right to the seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant

claim is that Carrascoso's action is planted upon breach of contract; that to authorize
an award for moral damages there must be an averment of fraud or bad faith; 31 and that
the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal
allegations in the complaint bearing on this issue are:

3. That ... plaintiff entered into a contract of air carriage with the Philippine Air
Lines for a valuable consideration, the latter acting as general agents for and in
behalf of the defendant, under which said contract, plaintiff was entitled to, as
defendant agreed to furnish plaintiff, First Class passage on defendant's plane
during the entire duration of plaintiff's tour of Europe with Hongkong as starting
point up to and until plaintiff's return trip to Manila, ... .

4. That, during the first two legs of the trip from Hongkong to Saigon and from
Saigon to Bangkok, defendant furnished to the plaintiff First Class
accommodation but only after protestations, arguments and/or insistence were
made by the plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class passage, but instead
furnished plaintiff only Tourist Class accommodations from Bangkok to Teheran
and/or Casablanca, ... the plaintiff has been compelled by defendant's employees
to leave the First Class accommodation berths at Bangkok after he was already
seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience

and embarrassments brought by defendant's breach of contract was forced to
take a Pan American World Airways plane on his return trip from Madrid to
Manila.32

xxx xxx xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations

aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations,
thereby causing plaintiff mental anguish, serious anxiety, wounded feelings, social
humiliation, and the like injury, resulting in moral damages in the amount of
P30,000.00. 33

xxx xxx xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to
furnish plaintiff a first class passage covering, amongst others, the Bangkok-Teheran
leg; Second, That said contract was breached when petitioner failed to furnish first
class transportation at Bangkok; and Third, that there was bad faith when petitioner's
employee compelled Carrascoso to leave his first class accommodation berth "after he
was already, seated" and to take a seat in the tourist class, by reason of which he
suffered inconvenience, embarrassments and humiliations, thereby causing him mental
anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral
damages. It is true that there is no specific mention of the term bad faith in the
complaint. But, the inference of bad faith is there, it may be drawn from the facts and
circumstances set forth therein. 34 The contract was averred to establish the relation
between the parties. But the stress of the action is put on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel
placed petitioner on guard on what Carrascoso intended to prove: That while sitting in
the plane in Bangkok, Carrascoso was ousted by petitioner's manager who gave his
seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the contract was
presented without objection on the part of the petitioner. It is, therefore, unnecessary to
inquire as to whether or not there is sufficient averment in the complaint to justify an
award for moral damages. Deficiency in the complaint, if any, was cured by the
evidence. An amendment thereof to conform to the evidence is not even required. 36 On
the question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the
plane belonging to the defendant Air France while at Bangkok, and was
transferred to the tourist class not only without his consent but against his will,
has been sufficiently established by plaintiff in his testimony before the court,
corroborated by the corresponding entry made by the purser of the plane in his
notebook which notation reads as follows:

"First-class passenger was forced to go to the tourist class against his

will, and that the captain refused to intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-

passenger. The captain of the plane who was asked by the manager of defendant
company at Bangkok to intervene even refused to do so. It is noteworthy that no
one on behalf of defendant ever contradicted or denied this evidence for the
plaintiff. It could have been easy for defendant to present its manager at
Bangkok to testify at the trial of the case, or yet to secure his disposition; but
defendant did neither. 37

The Court of appeals further stated —

Neither is there evidence as to whether or not a prior reservation was made by

the white man. Hence, if the employees of the defendant at Bangkok sold a first-
class ticket to him when all the seats had already been taken, surely the plaintiff
should not have been picked out as the one to suffer the consequences and to be
subjected to the humiliation and indignity of being ejected from his seat in the
presence of others. Instead of explaining to the white man the improvidence
committed by defendant's employees, the manager adopted the more drastic
step of ousting the plaintiff who was then safely ensconsced in his rightful seat.
We are strengthened in our belief that this probably was what happened there,
by the testimony of defendant's witness Rafael Altonaga who, when asked to
explain the meaning of the letters "O.K." appearing on the tickets of plaintiff, said
"that the space is confirmed for first class. Likewise, Zenaida Faustino, another
witness for defendant, who was the chief of the Reservation Office of defendant,
testified as follows:

