G.R. No. L-12191 October 14, 1918 station for the shipment to the market.
station for the shipment to the market. They were contained in numerous
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff,
Jose Cangco, was in the employment of Manila Railroad Company in the
capacity of clerk, with a monthly wage of P25. He lived in the pueblo of
San Mateo, in the province of Rizal, which is located upon the line of the
defendant railroad company; and in coming daily by train to the
company's office in the city of Manila where he worked, he used a pass,
supplied by the company, which entitled him to ride upon the company's
trains free of charge. Upon the occasion in question, January 20, 1915, the
plaintiff arose from his seat in the second class-car where he was riding
and, making, his exit through the door, took his position upon the steps of
the coach, seizing the upright guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station
there is a cement platform which begins to rise with a moderate gradient
some distance away from the company's office and extends along in front
of said office for a distance sufficient to cover the length of several
coaches. As the train slowed down another passenger, named Emilio
Zuiga, also an employee of the railroad company, got off the same car,
alighting safely at the point where the platform begins to rise from the
level of the ground. When the train had proceeded a little farther the
plaintiff Jose Cangco stepped off also, but one or both of his feet came in
contact with a sack of watermelons with the result that his feet slipped
from under him and he fell violently on the platform. His body at once
rolled from the platform and was drawn under the moving car, where his
right arm was badly crushed and lacerated. It appears that after the
plaintiff alighted from the train the car moved forward possibly six meters
before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the
railroad station was lighted dimly by a single light located some distance
away, objects on the platform where the accident occurred were difficult to
discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where
the plaintiff alighted is found in the fact that it was the customary season
for harvesting these melons and a large lot had been brought to the
sacks which has been piled on the platform in a row one upon another.
The testimony shows that this row of sacks was so placed of melons and
the edge of platform; and it is clear that the fall of the plaintiff was due to
the fact that his foot alighted upon one of these melons at the moment he
stepped upon the platform. His statement that he failed to see these
objects in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious condition,
and it appeared that the injuries which he had received were very serious.
He was therefore brought at once to a certain hospital in the city of Manila
where an examination was made and his arm was amputated. The result
of this operation was unsatisfactory, and the plaintiff was then carried to
another hospital where a second operation was performed and the
member was again amputated higher up near the shoulder. It appears in
evidence that the plaintiff expended the sum of P790.25 in the form of
medical and surgical fees and for other expenses in connection with the
process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First
Instance of the city of Manila to recover damages of the defendant
company, founding his action upon the negligence of the servants and
employees of the defendant in placing the sacks of melons upon the
platform and leaving them so placed as to be a menace to the security of
passenger alighting from the company's trains. At the hearing in the Court
of First Instance, his Honor, the trial judge, found the facts substantially as
above stated, and drew therefrom his conclusion to the effect that,
although negligence was attributable to the defendant by reason of the
fact that the sacks of melons were so placed as to obstruct passengers
passing to and from the cars, nevertheless, the plaintiff himself had failed
to use due caution in alighting from the coach and was therefore precluded
form recovering. Judgment was accordingly entered in favor of the
defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were
guilty of negligence in piling these sacks on the platform in the manner
above stated; that their presence caused the plaintiff to fall as he alighted
from the train; and that they therefore constituted an effective legal cause
of the injuries sustained by the plaintiff. It necessarily follows that the
defendant company is liable for the damage thereby occasioned unless
recovery is barred by the plaintiff's own contributory negligence. In
resolving this problem it is necessary that each of these conceptions of
liability, to-wit, the primary responsibility of the defendant company and
the contributory negligence of the plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of the
defendant is the contract of carriage, and that the obligation to respond
for the damage which plaintiff has suffered arises, if at all, from the breach
of that contract by reason of the failure of defendant to exercise due care
in its performance. That is to say, its liability is direct and immediate,
differing essentially, in legal viewpoint from that presumptive responsibility
for the negligence of its servants, imposed by article 1903 of the Civil
Code, which can be rebutted by proof of the exercise of due care in their
selection and supervision. Article 1903 of the Civil Code is not applicable to
obligations arising ex contractu, but only to extra-contractual obligations
or to use the technical form of expression, that article relates only
to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104
of the Civil Code, clearly points out this distinction, which was also
recognized by this Court in its decision in the case of Rakes vs. Atlantic,
Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093
Manresa clearly points out the difference between "culpa, substantive and
independent, which of itself constitutes the source of an obligation
between persons not formerly connected by any legal tie"
and culpa considered as an accident in the performance of an obligation
already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest
squarely upon the proposition that article 1903 of the Civil Code is not
applicable to acts of negligence which constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code]
are applicable are understood to be those not growing out of pre-
existing duties of the parties to one another. But where relations
already formed give rise to duties, whether springing from contract
or quasi-contract, then breaches of those duties are subject to
article 1101, 1103, and 1104 of the same code.
(Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the
Spanish law, is, in certain cases imposed upon employers with respect to
damages occasioned by the negligence of their employees to persons to
whom they are not bound by contract, is not based, as in the English
Common Law, upon the principle of respondeat superior if it were, the
master would be liable in every case and unconditionally but upon the
principle announced in article 1902 of the Civil Code, which imposes upon
all persons who by their fault or negligence, do injury to another, the
obligation of making good the damage caused. One who places a powerful
automobile in the hands of a servant whom he knows to be ignorant of the
method of managing such a vehicle, is himself guilty of an act of
negligence which makes him liable for all the consequences of his
imprudence. The obligation to make good the damage arises at the very
instant that the unskillful servant, while acting within the scope of his
employment causes the injury. The liability of the master is personal and
direct. But, if the master has not been guilty of any negligence whatever in
the selection and direction of the servant, he is not liable for the acts of
the latter, whatever done within the scope of his employment or not, if the
damage done by the servant does not amount to a breach of the contract
between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection
and control of the servant relieves the master from liability for the latter's
acts on the contrary, that proof shows that the responsibility has never
existed. As Manresa says (vol. 8, p. 68) the liability arising from extra-
contractual culpa is always based upon a voluntary act or omission which,
without willful intent, but by mere negligence or inattention, has caused
damage to another. A master who exercises all possible care in the
selection of his servant, taking into consideration the qualifications they
should possess for the discharge of the duties which it is his purpose to
confide to them, and directs them with equal diligence, thereby performs
his duty to third persons to whom he is bound by no contractual ties, and
he incurs no liability whatever if, by reason of the negligence of his
servants, even within the scope of their employment, such third person
suffer damage. True it is that under article 1903 of the Civil Code the law
creates a presumption that he has been negligent in the selection or
direction of his servant, but the presumption is rebuttable and yield to
proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as
found in the Porto Rico Code, has held that these articles are applicable to
cases of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20
Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the
case of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an
action brought upon the theory of the extra-contractual liability of the
defendant to respond for the damage caused by the carelessness of his
employee while acting within the scope of his employment. The Court,
after citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury
is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on
the part of the master or employer either in selection of the
servant or employee, or in supervision over him after the
selection, or both; and (2) that that presumption is juris
tantum and not juris et de jure, and consequently, may be
rebutted. It follows necessarily that if the employer shows to the
satisfaction of the court that in selection and supervision he has
 exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the
notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in
relations with strangers, the negligence of the servant in
conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of
extra-contractual culpa based upon negligence, it is necessary that there
shall have been some fault attributable to the defendant personally, and
that the last paragraph of article 1903 merely establishes a rebuttable
presumption, is in complete accord with the authoritative opinion of
Manresa, who says (vol. 12, p. 611) that the liability created by article
1903 is imposed by reason of the breach of the duties inherent in the
special relations of authority or superiority existing between the person
called upon to repair the damage and the one who, by his act or omission,
was the cause of it.
On the other hand, the liability of masters and employers for the negligent
acts or omissions of their servants or agents, when such acts or omissions
cause damages which amount to the breach of a contact, is not based
upon a mere presumption of the master's negligence in their selection or
control, and proof of exercise of the utmost diligence and care in this
regard does not relieve the master of his liability for the breach of his
contract.
Every legal obligation must of necessity be extra-contractual or
contractual. Extra-contractual obligation has its source in the breach or
omission of those mutual duties which civilized society imposes upon it
members, or which arise from these relations, other than contractual, of
certain members of society to others, generally embraced in the concept
of status. The legal rights of each member of society constitute the
measure of the corresponding legal duties, mainly negative in character,
which the existence of those rights imposes upon all other members of
society. The breach of these general duties whether due to willful intent or
to mere inattention, if productive of injury, give rise to an obligation to
indemnify the injured party. The fundamental distinction between
obligations of this character and those which arise from contract, rests
upon the fact that in cases of non-contractual obligation it is the wrongful
or negligent act or omission itself which creates the vinculum juris,
whereas in contractual relations the vinculum exists independently of the
breach of the voluntary duty assumed by the parties when entering into
the contractual relation.
With respect to extra-contractual obligation arising from negligence,
whether of act or omission, it is competent for the legislature to elect
and our Legislature has so elected whom such an obligation is imposed
is morally culpable, or, on the contrary, for reasons of public policy, to
extend that liability, without regard to the lack of moral culpability, so as
to include responsibility for the negligence of those person who acts or
mission are imputable, by a legal fiction, to others who are in a position to
exercise an absolute or limited control over them. The legislature which
adopted our Civil Code has elected to limit extra-contractual liability
with certain well-defined exceptions to cases in which moral culpability
can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in the
selection and control of one's agents or servants, or in the control of
persons who, by reason of their status, occupy a position of dependency
with respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken by
contract to render service to another, is wholly different from that to which
article 1903 relates. When the sources of the obligation upon which
plaintiff's cause of action depends is a negligent act or omission, the
burden of proof rests upon plaintiff to prove the negligence if he does
not his action fails. But when the facts averred show a contractual
undertaking by defendant for the benefit of plaintiff, and it is alleged that
plaintiff has failed or refused to perform the contract, it is not necessary
for plaintiff to specify in his pleadings whether the breach of the contract is
due to willful fault or to negligence on the part of the defendant, or of his
servants or agents. Proof of the contract and of its nonperformance is
sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual
culpa, a suing creditor should assume the burden of proof of its
existence, as the only fact upon which his action is based; while on
the contrary, in a case of negligence which presupposes the
existence of a contractual obligation, if the creditor shows that it
exists and that it has been broken, it is not necessary for him to
prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a
contract to show that the breach was due to the negligent conduct of
defendant or of his servants, even though such be in fact the actual cause
of the breach, it is obvious that proof on the part of defendant that the
negligence or omission of his servants or agents caused the breach of the
contract would not constitute a defense to the action. If the negligence of
servants or agents could be invoked as a means of discharging the liability
arising from contract, the anomalous result would be that person acting
through the medium of agents or servants in the performance of their
contracts, would be in a better position than those acting in person. If one
delivers a valuable watch to watchmaker who contract to repair it, and the
bailee, by a personal negligent act causes its destruction, he is
unquestionably liable. Would it be logical to free him from his liability for
the breach of his contract, which involves the duty to exercise due care in
the preservation of the watch, if he shows that it was his servant whose
negligence caused the injury? If such a theory could be accepted, juridical
persons would enjoy practically complete immunity from damages arising
from the breach of their contracts if caused by negligent acts as such
juridical persons can of necessity only act through agents or servants, and
it would no doubt be true in most instances that reasonable care had been
taken in selection and direction of such servants. If one delivers securities
to a banking corporation as collateral, and they are lost by reason of the
negligence of some clerk employed by the bank, would it be just and
reasonable to permit the bank to relieve itself of liability for the breach of
its contract to return the collateral upon the payment of the debt by
proving that due care had been exercised in the selection and direction of
the clerk?
This distinction between culpa aquiliana, as the source of an obligation,
and culpa contractual as a mere incident to the performance of a contract
has frequently been recognized by the supreme court of Spain.
(Sentencias of June 27, 1894; November 20, 1896; and December 13,
1896.) In the decisions of November 20, 1896, it appeared that plaintiff's
action arose ex contractu, but that defendant sought to avail himself of the
provisions of article 1902 of the Civil Code as a defense. The Spanish
Supreme Court rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing
obligation, by fault or negligence, such as those to which article
1902 of the Civil Code relates, but of damages caused by the
defendant's failure to carry out the undertakings imposed by the
contracts . . . .
A brief review of the earlier decision of this court involving the liability of
employers for damage done by the negligent acts of their servants will
show that in no case has the court ever decided that the negligence of the
defendant's servants has been held to constitute a defense to an action for
damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that
the owner of a carriage was not liable for the damages caused by the
negligence of his driver. In that case the court commented on the fact that
no evidence had been adduced in the trial court that the defendant had
been negligent in the employment of the driver, or that he had any
knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6
Phil. Rep., 215), the plaintiff sued the defendant for damages caused by
the loss of a barge belonging to plaintiff which was allowed to get adrift by
the negligence of defendant's servants in the course of the performance of
a contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69)
that if the "obligation of the defendant grew out of a contract made
between it and the plaintiff . . . we do not think that the provisions of
articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued
the defendant to recover damages for the personal injuries caused by the
negligence of defendant's chauffeur while driving defendant's automobile
in which defendant was riding at the time. The court found that the
damages were caused by the negligence of the driver of the automobile,
but held that the master was not liable, although he was present at the
time, saying:
. . . unless the negligent acts of the driver are continued for a
length of time as to give the owner a reasonable opportunity to
observe them and to direct the driver to desist therefrom. . . . The
act complained of must be continued in the presence of the owner
for such length of time that the owner by his acquiescence, makes
the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage &
Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its conclusion
as to the liability of the defendant upon article 1903, although the facts
disclosed that the injury complaint of by plaintiff constituted a breach of
the duty to him arising out of the contract of transportation. The express
ground of the decision in this case was that article 1903, in dealing with
the liability of a master for the negligent acts of his servants "makes the
distinction between private individuals and public enterprise;" that as to
the latter the law creates a rebuttable presumption of negligence in the
selection or direction of servants; and that in the particular case the
presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated
plaintiff's action as though founded in tort rather than as based upon the
breach of the contract of carriage, and an examination of the pleadings
and of the briefs shows that the questions of law were in fact discussed
upon this theory. Viewed from the standpoint of the defendant the
practical result must have been the same in any event. The proof disclosed
beyond doubt that the defendant's servant was grossly negligent and that
his negligence was the proximate cause of plaintiff's injury. It also
affirmatively appeared that defendant had been guilty of negligence in its
failure to exercise proper discretion in the direction of the servant.
Defendant was, therefore, liable for the injury suffered by plaintiff,
whether the breach of the duty were to be regarded as constituting culpa
aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 and
69) whether negligence occurs an incident in the course of the
performance of a contractual undertaking or its itself the source of an
extra-contractual undertaking obligation, its essential characteristics are
identical. There is always an act or omission productive of damage due to
carelessness or inattention on the part of the defendant. Consequently,
when the court holds that a defendant is liable in damages for having
failed to exercise due care, either directly, or in failing to exercise proper
care in the selection and direction of his servants, the practical result is
identical in either case. Therefore, it follows that it is not to be inferred,
because the court held in the Yamada case that defendant was liable for
the damages negligently caused by its servants to a person to whom it
was bound by contract, and made reference to the fact that the defendant
was negligent in the selection and control of its servants, that in such a
case the court would have held that it would have been a good defense to
the action, if presented squarely upon the theory of the breach of the
contract, for defendant to have proved that it did in fact exercise care in
the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention
to the relative spheres of contractual and extra-contractual obligations.
The field of non- contractual obligation is much more broader than that of
contractual obligations, comprising, as it does, the whole extent of juridical
human relations. These two fields, figuratively speaking, concentric; that is
to say, the mere fact that a person is bound to another by contract does
not relieve him from extra-contractual liability to such person. When such
a contractual relation exists the obligor may break the contract under such
conditions that the same act which constitutes the source of an extra-
contractual obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by
implication, the duty to carry him in safety and to provide safe means of
entering and leaving its trains (civil code, article 1258). That duty, being
contractual, was direct and immediate, and its non-performance could not
be excused by proof that the fault was morally imputable to defendant's
servants.
The railroad company's defense involves the assumption that even
granting that the negligent conduct of its servants in placing an
obstruction upon the platform was a breach of its contractual obligation to
maintain safe means of approaching and leaving its trains, the direct and
proximate cause of the injury suffered by plaintiff was his own contributory
negligence in failing to wait until the train had come to a complete stop
before alighting. Under the doctrine of comparative negligence announced
in the Rakes case (supra), if the accident was caused by plaintiff's own
negligence, no liability is imposed upon defendant's negligence and
plaintiff's negligence merely contributed to his injury, the damages should
be apportioned. It is, therefore, important to ascertain if defendant was in
fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a
full stop before alighting, the particular injury suffered by him could not
have occurred. Defendant contends, and cites many authorities in support
of the contention, that it is negligence per se for a passenger to alight
from a moving train. We are not disposed to subscribe to this doctrine in
its absolute form. We are of the opinion that this proposition is too badly
stated and is at variance with the experience of every-day life. In this
particular instance, that the train was barely moving when plaintiff
alighted is shown conclusively by the fact that it came to stop within six
meters from the place where he stepped from it. Thousands of person
alight from trains under these conditions every day of the year, and
sustain no injury where the company has kept its platform free from
dangerous obstructions. There is no reason to believe that plaintiff would
have suffered any injury whatever in alighting as he did had it not been for
defendant's negligent failure to perform its duty to provide a safe alighting
place.
We are of the opinion that the correct doctrine relating to this subject is
that expressed in Thompson's work on Negligence (vol. 3, sec. 3010) as
follows:
The test by which to determine whether the passenger has been
guilty of negligence in attempting to alight from a moving railway
train, is that of ordinary or reasonable care. It is to be considered
whether an ordinarily prudent person, of the age, sex and
condition of the passenger, would have acted as the passenger
acted under the circumstances disclosed by the evidence. This care
has been defined to be, not the care which may or should be used
by the prudent man generally, but the care which a man of
ordinary prudence would use under similar circumstances, to avoid
injury." (Thompson, Commentaries on Negligence, vol. 3, sec.
3010.)
Or, it we prefer to adopt the mode of exposition used by this court in
Picart vs. Smith (37 Phil. rep., 809), we may say that the test is this; Was
there anything in the circumstances surrounding the plaintiff at the time
he alighted from the train which would have admonished a person of
average prudence that to get off the train under the conditions then
existing was dangerous? If so, the plaintiff should have desisted from
alighting; and his failure so to desist was contributory
negligence.1awph!l.net
As the case now before us presents itself, the only fact from which a
conclusion can be drawn to the effect that plaintiff was guilty of
contributory negligence is that he stepped off the car without being able to
discern clearly the condition of the platform and while the train was yet
slowly moving. In considering the situation thus presented, it should not
be overlooked that the plaintiff was, as we find, ignorant of the fact that
the obstruction which was caused by the sacks of melons piled on the The decision of lower court is reversed, and judgment is hereby rendered
platform existed; and as the defendant was bound by reason of its duty as plaintiff for the sum of P3,290.25, and for the costs of both instances. So
a public carrier to afford to its passengers facilities for safe egress from its ordered.
trains, the plaintiff had a right to assume, in the absence of some
circumstance to warn him to the contrary, that the platform was clear. The Arellano, C.J., Torres, Street and Avancea, JJ., concur.
place, as we have already stated, was dark, or dimly lighted, and this also
is proof of a failure upon the part of the defendant in the performance of a
Separate Opinions
duty owing by it to the plaintiff; for if it were by any possibility concede
that it had right to pile these sacks in the path of alighting passengers, the
placing of them adequately so that their presence would be revealed. MALCOLM, J., dissenting:

As pertinent to the question of contributory negligence on the part of the With one sentence in the majority decision, we are of full accord, namely,
plaintiff in this case the following circumstances are to be noted: The "It may be admitted that had plaintiff waited until the train had come to a
company's platform was constructed upon a level higher than that of the full stop before alighting, the particular injury suffered by him could not
roadbed and the surrounding ground. The distance from the steps of the have occurred." With the general rule relative to a passenger's
car to the spot where the alighting passenger would place his feet on the contributory negligence, we are likewise in full accord, namely, "An
platform was thus reduced, thereby decreasing the risk incident to attempt to alight from a moving train is negligence per se." Adding these
stepping off. The nature of the platform, constructed as it was of cement two points together, should be absolved from the complaint, and judgment
material, also assured to the passenger a stable and even surface on affirmed.
which to alight. Furthermore, the plaintiff was possessed of the vigor and
agility of young manhood, and it was by no means so risky for him to get Johnson, J., concur.
off while the train was yet moving as the same act would have been in an
aged or feeble person. In determining the question of contributory
negligence in performing such act that is to say, whether the passenger
acted prudently or recklessly the age, sex, and physical condition of the
passenger are circumstances necessarily affecting the safety of the
passenger, and should be considered. Women, it has been observed, as a
general rule are less capable than men of alighting with safety under such
conditions, as the nature of their wearing apparel obstructs the free
movement of the limbs. Again, it may be noted that the place was
perfectly familiar to the plaintiff as it was his daily custom to get on and of
the train at this station. There could, therefore, be no uncertainty in his
mind with regard either to the length of the step which he was required to
take or the character of the platform where he was alighting. Our
conclusion is that the conduct of the plaintiff in undertaking to alight while
the train was yet slightly under way was not characterized by imprudence
and that therefore he was not guilty of contributory negligence.

The evidence shows that the plaintiff, at the time of the accident, was
earning P25 a month as a copyist clerk, and that the injuries he has
suffered have permanently disabled him from continuing that employment.
Defendant has not shown that any other gainful occupation is open to
plaintiff. His expectancy of life, according to the standard mortality tables,
is approximately thirty-three years. We are of the opinion that a fair
compensation for the damage suffered by him for his permanent disability
is the sum of P2,500, and that he is also entitled to recover of defendant
the additional sum of P790.25 for medical attention, hospital services, and
other incidental expenditures connected with the treatment of his injuries.
G.R. No. 190601 February 7, 2011
SPOUSES LUIGI M. GUANIO and ANNA HERNANDEZ-
GUANIO, Petitioners,
vs.
MAKATI SHANGRI-LA HOTEL and RESORT, INC., also doing
business under the name of SHANGRI-LA HOTEL
MANILA, Respondent.
DECISION
CARPIO MORALES, J.:
For their wedding reception on July 28, 2001, spouses Luigi M. Guanio and
Anna Hernandez-Guanio (petitioners) booked at the Shangri-la Hotel
Makati (the hotel).
Prior to the event, Makati Shangri-La Hotel & Resort, Inc. (respondent)
scheduled an initial food tasting. Petitioners claim that they requested the
hotel to prepare for seven persons the two of them, their respective
parents, and the wedding coordinator. At the scheduled food tasting,
however, respondent prepared for only six.
Petitioners initially chose a set menu which included black cod, king
prawns and angel hair pasta with wild mushroom sauce for the main
course which cost 1,000.00 per person. They were, however, given an
option in which salmon, instead of king prawns, would be in the menu at
950.00 per person. They in fact partook of the salmon.
Three days before the event, a final food tasting took place. Petitioners
aver that the salmon served was half the size of what they were served
during the initial food tasting; and when queried about it, the hotel quoted
a much higher price (1,200.00) for the size that was initially served to
them. The parties eventually agreed on a final price 1,150 per person.
A day before the event or on July 27, 2001, the parties finalized and
forged their contract.1
Petitioners claim that during the reception, respondents representatives,
Catering Director Bea Marquez and Sales Manager Tessa Alvarez, did not
show up despite their assurance that they would; their guests complained
of the delay in the service of the dinner; certain items listed in the
published menu were unavailable; the hotels waiters were rude and
unapologetic when confronted about the delay; and despite Alvarezs
promise that there would be no charge for the extension of the reception
beyond 12:00 midnight, they were billed and paid 8,000 per hour for the
three-hour extension of the event up to 4:00 A.M. the next day.
Petitioners further claim that they brought wine and liquor in accordance
with their open bar arrangement, but these were not served to the guests
who were forced to pay for their drinks.
Petitioners thus sent a letter-complaint to the Makati Shangri-la Hotel and
Resort, Inc. (respondent) and received an apologetic reply from Krister
Svensson, the hotels Executive Assistant Manager in charge of Food and
Beverage. They nevertheless filed a complaint for breach of contract and
damages before the Regional Trial Court (RTC) of Makati City.
In its Answer, respondent claimed that petitioners requested a
combination of king prawns and salmon, hence, the price was increased to
1,200.00 per person, but discounted at 1,150.00; that contrary to
petitioners claim, Marquez and Alvarez were present during the event,
albeit they were not permanently stationed thereat as there were three
other hotel functions; that while there was a delay in the service of the
meals, the same was occasioned by the sudden increase of guests to 470
from the guaranteed expected minimum number of guests of 350 to a
maximum of 380, as stated in the Banquet Event Order (BEO);2 and that
Isaac Albacea, Banquet Service Director, in fact relayed the delay in the
service of the meals to petitioner Luigis father, Gil Guanio.
Respecting the belated service of meals to some guests, respondent
attributed it to the insistence of petitioners wedding coordinator that
certain guests be served first.
On Svenssons letter, respondent, denying it as an admission of liability,
claimed that it was meant to maintain goodwill to its customers.
By Decision of August 17, 2006, Branch 148 of the Makati RTC rendered
judgment in favor of petitioners, disposing as follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor
of the plaintiffs and against the defendant ordering the defendants to pay
the plaintiff the following:
1) The amount of 350,000.00 by way of actual damages;
2) The amount of 250,000.00 for and as moral damages;
3) The amount of 100,000.00 as exemplary damages;
4) The amount of 100,000.00 for and as attorneys fees.
With costs against the defendant.
SO ORDERED.3
In finding for petitioners, the trial court relied heavily on the letter of
Svensson which is partly quoted below:
Upon receiving your comments on our service rendered during your
reception here with us, we are in fact, very distressed. Right from minor
issues pappadums served in the soup instead of the creutons, lack of valet
parkers, hard rolls being too hard till a major one slow service, rude and
arrogant waiters, we have disappointed you in all means.
Indeed, we feel as strongly as you do that the services you received
were unacceptable and definitely not up to our standards. We understand
that it is our job to provide excellent service and in this instance, we have
fallen short of your expectations. We ask you please to accept our
profound apologies for causing such discomfort and
annoyance. 4 (underscoring supplied)
The trial court observed that from "the tenor of the letter . . . the
defendant[-herein respondent] admits that the services the plaintiff[-
herein petitioners] received were unacceptable and definitely not up to
their standards."5
On appeal, the Court of Appeals, by Decision of July 27, 2009, 6 reversed
the trial courts decision, it holding that the proximate cause of petitioners
injury was an unexpected increase in their guests:
x x x Hence, the alleged damage or injury brought about by the confusion,
inconvenience and disarray during the wedding reception may not be
attributed to defendant-appellant Shangri-la.
We find that the said proximate cause, which is entirely attributable to
plaintiffs-appellants, set the chain of events which resulted in the alleged
inconveniences, to the plaintiffs-appellants. Given the circumstances that
obtained, only the Sps. Guanio may bear whatever consequential damages
that they may have allegedly suffered.7(underscoring supplied)
Petitioners motion for reconsideration having been denied by Resolution of
November 19, 2009, the present petition for review was filed.
The Court finds that since petitioners complaint arose from a contract, the
doctrine of proximate cause finds no application to it:
The doctrine of proximate cause is applicable only in actions for quasi-
delicts, not in actions involving breach of contract. x x x 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.8 (emphasis and underscoring supplied)
What applies in the present case is Article 1170 of the Civil Code which
reads:
Art. 1170. Those who in the performance of their obligations are guilty of
fraud, negligence or delay, and those who in any manner contravene the
tenor thereof, are liable for damages.
9
RCPI v. Verchez, et al. enlightens:
In culpa contractual x x x the mere proof of the existence of the contract
and the failure of its compliance justify, prima facie, a corresponding right
of relief. The law, recognizing the obligatory force of contracts, will not
permit a party to be set free from liability for any kind of misperformance
of the contractual undertaking or a contravention of the tenor thereof. A
breach upon the contract confers upon the injured party a valid cause for
recovering that which may have been lost or suffered. The remedy serves
to preserve the interests of the promissee that may include
his "expectation interest," which is his interest in having the benefit of
his bargain by being put in as good a position as he would have been in
had the contract been performed, or his "reliance interest," which is his
interest in being reimbursed for loss caused by reliance on the contract by
being put in as good a position as he would have been in had the contract
not been made; or his "restitution interest," which is his interest in
having restored to him any benefit that he has conferred on the other
party. Indeed, agreements can accomplish little, either for their makers or
for society, unless they are made the basis for action. The effect of every
infraction is to create a new duty, that is, to make RECOMPENSE to the
one who has been injured by the failure of another to observe his
contractual obligation unless he can show extenuating circumstances,
like proof of his exercise of due diligence x x x or of the attendance
of fortuitous event, to excuse him from his ensuing liability. (emphasis
and underscoring in the original; capitalization supplied)
The pertinent provisions of the Banquet and Meeting Services Contract
between the parties read:
4.3 The ENGAGER shall be billed in accordance with the prescribed rate for
the minimum guaranteed number of persons contracted for, regardless of
under attendance or non-appearance of the expected number of guests,
except where the ENGAGER cancels the Function in accordance with its
Letter of Confirmation with the HOTEL. Should the attendance exceed the
minimum guaranteed attendance, the ENGAGER shall also be billed at the
actual rate per cover in excess of the minimum guaranteed attendance.
xxxx
Statements which are not estoppels nor judicial admissions have no
quality of conclusiveness, and an opponent whose admissions have been
offered against him may offer any evidence which serves as an
explanation for his former assertion of what he now denies as a fact.
Respondents Catering Director, Bea Marquez, explained the hotels
procedure on receiving and processing complaints, viz:

4.5. The ENGAGER must inform the HOTEL at least forty eight (48) hours ATTY. CALMA:
before the scheduled date and time of the Function of any change in the
minimum guaranteed covers. In the absence of such notice, paragraph 4.3 Q You mentioned that the letter indicates an acknowledgement of
shall apply in the event of under attendance. In case the actual number the concern and that there was-the first letter there was an
of attendees exceed the minimum guaranteed number acknowledgment of the concern and an apology, not necessarily
indicating that such or admitting fault?
by ten percent (10%), the HOTEL shall not in any way be held
liable for any damage or inconvenience which may be caused A Yes.
thereby. The ENGAGER shall also undertake to advise the guests of
the situation and take positive steps to remedy the
Q Is this the letter that you are referring to?
same.10 (emphasis, italics and underscoring supplied)

If I may, Your Honor, that was the letter dated August 4, 2001,
Breach of contract is defined as the failure without legal reason to comply
previously marked as plaintiffs exhibits, Your Honor. What is the
with the terms of a contract. It is also defined as the [f]ailure, without
procedure of the hotel with respect to customer concern?
legal excuse, to perform any promise which forms the whole or part of the
contract.11
A Upon receipt of the concern from the guest or client, we
acknowledge receipt of such concern, and as part of procedure in
The appellate court, and even the trial court, observed that petitioners
service industry particularly Makati Shangri-la we apologize for
were remiss in their obligation to inform respondent of the change in the
whatever inconvenience but at the same time saying, that of
expected number of guests. The observation is reflected in the records of
course, we would go through certain investigation and get back to
the case. Petitioners failure to discharge such obligation thus excused, as
them for the feedback with whatever concern they may have.
the above-quoted paragraph 4.5 of the parties contract provide,
respondent from liability for "any damage or inconvenience" occasioned
thereby. Q Your Honor, I just like at this point mark the exhibits, Your
Honor, the letter dated August 4, 2001 identified by the witness,
Your Honor, to be marked as Exhibit 14 and the signature of Mr.
As for petitioners claim that respondent departed from its verbal
Krister Svensson be marked as Exhibit 14-A.13
agreement with petitioners, the same fails, given that the written contract
which the parties entered into the day before the event, being the law
between them. xxxx

Respecting the letter of Svensson on which the trial court heavily relied as
admission of respondents liability but which the appellate court brushed
aside, the Court finds the appellate courts stance in order. It is not
uncommon in the hotel industry to receive comments, criticisms or
feedback on the service it delivers. It is also customary for hotel
management to try to smooth ruffled feathers to preserve goodwill among
its clientele.
Q In your opinion, you just mentioned that there is a procedure
that the hotel follows with respect to the complaint, in your opinion
was this procedure followed in this particular concern?
A Yes, maam.
Q What makes you say that this procedure was followed?

Kalalo v. Luz holds:12

 A As I mentioned earlier, we proved that we did acknowledge the
concern of the client in this case and we did emphatize from the
client and apologized, and at the same time got back to them in
whatever investigation we have.

Q You said that you apologized, what did you apologize for?

A Well, first of all it is a standard that we apologize, right? Being in the

service industry, it is a practice that we apologize if there is any
inconvenience, so the purpose for apologizing is mainly to show empathy
and to ensure the client that we are hearing them out and that we will do
a better investigation and it is not in any way that we are admitting any
fault.14 (underscoring supplied)

To the Court, the foregoing explanation of the hotels Banquet Director

overcomes any presumption of admission of breach which Svenssons
letter might have conveyed.

The exculpatory clause notwithstanding, the Court notes that respondent

could have managed the "situation" better, it being held in high esteem in
the hotel and service industry. Given respondents vast experience, it is
safe to presume that this is not its first encounter with booked events
exceeding the guaranteed cover. It is not audacious to expect that certain
measures have been placed in case this predicament crops up. That
regardless of these measures, respondent still received complaints as in
the present case, does not amuse.1avvphil

Respondent admitted that three hotel functions coincided with petitioners

reception. To the Court, the delay in service might have been avoided or
minimized if respondent exercised prescience in scheduling events. No less
than quality service should be delivered especially in events which
possibility of repetition is close to nil. Petitioners are not expected to get
married twice in their lifetimes.

In the present petition, under considerations of equity, the Court deems it

just to award the amount of 50,000.00 by way of nominal damages to
petitioners, for the discomfiture that they were subjected to during to the
event.15 The Court recognizes that every person is entitled to respect of
his dignity, personality, privacy and peace of mind.16Respondents lack of
prudence is an affront to this right.

WHEREFORE, the Court of Appeals Decision dated July 28, 2009

is PARTIALLY REVERSED. Respondent is, in light of the foregoing
discussion, ORDERED to pay the amount of 50,000.00 to petitioners by
way of nominal damages.

SO ORDERED.
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF
APPEALS, respondents.
Lichauco, Picazo and Agcaoili 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.
2 direct attack. 8 The law, however, solely insists that a decision state the
On appeal, 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
"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". 16They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand,
has been declared as "one which does not call for an examination of the
probative value of the evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by
certiorari from a judgment of the Court of Appeals. 19 That judgment is
conclusive as to the facts. It is not appropriately the business of this Court
to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of
fact of the Court of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and
received from petitioner a first class ticket. But petitioner asserts that said
ticket did not represent the true and complete intent and agreement of the
parties; that said respondent knew that he did not have confirmed
reservations for first class on any specific flight, although he had tourist
class protection; that, accordingly, the issuance of a first class ticket was
no guarantee that he would have a first class ride, but that such would
depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and
discussed in its brief before the Court of Appeals under its third
assignment of error, which reads: "The trial court erred in finding that
plaintiff had confirmed reservations for, and a right to, first class seats on
the "definite" segments of his journey, particularly that from Saigon to
Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance
of a first-class ticket was no guarantee that the passenger to
whom the same had been issued, would be accommodated in the
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. 24Implicit in that affirmance is a
determination by the Court of Appeals that the proceeding in the Court of
First Instance was free from prejudicial error and "all questions raised by
the assignments of error and all questions that might have been raised are
to be regarded as finally adjudicated against the appellant". So also, the
judgment affirmed "must be regarded as free from all error". 25 We
reached this policy construction because nothing in the decision of the
Court of Appeals on this point would suggest that its findings of fact are in
any way at war with those of the trial court. Nor was said affirmance by
the Court of Appeals upon a ground or grounds different from those which
were made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a
first class seat, notwithstanding the fact that seat availability in specific
flights is therein confirmed, then an air passenger is placed in the hollow
of the hands of an airline. What security then can a passenger have? It will
always be an easy matter for an airline aided by its employees, to strike
out the very stipulations in the ticket, and say that there was a verbal
agreement to the contrary. What if the passenger had a schedule to fulfill?
We have long learned that, as a rule, a written document speaks a uniform
language; that spoken word could be notoriously unreliable. If only to
achieve stability in the relations between passenger and air carrier,
adherence to the ticket so issued is desirable. Such is the case here. The
lower courts refused to believe the oral evidence intended to defeat the
covenants in the ticket.
The foregoing are the considerations which point to the conclusion that
there are facts upon which the Court of Appeals predicated the finding that
respondent Carrascoso had a first class ticket and was entitled to a first
class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of
the flight. 27 We perceive no "welter of distortions by the Court of Appeals
of petitioner's statement of its position", as charged by petitioner. 28 Nor
do we subscribe to petitioner's accusation that respondent Carrascoso
"surreptitiously took a first class seat to provoke an issue". 29And this
because, as petitioner states, Carrascoso went to see the Manager at his
office in Bangkok "to confirm my seat and because from Saigon I was told
again to see the Manager". 30 Why, then, was he allowed to take a first
class seat in the plane at Bangkok, if he had no seat? Or, if another had a
better right to the seat?
4. Petitioner assails respondent court's award of moral damages.
Petitioner's trenchant claim is that Carrascoso's action is planted upon
breach of contract; that to authorize an award for moral damages there
must be an averment of fraud or bad faith;31 and that the decision of the
Court of Appeals fails to make a finding of bad faith. The pivotal
allegations in the complaint bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the
Philippine Air Lines for a valuable consideration, the latter acting
as general agents for and in behalf of the defendant, under which
said contract, plaintiff was entitled to, as defendant agreed to
furnish plaintiff, First Class passage on defendant's plane during
the entire duration of plaintiff's tour of Europe with Hongkong as
starting point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to
Saigon and from Saigon to Bangkok, defendant furnished to the
plaintiff First Class accommodation but only after protestations,
arguments and/or insistence were made by the plaintiff with
defendant's employees.
5. That finally, defendant failed to provide First Class passage, but
instead furnished plaintiff only 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.1awphl.nt
Petitioner's contract with Carrascoso is one attended with public duty. The
stress of Carrascoso's action as we have said, is placed upon his wrongful
expulsion. This is a violation of public duty by the petitioner air carrier a
case 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
49
I will allow that as part of his testimony.
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
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.

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
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.1wph1.t
After appropriate proceedings, the Court of First Instance of Manila
rendered judgment dismissing the complaint upon the ground that
plaintiffs cannot recover from the defendants upon the basis of a quasi-
delict, because the relation between the parties is contractual in nature;
because this case does not fall under Article 2219 of our Civil Code, upon
which plaintiffs rely; and because plaintiffs have not established the
amount of damages allegedly sustained by them.
The lower court held that plaintiffs' claim for damages cannot be based
upon a tort or quasi-delict, their relation with the defendants being
contractual in nature. We have repeatedly held, however, that the
existence of a contract between the parties does not bar the commission
of a tort by the one against the order and the consequent recovery of
damages therefor.2 Indeed, this view has been, in effect, reiterated in a
comparatively recent case. Thus, in Air France vs. Carrascoso,3 involving
an airplane passenger who, despite his first-class ticket, had been illegally
ousted from his first-class accommodation and compelled to take a seat in
the tourist compartment, was held entitled to recover damages from the
air-carrier, upon the ground of tort on the latter's part, for, although the
relation between a passenger and a carrier is "contractual both in origin
and nature ... the act that breaks the contract may also be a tort".

In view, however, of the facts obtaining in the case at bar, and

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

WHEREFORE, the judgment appealed from is hereby reversed, and another

one shall be entered sentencing the defendant Bank of the Philippine
Islands to pay to the plaintiffs said sums of P1,000, as nominal damages,
and P500, as attorney's fees, apart from the costs. It is so ordered.
G.R. No. 84698 February 4, 1992
PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D.
LIM, BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS, COL. PEDRO
SACRO and LT. M. SORIANO, petitioners,
vs.
COURT OF APPEALS, HON. REGINA ORDOEZ-BENITEZ, in her
capacity as Presiding Judge of Branch 47, Regional Trial Court,
Manila, SEGUNDA R. BAUTISTA and ARSENIA D.
BAUTISTA, respondents.
Balgos and Perez for petitioners.
Collantes, Ramirez & Associates for private respondents.
PADILLA, J.:
A stabbing incident on 30 August 1985 which caused the death of Carlitos
Bautista while on the second-floor premises of the Philippine School of
Business Administration (PSBA) prompted the parents of the deceased to
file suit in the Regional Trial Court of Manila (Branch 47) presided over by
Judge (now Court of Appeals justice) Regina Ordoez-Benitez, for
damages against the said PSBA and its corporate officers. At the time of
his death, Carlitos was enrolled in the third year commerce course at the
PSBA. It was established that his assailants were not members of the
school's academic community but were elements from outside the school.
Specifically, the suit impleaded the PSBA and the following school
authorities: Juan D. Lim (President), Benjamin P. Paulino (Vice-President),
Antonio M. Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief of
Security) and a Lt. M. Soriano (Assistant Chief of Security). Substantially,
the plaintiffs (now private respondents) sought to adjudge them liable for
the victim's untimely demise due to their alleged negligence, recklessness
and lack of security precautions, means and methods before, during and
after the attack on the victim. During the proceedings a quo, Lt. M.
Soriano terminated his relationship with the other petitioners by resigning
from his position in the school.
Defendants a quo (now petitioners) sought to have the suit dismissed,
alleging that since they are presumably sued under Article 2180 of the
Civil Code, the complaint states no cause of action against them, as
jurisprudence on the subject is to the effect that academic institutions,
such as the PSBA, are beyond the ambit of the rule in the afore-stated
article.
The respondent trial court, however, overruled petitioners' contention and
thru an order dated 8 December 1987, denied their motion to dismiss. A
subsequent motion for reconsideration was similarly dealt with by an order
dated 25 January 1988. Petitioners then assailed the trial court's
disposition before the respondent appellate court which, in a
decision * promulgated on 10 June 1988, affirmed the trial court's orders.
On 22 August 1988, the respondent appellate court resolved to deny the
petitioners' motion for reconsideration. Hence, this petition.
At the outset, it is to be observed that the respondent appellate court
primarily anchored its decision on the law of quasi-delicts, as enunciated in
Articles 2176 and 2180 of the Civil Code. 1 Pertinent portions of the
appellate court's now assailed ruling state:
Article 2180 (formerly Article 1903) of the Civil Code is an
adoption from the old Spanish Civil Code. The comments of
Manresa and learned authorities on its meaning should
give way to present day changes. The law is not fixed and
flexible (sic); it must be dynamic. In fact, the greatest
value and significance of law as a rule of conduct in (sic)
its flexibility to adopt to changing social conditions and its
capacity to meet the new challenges of progress.
Construed in the light of modern day educational system,
Article 2180 cannot be construed in its narrow concept as
held in the old case of Exconde vs. Capuno 2 and Mercado
vs. Court of Appeals; 3hence, the ruling in
4
the Palisoc case that it should apply to all kinds of
educational institutions, academic or vocational.
At any rate, the law holds the teachers and heads of the
school staff liable unless they relieve themselves of such
liability pursuant to the last paragraph of Article 2180 by
"proving that they observed all the diligence to prevent
damage." This can only be done at a trial on the merits of
the case. 5
While we agree with the respondent appellate court that the motion to
dismiss the complaint was correctly denied and the complaint should be
tried on the merits, we do not however agree with the premises of the
appellate court's ruling.
Article 2180, in conjunction with Article 2176 of the Civil Code, establishes
the rule of in loco parentis. This Court discussed this doctrine in the afore-
cited cases of Exconde, Mendoza, Palisoc and, more recently, in Amadora
vs.Court of Appeals. 6 In all such cases, it had been stressed that the law
(Article 2180) plainly provides that the damage should have been caused
or inflicted by pupils or students of he educational institution sought to be
held liable for the acts of its pupils or students while in its custody.
However, this material situation does not exist in the present case for, as
earlier indicated, the assailants of Carlitos were not students of the
PSBA, for whose acts the school could be made liable.
However, does the appellate court's failure to consider such material facts
mean the exculpation of the petitioners from liability? It does not
necessarily follow.
When an academic institution accepts students for enrollment, there is
established a contract between them, resulting in bilateral obligations
which both parties are bound to comply with. 7 For its part, the school
undertakes to provide the student with an education that would
presumably suffice to equip him with the necessary tools and skills to
pursue higher education or a profession. On the other hand, the student
covenants to abide by the school's academic requirements and observe its
rules and regulations.
Institutions of learning must also meet the implicit or "built-in" obligation
of providing their students with an atmosphere that promotes or assists in
attaining its primary undertaking of imparting knowledge. Certainly, no
student can absorb the intricacies of physics or higher mathematics or
explore the realm of the arts and other sciences when bullets are flying or
grenades exploding in the air or where there looms around the school
premises a constant threat to life and limb. Necessarily, the school must
ensure that adequate steps are taken to maintain peace and order within
the campus premises and to prevent the breakdown thereof.
Because the circumstances of the present case evince a contractual
relation between the PSBA and Carlitos Bautista, the rules on quasi-delict
do not really govern. 8 A perusal of Article 2176 shows that obligations
arising from quasi-delicts or tort, also known as extra-contractual
obligations, arise only between parties not otherwise bound by contract,
whether express or implied. However, this impression has not prevented
this Court from determining the existence of a tort even when there
obtains a contract. In Air France vs. Carrascoso (124 Phil. 722), the
private respondent was awarded damages for his unwarranted expulsion
from a first-class seat aboard the petitioner airline. It is noted, however,
that the Court referred to the petitioner-airline's liability as one arising
from tort, not one arising from a contract of carriage. In effect, Air
France is authority for the view that liability from tort may exist even if
there is a contract, for the act that breaks the contract may be also a tort.
(Austro-America S.S. Co. vs. Thomas, 248 Fed. 231).
This view was not all that revolutionary, for even as early as 1918, this
Court was already of a similar mind. In Cangco vs. Manila Railroad (38
Phil. 780), Mr. Justice Fisher elucidated thus:
The field of non-contractual obligation is much broader
than that of contractual obligation, comprising, as it does,
the whole extent of juridical human relations. These two
fields, figuratively speaking, concentric; that is to say, the
mere fact that a person is bound to another by contract
does not relieve him from extra-contractual liability to such
person. When such a contractual relation exists the obligor
may break the contract under such conditions that the
same act which constitutes a breach of the contract would
have constituted the source of an extra-contractual
obligation had no contract existed between the parties.
Immediately what comes to mind is the chapter of the Civil Code on
Human Relations, particularly Article 21, which provides:
Any person who wilfully causes loss or injury to another in
a manner that is contrary to morals, good custom or public
policy shall compensate the latter for the damage.
(emphasis supplied).
Air France penalized the racist policy of the airline which emboldened the
petitioner's employee to forcibly oust the private respondent to cater to
the comfort of a white man who allegedly "had a better right to the seat."
In Austro-American, supra, the public embarrassment caused to the
passenger was the justification for the Circuit Court of Appeals, (Second
Circuit), to award damages to the latter. From the foregoing, it can be
concluded that should the act which breaches a contract be done in bad
faith and be violative of Article 21, then there is a cause to view the act as
constituting a quasi-delict.
In the circumstances obtaining in the case at bar, however, there is, as
yet, no finding that the contract between the school and Bautista had been
breached thru the former's negligence in providing proper security
measures. This would be for the trial court to determine. And, even if
there be a finding of negligence, the same could give rise generally to a
breach of contractual obligation only. Using the test of Cangco, supra, the
negligence of the school would not be relevant absent a contract. In fact,
that negligence becomes material only because of the contractual relation
between PSBA and Bautista. In other words, a contractual relation is a
condition sine qua non to the school's liability. The negligence of the
school cannot exist independently of the contract, unless the negligence
occurs under the circumstances set out in Article 21 of the Civil Code.
This Court is not unmindful of the attendant difficulties posed by the
obligation of schools, above-mentioned, for conceptually a school, like a
common carrier, cannot be an insurer of its students against all risks. This
is specially true in the populous student communities of the so-called
"university belt" in Manila where there have been reported several
incidents ranging from gang wars to other forms of hooliganism. It would
not be equitable to expect of schools to anticipate all types of violent
trespass upon their premises, for notwithstanding the security measures
installed, the same may still fail against an individual or group determined
to carry out a nefarious deed inside school premises and environs. Should
this be the case, the school may still avoid liability by proving that the
breach of its contractual obligation to the students was not due to its
negligence, here statutorily defined to be the omission of that degree of
diligence which is required by the nature of the obligation and
corresponding to the circumstances of persons, time and place. 9

As the proceedings a quo have yet to commence on the substance of the

private respondents' complaint, the record is bereft of all the material
facts. Obviously, at this stage, only the trial court can make such a
determination from the evidence still to unfold.