"Q How does the person in the ticket-issuing office know what reservation
the passenger has arranged with you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247,
June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this
point:

Why did the, using the words of witness Ernesto G. Cuento, "white man"
have a "better right" to the seat occupied by Mr. Carrascoso? The record
is silent. The defendant airline did not prove "any better", nay, any right on
the part of the "white man" to the "First class" seat that the plaintiff was
occupying and for which he paid and was issued a corresponding "first
class" ticket.

If there was a justified reason for the action of the defendant's Manager in
Bangkok, the defendant could have easily proven it by having taken the
testimony of the said Manager by deposition, but defendant did not do so;
the presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances,
the Court is constrained to find, as it does find, that the Manager of the
defendant airline in Bangkok not merely asked but threatened the plaintiff
to throw him out of the plane if he did not give up his "first class" seat
because the said Manager wanted to accommodate, using the words of
the witness Ernesto G. Cuento, the "white man".38

It is really correct to say that the Court of Appeals in the quoted portion first
transcribed did not use the term "bad faith". But can it be doubted that the recital
of facts therein points to bad faith? The manager not only prevented Carrascoso
from enjoying his right to a first class seat; worse, he imposed his arbitrary will;
he forcibly ejected him from his seat, made him suffer the humiliation of having to
go to the tourist class compartment - just to give way to another passenger
whose right thereto has not been established. Certainly, this is bad faith. Unless,
of course, bad faith has assumed a meaning different from what is understood in
law. For, "bad faith" contemplates a "state of mind affirmatively operating with
furtive design or with some motive of self-interest or will or for ulterior
purpose." 39

And if the foregoing were not yet sufficient, there is the express finding of bad
faith in the judgment of the Court of First Instance, thus:
 The evidence shows that the defendant violated its contract of
transportation with plaintiff in bad faith, with the aggravating
circumstances that defendant's Manager in Bangkok went to the extent of
threatening the plaintiff in the presence of many passengers to have him
thrown out of the airplane to give the "first class" seat that he was
occupying to, again using the words of the witness Ernesto G. Cuento, a
"white man" whom he (defendant's Manager) wished to accommodate,
and the defendant has not proven that this "white man" had any "better
right" to occupy the "first class" seat that the plaintiff was occupying, duly
paid for, and for which the corresponding "first class" ticket was issued
by the defendant to him.40

5. The responsibility of an employer for the tortious act of its employees need not be
essayed. It is well settled in law. 41 For the willful malevolent act of petitioner's manager,
petitioner, his employer, must answer. Article 21 of the Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage.

In parallel circumstances, we applied the foregoing legal precept; and, we held that
upon the provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any
other contractual relation. 43 And this, because of the relation which an air-carrier
sustains with the public. Its business is mainly with the travelling public. It invites
people to avail of the comforts and advantages it offers. The contract of air carriage,
therefore, generates a relation attended with a public duty. Neglect or malfeasance of
the carrier's employees, naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated
by the carrier's employees with kindness, respect, courtesy and due consideration.
They are entitled to be protected against personal misconduct, injurious language,
indignities and abuses from such employees. So it is, that any rule or discourteous
conduct on the part of employees towards a passenger gives the latter an action for
damages against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a