WHEREFORE, the foregoing premises considered, the petition is DENIED.

The court of origin (RTC, Manila, Br. 47) is hereby ordered to continue
proceedings consistent with this ruling of the Court. Costs against the
petitioners.

SO ORDERED.
G.R. No. 111127 July 26, 1996
MR. & MRS. ENGRACIO FABRE, JR. and PORFIRIO
CABIL, petitioners,
vs.
COURT OF APPEALS, THE WORD FOR THE WORLD CHRISTIAN
FELLOWSHIP, INC., AMYLINE ANTONIO, JOHN RICHARDS,
GONZALO GONZALES, VICENTE V. QUE, JR., ICLI CORDOVA,
ARLENE GOJOCCO, ALBERTO ROXAS CORDERO, RICHARD
BAUTISTA, JOCELYN GARCIA, YOLANDA CORDOVA, NOEL ROQUE,
EDWARD TAN, ERNESTO NARCISO, ENRIQUETA LOCSIN, FRANCIS
NORMAN O. LOPES, JULIUS CAESAR, GARCIA, ROSARIO MA. V.
ORTIZ, MARIETTA C. CLAVO, ELVIE SENIEL, ROSARIO MARA-MARA,
TERESITA REGALA, MELINDA TORRES, MARELLA MIJARES, JOSEFA
CABATINGAN, MARA NADOC, DIANE MAYO, TESS PLATA, MAYETTE
JOCSON, ARLENE Y. MORTIZ, LIZA MAYO, CARLOS RANARIO,
ROSAMARIA T. RADOC and BERNADETTE FERRER, respondents.
MENDOZA, J.:p
This is a petition for review on certiorari of the decision of the Court of
Appeals1 in CA-GR No. 28245, dated September 30, 1992, which affirmed
with modification the decision of the Regional Trial Court of Makati, Branch
58, ordering petitioners jointly and severally to pay damages to private
respondent Amyline Antonio, and its resolution which denied petitioners'
motion for reconsideration for lack of merit.
Petitioners Engracio Fabre, Jr. and his wife were owners of a 1982 model
Mazda minibus. They used the bus principally in connection with a bus
service for school children which they operated in Manila. The couple had a
driver, Porfirio J. Cabil, whom they hired in 1981, after trying him out for
two weeks, His job was to take school children to and from the St.
Scholastica's College in Malate, Manila.
On November 2, 1984 private respondent Word for the World Christian
Fellowship Inc. (WWCF) arranged with petitioners for the transportation of
33 members of its Young Adults Ministry from Manila to La Union and back
in consideration of which private respondent paid petitioners the amount
of P3,000.00.
The group was scheduled to leave on November 2, 1984, at 5:00 o'clock in
the afternoon. However, as several members of the party were late, the
bus did not leave the Tropical Hut at the corner of Ortigas Avenue and
EDSA until 8:00 o'clock in the evening. Petitioner Porfirio Cabil drove the
minibus.
The usual route to Caba, La Union was through Carmen, Pangasinan.
However, the bridge at Carmen was under repair, sot hat petitioner Cabil,
who was unfamiliar with the area (it being his first trip to La Union), was
forced to take a detour through the town of Baay in Lingayen, Pangasinan.
At 11:30 that night, petitioner Cabil came upon a sharp curve on the
highway, running on a south to east direction, which he described as
"siete." The road was slippery because it was raining, causing the bus,
which was running at the speed of 50 kilometers per hour, to skid to the
left road shoulder. The bus hit the left traffic steel brace and sign along the
road and rammed the fence of one Jesus Escano, then turned over and
landed on its left side, coming to a full stop only after a series of impacts.
The bus came to rest off the road. A coconut tree which it had hit fell on it
and smashed its front portion.
Several passengers were injured. Private respondent Amyline Antonio was
thrown on the floor of the bus and pinned down by a wooden seat which
came down by a wooden seat which came off after being unscrewed. It
took three persons to safely remove her from this portion. She was in
great pain and could not move.
The driver, petitioner Cabil, claimed he did not see the curve until it was
too late. He said he was not familiar with the area and he could not have
seen the curve despite the care he took in driving the bus, because it was
dark and there was no sign on the road. He said that he saw the curve
when he was already within 15 to 30 meters of it. He allegedly slowed
down to 30 kilometers per hour, but it was too late.
The Lingayen police investigated the incident the next day, November 3,
1984. On the basis of their finding they filed a criminal complaint against
the driver, Porfirio Cabil. The case was later filed with the Lingayen
Regional Trial Court. Petitioners Fabre paid Jesus Escano P1,500.00 for the
damage to the latter's fence. On the basis of Escano's affidavit of
desistance the case against petitioners Fabre was dismissed.
Amyline Antonio, who was seriously injured, brought this case in the RTC
of Makati, Metro Manila. As a result of the accident, she is now suffering
from paraplegia and is permanently paralyzed from the waist down. During
the trial she described the operations she underwent and adduced
evidence regarding the cost of her treatment and therapy. Immediately
after the accident, she was taken to the Nazareth Hospital in Baay,
Lingayen. As this hospital was not adequately equipped, she was
transferred to the Sto. Nio Hospital, also in the town of Ba-ay, where she
was given sedatives. An x-ray was taken and the damage to her spine was
determined to be too severe to be treated there. She was therefore
brought to Manila, first to the Philippine General Hospital and later to the
Makati Medical Center where she underwent an operation to correct the
dislocation of her spine.
In its decision dated April 17, 1989, the trial court found that:
No convincing evidence was shown that the minibus was properly checked
for travel to a long distance trip and that the driver was properly screened
and tested before being admitted for employment. Indeed, all the evidence
presented have shown the negligent act of the defendants which ultimately
resulted to the accident subject of this case.
Accordingly, it gave judgment for private respondents holding:
Considering that plaintiffs Word for the World Christian Fellowship, Inc.
and Ms. Amyline Antonio were the only ones who adduced evidence in
support of their claim for damages, the Court is therefore not in a position
to award damages to the other plaintiffs.
WHEREFORE, premises considered, the Court hereby renders judgment
against defendants Mr. & Mrs. Engracio Fabre, Jr. and Porfirio Cabil y Jamil
pursuant to articles 2176 and 2180 of the Civil Code of the Philippines and
said defendants are ordered to pay jointly and severally to the plaintiffs
the following amount:
1) P93,657.11 as compensatory and actual damages;
2) P500,000.00 as the reasonable amount of loss of
earning capacity of plaintiff Amyline Antonio;
3) P20,000.00 as moral damages;
4) P20,000.00 as exemplary damages; and
5) 25% of the recoverable amount as attorney's fees;
6) Costs of suit.
SO ORDERED.
The Court of Appeals affirmed the decision of the trial court with respect to
Amyline Antonio but dismissed it with respect to the other plaintiffs on the
ground that they failed to prove their respective claims. The Court of
Appeals modified the award of damages as follows:
1) P93,657.11 as actual damages;
2) P600,000.00 as compensatory damages;
3) P50,000.00 as moral damages;
4) P20,000.00 as exemplary damages;
5) P10,000.00 as attorney's fees; and
6) Costs of suit.
The Court of Appeals sustained the trial court's finding that petitioner Cabil
failed to exercise due care and precaution in the operation of his vehicle
considering the time and the place of the accident. The Court of Appeals
held that the Fabres were themselves presumptively negligent. Hence, this
petition. Petitioners raise the following issues:
I. WHETHER OR NOT PETITIONERS WERE
NEGLIGENT.
II. WHETHER OF NOT PETITIONERS WERE
LIABLE FOR THE INJURIES SUFFERED BY
PRIVATE RESPONDENTS.
III WHETHER OR NOT DAMAGES CAN BE
AWARDED AND IN THE POSITIVE, UP TO
WHAT EXTENT.
Petitioners challenge the propriety of the award of compensatory damages
in the amount of P600,000.00. It is insisted that, on the assumption that
petitioners are liable an award of P600,000.00 is unconscionable and
highly speculative. Amyline Antonio testified that she was a casual
employee of a company called "Suaco," earning P1,650.00 a month, and a
dealer of Avon products, earning an average of P1,000.00 monthly.
Petitioners contend that as casual employees do not have security of
tenure, the award of P600,000.00, considering Amyline Antonio's earnings,
is without factual basis as there is no assurance that she would be
regularly earning these amounts.
With the exception of the award of damages, the petition is devoid of
merit.
First, it is unnecessary for our purpose to determine whether to decide this
case on the theory that petitioners are liable for breach of contract of
carriage or culpa contractual or on the theory of quasi delict or culpa
aquiliana as both the Regional Trial Court and the Court of Appeals held,
for 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." 2 In either case, the question is whether the bus driver,
petitioner Porfirio Cabil, was negligent.
The finding that Cabil drove his bus negligently, while his employer, the
Fabres, who owned the bus, failed to exercise the diligence of a good
father of the family in the selection and supervision of their employee is
fully supported by the evidence on record. These factual findings of the
two courts we regard as final and conclusive, supported as they are by the
evidence. Indeed, it was admitted by Cabil that on the night in question, it
was raining, and as a consequence, the road was slippery, and it was dark.
He averred these facts to justify his failure to see that there lay a sharp
curve ahead. However, it is undisputed that Cabil drove his bus at the
speed of 50 kilometers per hour and only slowed down when he noticed
the curve some 15 to 30 meters ahead. 3 By then it was too late for him to
avoid falling off the road. Given the conditions of the road and considering
that the trip was Cabil's first one outside of Manila, Cabil should have
driven his vehicle at a moderate speed. There is testimony 4 that the
vehicles passing on that portion of the road should only be running 20
kilometers per hour, so that at 50 kilometers per hour, Cabil was running
at a very high speed.
Considering the foregoing the fact that it was raining and the road was
slippery, that it was dark, that he drove his bus at 50 kilometers an hour
when even on a good day the normal speed was only 20 kilometers an
hour, and that he was unfamiliar with the terrain, Cabil was grossly
negligent and should be held liable for the injuries suffered by private
respondent Amyline Antonio.
Pursuant to Arts. 2176 and 2180 of the Civil Code his negligence gave rise
to the presumption that his employers, the Fabres, were themselves
negligent in the selection and supervisions of their employee.
Due diligence in selection of employees is not satisfied by finding that the
applicant possessed a professional driver's license. The employer should
also examine the applicant for his qualifications, experience and record of
service. 5 Due diligence in supervision, on the other hand, requires the
formulation of rules and regulations for the guidance of employees and
issuance of proper instructions as well as actual implementation and
monitoring of consistent compliance with the rules.6
In the case at bar, the Fabres, in allowing Cabil to drive the bus to La
Union, apparently did not consider the fact that Cabil had been driving for
school children only, from their homes to the St. Scholastica's College in
Metro Manila. 7They had hired him only after a two-week apprenticeship.
They had hired him only after a two-week apprenticeship. They had tested
him for certain matters, such as whether he could remember the names of
the children he would be taking to school, which were irrelevant to his
qualification to drive on a long distance travel, especially considering that
the trip to La Union was his first. The existence of hiring procedures and
supervisory policies cannot be casually invoked to overturn the
presumption of negligence on the part of an employer. 8
Petitioners argue that they are not liable because (1) an earlier departure
(made impossible by the congregation's delayed meeting) could have a
averted the mishap and (2) under the contract, the WWCF was directly
responsible for the conduct of the trip. Neither of these contentions hold
water. The hour of departure had not been fixed. Even if it had been, the
delay did not bear directly on the cause of the accident. With respect to
the second contention, it was held in an early case that:
[A] person who hires a public automobile and gives the driver directions as
to the place to which he wishes to be conveyed, but exercises 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 or the automobile driver. 9
As already stated, this case actually involves a contract of carriage.
Petitioners, the Fabres, did not have to be engaged in the business of
public transportation for the provisions of the Civil Code on common
carriers to apply to them. As this Court has held: 10
Art. 1732. Common carriers are persons, corporations,
firms or associations engaged in the business of carrying
or transporting passengers or goods or both, by land,
water, or air for compensation, offering their services to
the public.
The above article makes no distinction between one whose
principal business activity is the carrying of persons or
goods or both, and one who does such carrying only as an
ancillary activity (in local idiom, as "a sideline"). Article
1732 also carefully avoids making any distinction between
a person or enterprise offering transportation service on a
regular or scheduled basis and one offering such service on
an occasional, episodic or unscheduled basis. Neither does
Article 1732 distinguish between a carrier offering its
services to the "general public," i.e., the general
community or population, and one who offers services or
solicits business only from a narrow segment of the
general population. We think that Article 1732 deliberately
refrained from making such distinctions.
 As common carriers, the Fabres were found to exercise
"extraordinary diligence" for the safe transportation of the
passengers to their destination. This duty of care is not
excused by proof that they exercise the diligence of a good
father of the family in the selection and supervision of their
employee. As Art. 1759 of the Code provides:
Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the
former's employees although such employees may have
acted beyond the scope of their authority or in violation of
the orders of the common carriers.
This liability of the common carriers does not cease upon
proof that they exercised all the diligence of a good father
of a family in the selection and supervision of their
employees.
The same circumstances detailed above, supporting the finding of the trial
court and of the appellate court that petitioners are liable under Arts. 2176
and 2180 for quasi delict, fully justify findings them guilty of breach of
contract of carriage under Arts. 1733, 1755 and 1759 of the Civil Code.
Secondly, we sustain the award of damages in favor of Amyline Antonio.
However, we think the Court of Appeals erred in increasing the amount of
compensatory damages because private respondents did not question this
award as inadequate. 11 To the contrary, the award of P500,000.00 for
compensatory damages which the Regional Trial Court made is reasonable
considering the contingent nature of her income as a casual employee of a
company and as distributor of beauty products and the fact that the
possibility that she might be able to work again has not been foreclosed.
In fact she testified that one of her previous employers had expressed
willingness to employ her again.
With respect to the other awards, while the decisions of the trial court and
the Court of Appeals do not sufficiently indicate the factual and legal basis
for them, we find that they are nevertheless supported by evidence in the
records of this case. Viewed as an action for quasi delict, this case falls
squarely within the purview of Art. 2219(2) providing for the payment of
moral damages in cases of quasi delict. On the theory that petitioners are
liable for breach of contract of carriage, the award of moral damages is
authorized by Art. 1764, in relation to Art. 2220, since Cabil's gross
negligence amounted to bad faith.12 Amyline Antonio's testimony, as well
as the testimonies of her father and copassengers, fully establish the
physical suffering and mental anguish she endured as a result of the
injuries caused by petitioners' negligence.
The award of exemplary damages and attorney's fees was also properly
made. However, for the same reason that it was error for the appellate
court to increase the award of compensatory damages, we hold that it was
also error for it to increase the award of moral damages and reduce the
award of attorney's fees, inasmuch as private respondents, in whose favor
the awards were made, have not appealed. 13
As above stated, the decision of the Court of Appeals can be sustained
either on the theory of quasi delict or on that of breach of contract. The
question is whether, as the two courts below held, petitioners, who are the
owners and driver of the bus, may be made to respond jointly and
severally to private respondent. We hold that they may be. In Dangwa
Trans. Co. Inc. v. Court of Appeals, 14 on facts similar to those in this case,
this Court held the bus company and the driver jointly and severally liable
for damages for injuries suffered by a passenger. Again, in Bachelor
Express, Inc. v. Court of
Appeals 15 a driver found negligent in failing to stop the bus in order to let
off passengers when a fellow passenger ran amuck, as a result of which
the passengers jumped out of the speeding bus and suffered injuries, was
held also jointly and severally liable with the bus company to the injured
passengers.
The same rule of liability was applied in situations where the negligence of
the driver of the bus on which plaintiff was riding concurred with the
negligence of a third party who was the driver of another vehicle, thus
causing an accident. In Anuran v. Buo, 16 Batangas Laguna Tayabas Bus
Co. v. Intermediate Appellate Court, 17 and Metro Manila Transit
Corporation v. Court of Appeals, 18 the bus company, its driver, the
operator of the other vehicle and the driver of the vehicle were jointly and
severally held liable to the injured passenger or the latters' heirs. The
basis of this allocation of liability was explained in Viluan v. Court of
Appeals, 19 thus:
Nor should it make any difference that the liability of
petitioner [bus owner] springs from contract while that of
respondents [owner and driver of other vehicle] arises
from quasi-delict. As early as 1913, we already ruled
in Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of
injury to a passenger due to the negligence of the driver of
the bus on which he was riding and of the driver of another
vehicle, the drivers as well as the owners of the two
vehicles are jointly and severally liable for damages. Some
members of the Court, though, are of the view that under
the circumstances they are liable on quasi-delict. 20
It is true that in Philippine Rabbit Bus Lines, Inc. v. Court of Appeals 21 this
Court exonerated the jeepney driver from liability to the injured
passengers and their families while holding the owners of the jeepney
jointly and severally liable, but that is because that case was expressly
tried and decided exclusively on the theory of culpa contractual. As this
Court there explained:

The trial court was therefore right in finding that Manalo (the driver) and
spouses Mangune and Carreon (the jeepney owners) were negligent.
However, its ruling that spouses Mangune and Carreon are jointly and
severally liable with Manalo is erroneous. The driver cannot be held jointly
and severally liable with carrier in case of breach of the contract of
carriage. The rationale behind this is readily discernible. Firstly, the
contract of carriage is between the carrier is exclusively responsible
therefore to the passenger, even if such breach be due to the negligence
of his driver (see Viluan v. The Court of Appeals, et al., G.R. Nos. L-21477-
81, April 29, 1966, 16 SCRA 742). 22

As in the case of BLTB, private respondents in this case and her coplaintiffs
did not stake out their claim against the carrier and the driver exclusively
on one theory, much less on that of breach of contract alone. After all, it
was permitted for them to allege alternative causes of action and join as
many parties as may be liable on such causes of action 23 so long as
private respondent and her coplaintiffs do not recover twice for the same
injury. What is clear from the cases is the intent of the plaintiff there to
recover from both the carrier and the driver, thus, justifying the holding
that the carrier and the driver were jointly and severally liable because
their separate and distinct acts concurred to produce the same injury.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with

MODIFICATION as to award of damages. Petitioners are ORDERED to PAY
jointly and severally the private respondent Amyline Antonio the following
amounts:

1) P93,657.11 as actual damages;

2) P500,000.00 as the reasonable amount of loss of earning capacity of

plaintiff Amyline Antonio;

3) P20,000.00 as moral damages;

4) P20,000.00 as exemplary damages;

5) 25% of the recoverable amount as attorney's fees; and

6) costs of suit.

SO ORDERED.
G.R. No. 145804 February 6, 2003 "WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and
against the defendants Prudent Security and Junelito Escartin ordering the
LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners, latter to pay jointly and severally the plaintiffs the following:
vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & "a) 1) Actual damages of P44,830.00;
PRUDENT SECURITY AGENCY, respondents.
2) Compensatory damages of P443,520.00;
DECISION
3) Indemnity for the death of Nicanor Navidad in the sum of
VITUG, J.: P50,000.00;

The case before the Court is an appeal from the decision and resolution of "b) Moral damages of P50,000.00;
the Court of Appeals, promulgated on 27 April 2000 and 10 October 2000,
respectively, in CA-G.R. CV No. 60720, entitled "Marjorie Navidad and "c) Attorneys fees of P20,000;
Heirs of the Late Nicanor Navidad vs. Rodolfo Roman, et. al.," which has
modified the decision of 11 August 1998 of the Regional Trial Court,
"d) Costs of suit.
Branch 266, Pasig City, exonerating Prudent Security Agency (Prudent)
from liability and finding Light Rail Transit Authority (LRTA) and Rodolfo
Roman liable for damages on account of the death of Nicanor Navidad. "The complaint against defendants LRTA and Rodolfo Roman are dismissed
for lack of merit.
On 14 October 1993, about half an hour past seven oclock in the evening,
Nicanor Navidad, then drunk, entered the EDSA LRT station after "The compulsory counterclaim of LRTA and Roman are likewise
purchasing a "token" (representing payment of the fare). While Navidad dismissed."1
was standing on the platform near the LRT tracks, Junelito Escartin, the
security guard assigned to the area approached Navidad. A Prudent appealed to the Court of Appeals. On 27 August 2000, the
misunderstanding or an altercation between the two apparently ensued appellate court promulgated its now assailed decision exonerating Prudent
that led to a fist fight. No evidence, however, was adduced to indicate how from any liability for the death of Nicanor Navidad and, instead, holding
the fight started or who, between the two, delivered the first blow or how the LRTA and Roman jointly and severally liable thusly:
Navidad later fell on the LRT tracks. At the exact moment that Navidad
fell, an LRT train, operated by petitioner Rodolfo Roman, was coming in. "WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating
Navidad was struck by the moving train, and he was killed the appellants from any liability for the death of Nicanor Navidad, Jr.
instantaneously.
Instead, appellees Rodolfo Roman and the Light Rail Transit Authority
(LRTA) are held liable for his death and are hereby directed to pay jointly
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie and severally to the plaintiffs-appellees, the following amounts:
Navidad, along with her children, filed a complaint for damages against
Junelito Escartin, Rodolfo Roman, the LRTA, the Metro Transit a) P44,830.00 as actual damages;
Organization, Inc. (Metro Transit), and Prudent for the death of her
husband. LRTA and Roman filed a counterclaim against Navidad and a
cross-claim against Escartin and Prudent. Prudent, in its answer, denied b) P50,000.00 as nominal damages;
liability and averred that it had exercised due diligence in the selection and
supervision of its security guards. c) P50,000.00 as moral damages;

The LRTA and Roman presented their evidence while Prudent and Escartin, d) P50,000.00 as indemnity for the death of the deceased;
instead of presenting evidence, filed a demurrer contending that Navidad and
had failed to prove that Escartin was negligent in his assigned task. On 11
August 1998, the trial court rendered its decision; it adjudged: e) P20,000.00 as and for attorneys fees."2
The appellate court ratiocinated that while the deceased might not have
then as yet boarded the train, a contract of carriage theretofore had
already existed when the victim entered the place where passengers were
supposed to be after paying the fare and getting the corresponding token
therefor. In exempting Prudent from liability, the court stressed that there
was nothing to link the security agency to the death of Navidad. It said
that Navidad failed to show that Escartin inflicted fist blows upon the
victim and the evidence merely established the fact of death of Navidad by
reason of his having been hit by the train owned and managed by the
LRTA and operated at the time by Roman. The appellate court faulted
petitioners for their failure to present expert evidence to establish the fact
that the application of emergency brakes could not have stopped the train.
The appellate court denied petitioners motion for reconsideration in its
resolution of 10 October 2000.
In their present recourse, petitioners recite alleged errors on the part of
the appellate court; viz:
"I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING
THE FINDINGS OF FACTS BY THE TRIAL COURT
"II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT
PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.
"III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT
RODOLFO ROMAN IS AN EMPLOYEE OF LRTA."3
Petitioners would contend that the appellate court ignored the evidence
and the factual findings of the trial court by holding them liable on the
basis of a sweeping conclusion that the presumption of negligence on the
part of a common carrier was not overcome. Petitioners would insist that
Escartins assault upon Navidad, which caused the latter to fall on the
tracks, was an act of a stranger that could not have been foreseen or
prevented. The LRTA would add that the appellate courts conclusion on
the existence of an employer-employee relationship between Roman and
LRTA lacked basis because Roman himself had testified being an employee
of Metro Transit and not of the LRTA.
Respondents, supporting the decision of the appellate court, contended
that a contract of carriage was deemed created from the moment Navidad
paid the fare at the LRT station and entered the premises of the latter,
entitling Navidad to all the rights and protection under a contractual
relation, and that the appellate court had correctly held LRTA and Roman
liable for the death of Navidad in failing to exercise extraordinary diligence
imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both from the
nature of its business and for reasons of public policy, is burdened with the
duty of exercising utmost diligence in ensuring the safety of
passengers.4 The Civil Code, governing the liability of a common carrier for
death of or injury to its passengers, provides:
"Article 1755. A common carrier is bound to carry the passengers safely as
far as human care and foresight can provide, using the utmost diligence of
very cautious persons, with a due regard for all the circumstances.
"Article 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted negligently,
unless they prove that they observed extraordinary diligence as prescribed
in articles 1733 and 1755."
"Article 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the formers
employees, although such employees may have acted beyond the scope of
their authority or in violation of the orders of the common carriers.
"This liability of the common carriers does not cease upon proof that they
exercised all the diligence of a good father of a family in the selection and
supervision of their employees."
"Article 1763. A common carrier is responsible for injuries suffered by a
passenger on account of the willful acts or negligence of other passengers
or of strangers, if the common carriers employees through the exercise of
the diligence of a good father of a family could have prevented or stopped
the act or omission."
The law requires common carriers to carry passengers safely using the
utmost diligence of very cautious persons with due regard for all
circumstances.5 Such duty of a common carrier to provide safety to its
passengers so obligates it not only during the course of the trip but for so
long as the passengers are within its premises and where they ought to be
in pursuance to the contract of carriage.6 The statutory provisions render a
common carrier liable for death of or injury to passengers (a) through the
negligence or wilful acts of its employees or b) on account of wilful acts or
negligence of other passengers or of strangers if the common carriers
employees through the exercise of due diligence could have prevented or Escartin, has not been duly proven x x x." This finding of the appellate
stopped the act or omission.7 In case of such death or injury, a carrier is court is not without substantial justification in our own review of the
presumed to have been at fault or been negligent, and 8 by simple proof of records of the case.
injury, the passenger is relieved of the duty to still establish the fault or
negligence of the carrier or of its employees and the burden shifts upon There being, similarly, no showing that petitioner Rodolfo Roman himself is
the carrier to prove that the injury is due to an unforeseen event or to guilty of any culpable act or omission, he must also be absolved from
force majeure.9 In the absence of satisfactory explanation by the carrier on liability. Needless to say, the contractual tie between the LRT and Navidad
how the accident occurred, which petitioners, according to the appellate is not itself a juridical relation between the latter and Roman; thus, Roman
court, have failed to show, the presumption would be that it has been at can be made liable only for his own fault or negligence.
fault,10 an exception from the general rule that negligence must be
proved.11
The award of nominal damages in addition to actual damages is untenable.
Nominal damages are adjudicated in order that a right of the plaintiff,
The foundation of LRTAs liability is the contract of carriage and its which has been violated or invaded by the defendant, may be vindicated
obligation to indemnify the victim arises from the breach of that contract or recognized, and not for the purpose of indemnifying the plaintiff for any
by reason of its failure to exercise the high diligence required of the loss suffered by him.18 It is an established rule that nominal damages
common carrier. In the discharge of its commitment to ensure the safety cannot co-exist with compensatory damages.19
of passengers, a carrier may choose to hire its own employees or avail
itself of the services of an outsider or an independent firm to undertake
WHEREFORE, the assailed decision of the appellate court is AFFIRMED
the task. In either case, the common carrier is not relieved of its
with MODIFICATION but only in that (a) the award of nominal damages is
responsibilities under the contract of carriage.
DELETED and (b) petitioner Rodolfo Roman is absolved from liability. No
costs.
Should Prudent be made likewise liable? If at all, that liability could only be
for tort under the provisions of Article 2176 12 and related provisions, in
SO ORDERED.
conjunction with Article 2180,13 of the Civil Code. The premise, however,
for the employers liability is negligence or fault on the part of the
employee. Once such fault is established, the employer can then be made
liable on the basis of the presumption juris tantum that the employer
failed to exercise diligentissimi patris families in the selection and
supervision of its employees. The liability is primary and can only be
negated by showing due diligence in the selection and supervision of the
employee, a factual matter that has not been shown. Absent such a
showing, one might ask further, how then must the liability of the common
carrier, on the one hand, and an independent contractor, on the other
hand, be described? It would be solidary. A contractual obligation can be
breached by tort and when the same act or omission causes the injury,
one resulting in culpa contractual and the other in culpa aquiliana, Article
219414 of the Civil Code can well apply.15 In fine, a liability for tort may
arise even under a contract, where tort is that which breaches the
contract.16 Stated differently, when an act which constitutes a breach of
contract would have itself constituted the source of a quasi-delictual
liability had no contract existed between the parties, the contract can be
said to have been breached by tort, thereby allowing the rules on tort to
apply.17

Regrettably for LRT, as well as perhaps the surviving spouse and heirs of
the late Nicanor Navidad, this Court is concluded by the factual finding of
the Court of Appeals that "there is nothing to link (Prudent) to the death of
Nicanor (Navidad), for the reason that the negligence of its employee,
G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held the petitioner
herein, Fausto Barredo, liable in damages for the death of Faustino Garcia
caused by the negligence of Pedro Fontanilla, a taxi driver employed by
said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road
between Malabon and Navotas, Province of Rizal, there was a head-on
collision between a taxi of the Malate Taxicab driven by Pedro Fontanilla
and a carretela guided by Pedro Dimapalis. The carretela was overturned,
and one of its passengers, 16-year-old boy Faustino Garcia, suffered
injuries from which he died two days later. A criminal action was filed
against Fontanilla in the Court of First Instance of Rizal, and he was
convicted and sentenced to an indeterminate sentence of one year and
one day to two years of prision correccional. The court in the criminal case
granted the petition that the right to bring a separate civil action be
reserved. The Court of Appeals affirmed the sentence of the lower court in
the criminal case. Severino Garcia and Timotea Almario, parents of the
deceased on March 7, 1939, brought an action in the Court of First
Instance of Manila against Fausto Barredo as the sole proprietor of the
Malate Taxicab and employer of Pedro Fontanilla. On July 8, 1939, the
Court of First Instance of Manila awarded damages in favor of the plaintiffs
for P2,000 plus legal interest from the date of the complaint. This decision
was modified by the Court of Appeals by reducing the damages to P1,000
with legal interest from the time the action was instituted. It is undisputed
that Fontanilla 's negligence was the cause of the mishap, as he was
driving on the wrong side of the road, and at high speed. As to Barredo's
responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is
proof that he exercised the diligence of a good father of a family to
prevent damage. (See p. 22, appellant's brief.) In fact it is shown
he was careless in employing Fontanilla who had been caught
several times for violation of the Automobile Law and speeding
(Exhibit A) violation which appeared in the records of the
Bureau of Public Works available to be public and to himself.
Therefore, he must indemnify plaintiffs under the provisions of
article 1903 of the Civil Code.
The main theory of the defense is that the liability of Fausto Barredo is
governed by the Revised Penal Code; hence, his liability is only subsidiary,
and as there has been no civil action against Pedro Fontanilla, the person
criminally liable, Barredo cannot be held responsible in the case. The
petitioner's brief states on page 10:
... The Court of Appeals holds that the petitioner is being sued for
his failure to exercise all the diligence of a good father of a family
in the selection and supervision of Pedro Fontanilla to prevent
damages suffered by the respondents. In other words, The Court
of Appeals insists on applying in the case article 1903 of the Civil
Code. Article 1903 of the Civil Code is found in Chapter II, Title 16,
Book IV of the Civil Code. This fact makes said article to a civil
liability arising from a crime as in the case at bar simply because
Chapter II of Title 16 of Book IV of the Civil Code, in the precise
words of article 1903 of the Civil Code itself, is applicable only to
"those (obligations) arising from wrongful or negligent acts or
commission not punishable by law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The liability
sought to be imposed upon him in this action is not a civil
obligation arising from a felony or a misdemeanor (the crime of
Pedro Fontanilla,), but an obligation imposed in article 1903 of the
Civil Code by reason of his negligence in the selection or
supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring this
separate civil action against Fausto Barredo, thus making him primarily
and directly, responsible under article 1903 of the Civil Code as an
employer of Pedro Fontanilla. The defendant maintains that Fontanilla's
negligence being punishable by the Penal Code, his (defendant's) liability
as an employer is only subsidiary, according to said Penal code, but
Fontanilla has not been sued in a civil action and his property has not been
exhausted. To decide the main issue, we must cut through the tangle that
has, in the minds of many confused and jumbled
together delitos and cuasi delitos, or crimes under the Penal Code and
fault or negligence under articles 1902-1910 of the Civil Code. This should
be done, because justice may be lost in a labyrinth, unless principles and
remedies are distinctly envisaged. Fortunately, we are aided in our inquiry
by the luminous presentation of the perplexing subject by renown jurists
and we are likewise guided by the decisions of this Court in previous cases
as well as by the solemn clarity of the consideration in several sentences
of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or "culpa aquiliana "
is a separate legal institution under the Civil Code with a substantivity all
its own, and individuality that is entirely apart and independent from delict
or crime. Upon this principle and on the wording and spirit article 1903 of
the Civil Code, the primary and direct responsibility of employers may be
safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code are as
follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and quasi-
contracts, and from acts and omissions which are unlawful or in
which any kind of fault or negligence intervenes.
xxx xxx xxx
ART. 1092. Civil obligations arising from felonies or misdemeanors
shall be governed by the provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in
which fault or negligence, not punishable by law, intervenes shall
be subject to the provisions of Chapter II, Title XVI of this book.
xxx xxx xxx
ART 1902. Any person who by an act or omission causes damage
to another by his fault or negligence shall be liable for the damage
so done.
ART. 1903. The obligation imposed by the next preceding article is
enforcible, not only for personal acts and omissions, but also for
those of persons for whom another is responsible.
The father and in, case of his death or incapacity, the mother, are
liable for any damages caused by the minor children who live with
them.
Guardians are liable for damages done by minors or incapacitated
persons subject to their authority and living with them.
Owners or directors of an establishment or business are equally
liable for any damages caused by their employees while engaged
in the branch of the service in which employed, or on occasion of
the performance of their duties.
The State is subject to the same liability when it acts through a
special agent, but not if the damage shall have been caused by the
official upon whom properly devolved the duty of doing the act
performed, in which case the provisions of the next preceding
article shall be applicable.
Finally, teachers or directors of arts trades are liable for any
damages caused by their pupils or apprentices while they are
under their custody.
The liability imposed by this article shall cease in case the persons
mentioned therein prove that they are exercised all the diligence of
a good father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his
employees may recover from the latter what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. Every person
criminally liable for a felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. The
exemption from criminal liability established in subdivisions 1, 2,
3, 5, and 6 of article 12 and in subdivision 4 of article 11 of this
Code does not include exemption from civil liability, which shall be
enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil
liability for acts committed by any imbecile or insane person, and
by a person under nine years of age, or by one over nine but
under fifteen years of age, who has acted without discernment
shall devolve upon those having such person under their legal
authority or control, unless it appears that there was no fault or
negligence on their part.
Should there be no person having such insane, imbecile or minor
under his authority, legal guardianship, or control, or if such
person be insolvent, said insane, imbecile, or minor shall respond
with their own property, excepting property exempt from
execution, in accordance with the civil law.
 Second. In cases falling within subdivision 4 of article 11, the
person for whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which they may have
received.
The courts shall determine, in their sound discretion, the proportionate
amount for which each one shall be liable.
When the respective shares can not be equitably determined, even
approximately, or when the liability also attaches to the Government, or to
the majority of the inhabitants of the town, and, in all events, whenever
the damage has been caused with the consent of the authorities or their
agents, indemnification shall be made in the manner prescribed by special
laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons
using violence or causing the fear shall be primarily liable and secondarily,
or, if there be no such persons, those doing the act shall be liable, saving
always to the latter that part of their property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers
and proprietors of establishment. In default of persons
criminally liable, innkeepers, tavern keepers, and any other
persons or corporation shall be civilly liable for crimes committed
in their establishments, in all cases where a violation of municipal
ordinances or some general or special police regulation shall have
been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods
taken by robbery or theft within their houses lodging therein, or
the person, or for the payment of the value thereof, provided that
such guests shall have notified in advance the innkeeper himself,
or the person representing him, of the deposit of such goods
within the inn; and shall furthermore have followed the directions
which such innkeeper or his representative may have given them
with respect to the care of and vigilance over such goods. No
liability shall attach in case of robbery with violence against or
intimidation against or intimidation of persons unless committed
by the innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. The
subsidiary liability established in the next preceding article shall
also apply to employers, teachers, persons, and corporations
engaged in any kind of industry for felonies committed by their
servants, pupils, workmen, apprentices, or employees in the
discharge of their duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. Any person who, by
reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the
penalty of arresto mayor in its maximum period to prision
correccional in its minimum period; if it would have constituted a
less grave felony, the penalty of arresto mayor in its minimum and
medium periods shall be imposed.
Any person who, by simple imprudence or negligence, shall
commit an act which would otherwise constitute a grave felony,
shall suffer the penalty of arresto mayor in its medium and
maximum periods; if it would have constituted a less serious
felony, the penalty of arresto mayor in its minimum period shall be
imposed."
It will thus be seen that while the terms of articles 1902 of the Civil Code
seem to be broad enough to cover the driver's negligence in the instant
case, nevertheless article 1093 limits cuasi-delitos to acts or omissions
"not punishable by law." But inasmuch as article 365 of the Revised Penal
Code punishes not only reckless but even simple imprudence or
negligence, the fault or negligence under article 1902 of the Civil Code has
apparently been crowded out. It is this overlapping that makes the
"confusion worse confounded." However, a closer study shows that such a
concurrence of scope in regard to negligent acts does not destroy the
distinction between the civil liability arising from a crime and the
responsibility for cuasi-delitos or culpa extra-contractual. The same
negligent act causing damages may produce civil liability arising from a
crime under article 100 of the Revised Penal Code, or create an action
for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the
Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms clear and
unmistakable. This legal institution is of ancient lineage, one of its early
ancestors being the Lex Aquilia in the Roman Law. In fact, in Spanish legal
terminology, this responsibility is often referred to as culpa aquiliana. The
Partidas also contributed to the genealogy of the present fault or
negligence under the Civil Code; for instance, Law 6, Title 15, of Partida 7,
says: "Tenudo es de fazer emienda, porque, como quier que el non fizo a
sabiendas en dao al otro, pero acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code. According
to article 1089, one of the five sources of obligations is this legal
institution of cuasi-delito or culpa extra-contractual: "los actos . . . en que
intervenga cualquier genero de culpa o negligencia." Then article 1093
provides that this kind of obligation shall be governed by Chapter II of
Title XVI of Book IV, meaning articles 1902-0910. This portion of the Civil
Code is exclusively devoted to the legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code and
the culpa aquiliana or cuasi-delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are only of
private concern.
2. That, consequently, the Penal Code punishes or corrects the criminal
act, while the Civil Code, by means of indemnification, merely repairs the
damage.
3. That delicts are not as broad as quasi-delicts, because the former are
punished only if there is a penal law clearly covering them, while the
latter, cuasi-delitos, include all acts in which "any king of fault or
negligence intervenes." However, it should be noted that not all violations
of the penal law produce civil responsibility, such as begging in
contravention of ordinances, violation of the game laws, infraction of the
rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso
Elemental de Derecho Civil," Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the separate existence of
quasi-delicts and the employer's primary and direct liability under article
1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia
Juridica Espaola" (Vol. XXVII, p. 414) says:
El concepto juridico de la responsabilidad civil abarca diversos
aspectos y comprende a diferentes personas. Asi, existe una
responsabilidad civil propiamente dicha, que en ningun casl lleva
aparejada responsabilidad criminal alguna, y otra que es
consecuencia indeclinable de la penal que nace de todo delito o
falta."
The juridical concept of civil responsibility has various aspects and
comprises different persons. Thus, there is a civil responsibility,
properly speaking, which in no case carries with it any criminal
responsibility, and another which is a necessary consequence of
the penal liability as a result of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following case:
There had been a collision between two trains belonging respectively to
the Ferrocarril Cantabrico and the Ferrocarril del Norte. An employee of
the latter had been prosecuted in a criminal case, in which the company
had been made a party as subsidiarily responsible in civil damages. The
employee had been acquitted in the criminal case, and the employer, the
Ferrocarril del Norte, had also been exonerated. The question asked was
whether the Ferrocarril Cantabrico could still bring a civil action for
damages against the Ferrocarril del Norte. Maura's opinion was in the
affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de
los hechos, todavia menos parece sostenible que exista cosa
juzgada acerca de la obligacion civil de indemnizar los quebrantos
y menoscabos inferidos por el choque de los trenes. El titulo en
que se funda la accion para demandar el resarcimiento, no puede
confundirse con las responsabilidades civiles nacidas de delito,
siquiera exista en este, sea el cual sea, una culpa rodeada de
notas agravatorias que motivan sanciones penales, mas o menos
severas. La lesion causada por delito o falta en los derechos
civiles, requiere restituciones, reparaciones o indemnizaciones, que
cual la pena misma ataen al orden publico; por tal motivo vienen
encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si
por esta via se enmiendan los quebrantos y menoscabos, el
agraviado excusa procurar el ya conseguido desagravio; pero esta
eventual coincidencia de los efectos, no borra la diversidad
originaria de las acciones civiles para pedir indemnizacion.
Estas, para el caso actual (prescindiendo de culpas contractuales,
que no vendrian a cuento y que tiene otro regimen), dimanan,
segun el articulo 1902 del Codigo Civil, de toda accion u omision,
causante de daos o perjuicios, en que intervenga culpa o
negligencia. Es trivial que acciones semejantes son ejercitadas
ante los Tribunales de lo civil cotidianamente, sin que la Justicia
punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21
y 121 al 128 del Codigo Penal, atentos al espiritu y a los fines
sociales y politicos del mismo, desenvuelven y ordenan la materia
de responsabilidades civiles nacidas de delito, en terminos
separados del regimen por ley comun de la culpa que se denomina
aquiliana, por alusion a precedentes legislativos del Corpus Juris.
Seria intempestivo un paralelo entre aquellas ordenaciones, y la de
la obligacion de indemnizar a titulo de culpa civil; pero viene al
caso y es necesaria una de las diferenciaciones que en el tal
paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su
modo las responsabilidades civiles, entre los que sean por diversos
conceptos culpables del delito o falta, las hacen extensivas a las
empresas y los establecimientos al servicio de los cuales estan los
delincuentes; pero con caracter subsidiario, o sea, segun el texto
literal, en defecto de los que sean responsables criminalmente. No
coincide en ello el Codigo Civil, cuyo articulo 1903, dice; La
obligacion que impone el articulo anterior es exigible, no solo por
los actos y omisiones propios, sino por los de aquellas personas de
quienes se debe responder; personas en la enumeracion de las
cuales figuran los dependientes y empleados de los
establecimientos o empresas, sea por actos del servicio, sea con
ocasion de sus funciones. Por esto acontece, y se observa en la
jurisprudencia, que las empresas, despues de intervenir en las
causas criminales con el caracter subsidiario de su responsabilidad
civil por razon del delito, son demandadas y condenadas directa y
aisladamente, cuando se trata de la obligacion, ante los tribunales
civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y formando
verdadero postulado de nuestro regimen judicial la separacion
entre justicia punitiva y tribunales de lo civil, de suerte que tienen
unos y otros normas de fondo en distintos cuerpos legales, y
diferentes modos de proceder, habiendose, por aadidura,
abstenido de asistir al juicio criminal la Compaia del Ferrocarril
Cantabrico, que se reservo ejercitar sus acciones, parece innegable
que la de indemnizacion por los daos y perjuicios que le irrogo el
choque, no estuvo sub judice ante el Tribunal del Jurado, ni fue
sentenciada, sino que permanecio intacta, al pronunciarse el fallo
de 21 de marzo. Aun cuando el veredicto no hubiese sido de
inculpabilidad, mostrose mas arriba, que tal accion quedaba
legitimamente reservada para despues del proceso; pero al
declararse que no existio delito, ni responsabilidad dimanada de
delito, materia unica sobre que tenian jurisdiccion aquellos
juzgadores, se redobla el motivo para la obligacion civil ex lege, y
se patentiza mas y mas que la accion para pedir su cumplimiento
permanece incolume, extraa a la cosa juzgada.
As things are, apropos of the reality pure and simple of the facts, it
seems less tenable that there should be res judicata with regard to
the civil obligation for damages on account of the losses caused by
the collision of the trains. The title upon which the action for
reparation is based cannot be confused with the civil
responsibilities born of a crime, because there exists in the latter,
whatever each nature, a culpa surrounded with aggravating
aspects which give rise to penal measures that are more or less
severe. The injury caused by a felony or misdemeanor upon civil
rights requires restitutions, reparations, or indemnifications which,
like the penalty itself, affect public order; for this reason, they are
ordinarily entrusted to the office of the prosecuting attorney; and
it is clear that if by this means the losses and damages are
repaired, the injured party no longer desires to seek another relief;
but this coincidence of effects does not eliminate the peculiar
nature of civil actions to ask for indemnity.
Such civil actions in the present case (without referring to
contractual faults which are not pertinent and belong to another
scope) are derived, according to article 1902 of the Civil Code,
from every act or omission causing losses and damages in which
culpa or negligence intervenes. It is unimportant that such actions
are every day filed before the civil courts without the criminal
courts interfering therewith. Articles 18 to 21 and 121 to 128 of
the Penal Code, bearing in mind the spirit and the social and
political purposes of that Code, develop and regulate the matter of
civil responsibilities arising from a crime, separately from the
regime under common law, of culpa which is known as aquiliana,
in accordance with legislative precedent of the Corpus Juris. It
would be unwarranted to make a detailed comparison between the
former provisions and that regarding the obligation to indemnify
on account of civil culpa; but it is pertinent and necessary to point
out to one of such differences.
Articles 20 and 21 of the Penal Code, after distriburing in their own
way the civil responsibilities among those who, for different
reasons, are guilty of felony or misdemeanor, make such civil
responsibilities applicable to enterprises and establishments for
which the guilty parties render service, but with subsidiary
character, that is to say, according to the wording of the Penal
Code, in default of those who are criminally responsible. In this
regard, the Civil Code does not coincide because article 1903 says:
"The obligation imposed by the next preceding article is
demandable, not only for personal acts and omissions, but also for
those of persons for whom another is responsible." Among the
persons enumerated are the subordinates and employees of
establishments or enterprises, either for acts during their service
or on the occasion of their functions. It is for this reason that it
happens, and it is so observed in judicial decisions, that the
companies or enterprises, after taking part in the criminal cases
because of their subsidiary civil responsibility by reason of the
crime, are sued and sentenced directly and separately with regard
to the obligation, before the civil courts.
Seeing that the title of this obligation is different, and the
separation between punitive justice and the civil courts being a
true postulate of our judicial system, so that they have different
fundamental norms in different codes, as well as different modes
of procedure, and inasmuch as the Compaa del Ferrocarril
Cantabrico has abstained from taking part in the criminal case and
has reserved the right to exercise its actions, it seems undeniable
that the action for indemnification for the losses and damages
caused to it by the collision was not sub judice before the Tribunal
del Jurado, nor was it the subject of a sentence, but it remained
intact when the decision of March 21 was rendered. Even if the
 verdict had not been that of acquittal, it has already been shown
that such action had been legitimately reserved till after the
criminal prosecution; but because of the declaration of the non-
existence of the felony and the non-existence of the responsibility
arising from the crime, which was the sole subject matter upon
which the Tribunal del Jurado had jurisdiction, there is greater
reason for the civil obligation ex lege, and it becomes clearer that
the action for its enforcement remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the French Civil
Code, on which the Spanish Civil Code is largely based and whose
provisions on cuasi-delito or culpa extra-contractual are similar to those of
the Spanish Civil Code, says, referring to article 1384 of the French Civil
Code which corresponds to article 1903, Spanish Civil Code:
The action can be brought directly against the person responsible
(for another), without including the author of the act. The action
against the principal is accessory in the sense that it implies the
existence of a prejudicial act committed by the employee, but it is
not subsidiary in the sense that it can not be instituted till after the
judgment against the author of the act or at least, that it is
subsidiary to the principal action; the action for responsibility (of
the employer) is in itself a principal action. (Laurent, Principles of
French Civil Law, Spanish translation, Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429,
430), declares that the responsibility of the employer is principal and not
subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el articulo 1903 por
las acciones u omisiones de aquellas personas por las que se debe
responder, es subsidiaria? es principal? Para contestar a esta
pregunta es necesario saber, en primer lugar, en que se funda el
precepto legal. Es que realmente se impone una responsabilidad
por una falta ajena? Asi parece a primera vista; pero semejante
afirmacion seria contraria a la justicia y a la maxima universal,
segun la que las faltas son personales, y cada uno responde de
aquellas que le son imputables. La responsabilidad de que
tratamos se impone con ocasion de un delito o culpa, pero no por
causa de ellos, sino por causa del causi delito, esto es, de la
imprudencia o de la negligencia del padre, del tutor, del dueo o
director del establecimiento, del maestro, etc. Cuando cualquiera
de las personas que enumera el articulo citado (menores de edad,
incapacitados, dependientes, aprendices) causan un dao, la ley
presume que el padre, el tutor, el maestro, etc., han cometido una
falta de negligencia para prevenir o evitar el dao. Esta falta es la
que la ley castiga. No hay, pues, responsabilidad por un hecho
ajeno, sino en la apariencia; en realidad la responsabilidad se
exige por un hecho propio. La idea de que esa responsabilidad sea
subsidiaria es, por lo tanto, completamente inadmisible.
Question No. 1. Is the responsibility declared in article 1903 for
the acts or omissions of those persons for who one is responsible,
subsidiary or principal? In order to answer this question it is
necessary to know, in the first place, on what the legal provision is
based. Is it true that there is a responsibility for the fault of
another person? It seems so at first sight; but such assertion
would be contrary to justice and to the universal maxim that all
faults are personal, and that everyone is liable for those faults that
can be imputed to him. The responsibility in question is imposed
on the occasion of a crime or fault, but not because of the same,
but because of the cuasi-delito, that is to say, the imprudence or
negligence of the father, guardian, proprietor or manager of the
establishment, of the teacher, etc. Whenever anyone of the
persons enumerated in the article referred to (minors,
incapacitated persons, employees, apprentices) causes any
damage, the law presumes that the father, guardian, teacher, etc.
have committed an act of negligence in not preventing or avoiding
the damage. It is this fault that is condemned by the law. It is,
therefore, only apparent that there is a responsibility for the act of
another; in reality the responsibility exacted is for one's own act.
The idea that such responsibility is subsidiary is, therefore,
completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes
al Codigo Civil Espaol," says in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se responde solo
de su propia culpa, doctrina del articulo 1902; mas por excepcion,
se responde de la ajena respecto de aquellas personas con las que
media algun nexo o vinculo, que motiva o razona la
responsabilidad. Esta responsabilidad, es directa o es subsidiaria?
En el orden penal, el Codigo de esta clase distingue entre menores
e incapacitados y los demas, declarando directa la primera
(articulo 19) y subsidiaria la segunda (articulos 20 y 21); pero en
el orden civil, en el caso del articulo 1903, ha de entenderse
directa, por el tenor del articulo que impone la responsabilidad
precisamente "por los actos de aquellas personas de quienes se
deba responder."
That is to say, one is not responsible for the acts of others,
because one is liable only for his own faults, this being the doctrine
of article 1902; but, by exception, one is liable for the acts of
those persons with whom there is a bond or tie which gives rise to
the responsibility. Is this responsibility direct or subsidiary? In the
order of the penal law, the Penal Code distinguishes between
 minors and incapacitated persons on the one hand, and other
persons on the other, declaring that the responsibility for the
former is direct (article 19), and for the latter, subsidiary (articles
20 and 21); but in the scheme of the civil law, in the case of article
1903, the responsibility should be understood as direct, according
to the tenor of that articles, for precisely it imposes responsibility
"for the acts of those persons for whom one should be
responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that court
has upheld the principles above set forth: that a quasi-delict or culpa
extra-contractual is a separate and distinct legal institution, independent
from the civil responsibility arising from criminal liability, and that an
employer is, under article 1903 of the Civil Code, primarily and directly
responsible for the negligent acts of his employee.
One of the most important of those Spanish decisions is that of October
21, 1910. In that case, Ramon Lafuente died as the result of having been
run over by a street car owned by the "compaia Electric Madrilea de
Traccion." The conductor was prosecuted in a criminal case but he was
acquitted. Thereupon, the widow filed a civil action against the street car
company, paying for damages in the amount of 15,000 pesetas. The lower
court awarded damages; so the company appealed to the Supreme
Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code
because by final judgment the non-existence of fault or negligence had
been declared. The Supreme Court of Spain dismissed the appeal, saying:
Considerando que el primer motivo del recurso se funda en el
equivocado supuesto de que el Tribunal a quo, al condonar a la
compaia Electrica Madrilea al pago del dao causado con la
muerte de Ramon La fuente Izquierdo, desconoce el valor y
efectos juridicos de la sentencia absolutoria deictada en la causa
criminal que se siguio por el mismo hecho, cuando es lo cierto que
de este han conocido las dos jurisdicciones bajo diferentes as
pectos, y como la de lo criminal declrao dentro de los limites de su
competencia que el hecho de que se trata no era constitutivo de
delito por no haber mediado descuido o negligencia graves, lo que
no excluye, siendo este el unico fundamento del fallo absolutorio,
el concurso de la culpa o negligencia no califacadas, fuente de
obligaciones civiles segun el articulo 1902 del Codigo, y que
alcanzan, segun el 1903, netre otras perosnas, a los Directores de
establecimientos o empresas por los daos causados por sus
dependientes en determinadas condiciones, es manifesto que la de
lo civil, al conocer del mismo hehco baho este ultimo aspecto y al
condenar a la compaia recurrente a la indemnizacion del dao
causado por uno de sus empleados, lejos de infringer los
mencionados textos, en relacion con el articulo 116 de la Ley de
Enjuciamiento Criminal, se ha atenido estrictamente a ellos, sin
invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en
lo mas minimo el fallo recaido en la causa.
Considering that the first ground of the appeal is based on the
mistaken supposition that the trial court, in sentencing
the Compaia Madrilea to the payment of the damage caused by
the death of Ramon Lafuente Izquierdo, disregards the value and
juridical effects of the sentence of acquittal rendered in the
criminal case instituted on account of the same act, when it is a
fact that the two jurisdictions had taken cognizance of the same
act in its different aspects, and as the criminal jurisdiction declared
within the limits of its authority that the act in question did not
constitute a felony because there was no grave carelessness or
negligence, and this being the only basis of acquittal, it does no
exclude the co-existence of fault or negligence which is not
qualified, and is a source of civil obligations according to article
1902 of the Civil Code, affecting, in accordance with article 1903,
among other persons, the managers of establishments or
enterprises by reason of the damages caused by employees under
certain conditions, it is manifest that the civil jurisdiccion in taking
cognizance of the same act in this latter aspect and in ordering the
company, appellant herein, to pay an indemnity for the damage
caused by one of its employees, far from violating said legal
provisions, in relation with article 116 of the Law of Criminal
Procedure, strictly followed the same, without invading attributes
which are beyond its own jurisdiction, and without in any way
contradicting the decision in that cause. (Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either separately or
with the street car company. This is precisely what happens in the present
case: the driver, Fontanilla, has not been sued in a civil action, either
alone or with his employer.
Second. That the conductor had been acquitted of grave criminal
negligence, but the Supreme Tribunal of Spain said that this did not
exclude the co-existence of fault or negligence, which is not qualified, on
the part of the conductor, under article 1902 of the Civil Code. In the
present case, the taxi driver was found guilty of criminal negligence, so
that if he had even sued for his civil responsibility arising from the crime,
he would have been held primarily liable for civil damages, and Barredo
would have been held subsidiarily liable for the same. But the plaintiffs are
directly suing Barredo, on his primary responsibility because of his own
presumed negligence which he did not overcome under article 1903.
Thus, there were two liabilities of Barredo: first, the subsidiary one
because of the civil liability of the taxi driver arising from the latter's
criminal negligence; and, second, Barredo's primary liability as an
employer under article 1903. The plaintiffs were free to choose which
course to take, and they preferred the second remedy. In so doing, they
were acting within their rights. It might be observed in passing, that the
plaintiff choose the more expeditious and effective method of relief,
because Fontanilla was either in prison, or had just been released, and
besides, he was probably without property which might be seized in
enforcing any judgment against him for damages.
Third. That inasmuch as in the above sentence of October 21, 1910, the
employer was held liable civilly, notwithstanding the acquittal of the
employee (the conductor) in a previous criminal case, with greater reason
should Barredo, the employer in the case at bar, be held liable for
damages in a civil suit filed against him because his taxi driver had been
convicted. The degree of negligence of the conductor in the Spanish case
cited was less than that of the taxi driver, Fontanilla, because the former
was acquitted in the previous criminal case while the latter was found
guilty of criminal negligence and was sentenced to an indeterminate
sentence of one year and one day to two years of prision correccional.
(See also Sentence of February 19, 1902, which is similar to the one
above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14, 1919,
an action was brought against a railroad company for damages because
the station agent, employed by the company, had unjustly
and fraudulently, refused to deliver certain articles consigned to the
plaintiff. The Supreme Court of Spain held that this action was properly
under article 1902 of the Civil Code, the court saying:
Considerando que la sentencia discutida reconoce, en virtud de los
hechos que consigna con relacion a las pruebas del pleito: 1., que
las expediciones facturadas por la compaia ferroviaria a la
consignacion del actor de las vasijas vacias que en su demanda
relacionan tenian como fin el que este las devolviera a sus
remitentes con vinos y alcoholes; 2., que llegadas a su destino
tales mercanias no se quisieron entregar a dicho consignatario por
el jefe de la estacion sin motivo justificado y con intencion dolosa,
y 3., que la falta de entrega de estas expediciones al tiempo de
reclamarlas el demandante le originaron daos y perjuicios en
cantidad de bastante importancia como expendedor al por mayor
que era de vinos y alcoholes por las ganancias que dejo de obtener
al verse privado de servir los pedidos que se le habian hecho por
los remitentes en los envases:
Considerando que sobre esta base hay necesidad de estimar los
The above case is pertinent because it shows that the same act may come
cuatro motivos que integran este recurso, porque la demanda
under both the Penal Code and the Civil Code. In that case, the action of
inicial del pleito a que se contrae no contiene accion que nazca del
the agent was unjustified and fraudulent and therefore could have been
incumplimiento del contrato de transporte, toda vez que no se
funda en el retraso de la llegada de las mercancias ni de ningun
otro vinculo contractual entre las partes contendientes, careciendo,
por tanto, de aplicacion el articulo 371 del Codigo de Comercio, en
que principalmente descansa el fallo recurrido, sino que se limita a
pedir la reparaction de los daos y perjuicios producidos en el
patrimonio del actor por la injustificada y dolosa negativa del
porteador a la entrega de las mercancias a su nombre
consignadas, segun lo reconoce la sentencia, y cuya
responsabilidad esta claramente sancionada en el articulo 1902 del
Codigo Civil, que obliga por el siguiente a la Compaia demandada
como ligada con el causante de aquellos por relaciones de caracter
economico y de jurarquia administrativa.
Considering that the sentence, in question recognizes, in virtue of
the facts which it declares, in relation to the evidence in the case:
(1) that the invoice issued by the railroad company in favor of the
plaintiff contemplated that the empty receptacles referred to in the
complaint should be returned to the consignors with wines and
liquors; (2) that when the said merchandise reached their
destination, their delivery to the consignee was refused by the
station agent without justification and with fraudulent intent, and
(3) that the lack of delivery of these goods when they were
demanded by the plaintiff caused him losses and damages of
considerable importance, as he was a wholesale vendor of wines
and liquors and he failed to realize the profits when he was unable
to fill the orders sent to him by the consignors of the receptacles:
Considering that upon this basis there is need of upholding the
four assignments of error, as the original complaint did not contain
any cause of action arising from non-fulfillment of a contract of
transportation, because the action was not based on the delay of
the goods nor on any contractual relation between the parties
litigant and, therefore, article 371 of the Code of Commerce, on
which the decision appealed from is based, is not applicable; but it
limits to asking for reparation for losses and damages produced on
the patrimony of the plaintiff on account of the unjustified
and fraudulent refusal of the carrier to deliver the goods consigned
to the plaintiff as stated by the sentence, and the carrier's
responsibility is clearly laid down in article 1902 of the Civil
Code which binds, in virtue of the next article, the defendant
company, because the latter is connected with the person who
caused the damage by relations of economic character and by
administrative hierarchy. (Emphasis supplied.)
the subject of a criminal action. And yet, it was held to be also a proper
subject of a civil action under article 1902 of the Civil Code. It is also to be
noted that it was the employer and not the employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359,
362-365 [year 1907]), the trial court awarded damages to the plaintiff, a
laborer of the defendant, because the latter had negligently failed to repair
a tramway in consequence of which the rails slid off while iron was being
transported, and caught the plaintiff whose leg was broken. This Court
held:
It is contended by the defendant, as its first defense to the action
that the necessary conclusion from these collated laws is that the
remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made
primarily liable and his employer held only subsidiarily to him.
According to this theory the plaintiff should have procured the
arrest of the representative of the company accountable for not
repairing the track, and on his prosecution a suitable fine should
have been imposed, payable primarily by him and secondarily by
his employer.
This reasoning misconceived the plan of the Spanish codes upon
this subject. Article 1093 of the Civil Code makes obligations
arising from faults or negligence not punished by the law, subject
to the provisions of Chapter II of Title XVI. Section 1902 of that
chapter reads:
"A person who by an act or omission causes damage to
another when there is fault or negligence shall be obliged
to repair the damage so done.
"SEC. 1903. The obligation imposed by the preceeding
article is demandable, not only for personal acts and
omissions, but also for those of the persons for whom they
should be responsible.
"The father, and on his death or incapacity, the mother, is
liable for the damages caused by the minors who live with
them.
xxx xxx xxx
"Owners or directors of an establishment or enterprise are
equally liable for the damages caused by their employees
in the service of the branches in which the latter may be
employed or in the performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all
the diligence of a good father of a family to avoid the
damage."
As an answer to the argument urged in this particular action it
may be sufficient to point out that nowhere in our general statutes
is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one 'not
punished by the laws' and falls under civil rather than criminal
jurisprudence. But the answer may be a broader one. We should
be reluctant, under any conditions, to adopt a forced construction
of these scientific codes, such as is proposed by the defendant,
that would rob some of these articles of effect, would shut out
litigants against their will from the civil courts, would make the
assertion of their rights dependent upon the selection for
prosecution of the proper criminal offender, and render recovery
doubtful by reason of the strict rules of proof prevailing in criminal
actions. Even if these articles had always stood alone, such a
construction would be unnecessary, but clear light is thrown upon
their meaning by the provisions of the Law of Criminal Procedure
of Spain (Ley de Enjuiciamiento Criminal), which, though never in
actual force in these Islands, was formerly given a suppletory or
explanatory effect. Under article 111 of this law, both classes of
action, civil and criminal, might be prosecuted jointly or
separately, but while the penal action was pending the civil was
suspended. According to article 112, the penal action once started,
the civil remedy should be sought therewith, unless it had been
waived by the party injured or been expressly reserved by him for
civil proceedings for the future. If the civil action alone was
prosecuted, arising out of a crime that could be enforced only on
private complaint, the penal action thereunder should be
extinguished. These provisions are in harmony with those of
articles 23 and 133 of our Penal Code on the same subject.
An examination of this topic might be carried much further, but
the citation of these articles suffices to show that the civil liability
was not intended to be merged in the criminal nor even to be
suspended thereby, except as expressly provided in the law.
Where an individual is civilly liable for a negligent act or omission,
it is not required that the injured party should seek out a third
 person criminally liable whose prosecution must be a condition
precedent to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an
employer may be regarded as subsidiary in respect of criminal
actions against his employees only while they are in process of
prosecution, or in so far as they determine the existence of the
criminal act from which liability arises, and his obligation under the
civil law and its enforcement in the civil courts is not barred
thereby unless by the election of the injured person. Inasmuch as
no criminal proceeding had been instituted, growing our of the
accident in question, the provisions of the Penal Code can not
affect this action. This construction renders it unnecessary to
finally determine here whether this subsidiary civil liability in penal
actions has survived the laws that fully regulated it or has been
abrogated by the American civil and criminal procedure now in
force in the Philippines.
The difficulty in construing the articles of the code above cited in
this case appears from the briefs before us to have arisen from the
interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of
offenses in articles 568 and 590 of the Penal Code. It has been
shown that the liability of an employer arising out of his relation to
his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of
articles 1902 and 1093. More than this, however, it cannot be said
to fall within the class of acts unpunished by the law, the
consequence of which are regulated by articles 1902 and 1903 of
the Civil Code. The acts to which these articles are applicable are
understood to be those not growing out of pre-existing duties of
the parties to one another. But where relations already formed
give rise to duties, whether springing from contract or quasi
contract, then breaches of those duties are subject to articles
1101, 1103, and 1104 of the same code. A typical application of
this distinction may be found in the consequences of a railway
accident due to defective machinery supplied by the employer. His
liability to his employee would arise out of the contract of
employment, that to the passengers out of the contract for
passage, while that to the injured bystander would originate in the
negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8
of 9-year-old child Salvador Bona brought a civil action against Moreta to
recover damages resulting from the death of the child, who had been run
over by an automobile driven and managed by the defendant. The trial
court rendered judgment requiring the defendant to pay the plaintiff the
sum of P1,000 as indemnity: This Court in affirming the judgment, said in
part:
If it were true that the defendant, in coming from the southern
part of Solana Street, had to stop his auto before crossing Real
Street, because he had met vehicles which were going along the
latter street or were coming from the opposite direction along
Solana Street, it is to be believed that, when he again started to
run his auto across said Real Street and to continue its way along
Solana Street northward, he should have adjusted the speed of the
auto which he was operating until he had fully crossed Real Street
and had completely reached a clear way on Solana Street. But, as
the child was run over by the auto precisely at the entrance of
Solana Street, this accident could not have occurred if the auto
had been running at a slow speed, aside from the fact that the
defendant, at the moment of crossing Real Street and entering
Solana Street, in a northward direction, could have seen the child
in the act of crossing the latter street from the sidewalk on the
right to that on the left, and if the accident had occurred in such a
way that after the automobile had run over the body of the child,
and the child's body had already been stretched out on the
ground, the automobile still moved along a distance of about 2
meters, this circumstance shows the fact that the automobile
entered Solana Street from Real Street, at a high speed without
the defendant having blown the horn. If these precautions had
been taken by the defendant, the deplorable accident which
caused the death of the child would not have occurred.
It will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the death of
the child was punishable by the Penal Code. Here is therefore a clear
instance of the same act of negligence being a proper subject-matter
either of a criminal action with its consequent civil liability arising from a
crime or of an entirely separate and independent civil action for fault or
negligence under article 1902 of the Civil Code. Thus, in this jurisdiction,
the separate individually of a cuasi-delito or culpa aquiliana under the Civil
Code has been fully and clearly recognized, even with regard to a
negligent act for which the wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after such a conviction, he
could have been sued for this civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply the same
doctrine. In Bernal and Enverso vs. House and Tacloban Electric & Ice
Plant, Ltd., 54 Phil., 327, the parents of the five-year-old child, Purificacion
Bernal, brought a civil action to recover damages for the child's death as a
result of burns caused by the fault and negligence of the defendants. On
the evening of April 10, 1925, the Good Friday procession was held in
Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal
had come from another municipality to attend the same. After the
procession the mother and the daughter with two others were passing
along Gran Capitan Street in front of the offices of the Tacloban Electric &
Ice Plant, Ltd., owned by defendants J. V. House, when an automobile
appeared from the opposite direction. The little girl, who was slightly
ahead of the rest, was so frightened by the automobile that she turned to
run, but unfortunately she fell into the street gutter where hot water from
the electric plant was flowing. The child died that same night from the
burns. The trial courts dismissed the action because of the contributory
negligence of the plaintiffs. But this Court held, on appeal, that there was
no contributory negligence, and allowed the parents P1,000 in damages
from J. V. House who at the time of the tragic occurrence was the holder
of the franchise for the electric plant. This Court said in part:
Although the trial judge made the findings of fact hereinbefore
outlined, he nevertheless was led to order the dismissal of the
action because of the contributory negligence of the plaintiffs. It is
from this point that a majority of the court depart from the stand
taken by the trial judge. The mother and her child had a perfect
right to be on the principal street of Tacloban, Leyte, on the
evening when the religious procession was held. There was
nothing abnormal in allowing the child to run along a few paces in
advance of the mother. No one could foresee the coincidence of an
automobile appearing and of a frightened child running and falling
into a ditch filled with hot water. The doctrine announced in the
much debated case of Rakes vs. Atlantic Gulf and Pacific Co.
([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil Code
must again be enforced. The contributory negligence of the child
and her mother, if any, does not operate as a bar to recovery, but
in its strictest sense could only result in reduction of the damages.
It is most significant that in the case just cited, this Court specifically
applied article 1902 of the Civil Code. It is thus that although J. V. House
could have been criminally prosecuted for reckless or simple negligence
and not only punished but also made civilly liable because of his criminal
negligence, nevertheless this Court awarded damages in an independent
civil action for fault or negligence under article 1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action
was for damages for the death of the plaintiff's daughter alleged to have
been caused by the negligence of the servant in driving an automobile
over the child. It appeared that the cause of the mishap was a defect in
the steering gear. The defendant Leynes had rented the automobile from
the International Garage of Manila, to be used by him in carrying
passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the
lower court to pay P1,000 as damages to the plaintiff. On appeal this Court
reversed the judgment as to Leynes on the ground that he had shown that
the exercised the care of a good father of a family, thus overcoming the
presumption of negligence under article 1903. This Court said:
As to selection, the defendant has clearly shown that he exercised
the care and diligence of a good father of a family. He obtained the
machine from a reputable garage and it was, so far as appeared,
in good condition. The workmen were likewise selected from a
standard garage, were duly licensed by the Government in their
particular calling, and apparently thoroughly competent. The
machine had been used but a few hours when the accident
occurred and it is clear from the evidence that the defendant had
no notice, either actual or constructive, of the defective condition
of the steering gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability in cases
of negligence, but also provides when the liability shall cease. It
says:
"The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all
the diligence of a good father of a family to avoid the
damage."
From this article two things are apparent: (1) That when an injury
is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on
the part of the matter or employer either in the selection of the
servant or employee, or in supervision over him after the
selection, or both; and (2) that presumption is juris tantum and
not juris et de jure, and consequently, may be rebutted. It follows
necessarily that if the employer shows to the satisfaction of the
court that in selection and supervision he has exercised the care
and diligence of a good father of a family, the presumption is
overcome and he is relieve from liability.
This theory bases the responsibility of the master ultimately on his
own negligence and not on that of his servant.
The doctrine of the case just cited was followed by this Court in Cerf vs.
Medel (33 Phil., 37 [year 1915]). In the latter case, the complaint alleged
that the defendant's servant had so negligently driven an automobile,
which was operated by defendant as a public vehicle, that said automobile
struck and damaged the plaintiff's motorcycle. This Court, applying article
1903 and following the rule in Bahia vs. Litonjua and Leynes, said in part
(p. 41) that:
 The master is liable for the negligent acts of his servant where he
is the owner or director of a business or enterprise and the
negligent acts are committed while the servant is engaged in his
master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and
Leynes was Cuison vs. Norton & Harrison Co., 55 Phil., 18 (year 1930).
The latter case was an action for damages brought by Cuison for the death
of his seven-year-old son Moises. The little boy was on his way to school
with his sister Marciana. Some large pieces of lumber fell from a truck and
pinned the boy underneath, instantly killing him. Two youths, Telesforo
Binoya and Francisco Bautista, who were working for Ora, an employee of
defendant Norton & Harrison Co., pleaded guilty to the crime of homicide
through reckless negligence and were sentenced accordingly. This Court,
applying articles 1902 and 1903, held:
The basis of civil law liability is not respondent superior but the
relationship of pater familias. This theory bases the liability of the
master ultimately on his own negligence and not on that of his
servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624;
Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517
(year 1930) the plaintiff brought an action for damages for the demolition
of its wharf, which had been struck by the steamer Helen C belonging to
the defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the time the plaintiff's
wharf collapsed was a duly licensed captain, authorized to navigate
and direct a vessel of any tonnage, and that the appellee
contracted his services because of his reputation as a captain,
according to F. C. Cadwallader. This being so, we are of the
opinion that the presumption of liability against the defendant has
been overcome by the exercise of the care and diligence of a good
father of a family in selecting Captain Lasa, in accordance with the
doctrines laid down by this court in the cases cited above, and the
defendant is therefore absolved from all liability.
It is, therefore, seen that the defendant's theory about his secondary
liability is negatived by the six cases above set forth. He is, on the
authority of these cases, primarily and directly responsible in damages
under article 1903, in relation to article 1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by the defendant.
We study first, City of Manila vs. Manila Electric Co., 52 Phil., 586 (year
1928). A collision between a truck of the City of Manila and a street car of
the Manila Electric Co. took place on June 8, 1925. The truck was damaged
in the amount of P1,788.27. Sixto Eustaquio, the motorman, was
prosecuted for the crime of damage to property and slight injuries through
reckless imprudence. He was found guilty and sentenced to pay a fine of
P900, to indemnify the City of Manila for P1,788.27, with subsidiary
imprisonment in case of insolvency. Unable to collect the indemnity from
Eustaquio, the City of Manila filed an action against the Manila Electric
Company to obtain payment, claiming that the defendant was subsidiarily
liable. The main defense was that the defendant had exercised the
diligence of a good father of a family to prevent the damage. The lower
court rendered judgment in favor of the plaintiff. This Court held, in part,
that this case was governed by the Penal Code, saying:
With this preliminary point out of the way, there is no escaping the
conclusion that the provisions of the Penal Code govern. The Penal
Code in easily understandable language authorizes the
determination of subsidiary liability. The Civil Code negatives its
application by providing that civil obligations arising from crimes or
misdemeanors shall be governed by the provisions of the Penal
Code. The conviction of the motorman was a misdemeanor falling
under article 604 of the Penal Code. The act of the motorman was
not a wrongful or negligent act or omission not punishable by law.
Accordingly, the civil obligation connected up with the Penal Code
and not with article 1903 of the Civil Code. In other words, the
Penal Code affirms its jurisdiction while the Civil Code negatives its
jurisdiction. This is a case of criminal negligence out of which civil
liability arises and not a case of civil negligence.
xxx xxx xxx
Our deduction, therefore, is that the case relates to the Penal Code
and not to the Civil Code. Indeed, as pointed out by the trial
judge, any different ruling would permit the master to escape scot-
free by simply alleging and proving that the master had exercised
all diligence in the selection and training of its servants to prevent
the damage. That would be a good defense to a strictly civil action,
but might or might not be to a civil action either as a part of or
predicated on conviction for a crime or misdemeanor. (By way of
parenthesis, it may be said further that the statements here made
are offered to meet the argument advanced during our
deliberations to the effect that article 0902 of the Civil Code should
be disregarded and codal articles 1093 and 1903 applied.)
It is not clear how the above case could support the defendant's
proposition, because the Court of Appeals based its decision in the present
case on the defendant's primary responsibility under article 1903 of the
Civil Code and not on his subsidiary liability arising from Fontanilla's
criminal negligence. In other words, the case of City of Manila vs. Manila
Electric Co., supra, is predicated on an entirely different theory, which is
the subsidiary liability of an employer arising from a criminal act of his
employee, whereas the foundation of the decision of the Court of Appeals
in the present case is the employer's primary liability under article 1903 of
the Civil Code. We have already seen that this is a proper and independent
remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by
the defendant. A motorman in the employ of the Manila Electric Company
had been convicted o homicide by simple negligence and sentenced,
among other things, to pay the heirs of the deceased the sum of P1,000.
An action was then brought to enforce the subsidiary liability of the
defendant as employer under the Penal Code. The defendant attempted to
show that it had exercised the diligence of a good father of a family in
selecting the motorman, and therefore claimed exemption from civil
liability. But this Court held:
In view of the foregoing considerations, we are of opinion and so
hold, (1) that the exemption from civil liability established in
article 1903 of the Civil Code for all who have acted with the
diligence of a good father of a family, is not applicable to the
subsidiary civil liability provided in article 20 of the Penal Code.
The above case is also extraneous to the theory of the defendant in the
instant case, because the action there had for its purpose the enforcement
of the defendant's subsidiary liability under the Penal Code, while in the
case at bar, the plaintiff's cause of action is based on the defendant's
primary and direct responsibility under article 1903 of the Civil Code. In
fact, the above case destroys the defendant's contention because that
decision illustrates the principle that the employer's primary responsibility
under article 1903 of the Civil Code is different in character from his
subsidiary liability under the Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant
has failed to recognize the distinction between civil liability arising from a
crime, which is governed by the Penal Code, and the responsibility
for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise
failed to give the importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327).
That case need not be set forth. Suffice it to say that the question involved
was also civil liability arising from a crime. Hence, it is as inapplicable as
the two cases above discussed.
The foregoing authorities clearly demonstrate the separate individuality
of cuasi-delitos or culpa aquiliana under the Civil Code. Specifically they
show that there is a distinction between civil liability arising from criminal
negligence (governed by the Penal Code) and responsibility for fault or
negligence under articles 1902 to 1910 of the Civil Code, and that the
same negligent act may produce either a civil liability arising from a crime
under the Penal Code, or a separate responsibility for fault or negligence
under articles 1902 to 1910 of the Civil Code. Still more concretely, the
authorities above cited render it inescapable to conclude that the employer
in this case the defendant-petitioner is primarily and directly liable
under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily
be sufficient to dispose of this case. But inasmuch as we are announcing
doctrines that have been little understood in the past, it might not be
inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless
but also simple negligence. If we were to hold that articles 1902 to 1910
of the Civil Code refer only to fault or negligence not punished by law,
according to the literal import of article 1093 of the Civil Code, the legal
institution of culpa aquiliana would have very little scope and application in
actual life. Death or injury to persons and damage to property through any
degree of negligence even the slightest would have to be indemnified
only through the principle of civil liability arising from a crime. In such a
state of affairs, what sphere would remain for cuasi-delito or culpa
aquiliana? We are loath to impute to the lawmaker any intention to bring
about a situation so absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter that killeth rather
than the spirit that giveth life. We will not use the literal meaning of the
law to smother and render almost lifeless a principle of such ancient origin
and such full-grown development as culpa aquiliana or cuasi-delito, which
is conserved and made enduring in articles 1902 to 1910 of the Spanish
Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt
beyond reasonable doubt is required, while in a civil case, preponderance
of evidence is sufficient to make the defendant pay in damages. There are
numerous cases of criminal negligence which can not be shown beyond
reasonable doubt, but can be proved by a preponderance of evidence. In
such cases, the defendant can and should be made responsible in a civil
action under articles 1902 to 1910 of the Civil Code. Otherwise, there
would be many instances of unvindicated civil wrongs. Ubi jus ibi
remedium.
Thirdly, to hold that there is only one way to make defendant's liability
effective, and that is, to sue the driver and exhaust his (the latter's)
property first, would be tantamount to compelling the plaintiff to follow a
devious and cumbersome method of obtaining relief. True, there is such a
remedy under our laws, but there is also a more expeditious way, which is
based on the primary and direct responsibility of the defendant under
article 1903 of the Civil Code. Our view of the law is more likely to
facilitate remedy for civil wrongs, because the procedure indicated by the It is high time we caused the stream of quasi-delict or culpa aquiliana to
defendant is wasteful and productive of delay, it being a matter of flow on its own natural channel, so that its waters may no longer be
common knowledge that professional drivers of taxis and similar public diverted into that of a crime under the Penal Code. This will, it is believed,
conveyance usually do not have sufficient means with which to pay make for the better safeguarding of private rights because it re-establishes
damages. Why, then, should the plaintiff be required in all cases to go an ancient and additional remedy, and for the further reason that an
through this roundabout, unnecessary, and probably useless procedure? In independent civil action, not depending on the issues, limitations and
construing the laws, courts have endeavored to shorten and facilitate the results of a criminal prosecution, and entirely directed by the party
pathways of right and justice. wronged or his counsel, is more likely to secure adequate and efficacious
redress.
At this juncture, it should be said that the primary and direct responsibility
of employers and their presumed negligence are principles calculated to In view of the foregoing, the judgment of the Court of Appeals should be
protect society. Workmen and employees should be carefully chosen and and is hereby affirmed, with costs against the defendant-petitioner.
supervised in order to avoid injury to the public. It is the masters or
employers who principally reap the profits resulting from the services of
these servants and employees. It is but right that they should guarantee
the latter's careful conduct for the personnel and patrimonial safety of
others. As Theilhard has said, "they should reproach themselves, at least,
some for their weakness, others for their poor selection and all for their
negligence." And according to Manresa, "It is much more equitable and
just that such responsibility should fall upon the principal or director who
could have chosen a careful and prudent employee, and not upon the
injured person who could not exercise such selection and who used such
employee because of his confidence in the principal or director." (Vol. 12,
p. 622, 2nd Ed.) Many jurists also base this primary responsibility of the
employer on the principle of representation of the principal by the agent.
Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before
third persons the employer and employee "vienen a ser como una sola
personalidad, por refundicion de la del dependiente en la de quien le
emplea y utiliza." ("become as one personality by the merging of the
person of the employee in that of him who employs and utilizes him.") All
these observations acquire a peculiar force and significance when it comes
to motor accidents, and there is need of stressing and accentuating the
responsibility of owners of motor vehicles.

Fourthly, because of the broad sweep of the provisions of both the Penal
Code and the Civil Code on this subject, which has given rise to the
overlapping or concurrence of spheres already discussed, and for lack of
understanding of the character and efficacy of the action for culpa
aquiliana, there has grown up a common practice to seek damages only by
virtue of the civil responsibility arising from a crime, forgetting that there
is another remedy, which is by invoking articles 1902-1910 of the Civil
Code. Although this habitual method is allowed by our laws, it has
nevertheless rendered practically useless and nugatory the more
expeditious and effective remedy based on culpa aquiliana or culpa extra-
contractual. In the present case, we are asked to help perpetuate this
usual course. But we believe it is high time we pointed out to the harm
done by such practice and to restore the principle of responsibility for fault
or negligence under articles 1902 et seq. of the Civil Code to its full rigor.
G.R. No. L-24803 May 26, 1977 WHEREFORE, the Order of this Court on December 8, 1964
PEDRO ELCANO and PATRICIA ELCANO, in their capacity as is hereby reconsidered by ordering the dismissal of the
Ascendants of Agapito Elcano, deceased, plaintiffs-appellants, above entitled case.
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural SO ORDERED.
Guardian of said minor, defendants-appellees.
Quezon City, Philippines, January 29, 1965. (p. 40, Record
Cruz & Avecilla for appellants.
[p. 21, Record on Appeal.)
Marvin R. Hill & Associates for appellees.

Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are

BARREDO, J.:
presenting for Our resolution the following assignment of errors:

Appeal from the order of the Court of First Instance of Quezon City dated
THE LOWER COURT ERRED IN DISMISSING THE CASE BY
January 29, 1965 in Civil Case No. Q-8102, Pedro Elcano et al. vs.
UPHOLDING THE CLAIM OF DEFENDANTS THAT -
Reginald Hill et al. dismissing, upon motion to dismiss of defendants, the
complaint of plaintiffs for recovery of damages from defendant Reginald
Hill, a minor, married at the time of the occurrence, and his father, the I
defendant Marvin Hill, with whom he was living and getting subsistence,
for the killing by Reginald of the son of the plaintiffs, named Agapito THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A
Elcano, of which, when criminally prosecuted, the said accused was VIOLATION OF SECTION 1, RULE 107, NOW RULE 111, OF
acquitted on the ground that his act was not criminal, because of "lack of THE REVISED RULES OF COURT, AND THAT SECTION 3(c)
intent to kill, coupled with mistake." OF RULE 111, RULES OF COURT IS APPLICABLE;

Actually, the motion to dismiss based on the following grounds: II

1. The present action is not only against but a violation of THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS
section 1, Rule 107, which is now Rule III, of the Revised NOW FINAL OR RES-ADJUDICTA;
Rules of Court;
III
2. The action is barred by a prior judgment which is now
final and or in res-adjudicata;
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO
2194 OF THE CIVIL CODE, ARE INAPPLICABLE IN THE
3. The complaint had no cause of action against defendant INSTANT CASE; and
Marvin Hill, because he was relieved as guardian of the
other defendant through emancipation by marriage. IV

(P. 23, Record [p. 4, Record on Appeal.]) THAT THE COMPLAINT STATES NO CAUSE OF ACTION
AGAINST DEFENDANT MARVIN HILL BECAUSE HE WAS
was first denied by the trial court. It was only upon motion for RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT
reconsideration of the defendants of such denial, reiterating the above THROUGH EMANCIPATION BY MARRIAGE. (page 4,
grounds that the following order was issued: Record.)