breach of contract and a tort, giving a right of action for its agent in the presence of
third persons to falsely notify her that the check was worthless and demand payment
under threat of ejection, though the language used was not insulting and she was not
ejected." 46 And this, because, although the relation of passenger and carrier is
"contractual both in origin and nature" nevertheless "the act that breaks the contract
may be also a tort". 47 And in another case, "Where a passenger on a railroad train,
when the conductor came to collect his fare tendered him the cash fare to a point
where the train was scheduled not to stop, and told him that as soon as the train
reached such point he would pay the cash fare from that point to destination, there was
nothing in the conduct of the passenger which justified the conductor in using insulting
language to him, as by calling him a lunatic," 48 and the Supreme Court of South
Carolina there held the carrier liable for the mental suffering of said
passenger.1awphîl.nèt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of
Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a
violation of public duty by the petitioner air carrier — a case of quasi-delict. Damages
are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already — that was already in the trip — I could not help it. So one
of the flight attendants approached me and requested from me my ticket and I
said, What for? and she said, "We will note that you transferred to the tourist
class". I said, "Nothing of that kind. That is tantamount to accepting my transfer."
And I also said, "You are not going to note anything there because I am
protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't
have enough leg room, I stood up and I went to the pantry that was next to me
and the purser was there. He told me, "I have recorded the incident in my
notebook." He read it and translated it to me — because it was recorded in
French — "First class passenger was forced to go to the tourist class against his
will, and that the captain refused to intervene."

Mr. VALTE —

I move to strike out the last part of the testimony of the witness because the best
evidence would be the notes. Your Honor.

COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an
entry in his notebook reading "First class passenger was forced to go to the tourist
class against his will, and that the captain refused to intervene" is predicated upon
evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The
subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does
not come within the proscription of the best evidence rule. Such testimony is
admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue happened, the
impact of the startling occurrence was still fresh and continued to be felt. The
excitement had not as yet died down. Statements then, in this environment, are
admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement
and mental and physical condition of the declarant". 51 The utterance of the purser
regarding his entry in the notebook was spontaneous, and related to the circumstances
of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the
operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of
petitioner. It would have been an easy matter for petitioner to have contradicted
Carrascoso's testimony. If it were really true that no such entry was made, the
deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in

evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to
grant exemplary damages — in contracts and quasi- contracts. The only condition is
that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his
first class seat fits into this legal precept. And this, in addition to moral damages. 54

9. The right to attorney's fees is fully established. The grant of exemplary damages
justifies a similar judgment for attorneys' fees. The least that can be said is that the
courts below felt that it is but just and equitable that attorneys' fees be given. 55 We do
not intend to break faith with the tradition that discretion well exercised — as it was
here — should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the
Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary
damages, and P3,000.00 as attorneys' fees. The task of fixing these amounts is
primarily with the trial court. 56 The Court of Appeals did not interfere with the same.
The dictates of good sense suggest that we give our imprimatur thereto. Because, the
facts and circumstances point to the reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer from
reversible error. We accordingly vote to affirm the same. Costs against petitioner. So
ordered.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and
Castro, JJ., concur.
Bengzon, J.P., J., took no part.
 SECOND DIVISION

G.R. No. 114791 May 29, 1997

NANCY GO AND ALEX GO, Petitioners, v. THE HONORABLE COURT OF APPEALS,

HERMOGENES ONG and JANE C. ONG, Respondents.

ROMERO, J.:

No less than the Constitution commands us to protect marriage as an inviolable social

institution and the foundation of the family. 1 In our society, the importance of a wedding
ceremony cannot be underestimated as it is the matrix of the family and, therefore, an
occasion worth reliving in the succeeding years.

It is in this light that we narrate the following undisputed facts:

Private respondents spouses Hermogenes and Jane Ong were married on June 7,
1981, in Dumaguete City. The video coverage of the wedding was provided by
petitioners at a contract price of P1,650.00. Three times thereafter, the newlyweds tried
to claim the video tape of their wedding, which they planned to show to their relatives in
the United States where they were to spend their honeymoon, and thrice they failed
because the tape was apparently not yet processed. The parties then agreed that the
tape would be ready upon private respondents' return.

When private respondents came home from their honeymoon, however, they found out
that the tape had been erased by petitioners and therefore, could no longer be
delivered.

Furious at the loss of the tape which was supposed to be the only record of their
wedding, private respondents filed on September 23, 1981 a complaint for specific
performance and damages against petitioners before the Regional Trial Court, 7th
Judicial District, Branch 33, Dumaguete City. After a protracted trial, the court a
quo rendered a decision, to wit:

WHEREFORE, judgment is hereby granted:

1. Ordering the rescission of the agreement entered into between plaintiff Hermogenes
Ong and defendant Nancy Go;

2. Declaring defendants Alex Go and Nancy Go jointly and severally liable to plaintiffs
Hermogenes Ong and Jane C. Ong for the following sums:

a) P450.00 , the down payment made at contract time;

b) P75,000.00, as moral damages;

c) P20,000.00, as exemplary damages;

d) P5,000.00, as attorney's fees; and

e) P2,000.00, as litigation expenses;

Defendants are also ordered to pay the costs.

SO ORDERED.

Dissatisfied with the decision, petitioners elevated the case to the Court of Appeals
which, on September 14, 1993, dismissed the appeal and affirmed the trial court's
decision.

Hence, this petition.

Petitioners contend that the Court of Appeals erred in not appreciating the evidence
they presented to prove that they acted only as agents of a certain Pablo Lim and, as
such, should not have been held liable. In addition, they aver that there is no evidence
to show that the erasure of the tape was done in bad faith so as to justify the award of
damages. 2

The petition is not meritorious.

Petitioners claim that for the video coverage, the cameraman was employed by Pablo
Lim who also owned the video equipment used. They further assert that they merely get
a commission for all customers solicited for their principal. 3

This contention is primarily premised on Article 1883 of the Civil Code which states
thus:

Art. 1883. If an agent acts in his own name, the principal has no right of action against
the persons with whom the agent has contracted; neither have such persons against
the principal.

In such case the agent is the one directly bound in favor of the person with whom he has
contracted, as if the transaction were his own, except when the contract involves things
belonging to the principal.

xxx xxx xxx

Petitioners' argument that since the video equipment used belonged to Lim and thus the
contract was actually entered into between private respondents and Lim is not
deserving of any serious consideration. In the instant case, the contract entered into is
one of service, that is, for the video coverage of the wedding. Consequently, it can
hardly be said that the object of the contract was the video equipment used. The use by
petitioners of the video equipment of another person is of no consequence.

It must also be noted that in the course of the protracted trial below, petitioners did not
even present Lim to corroborate their contention that they were mere agents of the
latter. It would not be unwarranted to assume that their failure to present such a vital
witness would have had an adverse result on the case. 4
As regards the award of damages, petitioners would impress upon this Court their lack
of malice or fraudulent intent in the erasure of the tape. They insist that since private
respondents did not claim the tape after the lapse of thirty days, as agreed upon in their
contract, the erasure was done in consonance with consistent business practice to
minimize losses. 5

We are not persuaded.

As correctly observed by the Court of Appeals, it is contrary to human nature for any
newlywed couple to neglect to claim the video coverage of their wedding; the fact that
private respondents filed a case against petitioners belies such assertion. Clearly,
petitioners are guilty of actionable delay for having failed to process the video tape.
Considering that private respondents were about to leave for the United States, they
took care to inform petitioners that they would just claim the tape upon their return two
months later. Thus, the erasure of the tape after the lapse of thirty days was unjustified.

In this regard, Article 1170 of the Civil Code provides that "those who in the
performance of their obligations are guilty of fraud, negligence or delay, and those who
is any manner contravene the tenor thereof, are liable for damages."

In the instant case, petitioners and private respondents entered into a contract
whereby, for a fee, the former undertook to cover the latter's wedding and deliver to
them a video copy of said event. For whatever reason, petitioners failed to provide
private respondents with their tape. Clearly, petitioners are guilty of contravening their
obligation to said private respondents and are thus liable for damages.

The grant of actual or compensatory damages in the amount of P450.00 is justified, as

reimbursement of the downpayment paid by private respondents to petitioners. 6

Generally, moral damages cannot be recovered in an action for breach of contract

because this case is not among those enumerated in Article 2219 of the Civil Code.
However, it is also accepted in this jurisdiction that liability for a quasi-delict may still
exist despite the presence of contractual relations, that is, the act which violates the
contract may also constitute a quasi-delict. 7 Consequently, moral damages are
recoverable for the breach of contract
which was palpably wanton, reckless, malicious or in bad faith, oppressive or abusive. 8

Petitioners' act or omission in recklessly erasing the video coverage of private

respondents' wedding was precisely the cause of the suffering private respondents had
to undergo.