Considering the motion for reconsideration filed by the It appears that for the killing of the son, Agapito, of plaintiffs-appellants,
defendants on January 14, 1965 and after thoroughly defendant- appellee Reginald Hill was prosecuted criminally in Criminal
examining the arguments therein contained, the Court Case No. 5102 of the Court of First Instance of Quezon City. After due
finds the same to be meritorious and well-founded. trial, he was acquitted on the ground that his act was not criminal because
of "lack of intent to kill, coupled with mistake." Parenthetically, none of the
parties has favored Us with a copy of the decision of acquittal, presumably
because appellants do not dispute that such indeed was the basis stated in
the court's decision. And so, when appellants filed their complaint against
appellees Reginald and his father, Atty. Marvin Hill, on account of the
death of their son, the appellees filed the motion to dismiss above-referred
to.
As We view the foregoing background of this case, the two decisive issues
presented for Our resolution are:
1. Is the present civil action for damages barred by the acquittal of
Reginald in the criminal case wherein the action for civil liability, was not
reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied
against Atty. Hill, notwithstanding the undisputed fact that at the time of
the occurrence complained of. Reginald, though a minor, living with and
getting subsistenee from his father, was already legally married?
The first issue presents no more problem than the need for a reiteration
and further clarification of the dual character, criminal and civil, of fault or
negligence as a source of obligation which was firmly established in this
jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court
postulated, on the basis of a scholarly dissertation by Justice Bocobo on
the nature of culpa aquiliana in relation to culpa criminal or delito and
mere culpa or fault, with pertinent citation of decisions of the Supreme
Court of Spain, the works of recognized civilians, and earlier jurisprudence
of our own, that the same given act can result in civil liability not only
under the Penal Code but also under the Civil Code. Thus, the opinion
holds:
The, above case is pertinent because it shows that the
same act machinist. come under both the Penal Code and
the Civil Code. In that case, the action of the agent killeth
unjustified and fraudulent and therefore could have been
the subject of a criminal action. And yet, it was held to be
also a proper subject of a civil action under article 1902 of
the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued. (pp.
615-616, 73 Phil.). 1
It will be noticed that the defendant in the above case
could have been prosecuted in a criminal case because his
negligence causing the death of the child was punishable
by the Penal Code. Here is therefore a clear instance of the
same act of negligence being a proper subject matter
either of a criminal action with its consequent civil liability
arising from a crime or of an entirely separate and
independent civil action for fault or negligence under
article 1902 of the Civil Code. Thus, in this jurisdiction, the
separate individuality of a cuasi-delito or culpa aquiliana,
under the Civil Code has been fully and clearly recognized,
even with regard to a negligent act for which the
wrongdoer could have been prosecuted and convicted in a
criminal case and for which, after such a conviction, he
could have been sued for this civil liability arising from his
crime. (p. 617, 73 Phil.) 2
It is most significant that in the case just cited, this Court
specifically applied article 1902 of the Civil Code. It is thus
that although J. V. House could have been criminally
prosecuted for reckless or simple negligence and not only
punished but also made civilly liable because of his
criminal negligence, nevertheless this Court awarded
damages in an independent civil action for fault or
negligence under article 1902 of the Civil Code. (p. 618, 73
Phil.) 3
The legal provisions, authors, and cases already invoked
should ordinarily be sufficient to dispose of this case. But
inasmuch as we are announcing doctrines that have been
little understood, in the past, it might not he inappropriate
to indicate their foundations.
Firstly, the Revised Penal Code in articles 365 punishes not
only reckless but also simple negligence. If we were to
hold that articles 1902 to 1910 of the Civil Code refer only
to fault or negligence not punished by law, accordingly to
the literal import of article 1093 of the Civil Code, the legal
institution of culpa aquiliana would have very little scope
and application in actual life. Death or injury to persons
and damage to property- through any degree of negligence
- even the slightest - would have to be Idemnified only
through the principle of civil liability arising from a crime.
In such a state of affairs, what sphere would remain
for cuasi-delito or culpa aquiliana? We are loath to impute
to the lawmaker any intention to bring about a situation so
absurd and anomalous. Nor are we, in the interpretation of
the laws, disposed to uphold the letter that killeth rather
than the spirit that giveth life. We will not use the literal
meaning of the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is
 conserved and made enduring in articles 1902 to 1910 of
the Spanish Civil Code.
Secondary, to find the accused guilty in a criminal case,
proof of guilt beyond reasonable doubt is required, while in
a civil case, preponderance of evidence is sufficient to
make the defendant pay in damages. There are numerous
cases of criminal negligence which can not be shown
beyond reasonable doubt, but can be proved by a
preponderance of evidence. In such cases, the defendant
can and should be made responsible in a civil action under
articles 1902 to 1910 of the Civil Code. Otherwise. there
would be many instances of unvindicated civil wrongs. "Ubi
jus Idemnified remedium." (p. 620,73 Phil.)
Fourthly, because of the broad sweep of the provisions of
both the Penal Code and the Civil Code on this subject,
which has given rise to the overlapping or concurrence of
spheres already discussed, and for lack of understanding of
the character and efficacy of the action for culpa aquiliana,
there has grown up a common practice to seek damages
only by virtue of the civil responsibility arising from a
crime, forgetting that there is another remedy, which is by
invoking articles 1902-1910 of the Civil Code. Although
this habitual method is allowed by, our laws, it has
nevertheless rendered practically useless and nugatory the
more expeditious and effective remedy based on culpa
aquiliana or culpa extra-contractual. In the present case,
we are asked to help perpetuate this usual course. But we
believe it is high time we pointed out to the harms done by
such practice and to restore the principle of responsibility
for fault or negligence under articles 1902 et seq. of the
Civil Code to its full rigor. It is high time we caused the
stream of quasi-delict or culpa aquiliana to flow on its own
natural channel, so that its waters may no longer be
diverted into that of a crime under the Penal Code. This
will, it is believed, make for the better safeguarding or
private rights because it realtor, an ancient and additional
remedy, and for the further reason that an independent
civil action, not depending on the issues, limitations and
results of a criminal prosecution, and entirely directed by
the party wronged or his counsel, is more likely to secure
adequate and efficacious redress. (p. 621, 73 Phil.)
Contrary to an immediate impression one might get upon a reading of the
foregoing excerpts from the opinion in Garcia that the concurrence of the
Penal Code and the Civil Code therein referred to contemplate only acts of
negligence and not intentional voluntary acts - deeper reflection would
reveal that the thrust of the pronouncements therein is not so limited, but
that in fact it actually extends to fault or culpa. This can be seen in the
reference made therein to the Sentence of the Supreme Court of Spain of
February 14, 1919, supra, which involved a case of fraud or estafa, not a
negligent act. Indeed, Article 1093 of the Civil Code of Spain, in force here
at the time of Garcia, provided textually that obligations "which are
derived from acts or omissions in which fault or negligence, not punishable
by law, intervene shall be the subject of Chapter II, Title XV of this book
(which refers to quasi-delicts.)" And it is precisely the underline
qualification, "not punishable by law", that Justice Bocobo emphasized
could lead to an ultimo construction or interpretation of the letter of the
law that "killeth, rather than the spirit that giveth lift- hence, the ruling
that "(W)e will not use the literal meaning of the law to smother and
render almost lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or quasi-delito, which is conserved and
made enduring in articles 1902 to 1910 of the Spanish Civil Code." And so,
because Justice Bacobo was Chairman of the Code Commission that
drafted the original text of the new Civil Code, it is to be noted that the
said Code, which was enacted after the Garcia doctrine, no longer uses the
term, 11 not punishable by law," thereby making it clear that the concept
of culpa aquiliana includes acts which are criminal in character or in
violation of the penal law, whether voluntary or matter. Thus, the
corresponding provisions to said Article 1093 in the new code, which is
Article 1162, simply says, "Obligations derived from quasi-delicto shall be
governed by the provisions of Chapter 2, Title XVII of this Book, (on quasi-
delicts) and by special laws." More precisely, a new provision, Article 2177
of the new code provides:
ART. 2177. Responsibility for fault or negligence under the
preceding article is entirely separate and distinct from the
civil liability arising from negligence under the Penal Code.
But the plaintiff cannot recover damages twice for the
same act or omission of the defendant.
According to the Code Commission: "The foregoing provision (Article 2177)
through at first sight startling, is not so novel or extraordinary when we
consider the exact nature of criminal and civil negligence. The former is a
violation of the criminal law, while the latter is a "culpa aquiliana" or quasi-
delict, of ancient origin, having always had its own foundation and
individuality, separate from criminal negligence. Such distinction between
criminal negligence and "culpa extracontractual" or "cuasi-delito" has been
sustained by decision of the Supreme Court of Spain and maintained as
clear, sound and perfectly tenable by Maura, an outstanding Spanish
jurist. Therefore, under the proposed Article 2177, acquittal from an
accusation of criminal negligence, whether on reasonable doubt or not,
shall not be a bar to a subsequent civil action, not for civil liability arising
from criminal negligence, but for damages due to a quasi-delict or 'culpa
aquiliana'. But said article forestalls a double recovery.", (Report of the
Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts
of negligence, the same argument of Justice Bacobo about construction
that upholds "the spirit that giveth lift- rather than that which is literal that
killeth the intent of the lawmaker should be observed in applying the
same. And considering that the preliminary chapter on human relations of
the new Civil Code definitely establishes the separability and independence
of liability in a civil action for acts criminal in character (under Articles 29
to 32) from the civil responsibility arising from crime fixed by Article 100
of the Revised Penal Code, and, in a sense, the Rules of Court, under
Sections 2 and 3 (c), Rule 111, contemplate also the same separability, it
is "more congruent with the spirit of law, equity and justice, and more in
harmony with modern progress"- to borrow the felicitous relevant
language in Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as
We do hold, that Article 2176, where it refers to "fault or negligencia
covers not only acts "not punishable by law" but also acts criminal in
character, whether intentional and voluntary or negligent. Consequently, a
separate civil action lies against the offender in a criminal act, whether or
not he is criminally prosecuted and found guilty or acquitted, provided that
the offended party is not allowed, if he is actually charged also criminally,
to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards
made in the two cases vary. In other words, the extinction of civil liability
referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil
liability founded on Article 100 of the Revised Penal Code, whereas the
civil liability for the same act considered as a quasi-delict only and not as a
crime is not estinguished even by a declaration in the criminal case that
the criminal act charged has not happened or has not been committed by
the accused. Briefly stated, We here hold, in reiteration of Garcia,
that culpa aquiliana includes voluntary and negligent acts which may be
punishable by law.4
It results, therefore, that the acquittal of Reginal Hill in the criminal case
has not extinguished his liability for quasi-delict, hence that acquittal is not
a bar to the instant action against him.
Coming now to the second issue about the effect of Reginald's
emancipation by marriage on the possible civil liability of Atty. Hill, his
father, it is also Our considered opinion that the conclusion of appellees
that Atty. Hill is already free from responsibility cannot be upheld.
While it is true that parental authority is terminated upon emancipation of
the child (Article 327, Civil Code), and under Article 397, emancipation
takes place "by the marriage of the minor (child)", it is, however, also
clear that pursuant to Article 399, emancipation by marriage of the minor
is not really full or absolute. Thus "(E)mancipation by marriage or by
voluntary concession shall terminate parental authority over the child's
person. It shall enable the minor to administer his property as though he
were of age, but he cannot borrow money or alienate or encumber real
property without the consent of his father or mother, or guardian. He can
sue and be sued in court only with the assistance of his father, mother or
guardian."
Now under Article 2180, "(T)he obligation imposed by article 2176 is
demandable not only for one's own acts or omissions, but also for those of
persons for whom one is responsible. The father and, in case of his death
or incapacity, the mother, are responsible. The father and, in case of his
death or incapacity, the mother, are responsible for the damages caused
by the minor children who live in their company." In the instant case, it is
not controverted that Reginald, although married, was living with his
father and getting subsistence from him at the time of the occurrence in
question. Factually, therefore, Reginald was still subservient to and
dependent on his father, a situation which is not unusual.
It must be borne in mind that, according to Manresa, the reason behind
the joint and solidary liability of presuncion with their offending child under
Article 2180 is that is the obligation of the parent to supervise their minor
children in order to prevent them from causing damage to third
persons. 5 On the other hand, the clear implication of Article 399, in
providing that a minor emancipated by marriage may not, nevertheless,
sue or be sued without the assistance of the parents, is that such
emancipation does not carry with it freedom to enter into transactions or
do any act that can give rise to judicial litigation. (See Manresa, Id., Vol.
II, pp. 766-767, 776.) And surely, killing someone else invites judicial
action. Otherwise stated, the marriage of a minor child does not relieve
the parents of the duty to see to it that the child, while still a minor, does
not give answerable for the borrowings of money and alienation or
encumbering of real property which cannot be done by their minor married
child without their consent. (Art. 399; Manresa, supra.)
Accordingly, in Our considered view, Article 2180 applies to Atty. Hill
notwithstanding the emancipation by marriage of Reginald. However,
inasmuch as it is evident that Reginald is now of age, as a matter of
equity, the liability of Atty. Hill has become milling, subsidiary to that of
his son.
WHEREFORE, the order appealed from is reversed and the trial court is
ordered to proceed in accordance with the foregoing opinion. Costs against
appellees.
G.R. No. 74761 November 6, 1990
NATIVIDAD V. ANDAMO and EMMANUEL R. ANDAMO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT (First Civil Cases Division) and
MISSIONARIES OF OUR LADY OF LA SALETTE, INC., respondents.
Lope E. Adriano for petitioners.
Padilla Law Office for private respondent.
FERNAN, C.J.:
The pivotal issue in this petition for certiorari, prohibition and mandamus
is whether a corporation, which has built through its agents, waterpaths,
water conductors and contrivances within its land, thereby causing
inundation and damage to an adjacent land, can be held civilly liable for
damages under Articles 2176 and 2177 of the Civil Code on quasi-delicts
such that the resulting civil case can proceed independently of the criminal
case.
The antecedent facts are as follows:
Petitioner spouses Emmanuel and Natividad Andamo are the owners of a
parcel of land situated in Biga (Biluso) Silang, Cavite which is adjacent to
that of private respondent, Missionaries of Our Lady of La Salette, Inc., a
religious corporation.
Within the land of respondent corporation, waterpaths and contrivances,
including an artificial lake, were constructed, which allegedly inundated
and eroded petitioners' land, caused a young man to drown, damaged
petitioners' crops and plants, washed away costly fences, endangered the
lives of petitioners and their laborers during rainy and stormy seasons,
and exposed plants and other improvements to destruction.
In July 1982, petitioners instituted a criminal action, docketed as Criminal
Case No. TG-907-82, before the Regional Trial Court of Cavite, Branch 4
(Tagaytay City), against Efren Musngi, Orlando Sapuay and Rutillo Mallillin,
officers and directors of herein respondent corporation, for destruction by
means of inundation under Article 324 of the Revised Penal Code.
Subsequently, on February 22, 1983, petitioners filed another action
against respondent corporation, this time a civil case, docketed as Civil
Case No. TG-748, for damages with prayer for the issuance of a writ of
preliminary injunction before the same court. 1
On March 11, 1983, respondent corporation filed its answer to the
complaint and opposition to the issuance of a writ of preliminary
injunction. Hearings were conducted including ocular inspections on the
land. However, on April 26, 1984, the trial court, acting on respondent
corporation's motion to dismiss or suspend the civil action, issued an
order suspending further hearings in Civil Case No, TG-748 until after
judgment in the related Criminal Case No. TG-907-82.
Resolving respondent corporation's motion to dismiss filed on June 22,
1984, the trial court issued on August 27, 1984 the disputed
order dismissing Civil Case No. TG-748 for lack of jurisdiction, as the
criminal case which was instituted ahead of the civil case was still
unresolved. Said order was anchored on the provision of Section 3 (a),
Rule III of the Rules of Court which provides that "criminal and civil actions
arising from the same offense may be instituted separately, but after the
criminal action has been commenced the civil action cannot be instituted
until final judgment has been rendered in the criminal action." 2
3
Petitioners appealed from that order to the Intermediate Appellate Court.
On February 17, 1986, respondent Appellate Court, First Civil Cases
Division, promulgated a decision 4 affirming the questioned order of the
trial court. 5 A motion for reconsideration filed by petitioners was denied
by the Appellate Court in its resolution dated May 19, 1986. 6
Directly at issue is the propriety of the dismissal of Civil Case No. TG-748
in accordance with Section 3 (a) of Rule 111 of the Rules of Court.
Petitioners contend that the trial court and the Appellate Court erred in
dismissing Civil Case No. TG-748 since it is predicated on a quasi-delict.
Petitioners have raised a valid point.
It is axiomatic that the nature of an action filed in court is determined by
the facts alleged in the complaint as constituting the cause of action. 7 The
purpose of an action or suit and the law to govern it, including the period
of prescription, is to be determined not by the claim of the party filing the
action, made in his argument or brief, but rather by the complaint itself,
its allegations and prayer for relief. 8 The nature of an action is not
necessarily determined or controlled by its title or heading but the body of
the pleading or complaint itself. To avoid possible denial of substantial
justice due to legal technicalities, pleadings as well as remedial laws
should be liberally construed so that the litigants may have ample
opportunity to prove their respective claims. 9
Quoted hereunder are the pertinent portions of petitioners' complaint in
Civil Case No. TG-748:
4) That within defendant's land, likewise located at Biga
(Biluso), Silang, Cavite, adjacent on the right side of the
aforesaid land of plaintiffs, defendant constructed
waterpaths starting from the middle-right portion thereof
leading to a big hole or opening, also constructed by
defendant, thru the lower portion of its concrete hollow-
blocks fence situated on the right side of its cemented gate
fronting the provincial highway, and connected by
defendant to a man height inter-connected cement
culverts which were also constructed and lain by defendant
cross-wise beneath the tip of the said cemented gate, the
left-end of the said inter-connected culverts again
connected by defendant to a big hole or opening thru the
lower portion of the same concrete hollowblocks fence on
the left side of the said cemented gate, which hole or
opening is likewise connected by defendant to the
cemented mouth of a big canal, also constructed by
defendant, which runs northward towards a big hole or
opening which was also built by defendant thru the lower
portion of its concrete hollow-blocks fence which separates
the land of plaintiffs from that of defendant (and which
serves as the exit-point of the floodwater coming from the
land of defendant, and at the same time, the entrance-
point of the same floodwater to the land of plaintiffs, year
after year, during rainy or stormy seasons.
5) That moreover, on the middle-left portion of its land
just beside the land of plaintiffs, defendant also
constructed an artificial lake, the base of which is soil,
which utilizes the water being channeled thereto from its
water system thru inter-connected galvanized iron pipes
(No. 2) and complimented by rain water during rainy or
stormy seasons, so much so that the water below it seeps
into, and the excess water above it inundates, portions of
the adjoining land of plaintiffs.
6) That as a result of the inundation brought about by
defendant's aforementioned water conductors,
contrivances and manipulators, a young man was drowned
to death, while herein plaintiffs suffered and will continue
to suffer, as follows:
a) Portions of the land of plaintiffs were
eroded and converted to deep, wide and
long canals, such that the same can no
longer be planted to any crop or plant.
b) Costly fences constructed by plaintiffs
were, on several occasions, washed away.
c) During rainy and stormy seasons the
lives of plaintiffs and their laborers are
always in danger.
d) Plants and other improvements on other
portions of the land of plaintiffs are
exposed to destruction. ... 10
A careful examination of the aforequoted complaint shows that the civil
action is one under Articles 2176 and 2177 of the Civil Code on quasi-
delicts. All the elements of a quasi-delict are present, to wit: (a) damages
suffered by the plaintiff, (b) fault or negligence of the defendant, or some
other person for whose acts he must respond; and (c) the connection of
cause and effect between the fault or negligence of the defendant and the
damages incurred by the plaintiff. 11
Clearly, from petitioner's complaint, the waterpaths and contrivances built
by respondent corporation are alleged to have inundated the land of
petitioners. There is therefore, an assertion of a causal connection
between the act of building these waterpaths and the damage sustained
by petitioners. Such action if proven constitutes fault or negligence which
may be the basis for the recovery of damages.
In the case of Samson vs. Dionisio, 12 the Court applied Article 1902, now
Article 2176 of the Civil Code and held that "any person who without due
authority constructs a bank or dike, stopping the flow or communication
between a creek or a lake and a river, thereby causing loss and damages
to a third party who, like the rest of the residents, is entitled to the use
and enjoyment of the stream or lake, shall be liable to the payment of an
indemnity for loss and damages to the injured party.
While the property involved in the cited case belonged to the public
domain and the property subject of the instant case is privately owned,
the fact remains that petitioners' complaint sufficiently alleges that
petitioners have sustained and will continue to sustain damage due to the
waterpaths and contrivances built by respondent corporation. Indeed, the
recitals of the complaint, the alleged presence of damage to the
petitioners, the act or omission of respondent corporation supposedly
constituting fault or negligence, and the causal connection between the act
and the damage, with no pre-existing contractual obligation between the
parties make a clear case of a quasi delict or culpa aquiliana.
It must be stressed that the use of one's property is not without
limitations. Article 431 of the Civil Code provides that "the owner of a
thing cannot make use thereof in such a manner as to injure the rights of
a third person." SIC UTERE TUO UT ALIENUM NON LAEDAS. Moreover,
adjoining landowners have mutual and reciprocal duties which require that
each must use his own land in a reasonable manner so as not to infringe
upon the rights and interests of others. Although we recognize the right of
an owner to build structures on his land, such structures must be so
constructed and maintained using all reasonable care so that they cannot
be dangerous to adjoining landowners and can withstand the usual and
expected forces of nature. If the structures cause injury or damage to an
adjoining landowner or a third person, the latter can claim indemnification
for the injury or damage suffered.
Article 2176 of the Civil Code imposes a civil liability on a person for
damage caused by his act or omission constituting fault or negligence,
thus:
Article 2176. Whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if there
is no pre-existing contractual relation between the parties,
is called a quasi-delict and is governed by the provisions of
this chapter.
Article 2176, whenever it refers to "fault or negligence", covers not only
acts "not punishable by law" but also acts criminal in character, whether
intentional and voluntary or negligent. Consequently, a separate civil
action lies against the offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or acquitted, provided that the
offended party is not allowed, (if the tortfeasor is actually charged also
criminally), to recover damages on both scores, and would be entitled in
such eventuality only to the bigger award of the two, assuming the awards
made in the two cases vary. 13
The distinctness of quasi-delicta is shown in Article 2177 of the Civil Code,
which states:
Article 2177. Responsibility for fault or negligence under
the preceding article is entirely separate and distinct from
the civil liability arising from negligence under the Penal
Code. But the plaintiff cannot recover damages twice for
the same act or omission of the defendant.
According to the Report of the Code Commission "the foregoing provision
though at first sight startling, is not so novel or extraordinary when we
consider the exact nature of criminal and civil negligence. The former is a
violation of the criminal law, while the latter is a distinct and independent
negligence, which is a "culpa aquiliana" or quasi-delict, of ancient origin,
having always had its own foundation and individuality, separate from
criminal negligence. Such distinction between criminal negligence and
"culpa extra-contractual" or "cuasi-delito" has been sustained by decisions
of the Supreme Court of Spain ... 14
In the case of Castillo vs. Court of Appeals, 15 this Court held that a quasi-
delict or culpa aquiliana is a separate legal institution under the Civil Code
with a substantivity all its own, and individuality that is entirely apart and
independent from a delict or crime a distinction exists between the civil
liability arising from a crime and the responsibility for quasi-delicts or
culpa extra-contractual. The same negligence causing damages may
produce civil liability arising from a crime under the Penal Code, or create
an action for quasi-delicts or culpa extra-contractual under the Civil Code.
Therefore, the acquittal or conviction in the criminal case is entirely
irrelevant in the civil case, unless, of course, in the event of an acquittal
where the court has declared that the fact from which the civil action arose
did not exist, in which case the extinction of the criminal liability would
carry with it the extinction of the civil liability.
In Azucena vs. Potenciano, 16 the Court declared that in quasi-delicts,
"(t)he civil action is entirely independent of the criminal case according to
Articles 33 and 2177 of the Civil Code. There can be no logical conclusion
than this, for to subordinate the civil action contemplated in the said
articles to the result of the criminal prosecution whether it be conviction
or acquittal would render meaningless the independent character of the
civil action and the clear injunction in Article 31, that his action may
proceed independently of the criminal proceedings and regardless of the
result of the latter."
WHEREFORE, the assailed decision dated February 17, 1986 of the then
Intermediate Appellate Court affirming the order of dismissal of the
Regional Trial Court of Cavite, Branch 18 (Tagaytay City) dated August 17,
1984 is hereby REVERSED and SET ASIDE. The trial court is ordered to
reinstate Civil Case No. TG-748 entitled "Natividad V. Andamo and
Emmanuel R. Andamo vs. Missionaries of Our Lady of La Salette Inc." and
to proceed with the hearing of the case with dispatch. This decision is
immediately executory. Costs against respondent corporation.
SO ORDERED.
G.R. No. 180440 December 5, 2012 Petitioner and Delia waited for 10 more minutes near the door hoping
someone would come to their rescue but they waited in vain. Delia became
DR. GENEVIEVE L. HUANG, Petitioner, anxious about their situation so petitioner began to walk around to look for
vs. a house phone. Delia followed petitioner. After some time, petitioner saw a
PHILIPPINE HOTELIERS, INC., DUSIT THANI PUBLIC CO., LTD. And phone behind the lifeguards counter. While slowly walking towards the
FIRST LEPANTO TAISHO INSURANCE CORPORATION, Respondents. phone, a hard and heavy object, which later turned out to be the folding
wooden counter top, fell on petitioners head that knocked her down
almost unconscious.10
DECISION

Delia immediately got hold of the house phone and notified the hotel
PEREZ, J.:
telephone operator of the incident. Not long after, the hotel staff arrived at
the main entrance door of the swimming pool area but it took them at
For this Courts resolution is a Petition for Review on Certiorari under Rule least 20 to 30 minutes to get inside. When the door was finally opened,
45 of the Rules of Court, assailing the Decision1 of the Court of Appeals in three hotel chambermaids assisted petitioner by placing an ice pack and
CA-G.R. CV No. 87065 dated 9 August 2007, affirming the Decision2 of applying some ointment on her head. After petitioner had slightly
Branch 56 of the Regional Trial Court (RTC) of Makati City in Civil Case No. recovered, she requested to be assisted to the hotels coffee shop to have
96-1367 dated 21 February 2006, dismissing for lack of merit herein some rest. Petitioner demanded the services of the hotel physician.11
petitioner Dr. Genevieve L. Huangs Complaint for Damages. Assailed as
well is the Court of Appeals Resolution3 dated 5 November 2007 denying
Dr. Violeta Dalumpines (Dr. Dalumpines) arrived. She approached
for lack of merit petitioners Motion for Reconsideration.
petitioner and introduced herself as the hotel physician. However, instead
of immediately providing the needed medical assistance, Dr. Dalumpines
This case stemmed from a Complaint for Damages filed on 28 August 1996 presented a "Waiver" and demanded that it be signed by petitioner,
by petitioner Dr. Genevieve L. Huang4against herein respondents otherwise, the hotel management will not render her any assistance.
Philippine Hoteliers, Inc. (PHI)5 and Dusit Thani Public Co., Ltd. Petitioner refused to do so.12
(DTPCI),6 as owners of Dusit Thani Hotel Manila (Dusit Hotel);7 and co-
respondent First Lepanto Taisho Insurance Corporation (First Lepanto),8 as
After eating her dinner and having rested for a while, petitioner left the
insurer of the aforesaid hotel. The said Complaint was premised on the
hotels coffee shop and went home. Thereupon, petitioner started to feel
alleged negligence of respondents PHI and DTPCIs staff, in the untimely
extraordinary dizziness accompanied by an uncomfortable feeling in her
putting off all the lights within the hotels swimming pool area, as well as
stomach, which lasted until the following day. Petitioner was constrained
the locking of the main entrance door of the area, prompting petitioner to
to stay at home, thus, missing all her important appointments with her
grope for a way out. While doing so, a folding wooden counter top fell on
patients. She also began experiencing "on" and "off" severe headaches
her head causing her serious brain injury. The negligence was allegedly
that caused her three (3) sleepless nights.13
compounded by respondents PHI and DTPCIs failure to render prompt and
adequate medical assistance.
Petitioner, thus, decided to consult a certain Dr. Perry Noble (Dr. Noble), a
neurologist from Makati Medical Center, who required her to have an X-ray
Petitioners version of the antecedents of this case is as follows:
and a Magnetic Resonance Imaging (MRI) tests.14 The MRI Report15 dated
23 August 1995 revealed the following findings:
On 11 June 1995, Delia Goldberg (Delia), a registered guest of Dusit Hotel,
invited her friend, petitioner Dr. Genevieve L. Huang, for a swim at the
CONSULTATION REPORT:
hotels swimming pool facility. They started bathing at around 5:00 p.m.
At around 7:00 p.m., the hotels swimming pool attendant informed them
that the swimming pool area was about to be closed. The two MRI examination of the brain shows scattered areas of intraparenchymal
subsequently proceeded to the shower room adjacent to the swimming contusions and involving mainly the left middle and posterior temporal and
pool to take a shower and dress up. However, when they came out of the slightly the right anterior temporal lobe.
bathroom, the entire swimming pool area was already pitch black and
there was no longer any person around but the two of them. They Other small areas of contusions with suggestive pertechiae are seen in the
carefully walked towards the main door leading to the hotel but, to their left fronto-parietal, left parieto-occipital and with deep frontal
surprise, the door was locked.9
periventricular subcortical and cortical regions. There is no mass effect nor
signs of localized hemorrhagic extravasation.
The ventricles are not enlarged, quite symmetrical without shifts or
deformities; the peripheral sulci are within normal limits.
The C-P angles, petromastoids, sella, extrasellar and retro orbital areas
appear normal.
The brainstem is unremarkable.
IMPRESSION: Scattered small intraparenchymal contusions mainly
involving the left middle-posterior temporal lobe and also right medial
anterior temporal, both deep frontal subcortical, left parieto-occipital
subcortical and cortical regions. Ischemic etiology not ruled out. No
localized intra - or extracerebral hemorrhage.16
both found that she has "post traumatic-post concussion/contusion
cephalgias-vascular and neuralgia."26 She was then prescribed to take
some medications for severe pain and to undergo physical therapy. Her
condition did not improve so she returned to the Philippines.27
Petitioner, once again, consulted Dr. Sibayan, who simply told her to just
relax and to continue taking her medicines. Petitioner also consulted other
neurologists, who all advised her to just continue her medications and to
undergo physical therapy for her neck pain.28
Sometime in 1996, petitioner consulted as well a certain Dr. Victor Lopez
(Dr. Lopez), an ophthalmologist from the Makati Medical Center, because
of her poor vision, which she has experienced for several
months.29 Petitioners Eye Report dated 5 March 199630 issued by Dr.
Lopez stated: "IMPRESSION: Posterior vitreous detachment, right eye of
floaters." Dr. Lopez told petitioner that her detached eye is permanent and
very serious. Dr. Lopez then prescribed an eye drop to petitioner.31

Petitioner claimed that the aforesaid MRI result clearly showed that her
For petitioners frustration to dissipate and to regain her former strength
head was bruised. Based also on the same MRI result, Dr. Noble told her
and physical well-being, she consulted another neuro-surgeon from Makati
that she has a very serious brain injury. In view thereof, Dr. Noble
Medical Center by the name of Dr. Leopoldo P. Pardo, Jr. (Dr. Pardo,
prescribed the necessary medicine for her condition.17
Jr.).32 She disclosed to Dr. Pardo, Jr. that at the age of 18 she suffered a
stroke due to mitral valve disease and that she was given treatments,
Petitioner likewise consulted a certain Dr. Ofelia Adapon, also a neurologist which also resulted in thrombocytopenia. In Dr. Pardo, Jr.s medical
from Makati Medical Center, who required her to undergo an evaluation of petitioner dated 15 May 1996,33 he made the following
Electroencephalogram examination (EEG) to measure the electrostatic in diagnosis and opinion:
her brain.18Based on its result,19 Dr. Ofelia Adapon informed her that she
has a serious conditiona permanent one. Dr. Ofelia Adapon similarly
DIAGNOSIS AND OPINION:
prescribed medicines for her brain injury.20

This patient sustained a severe head injury in (sic) 11 June 1995 and as a
Petitioners condition did not get better. Hence, sometime in September
result of which she developed the following injuries:
1995, she consulted another neuro-surgeon by the name of Dr. Renato
Sibayan (Dr. Sibayan), who required her to have an X-ray test.21 According
to petitioner, Dr. Sibayans finding was the same as those of the previous 1. Cerebral Concussion and Contusion
doctors that she had consultedshe has a serious brain injury.22
2. Post-traumatic Epilepsy
By reason of the unfortunate 11 June 1995 incident inside the hotels
swimming pool area, petitioner also started to feel losing her memory, 3. Post-concussional Syndrome
which greatly affected and disrupted the practice of her chosen
profession.23 Thus, on 25 October 1995, petitioner, through counsel, sent a 4. Minimal Brain Dysfunction
demand letter24 to respondents PHI and DTPCI seeking payment of an
amount not less than P100,000,000.00 representing loss of earnings on
5. Cervical Sprain, chronic recurrent
her remaining life span. But, petitioners demand was unheeded.

It is my opinion that the symptoms she complained of in the foregoing

In November 1995, petitioner went to the United States of America (USA)
history are all related to and a result of the injury sustained on 11 June
for further medical treatment. She consulted a certain Dr. Gerald
1995.
Steinberg and a certain Dr. Joel Dokson25 from Mount Sinai Hospital who
It is further my opinion that the above diagnosis and complaints do World Gym adjacent to the swimming pool area, which was then open until
materially affect her duties and functions as a practicing physician and 10:00 p.m., to have a good view of the hotels swimming pool. Even
dermatologist, and that she will require treatment for an undetermined granting that the lights in the hotels swimming pool area were turned off,
period of time. it would not render the area completely dark as the Slimmers World Gym
near it was well-illuminated.43
The percentage of disability is not calculated at this time and will require
further evaluation and observation.34 Further, on 11 June 1995, at round 7:00 p.m., the hotels swimming pool
attendant advised petitioner and Delia to take their showers as it was
Dr. Pardo, Jr. then advised petitioner to continue her medications.35 already closing time. Afterwards, at around 7:40 p.m., Pearlie Benedicto-
Lipana (Ms. Pearlie), the hotel staff nurse, who was at the hotel clinic
located at the mezzanine floor, received a call from the hotel telephone
Petitioner likewise consulted a certain Dr. Tenchavez36 for her follow-up
operator informing her that there was a guest requiring medical assistance
EEG.37 He similarly prescribed medicine for petitioners deep brain injury.
at the hotels swimming pool area located one floor above the clinic.44
He also gave her pain killer for her headache and advised her to undergo
physical therapy. Her symptoms, however, persisted all the more.38
Immediately, Ms. Pearlie got hold of her medical kit and hurriedly went to
the hotels swimming pool area. There she saw Delia and petitioner, who
In 1999, petitioner consulted another neurologist at the Makati Medical
told her that she was hit on the head by a folding wooden counter top.
Center by the name of Dr. Martesio Perez (Dr. Perez) because of severe
Although petitioner looked normal as there was no indication of any blood
fleeting pains in her head, arms and legs; difficulty in concentration; and
or bruise on her head, Ms. Pearlie still asked her if she needed any medical
warm sensation of the legs, which symptoms also occurred after the 11
attention to which petitioner replied that she is a doctor, she was fine and
June 1995 incident. Upon examination, Dr. Perez observed that petitioner
she did not need any medical attention. Petitioner, instead, requested for a
has been experiencing severe pains and she has a slight difficulty in
hirudoid cream to which Ms. Pearlie acceded.45
concentration. He likewise noted that there was a slight spasm of
petitioners neck muscle but, otherwise, there was no objective neurologic
finding. The rest of petitioners neurologic examination was essentially At about 8:00 p.m., after attending to petitioner, Ms. Pearlie went back to
normal.39 the hotel clinic to inform Dr. Dalumpines of the incident at the hotels
swimming pool area. But before she could do that, Dr. Dalumpines had
already chanced upon Delia and petitioner at the hotels coffee shop and
Dr. Perezs neurologic evaluation40 of petitioner reflected, among others:
the latter reported to Dr. Dalumpines that her head was hit by a folding
(1) petitioners past medical history, which includes, among others, mitral
wooden counter top while she was inside the hotels swimming pool area.
valve stenosis; (2) an interpretation of petitioners EEG results in October
When asked by Dr. Dalumpines how she was, petitioner responded she is a
1995 and in January 1999, i.e., the first EEG showed sharp waves seen
doctor, she was fine and she was already attended to by the hotel nurse,
bilaterally more on the left while the second one was normal; and (3)
who went at the hotels swimming pool area right after the accident. Dr.
interpretation of petitioners second MRI result, i.e., petitioner has a
Dalumpines then called Ms. Pearlie to verify the same, which the latter
permanent damage in the brain, which can happen either after a head
confirmed.46
injury or after a stroke. Dr. Perez concluded that petitioner has post-
traumatic or post concussion syndrome.41
Afterwards, Dr. Dalumpines went back to petitioner and checked the
latters condition. Petitioner insisted that she was fine and that the
Respondents, on the other hand, denied all the material allegations of
hirudoid cream was enough. Having been assured that everything was
petitioner and, in turn, countered the latters statement of facts, thus:
fine, Dr. Dalumpines requested petitioner to execute a handwritten
certification47 regarding the incident that occurred that night. Dr.
According to respondents PHI and DTPCI, a sufficient notice had been Dalumpines then suggested to petitioner to have an X-ray test. Petitioner
posted on the glass door of the hotel leading to the swimming pool area to replied that it was not necessary. Petitioner also refused further medical
apprise the people, especially the hotel guests, that the swimming pool attention.48
area is open only from 7:00 a.m. to 7:00 p.m.42 Though the hotels
swimming pool area is open only between the aforestated time, the lights
On 13 June 1995, petitioner called up Dr. Dalumpines. The call, however,
thereon are kept on until 10:00 p.m. for, (1) security reasons; (2)
had nothing to do with the 11 June 1995 incident. Instead, petitioner
housekeeping personnel to do the cleaning of the swimming pool
merely engaged in small talk with Dr. Dalumpines while having her daily
surroundings; and (3) people doing their exercise routine at the Slimmers
massage. The two talked about petitioners personal matters, i.e., past
medical history, differences with siblings and family over inheritance and
difficulty in practice. Petitioner even disclosed to Dr. Dalumpines that she
once fell from a horse; that she had a stroke; had hysterectomy and is
incapable of having children for her uterus had already been removed;
that she had blood disorder, particularly lack of platelets, that can cause
bleeding; and she had an "on" and "off" headaches. Petitioner oftentimes
called Dr. Dalumpines at the hotel clinic to discuss topics similar to those
discussed during their 13 June 1995 conversation.49
Also, during one of their telephone conversations, petitioner requested for
a certification regarding the 11 June 1995 incident inside the hotels
swimming pool area. Dr. Dalumpines accordingly issued Certification dated
7 September 1995, which states that:50
CERTIFICATION
This is to certify that as per Clinic records, duty nurse Pearlie was called to
attend to an accident at the poolside at 7:45PM on 11 June 1995.
Same records show that there, she saw petitioner who claimed the folding
countertop fell on her head when she lifted it to enter the lifeguards
counter to use the phone. She asked for Hirudoid.
The same evening petitioner met Dr. Dalumpines at the Coffee Shop. After
narrating the poolside incident and declining Dr. Dalumpines offer of
assistance, she reiterated that the Hirudoid cream was enough and that
petitioner being a doctor herself, knew her condition and she was all right.
This certification is given upon the request of petitioner for whatever
purpose it may serve, 7 September 1995 at Makati City.51 (Emphasis
supplied).
Petitioner personally picked up the afore-quoted Certification at the hotel
clinic without any objection as to its contents.52
From 11 June 1995 until 7 September 1995, the hotel clinic never received
any complaint from petitioner regarding the latters condition. The hotel
itself neither received any written complaint from petitioner.53
After trial, the court a quo in its Decision dated 21 February 2006
dismissed petitioners Complaint for lack of merit.
The trial court found petitioners testimony self-serving, thus, devoid of
credibility. Petitioner failed to present any evidence to substantiate her
allegation that the lights in the hotels swimming pool area were shut off at
the time of the incident. She did not even present her friend, Delia, to
corroborate her testimony. More so, petitioners testimony was
contradicted by one of the witnesses presented by the respondents who
positively declared that it has been a normal practice of the hotel
management not to put off the lights until 10:00 p.m. to allow the
housekeepers to do the cleaning of the swimming pool surroundings,
including the toilets and counters. Also, the lights were kept on for security
reasons and for the people in the nearby gym to have a good view of the
swimming pool while doing their exercise routine. Besides, there was a
remote possibility that the hotels swimming pool area was in complete
darkness as the aforesaid gym was then open until 10:00 p.m., and the
lights radiate to the hotels swimming pool area. As such, petitioner would
not have met the accident had she only acted with care and caution.54
The trial court further struck down petitioners contention that the hotel
management did not extend medical assistance to her in the aftermath of
the accident. Records showed that the hotel management immediately
responded after being notified of the accident. The hotel nurse and the two
chambermaids placed an ice pack on petitioners head. They were willing
to extend further emergency assistance but petitioner refused and merely
asked for a hirudoid cream. Petitioner even told them she is a doctor and
she was fine. Even the medical services offered by the hotel physician
were turned down by petitioner. Emphatically, petitioner cannot fault the
hotel for the injury she sustained as she herself did not heed the warning
that the swimming pool area is open only from 7:00 a.m. to 7:00 p.m. As
such, since petitioners own negligence was the immediate and proximate
cause of her injury, she cannot recover damages.55
The trial court similarly observed that the records revealed no indication
that the head injury complained of by petitioner was the result of the
alleged 11 June 1995 accident. Firstly, petitioner had a past medical
history which might have been the cause of her recurring brain injury.
Secondly, the findings of Dr. Perez did not prove a causal relation between
the 11 June 1995 accident and the brain damage suffered by petitioner.
Even Dr. Perez himself testified that the symptoms being experienced by
petitioner might have been due to factors other than the head trauma she
allegedly suffered. It bears stressing that petitioner had been suffering
from different kinds of brain problems since she was 18 years old, which
may have been the cause of the recurring symptoms of head injury she is
experiencing at present. Absent, therefore, of any proof establishing the
causal relation between the injury she allegedly suffered on 11 June 1995
and the head pains she now suffers, her claim must fail. Thirdly, Dr.
Teresita Sanchezs (Dr. Sanchez) testimony cannot be relied upon since
she testified on the findings and conclusions of persons who were never
presented in court. Ergo, her testimony thereon was hearsay. Fourthly, the
medical reports/evaluations/certifications issued by myriads of doctors
whom petitioner sought for examination or treatment were neither
identified nor testified to by those who issued them. Being deemed as
hearsay, they cannot be given probative value. Even assuming that
petitioner suffered head injury as a consequence of the 11 June 1995
accident, she cannot blame anyone but herself for staying at the hotels
swimming pool area beyond its closing hours and for lifting the folding
wooden counter top that eventually hit her head.56
For petitioners failure to prove that her serious and permanent injury was
the result of the 11 June 1995 accident, thus, her claim for actual or
compensatory damages, loss of income, moral damages, exemplary
damages and attorneys fees, must all fail.57
With regard to respondent First Lepantos liability, the trial court ruled that
under the contract of insurance, suffice it to state that absent any cause
for any liability against respondents PHI and DTPCI, respondent First
Lepanto cannot be made liable thereon.
Dissatisfied, petitioner elevated the matter to the Court of Appeals with
the following assignment of errors: (1) the trial court erred in finding that
the testimony of petitioner is self-serving and thus void of credibility; (2)
the trial court erred in applying the doctrine of proximate cause in cases of
breach of contract and even assuming arguendo that the doctrine is
applicable, petitioner was able to prove by sufficient evidence the causal
connection between her injuries and respondents PHI and DTPCIs
negligent act; and (3) the trial court erred in holding that petitioner is not
entitled to damages.58
On 9 August 2007, the Court of Appeals rendered a Decision affirming the
findings and conclusions of the trial court.
The Court of Appeals ratiocinated in this wise:
At the outset, it is necessary for our purpose to determine whether to
decide this case on the theory that herein respondents PHI and DTPCI are
liable for breach of contract or on the theory of quasi-delict.
xxxx
It cannot be gainsaid that herein petitioners use of the hotels pool was
only upon the invitation of Delia, the hotels registered guest. As such, she
cannot claim contractual relationship between her and the hotel. Since the
circumstances of the present case do not evince a contractual relation
between petitioner and respondents, the rules on quasi-delict , thus,
govern.
The pertinent provision of Art. 2176 of the Civil Code which states:
"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 quasi-delict."
A perusal of Article 2176 shows that obligations arising from quasi-delict or
tort, also known as extra-contractual obligations, arise only between
parties not otherwise bound by contract, whether express or implied.
Thus, to sustain a claim liability under quasi-delict, the following requisites
must concur: (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.
Viewed from the foregoing, the question now is whether respondents PHI
and DTPCI and its employees were negligent? We do not think so. Several
factors militate against petitioners contention.
One. Petitioner recognized the fact that the pool areas closing
time is 7:00 p.m.. She, herself, admitted during her testimony that
she was well aware of the sign when she and Delia entered the
pool area. Hence, upon knowing, at the outset, of the pools
closing time, she took the risk of overstaying when she decided to
take shower and leave the area beyond the closing hour. In fact, it
was only upon the advise of the pool attendants that she
thereafter took her shower.
Two. She admitted, through her certification that she lifted the
wooden bar countertop, which then fell onto her head. The
admission in her certificate proves the circumstances surrounding
the occurrence that transpired on the night of 11 June 1995. This
is contrary to her assertion in the complaint and testimony that,
while she was passing through the counter door, she was suddenly
knocked out by a hard and heavy object. In view of the fact that
she admitted having lifted the counter top, it was her own doing,
therefore, that made the counter top fell on to her head.
Three. We cannot likewise subscribe to petitioners assertion that
the pool area was totally dark in that she herself admitted that she
saw a telephone at the counter after searching for one. It must be
noted that petitioner and Delia had walked around the pool area
with ease since they were able to proceed to the glass entrance
door from shower room, and back to the counter area where the
telephone was located without encountering any untoward
incident. Otherwise, she could have easily stumbled over, or slid,
or bumped into something while searching for the telephone. This
negates her assertion that the pool area was completely dark,
thereby, totally impairing her vision.
 xxxx
The aforementioned circumstances lead us to no other conclusion than
that the proximate and immediate cause of the injury of petitioner was
due to her own negligence.
Moreover, petitioner failed to sufficiently substantiate that the medical
symptoms she is currently experiencing are the direct result of the head
injury she sustained on 11 June 1995 as was aptly discussed in the lower
courts findings.
xxxx
It bears stressing that in civil cases, the law requires that the party who
alleges a fact and substantially asserts the affirmative of the issue has the
burden of proving it. Hence, for petitioner to be entitled to damages, she
must show that she had suffered an actionable injury. Regrettably,
petitioner failed in this regard.59 (Emphasis supplied).
Petitioners Motion for Reconsideration was denied for lack of merit in a
Resolution dated 5 November 2007.
Hence, this Petition raising the following issues:
(1) Whether or not the findings of fact of the trial court and of the
Court of Appeals are conclusive in this case.
(2) Whether or not herein respondents PHI and DTPCI are
responsible by implied contract to exercise due care for the safety
and welfare of the petitioner.
(3) Whether or not the cause of action of the petitioner can be
based on both breach of contract and tort.
(4) Whether or not it is respondents PHI and DTPCI and its
employees who are liable to the petitioner for negligence, applying
the well-established doctrines of res ipsa loquitur and respondeat
superior.
(5) Whether the petitioners debilitating and permanent injuries
were a result of the accident she suffered at the hotel on 11 June
1995.
(6) Whether or not the petitioner is entitled to the payment of
damages, attorneys fees, interest, and the costs of suit.
(7) Whether or not the respondent insurance company is liable,
even directly, to the petitioner.
(8) Whether or not petitioners motion for reconsideration of the
decision of the Court of Appeals is pro forma.60
Petitioner argues that the rule that "findings of fact of the lower courts are
conclusive and must be respected on appeal" finds no application herein
because this case falls under the jurisprudentially established exceptions.
Moreover, since the rationale behind the afore-mentioned rule is that "the
trial judge is in a vantage point to appreciate the conduct and behavior of
the witnesses and has the unexcelled opportunity to evaluate their
testimony," one logical exception to the rule that can be deduced
therefrom is when the judge who decided the case is not the same judge
who heard and tried the case.
Petitioner further faults the Court of Appeals in ruling that no contractual
relationship existed between her and respondents PHI and DTPCI since her
use of the hotels swimming pool facility was only upon the invitation of
the hotels registered guest. On the contrary, petitioner maintains that an
implied contract existed between them in view of the fact that the hotel
guest status extends to all those who avail of its servicesits patrons and
invitees. It follows then that all those who patronize the hotel and its
facilities, including those who are invited to partake of those facilities, like
petitioner, are generally regarded as guests of the hotel. As such,
respondents PHI and DTPCI are responsible by implied contract for the
safety and welfare of petitioner while the latter was inside their premises
by exercising due care, which they failed to do.
Petitioner even asserts that the existence of a contract between the parties
does not bar any liability for tort since the act that breaks a contract may
also be a tort. Hence, the concept of change of theory of cause of action
pointed to by respondents is irrelevant.
Petitioner similarly avows that the doctrines of res ipsa loquitur and
respondeat superior are applicable in this case. She argues that a person
who goes in a hotel without a "bukol" or hematoma and comes out of it
with a "bukol" or hematoma is a clear case of res ipsa loquitur. It was an
accident caused by the fact that the hotel staff was not present to lift the
heavy counter top for petitioner as is normally expected of them because
they negligently locked the main entrance door of the hotels swimming
pool area. Following the doctrine of res ipsa loquitur, respondents PHI and
DTPCIs negligence is presumed and it is incumbent upon them to prove
otherwise but they failed to do so. Further, respondents PHI and DTPCI
failed to observe all the diligence of a good father of a family in the
selection and supervision of their employees, hence, following the doctrine
of respondeat superior, they were liable for the negligent acts of their staff
in not verifying if there were still people inside the swimming pool area
before turning off the lights and locking the door. Had respondents PHI
and DTPCIs employees done so, petitioner would not have been injured.
Since respondents PHI and DTPCIs negligence need not be proved, the
lower courts erred in shifting the burden to petitioner and, thereafter,
holding the hotel and its employees not negligent for petitioners failure to
prove their negligence. Moreover, petitioner alleges that there was no
contributory negligence on her part for she did not do anything that could
have contributed to her injury. And, even if there was, the same does not
bar recovery.
Petitioner equally declares that the evidence on record, including the
objective medical findings, had firmly established that her permanent
debilitating injuries were the direct result of the 11 June 1995 accident
inside the hotels swimming pool area. This fact has not been totally
disputed by the respondents. Further, the medical experts who had been
consulted by petitioner were in unison in their diagnoses of her condition.
Petitioner was also able to prove that the falling of the folding wooden
counter top on her head while she was at the hotels swimming pool area
was the cause of her head, eye and neck injuries.
Petitioner reiterates her claim for an award of damages, to wit: actual,
including loss of income; moral, exemplary; as well as attorneys fees,
interest and costs of suit. She states that respondents PHI and DTPCI are
liable for quasi-delict under Articles 19, 2176 and 2180 of the New Civil
Code. At the same time, they are liable under an implied contract for they
have a public duty to give due courtesy, to exercise reasonable care and to
provide safety to hotel guests, patrons and invitees. Respondent First
Lepanto, on the other hand, is directly liable under the express contract of
insurance.
Lastly, petitioner contends that her Motion for Reconsideration before the
Court of Appeals was not pro forma for it specifically pointed out the
alleged errors in the Court of Appeals Decision.
The instant Petition is devoid of merit.
Primarily, only errors of law and not of facts are reviewable by this Court
in a Petition for Review on Certiorari under Rule 45 of the Rules of
Court.61 This Court is not a trier of facts and it is beyond its function to re-
examine and weigh anew the respective evidence of the parties.62 Besides,
this Court adheres to the long standing doctrine that the factual findings of
the trial court, especially when affirmed by the Court of Appeals, are
conclusive on the parties and this Court.63 Nonetheless, this Court has, at
times, allowed exceptions thereto, to wit:
(a) When the findings are grounded entirely on speculation,
surmises, or conjectures;
(b) When the inference made is manifestly mistaken, absurd, or
impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the Court of Appeals went beyond
the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee;
(g) When the Court of Appeals findings are contrary to those by
the trial court;
(h) When the findings are conclusions without citation of specific
evidence on which they are based;
(i) When the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the
respondent;
(j) When the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record;
or
(k) When the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.64
Upon meticulous perusal of the records, however, this Court finds that
none of these exceptions is obtaining in this case. No such justifiable or
compelling reasons exist for this Court to depart from the general rule.
This Court will not disturb the factual findings of the trial court as affirmed
by the Court of Appeals and adequately supported by the evidence on
record.
Also, this Court will not review the factual findings of the trial court simply
because the judge who heard and tried the case was not the same judge
who penned the decision. This fact alone does not diminish the veracity
and correctness of the factual findings of the trial court.65 Indeed, "the
efficacy of a decision is not necessarily impaired by the fact that its writer
only took over from a colleague who had earlier presided at the trial,
unless there is showing of grave abuse of discretion in the factual findings
reached by him."66 In this case, there was none.
It bears stressing that in this jurisdiction there is a disputable presumption
that the trial courts decision is rendered by the judge in the regular
performance of his official duties. While the said presumption is only
disputable, it is satisfactory unless contradicted or overcame by other
evidence. Encompassed in this presumption of regularity is the
presumption that the trial court judge, in resolving the case and drafting
the decision, reviewed, evaluated, and weighed all the evidence on record.
That the said trial court judge is not the same judge who heard the case
and received the evidence is of little consequence when the records and
transcripts of stenographic notes (TSNs) are complete and available for
consideration by the former,67 just like in the present case.
Irrefragably, the fact that the judge who penned the trial courts decision
was not the same judge who heard the case and received the evidence
therein does not render the findings in the said decision erroneous and
unreliable. While the conduct and demeanor of witnesses may sway a trial
court judge in deciding a case, it is not, and should not be, his only
consideration. Even more vital for the trial court judges decision are the
contents and substance of the witnesses testimonies, as borne out by the
TSNs, as well as the object and documentary evidence submitted and
made part of the records of the case.68
This Court examined the records, including the TSNs, and found no reason
to disturb the factual findings of both lower courts. This Court, thus,
upholds their conclusiveness.
In resolving the second and third issues, a determination of the cause of
action on which petitioners Complaint for Damages was anchored upon is
called for.
Initially, petitioner was suing respondents PHI and DTPCI mainly on
account of their negligence but not on any breach of contract. Surprisingly,
when the case was elevated on appeal to the Court of Appeals, petitioner
had a change of heart and later claimed that an implied contract existed
between her and respondents PHI and DTPCI and that the latter were
liable for breach of their obligation to keep her safe and out of harm. This
allegation was never an issue before the trial court. It was not the cause of
action relied upon by the petitioner not until the case was before the Court
of Appeals. Presently, petitioner claims that her cause of action can be
based both on quasi-delict and breach of contract.
A perusal of petitioners Complaint evidently shows that her cause of
action was based solely on quasi-delict. Telling are the following
allegations in petitioners Complaint:
6. THAT, in the evening of 11 June 1995, between the hours from
7:00 to 8:00 oclock, after herein petitioner and her friend from
New York, Delia, the latter being then a Hotel guest, were taking
their shower after having a dip in the hotels swimming pool,
without any notice or warning, the Hotels staff put off all the lights
within the pool area including the lights on the hallway and also
locked the main entrance door of the pool area, x x x;
7. THAT, Hotel guest Delia started to panic while petitioner pacified
her by telling her not to worry as they would both find their way
out. Petitioner knowing that within the area there is a house
phone, started to look around while Delia was following her,
eventually petitioner saw a phone behind the counter x x x, that
while slowly moving on towards the phone on a stooping manner
due to the darkness CAUSED BY UNTIMELY AND NEGLIGENTLY
PUTTING OFF WITH THE LIGHTS BY THE HEREIN RESPONDENTS
PHI AND DTPCIS EMPLOYEE while passing through the open
counter door with its Folding Counter Top also opened, x x x, a
hard and heavy object fell onto the head of the petitioner that
knocked her down almost unconscious which hard and heavy
object turned out to be the Folding Counter Top;
8. THAT, Delia immediately got hold of the house phone and
notified the Hotel Telephone Operator about the incident,
immediately the hotel staffs (sic) arrived but they were stranded
behind the main door of the pool entrance and it too (sic) them
more than twenty (20) minutes to locate the hotel maintenance
employee who holds the key of the said main entrance door;
9. THAT, when the door was opened, two Hotel Chamber Maids
assisted the petitioner to get out of the counter door. Petitioner
being a Physician tried to control her feelings although groggy and
requested for a HURIDOID, a medicine for HEMATOMA, as a huge
lump developed on her head while the two Chamber Maids assisted
petitioner by holding the bag of ice on her head and applying the
medicine on the huge lump;
10. THAT, petitioner after having recovered slightly from her
nightmare, though still feeling weak, asked to be assisted to the
Hotel Coffee Shop to take a rest but requested for the hotels
Physician. Despite her insistent requests, the Dusit Hotel refused
to lift a finger to assists petitioner who was then in distress until a
lady approached and introduced herself as the Hotels house
 Doctor. Instead however of assisting petitioner by asking her what
kind of assistance the Hotel could render, in a DISCOURTEOUS
MANNER presented instead a paper and demanding petitioner to
affix her signature telling her that the Hotel Management would
only assists and answer for all expenses incurred if petitioner signs
the paper presented, but she refused and petitioner instead wrote
a marginal note on the said paper stating her reason therefore,
said paper later on turned out to be a WAIVER OF RIGHT or QUIT
CLAIM;
xxxx
14. THAT, due to the unfortunate incident caused by respondents
PHI and DTPCIs gross negligence despite medical assistance,
petitioner started to feel losing her memory that greatly affected
and disrupted the practice of her chosen profession x x x.
xxxx
19. THAT, due to respondents PHI and DTPCIs gross negligence as
being narrated which caused petitioner to suffer sleepless nights,
depression, mental anguish, serious anxiety, wounded feelings,
and embarrassment with her Diplomate friends in the profession
and industry, her social standing in the community was greatly
affected and hence, respondents PHI and DTPCI must be imposed
the hereunder damages, prayed for x x x and Artile (sic) 2176 and
2199 of the New Civil Code of the Philippines x x x.
xxxx
22. THAT, as to Moral, Exemplary and Actual Damages, as well as
petitioners Loss of Income, the amounts are stated in its prayer
hereunder.69
It is clear from petitioners allegations that her Complaint for Damages
was predicated on the alleged negligence of respondents PHI and DTPCIs
staff in the untimely putting off of all the lights within the hotels
swimming pool area, as well as the locking of its main door, prompting her
to look for a way out leading to the fall of the folding wooden counter top
on her head causing her serious brain injury. The said negligence was
allegedly compounded by respondents PHI and DTPCIs failure to render
prompt and adequate medical assistance. These allegations in petitioners
Complaint constitute a cause of action for quasi-delict, which under the
New Civil Code is defined as an act, or omission which causes damage to
another, there being fault or negligence.70
It is evident from petitioners Complaint and from her open court
testimony that the reliance was on the alleged tortious acts committed
against her by respondents PHI and DTPCI, through their management
and staff. It is now too late in the day to raise the said argument for the
first time before this Court.71
Petitioners belated reliance on breach of contract as her cause of action
cannot be sanctioned by this Court. Well-settled is the rule that a party is
not allowed to change the theory of the case or the cause of action on
appeal. Matters, theories or arguments not submitted before the trial court
cannot be considered for the first time on appeal or certiorari.72 When a
party adopts a certain theory in the court below, he will not be permitted
to change his theory on appeal for to permit him to do so would not only
be unfair to the other party but it would also be offensive to the basic rules
of fair play, justice and due process.73 Hence, a party is bound by the
theory he adopts and by the cause of action he stands on and cannot be
permitted after having lost thereon to repudiate his theory and cause of
action and adopt another and seek to re-litigate the matter anew either in
the same forum or on appeal.74
In that regard, this Court finds it significant to take note of the following
differences between quasi-delict (culpa aquilina) and breach of contract
(culpa contractual). In quasi-delict, negligence is direct, substantive and
independent, while in breach of contract, negligence is merely incidental to
the performance of the contractual obligation; there is a pre-existing
contract or obligation.75 In quasi-delict, the defense of "good father of a
family" is a complete and proper defense insofar as parents, guardians and
employers are concerned, while in breach of contract, such is not a
complete and proper defense in the selection and supervision of
employees.76 In quasi- delict , there is no presumption of negligence and it
is incumbent upon the injured party to prove the negligence of the
defendant, otherwise, the formers complaint will be dismissed, while in
breach of contract, negligence is presumed so long as it can be proved
that there was breach of the contract and the burden is on the defendant
to prove that there was no negligence in the carrying out of the terms of
the contract; the rule of respondeat superior is followed.77
Viewed from the foregoing, petitioners change of theory or cause of action
from quasi-delict to breach of contract only on appeal would necessarily
cause injustice to respondents PHI and DTPCI. First, the latter will have no
more opportunity to present evidence to contradict petitioners new
argument. Second, the burden of proof will be shifted from petitioner to
respondents PHI and DTPCI. Petitioners change of theory from quasi-delict
to breach ofcontract must be repudiated.
As petitioners cause of action is based on quasi-delict, it is incumbent
upon her to prove the presence of the following requisites before
respondents PHI and DTPCI can be held liable, 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.78 Further, since petitioners case is for
quasi-delict , the negligence or fault should be clearly established as it is
the basis of her action.79 The burden of proof is upon petitioner. Section 1,
Rule 131 of the Rules of Court provides that "burden of proof is the duty of
a party to present evidence on the facts in issue necessary to establish his
claim or defense by the amount of evidence required by law." It is then up
for the plaintiff to establish his cause of action or the defendant to
establish his defense. Therefore, if the plaintiff alleged in his complaint
that he was damaged because of the negligent acts of the defendant, he
has the burden of proving such negligence. It is even presumed that a
person takes ordinary care of his concerns. The quantum of proof required
is preponderance of evidence.80
In this case, as found by the trial court and affirmed by the Court of
Appeals, petitioner utterly failed to prove the alleged negligence of
respondents PHI and DTPCI. Other than petitioners self-serving testimony
that all the lights in the hotels swimming pool area were shut off and the
door was locked, which allegedly prompted her to find a way out and in
doing so a folding wooden counter top fell on her head causing her injury,
no other evidence was presented to substantiate the same. Even her own
companion during the night of the accident inside the hotels swimming
pool area was never presented to corroborate her allegations. Moreover,
petitioners aforesaid allegations were successfully rebutted by
respondents PHI and DTPCI. Here, we quote with conformity the
observation of the trial court, thus:
x x x Besides not being backed up by other supporting evidence, said
statement is being contradicted by the testimony of Engineer Dante L.
Costas,81 who positively declared that it has been a normal practice of the
Hotel management not to put off the lights until 10:00P.M. in order to
allow the housekeepers to do the cleaning of the pools surrounding, the
toilets and the counters. It was also confirmed that the lights were kept on
for security reasons and so that the people exercising in the nearby gym
may be able to have a good view of the swimming pool. This Court also
takes note that the nearby gymnasium was normally open until 10:00 P.M.
so that there was a remote possibility the pool area was in complete
darkness as was alleged by herein petitioner, considering that the
illumination which reflected from the gym. Ergo, considering that the area
were sufficient (sic) illuminated when the alleged incident occurred, there
could have been no reason for the petitioner to have met said accident,
much less to have been injured as a consequence thereof, if she only
acted with care and caution, which every ordinary person is expected to
do.82
More telling is the ratiocination of the Court of Appeals, to wit:
Viewed from the foregoing, the question now is whether respondents PHI
and DTPCI and its employees were negligent? We do not think so. Several
factors militate against petitioners contention.
One. Petitioner recognized the fact that the pool areas closing time is 7:00
p.m.. She, herself, admitted during her testimony that she was well aware
of the sign when she and Delia entered the pool area. Hence, upon
knowing, at the outset, of the pools closing time, she took the risk of
overstaying when she decided to take shower and leave the area beyond
the closing hour. In fact, it was only upon the advise of the pool
attendants that she thereafter took her shower.
Two. She admitted, through her certification, that she lifted the wooden
bar countertop, which then fell on to her head. The admission in her
certificate proves the circumstances surrounding the occurrence that
transpired on the night of 11 June 1995. This is contrary to her assertion
in the complaint and testimony that, while she was passing through the
counter door, she was suddenly knocked out by a hard and heavy object.
In view of the fact that she admitted having lifted the countertop, it was
her own doing, therefore, that made the counter top fell on to her head.
Three. We cannot likewise subscribe to petitioners assertion that the pool
area was totally dark in that she herself admitted that she saw a telephone
at the counter after searching for one. It must be noted that petitioner and
Delia had walked around the pool area with ease since they were able to
proceed to the glass entrance door from the shower room, and back to the
counter area where the telephone was located without encountering any
untoward incident. Otherwise, she could have easily stumbled over, or slid,
or bumped into something while searching for the telephone. This negates
her assertion that the pool area was completely dark, thereby, totally
impairing her vision.
xxxx
The aforementioned circumstances lead us to no other conclusion than
that the proximate and immediate cause of the injury of petitioner was
due to her own negligence.83 (Emphasis supplied).
Even petitioners assertion of negligence on the part of respondents PHI
and DTPCI in not rendering medical assistance to her is preposterous. Her
own Complaint affirmed that respondents PHI and DTPCI afforded medical
assistance to her after she met the unfortunate accident inside the hotels
swimming pool facility. Below is the portion of petitioners Complaint that
would contradict her very own statement, thus:
14. THAT, due to the unfortunate incident caused by respondents PHI and
DTPCIs gross negligence despite medical assistance, petitioner started to
feel losing her memory that greatly affected and disrupted the practice of
her chosen profession. x x x.84 (Emphasis supplied).
Also, as observed by the trial court, respondents PHI and DTPCI, indeed,
extended medical assistance to petitioner but it was petitioner who refused
the same. The trial court stated, thus:
Further, herein petitioners asseverations that the Hotel Management did
not extend medical assistance to her in the aftermath of the alleged
accident is not true. Again, this statement was not supported by any
evidence other that the sole and self-serving testimony of petitioner. Thus,
this Court cannot take petitioners statement as a gospel truth. It bears
stressing that the Hotel Management immediately responded after it
received notice of the incident. As a matter of fact, Ms. Pearlie, the Hotel
nurse, with two chambermaids holding an ice bag placed on petitioners
head came to the petitioner to extend emergency assistance when she was
notified of the incident, but petitioner merely asked for Hirudoid, saying
she was fine, and that she was a doctor and know how to take care of
herself. Also, the Hotel, through its in-house physician, Dr. Dalumpines
offered its medical services to petitioner when they met at the Hotels
coffee shop, but again petitioner declined the offer. Moreover, the Hotel as
a show of concern for the petitioners welfare, shouldered the expenses for
the MRI services performed on petitioner at the Makati Medical Center.
Emphatically, petitioner herself cannot fault the Hotel for the injury she
allegedly suffered because she herself did not heed the warning at the pool
to the effect that it was only open from 7:00 to 7:00 P.M. Thus, when the
petitioners own negligence was the immediate and proximate cause of his
injury, shecannot recover damages x x x.85
With the foregoing, the following were clearly established, to wit: (1)
petitioner stayed in the hotels swimming pool facility beyond its closing
hours; (2) she lifted the folding wooden counter top that eventually hit her
head; and (3) respondents PHI and DTPCI extended medical assistance to
her. As such, no negligence can be attributed either to respondents PHI
and DTPCI or to their staff and/or management. Since the question of
negligence is one of fact, this Court is bound by the said factual findings
made by the lower courts. It has been repeatedly held that the trial court's
factual findings, when affirmed by the Court of Appeals, are conclusive and
binding upon this Court, if they are not tainted with arbitrariness or
oversight of some fact or circumstance of significance and influence.
Petitioner has not presented sufficient ground to warrant a deviation from
this rule.86
With regard to petitioners contention that the principles of res ipsa
loquitur and respondeat superior are applicable in this case, this Court
holds otherwise.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the
transaction speaks for itself." It relates to the fact of an injury that sets
out an inference to the cause thereof or establishes the plaintiffs prima
facie case. The doctrine rests on inference and not on presumption. The
facts of the occurrence warrant the supposition of negligence and they
furnish circumstantial evidence of negligence when direct evidence is
lacking.87 Simply stated, this doctrine finds no application if there is direct
proof of absence or presence of negligence. If there is sufficient proof
showing the conditions and circumstances under which the injury
occurred, then the creative reason for the said doctrine disappears.88
Further, the doctrine of res ipsa loquitur applies where, (1) the accident
was of such character as to warrant an inference that it would not have
happened except for the defendants negligence; (2) the accident must
have been caused by an agency or instrumentality within the exclusive
management or control of the person charged with the negligence
complained of; and (3) the accident must not have been due to any
voluntary action or contribution on the part of the person injured.89
In the case at bench, even granting that respondents PHI and DTPCIs
staff negligently turned off the lights and locked the door, the folding
wooden counter top would still not fall on petitioners head had she not
lifted the same. Although the folding wooden counter top is within the
exclusive management or control of respondents PHI and DTPCI, the
falling of the same and hitting the head of petitioner was not due to the
negligence of the former. As found by both lower courts, the folding
wooden counter top did not fall on petitioners head without any human
intervention. Records showed that petitioner lifted the said folding wooden
counter top that eventually fell and hit her head. The same was evidenced
by the, (1) 11 June 1995 handwritten certification of petitioner herself; (2)
her Letter dated 30 August 1995 addressed to Mr. Yoshikazu Masuda (Mr.
Masuda), General Manager of Dusit Hotel; and, (3) Certification dated 7
September 1995 issued to her by Dr. Dalumpines upon her request, which
contents she never questioned.
Here, we, respectively, quote the 11 June 1995 handwritten certification of
petitioner; her letter to Mr. Masuda dated 30 August 1995; and Dr.
Dalumpines Certification dated 7 September 1995, to wit:
Petitioners 11 June 1995 Handwritten Certification:
I was requested by Dr. Dalumpines to write that I was assured of
assistance should it be necessary with regard an accident at the pool. x x x
The phone was in an enclosed area on a chair I lifted the wooden bar
counter top which then fell on my head producing a large hematoma x x
x.90
Petitioners Letter addressed to Mr. Masuda dated 30 August 1995:
Dear Mr. Masuda,
xxxx
x x x We searched and saw a phone on a chair behind a towel counter.
However, in order to get behind the counter I had to lift a hinged massive
wooden section of the counter which subsequently fell and knocked me on
my head x x x.91
Dr. Dalumpines Certification dated 7 September 1995:
CERTIFICATION
This is to certify that as per Clinic records, duty nurse Pearlie was called to
attend to an accident at the poolside at 7:45PM on 11 June 1995.
Same records show that there, she saw petitioner who claimed the folding
countertop fell on her head when she lifted it to enter the lifeguards
counter to use the phone. She asked for Hirudoid.
The same evening petitioner met Dr. Dalumpnes at the Coffee Shop. After
narrating the poolside incident and declining Dr. Dalumpines offer of
assistance, she reiterated that the Hirudoid cream was enough and that
petitioner]being a doctor herself, knew her condition and she was all right.
This certification is given upon the request of petitioner for whatever
purpose it may serve, 7 September 1995 at Makati City.92 (Emphasis
supplied).
This Court is not unaware that in petitioners Complaint and in her open
court testimony, her assertion was, "while she was passing through the
counter door, she was suddenly knocked out by a hard and heavy object,
which turned out to be the folding wooden counter top." However, in her
open court testimony, particularly during cross-examination, petitioner
confirmed that she made such statement that "she lifted the hinge
massive wooden section of the counter near the swimming pool." 93 In view
thereof, this Court cannot acquiesce petitioners theory that her case is
one of res ipsa loquitur as it was sufficiently established how petitioner
obtained that "bukol" or "hematoma."
The doctrine of respondeat superior finds no application in the absence of
any showing that the employees of respondents PHI and DTPCI were
negligent. Since in this case, the trial court and the appellate court found
no negligence on the part of the employees of respondents PHI and DTPCI,
thus, the latter cannot also be held liable for negligence and be made to
pay the millions of pesos damages prayed for by petitioner.
The issue on whether petitioners debilitating and permanent injuries were
the result of the accident she suffered at the hotels swimming pool area
on 11 June 1995 is another question of fact, which is beyond the function
of this Court to resolve. More so, this issue has already been properly
passed upon by the trial court and the Court of Appeals. To repeat, this
Court is bound by the factual findings of the lower courts and there is no
cogent reason to depart from the said rule.
The following observations of the trial court are controlling on this matter:
Firstly, petitioner had a past medical history which might have been the
cause of her recurring brain injury.
Secondly, the findings of Dr. Perez did not prove a causal relation between
the 11 June 1995 accident and the brain damage suffered by petitioner.
Dr. Perez himself testified that the symptoms being experienced by
petitioner might have been due to factors other than the head trauma she
allegedly suffered. Emphasis must be given to the fact that petitioner had
been suffering from different kinds of brain problems since she was 18
years old, which may have been the cause of the recurring symptoms of
head injury she is experiencing at present.
Thirdly, Dr. Sanchezs testimony cannot be relied upon since she testified
on the findings and conclusions of persons who were never presented in
court. Ergo, her testimony thereon was hearsay. A witness can testify only
with regard to facts of which they have personal knowledge. Testimonial or
documentary evidence is hearsay if it is based, not on the personal
knowledge of the witness, but on the knowledge of some other person not
on the witness stand. Consequently, hearsay evidence -- whether objected
to or not -- has no probative value.94
Fourthly, the medical reports/evaluations/certifications issued by myriads
of doctors whom petitioner sought for examination or treatment were
neither identified nor testified to by those who issued them. Being deemed
as hearsay, they cannot be given probative value.1wphi1
The aforesaid medical reports/evaluations/certifications of different doctors
in favor of petitioner cannot be given probative value and their contents
cannot be deemed to constitute proof of the facts stated therein. It must
be stressed that a document or writing which is admitted not as
independent evidence but merely as part of the testimony of a witness
does not constitute proof of the facts related therein.95 In the same vein,
the medical certificate which was identified and interpreted in court by
another doctor was not accorded probative value because the doctor who
prepared it was not presented for its identification. Similarly, in this case,
since the doctors who examined petitioner were not presented to testify on
their findings, the medical certificates issued on their behalf and identified
by another doctor cannot be admitted as evidence. Since a medical
certificate involves an opinion of one who must first be established as an
expert witness, it cannot be given weight or credit unless the doctor who
issued it is presented in court to show his qualifications.96 Thus, an
unverified and unidentified private document cannot be accorded probative
value. It is precluded because the party against whom it is presented is
deprived of the right and opportunity to cross-examine the person to
whom the statements or writings are attributed. Its executor or author
should be presented as a witness to provide the other party to the
litigation the opportunity to question its contents. Being mere hearsay
evidence, failure to present the author of the letter renders its contents
suspect and of no probative value.97

All told, in the absence of negligence on the part of respondents PHI and
DTPCI, as well as their management and staff, they cannot be made Iiable
to pay for the millions of damages prayed for by the petitioner. Since
respondents PHI and DTPCI arc not liable, it necessarily follows that
respondent First Lepanto cannot also be made liable under the contract or
Insurance.

WHEREFORE, premises considered, the Decision and Resolution or the

Court of Appeals in CA-G.R. CV No. 87065 dated 9 August 2007 and 5
November 2007, respectively, are hereby AFFIRMED. Costs against
petitioner.

SO ORDERED.
G.R. No. 171127 March 11, 2015
NOEL CASUMPANG, RUBY SANGA-MIRANDA and SAN JUAN DEDIOS
HOSPITAL, Petitioners,
vs.
NELSON CORTEJO, Respondent.
x-----------------------x
G.R. No. 171217
DRA. RUBY SANGA-MIRANDA, Petitioner,
vs.
NELSON CORTEJO, Respondent.
x-----------------------x
G.R. No. 171228
SAN JUAN DEDIOS HOSPITAL, Petitioner,
vs.
NELSON CORTEJO, Respondent.
DECISION
BRION, J.:
We resolve the three (3) consolidated petitions for review on
Certiorari1 involving medical negligence, commonly assailing the October
29, 2004 decision2 and the January 12, 2006 resolution3 of the Court of
Appeals (CA) in CA-G.R. CV No. 56400. This CA decision affirmed en
totothe ruling of the Regional Trial Court (RTC), Branch 134, Makati City.
The RTC awarded Nelson Cortejo (respondent) damages in the total
amount of 595,000.00, for the wrongful death of his son allegedly due to
the medical negligence of the petitioning doctors and the hospital.
Factual Antecedents
The common factual antecedents are briefly summarized below.
On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo
brought her 11-year old son, Edmer Cortejo (Edmer), to the Emergency
Room of the San Juan de Dios Hospital (SJDH) because of difficulty in
breathing, chest pain, stomach pain, and fever.4
Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined
Edmer. In her testimony, Mrs. Cortejo narrated that in the morning of April
20, 1988, Edmer had developed a slight fever that lasted for one day; a
few hours upon discovery, she brought Edmer to their family doctor; and
two hours after administering medications, Edmers fever had subsided.5
After taking Edmers medical history, Dr. Livelo took his vital signs, body
temperature, and blood pressure.6 Based on these initial examinations and
the chest x-ray test that followed, Dr. Livelo diagnosed Edmer with
"bronchopneumonia.7 " Edmers blood was also taken for testing, typing,
and for purposes of administering antibiotics. Afterwards, Dr. Livelo gave
Edmer an antibiotic medication to lessen his fever and to loosen his
phlegm.
Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care
card and was referred to an accredited Fortune Care coordinator, who was
then out of town. She was thereafter assigned to Dr. Noel Casumpang (Dr.
Casumpang), a pediatrician also accredited with Fortune Care.8
At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time
examined Edmer in his room. Using only a stethoscope, he confirmed the
initial diagnosis of "Bronchopneumonia."9
At that moment, Mrs. Cortejo recalled entertaining doubts on the doctors
diagnosis. She immediately advised Dr. Casumpang that Edmer had a high
fever, and had no colds or cough10 but Dr. Casumpang merely told her
that her sons "blood pressure is just being active,"11 and remarked that
"thats the usual bronchopneumonia, no colds, no phlegm."12 Dr.
Casumpang next visited and examined Edmer at 9:00 in the morning the
following day.13 Still suspicious about his sons illness, Mrs. Cortejo again
called Dr. Casumpangs attention and stated that Edmer had a fever,
throat irritation, as well as chest and stomach pain. Mrs. Cortejo also
alerted Dr. Casumpang about the traces of blood in Edmers sputum.
Despite these pieces of information, however, Dr. Casumpang simply
nodded, inquired if Edmer has an asthma, and reassured Mrs. Cortejo that
Edmers illness is bronchopneumonia.14
At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm
with blood streak"15 prompting the respondent (Edmers father) to request
for a doctor at the nurses station.16 Forty-five minutes later, Dr. Ruby
Miranda-Sanga (Dr. Sanga), one of the resident physicians of SJDH,
arrived. She claimed that although aware that Edmer had vomited
"phlegm with blood streak," she failed to examine the blood specimen
because the respondent washed it away. She then advised the respondent
to preserve the specimen for examination.
Thereafter, Dr. Sanga conducted a physical check-up covering Edmers
head, eyes, nose, throat, lungs, skin and abdomen; and found that Edmer
had a low-grade non-continuing fever, and rashes that were not typical of
dengue fever.17 Her medical findings state:
the patients rapid breathing and then the lung showed sibilant and the
patients nose is flaring which is a sign that the patient is in respiratory
distress; the abdomen has negative finding; the patient has low grade
fever and not continuing; and the rashes in the patients skin were not
"Hermans Rash" and not typical of dengue fever.18
At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing
Dr. Sanga, the respondent showed her Edmers blood specimen, and
reported that Edmer had complained of severe stomach pain and difficulty
in moving his right leg.19
Dr. Sanga then examined Edmers "sputum with blood" and noted that he
was bleeding. Suspecting that he could be afflicted with dengue, she
inserted a plastic tube in his nose, drained the liquid from his stomach with
ice cold normal saline solution, and gave an instruction not to pull out the
tube, or give the patient any oral medication.
Dr. Sanga thereafter conducted a tourniquet test, which turned out to be
negative.20 She likewise ordered the monitoring of the patients blood
pressure and some blood tests. Edmers blood pressure was later found to
be normal.21
At 4:40 in the afternoon, Dr. Sanga called up Dr. Casumpang at his clinic
and told him about Edmers condition.22Upon being informed, Dr.
Casumpang ordered several procedures done including: hematocrit,
hemoglobin, blood typing, blood transfusion and tourniquet tests.
The blood test results came at about 6:00 in the evening.
Dr. Sanga advised Edmers parents that the blood test results showed that
Edmer was suffering from "Dengue Hemorrhagic Fever." One hour later,
Dr. Casumpang arrived at Edmers room and he recommended his transfer
to the Intensive Care Unit (ICU), to which the respondent consented. Since
the ICU was then full, Dr. Casumpang suggested to the respondent that
they hire a private nurse. The respondent, however, insisted on
transferring his son to Makati Medical Center.
After the respondent had signed the waiver, Dr. Casumpang, for the last
time, checked Edmers condition, found that his blood pressure was stable,
and noted that he was "comfortable." The respondent requested for an
ambulance but he was informed that the driver was nowhere to be found.
This prompted him to hire a private ambulance that cost him 600.00.23
At 12:00 midnight, Edmer, accompanied by his parents and by Dr.
Casumpang, was transferred to Makati Medical Center.
Dr. Casumpang immediately gave the attending physician the patients
clinical history and laboratory exam results. Upon examination, the
attending physician diagnosed "Dengue Fever Stage IV" that was already
in its irreversible stage.
Edmer died at 4:00 in the morning of April 24, 1988.24 His Death
Certificate indicated the cause of death as "Hypovolemic
Shock/hemorrhagic shock;" "Dengue Hemorrhagic Fever Stage IV."
Believing that Edmers death was caused by the negligent and erroneous
diagnosis of his doctors, the respondent instituted an action for damages
against SJDH, and its attending physicians: Dr. Casumpang and Dr. Sanga
(collectively referred to as the "petitioners") before the RTC of Makati City.
The Ruling of the Regional Trial Court
In a decision25 dated May 30, 1997, the RTC ruled in favor of the
respondent, and awarded actual and moral damages, plus attorney's fees
and costs.
In ruling that the petitioning doctors were negligent, the RTC found
untenable the petitioning doctors contention that Edmers initial symptoms
did not indicate dengue fever. It faulted them for heavily relying on the
chest x-ray result and for not considering the other manifestations that
Edmers parents had relayed. It held that in diagnosing and treating an
illness, the physicians conduct should be judged not only by what he/she
saw and knew, but also by what he/she could have reasonably seen and
known. It also observed that based on Edmers signs and symptoms, his
medical history and physical examination, and also the information that
the petitioning doctors gathered from his family members, dengue fever
was a reasonably foreseeable illness; yet, the petitioning doctors failed to
take a second look, much less, consider these indicators of dengue.
The trial court also found that aside from their self-serving testimonies,
the petitioning doctors did not present other evidence to prove that they
exercised the proper medical attention in diagnosing and treating the
patient, leading it to conclude that they were guilty of negligence. The RTC
also held SJDH solidarily liable with the petitioning doctors for damages
based on the following findings of facts: first, Dr. Casumpang, as
consultant, is an ostensible agent of SJDH because before the hospital
engaged his medical services, it scrutinized and determined his fitness,
qualifications, and competence as a medical practitioner; and second, Dr.
Sanga, as resident physician, is an employee of SJDH because like Dr.
Casumpang, the hospital, through its screening committee, scrutinized and
determined her qualifications, fitness,and competence before engaging her
services; the hospital also exercised control over her work.
The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants, ordering the latter to pay solidarily and severally
plaintiff the following:
 (1) Moral damages in the amount of 500,000.00;
(2) Costs of burial and funeral in the amount of 45,000.00;
(3) Attorneys fees of 50,000.00; and
(4) Cost of this suit.
SO ORDERED.
The petitioners appealed the decision to the CA.
The Ruling of the Court of Appeals
In its decision dated October 29, 2004, the CA affirmed en toto the RTCs
ruling, finding that SJDH and its attending physicians failed to exercise the
minimum medical care, attention, and treatment expected of an ordinary
doctor under like circumstances.
The CA found the petitioning doctors failure to read even the most basic
signs of "dengue fever" expected of an ordinary doctor as medical
negligence. The CA also considered the petitioning doctors testimonies as
self-serving, noting that they presented no other evidence to prove that
they exercised due diligence in diagnosing Edmers illness.
The CA likewise found Dr. Rodolfo Jaudians (Dr. Jaudian) testimony
admissible. It gave credence to his opinion26that: (1) given the exhibited
symptoms of the patient, dengue fever should definitely be considered,
and bronchopneumonia could be reasonably ruled out; and (2) dengue
fever could have been detected earlier than 7:30 in the evening of April
23, 1988 because the symptoms were already evident; and agreed with
the RTC that the petitioning doctors should not have solely relied on the
chest-x-ray result, as it was not conclusive.
On SJDHs solidary liability, the CA ruled that the hospitals liability is
based on Article 2180 of the Civil Code. The CA opined that the control
which the hospital exercises over its consultants, the hospitals power to
hire and terminate their services, all fulfill the employer-employee
relationship requirement under Article 2180.
Lastly, the CA held that SJDH failed to adduce evidence showing that it
exercised the diligence of a good father of a family in the hiring and the
supervision of its physicians.
The petitioners separately moved to reconsider the CA decision, but the CA
denied their motion in its resolution of January 12, 2006; hence, the
present consolidated petitions pursuant to Rule 45 of the Rules of Court.
The Petitions
I. Dr. Casumpangs Position (G.R. No. 171127)
Dr. Casumpang contends that he gave his patient medical treatment and
care to the best of his abilities, and within the proper standard of care
required from physicians under similar circumstances. He claims that his
initial diagnosis of bronchopneumonia was supported by the chest x-ray
result.
Dr. Casumpang also contends that dengue fever occurs only after several
days of confinement. He alleged that when he had suspected that Edmer
might be suffering from dengue fever, he immediately attended and
treated him.
Dr. Casumpang likewise raised serious doubts on Dr. Jaudians credibility,
arguing that the CA erred in appreciating his testimony as an expert
witness since he lacked the necessary training, skills, and experience as a
specialist in dengue fever cases.
II. Dr. Sangas Position (G.R. No. 171217)
In her petition, Dr. Sanga faults the CA for holding her responsible for
Edmers wrong diagnosis, stressing that the function of making the
diagnosis and undertaking the medical treatment devolved upon Dr.
Casumpang, the doctor assigned to Edmer, and who confirmed
"bronchopneumonia."
Dr. Sanga also alleged that she exercised prudence in performing her
duties as a physician, underscoring that it was her professional
intervention that led to the correct diagnosis of "Dengue Hemorrhagic
Fever." Furthermore, Edmers Complete Blood Count (CBC) showed
leukopenia and an increase in balance as shown by the differential count,
demonstrating that Edmers infection, more or less, is of bacterial and not
viral in nature.
Dr. Sanga as well argued that there is no causal relation between the
alleged erroneous diagnosis and medication for "Bronchopneumonia," and
Edmers death due to "Dengue Hemorrhagic Fever."
Lastly, she claimed that Dr. Jaudianis not a qualified expert witness since
he never presented any evidence of formal residency training and
fellowship status in Pediatrics.
III. SJDHs Position (G.R. No. 171228)
SJDH, on the other hand, disclaims liability by asserting that Dr.
Casumpang and Dr. Sanga are mere independent contractors and
"consultants" (not employees) of the hospital. SJDH alleges that since it
did not exercise control or supervision over the consultants exercise of
medical profession, there is no employer-employee relationship between
them, and consequently, Article 2180 of the Civil Code does not apply.
SJDH likewise anchored the absence of employer-employee relationship on
the following circumstances: (1) SJDH does not hire consultants; it only
grants them privileges to admit patients in the hospital through
accreditation; (2) SJDH does not pay the consultants wages similar to an
ordinary employee; (3) the consultants earn their own professional fees
directly from their patients; SJDH does not fire or terminate their services;
and (4) SJDH does not control or interfere with the manner and the means
the consultants use in the treatment of their patients. It merely provides
them with adequate space in exchange for rental payment.
Furthermore, SJDH claims that the CA erroneously applied the control test
when it treated the hospitals practice of accrediting consultants as an
exercise of control. It explained that the control contemplated by law is
that which the employer exercises over the: (i) end result; and the (ii)
manner and means to be used to reach this end, and not any kind of
control, however significant, in accrediting the consultants.
SJDH moreover contends that even if the petitioning doctors are
considered employees and not merely consultants of the hospital, SJDH
cannot still be held solidarily liable under Article 2180 of the Civil Code
because it observed the diligence of a good father of a family in their
selection and supervision as shown by the following: (1) the adequate
measures that the hospital undertakes to ascertain the petitioning doctors
qualifications and medical competence; and (2) the documentary evidence
that the petitioning doctors presented to prove their competence in the
field of pediatrics.27
SJDH likewise faults the CA for ruling that the petitioning doctors are its
agents, claiming that this theory, aside from being inconsistent with the
CAs finding of employment relationship, is unfounded because: first, the
petitioning doctors are independent contractors, not agents of SJDH; and
second, as a medical institution, SJDH cannot practice medicine, much
more, extend its personality to physicians to practice medicine on its
behalf.
Lastly, SJDH maintains that the petitioning doctors arrived at an
intelligently deduced and correct diagnosis. It claimed that based on
Edmer's signs and symptoms at the time of admission (i.e., one day
fever,28 bacterial infection,29 and lack of hemorrhagic manifestations30),
there was no reasonable indication yet that he was suffering from dengue
fever, and accordingly, their failure to diagnose dengue fever, does not
constitute negligence on their part.
The Case for the Respondent
In his comment, the respondent submits that the issues the petitioners
raised are mainly factual in nature, which a petition for review on certiorari
under Rule 45 of the Rules of Courts does not allow.
In any case, he contends that the petitioning doctors were negligent in
conducting their medical examination and diagnosis based on the
following: (1) the petitioning doctors failed to timely diagnose Edmers
correct illness due to their non-observance of the proper and acceptable
standard of medical examination; (2) the petitioning doctors medical
examination was not comprehensive, as they were always in a rush; and
(3) the petitioning doctors employed a guessing game in diagnosing
bronchopneumonia.
The respondent also alleges that there is a causal connection between the
petitioning doctors negligence and Edmers untimely death, warranting
the claim for damages.
The respondent, too, asserted that SJDH is also negligent because it was
not equipped with proper paging system, has no bronchoscope, and its
doctors are not proportionate to the number of its patients. He also
pointed out that out of the seven resident physicians in the hospital, only
two resident physicians were doing rounds at the time of his sons
confinement.
The Issues
The case presents to us the following issues:
1. Whether or not the petitioning doctors had committed
"inexcusable lack of precaution" in diagnosing and in treating the
patient;
2. Whether or not the petitioner hospital is solidarily liable with the
petitioning doctors;
 3. Whether or not there is a causal connection between the
petitioners negligent act/omission and the patients resulting
death; and
4. Whether or not the lower courts erred in considering Dr. Rodolfo
Tabangcora Jaudian as an expert witness.
Our Ruling
We find the petition partly meritorious.
A Petition for Review on Certiorari
under Rule 45 of the Rules of Court
is Limited to Questions of Law.
The settled rule is that the Courts jurisdiction in a petition for review on
certiorari under Rule 45 of the Rules of Court is limited only to the review
of pure questions of law. It is not the Courts function to inquire on the
veracity of the appellate courts factual findings and conclusions; this Court
is not a trier of facts.31
A question of law arises when there is doubt as to what the law is on a
certain state of facts, while there is a question of fact when the doubt
arises as to the truth or falsity of the alleged facts.32
These consolidated petitions before us involve mixed questions of fact and
law. As a rule, we do not resolve questions of fact. However, in
determining the legal question of whether the respondent is entitled to
claim damages under Article 2176 of the Civil Code for the petitioners
alleged medical malpractice, the determination of the factual issues i.e.,
whether the petitioning doctors were grossly negligent in diagnosing the
patients illness, whether there is causal relation between the petitioners
act/omission and the patients resulting death, and whether Dr. Jaudian is
qualified as an expert witness must necessarily be resolved. We resolve
these factual questions solely for the purpose of determining the legal
issues raised.
Medical Malpractice Suit as a
Specialized Area of Tort Law
The claim for damages is based on the petitioning doctors negligence in
diagnosing and treating the deceased Edmer, the child of the respondent.
It is a medical malpractice suit, an action available to victims to redress a
wrong committed by medical professionals who caused bodily harm to, or
the death of, a patient.33 As the term is used, the suit is brought whenever
a medical practitioner or health care provider fails to meet the standards
demanded by his profession, or deviates from this standard, and causes
injury to the patient.
To successfully pursue a medical malpractice suit, the plaintiff (in this
case, the deceased patients heir) must prove that the doctor either failed
to do what a reasonably prudent doctor would have done, or did what a
reasonably prudent doctor would not have done; and the act or omission
had caused injury to the patient.34 The patients heir/s bears the burden of
proving his/her cause of action.
The Elements of a Medical Malpractice Suit
The elements of medical negligence are: (1) duty; (2) breach; (3) injury;
and (4) proximate causation.
Duty refers to the standard of behavior that imposes restrictions on one's
conduct.35 It requires proof of professional relationship between the
physician and the patient. Without the professional relationship, a
physician owes no duty to the patient, and cannot therefore incur any
liability.
A physician-patient relationship is created when a patient engages the
services of a physician,36 and the latter accepts or agrees to provide care
to the patient.37 The establishment of this relationship is consensual,38 and
the acceptance by the physician essential. The mere fact that an individual
approaches a physician and seeks diagnosis, advice or treatment does not
create the duty of care unless the physician agrees.39
The consent needed to create the relationship does not always need to be
express.40 In the absence of an express agreement, a physician-patient
relationship may be implied from the physicians affirmative action to
diagnose and/or treat a patient, or in his participation in such diagnosis
and/or treatment.41 The usual illustration would be the case of a patient
who goes to a hospital or a clinic, and is examined and treated by the
doctor. In this case, we can infer, based on the established and customary
practice in the medical community that a patient-physician relationship
exists.
Once a physician-patient relationship is established, the legal duty of care
follows. The doctor accordingly becomes duty-bound to use at least the
same standard of care that a reasonably competent doctor would use to
treat a medical condition under similar circumstances.
Breach of duty occurs when the doctor fails to comply with, or improperly
performs his duties under professional standards. This determination is
both factual and legal, and is specific to each individual case.42
If the patient, as a result of the breach of duty, is injured in body or in
health, actionable malpractice is committed, entitling the patient to
damages.43
To successfully claim damages, the patient must lastly prove the causal
relation between the negligence and the injury. This connection must be
direct, natural, and should be unbroken by any intervening efficient
causes. In other words, the negligence must be the proximate cause of the
injury.44 The injury or damage is proximately caused by the physicians
negligence when it appears, based on the evidence and the expert
testimony, that the negligence played an integral part in causing the injury
or damage, and that the injury or damage was either a direct result, or a
reasonably probable consequence of the physicians negligence.45
a. The Relationship Between Dr. Casumpang and Edmer
In the present case, the physician-patient relationship between Dr.
Casumpang and Edmer was created when the latters parents sought the
medical services of Dr. Casumpang, and the latter knowingly accepted
Edmer as a patient. Dr. Casumpangs acceptance is implied from his
affirmative examination, diagnosis and treatment of Edmer. On the other
hand, Edmers parents, on their sons behalf, manifested their consent by
availing of the benefits of their health care plan, and by accepting the
hospitals assigned doctor without objections.
b. The Relationship Between Dr. Sanga and Edmer
With respect to Dr. Sanga, her professional relationship with Edmer arose
when she assumed the obligation to provide resident supervision over the
latter. As second year resident doctor tasked to do rounds and assist other
physicians, Dr. Sanga is deemed to have agreed to the creation of
physician-patient relationship with the hospitals patients when she
participated in the diagnosis and prescribed a course of treatment for
Edmer.
The undisputed evidence shows that Dr. Sanga examined Edmer twice (at
around 12:00 and 3:30 in the afternoon of April 23, 1988),and in both
instances, she prescribed treatment and participated in the diagnosis of
Edmers medical condition. Her affirmative acts amounted to her
acceptance of the physician-patient relationship, and incidentally, the legal
duty of care that went with it.
In Jarcia, Jr. v. People of the Philippines,46 the Court found the doctors
who merely passed by and were requested to attend to the patient, liable
for medical malpractice. It held that a physician-patient relationship was
established when they examined the patient, and later assured the mother
that everything was fine.
In the US case of Mead v. Legacy Health System,47 the Court also
considered the rendering of an opinion in the course of the patients care
as the doctors assent to the physician-patient relationship. It ruled that
the relationship was formed because of the doctors affirmative action.
Likewise, in Wax v. Johnson,48 the court found that a physician patient
relationship was formed between a physician who "contracts, agrees,
undertakes, or otherwise assumes" the obligation to provide resident
supervision at a teaching hospital, and the patient with whom the doctor
had no direct or indirect contract.
Standard of Care and Breach of Duty
A determination of whether or not the petitioning doctors met the required
standard of care involves a question of mixed fact and law; it is factual as
medical negligence cases are highly technical in nature, requiring the
presentation of expert witnesses to provide guidance to the court on
matters clearly falling within the domain of medical science, and legal,
insofar as the Court, after evaluating the expert testimonies, and guided
by medical literature, learned treatises, and its fund of common
knowledge, ultimately determines whether breach of duty took place.
Whether or not Dr. Casumpang and Dr. Sanga committed a breach of duty
is to be measured by the yardstick of professional standards observed by
the other members of the medical profession in good standing under
similar circumstances.49 It is in this aspect of medical malpractice that
expert testimony is essential to establish not only the professional
standards observed in the medical community, but also that the
physicians conduct in the treatment of care falls below such standard.50
In the present case, expert testimony is crucial in determining first, the
standard medical examinations, tests, and procedures that the attending
physicians should have undertaken in the diagnosis and treatment of
dengue fever; and second, the dengue fever signs and symptoms that the
attending physicians should have noticed and considered.
Both the RTC and the CA relied largely on Dr. Jaudians expert testimony
on dengue diagnosis and management to support their finding that the
petitioning doctors were guilty of breach of duty of care.
Dr. Jaudian testified that Edmers rapid breathing, chest and stomach pain,
fever, and the presence of blood in his saliva are classic symptoms of
dengue fever. According to him, if the patient was admitted for chest pain,
abdominal pain, and difficulty in breathing coupled with fever, dengue
fever should definitely be considered;51 if the patient spits coffee ground
with the presence of blood, and the patients platelet count drops to
47,000, it becomes a clear case of dengue fever, and bronchopneumonia
can be reasonably ruled out.52
Furthermore, the standard of care according to Dr. Jaudian is to administer TSN, Mrs. Cortejo, November 27, 1990
oxygen inhalation, analgesic, and fluid infusion or dextrose.53 If the patient
had twice vomited fresh blood and thrombocytopenia has already Q: Now, when Dr. Casumpang visited your son for the first time at 5:30
occurred, the doctor should order blood transfusion, monitoring of the p.m., what did he do, if any?
patient every 30 minutes, hemostatic to stop bleeding, and oxygen if there
is difficulty in breathing.54
A: He examined my son by using stethoscope and after that, he confirmed
to me that my son was suffering from broncho pneumonia.
We find that Dr. Casumpang, as Edmers attending physician, did not act
according to these standards and, hence, was guilty of breach of duty. We
Q: After he confirmed that your son was suffering broncho pneumonia,
do not find Dr. Sanga liable for the reasons discussed below.
what did you say if any?

Dr. Casumpangs Negligence

A: Again, I told Dr. Casumpang, how come it was broncho pneumonia
when my son has no cough or colds.
a. Negligence in the Diagnosis
Q: What was the answer of Dr. Casumpang to your statement?
At the trial, Dr. Casumpang declared that a doctors impression regarding
a patients illness is 90% based on the physical examination, the
xxxx
information given by the patient or the latters parents, and the patients
medical history.55 He testified that he did not consider either dengue fever
or dengue hemorrhagic fever because the patients history showed that A: And then, Dr. Casumpang answered "THATS THE USUAL BRONCHO
Edmer had low breath and voluntary submission, and that he was up and PNEUMONIA, NO COLDS, NO PHLEGM."
about playing basketball.56He based his diagnosis of bronchopneumonia on
the following observations: "difficulty in breathing, clearing run nostril, Q: How long did Dr. Casumpang stay in your sons room?
harsh breath sound, tight air, and sivilant sound."57
A: He stayed for a minute or 2.
It will be recalled that during Dr. Casumpangs first and second visits to
Edmer, he already had knowledge of Edmers laboratory test result (CBC), xxxx
medical history, and symptoms (i.e., fever, rashes, rapid breathing, chest
and stomach pain, throat irritation, difficulty in breathing, and traces of
blood in the sputum). However, these information did not lead Dr. Q: When Dr. Casumpang arrived at 9:00 oclock a.m. on April 23, what did
Casumpang to the possibility that Edmer could be suffering from either you tell him, if any?
dengue fever, or dengue hemorrhagic fever, as he clung to his diagnosis of
broncho pneumonia. This means that given the symptoms exhibited, Dr. xxxx
Casumpang already ruled out the possibility of other diseases like dengue.
A: I told Dr. Casumpang After examining my son using stethoscope and
In other words, it was lost on Dr. Casumpang that the characteristic nothing more, I told Dr. Casumpang about the traces of blood in my sons
symptoms of dengue (as Dr. Jaudian testified) are: patients rapid sputum and I told him what is all about and he has throat irritation.
breathing; chest and stomach pain; fever; and the presence of blood in his
saliva. All these manifestations were present and known to Dr. Casumpang Q: What did he tell you?
at the time of his first and second visits to Edmer. While he noted some of
these symptoms in confirming bronchopneumonia, he did not seem to
A: He just nodded his head but he did not take the initiative of looking at
have considered the patients other manifestations in ruling out dengue
the throat of my son.
fever or dengue hemorrhagic fever.58 To our mind, Dr. Casumpang
selectively appreciated some, and not all of the symptoms; worse, he
casually ignored the pieces of information that could have been material in Q: So what happened after that?
detecting dengue fever. This is evident from the testimony of Mrs. Cortejo:
A: I also told Dr. Casumpang about his chest pain and also stomach pain.
Q: So what did Dr. Casumpang do after you have narrated all these
complaints of your son?
A: Nothing. He also noticed the rapid breathing of my son and my son was
almost moving because of rapid breathing and he is swaying in the bed.
Q: Do you know what action was taken by Dr. Casumpang when you told
him that your son is experiencing a rapid breathing?
A: No action. He just asked me if my son has an asthma but I said none.
Q: So how long did Dr. Casumpang stay and attended your son on April
23?
A: More or less two (2) minutes then I followed him up to the door and I
repeated about the fever of my son.
Q: What did he tell you, if any, regarding that information you gave him
that your son had a fever?
A: He said, that is broncho pneumonia, Its only being active now.
[Emphasis supplied]
We also find it strange why Dr. Casumpang did not even bother to check
Edmers throat despite knowing that as early as 9:00 in the morning of
April 23, 1988, Edmer had blood streaks in his sputum. Neither did Dr.
Casumpang order confirmatory tests to confirm the source of bleeding.
The Physicians Progress Notes59 stated: "Blood streaks on phlegm can be
due to bronchial irritation or congestion," which clearly showed that Dr.
Casumpang merely assumed, without confirmatory physical examination,
that bronchopneumonia caused the bleeding.
Dr. Jaudian likewise opined that Dr. Casumpangs medical examination
was not comprehensive enough to reasonably lead to a correct
diagnosis.60 Dr. Casumpang only used a stethoscope in coming up with the
diagnosis that Edmer was suffering from bronchopneumonia; he never
confirmed this finding with the use of a bronchoscope. Furthermore, Dr.
Casumpang based his diagnosis largely on the chest x-ray result that is
generally inconclusive.61
Significantly, it was only at around 5:00 in the afternoon of April 23, 1988
(after Edmers third episode of bleeding) that Dr. Casumpang ordered the
conduct of hematocrit, hemoglobin, blood typing, blood transfusion and
tourniquet tests. These tests came too late, as proven by: (1) the blood
test results that came at about 6:00 in the evening, confirming that
Edmers illness had developed to "Dengue Hemorrhagic Fever;" and (2)
Dr. Jaudians testimony that "dengue fever could have been detected
earlier than 7:30 in the evening of April 23, 1988 because the symptoms
were already evident."62
In Spouses Flores v. Spouses Pineda,63 a case involving a medical
malpractice suit, the Court ruled that the petitioner doctors were negligent
because they failed to immediately order tests to confirm the patients
illness. Despite the doctors suspicion that the patient could be suffering
from diabetes, the former still proceeded to the D&C operation. In that
case, expert testimony showed that tests should have been ordered
immediately on admission to the hospital in view of the symptoms
presented. The Court held:
When a patient exhibits symptoms typical of a particular disease, these
symptoms should, at the very least, alert the physician of the possibility
that the patient may be afflicted with the suspected disease.
The Court also ruled that reasonable prudence would have shown that
diabetes and its complications were foreseeable harm. However, the
petitioner doctors failed to take this into consideration and proceeded with
the D&C operation. Thus, the Court ruled that they failed to comply with
their duty to observe the standard of care to be given to
hyperglycemic/diabetic patients.
Similarly, in Jarcia,64 involving the negligence of the doctors in failing to
exercise reasonable prudence in ascertaining the extent of the patients
injuries, this Court declared that:
In failing to perform an extensive medical examination to determine the
extent of Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of their
duties as members of the medical profession. Assuming for the sake of
argument that they did not have the capacity to make such thorough
evaluation at that stage, they should have referred the patient to another
doctor with sufficient training and experience instead of assuring him and
his mother that everything was all right. [Emphasis supplied]
Even assuming that Edmers symptoms completely coincided with the
diagnosis of bronchopneumonia (so that this diagnosis could not be
considered "wrong"), we still find Dr. Casumpang guilty of negligence.
First, we emphasize that we do not decide the correctness of a doctors
diagnosis, or the accuracy of the medical findings and treatment. Our duty
in medical malpractice cases is to decide based on the evidence adduced
and expert opinion presented whether a breach of duty took place.
Second, we clarify that a wrong diagnosis is not by itself medical
malpractice.65 Physicians are generally not liable for damages resulting
from a bona fide error of judgment. Nonetheless, when the physicians A: We ordered close monitoring of the blood pressure, the cardiac rate and
erroneous diagnosis was the result of negligent conduct (e.g., neglect of respiratory rate of the patient.
medical history, failure to order the appropriate tests, failure to recognize
symptoms), it becomes an evidence of medical malpractice. Q: Now, was your instructions carried on?