As the appellate court aptly observed:

Considering the sentimental value of the tapes and the fact that the event therein
recorded - a wedding which in our culture is a significant milestone to be cherished and
remembered - could no longer be reenacted and was lost forever, the trial court was
correct in awarding the appellees moral damages albeit in the amount of P75,000.00,
which was a great reduction from plaintiffs' demand in the complaint in compensation
for the mental anguish, tortured feelings, sleepless nights and humiliation that the
appellees suffered and which under the circumstances could be awarded as allowed
under Articles 2217 and 2218 of the Civil Code. 9

Considering the attendant wanton negligence committed by petitioners in the case at

bar, the award of exemplary damages by the trial court is justified 10 to serve as a
warning to all entities engaged in the same business to observe due diligence in the
conduct of their affairs.

The award of attorney' s fees and litigation expenses are likewise proper, consistent
with Article 2208 11 of the Civil Code.

Finally, petitioner Alex Go questions the finding of the trial and appellate courts holding
him jointly and severally liable with his wife Nancy regarding the pecuniary liabilities
imposed. He argues that when his wife entered into the contract with private
respondent, she was acting alone for her sole interest. 12

We find merit in this contention. Under Article 117 of the Civil Code (now Article 73 of
the Family Code), the wife may exercise any profession, occupation or engage in
business without the consent of the husband. In the instant case, we are convinced that
it was only petitioner Nancy Go who entered into the contract with private respondent.
Consequently, we rule that she is solely liable to private respondents for the damages
awarded below, pursuant to the principle that contracts produce effect only as between
the parties who execute them. 13

WHEREFORE, the assailed decision dated September 14, 1993 is hereby AFFIRMED
with the MODIFICATION that petitioner Alex Go is absolved from any liability to private
respondents and that petitioner Nancy Go is solely liable to said private respondents for
the judgment award. Costs against petitioners.

SO ORDERED.

Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-24837 June 27, 1968

JULIAN C. SINGSON and RAMONA DEL CASTILLO, plaintiffs,

vs.
BANK OF THE PHILIPPINE ISLANDS and SANTIAGO FREIXAS, in his capacity as
President of the said Bank, defendants.

Gil B. Galang for plaintiffs.

Aviado and Aranda for defendants.

CONCEPCION, C.J.:

Appeal by plaintiffs, Julian Singson and his wife, Ramona del Castillo, from a decision of
the Court of First Instance of Manila dismissing their complaint against defendants
herein, the Bank of the Philippine Islands and Santiago Freixas.

It appears that Singson, was one of the defendants in civil case No. 23906 of the Court
of First Instance, Manila, in which judgment had been rendered sentencing him and his
co-defendants therein, namely, Celso Lobregat and Villa-Abrille & Co., to pay the sum of
P105,539.56 to the plaintiff therein, Philippine Milling Co. Singson and Lobregat had
seasonably appealed from said judgment, but not Villa-Abrille & Co., as against which
said judgment, accordingly, became final and executory. In due course, a writ of
garnishment was subsequently served upon the Bank of the Philippine Islands — in
which the Singsons had a current account — insofar as Villa-Abrille's credits against
the Bank were concerned. What happened thereafter is set forth in the decision
appealed from, from which we quote:

Upon receipt of the said Writ of Garnishment, a clerk of the bank in charge of all
matters of execution and garnishment, upon reading the name of the plaintiff
herein in the title of the Writ of Garnishment as a party defendants, without
further reading the body of the said garnishment and informing himself that said
garnishment was merely intended for the deposits of defendant Villa-Abrille &
Co., Valentin Teus, Fernando F. de Villa-Abrille and Joaquin Bona, prepared a
letter for the signature of the President of the Bank informing the plaintiff Julian
C. Singson of the garnishment of his deposits by the plaintiff in that case.
Another letter was also prepared and signed by the said President of the Bank
for the Special Sheriff dated April 17, 1963.