Third, we also note that medicine is not an exact science; 66 and doctors, or A: Yes, sir.
even specialists, are not expected to give a 100% accurate diagnosis in
treating patients who come to their clinic for consultations. Error is
Q: What was the blood pressure of the patient?
possible as the exercise of judgment is called for in considering and
reading the exhibited symptoms, the results of tests, and in arriving at
definitive conclusions. But in doing all these, the doctor must have acted A: During those times, the blood pressure of the patient was even normal
according to acceptable medical practice standards. during those times.

In the present case, evidence on record established that in confirming the Q: How about the respiratory rate?
diagnosis of bronchopneumonia, Dr. Casumpang selectively appreciated
some and not all of the symptoms presented, and failed to promptly A: The respiratory rate was fast because the patient in the beginning since
conduct the appropriate tests to confirm his findings. In sum, Dr. admission had difficulty in breathing.
Casumpang failed to timely detect dengue fever, which failure, especially
when reasonable prudence would have shown that indications of dengue Q: Then, after that, what did you do with the patient? Doctor?
were evident and/or foreseeable, constitutes negligence.

A: We transfused platelet concentrate and at the same time, we monitor

a. Negligence in the Treatment and Management of Dengue [sic] the patient.

Apart from failing to promptly detect dengue fever, Dr. Casumpang also Q: Then, who monitor [sic] the patient?
failed to promptly undertake the proper medical management needed for
this disease.
A: The pediatric resident on duty at that time.
As Dr. Jaudian opined, the standard medical procedure once the patient
had exhibited the classic symptoms of dengue fever should have been: Q: Now, what happened after that?
oxygen inhalation, use of analgesic, and infusion of fluids or
dextrose;67 and once the patient had twice vomited fresh blood, the doctor Q: While monitoring the patient, all his vital signs were _____; his blood
should have ordered: blood transfusion, monitoring of the patient every 30 pressure was normal so we continued with the supportive management at
minutes, hemostatic to stop bleeding, and oxygen if there is difficulty in that time.
breathing.68
Q: Now, after that?
Dr. Casumpang failed to measure up to these standards. The evidence
strongly suggests that he ordered a transfusion of platelet concentrate A: In the evening of April 23, 1988, I stayed in the hospital and I was
instead of blood transfusion. The tourniquet test was only conducted after informed by the pediatric resident on duty at around 11:15 in the evening
Edmers second episode of bleeding, and the medical management (as that the blood pressure of the patient went down to .60 palpatory.
reflected in the records) did not include antibiotic therapy and complete
physical examination. Dr. Casumpangs testimony states:
Q: What did you do upon receipt of that information?

Q: Now, after entertaining After considering that the patient Edmer

A: I immediately went up to the room of the patient and we changed the
Cortero was already suffering from dengue hemorrhagic fever, what did
IV fluid from the present fluid which was D5 0.3 sodium chloride to
you do, if any?
lactated ringers solution.
Q: You mean to say you increased the dengue [sic] of the intervenus [sic]
fluid?
A: We changed the IV fluid because lactated ringers was necessary to
resume the volume and to bring back the blood pressure, to increase the
blood pressure. [Emphasis supplied]
Although Dr. Casumpang presented the testimonies of Dr. Rodolfo Jagonap
and Dr. Ellewelyn Pasion (Dr. Pasion), Personnel Officer and Medical
Director of SJDH, respectively as well as the testimonies of Dr. Livelo and
Dr. Reyes (the radiologist who read Edmers chest x-ray result), these
witnesses failed to dispute the standard of action that Dr. Jaudian
established in his expert opinion. We cannot consider them expert
witnesses either for the sole reason that they did not testify on the
standard of care in dengue cases.69
On the whole, after examining the totality of the adduced evidence, we
find that the lower courts correctly did not rely on Dr. Casumpangs claim
that he exercised prudence and due diligence in handling Edmers case.
Aside from being self-serving, his claim is not supported by competent
evidence. As the lower courts did, we rely on the uncontroverted fact that
he failed, as a medical professional, to observe the most prudent medical
procedure under the circumstances in diagnosing and treating Edmer.
Dr. Sanga is Not Liable for Negligence
In considering the case of Dr. Sanga, the junior resident physician who
was on-duty at the time of Edmers confinement, we see the need to draw
distinctions between the responsibilities and corresponding liability of Dr.
Casumpang, as the attending physician, and that of Dr. Sanga.
In his testimony, Dr. Pasion declared that resident applicants are generally
doctors of medicine licensed to practice in the Philippines and who would
like to pursue a particular specialty.70 They are usually the front line
doctors responsible for the first contact with the patient. During the scope
of the residency program,71 resident physicians (or "residents")72 function
under the supervision of attending physicians73 or of the hospitals
teaching staff. Under this arrangement, residents operate merely as
subordinates who usually defer to the attending physician on the decision
to be made and on the action to be taken.
The attending physician, on the other hand, is primarily responsible for
managing the residents exercise of duties. While attending and resident
physicians share the collective responsibility to deliver safe and
appropriate care to the patients,74 it is the attending physician who
assumes the principal responsibility of patient care.75 Because he/she
exercises a supervisory role over the resident, and is ultimately
responsible for the diagnosis and treatment of the patient, the standards
applicable to and the liability of the resident for medical malpractice is
theoretically less than that of the attending physician. These relative
burdens and distinctions, however, do not translate to immunity from the
legal duty of care for residents,76 or from the responsibility arising from
their own negligent act.
In Jenkins v. Clark,77 the Ohio Court of Appeals held that the applicable
standard of care in medical malpractice cases involving first-year residents
was that of a reasonably prudent physician and not that of interns.
According to Jenkins:
It is clear that the standard of care required of physicians is not an
individualized one but of physicians in general in the community. In order
to establish medical malpractice, it must be shown by a preponderance of
the evidence that a physician did some particular thing or things that a
physician or surgeon of ordinary skill, care and diligence would not have
done under like or similar conditions or circumstances, or that he failed or
omitted to do some particular thing or things that a physician or surgeon
of ordinary skill, care and diligence would have done under like or similar
conditions or circumstances, and that the inquiry complained of was the
direct result of such doing or failing to do such thing or things.
We note that the standard of instruction given by the court was indeed a
proper one. It clearly informed the jury that the medical care required is
that of reasonably careful physicians or hospital emergency room
operators, not of interns or residents. [Emphasis supplied]
A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling and held
that interns and first-year residents are "practitioners of medicine required
to exercise the same standard of care applicable to physicians with
unlimited licenses to practice." The Indiana Court held that although a
first-year resident practices under a temporary medical permit, he/she
impliedly contracts that he/she has the reasonable and ordinary
qualifications of her profession and that he/she will exercise reasonable
skill, diligence, and care in treating the patient.
We find that Dr. Sanga was not independently negligent. Although she had
greater patient exposure, and was subject to the same standard of care
applicable to attending physicians, we believe that a finding of negligence
should also depend on several competing factors, among them, her
authority to make her own diagnosis, the degree of supervision of the
attending physician over her, and the shared responsibility between her
and the attending physicians.
In this case, before Dr. Sanga attended to Edmer, both Dr. Livelo and Dr.
Casumpang had diagnosed Edmer with bronchopneumonia. In her
testimony, Dr. Sanga admitted that she had been briefed about Edmers
condition, his medical history, and initial diagnosis;79 and based on these
pieces of information, she confirmed the finding of bronchopneumonia.
Dr. Sanga likewise duly reported to Dr. Casumpang, who admitted
receiving updates regarding Edmers condition.80There is also evidence
supporting Dr. Sangas claim that she extended diligent care to Edmer. In
fact, when she suspected during Edmers second episode of bleeding
that Edmer could be suffering from dengue fever, she wasted no time in
conducting the necessary tests, and promptly notified Dr. Casumpang
about the incident. Indubitably, her medical assistance led to the finding of
dengue fever.
We note however, that during Edmers second episode of bleeding,81 Dr.
Sanga failed to immediately examine and note the cause of the blood
specimen. Like Dr. Casumpang, she merely assumed that the blood in
Edmers phlegm was caused by bronchopneumonia. Her testimony states:
TSN, June 8, 1993:
Q: Let us get this clear, you said that the father told you the patient
cocked [sic] out phlegm.
A: With blood streak.
Q: Now, you stated specimen, were you not able to examine the
specimen?
A: No, sir, I did not because according to the father he wash [sic] his
hands.
xxxx
Q: Now, from you knowledge, what does that indicate if the patient expels
a phlegm and blood streak?
A: If a patient cocked [sic] out phlegm then the specimen could have
come from the lung alone.82 [Emphasis supplied]
xxxx
TSN, June 17, 1993:
Q: Now, in the first meeting you had, when that was relayed to you by the
father that Edmer Cortejo had coughed out blood, what medical action did
you take?
A: I examined the patient and I thought that, that coughed out phlegm
was a product of broncho pneumonia.
xxxx
Q: So what examination did you specifically conduct to see that there was
no internal bleeding? A: At that time I did not do anything to determine
the cause of coughing of the blood because I presumed that it was a
mucous (sic) produced by broncho pneumonia, And besides the patient did
not even show any signs of any other illness at that time.83
Based on her statements we find that Dr. Sanga was not entirely faultless.
Nevertheless, her failure to discern the import of Edmers second bleeding
does not necessarily amount to negligence as the respondent himself
admitted that Dr. Sanga failed to examine the blood specimen because he
wash edit away. In addition, considering the diagnosis previously made by
two doctors, and the uncontroverted fact that the burden of final diagnosis
pertains to the attending physician (in this case, Dr. Casumpang), we
believe that Dr. Sangas error was merely an honest mistake of judgment
influenced in no small measure by her status in the hospital hierarchy;
hence, she should not be held liable for medical negligence.
Dr. Jaudians Professional Competence and Credibility
One of the critical issues the petitioners raised in the proceedings before
the lower court and before this Court was Dr. Jaudians competence and
credibility as an expert witness. The petitioners tried to discredit his expert
testimony on the ground that he lacked the proper training and fellowship
status in pediatrics.
Criteria in Qualifying as an Expert Witness
The competence of an expert witness is a matter for the trial court to
decide upon in the exercise of its discretion. The test of qualification is
necessarily a relative one, depending upon the subject matter of the
investigation, and the fitness of the expert witness.84 In our jurisdiction,
the criterion remains to be the expert witness special knowledge
experience and practical training that qualify him/her to explain highly
technical medical matters to the Court.
In Ramos v. Court of Appeals,85 the Court found the expert witness, who is
a pulmonologist, not qualified to testify on the field of anesthesiology.
Similarly, in Cereno v. Court of Appeals,86 a 2012 case involving medical
negligence, the Court excluded the testimony of an expert witness whose
specialty was anesthesiology, and concluded that an anesthesiologist
cannot be considered an expert in the field of surgery or even in surgical
practices and diagnosis.
Interestingly in this case, Dr. Jaudian, the expert witness was admittedly
not a pediatrician but a practicing physician who specializes in
pathology.87 He likewise does not possess any formal residency training in
pediatrics. Nonetheless, both the lower courts found his knowledge
acquired through study and practical experience sufficient to advance an
expert opinion on dengue-related cases.
We agree with the lower courts.
A close scrutiny of Ramos and Cereno reveals that the Court primarily
based the witnesses disqualification to testify as an expert on their
incapacity to shed light on the standard of care that must be observed by
the defendant-physicians. That the expert witnesses specialties do not
match the physicians practice area only constituted, at most, one of the
considerations that should not be taken out of context. After all, the sole
function of a medical expert witness, regardless of his/her specialty, is to
afford assistance to the courts on medical matters, and to explain the
medical facts in issue.
Furthermore, there was no reasonable indication in Ramos and Cereno
that the expert witnesses possess a sufficient familiarity with the standard
of care applicable to the physicians specialties. US jurisprudence on
medical malpractice demonstrated the trial courts wide latitude of
discretion in allowing a specialist from another field to testify against a
defendant specialist.
In Brown v. Sims,88 a neurosurgeon was found competent to give expert
testimony regarding a gynecologist's standard of pre-surgical care. In that
case, the court held that since negligence was not predicated on the
gynecologists negligent performance of the operation, but primarily on the
claim that the pre-operative histories and physicals were inadequate, the
neurosurgeon was competent to testify as an expert.
Frost v. Mayo Clinic89 also allowed an orthopedic surgeon to testify against
a neurologist in a medical malpractice action. The court considered that
the orthopedic surgeons opinion on the "immediate need for
decompression" need not come from a specialist in neurosurgery. The
court held that:
It is well established that "the testimony of a qualified medical doctor
cannot be excluded simply because he is not a specialist x x x." The
matter of "x x x training and specialization of the witness goes to the
weight rather than admissibility x x x."
xxxx
It did not appear to the court that a medical doctor had to be a specialist
in neurosurgery to express the opinions permitted to be expressed by
plaintiffs doctors, e.g., the immediate need for a decompression in the
light of certain neurological deficits in a post-laminectomy patient. As
stated above, there was no issue as to the proper execution of the
neurosurgery. The medical testimony supported plaintiffs theory of
negligence and causation. (Citations omitted)
In another case,90 the court declared that it is the specialists knowledge of
the requisite subject matter, rather than his/her specialty that determines
his/her qualification to testify.
Also in Evans v. Ohanesian,91 the court set a guideline in qualifying an
expert witness:
To qualify a witness as a medical expert, it must be shown that the
witness (1) has the required professional knowledge, learning and skill of
the subject under inquiry sufficient to qualify him to speak with authority
on the subject; and (2) is familiar with the standard required of a
physician under similar circumstances; where a witness has disclosed
sufficient knowledge of the subject to entitle his opinion to go to the jury,
the question of the degree of his knowledge goes more to the weight of
the evidence than to its admissibility.
xxxx
Nor is it critical whether a medical expert is a general practitioner or a
specialist so long as he exhibits knowledge of the subject. Where a duly
licensed and practicing physician has gained knowledge of the standard of
care applicable to a specialty in which he is not directly engaged but as to
which he has an opinion based on education, experience, observation, or
association wit that specialty, his opinion is competent.(Emphasis
supplied)
Finally, Brown v. Mladineo92 adhered to the principle that the witness
familiarity, and not the classification by title or specialty, which should
control issues regarding the expert witness qualifications:
The general rule as to expert testimony in medical malpractice actions is
that "a specialist in a particular branch within a profession will not be
required." Most courts allow a doctor to testify if they are satisfied of his
familiarity with the standards of a specialty, though he may not practice
the specialty himself. One court explained that "it is the scope of the
witness knowledge and not the artificial classification by title that should
govern the threshold question of admissibility. (Citations omitted)
Application to the Present Case
In the case and the facts before us, we find that Dr. Jaudian is competent
to testify on the standard of care in dengue fever cases.1avvphi1
Although he specializes in pathology, it was established during trial that he
had attended not less than 30 seminars held by the Pediatric Society, had
exposure in pediatrics, had been practicing medicine for 16 years, and had
handled not less than 50 dengue related cases.
As a licensed medical practitioner specializing in pathology, who had
practical and relevant exposure in pediatrics and dengue related cases, we
are convinced that Dr. Jaudian demonstrated sufficient familiarity with the
standard of care to be applied in dengue fever cases. Furthermore, we
agree that he possesses knowledge and experience sufficient to qualify
him to speak with authority on the subject.
The Causation Between Dr. Casumpangs
Negligent Act/Omission, and the Patients
Resulting Death was Adequately Proven
Dr. Jaudians testimony strongly suggests that due to Dr. Casumpangs
failure to timely diagnose Edmer with dengue, the latter was not
immediately given the proper treatment. In fact, even after Dr.
Casumpang had discovered Edmers real illness, he still failed to promptly
perform the standard medical procedure. We agree with these findings.
As the respondent had pointed out, dengue fever, if left untreated, could
be a life threatening disease. As in any fatal diseases, it requires
immediate medical attention.93 With the correct and timely diagnosis,
coupled with the proper medical management, dengue fever is not a life
threatening disease and could easily be cured.94
Furthermore, as Dr. Jaudian testified, with adequate intensive care, the
mortality rate of dengue fever should fall to less than 2%. Hence, the
survival of the patient is directly related to early and proper management
of the illness.95
To reiterate, Dr. Casumpang failed to timely diagnose Edmer with dengue
fever despite the presence of its characteristic symptoms; and as a
consequence of the delayed diagnosis, he also failed to promptly manage
Edmers illness. Had he immediately conducted confirmatory tests, (i.e.,
tourniquet tests and series of blood tests)and promptly administered the
proper care and management needed for dengue fever, the risk of
complications or even death, could have been substantially reduced.
Furthermore, medical literature on dengue shows that early diagnosis and
management of dengue is critical in reducing the risk of complications and
avoiding further spread of the virus.96 That Edmer later died of
"Hypovolemic Shock/hemorrhagic shock," "Dengue Hemorrhagic Fever
Stage IV," a severe and fatal form of dengue fever, established the causal
link between Dr. Casumpangs negligence and the injury.
Based on these considerations, we rule that the respondent successfully
proved the element of causation.
Liability of SJDH
We now discuss the liability of the hospital.
The respondent submits that SJDH should not only be held vicariously
liable for the petitioning doctors negligence but also for its own
negligence. He claims that SJDH fell short of its duty of providing its
patients with the necessary facilities and equipment as shown by the
following circumstances:
(a) SJDH was not equipped with proper paging system;
(b) the number of its doctors is not proportionate to the number of
patients;
(c) SJDH was not equipped with a bronchoscope;
(d) when Edmers oxygen was removed, the medical staff did not
immediately provide him with portable oxygen;
(e) when Edmer was about to be transferred to another hospital,
SJDHs was not ready and had no driver; and
(f) despite Edmers critical condition, there was no doctor
attending to him from 5:30 p.m. of April 22, to 9:00 a.m. of April
23, 1988.
SJDH on the other hand disclaims liability by claiming that the petitioning
doctors are not its employees but are mere consultants and independent
contractors.
We affirm the hospitals liability not on the basis of Article 2180 of the Civil
Code, but on the basis of the doctrine of apparent authority or agency by
estoppel.
There is No Employer-Employee Relationship
Between SJDH and the Petitioning Doctors
In determining whether an employer-employee relationship exists between
the parties, the following elements must be present: (1) selection and
engagement of services; (2) payment of wages; (3) the power to hire and
fire; and (4) the power to control not only the end to be achieved, but the
means to be used in reaching such an end.97
providing care at the hospital, regardless of whether the physician is an
independent contractor, unless the patient knows, or should have known,
that the physician is an independent contractor. The elements of the action
have been set out as follows:
For a hospital to be liable under the doctrine of apparent authority, a
plaintiff must show that: (1) the hospital, or its agent, acted in a manner
that would lead a reasonable person to conclude that the individual who
was alleged to be negligent was an employee or agent of the hospital; (2)
where the acts of the agent create the appearance of authority, the
plaintiff must also prove that the hospital had knowledge of and
acquiesced in them; and (3) the plaintiff acted in reliance upon the
conduct of the hospital or its agent, consistent with ordinary care and
prudence. (Emphasis supplied)

Control, which is the most crucial among the elements, is not present in
The doctrine was applied in Nogales v. Capitol Medical Center 101 where this
this case.
Court, through the ponencia of Associate Justice Antonio T. Carpio,
discussed the two factors in determining hospital liability as follows:
Based on the records, no evidence exists showing that SJDH exercised any
degree of control over the means, methods of procedure and manner by
The first factor focuses on the hospitals manifestations and is sometimes
which the petitioning doctors conducted and performed their medical
described as an inquiry whether the hospital acted in a manner which
profession. SJDH did not control their diagnosis and treatment. Likewise,
would lead a reasonable person to conclude that the individual who was
no evidence was presented to show that SJDH monitored, supervised, or
alleged to be negligent was an employee or agent of the hospital. In this
directed the petitioning doctors in the treatment and management of
regard, the hospital need not make express representations to the patient
Edmers case. In these lights, the petitioning doctors were not employees
that the treating physician is an employee of the hospital; rather a
of SJDH, but were mere independent contractors.
representation may be general and implied.

SJDH is Solidarily Liable Based

xxxx
on The Principle of Agency or Doctrine
of Apparent Authority
The second factor focuses on the patient's reliance. It is sometimes
characterized as an inquiry on whether the plaintiff acted in reliance upon
Despite the absence of employer-employee relationship between SJDH and
the conduct of the hospital or its agent, consistent with ordinary care and
the petitioning doctors, SJDH is not free from liability.98
prudence. (Citation omitted)

As a rule, hospitals are not liable for the negligence of its independent
In sum, a hospital can be held vicariously liable for the negligent acts of a
contractors. However, it may be found liable if the physician or
physician (or an independent contractor) providing care at the hospital if
independent contractor acts as an ostensible agent of the hospital. This
the plaintiff can prove these two factors: first, the hospitals
exception is also known as the "doctrine of apparent authority."99
manifestations; and second, the patients reliance.

The US case of Gilbert v. Sycamore Municipal Hospital100 abrogated the

hospitals immunity to vicarious liability of independent contractor
physicians. In that case, the Illinois Supreme Court held that under the
doctrine of apparent authority, hospitals could be found vicariously liable
for the negligence of an independent contractor:
Therefore, we hold that, under the doctrine of apparent authority, a
hospital can be held vicariously liable for the negligent acts of a physician
a. Hospitals manifestations
It involves an inquiry on whether the hospital acted in a manner that
would lead a reasonable person to conclude that the individual alleged to
be negligent was an employee or agent of the hospital. As pointed out in
Nogales, the hospital need not make express representations to the
patient that the physician or independent contractor is an employee of the
hospital; representation may be general and implied.102
In Pamperin v. Trinity Memorial Hospital,103 questions were raised on
"what acts by the hospital or its agent are sufficient to lead a reasonable
person to conclude that the individual was an agent of the hospital." In
ruling that the hospitals manifestations can be proven without the express
representation by the hospital, the court relied on several cases from other
jurisdictions, and held that:
(1) the hospital, by providing emergency room care and by failing
to advise patients that they were being treated by the hospitals
agent and not its employee, has created the appearance of
agency; and
(2) patients entering the hospital through the emergency room,
could properly assume that the treating doctors and staff of the
hospital were acting on its behalf.1wphi1
In this case, the court considered the act of the hospital of holding itself
out as provider of complete medical care, and considered the hospital to
have impliedly created the appearance of authority.
b. Patients reliance
It involves an inquiry on whether the plaintiff acted in reliance on the
conduct of the hospital or its agent, consistent with ordinary care and
prudence.104
In Pamperin, the court held that the important consideration in
determining the patients reliance is: whether the plaintiff is seeking care
from the hospital itself or whether the plaintiff is looking to the hospital
merely as a place for his/her personal physician to provide medical
care.105 Thus, this requirement is deemed satisfied if the plaintiff can prove
that he/she relied upon the hospital to provide care and treatment, rather
than upon a specific physician. In this case, we shall limit the
determination of the hospitals apparent authority to Dr. Casumpang, in
view of our finding that Dr. Sanga is not liable for negligence.
SJDH Clothed Dr. Casumpang With Apparent Authority
SJDH impliedly held out and clothed Dr. Casumpang with apparent
authority leading the respondent to believe that he is an employee or
agent of the hospital.
Based on the records, the respondent relied on SJDH rather than upon Dr.
Casumpang, to care and treat his son Edmer. His testimony during trial
showed that he and his wife did not know any doctors at SJDH; they also
did not know that Dr. Casumpang was an independent contractor. They
brought their son to SJDH for diagnosis because of their family doctors
referral. The referral did not specifically point to Dr. Casumpang or even to
Dr. Sanga, but to SJDH. Significantly, the respondent had relied on SJDHs
representation of Dr. Casumpangs authority. To recall, when Mrs. Cortejo
presented her Fortune Care card, she was initially referred to the Fortune
Care coordinator, who was then out of town. She was thereafter referred
to Dr. Casumpang, who is also accredited with Fortune Care. In both
instances, SJDH through its agent failed to advise Mrs. Cortejo that Dr.
Casumpang is an independent contractor.
Mrs. Cortejo accepted Dr. Casumpangs services on the reasonable belief
that such were being provided by SJDH or its employees, agents, or
servants. By referring Dr. Casumpang to care and treat for Edmer, SJDH
impliedly held out Dr. Casumpang, not only as an accredited member of
Fortune Care, but also as a member of its medical staff. SJDH cannot now
disclaim liability since there is no showing that Mrs. Cortejo or the
respondent knew, or should have known, that Dr. Casumpang is only an
independent contractor of the hospital. In this case, estoppel has already
set in.
We also stress that Mrs. Cortejos use of health care plan (Fortune Care)
did not affect SJDHs liability. The only effect of the availment of her
Fortune Care card benefits is that her choice of physician is limited only to
physicians who are accredited with Fortune Care. Thus, her use of health
care plan in this case only limited the choice of doctors (or coverage of
services, amount etc.) and not the liability of doctors or the hospital.
WHEREFORE, premises considered, this Court PARTLY GRANTS the
consolidated petitions. The Court finds Dr. Noel Casumpang and San Juan
de Dios Hospital solidarily liable for negligent medical practice. We SET
ASIDE the finding of liability as to Dr. Ruby Miranda-Sanga. The amounts
of 45,000.00 as actual damages and 500,000.00 as moral damages
should each earn legal interest at the rate of six percent (6%) per annum
computed from the date of the judgment of the trial court. The Court
AFFIRMS the rest of the Decision dated October 29, 2004 and the
Resolution dated January 12, 2006 in CA-G.R. CV No. 56400.
SO ORDERED.
G.R. No. 191018 test. However, the tests were not conclusive enough to confirm that she
had appendicitis.
CARLOS BORROMEO, Petitioner,
vs. Meanwhile, Lilians condition did not improve. She suffered from spiking
FAMILY CARE HOSPITAL, INC. and RAMON S. INSO, fever and her abdominal pain worsened. The increasing tenderness of her
M.D., Respondents. stomach, which was previously confined to her lower right side, had also
extended to her lower left side. Lilian abruptly developed an acute surgical
DECISION abdomen.

BRION, J.: On July 15, 1999, Dr. Inso decided to conduct an exploratory laparotomy
on Lilian because of the findings on her abdomen and his fear that she
might have a ruptured appendix. Exploratory laparotomy is a surgical
Carlos Borromeo lost his wife Lillian when she died after undergoing a
procedure involving a large incision on the abdominal wall that would
routine appendectomy. The hospital and the attending surgeon submit that
enable Dr. Inso to examine the abdominal cavity and identify the cause of
Lillian bled to death due to a rare, life-threatening condition that
Lilians symptoms. After explaining the situation, Dr. Inso obtained the
prevented her blood from clotting normally. Carlos believes, however, that
patients consent to the laparotomy.
the hospital and the surgeon were simply negligent in the care of his late
wife.
At around 3:45 P.M., Lilian was brought to the operating room where Dr.
Inso conducted the surgery. During the operation, Dr. Inso confirmed that
On January 22, 2010, the Court of Appeals (CA) in CA-G.R CV No.
Lilian was suffering from acute appendicitis. He proceeded to remove her
890961 dismissed Carlos' complaint and thus reversed the April 10, 2007
appendix which was already infected and congested with pus.
decision of the Regional Trial Court (RTC) in Civil Case No. 2000-603-
MK2 which found the respondents liable for medical negligence.
The operation was successful. Lilians appearance and vital signs
improved. At around 7:30 P.M., Lilian was brought back to her private
The present petition for review on certiorari seeks to reverse the CAs
room from the recovery room.
January 22, 2010 decision.

At around 1:30 A.M. on July 16, 1999, roughly six hours after Lilian was
ANTECEDENTS
brought back to her room, Dr. Inso was informed that her blood pressure
was low. After assessing her condition, he ordered the infusion of more
The petitioner, Carlos Borromeo, was the husband of the late Lilian V. intravenous (IV) fluids which somehow raised her blood pressure.
Borromeo (Lilian). Lilian was a patient of the respondent Family Care
Hospital, Inc. (Family Care) under the care of respondent Dr. Ramon Inso
Despite the late hour, Dr. Inso remained in the hospital to monitor Lilians
(Dr. Inso).
condition. Subsequently, a nurse informed him that Lilian was becoming
restless. Dr. Inso immediately went to Lilian and saw that she was quite
On July 13, 1999, the petitioner brought his wife to the Family Care pale. He immediately requested a blood transfusion.
Hospital because she had been complaining of acute pain at the lower
stomach area and fever for two days. She was admitted at the hospital
Lilian did not respond to the blood transfusion even after receiving two
and placed under the care of Dr. Inso.
500 cc-units of blood. Various drugs, such as adrenaline or epinephrine,
were administered.
Dr. Inso suspected that Lilian might be suffering from acute appendicitis.
However, there was insufficient data to rule out other possible causes and
Eventually, an endotracheal tube connected to an oxygen tank was
to proceed with an appendectomy. Thus, he ordered Lilians confinement
inserted into Lilian to ensure her airway was clear and to compensate for
for testing and evaluation.
the lack of circulating oxygen in her body from the loss of red blood cells.
Nevertheless, her condition continued to deteriorate.
Over the next 48 hours, Lilian underwent multiple tests such as complete
blood count, urinalysis, stool exam, pelvic ultrasound, and a pregnancy
Dr. Inso observed that Lilian was developing petechiae in various parts of
her body. Petechiae are small bruises caused by bleeding under the skin
whose presence indicates a blood-coagulation problem a defect in the
ability of blood to clot. At this point, Dr. Inso suspected that Lilian
had Disseminated Intravascular Coagulation (DIC), a blood disorder
characterized by bleeding in many parts of her body caused by the
consumption or the loss of the clotting factors in the blood. However, Dr.
Inso did not have the luxury to conduct further tests because the
immediate need was to resuscitate Lilian.
Dr. Inso and the nurses performed cardiopulmonary resuscitation (CPR) on
Lilian. Dr. Inso also informed her family that there may be a need to re-
operate on her, but she would have to be put in an Intensive Care Unit
(ICU). Unfortunately, Family Care did not have an ICU because it was only
a secondary hospital and was not required by the Department of Health to
have one. Dr. Inso informed the petitioner that Lilian would have to be
transferred to another hospital.
At around 3:30 A.M., Dr. Inso personally called the Perpetual Help Medical
Center to arrange Lilians transfer, but the latter had no available bed in its
ICU. Dr. Inso then personally coordinated with the Muntinlupa Medical
Center (MMC) which had an available bed.
At around 4:00 A.M., Lilian was taken to the MMC by ambulance
accompanied by the resident doctor on duty and a nurse. Dr. Inso followed
closely behind in his own vehicle.
Upon reaching the MMC, a medical team was on hand to resuscitate Lilian.
A nasogastric tube (NGT) was inserted and IV fluids were immediately
administered to her. Dr. Inso asked for a plasma expander. Unfortunately,
at around 10:00 A.M., Lilian passed away despite efforts to resuscitate
her.
At the request of the petitioner, Lilians body was autopsied at the
Philippine National Police (PNP) Camp Crame Crime Laboratory. Dr.
Emmanuel Reyes (Dr. Reyes), the medico-legal assigned to the laboratory,
conducted the autopsy. Dr. Reyes summarized his notable findings as:
x x x I opened up the body and inside the abdominal cavity which you call
peritoneal cavity there were 3,000 ml of clot and unclot blood accumulated
thereat. The peritoneal cavity was also free from any adhesion. Then, I
opened up the head and the brain revealed paper white in color and the
heart revealed abundant petechial hemorrhages from the surface and it
was normal. The valvular leaflets were soft and pliable, and of course, the
normal color is reddish brown as noted. And the coronary arteries which
supply the heart were normal and unremarkable. Next, the lungs appears
[sic] hemorrhagic. That was the right lung while the left lung was
collapsed and paled. For the intestines, I noted throughout the entire
lengths of the small and large intestine were hemorrhagic areas. Noted
absent is the appendix at the ileo-colic area but there were continuous
suture repair done thereat. However, there was a 0.5 x 0.5 cm opening or
left unrepaired at that time. There was an opening on that repair site.
Meaning it was not repaired. There were also at that time clot and unclot
blood found adherent thereon. The liver and the rest of the visceral organs
were noted exhibit [sic] some degree of pallor but were otherwise normal.
The stomach contains one glassful about 400 to 500 ml.3
Dr. Reyes concluded that the cause of Lilians death was hemorrhage due
to bleeding petechial blood vessels: internal bleeding. He further
concluded that the internal bleeding was caused by the 0.5 x 0.5 cm
opening in the repair site. He opined that the bleeding could have been
avoided if the site was repaired with double suturing instead of the single
continuous suture repair that he found.
Based on the autopsy, the petitioner filed a complaint for damages against
Family Care and against Dr. Inso for medical negligence.
During the trial, the petitioner presented Dr. Reyes as his expert witness.
Dr. Reyes testified as to his findings during the autopsy and his opinion
that Lilians death could have been avoided if Dr. Inso had repaired the
site with double suture rather than a single suture.
However, Dr. Reyes admitted that he had very little experience in the field
of pathology and his only experience was an on-the-job training at the V.
Luna Hospital where he was only on observer status. He further admitted
that he had no experience in appendicitis or appendectomy and that
Lilians case was his first autopsy involving a death from appendectomy.
Moreover, Dr. Reyes admitted that he was not intelligently guided during
the autopsy because he was not furnished with clinical, physical, gross,
histopath, and laboratory information that were important for an accurate
conclusion. Dr. Reyes also admitted that an appendical stump is initially
swollen when sutured and that the stitches may loosen during the healing
process when the initial swelling subside.
In their defense, Dr. Inso and Family Care presented Dr. Inso, and expert
witnesses Dr. Celso Ramos (Dr. Ramos) and Dr. Herminio Hernandez (Dr.
Hernandez).
Dr. Ramos is a practicing pathologist with over 20 years of experience. He
is an associate professor at the Department of Surgery of the Fatima
Medical Center, the Manila Central University, and the Perpetual Help
Medical Center. He is a Fellow of the Philippine College of Surgeons, a
Diplomate of the Philippine Board of Surgery, and a Fellow of the Philippine
Society of General Surgeons.
Dr. Ramos discredited Dr. Reyes theory that the 0.5 x 0.5 cm opening at
the repair site caused Lilians internal bleeding. According to Dr. Ramos,
appendical vessels measure only 0.1 to 0.15 cm, a claim that was not
refuted by the petitioner. If the 0.5 x 0.5 cm opening had caused Lilians
hemorrhage, she would not have survived for over 16 hours; she would
have died immediately, within 20 to 30 minutes, after surgery.
Dr. Ramos submitted that the cause of Lilians death was hemorrhage due
to DIC, a blood disorder that leads to the failure of the blood to coagulate.
Dr. Ramos considered the abundant petechial hemorrhage in the
myocardic sections and the hemorrhagic right lung; the multiple bleeding
points indicate that Lilian was afflicted with DIC.
Meanwhile, Dr. Hernandez is a general surgeon and a hospital
administrator who had been practicing surgery for twenty years as of the
date of his testimony.
Dr. Hernandez testified that Lilians death could not be attributed to the
alleged wrong suturing. He submitted that the presence of blood in the
lungs, in the stomach, and in the entire length of the bowels cannot be
reconciled with Dr. Reyes theory that the hemorrhage resulted from a
single-sutured appendix.
Dr. Hernandez testified that Lilian had uncontrollable bleeding in the
microcirculation as a result of DIC. In DIC, blood oozes from very small
blood vessels because of a problem in the clotting factors of the blood
vessels. The microcirculation is too small to be seen by the naked eye; the
red cell is even smaller than the tip of a needle. Therefore, the alleged
wrong suturing could not have caused the amount of hemorrhaging that
caused Lilians death.
Dr. Hernandez further testified that the procedure that Dr. Inso performed
was consistent with the usual surgical procedure and he would not have
done anything differently.4
The petitioner presented Dr. Rudyard Avila III (Dr. Avila) as a rebuttal
witness. Dr. Avila, also a lawyer, was presented as an expert in medical
jurisprudence. Dr. Avila testified that between Dr. Reyes who autopsied
the patient and Dr. Ramos whose findings were based on medical records,
greater weight should be given to Dr. Reyes testimony.
On April 10, 2007, the RTC rendered its decision awarding the petitioner
P88,077.50 as compensatory damages; P50,000.00 as death indemnity;
P3,607,910.30 as loss of earnings; P50,000.00 as moral damages;
P30,000.00 as exemplary damages; P50,000.00 as attorneys fees, and
the costs of the suit.
The RTC relied on Dr. Avilas opinion and gave more weight to Dr. Reyes
findings regarding the cause of Lilians death. It held that Dr. Inso was
negligent in using a single suture on the repair site causing Lilians death
by internal hemorrhage. It applied the doctrine of res ipsa loquitur, holding
that a patients death does not ordinarily occur during an appendectomy.
The respondents elevated the case to the CA and the appeal was docketed
as CA-G.R. CV No. 89096.
On January 22, 2010, the CA reversed the RTCs decision and dismissed
the complaint. The CA gave greater weight to the testimonies of Dr.
Hernandez and Dr. Ramos over the findings of Dr. Reyes because the
latter was not an expert in pathology, appendectomy, nor in surgery. It
disregarded Dr. Avilas opinion because the basic premise of his testimony
was that the doctor who conducted the autopsy is a pathologist of equal or
of greater expertise than Dr. Ramos or Dr. Hernandez.
The CA held that there was no causal connection between the alleged
omission of Dr. Inso to use a double suture and the cause of Lilians death.
It also found that Dr. Inso did, in fact, use a double suture ligation with a
third silk reinforcement ligation on the repair site which, as Dr. Reyes
admitted on cross-examination, loosened up after the initial swelling of the
stump subsided.
The CA denied the applicability of the doctrine of res ipsa loquitur because
the element of causation between the instrumentality under the control
and management of Dr. Inso and the injury that caused Lilians death was
absent; the respondents sufficiently established that the cause of Lilians
death was DIC.
On March 18, 2010, the petitioner filed the present petition for review
on certiorari.
THE PETITION
The petitioner argues: (1) that Dr. Inso and Family Care were negligent in
caring for Lilian before, during, and after her appendectomy and were
responsible for her death; and (2) that the doctrine of res ipsa loquitur is
applicable to this case.
In their Comment, the respondents counter: (1) that the issues raised by
the petitioner are not pure questions of law; (2) that they exercised
utmost care and diligence in the treatment of Lilian; (3) that Dr. Inso did
not deviate from the standard of care observed under similar
circumstances by other members of the profession in good standing; (4)
that res ipsa loquitur is not applicable because direct evidence as to the
cause of Lilians death and the presence/absence of negligence is
available; and (5) that doctors are not guarantors of care and cannot be
held liable for the death of their patients when they exercised diligence
and did everything to save the patient.
OUR RULING
The petition involves factual questions.
Under Section 1 of Rule 45, a petition for review on certiorari shall only
raise questions of law. The Supreme Court is not a trier of facts and it is
not our function to analyze and weigh evidence that the lower courts had
already passed upon.
The factual findings of the Court of Appeals are, as a general rule,
conclusive upon this Court. However, jurisprudence has also carved out
recognized exceptions 5 to this rule, to wit: (1) when the findings are
grounded entirely on speculation, surmises, or conjectures;6 (2) when the
inference made is manifestly mistaken, absurd, or impossible;7 (3) when
there is grave abuse of discretion;8 (4) when the judgment is based on a
misapprehension of facts;9 (5) when the findings of facts are
conflicting;10 (6) when in making its findings the Court of Appeals went
beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; 11(7) when the
findings are contrary to those of the trial courts;12 (8) when the
findings are conclusions without citation of specific evidence on which they
are based;13 (9) when the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the
respondent;14 (10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record;15 and
(11) when the Court of Appeals manifestly overlooked certain relevant
facts not disputed by the parties, which, if properly considered, would
justify a different conclusion.16
Considering that the CAs findings with respect to the cause of Lilians
death contradict those of the RTC, this case falls under one of the
exceptions. The Court will thus give due course to the petition to dispel
any perception that we denied the petitioner justice.
The requisites of establishing medical malpractice
Whoever alleges a fact has the burden of proving it. This is a basic legal
principle that equally applies to civil and criminal cases. In a medical
malpractice case, the plaintiff has the duty of proving its elements,
namely: (1) a duty of the defendant to his patient; (2) the
defendants breach of this duty; (3) injury to the patient; and
(4) proximate causation between the breach and the injury suffered.17 In
civil cases, the plaintiff must prove these elements by a preponderance of
evidence.
A medical professional has the duty to observe the standard of care and
exercise the degree of skill, knowledge, and training ordinarily expected of
other similarly trained medical professionals acting under the same
circumstances.18 A breach of the accepted standard of care constitutes
negligence or malpractice and renders the defendant liable for the
resulting injury to his patient.19
The standard is based on the norm observed by other reasonably
competent members of the profession practicing the same field of
medicine.20 Because medical malpractice cases are often highly technical,
expert testimony is usually essential to establish: (1) the standard of care
that the defendant was bound to observe under the circumstances; (2)
that the defendants conduct fell below the acceptable standard; and (3)
that the defendants failure to observe the industry standard caused injury
to his patient.21
The expert witness must be a similarly trained and experienced physician.
Thus, a pulmonologist is not qualified to testify as to the standard of care
required of an anesthesiologist22 and an autopsy expert is not qualified to
testify as a specialist in infectious diseases.23
The petitioner failed to present an expert witness.
In ruling against the respondents, the RTC relied on the findings of Dr.
Reyes in the light of Dr. Avilas opinion that the formers testimony should
be given greater weight than the findings of Dr. Ramos and Dr.
Hernandez. On the other hand, the CA did not consider Dr. Reyes or Dr.
Avila as expert witnesses and disregarded their testimonies in favor of Dr.
Ramos and Dr. Hernandez. The basic issue, therefore, is whose
testimonies should carry greater weight?
We join and affirm the ruling of the CA.
Other than their conclusion on the culpability of the respondents, the CA
and the RTC have similar factual findings. The RTC ruled against the
respondents based primarily on the following testimony of Dr. Reyes.
Witness: Well, if I remember right during my residency in my
extensive training, during the operation of the appendix, your Honor, it
should really be sutured twice which we call double.
Court: What would be the result if there is only single?
Witness: We cannot guarranty [sic] the bleeding of the sutured blood
vessels, your Honor.
Court: So, the bleeding of the patient was caused by the single suture?
Witness: It is possible.24
Dr. Reyes testified that he graduated from the Manila Central University
(MCU) College of Medicine and passed the medical board exams in
1994.25 He established his personal practice at his house clinic before
being accepted as an on-the-job trainee in the Department of Pathology at
the V. Luna Hospital in 1994. In January 1996, he joined the PNP Medico-
Legal Division and was assigned to the Crime Laboratory in Camp Crame.
He currently heads the Southern Police District Medico-Legal division.26 His
primary duties are to examine victims of violent crimes and to conduct
traumatic autopsies to determine the cause of death.
After having conducted over a thousand traumatic autopsies, Dr. Reyes
can be considered an expert in traumatic autopsies or autopsies involving
violent deaths. However, his expertise in traumatic autopsies does not
necessarily make him an expert in clinical and pathological autopsies or in
surgery.
Moreover, Dr. Reyes cross-examination reveals that he was less than
candid about his qualifications during his initial testimony:
Atty. Castro: Dr. Reyes, you mentioned during your direct testimony last
March 5, 2002 that you graduated in March of 1994, is that correct?
Witness: Yes, sir.
Atty. Castro: You were asked by Atty. Fajardo, the counsel for the plaintiff,
when did you finish your medical works, and you answered the following
year of your graduation which was in 1994?
Witness: Not in 1994, it was in 1984, sir.
Atty. Castro: And after you graduated Mr. Witness, were there further
study that you undergo after graduation? [sic]
Witness: It was during my service only at the police organization that I
was given the chance to attend the training, one year course.
Atty. Castro: Did you call that what you call a post graduate internship?
Witness: Residency.
Atty. Castro: Since you call that a post graduate, you were not undergo
post graduate? [sic]
Witness: I did.
Atty. Castro: Where did you undergo a post graduate internship?
Witness: Before I took the board examination in the year 1984, sir.
Atty. Castro: That was where?
Witness: MCU Hospital, sir.
Atty. Castro: After the post graduate internship that was the time you took
the board examination?
Witness: Yes, sir.
Atty. Castro: And I supposed that you did it for the first take?
Witness: Yes, sir.
Atty. Castro: Are you sure of that?
Witness: Yes, sir.
Atty. Castro: After you took the board examination, did you pursue any
study?
Witness: During that time, no sir.
Atty. Castro: You also testified during the last hearing that "page 6 of
March 5, 2002, answer of the witness: then I was accepted as on the job
training at the V. Luna Hospital at the Department of Pathologist in 1994",
could you explain briefly all of this Mr. witness?
Witness: I was given an order that I could attend the training only as a
civilian not as a member of the AFP because at that time they were
already in the process of discharging civilian from undergoing training.
Atty. Castro: So in the Department of Pathology, what were you assigned
to?
Witness: Only as an observer status.
Atty. Castro: So you only observed.
Witness: Yes, sir.
Atty. Castro: And on the same date during your direct testimony on March
5, 2002, part of which reads "well if I remember right during my residency
in my extensive training during the operation of the appendix," what do
you mean by that Mr. witness?
Witness: I was referring to my internship, sir.
Atty. Castro: So this is not a residency training?
Witness: No, sir.
Atty. Castro: This is not a specialty training?
Witness: No, sir.
Atty. Castro: This was the time the year before you took the board
examination?
Witness: Thats right, sir. Yes, sir.
Atty. Castro: You were not then a license[d] doctor?
Witness: No, sir.
Atty. Castro: And you also mentioned during the last hearing shown by
page 8 of the same transcript of the stenographic notes, dated March 5,
2002 and I quote "and that is your residence assignment?", and you
answered "yes, sir." What was the meaning of your answer? What do you
mean when you say yes, sir?
xxxx
Witness: Okay, I stayed at the barracks of the Southern Police
District Fort Bonifacio.
Atty. Castro: So this is not referring to any kind of training?
Witness: No, sir.
Atty. Castro: This is not in anyway related to appendicitis?
Witness: No, sir.27
Atty. Reyes appears to have inflated his qualifications during his direct
testimony. First, his "extensive training during [his] residency" was neither
extensive actual training, nor part of medical residency. His assignment to
the V. Luna Hospital was not as an on-the-job trainee but as a
mere observer. This assignment was also before he was actually licensed
as a doctor. Dr. Reyes also loosely used the terms "residence" and
"residency" terms that carry a technical meaning with respect to medical
practice during his initial testimony28 to refer to (1) his physical place of
dwelling and (2) his internship before taking the medical board exams.
This misled the trial court into believing that he was more qualified to give
his opinion on the matter than he actually was.
Perhaps nothing is more telling about Dr. Reyes lack of expertise in the
subject matter than the petitioners counsels own admission during Dr.
Reyes cross examination.
Atty. Castro: How long were you assigned to observe with the Department
of Pathology?
Witness: Only 6 months, sir.
Atty. Castro: During your studies in the medical school, Mr. Witness, do
you recall attending or having participated or [sic] what you call motivity
mortality complex?
Atty. Fajardo: Your honor, what is the materiality?
Atty. Castro: That is according to his background, your honor. This is a
procedure which could more or less measure his knowledge in autopsy
proceedings when he was in medical school and compared to what he is
actually doing now.
Atty. Fajardo: The witness is not an expert witness, your honor.
Atty. Castro: He is being presented as an expert witness, your honor.29
When Atty. Castro attempted to probe Dr. Reyes about his knowledge on
the subject of medical or pathological autopsies, Dr. Fajardo objected on
the ground that Dr. Reyes was not an expert in the field. His testimony
was offered to prove that Dr. Inso was negligent during the surgery
without necessarily offering him as an expert witness.
Atty. Fajardo: x x x The purpose of this witness is to establish that there
was negligence on the surgical operation of the appendix or in the conduct
of the appendectomy by the defendant doctor on the deceased Lilian
Villaran Borromeo.30
Dr. Reyes is not an expert witness who could prove Dr. Insos alleged
negligence. His testimony could not have established the standard of care
that Dr. Inso was expected to observe nor assessed Dr. Insos failure to
observe this standard. His testimony cannot be relied upon to determine if
Dr. Inso committed errors during the operation, the severity of these
errors, their impact on Lilians probability of survival, and the existence of
other diseases/conditions that might or might not have caused or
contributed to Lilians death.
The testimony of Dr. Avila also has no probative value in determining
whether Dr. Inso was at fault. Dr. Avila testified in his capacity as an
expert in medical jurisprudence, not as an expert in medicine, surgery, or
pathology. His testimony fails to shed any light on the actual cause of
Lilians death.
On the other hand, the respondents presented testimonies from Dr. Inso
himself and from two expert witnesses in pathology and surgery.
Dr. Ramos graduated from the Far Eastern University, Nicanor Reyes
Medical Foundation, in 1975. He took up his post-graduate internship at
the Quezon Memorial Hospital in Lucena City, before taking the board
exams. After obtaining his professional license, he underwent residency
training in pathology at the Jose R. Reyes Memorial Center from 1977 to
1980. He passed the examination in Anatomic, Clinical, and Physical
Pathology in 1980 and was inducted in 1981. He also took the examination
in anatomic pathology in 1981 and was inducted in 1982.31
At the time of his testimony, Dr. Ramos was an associate professor in
pathology at the Perpetual Help Medical School in Bian, Laguna, and at
the De La Salle University in Dasmarias, Cavite. He was the head of the
Batangas General Hospital Teaching and Training Hospital where he also
headed the Pathology Department. He also headed the Perpetual Help
General Hospital Pathology department.32
Meanwhile, Dr. Hernandez at that time was a General Surgeon with 27
years of experience as a General Practitioner and 20 years of experience
as a General Surgeon.1wphi1 He obtained his medical degree from the
University of Santo Tomas before undergoing five years of residency
training as a surgeon at the Veterans Memorial Center hospital. He was
certified as a surgeon in 1985. He also holds a masters degree in Hospital
Administration from the Ateneo de Manila University.33
He was a practicing surgeon at the: St. Lukes Medical Center, Fatima
Medical Center, Unciano Medical Center in Antipolo, Manila East Medical
Center of Taytay, and Perpetual Help Medical Center in Bian.34 He was
also an associate professor at the Department of Surgery at the Fatima
Medical Center, the Manila Central University, and the Perpetual Help
Medical Center. He also chaired the Department of Surgery at the Fatima
Medical Center.35
Dr. Hernandez is a Fellow of the American College of Surgeons, the
Philippine College of Surgeons, and the Philippine Society of General
Surgeons. He is a Diplomate of the Philippine Board of Surgery and a
member of the Philippine Medical Association and the Antipolo City Medical
Society.36
Dr. Hernandez affirmed that Dr. Inso did not deviate from the usual
surgical procedure.37 Both experts agreed that Lilian could not have died
from bleeding of the appendical vessel. They identified Lilians cause of
death as massive blood loss resulting from DIC.
To our mind, the testimonies of expert witnesses Dr. Hernandez and Dr.
Ramos carry far greater weight than that of Dr. Reyes. The petitioners
failure to present expert witnesses resulted in his failure to prove the
respondents negligence. The preponderance of evidence clearly tilts in
favor of the respondents.
Res ipsa loquitur is not applicable when the failure to observe due
care is not immediately apparent to the layman.
The petitioner cannot invoke the doctrine of res ipsa loquitur to shift the
burden of evidence onto the respondent. Res ipsa loquitur, literally, "the
thing speaks for itself;" is a rule of evidence that presumes negligence
from the very nature of the accident itself using common human
knowledge or experience.
The application of this rule requires: (1) that the accident was of a kind
which does not ordinarily occur unless someone is negligent; (2) that the
instrumentality or agency which caused the injury was under the exclusive
control of the person charged with negligence; and (3) that the injury
suffered must not have been due to any voluntary action or contribution
from the injured person.38 The concurrence of these elements creates a
presumption of negligence that, if unrebutted, overcomes the plaintiffs
burden of proof.

This doctrine is used in conjunction with the doctrine of common

knowledge. We have applied this doctrine in the following cases involving
medical practitioners:

a. Where a patient who was scheduled for a cholecystectomy

(removal of gall stones) but was otherwise healthy suffered
irreparable brain damage after being administered anesthesia prior
to the operation.39

b. Where after giving birth, a woman woke up with a gaping burn

wound close to her left armpit;40

c. The removal of the wrong body part during the operation; and

d. Where an operating surgeon left a foreign object (i.e., rubber

gloves) inside the body of the patient.41

The rule is not applicable in cases such as the present one where the
defendants alleged failure to observe due care is not immediately
apparent to a layman.42 These instances require expert opinion to
establish the culpability of the defendant doctor. It is also not applicable to
cases where the actual cause of the injury had been identified or
established.43

While this Court sympathizes with the petitioners loss, the petitioner failed
to present sufficient convincing evidence to establish: (1) the standard of
care expected of the respondent and (2) the fact that Dr. Inso fell short of
this expected standard. Considering further that the respondents
established that the cause of Lilians uncontrollable bleeding (and,
ultimately, her death) was a medical disorder Disseminated
Intravascular Coagulation we find no reversible errors in the CAs
dismissal of the complaint on appeal.

WHEREFORE, we hereby DENY the petition for lack of merit. No costs.

SO ORDERED.
G.R. No. L-41423 February 23, 1989 truck to veer towards the shoulder of the road and to ram a mango tree.
LUIS JOSEPH, petitioner As a result, petitioner sustained a bone fracture in one of his legs. 1
vs.
HON. CRISPIN V. BAUTISTA, PATROCINIO PEREZ, ANTONIO The following proceedings thereafter took place: 2

SIOSON, JACINTO PAGARIGAN, ALBERTO CARDENO and LAZARO

VILLANUEVA, respondents.
Petitioner filed a complaint for damages against respondent Patrocinio
Jose M. Castillo for petitioner.
Perez, as owner of the cargo truck, based on a breach of contract of
Arturo Z. Sioson for private respondent, Patrocinio Perez.
carriage and against respondents Antonio Sioson and Lazaro Villanueva, as
Cipriano B. Farrales for private respondents except P. Perez.
owner and driver, respectively, of the pick-up truck, based on quasi-delict.

REGALAD0, J.:
Petitioner prays in this appeal by certiorari for the annulment and setting
aside of the order, dated July 8, 1975, dismissing petitioner's complaint,
as well as the order, dated August 22, 1975, denying his motion for
reconsideration of said dismissal, both issued by respondent Judge Crispin
V. Bautista of the former Court of First Instance of Bulacan, Branch III.
Petitioner herein is the plaintiff in Civil Case No. 50-V-73 entitled "Luis
Joseph vs. Patrocinio Perez, Domingo Villa y de Jesus, Rosario Vargas,
Antonio Sioson, Lazaro Villanueva and Jacinto Pagarigan", filed before the
Court of First Instance of Bulacan, Branch III, and presided over by
respondent Judge Crispin V. Bautista; while private respondents Patrocinio
Perez, Antonio Sioson, Jacinto Pagarigan and Lazaro Villanueva are four of
the defendants in said case. Defendant Domingo Villa y de Jesus did not
answer either the original or the amended complaint, while defendant
Rosario Vargas could not be served with summons; and respondent
Alberto Cardeno is included herein as he was impleaded by defendant
Patrocinio Perez, one of respondents herein, in her cross-claim.
The generative facts of this case, as culled from the written submission of
the parties, are as follows:
Respondent Patrocinio Perez is the owner of a cargo truck with Plate No.
25-2 YT Phil. '73 for conveying cargoes and passengers for a consideration
from Dagupan City to Manila. On January 12, 1973, said cargo truck
driven by defendant Domingo Villa was on its way to Valenzuela, Bulacan
from Pangasinan. Petitioner, with a cargo of livestock, boarded the cargo
truck at Dagupan City after paying the sum of P 9.00 as one way fare to
Valenzuela, Bulacan. While said cargo truck was negotiating the National
Highway proceeding towards Manila, defendant Domingo Villa tried to
overtake a tricycle likewise proceeding in the same direction. At about the
same time, a pick-up truck with Plate No. 45-95 B, supposedly owned by
respondents Antonio Sioson and Jacinto Pagarigan, then driven by
respondent Lazaro Villanueva, tried to overtake the cargo truck which was
then in the process of overtaking the tricycle, thereby forcing the cargo
Respondent Sioson filed his answer alleging that he is not and never was
an owner of the pick-up truck and neither would he acquire ownership
thereof in the future.
On September 24, 1973, petitioner, with prior leave of court, filed his
amended complaint impleading respondents Jacinto Pagarigan and a
certain Rosario Vargas as additional alternative defendants. Petitioner
apparently could not ascertain who the real owner of said cargo truck was,
whether respondents Patrocinio Perez or Rosario Vargas, and who was the
real owner of said pick-up truck, whether respondents Antonio Sioson or
Jacinto Pagarigan.
Respondent Perez filed her amended answer with crossclaim against her
co-defendants for indemnity and subrogation in the event she is ordered to
pay petitioner's claim, and therein impleaded cross-defendant Alberto
Cardeno as additional alternative defendant.
On September 27, 1974, respondents Lazaro Villanueva, Alberto Cardeno,
Antonio Sioson and Jacinto Pagarigan, thru their insurer, Insurance
Corporation of the Philippines, paid petitioner's claim for injuries sustained
in the amount of P 1,300.00. By reason thereof, petitioner executed a
release of claim releasing from liability the following parties, viz: Insurance
Corporation of the Philippines, Alberto Cardeno, Lazaro Villanueva, Antonio
Sioson and Jacinto Pagarigan.
On December 2, 1974, respondents Lazaro Villanueva, Alberto Cardeno
and their insurer, the Insurance Corporation of the Philippines, paid
respondent Patrocinio Perez' claim for damages to her cargo truck in the
amount of P 7,420.61.
Consequently, respondents Sioson, Pagarigan, Cardeno and Villanueva
filed a "Motion to Exonerate and Exclude Defs/ Cross defs. Alberto
Cardeno, Lazaro Villanueva, Antonio Sioson and Jacinto Pagarigan on the
Instant Case", alleging that respondents Cardeno and Villanueva already
paid P 7,420.61 by way of damages to respondent Perez, and alleging
further that respondents Cardeno, Villanueva, Sioson and Pagarigan paid P
1,300.00 to petitioner by way of amicable settlement.
Thereafter, respondent Perez filed her "Opposition to Cross-defs.' motion
dated Dec. 2, 1974 and Counter Motion" to dismiss. The so-called counter
motion to dismiss was premised on the fact that the release of claim
executed by petitioner in favor of the other respondents inured to the
benefit of respondent Perez, considering that all the respondents are
solidarity liable to herein petitioner.
On July 8, 1975, respondent judge issued the questioned order dismissing
the case, and a motion for the reconsideration thereof was denied. Hence,
this appeal, petitioner contending that respondent judge erred in declaring
that the release of claim executed by petitioner in favor of respondents
Sioson, Villanueva and Pagarigan inured to the benefit of respondent
Perez; ergo, it likewise erred in dismissing the case.
We find the present recourse devoid of merit.
There is no question that the respondents herein are solidarily liable to
petitioner. On the evidence presented in the court below, the trial court
found them to be so liable. It is undisputed that petitioner, in his amended
complaint, prayed that the trial court hold respondents jointly and
severally liable. Furthermore, the allegations in the amended complaint
clearly impleaded respondents as solidary debtors. We cannot accept the
vacuous contention of petitioner that said allegations are intended to apply
only in the event that execution be issued in his favor. There is nothing in
law or jurisprudence which would countenance such a procedure.
The respondents having been found to be solidarity liable to petitioner, the
full payment made by some of the solidary debtors and their subsequent
release from any and all liability to petitioner inevitably resulted in the
extinguishment and release from liability of the other solidary debtors,
including herein respondent Patrocinio Perez.

The argument that there are two causes of action embodied in petitioner's
complaint, hence the judgment on the compromise agreement under the
cause of action based on quasi-delict is not a bar to the cause of action for
breach of contract of carriage, is untenable.
A cause of action is understood to be the delict or wrongful act or omission
committed by the defendant in violation of the primary rights of the
plaintiff. 3 It is true that a single act or omission can be violative of various
rights at the same time, as when the act constitutes juridically a violation
of several separate and distinct legal obligations. However where there is
only one delict or wrong, there is but a single cause of action regardless of
the number of rights that may have been violated belonging to one
person. 4
The claim that there was an agreement entered into between the parties
during the pre-trial conference that, after such payment made by the
other respondents, the case shall proceed as against respondent Perez is
both incredible and unsubstantiated. There is nothing in the records to
show, either by way of a pre-trial order, minutes or a transcript of the
notes of the alleged pre-trial hearing, that there was indeed such as
agreement.
WHEREFORE, the challenged orders of the respondent judge are hereby
AFFIRMED.
SO ORDERED.

The singleness of a cause of action lies in the singleness of the- delict or

wrong violating the rights of one person. Nevertheless, if only one injury
resulted from several wrongful acts, only one cause of action arises. 5 In
the case at bar, there is no question that the petitioner sustained a single
injury on his person. That vested in him a single cause of action, albeit
with the correlative rights of action against the different respondents
through the appropriate remedies allowed by law.

The trial court was, therefore, correct in holding that there was only one
cause of action involved although the bases of recovery invoked by
petitioner against the defendants therein were not necessarily Identical
since the respondents were not identically circumstanced. However, a
recovery by the petitioner under one remedy necessarily bars recovery
under the other. This, in essence, is the rationale for the proscription in
our law against double recovery for the same act or omission which,
obviously, stems from the fundamental rule against unjust enrichment.
G.R. No. L-40486 August 29, 1975
PAULINO PADUA and LUCENA BEBIN PADUA, plaintiffs-appellants,
vs.
GREGORIO N. ROBLES and BAY TAXI CAB, defendants-appellees.
Alberto R. de Joya for plaintiffs-appellants.
Cardenas & Peralta Law Office for defendants-appellees.
CASTRO, J.:
Resolving this appeal by the spouses Paulino and Lucena Bebin Padua, we
set aside the order dated October 25, 1972 of the Court of First Instance
of Zambales dismissing their complaint, in civil case 1079-O, and remand
this case for further proceedings.
In the early morning of New Year's Day of 1969 a taxicab (bearing 1968
plate no. TX-9395 and driven by Romeo N. Punzalan but operated by the
Bay Taxi Cab owned by Gregorio N. Robles) struck ten-year old Normandy
Padua on the national road in barrio Barretto, Olongapo City. The impact
hurled Normandy about forty meters away from the point where the
taxicab struck him, as a result of which he died.
Subsequently, Normandy's parents (Paulino and Lucena Bebin Padua), by
complaint filed with the Court of First Instance of Zambales (civil case
427-O), sought damages from Punzalan and the Bay Taxi Cab; likewise,
the city Fiscal of Olongapo, by information filed with the same court
(criminal case 1158-O), charged Punzalan with homicide through reckless
imprudence.
On October 27, 1969 the court a quo, in civil case 427-O, adjudged for the
Paduas as follows:
WHEREFORE, judgment is hereby rendered ordering the
defendant Romeo Punzalan to pay the plaintiffs the sums
of P12,000.00 as actual damages, P5,000.00 as moral and
exemplary damages, and P10,000.00 as attorney's fees;
and dismissing the complaint insofar as the Bay Taxicab
Company is concerned. With costs against the defendant
Romeo Punzalan. (Emphasis supplied)
Almost a year later, on October 5, 1970, the court a quo, in criminal case
1158-O, convicted Punzalan, as follows:
WHEREFORE, the Court finds the accused Romeo Punzalan
y Narciso guilty beyond reasonable doubt of the crime of
homicide through reckless imprudence, as defined and
penalized under Article 365 of the Revised Penal Code,
attended by the mitigating circumstance of voluntary
surrender, and hereby sentences him to suffer the
indeterminate penalty of TWO (2) YEARS, FOUR (4)
MONTHS and ONE (1) DAY of prision correccional, as
minimum, to SIX (6) YEARS and ONE (1) DAY of prision
mayor, as maximum, and to pay the cost. The civil liability
of the accused has already been determined and assessed
in Civil Case No. 427-O, entitled Paulino Padua, et al. vs.
Romeo Punzalan, et al.' (Emphasis supplied)
After the judgment in civil case 427-O became final, the Paduas sought
execution thereof. This proved futile; the corresponding court officer
returned the writ of execution unsatisfied.
Unable to collect the amount of P27,000 awarded in their favor, the
Paduas instituted action in the same court against Gregorio N. Robles to
enforce the latter's subsidiary responsibility under the provisions of article
103 of the Revised Penal Code. Robles filed a motion to dismiss based on
(1) bar of the cause of action by a prior judgment and (2) failure of the
complaint to state a cause of action.
Thereafter, the court a quo, in an order dated October 25, 1972, granted
Robles' motion to dismiss on the ground that the Paduas' complaint states
no cause of action. This order the Paduas questioned in the Court of
Appeals which, by resolution dated March 5, 1975, certified the case to
this Court for the reason that the appeal involves only questions of law.
The Paduas predicate their appeal on eighteen errors allegedly committed
by the court a quo. These assigned errors, however, raise only one
substantial issue: whether the judgment dated October 5, 1970 in criminal
case 1158-O includes a determination and adjudication of Punzalan's civil
liability arising from his criminal act upon which Robles' subsidiary civil
responsibility may be based.
The sufficiency and efficacy of a judgment must be tested by its substance
rather than its form. In construing a judgment, its legal effects including
such effects that necessarily follow because of legal implications, rather
than the language used govern. Also, its meaning, operation, and
consequences must be ascertained like any other written instrument.
Thus, a judgment rests on the intention of the court as gathered from
every part thereof, including the situation to which it applies and the
attendant circumstances.
It would appear that a plain reading, on its face, of the judgment in
criminal case 1158-O, particularly its decretal portion, easily results in the
same conclusion reached by the court a quo: that the said judgment no
civil liability arising from the offense charged against Punzalan. However, a
careful study of the judgment in question, the situation to which it applies,
and the attendant circumstances, would yield the conclusion that the
court a quo, on the contrary, recognized the enforceable right of the
Paduas to the civil liability arising from the offense committed by Punzalan
and awarded the corresponding indemnity therefor.
Civil liability coexists with criminal responsibility. In negligence cases the
offended party (or his heirs) has the option between an action for
enforcement of civil liability based on culpa criminal under article 100 of
the Revised Penal Code and an action for recovery of damages based
on culpa aquiliana under article 2177 of the Civil Code. The action for
enforcement of civil liability based on culpa criminal section 1 of Rule 111
of the Rules of Court deems simultaneously instituted with the criminal
action, unless expressly waived or reserved for a separate application by
the offended party. Article 2177 of the Civil Code, however, precludes
recovery of damages twice for the same negligent act or omission.
In the case at bar, the Court finds it immaterial that the Paduas chose, in
the first instance, an action for recovery of damages based on culpa
aquiliana under articles 2176, 2177, and 2180 of the Civil Code, which
action proved ineffectual. The Court also takes note of the absence of any
inconsistency between the aforementioned action priorly availed of by the
Paduas and their subsequent application for enforcement of civil liability
arising from the offense committed by Punzalan and consequently, for
exaction of Robles' subsidiary responsibility. Allowance of the latter
application involves no violation of the proscription against double
recovery of damages for the same negligent act or omission. For, as
hereinbefore stated, the corresponding officer of the court a quo returned
unsatisfied the writ of execution issued against Punzalan to satisfy the
amount of indemnity awarded to the Paduas in civil case 427-O. Article
2177 of the Civil Code forbids actual double recovery of damages for the
same negligent act or omission. Finally, the Court notes that the same
judge * tried, heard, and determined both civil case 427-O and criminal
case 115-O. Knowledge of an familiarity with all the facts and
circumstances relevant and relative to the civil liability of Punzalan may
thus be readily attributed to the judge when he rendered judgment in the
criminal action.
In view of the above considerations, it cannot reasonably be contended
that the court a quo intended, in its judgment in criminal case 1158-O, to
omit recognition of the right of the Paduas to the civil liability arising from
the offense of which Punzalan was adjudged guilty and the corollary award
of the corresponding indemnity therefor. Surely, it cannot be said that the
court intended the statement in the decretal portion of the judgment in
criminal case 1158-O referring to the determination and assessment of
Punzalan's civil liability in civil case 427-O to be pure jargon or
"gobbledygook" and to be absolutely of no meaning and effect whatever.
The substance of such statement, taken in the light of the situation to
which it applies and the attendant circumstances, makes unmistakably
clear the intention of the court to accord affirmation to the Paduas' right to
the civil liability arising from the judgment against Punzalan in criminal
case 1158-O. Indeed, by including such statement in the decretal portion
of the said judgment, the court intended to adopt the same adjudication
and award it made in civil case 427-O as Punzalan's civil liability in
criminal case 1158-O.
There is indeed much to be desired in the formulation by Judge Amores of
that part of the decretal portion of the judgment in criminal case 1158-O
referring to the civil liability of Punzalan resulting from his criminal
conviction. The judge could have been forthright and direct instead of
circuitous and ambiguous. But, as we have explained, the statement on
the civil liability of Punzalan must surely have a meaning and even if the
statement were reasonably susceptible of two or more interpretations, that
which achieves moral justice should be adopted, eschewing the other
interpretations which in effect would negate moral justice.
It is not amiss at this juncture to emphasize to all magistrates in all levels
of the judicial hierarchy that extreme degree of care should be exercise in
the formulation of the dispositive portion of a decision, because it is this
portion that is to be executed once the decision becomes final. The
adjudication of the rights and obligations of the parties, and the
dispositions made as well as the directions and instructions given by the
court in the premises in conformity with the body of the decision, must all
be spelled out clearly, distinctly and unequivocally, leaving absolutely no
room for dispute, debate or interpretation.
We therefore hold that the Paduas' complaint in civil case 1079-O states a
cause of action against Robles whose concommitant subsidiary
responsibility, per the judgment in criminal case 1158-O, subsists.
ACCORDINGLY, the order a quo dated October 25, 1972 dismissing the
complaint in civil case 1079-O is set aside, and this case is hereby
remanded to the court a quo for further proceedings conformably with this
decision and with law. No pronouncement as to costs.
G.R. Nos. 114841-42 October 20, 1995
ATLANTIC GULF AND PACIFIC COMPANY OF MANILA,
INC., petitioner,
vs.
COURT OF APPEALS, CARLITO D. CASTILLO, HEIRS OF CRISTETA
CASTILLO and CORNELIO CASTILLO, respondents.
RESOLUTION
REGALADO, J.:
Petitioner moves for the reconsideration of our judgment promulgated in
this case on August 23, 1995, contending that (1) private respondents are
permitted thereunder to recover damages twice for the same act or
omission, and (2) the interests adjudged on the awarded damages should
be reckoned from the date of finality of our aforesaid judgment rendered
herein.
We reject the first submission. It is theorized by petitioner that our
affirmance of the judgment of the trial court, which granted damages for
both the "damage proper to the land" and "rentals for the same property,"
runs afoul of the proscription in Article 2177 of the Civil Code against
double recovery of damages for the same act.
Petitioner overlooks the fact that private respondents, as plaintiffs in the
actions filed in the court below, specifically alleged that as a result of
petitioner's dredging operations the soil of the former's property "became
infertile, salty, unproductive and unsuitable for agriculture." They further
averred that petitioner's heavy equipment "used to utilize (private
respondents') land as a depot or parking lot of these equipment(t) without
paying any rent therefor."1
Respondent Court of Appeals affirmed the factual findings and conclusions
of the trial court on the nature and cause of the twin items of damages
sustained by private respondents, thus:
The main reason why (private respondents') properties
were damaged, as found by the trial court, was due to the
dredging operations undertaken by (petitioner) on the
area, which findings are supported by the testimony of
Carlito Castillo, testifying in Civil Case No. 10276, and
Teodora Dimaculangan, in Civil Case No. 10696. . . .
Neither has (petitioner) asseverated against (private
respondents') submission that their properties were used
by (petitioner) as a dump site for its equipment and
trucks, and proof are the photographs of their properties
showing tracks left by truck tires on their properties.
(Parenthetical indication of the parties concerned are made
for easy reference.) 2
It is, therefore, clearly apparent that petitioner was guilty of two culpable
transgressions on the property rights of private respondents, that is, for
the ruination of the agricultural fertility or utility of the soil of their
property and, further, for the unauthorized use of said property as a dump
rile or depot or petitioner's heavy equipment and trucks. Consequently,
albeit with differing amounts, both courts correctly awarded damages both
for the destruction of the land and for the unpaid rentals, or more correctly
denominated, for the reasonable value of its use and occupation of the
premises. There is consequently no merit in said objection of petitioner.
The second proposition of petitioner is better taken, in light of the
reconciliation and clarification undertaken by the Court of the heretofore
imprecise and varying pronouncements on the imposition of interest in
judgments for a sum of money.
In the recent case of Eastern Shipping Lines, Inc. vs. Court of Appeals, et
al.,3 Court adopted interpretative rules on the matter of the imposable
interest and the accrual thereof. The rules pertinent to the interest
involved in the case at bar are hereunder briefed as applied to the
controversy on the computation and the reckoning date thereof.4
When an obligation not constituting a loan or forbearance of money is
breached, interest on the amount of the damages awarded may be
imposed at the rate of six percent (6%) per annum. No interest shall be
adjudged on unliquidated claims unless the same can be established with
reasonable certainty. Since the pleadings of herein private respondents in
the trial court did not spell out said amounts with certitude, the legal
interest thereon shall run only from the promulgation of judgment of said
court, it being at that stage that the quantification of damages may be
deemed to have been reasonably ascertained.
The actual base for the computation of such legal interest, however, shall
be the amount as finally adjudged by this Court. Furthermore, when our
judgment herein becomes final and executory, the rate of legal interest
shall be twelve percent (12%) from such finality until the satisfaction of
the total judgment account, the interim period being effectively equivalent
to a forbearance of credit.
ACCORDINGLY, and by way of clarification, the judgment rendered by this Court in
the instant case shall be understood to mean that the legal interest to be paid by
petitioner is six percent (6%) of the amount due computed from September 6, 1990
when judgment was rendered by the trial court. Additionally, interest of twelve
percent (12%) shall be imposed on such total amount due upon finality of the
judgment of the Court herein until the full satisfaction thereof. SO ORDERED.
G.R. No. 175256 August 23, 2012
LILY LIM, Petitioner,
vs.
KOU CO PING a.k.a. CHARLIE CO, Respondent.
x-----------------------x
G.R. No. 179160
KOU CO PING a.k.a. CHARLIE CO, Petitioner,
vs.
LILY LIM, Respondent.
LEONARDO-DE CASTRO,*
PERLAS-BERNABE,**
DECISION
DEL CASTILLO, J.:
Is it forum shopping for a private complainant to pursue a civil complaint
for specific performance and damages, while appealing the judgment on
the civil aspect of a criminal case for estafa?
Before the Court are consolidated Petitions for Review assailing the
separate Decisions of the Second and Seventeenth Divisions of the Court
of Appeals (CA) on the above issue.
Lily Lims (Lim) Petition for Review1 assails the October 20, 2005
Resolution2 of the Second Division in CA-G.R. CV No. 85138, which ruled
on the above issue in the affirmative:
Due to the filing of the said civil complaint (Civil Case No. 5112396),
Charlie Co filed the instant motion to dismiss [Lily Lims] appeal, alleging
that in filing said civil case, Lily Lim violated the rule against forum
shopping as the elements of litis pendentia are present.
This Court agrees.3
xxxx
IN VIEW OF THE FOREGOING, the appeal is DISMISSED.
SO ORDERED.4
On the other hand, Charlie Cos (Co) Petition for Review 5 assails the April
10, 2007 Decision6 of the Seventeenth Division in CA-G.R. SP No. 93395
for ruling on the same issue in the negative:
We find no grave abuse of discretion committed by respondent judge. The
elements of litis pendentiaand forum-shopping were not met in this case.7
xxxx
WHEREFORE, in view of the foregoing, the instant petition is DENIED.
This case is REMANDED to the court of origin for further proceedings.
SO ORDERED.8
Factual Antecedents
In February 1999, FR Cement Corporation (FRCC), owner/operator of a
cement manufacturing plant, issued several withdrawal authorities9 for the
account of cement dealers and traders, Fil-Cement Center and Tigerbilt.
These withdrawal authorities state the number of bags that the
dealer/trader paid for and can withdraw from the plant. Each withdrawal
authority contained a provision that it is valid for six months from its date
of issuance, unless revoked by FRCC Marketing Department.
Fil-Cement Center and Tigerbilt, through their administrative manager,
Gail Borja (Borja), sold the withdrawal authorities covering 50,000 bags of
cement to Co for the amount of 3.15 million or 63.00 per bag.10 On
February 15, 1999, Co sold these withdrawal authorities to Lim allegedly
at the price of 64.00 per bag or a total of 3.2 million.11
Using the withdrawal authorities, Lim withdrew the cement bags from
FRCC on a staggered basis. She successfully withdrew 2,800 bags of
cement, and sold back some of the withdrawal authorities, covering
10,000 bags, to Co.
Sometime in April 1999, FRCC did not allow Lim to withdraw the remaining
37,200 bags covered by the withdrawal authorities. Lim clarified the
matter with Co and Borja, who explained that the plant implemented a
price increase and would only release the goods once Lim pays for the
price difference or agrees to receive a lesser quantity of cement. Lim
objected and maintained that the withdrawal authorities she bought were
not subject to price fluctuations. Lim sought legal recourse after her
demands for Co to resolve the problem with the plant or for the return of
her money had failed.
The criminal case
An Information for Estafa through Misappropriation or Conversion was filed
against Co before Branch 154 of the Regional Trial Court (RTC) of Pasig
City. The accusatory portion thereof reads:
On or about between the months of February and April 1999, in San Juan,
Metro Manila and within the jurisdiction of this Honorable Court, the
accused, with intent to defraud Lily Lim, with grave abuse of confidence,
with unfaithfulness, received in trust from Lily Lim cash money in the
amount of 2,380,800.00 as payment for the 37,200 bags of cement,
under obligation to deliver the 37,200 bags of cement to said Lily Lim, but
far from complying with his obligation, misappropriated, misapplied and
converted to his own personal use and benefit the said amount of
2,300,800.00 [sic] and despite demands, the accused failed and refused to
return said amount, to the damage and prejudice of Lily Lim in the amount
of 2,380,800.00.
Contrary to Law.12
The private complainant, Lily Lim, participated in the criminal proceedings
to prove her damages. She prayed for Co to return her money amounting
to 2,380,800.00, foregone profits, and legal interest, and for an award of
moral and exemplary damages, as well as attorneys fees.13
On November 19, 2003, the RTC of Pasig City, Branch 154, rendered its
Order14 acquitting Co of the estafa charge for insufficiency of evidence. The
criminal courts Order reads:
The first and second elements of the crime of estafa [with abuse of
confidence under Article 315, paragraph 1(b)] for which the accused is
being charged and prosecuted were not established by the prosecutions
evidence.
xxxx
In view of the absence of the essential requisites of the crime of estafa for
which the accused is being charged and prosecuted, as above discussed,
the Court has no alternative but to dismiss the case against the accused
for insufficiency of evidence.15
WHEREFORE, in view of the foregoing, the Demurrer to
Evidence is GRANTED, and the accused is hereby ACQUITTED of the
crime of estafa charged against him under the present information for
insufficiency of evidence.
Insofar as the civil liability of the accused is concerned, however, set this
case for the reception of his evidence on the matter on December 11,
2003 at 8:30 oclock [sic] in the morning.
SO ORDERED.16
After the trial on the civil aspect of the criminal case, the Pasig City RTC
also relieved Co of civil liability to Lim in its December 1, 2004
Order.17 The dispositive portion of the Order reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered holding
the accused CHARLIE COnot civilly liable to the private complainant Lily
Lim.
SO ORDERED.18
Lim sought a reconsideration of the above Order, arguing that she has
presented preponderant evidence that Co committed estafa against her.19
The trial court denied the motion in its Order20 dated February 21, 2005.
On March 14, 2005, Lim filed her notice of appeal 21 on the civil aspect of
the criminal case. Her appeal was docketed as CA-G.R. CV No. 85138 and
raffled to the Second Division of the CA.
The civil action for specific performance
On April 19, 2005, Lim filed a complaint for specific performance and
damages before Branch 21 of the RTC of Manila. The defendants in the
civil case were Co and all other parties to the withdrawal authorities,
Tigerbilt, Fil-Cement Center, FRCC, Southeast Asia Cement, and La Farge
Corporation. The complaint, docketed as Civil Case No. 05-112396,
asserted two causes of action: breach of contract and abuse of rights. Her
allegations read:
ALLEGATIONS COMMON
TO ALL CAUSES OF ACTION
xxxx
23. Charlie Co obligated himself to deliver to Lily Lim 50,000 bags of
cement of 64.00 per bag on an x-plant basis within 3 months from the
date of their transaction, i.e. February 15, 1999. Pursuant to said
agreement, Lily Lim paid Charlie Co 3.2 Million while Charlie Co delivered
to Lily Lim FR Cement Withdrawal Authorities representing 50,000 bags of
cement.
24. The withdrawal authorities issued by FR Cement Corp. allowed the
assignee or holder thereof to withdraw within a six-month period from
date a certain amount of cement indicated therein. The Withdrawal
Authorities given to Lily Lim were dated either 3 February 1999 or 23
February 1999. The Withdrawal Authorities were first issued to Tigerbilt
and Fil-Cement Center which in turn assigned them to Charlie Co. Charlie
Co then assigned the Withdrawal Authorities to Lily Lim on February 15,
1999. Through these series of assignments, Lily Lim acquired all the rights
(rights to withdraw cement) granted in said Withdrawal Authorities.
25. That these Withdrawal Authorities are valid is established by the fact
that FR Cement earlier allowed Lily Lim to withdraw 2,800 bags of cement
on the basis thereof.
26. However, sometime 19 April 1999 (within the three (3)-month period
agreed upon by Charlie Co and Lily Lim and certainly within the six (6)-
month period indicated in the Withdrawal Authorities issued by FR Cement
Corp.), Lily Lim attempted but failed to withdraw the remaining bags of
cement on account of FR Cements unjustified refusal to honor the
Withdrawal Authorities. x x x
xxxx
FIRST CAUSE OF ACTION:
BREACH OF CONTRACT
30. Charlie Co committed and is therefore liable to deliver to Lily Lim
37,200 bags of cement. If he cannot, then he must pay her the current fair
market value thereof.
31. FR Cement Corporation is also liable to deliver to Lily Lim the amount
of cement as indicated in the Withdrawal Authorities it issued. xxx FR
Cement Corporation has no right to impose price adjustments as a
qualification for honoring the Withdrawal Authorities.
32. Fil-Cement Center, Tigerbilt and Gail Borja as the original holders/
assignees of the Withdrawal Authorities repeatedly assured Lily Lim that
the same were valid and would be honored. They are liable to make good
on their assurances.
SECOND CAUSE OF ACTION:
ABUSE OF RIGHTS AND UNJUST ENRICHMENT
33. Charlie Cos acts of falsely representing to Lily Lim that she may be
able to withdraw the cement from FR Cement Corp. caused Lily Lim to
incur expenses and losses. Such act was made without justice, without
giving Lily Lim what is due her and without observing honesty and good
faith, all violative of the law, more specifically Articles 19 and 20 of the
Civil Code. Such willful act was also made by Charlie Co in a manner
contrary to morals, good customs or public policy, in violation of Article 21
of the Civil Code.
34. FR Cement Corporations unjust refusal to honor the Withdrawal
Authorities they issued also caused damage to Lily Lim. Further, FR
Cement Corporations act of withholding the 37,200 bags of cement
despite earning income therefor constitutes as an unjust enrichment
because FR Cement Corporation acquired income through an act or
performance by another or any other means at the expense of another
without just or legal ground in violation of Article 22 of the Civil Code.
35. Fil-Cement Center, Tigerbilt and Gail Borjas false assurances that Lily
Lim would be able to withdraw the remaining 37,200 bags of cement
caused Lily Lim to incur expenses and losses. x x x Moreover, Fil-Cement
Center admitted receiving payment for said amount of cement, thus they
are deemed to have come into possession of money at the expense of Lily
Lim without just or legal ground, in violation of Article 22 of the Civil Code.
THIRD CAUSE OF ACTION:
MORAL AND EXEMPLARY DAMAGES and
ATTORNEYS FEES AND COSTS OF SUIT22
Lim prayed for Co to honor his contractual commitments either by
delivering the 37,200 bags of cement, making arrangements with FRCC to
allow Lim to withdraw the cement, or to pay for their value. She likewise
asked that the defendants be held solidarily liable to her for the damages
she incurred in her failed attempts to withdraw the cement and for the
damages they inflicted on her as a result of their abuse of their rights.23
Motions to dismiss both actions
In reaction to the filing of the civil complaint for specific performance and
damages, Co filed motions to dismiss the said civil case 24 and Lims appeal
in the civil aspect of the estafa case or CA-G.R. CV No. 85138.25 He
maintained that the two actions raise the same issue, which is Cos liability
to Lim for her inability to withdraw the bags of cement, 26 and should be
dismissed on the ground of lis pendens and forum shopping.
Ruling of the Court of Appeals Second Division in CA-G.R CV No.
85138
The appellate court (Second Division) favorably resolved Cos motion and
dismissed Lims appeal from the civil aspect of the estafa case. In its
Resolution dated October 20, 2005, the CA Second Division held that the
parties, causes of action, and reliefs prayed for in Lims appeal and in her
civil complaint are identical. Both actions seek the same relief, which is the
payment of the value of the 37,200 bags of cement.27 Thus, the CA Second
Division dismissed Lims appeal for forum shopping.28 The CA
denied29 Lims motion for reconsideration.30
Lim filed the instant petition for review, which was docketed as G.R. No.
175256.
Ruling of the Manila Regional Trial Court in Civil Case No. 05-
112396
Meanwhile, the Manila RTC denied Cos Motion to Dismiss in an
Order31 dated December 6, 2005. The Manila RTC held that there was no
forum shopping because the causes of action invoked in the two cases are
different. It observed that the civil complaint before it is based on an
obligation arising from contract and quasi-delict, whereas the civil liability
involved in the appeal of the criminal case arose from a felony.
Co filed a petition for certiorari,32 docketed as CA-G.R. SP No. 93395,
before the appellate court. He prayed for the nullification of the Manila
RTCs Order in Civil Case No. 05-112396 for having been issued with grave
abuse of discretion.33
Ruling of the Court of Appeals Seventeenth Division in CA-G.R. SP
No. 93395
The CA Seventeenth Division denied Cos petition and remanded the civil
complaint to the trial court for further proceedings. The CA Seventeenth
Division agreed with the Manila RTC that the elements of litis pendentia
and forum shopping are not met in the two proceedings because they do
not share the same cause of action.34
The CA denied35 Cos motion for reconsideration.36
Co filed the instant Petition for Review, which was docketed as G.R. No.
179160.
Upon Cos motion,37 the Court resolved to consolidate the two petitions.38
Kou Co Pings arguments
Co maintains that Lim is guilty of forum shopping because she is asserting
only one cause of action in CA-G.R. CV No. 85138 (the appeal from the
civil aspect of Criminal Case No. 116377) and in Civil Case No. 05-112396,
which is for Cos violation of her right to receive 37,200 bags of cement.
Likewise, the reliefs sought in both cases are the same, that is, for Co to
deliver the 37,200 bags of cement or its value to Lim. That Lim utilized
different methods of presenting her case a criminal action for estafa and
a civil complaint for specific performance and damages should not
detract from the fact that she is attempting to litigate the same cause of
action twice.39
Co makes light of the distinction between civil liability ex contractu and ex
delicto. According to him, granting that the two civil liabilities are
independent of each other, nevertheless, the two cases arising from them
would have to be decided using the same evidence and going over the
same set of facts. Thus, any judgment rendered in one of these cases will
constitute res judicata on the other.40
In G.R. No. 179160, Co prays for the annulment of the CA Decision and
Resolution in CA-G.R. SP No. 93395, for a declaration that Lim is guilty of
forum shopping, and for the dismissal of Civil Case No. 05-112396.41
In G.R. No. 175256, Co prays for the affirmation of the CA Decision in CA-
G.R. CV No. 85138 (which dismissed Lims appeal from the trial courts
decision in Criminal Case No. 116377).42
Lily Lims arguments
Lim admits that the two proceedings involve substantially the same set of
facts because they arose from only one transaction.43 She is quick to add,
however, that a single act or omission does not always make a single
cause of action.44 It can possibly give rise to two separate civil liabilities on
the part of the offender (1) ex delicto or civil liability arising from crimes,
and (2) independent civil liabilities or those arising from contracts or
intentional torts. The only caveat provided in Article 2177 of the Civil Code
is that the offended party cannot recover damages twice for the same act
or omission.45 Because the law allows her two independent causes of
action, Lim contends that it is not forum shopping to pursue them.46
She then explains the separate and distinct causes of action involved in
the two cases. Her cause of action in CA-G.R CV No. 85138 is based on the
crime of estafa. Co violated Lims right to be protected against swindling.
He represented to Lim that she can withdraw 37,200 bags of cement using
the authorities she bought from him. This is a fraudulent representation
because Co knew, at the time that they entered into the contract, that he
could not deliver what he promised.47 On the other hand, Lims cause of
action in Civil Case No. 05-112396 is based on contract. Co violated Lims
rights as a buyer in a contract of sale. Co received payment for the 37,200
bags of cement but did not deliver the goods that were the subject of the
sale.48
In G.R. No. 179160, Lim prays for the denial of Cos petition. 49 In G.R. No.
175256, she prays for the reversal of the CA Decision in CA-G.R. CV No.
85138, for a declaration that she is not guilty of forum shopping, and for
the reinstatement of her appeal in Criminal Case No. 116377 to the CA.50
Issue
Did Lim commit forum shopping in filing the civil case for specific
performance and damages during the pendency of her appeal on the civil
aspect of the criminal case for estafa?
Our Ruling
A single act or omission that causes damage to an offended party may
give rise to two separate civil liabilities on the part of the offender 51 - (1)
civil liability ex delicto, that is, civil liability arising from the criminal
offense under Article 100 of the Revised Penal Code,52 and (2) independent
civil liability, that is, civil liability that may be pursued independently of the
criminal proceedings. The independent civil liability may be based on "an
obligation not arising from the act or omission complained of as a felony,"
as provided in Article 31 of the Civil Code (such as for breach of contract
or for tort53 ). It may also be based on an act or omission that may
constitute felony but, nevertheless, treated independently from the
criminal action by specific provision of Article 33 of the Civil Code ("in
cases of defamation, fraud and physical injuries").
The civil liability arising from the offense or ex delicto is based on the acts
or omissions that constitute the criminal offense; hence, its trial is
inherently intertwined with the criminal action. For this reason, the civil
liability ex delicto is impliedly instituted with the criminal offense. 54 If the
action for the civil liability ex delicto is instituted prior to or subsequent to
the filing of the criminal action, its proceedings are suspended until the
final outcome of the criminal action.55 The civil liability based on delict is
extinguished when the court hearing the criminal action declares that "the
act or omission from which the civil liability may arise did not exist."56
On the other hand, the independent civil liabilities are separate from the
criminal action and may be pursued independently, as provided in Articles
31 and 33 of the Civil Code, which state that:
ART. 31. When the civil action is based on an obligation not arising from
the act or omission complained of as a felony, such civil action may
proceed independently of the criminal proceedings and regardless of the
result of the latter. (Emphasis supplied.)
ART. 33. In cases of defamation, fraud, and physical injuries a civil action
for damages, entirely separate and distinct from the criminal action, may
be brought by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a
preponderance of evidence. (Emphasis supplied.)
Because of the distinct and independent nature of the two kinds of civil
liabilities, jurisprudence holds that the offended party may pursue the two
types of civil liabilities simultaneously or cumulatively, without offending
the rules on forum shopping, litis pendentia, or res judicata.57 As explained
in Cancio, Jr. v. Isip:58
One of the elements of res judicata is identity of causes of action. In the
instant case, it must be stressed that the action filed by petitioner is an
independent civil action, which remains separate and distinct from any
criminal prosecution based on the same act. Not being deemed instituted
in the criminal action based on culpa criminal, a ruling on the culpability of
the offender will have no bearing on said independent civil action based on
an entirely different cause of action, i.e., culpa contractual.
In the same vein, the filing of the collection case after the dismissal of the
estafa cases against the offender did not amount to forum-shopping. The
essence of forum shopping is the filing of multiple suits involving the same
parties for the same cause of action, either simultaneously or successively,
to secure a favorable judgment. Although the cases filed by [the offended
party] arose from the same act or omission of [the offender], they are,
however, based on different causes of action. The criminal cases for estafa
are based on culpa criminal while the civil action for collection is anchored
on culpa contractual. Moreover, there can be no forum-shopping in the
instant case because the law expressly allows the filing of a separate civil
action which can proceed independently of the criminal action.59
Since civil liabilities arising from felonies and those arising from other
sources of obligations are authorized by law to proceed independently of
each other, the resolution of the present issue hinges on whether the two
cases herein involve different kinds of civil obligations such that they can
proceed independently of each other. The answer is in the affirmative.
The first action is clearly a civil action ex delicto, it having been instituted
together with the criminal action.60
On the other hand, the second action, judging by the allegations contained
in the complaint,61 is a civil action arising from a contractual obligation and
for tortious conduct (abuse of rights). In her civil complaint, Lim basically
alleges that she entered into a sale contract with Co under the following
terms: that she bought 37,200 bags of cement at the rate of 64.00 per
bag from Co; that, after full payment, Co delivered to her the withdrawal
authorities issued by FRCC corresponding to these bags of cement; that
these withdrawal authorities will be honored by FRCC for six months from
the dates written thereon. Lim then maintains that the defendants
breached their contractual obligations to her under the sale contract and
under the withdrawal authorities; that Co and his co-defendants wanted
her to pay more for each bag of cement, contrary to their agreement to fix
the price at 64.00 per bag and to the wording of the withdrawal
authorities; that FRCC did not honor the terms of the withdrawal
authorities it issued; and that Co did not comply with his obligation under
the sale contract to deliver the 37,200 bags of cement to Lim. From the
foregoing allegations, it is evident that Lim seeks to enforce the
defendants contractual obligations, given that she has already performed
her obligations. She prays that the defendants either honor their part of
the contract or pay for the damages that their breach has caused her.