Subsequently, two checks issued by the plaintiff Julian C. Singson, one for the
amount of P383 in favor of B. M. Glass Service dated April 16, 1963 and bearing
No. C-424852, and check No. C-394996 for the amount of P100 in favor of the
Lega Corporation, and drawn against the said Bank, were deposited by the said
drawers with the said bank. Believing that the plaintiff Singson, the drawer of the
check, had no more control over the balance of his deposits in the said bank, the
 checks were dishonored and were refused payment by the said bank. After the
first check was returned by the bank to the B. M. Glass Service, the latter wrote
plaintiff Julian C. Singson a letter, dated April 19, 1963, advising him that his
check for P383.00 bearing No. C-424852 was not honored by the bank for the
reason that his account therein had already been garnished. The said B. M. Glass
Service further stated in the said letter that they were constrained to close his
credit account with them. In view thereof, plaintiff Julian C. Singson wrote the
defendant bank a letter on April 19, 1963, claiming that his name was not
included in the Writ of Execution and Notice of Garnishment, which was served
upon the bank. The defendant President Santiago Freixas of the said bank took
steps to verify this information and after having confirmed the same, apologized
to the plaintiff Julian C. Singson and wrote him a letter dated April 22, 1963,
requesting him to disregard their letter of April 17, 1963, and that the action of
garnishment from his account had already been removed. A similar letter was
written by the said official of the bank on April 22, 1963 to the Special Sheriff
informing him that his letter dated April 17, 1963 to the said Special Sheriff was
considered cancelled and that they had already removed the Notice of
Garnishment from plaintiff Singson's account. Thus, the defendants lost no time
to rectify the mistake that had been inadvertently committed, resulting in the
temporary freezing of the account of the plaintiff with the said bank for a short
time.

xxx xxx xxx

On May 8, 1963, the Singsong commenced the present action against the Bank and its
president, Santiago Freixas, for damages1 in consequence of said illegal freezing of
plaintiffs' account.1äwphï1.ñët

After appropriate proceedings, the Court of First Instance of Manila rendered judgment
dismissing the complaint upon the ground that plaintiffs cannot recover from the
defendants upon the basis of a quasi-delict, because the relation between the parties is
contractual in nature; because this case does not fall under Article 2219 of our Civil
Code, upon which plaintiffs rely; and because plaintiffs have not established the amount
of damages allegedly sustained by them.

The lower court held that plaintiffs' claim for damages cannot be based upon a tort or
quasi-delict, their relation with the defendants being contractual in nature. We have
repeatedly held, however, that the existence of a contract between the parties does not
bar the commission of a tort by the one against the order and the consequent recovery
of damages therefor.2 Indeed, this view has been, in effect, reiterated in a
comparatively recent case. Thus, in Air France vs. Carrascoso,3 involving an airplane
passenger who, despite his first-class ticket, had been illegally ousted from his first-
class accommodation and compelled to take a seat in the tourist compartment, was
held entitled to recover damages from the air-carrier, upon the ground of tort on the
latter's part, for, although the relation between a passenger and a carrier is
"contractual both in origin and nature ... the act that breaks the contract may also be a
tort".

In view, however, of the facts obtaining in the case at bar, and considering, particularly,
the circumstance, that the wrong done to the plaintiff was remedied as soon as the
President of the bank realized the mistake he and his subordinate employee had
committed, the Court finds that an award of nominal damages — the amount of which
need not be proven4 — in the sum of P1,000, in addition to attorney's fees in the sum of
P500, would suffice to vindicate plaintiff's rights.5

WHEREFORE, the judgment appealed from is hereby reversed, and another one shall
be entered sentencing the defendant Bank of the Philippine Islands to pay to the
plaintiffs said sums of P1,000, as nominal damages, and P500, as attorney's fees, apart
from the costs. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Angeles, JJ., concur.
Fernando, J., took no part.