Lim also includes allegations that the actions of the defendants were
committed in such manner as to cause damage to Lim without regard for
morals, good customs and public policy. These allegations, if proven,
would constitute tortious conduct (abuse of rights under the Human
Relations provisions of the Civil Code).

Thus, Civil Case No. 05-112396 involves only the obligations arising from
contract and from tort, whereas the appeal in the estafa case involves only
the civil obligations of Co arising from the offense charged. They present
different causes of action, which under the law, are considered "separate,
distinct, and independent"62 from each other. Both cases can proceed to
their final adjudication, subject to the prohibition on double recovery under
Article 2177 of the Civil Code.63

WHEREFORE, premises considered, Lily Lims Petition in G.R. No. 175256

is GRANTED. The assailed October 20, 2005 Resolution of the Second
Division of the Court of Appeals in CA-G.R. CV No. 85138 is REVERSED
and SET ASIDE. Lily Lims appeal in CA-G.R. CV No. 85138 is
ordered REINSTATED and the Court of Appeals
is DIRECTED to RESOLVE the same with DELIBERATE DISPATCH.

Charlie Cos Petition G.R. No. 179160 is DENIED. The assailed April 10,
2007 Decision of the Seventeenth Division of the Court of Appeals in CA-
G.R. SP No. 93395 is AFFIRMED in toto.

SO ORDERED.
G.R. No. L-16439 July 20, 1961
ANTONIO GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.
Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.
REYES, J.B.L., J.:
This petition for certiorari brings up for review question whether the
husband of a woman, who voluntarily procured her abortion, could recover
damages from physician who caused the same.
The litigation was commenced in the Court of First Instance of Manila by
respondent Oscar Lazo, the of Nita Villanueva, against petitioner Antonio
Geluz, a physician. Convinced of the merits of the complaint upon the
evidence adduced, the trial court rendered judgment favor of plaintiff Lazo
and against defendant Geluz, ordering the latter to pay P3,000.00 as
damages, P700.00 attorney's fees and the costs of the suit. On appeal,
Court of Appeals, in a special division of five, sustained the award by a
majority vote of three justices as against two, who rendered a separate
dissenting opinion.
The facts are set forth in the majority opinion as follows:
Nita Villanueva came to know the defendant (Antonio Geluz) for
the first time in 1948 through her aunt Paula Yambot. In 1950
she became pregnant by her present husband before they were
legally married. Desiring to conceal her pregnancy from her
parent, and acting on the advice of her aunt, she had herself
aborted by the defendant. After her marriage with the plaintiff, she
again became pregnant. As she was then employed in the
Commission on Elections and her pregnancy proved to be
inconvenient, she had herself aborted again by the defendant in
October 1953. Less than two years later, she again became
pregnant. On February 21, 1955, accompanied by her sister
Purificacion and the latter's daughter Lucida, she again repaired to
the defendant's clinic on Carriedo and P. Gomez streets in Manila,
where the three met the defendant and his wife. Nita was again
aborted, of a two-month old foetus, in consideration of the sum of
fifty pesos, Philippine currency. The plaintiff was at this time in the
province of Cagayan, campaigning for his election to the provincial
board; he did not know of, nor gave his consent, to the abortion.
It is the third and last abortion that constitutes plaintiff's basis in filing this
action and award of damages. Upon application of the defendant Geluz we
granted certiorari.
The Court of Appeals and the trial court predicated the award of damages
in the sum of P3,000.06 upon the provisions of the initial paragraph of
Article 2206 of the Civil Code of the Philippines. This we believe to be
error, for the said article, in fixing a minimum award of P3,000.00 for the
death of a person, does not cover the case of an unborn foetus that is not
endowed with personality. Under the system of our Civil Code, "la criatura
abortiva no alcanza la categoria de persona natural y en consscuencia es
un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de
Derecho Privado", Vol. 1, p. 49), being incapable of having rights and
obligations.
Since an action for pecuniary damages on account of personal injury or
death pertains primarily to the one injured, it is easy to see that if no
action for such damages could be instituted on behalf of the unborn child
on account of the injuries it received, no such right of action could
derivatively accrue to its parents or heirs. In fact, even if a cause of action
did accrue on behalf of the unborn child, the same was extinguished by its
pre-natal death, since no transmission to anyone can take place from on
that lacked juridical personality (or juridical capacity as distinguished from
capacity to act). It is no answer to invoke the provisional personality of a
conceived child (conceptus pro nato habetur) under Article 40 of the Civil
Code, because that same article expressly limits such provisional
personality by imposing the condition that the child should be
subsequently born alive: "provided it be born later with the condition
specified in the following article". In the present case, there is no dispute
that the child was dead when separated from its mother's womb.
The prevailing American jurisprudence is to the same effect; and it is
generally held that recovery can not had for the death of an unborn child
(Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs.
Northampton, 52 Am. Rep. 242; and numerous cases collated in the
editorial note, 10 ALR, (2d) 639).
This is not to say that the parents are not entitled to collect any damages
at all. But such damages must be those inflicted directly upon them, as
distinguished from the injury or violation of the rights of the deceased, his
right to life and physical integrity. Because the parents can not expect
either help, support or services from an unborn child, they would normally
be limited to moral damages for the illegal arrest of the normal
development of the spes hominis that was the foetus, i.e., on account of
distress and anguish attendant to its loss, and the disappointment of their
parental expectations (Civ. Code Art. 2217), as well as to exemplary
damages, if the circumstances should warrant them (Art. 2230). But in the
case before us, both the trial court and the Court of Appeals have not
found any basis for an award of moral damages, evidently because the
appellee's indifference to the previous abortions of his wife, also caused by
the appellant herein, clearly indicates that he was unconcerned with the
frustration of his parental hopes and affections. The lower court expressly
found, and the majority opinion of the Court of Appeals did not contradict
it, that the appellee was aware of the second abortion; and the
probabilities are that he was likewise aware of the first. Yet despite the
suspicious repetition of the event, he appeared to have taken no steps to
investigate or pinpoint the causes thereof, and secure the punishment of
the responsible practitioner. Even after learning of the third abortion, the
appellee does not seem to have taken interest in the administrative and
criminal cases against the appellant. His only concern appears to have
been directed at obtaining from the doctor a large money payment, since
he sued for P50,000.00 damages and P3,000.00 attorney's fees, an
"indemnity" claim that, under the circumstances of record, was clearly
exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who

righteously feels outraged by the abortion which his wife has
deliberately sought at the hands of a physician would be
highminded rather than mercenary; and that his primary concern
would be to see to it that the medical profession was purged of an
unworthy member rather than turn his wife's indiscretion to
personal profit, and with that idea in mind to press either the
administrative or the criminal cases he had filed, or both, instead
of abandoning them in favor of a civil action for damages of which
not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of

appellee's wife, without medical necessity to warrant it, was a criminal and
morally reprehensible act, that can not be too severely condemned; and
the consent of the woman or that of her husband does not excuse it. But
the immorality or illegality of the act does not justify an award of damage
that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered

dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice and

the Board of Medical Examiners for their information and such
investigation and action against the appellee Antonio Geluz as the facts
may warrant.
G.R. No. 159270. August 22, 2005
PHILIPPINE NATIONAL CONSTRUCTION
CORPORATION, Petitioners,
vs.
HON. COURT OF APPEALS, RODRIGO ARNAIZ, REGINA LATAGAN,
RICARDO GENERALAO and PAMPANGA SUGAR DEVELOPMENT
COMPANY, INC., CORPORATION, Respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision1 of the Court of
Appeals (CA) in CA-G.R. CV No. 47699 affirming, with modification, the
decision of the Regional Trial Court (RTC) of Manila in Civil Case No. 93-
64803.
The Antecedents
Pampanga Sugar Development Company, Inc. (PASUDECO) transports
sugarcane from Mabalacat and Magalang, Pampanga. When the Mount
Pinatubo eruption of 1991 heavily damaged the national bridges along
Abacan-Angeles and Sapang Maragul via Magalang, Pampanga, it
requested permission from the Toll Regulatory Board (TRB) for its trucks
to enter and pass through the North Luzon Expressway (NLEX) via Dau-
Sta. Ines from Mabalacat, and via Angeles from Magalang, and exit at San
Fernando going to its milling factory.2 The TRB furnished the Philippine
National Construction Corporation (PNCC) (the franchisee that operates
and maintains the toll facilities in the North and South Luzon Toll
Expressways) with a copy of the said request for it to comment thereon.3
On November 5, 1991, TRB and PASUDECO entered into a Memorandum
of Agreement4 (MOA), where the latter was allowed to enter and pass
through the NLEX on the following terms and conditions:
1. PASUDECO trucks should move in convoy;
2. Said trucks will stay on the right lane;
3. A vehicle with blinking lights should be assigned at the rear end of the
convoy with a sign which should read as follows: Caution: CONVOY
AHEAD!!!;
4. Tollway safety measures should be properly observed;
5. Accidents or damages to the toll facilities arising out of any activity
related to this approval shall be the responsibility of PASUDECO;
6. PASUDECO shall be responsible in towing their stalled trucks
immediately to avoid any inconvenience to the other motorists;
7. This request will be in force only while the national bridges along
Abacan-Angeles and Sapang Maragul viaMagalang remain impassable.
PASUDECO furnished the PNCC with a copy of the MOA.5 In a Letter6 dated
October 22, 1992, the PNCC informed PASUDECO that it interposed no
objection to the MOA.
At around 2:30 a.m. on January 23, 1993, Alex Sendin, the PNCC security
supervisor, and his co-employees Eduardo Ducusin and Vicente Pascual
were patrolling Km. 72 going north of the NLEX. They saw a pile of
sugarcane in the middle portion of the north and southbound lanes of the
road.7 They placed lit cans with diesel oil in the north and southbound
lanes, including lane dividers with reflectorized markings, to warn
motorists of the obstruction. Sendin, Ducusin and Pascual proceeded to
the PASUDECO office, believing that the pile of sugarcane belonged to it
since it was the only milling company in the area. They requested for a
payloader or grader to clear the area. However, Engineer Oscar Mallari,
PASUDECOs equipment supervisor and transportation superintendent, told
them that no equipment operator was available as it was still very
early.8 Nonetheless, Mallari told them that he would send someone to clear
the affected area. Thereafter, Sendin and company went back to Km. 72
and manned the traffic. At around 4:00 a.m., five (5) PASUDECO men
arrived, and started clearing the highway of the sugarcane. They stacked
the sugarcane at the side of the road. The men left the area at around
5:40 a.m., leaving a few flattened sugarcanes scattered on the road. As
the bulk of the sugarcanes had been piled and transferred along the
roadside, Sendin thought there was no longer a need to man the traffic. As
dawn was already approaching, Sendin and company removed the lighted
cans and lane dividers.9 Sendin went to his office in Sta. Rita, Guiguinto,
Bulacan, and made the necessary report.10
At about 6:30 a.m., Rodrigo S. Arnaiz, a certified mechanic and marketing
manager of JETTY Marketing, Inc.,11 was driving his two-door Toyota
Corolla with plate number FAG 961 along the NLEX at about 65 kilometers
per hour.12He was with his sister Regina Latagan, and his friend Ricardo
Generalao; they were on their way to Baguio to attend their grandmothers
first death anniversary.13 As the vehicle ran over the scattered sugarcane,
it flew out of control and turned turtle several times. The accident threw
the car about fifteen paces away from the scattered sugarcane.
Police Investigator Demetrio Arcilla investigated the matter and saw black
and white sugarcanes on the road, on both lanes, which appeared to be
flattened.14
On March 4, 1993, Arnaiz, Latagan and Generalao filed a complaint 15 for
damages against PASUDECO and PNCC in the RTC of Manila, Branch 16.
The case was docketed as Civil Case No. 93-64803. They alleged, inter
alia, that through its negligence, PNCC failed to keep and maintain the
NLEX safe for motorists when it allowed PASUDECO trucks with uncovered
and unsecured sugarcane to pass through it; that PASUDECO negligently
spilled sugarcanes on the NLEX, and PNCC failed to put up emergency
devices to sufficiently warn approaching motorists of the existence of such
spillage; and that the combined gross negligence of PASUDECO and PNCC
was the direct and proximate cause of the injuries sustained by Latagan
and the damage to Arnaizs car. They prayed, thus:
WHEREFORE, it is respectfully prayed that, after due hearing, judgment be
rendered for the plaintiffs, ordering the defendants jointly and severally:
(a) To pay unto plaintiff Rodrigo Arnaiz the sum of 100,000.00
representing the value of his car which was totally wrecked;
(b) to pay unto plaintiff Regina Latagan the sum of 100,000.00 by way of
reimbursement for medical expenses, the sum of 50,000.00 by way of
moral damages, and the sum of 30,000.00 by way of exemplary
damages;
(c) To pay unto plaintiffs Rodrigo Arnaiz and Ricardo Generalao the sum of
5,000.00 by way of reimbursement for medical expenses; and
(d) To pay unto the plaintiffs the sum of 30,000.00 by way of attorneys
fees; plus the costs of suit.
Plaintiffs pray for other reliefs which the Honorable Court may find due
them in the premises.16
In its Answer,17 PNCC admitted that it was under contract to manage the
North Luzon Expressway, to keep it safe for motorists. It averred that the
mishap was due to the "unreasonable speed" at which Arnaizs car was
running, causing it to turn turtle when it passed over some pieces of
flattened sugarcane. It claimed that the proximate cause of the mishap
was PASUDECOs gross negligence in spilling the sugarcane, and its failure
to clear and mop up the area completely. It also alleged that Arnaiz was
guilty of contributory negligence in driving his car at such speed.
The PNCC interposed a compulsory counterclaim18 against the plaintiffs
and cross-claim19 against its co-defendant PASUDECO.
PASUDECO adduced evidence that aside from it, there were other
sugarcane mills in the area, like the ARCAM Sugar Central (formerly known
as Pampanga Sugar Mills) and the Central Azucarrera de Tarlac;20 it was
only through the expressway that a vehicle could access these three (3)
sugar centrals;21 and PASUDECO was obligated to clear spillages whether
the planters truck which caused the spillage was bound for PASUDECO,
ARCAM or Central Azucarera.22
On rebuttal, PNCC adduced evidence that only planters trucks with "PSD"
markings were allowed to use the tollway;23 that all such trucks would
surely enter the PASUDECO compound. Thus, the truck which spilled
sugarcane in January 1993 in Km. 72 was on its way to the PASUDECO
compound.24
On November 11, 1994, the RTC rendered its decision25 in favor of
Latagan, dismissing that of Arnaiz and Generalao for insufficiency of
evidence. The case as against the PNCC was, likewise, dismissed. The
decretal portion of the decision reads:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
I. ORDERING defendant PASUDECO:
1. To pay plaintiff Regina Latagan:
a. 25,000 = for actual damages
b. 15,000 = for moral damages
c. 10,000 = for attorneys fees
50,000
2. To pay costs of suit.
II. The case is DISMISSED as to defendant PNCC. No pronouncement as to
costs. Its counterclaim is, likewise, DISMISSED.
III. The claims for damages of plaintiffs Rodrigo Arnaiz and Ricardo
Generalao are hereby DISMISSED for insufficiency of evidence.
SO ORDERED.26
Both the plaintiffs Arnaiz, Latagan and Generalao and defendant
PASUDECO appealed the decision to the CA. Since the plaintiffs failed to
file their brief, the CA dismissed their appeal.27
Resolving PASUDECOs appeal, the CA rendered judgment on April 29,
2003, affirming the RTC decision with modification. The appellate court
ruled that Arnaiz was negligent in driving his car, but that such negligence
was merely contributory to the cause of the mishap, i.e., PASUDECOs
failure to properly supervise its men in clearing the affected area. Its
supervisor, Mallari, admitted that he was at his house while their men
were clearing Km. 72. Thus, the appellate court held both PASUDECO and
PNCC, jointly and severally, liable to Latagan. The decretal portion of the
decision reads:
WHEREFORE, premises considered, the assailed DECISION is hereby
MODIFIED and judgment is hereby rendered declaring PASUDECO and
PNCC, jointly and solidarily, liable:
1. To pay plaintiff Regina Latagan:
a. 25,000 = for actual damages
b. 15,000 = for moral damages
c. 10,000 = for attorneys fees
2. To pay costs of suit.
28
SO ORDERED.
The PNCC, now the petitioner, filed a petition for review on certiorari under
Rule 45 of the Revised Rules of Court, alleging that:
THE HONORABLE COURT OF APPEALS ERRED IN MODIFYING THE
DECISION OF THE TRIAL COURT AND MAKING PETITIONER PNCC,
JOINTLY AND [SOLIDARILY], LIABLE WITH PRIVATE RESPONDENT
PASUDECO.29
The petitioner asserts that the trial court was correct when it held that
PASUDECO should be held liable for the mishap, since it had assumed such
responsibility based on the MOA between it and the TRB. The petitioner
relies on the trial courts finding that only PASUDECO was given a permit
to pass through the route.
The petitioner insists that the respondents failed to prove that it was
negligent in the operation and maintenance of the NLEX. It maintains that
it had done its part in clearing the expressway of sugarcane piles, and that
there were no more piles of sugarcane along the road when its men left
Km. 72; only a few scattered sugarcanes flattened by the passing
motorists were left. Any liability arising from any mishap related to the
spilled sugarcanes should be borne by PASUDECO, in accordance with the
MOA which provides that "accidents or damages to the toll facilities arising
out of any activity related to this approval shall be the responsibility of
PASUDECO."
The petitioner also argues that the respondents should bear the
consequences of their own fault or negligence, and that the proximate and
immediate cause of the mishap in question was respondent Arnaizs
reckless imprudence or gross negligence.
The Court notes that the issues raised in the petition are factual in nature.
Under Rule 45 of the Rules of Court, only questions of law may be raised
in this Court, and while there are exceptions to the rule, no such exception
is present in this case. On this ground alone, the petition is destined to
fail. The Court, however, has reviewed the records of the case, and finds
that the petition is bereft of merit.
The petitioner is the grantee of a franchise, giving it the right, privilege
and authority to construct, operate and maintain toll facilities covering the
expressways, collectively known as the NLEX.30 Concomitant thereto is its
right to collect toll fees for the use of the said expressways and its
obligation to keep it safe for motorists.
There are three elements of a quasi-delict: (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.31 Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual relation between
the parties, is called a quasi-delict and is governed by the provisions of
this Chapter.
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 do.32 It also refers to the conduct which creates
undue risk of harm to another, the failure to observe that degree of care,
precaution and vigilance that the circumstance justly demand, whereby
that other person suffers injury.33 The Court declared the test by which to
determine the existence of negligence in Picart v. Smith,34 viz:
The test by which to determine the existence of negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard supposed
to be supplied by the imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is not determined
by reference to the personal judgment of the actor in the situation before
him. The law considers what would be reckless, blameworthy, or negligent
in the man of ordinary intelligence and prudence and determines liability
by that.
The test for determining whether a person is negligent in doing an act
whereby injury or damage results to the person or property of another is
this: could a prudent man, in the position of the person to whom
negligence is attributed, foresee harm to the person injured as a
reasonable consequence of the course actually pursued? If so, the law
imposes a duty on the actor to refrain from that course or to take
precautions to guard against its mischievous results, and the failure to do
so constitutes negligence. Reasonable foresight of harm, followed by the
ignoring of the admonition born of this provision, is always necessary
before negligence can be held to exist.35
In the case at bar, it is clear that the petitioner failed to exercise the
requisite diligence in maintaining the NLEX safe for motorists. The lighted
cans and lane dividers on the highway were removed even as flattened
sugarcanes lay scattered on the ground.36 The highway was still wet from
the juice and sap of the flattened sugarcanes.37 The petitioner should have
foreseen that the wet condition of the highway would endanger motorists
passing by at night or in the wee hours of the morning.
The petitioner cannot escape liability under the MOA between PASUDECO
and TRB, since respondent Latagan was not a party thereto. We agree
with the following ruling of the CA:
Both defendants, appellant PASUDECO and appellee PNCC, should be held
liable. PNCC, in charge of the maintenance of the expressway, has been
negligent in the performance of its duties. The obligation of PNCC should
not be relegated to, by virtue of a private agreement, to other parties.
PNCC declared the area free from obstruction since there were no piles of
sugarcane, but evidence shows there were still pieces of sugarcane stalks
left flattened by motorists. There must be an observance of that degree of
care, precaution, and vigilance which the situation demands. There should
have been sufficient warning devices considering that there were scattered
sugarcane stalks still left along the tollway.
The records show, and as admitted by the parties, that Arnaizs car ran
over scattered sugarcanes spilled from a hauler truck.38
Moreover, the MOA refers to accidents or damages to the toll facilities. It
does not cover damages to property or injuries caused to motorists on the
NLEX who are not privies to the MOA.
PASUDECOs negligence in transporting sugarcanes without proper
harness/straps, and that of PNCC in removing the emergency warning
devices, were two successive negligent acts which were the direct and
proximate cause of Latagans injuries. As such, PASUDECO and PNCC are
jointly and severally liable. As the Court held in the vintage case of Sabido
v. Custodio:39
According to the great weight of authority, where the concurrent or
successive negligent acts or omission of two or more persons, although
acting independently of each other, are, in combination, the direct and
proximate cause of a single injury to a third person and it is impossible to
determine in what proportion each contributed to the injury, either is
responsible for the whole injury, even though his act alone might not have
caused the entire injury, or the same damage might have resulted from
the acts of the other tort-feasor. ...
In Far Eastern Shipping Company v. Court of Appeals,40 the Court declared
that the liability of joint tortfeasors is joint and solidary, to wit:
It may be said, as a general rule, that negligence in order to render a
person liable need not be the sole cause of an injury. It is sufficient that
his negligence, concurring with one or more efficient causes other than
plaintiff's, is the proximate cause of the injury. Accordingly, where several
causes combine to produce injuries, a person is not relieved from liability
because he is responsible for only one of them, it being sufficient that the
negligence of the person charged with injury is an efficient cause without
which the injury would not have resulted to as great an extent, and that
such cause is not attributable to the person injured. It is no defense to one
of the concurrent tortfeasors that the injury would not have resulted from
his negligence alone, without the negligence or wrongful acts of the other
concurrent tortfeasors. Where several causes producing an injury are
concurrent and each is an efficient cause without which the injury would
not have happened, the injury may be attributed to all or any of the
causes and recovery may be had against any or all of the responsible
persons although under the circumstances of the case, it may appear that
one of them was more culpable, and that the duty owed by them to the
injured person was not the same. No actor's negligence ceases to be a
proximate cause merely because it does not exceed the negligence of
other actors. Each wrongdoer is responsible for the entire result and is
liable as though his acts were the sole cause of the injury.
There is no contribution between joint tortfeasors whose liability is solidary
since both of them are liable for the total damage. Where the concurrent
or successive negligent acts or omissions of two or more persons, although
acting independently, are in combination with the direct and proximate
cause of a single injury to a third person, it is impossible to determine in
what proportion each contributed to the injury and either of them is
responsible for the whole injury. Where their concurring negligence
resulted in injury or damage to a third party, they become joint tortfeasors
and are solidarily liable for the resulting damage under Article 2194 of the
Civil Code.

Thus, with PASUDECOs and the petitioners successive negligent acts,

they are joint tortfeasors who are solidarily liable for the resulting damage
under Article 2194 of the New Civil Code.41

Anent respondent Arnaizs negligence in driving his car, both the trial court
and the CA agreed that it was only contributory, and considered the same
in mitigating the award of damages in his favor as provided under Article
217942 of the New Civil Code. Contributory negligence is conduct on the
part of the injured party, contributing as a legal cause to the harm he has
suffered, which falls below the standard to which he is required to conform
for his own protection.43 Even the petitioner itself described Arnaizs
negligence as contributory. In its Answer to the complaint filed with the
trial court, the petitioner asserted that "the direct and proximate cause of
the accident was the gross negligence of PASUDECO personnel which
resulted in the spillage of sugarcane and the apparent failure of the
PASUDECO workers to clear and mop up the area completely, coupled with
the contributory negligence of Arnaiz in driving his car at an unreasonable
speed."44 However, the petitioner changed its theory in the present
recourse, and now claims that the proximate and immediate cause of the
mishap in question was the reckless imprudence or gross negligence of
respondent Arnaiz.45 Such a change of theory cannot be allowed. When a
party adopts a certain theory in the trial court, he will not be permitted to
change his theory on appeal, for to permit him to do so would not only be
unfair to the other party but it would also be offensive to the basic rules of
fair play, justice and due process.46

IN LIGHT OF ALL THE FOREGOING, the present petition is hereby

DENIED for lack of merit. The Decision of the Court of Appeals in CA-G.R.
CV No. 47699, dated April 29, 2003, is AFFIRMED. Costs against the
petitioner.

SO ORDERED.
G.R. No. 107356 March 31, 1995
SINGAPORE AIRLINES LIMITED, petitioner,
vs.
THE COURT OF APPEALS and PHILIPPINE AIRLINES, respondents.
ROMERO, J.:
Sancho Rayos was an overseas contract worker who had a renewed
contract with the Arabian American Oil Company (Aramco) for the period
covering April 16, 1980, to April 15, 1981. As part of Aramco's policy, its
employees returning to Dhahran, Saudi Arabia from Manila are allowed to
claim reimbursement for amounts paid for excess baggage of up to 50
kilograms, as long as it is properly supported by receipt. On April 1980,
Rayos took a Singapore Airlines (SIA) flight to report for his new
assignment, with a 50-kilogram excess baggage for which he paid
P4,147.50. Aramco reimbursed said. amount upon presentation of the
excess baggage ticket.
In December 1980, Rayos learned that he was one of several employees
being investigated by Aramco for fraudulent claims. He immediately asked
his wife Beatriz in Manila to seek a written confirmation from SIA that he
indeed paid for an excess baggage of 50 kilograms. On December 10,
1980, SIA's manager, Johnny Khoo, notified Beatriz of their inability to
issue the certification requested because their records showed that only
three kilograms were entered as excess and accordingly charged. SIA
issued the certification requested by the spouses Rayos only on April 8,
1981, after its investigation of the anomaly and after Beatriz, assisted by a
lawyer, threatened it with a lawsuit. On April 14, 1981, Aramco gave
Rayos his travel documents without a return visa. His employment
contract was not renewed.
On August 5, 1981, the spouses Rayos, convinced that SIA was
responsible for the non-renewal of Rayos' employment contract with
Aramco, sued it for damages. SIA claimed that it was not liable to the
Rayoses because the tampering was committed by its handling agent,
Philippine Airlines (PAL). It then filed a third-party complaint against PAL.
PAL, in turn, countered that its personnel did not collect any charges for
excess baggage; that it had no participation in the tampering of any
excess baggage ticket; and that if any tampering was made, it was done
by SIA's personnel.
Judge Jesus O. Ibay of the Regional Trial Court of Manila, Branch 30,
rendered judgment on September 9, 1988, in favor of the plaintiffs, the
dispositive portion of which reads thus:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiffs and against the defendant Singapore Airlines
Limited, sentencing the latter to pay the former the
following:
1. The sum of Four Hundred Thirty Thousand Nine Hundred
Pesos and Eighty Centavos (P430,900.80) as actual
damages, with interest at the legal rate from the date of
the filing of the complaint until fully paid.
2. The sum of Four Thousand One Hundred Forty-Seven
Pesos and Fifty Centavos (P4,147.50) as reimbursement
for the amount deducted from Mr. Rayos' salary, also with
legal rate of interest from the filing of the complaint until
paid in full;
3. The sum of Fifty Thousand Pesos (P50,000.00) as moral
damages;
4. The sum equivalent to ten Per Cent (10th) of the total
amount due as and for attorney's fees; and
5. The cost of suit.
The defendant's counterclaim is hereby dismissed.
ON THE THIRD PARTY COMPLAINT, the third-party
defendant PAL is ordered to pay defendant and third-party
plaintiff SIA whatever the latter has paid the plaintiffs.
SO ORDERED.
In so ruling, the court a quo concluded that the excess baggage ticket of
Rayos was tampered with by the employees of PAL and that the fraud was
the direct and proximate cause of the non-renewal of Rayos' contract with
Aramco.
All parties appealed to the Court of Appeals. SIA's appeal was dismissed
for non-payment of docket fees, which dismissal was eventually sustained
by this Court. The Rayos spouses withdrew their appeal when SIA satisfied
the judgment totaling P802,435.34.
In its appeal, PAL claimed that the spouses Rayos had no valid claim
against SIA because it was the inefficiency of Rayos which led to the non-
renewal of his contract with Aramco, and not the alleged tampering of his
excess bagged ticket On the other hand, SIA argued that the only issue in
the said appeal is whether or not it was entitled to reimbursement from
PAL, citing
the case of Firestone Tire and Rubber Company of the Philippines
v. Tempongko.1
The appellate court disagreed with SIA's contention that PAL could no
longer raise the issue of SIA's liability to the Rayoses and opined "that
SIA's answer to the complaint should inure to the benefit of PAL, and the
latter may challenge the lower court's findings against SIA in favor of
plaintiffs-appellees (the Rayos spouses) for the purpose of defeating SIA's
claim against it, and not for the purpose of altering in any way the
executed judgment against SIA." In its answer to the main complaint, SIA
set up the defense that the excess baggage ticket was indeed tampered
with but it was committed by PAL's personnel. On September 21, 1992,
the appellate court granted PAL's appeal and absolved it from any liability
to SIA.
In this petition for review, SIA argues that PAL cannot validly assail for the
first time on appeal the trial court's decision sustaining the validity of
plaintiff's complaint against SIA if PAL did not raise this issue in the lower
court. It added that the appellate court should have restricted its ruling on
the right of SIA to seek reimbursement from PAL, as this was the only
issue raised by SIA in its third-party complaint against PAL.
The instant appeal is impressed with merit.
The petitioner correctly pointed out that the case of Firestone squarely
applies to the case at bench. In said case, the Court expounded on the
nature of a third-party complaint and the effect of a judgment in favor of
the plaintiff against the defendant and in favor of such defendant as third-
party plaintiff against, ultimately, the third-party defendant. Speaking
through then Justice and later Chief Justice Claudio Teehankee, the Court
stated:
The third-party complaint is, therefore, a procedural device
whereby a "third party" who is neither a party nor privy to
the act or deed complained of by the plaintiff, may be
brought into the case with leave of court, by the
defendant, who acts as third-party plaintiff to enforce
against such third-party defendant a right for contribution,
indemnity, subrogation or any other relief, in respect of
the plaintiff's claim. The third-party complaint is actually
independent of and separate and distinct from the
plaintiff's complaint. . . . When leave to file the third-party
complaint is properly granted, the Court renders in effect
two judgments in the same case, one on the plaintiff's
complaint and the other on the third-party complaint.
When he finds favorably on both complaints, as in this
case, he renders judgment on the principal complaint in
favor of plaintiff against defendant and renders another
judgment on the third-party complaint in favor of
defendant as third-party plaintiff, ordering the third-party
defendant to reimburse the defendant whatever amount
said defendant is ordered to pay plaintiff in the case.
Failure of any of said parties in such a case to appeal the
judgment as against him makes such judgment final and
executory. By the same token, an appeal by one party
from such judgment does not inure to the benefit of the
other party who has not appealed nor can it be deemed to
be an appeal of such other party from the judgment
against him.
It must be noted that in the proceedings below, PAL disclaimed any
liability to the Rayoses and imputed the alleged tampering to SIA's
personnel. On appeal, however, PAL changed its theory and averred that
the spouses Rayos had no valid claim against SIA on the around that the
non-renewal of Sancho's contract with Aramco was his unsatisfactory
performance rather than the alleged tampering of his excess baggage
ticket. In response to PAL's appeal, SIA argued that it was improper for
PAL to question SIA's liability to the plaintiff, since this was no longer an
issue on account of the finality and, in fact, satisfaction of the judgment.
Surprisingly, the appellate court ignored the Court's pronouncements
in Firestone and declared:
[T]here is nothing in the citation which would suggest that
the appellant cannot avail of the defenses which would
have been available to the non-appealing party against the
prevailing party which would be beneficial to the appellant.
After all, PAL's liability here is premised on the liability of
SIA to plaintiffs-appellees, In its own defense, it should
have the right to avail of defenses of SIA against plaintiffs-
appellees which would redound to its benefit. This is
especially true here where SIA lost the capability to defend
itself on the technicality of failure to pay docket fee, rather
than on the merits of its appeal. To hold otherwise would
be to open the door to a possible collusion between the
plaintiff and defendant which would leave the third-party
defendant holding the bag.
There is no question that a third-party defendant is allowed to set up in his
answer the defenses which the third-party plaintiff (original defendant) has
or may have to the plaintiff's claim. There are, however, special
circumstances present in this case which preclude third-party defendant
PAL from benefiting from the said principle.
One of the defenses available to SIA was that the plaintiffs had no cause of
action, that is, it had no valid claim against SIA. SIA investigated the
matter and discovered that tampering was, indeed, committed, not by its
personnel but by PAL's. This became its defense as well as its main cause
of action in the third-party complaint it filed against PAL. For its part, PAL
could have used the defense that the plaintiffs had no valid claim against it
or against SIA. This could be done indirectly by adopting such a defense in
its answer to the third-party complaint if only SIA had raised the same in
its answer to the main complaint, or directly by so stating in unequivocal
terms in its answer to SIA's complaint that SIA and PAL were both
blameless. Yet, PAL opted to deny any liability which it imputed to SIA's
personnel. It was only on appeal in a complete turn around of theory
that PAL raised the issue of no valid claim by the plaintiff against SIA. This
simply cannot be allowed.
While the third-party defendant; would benefit from a victory by the third-
party plaintiff against the plaintiff, this is true only when the third-party
plaintiff and third-party defendant have non-contradictory defenses. Here,
the defendant and third-party defendant had no common defense against
the plaintiffs' complaint, and they were even blaming each other for the
fiasco.
Fear of collusion between the third-party plaintiff and the plaintiffs aired by
the appellate court is misplaced if not totally unfounded. The stand of SIA
as against the plaintiffs' claim was transparent from the beginning. PAL
was aware of SIA's defense, and if it was convinced that SIA should have
raised the defense of no valid claim by the plaintiffs, it should have so
stated in its answer as one of its defenses, instead of waiting for an
adverse judgment and raising it for the first time on appeal.
The judgment, therefore, as far as the Rayoses and SIA are concerned,
has already gained finality. What remains to be resolved, as correctly
pointed out by petitioner, is whether it is entitled to reimbursement from
PAL, considering that PAL appealed that part of the decision to the
appellate court. This is where the rule laid down in Firestone becomes
applicable.
The trial court's decision, although adverse to SIA as defendant, made PAL
ultimately answerable for the judgment by ordering the latter to reimburse
the former for the entire monetary award. On appeal, PAL tried to
exonerate itself by arguing that the Rayoses had no valid claim against
SIA. From PAL's viewpoint, this seemed to be the only way to extricate
itself from a mess which the court a quo ascribed to it. This cannot,
however, be allowed because it was neither raised by SIA in its answer to
the main complaint nor by PAL in its answer to the third-party complaint.
The prudent thing that PAL should have done was to state in its answer to
the third-party complaint filed by SIA against it everything that it may
conceivably interpose by way of its defense, including specific denials of
allegations in the main complaint which implicated it along with SIA.
The appellate court was in error when it opined that SIA's answer inured to
the benefit of PAL for the simple reason that the complaint and the third-
party complaint are actually two separate cases involving the same set of
facts which is allowed by the court to be resolved in a single proceeding
only to avoid a multiplicity of actions. Such a proceeding obviates the need
of trying two cases, receiving the same or similar evidence for both, and
enforcing separate judgments therefor. This situation is not, as claimed by
the appellate court, analogous to a case where there are several
defendants against whom a complaint is filed stating a common cause of
action, where the answer of some of the defendants inures to the benefit
of those who did not file an answer. While such a complaint speaks of a
single suit, a third-party complaint involves an action separate and distinct
from, although related to the main complaint. A third-party defendant who
feels aggrieved by some allegations in the main complaint should, aside
from answering the third-party complaint, also answer the main complaint.
We do not, however, agree with the petitioner that PAL is solely liable for
the satisfaction of the judgment. While the trial court found, and this has
not been adequately rebutted by PAL, that the proximate cause of the
non-renewal of Rayos' employment contract with Aramco was the
tampering of his excess baggage ticket by PAL's personnel, it failed to
consider that the immediate cause of such non-renewal was SIA's delayed
transmittal of the certification needed by Rayos to prove his innocence to
his employer.
SIA was informed of the anomaly in December 1980 but only issued the
certification four months later or, more specifically, on April 8, 1981, a few
days before the expiration of Rayos' contract. Surely, the investigation
conducted by SIA could not have lasted for four months as the information
needed by the Rayoses could easily be verified by comparing the duplicate
excess baggage tickets which they and their handling agent, PAL, kept the
record purposes. The fact that the Rayos spouses had to be assisted by
counsel who threatened to file a damage suit against SIA if the
certification they urgently needed was not immediately issued only
strengthens the suspicion that SIA was not dealing with them in utmost
good faith. The effect of SIA's mishandling of Beatriz Rayos' request
became instantly apparent when her husband's contract was not renewed
in spite of his performance which was constantly "highly regarded" by the
manager of Aramco's equipment services department.
Former Chief Justice and noted remedial law expert Manuel V. Moran
opined that "in an action upon a tort, the defendant may file a third-party
complaint against a joint tort-feasor for contribution."2
The non-renewal of Rayos employment contract was the natural and
probable consequence of the separate tortious acts of SIA and PAL. Under
mandate of Article 2176 of the Civil Code, Rayos is entitled to be
compensated for such damages. Inasmuch as the responsibility of two or
more persons, or tort-feasors, liable for a quasi-delict is joint and
several,3 and the sharing as between such solidary debtors is pro-rata,4 it
is but logical, fair, and equitable to require PAL to contribute to the
amount awarded to the Rayos spouses and already paid by SIA, instead of
totally indemnifying the latter.

WHEREFORE, the decision of the respondent Court of Appeals in CA-G.R.

CV No. 20488 dated September 21, 1992, is hereby REVERSED and a new
one is entered ordering private respondent Philippine Airlines to pay, by
way of contribution, petitioner Singapore Airlines one-half (1/2) of the
amount it actually paid to Sancho and Beatriz Rayos in satisfaction of the
judgment in Civil Case No. 142252, dated September 9, 1988.

SO ORDERED.
G.R. No. 160283 October 14, 2005
JOHN KAM BIAK Y. CHAN, JR., Petitioner,
vs.
Iglesia Ni Cristo, Inc., Respondent.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari1 assailing the Decision2 of
the Court of Appeals in CA-G.R. CV No. 65976, dated 25 September 2003.
Said Decision denied the petitioners appeal from the decision of the
Regional Trial Court (RTC), La Union, Branch 31, in Civil Case No. A-1646.
THE FACTS
The antecedents of the instant case are quite simple.
The Aringay Shell Gasoline Station is owned by the petitioner. It is located
in Sta. Rita East, Aringay, La Union, and bounded on the south by a chapel
of the respondent.
The gasoline station supposedly needed additional sewerage and septic
tanks for its washrooms. In view of this, the services of Dioscoro "Ely"
Yoro (Yoro), a retired general of the Armed Forces of the Philippines, was
procured by petitioner, as the former was allegedly a construction
contractor in the locality.
Petitioner and Yoro executed a Memorandum of Agreement 3 (MOA) on 28
February 1995 which is reproduced hereunder:
MEMORANDUM OF AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This MEMORANDUM OF AGREEMENT, executed this 28th day of February,
1995, by and between:
JOHN Y. CHAN, of legal age, single, and a resident of Aringay, La Union,
now and hereinafter called the FIRST PARTY;
GEN. ELY E. YORO, Jr., of legal age, married, and a resident of Damortis,
Sto. Tomas, La Union, hereinafter referred to as the SECOND PARTY:
WITNESSETH that:
WHEREAS, the FIRST PARTY is the owner of a parcel of land located at
Sta. Rita, Aringay, La Union.
WHEREAS, the FIRST PARTY, desires to dig a septic tank for its perusal in
the property bordering Iglesia ni Cristo.
WHEREAS, the SECOND PARTY is willing to contract the intended digging
of septic tank for the first party.
WHEREAS, the FIRST PARTY and SECOND PARTY has (sic) agreed verbally
as to the compensation of the said digging of septic tank.
WHEREFORE, for and in consideration of the terms and covenants
hereinbelow set forth, the FIRST PARTY hereby AGREES and ALLOWS the
SECOND PARTY to undertake the digging of the parcel of land for the
exclusive purpose of having a septic tank.
TERMS AND COVENANTS
1. The SECOND PARTY shall contract the said digging;
2. The FIRST PARTY shall have complete control over the number of
personnel who will be entering the property for said contract;
3. The digging shall be allowed for a period of three (3) weeks only,
commencing on March 28, 1995, unless extended by agreement of the
parties;
4. Any damage within or outside the property of the FIRST PARTY incurred
during the digging shall be borne by the SECOND PARTY;
5. In the event that valuable objects are found on the property, the same
shall be divided among the parties as follows:
FIRST PARTY - 60%
SECOND PARTY - 40%
6. In the event that valuable objects are found outside the property line
during the said digging, the same shall be divided among the parties as
follows:
FIRST PARTY - 35%
SECOND PARTY - 65%
7. In case government or military interference or outside intervention is 4. FIFTY THOUSAND PESOS (P50,000.00) as plaintiffs attorneys fees; and
imminent, the FIRST PARTY hereby reserves the option to stop the digging
at any stage thereof. 5. TWENTY THOUSAND PESOS (P20,000.00) as litigation expenses.

IN WITNESS WHEREOF, We have hereunto set our hands on the day and Defendant TEOFILO OLLER is absolved of any civil liability.
year first above-written at Aringay, La Union.4
Any counterclaim filed against PLAINTIFF IGLESIA NI CRISTO
Diggings thereafter commenced. After some time, petitioner was informed is dismissed.13
by the members of the respondent that the digging traversed and
penetrated a portion of the land belonging to the latter. The foundation of
Petitioner filed a Notice of Appeal14 dated 18 August 1999. Yoro filed his
the chapel was affected as a tunnel was dug directly under it to the
own Notice of Appeal15 dated 20 August 1999.
damage and prejudice of the respondent.

In a Resolution16 dated 19 November 1999, the trial court disallowed

On 18 April 1995, a Complaint5 against petitioner and a certain Teofilo
Yoros appeal for failure to pay the appellate court docket and other lawful
Oller, petitioners engineer, was filed by the respondent before the RTC, La
fees within the reglementary period for taking an appeal. 17 In view of
Union, Branch 31, docketed therein as Civil Case No. A-1646. Petitioner
Yoros failure to appropriately file an appeal, an order was issued for the
and Oller filed an Answer with Third-Party Complaint6 impleading Yoro as
issuance of a Writ of Execution as against him only, the dispositive portion
third-party defendant.
of which reads:

Yoro filed an Answer to the Third-Party Complaint7 dated 13 July 1995. An

WHEREFORE, premises considered, this Court GRANTS the motion of
Amended and Supplemental Complaint8dated 30 August 1995 was later
plaintiff Iglesia ni Cristo for the issuance of a Writ of Execution as against
filed by the respondent already naming Yoro as a party-defendant, to
Dioscoro "Ely" Yoro, Jr. only.18
which the petitioner and Oller filed an Answer.9 Yoro filed his own
Answer.10
The petitioners appeal to the Court of Appeals, on the other hand, was
given due course.19 On 25 September 2003, the Court of Appeals rendered
After four years of hearing the case, the trial court promulgated its
its Decision denying the appeal. It affirmed the trial court but with
Decision11 holding that the diggings were not intended for the construction
modifications. The decretal portion of the decision states:
of sewerage and septic tanks but were made to construct tunnels to find
hidden treasure.12 The trial court adjudged the petitioner and Yoro
solidarily liable to the respondent on a 35%-65% basis (the petitioner WHEREFORE, the appeal is hereby DENIED. The assailed decision in Civil
liable for the 35%), and absolving Oller from any liability, viz: Case No. A-1646 is hereby AFFIRMED with MODIFICATIONS as follows:

WHEREFORE, this Court renders judgment in favor of plaintiff IGLESIA NI
CRISTO and against defendants JOHN KAMBIAK CHAN and DIOSCORO
"ELY" YORO, JR. who are respectively solidarily liable to PLAINTIFF on a
35%-65% basis, with JOHN CHAN taking the 35% tab, Ordering the two
(2) aforesaid DEFENDANTS to pay PLAINTIFF the following amounts:
1. SIX HUNDRED THIRTY-THREE THOUSAND FIVE HUNDRED NINETY-FIVE
PESOS AND FIFTY CENTAVOS (P633,595.50); representing ACTUAL
DAMAGES;
2. FIVE HUNDRED THOUSAND PESOS (P500,000.00) representing MORAL
DAMAGES;
(a) The award of moral damages in the amount of 500,000.00 is hereby
deleted.
(b) The award of exemplary damages is hereby reduced to 50,000.00.
(c) The award of attorneys fees and litigation expenses is hereby reduced
to 30,000.00.20
Undeterred, petitioner instituted the instant case before this Court. On 15
December 2004, the instant petition was given due course.21
ASSIGNMENT OF ERRORS

3. TEN MILLION PESOS (P10,000,000.00) as EXEMPLARY DAMAGES; Petitioner assigns as errors the following:
I intrude and surreptitiously hunt for hidden treasure in the respondents
THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE
REGIONAL TRIAL COURT (BRANCH 31, AGOO, LA UNION) PARTICULARLY
IN SAYING THAT THE BASIS OF THE SOLIDARY OBLIGATION OF
PETITIONER AND YORO VIS--VIS PLAINTIFF IS BASED NOT ON THE MOA
BUT ON TORT
II
THE COURT OF APPEALS ERRED IN NOT GIVING EFFECT TO THE MOA
WHICH SHOULD EXONERATE THE PETITIONER FROM ALL LIABILITIES TO
THE PRIVATE RESPONDENT
III
THE COURT OF APPEALS ERRED IN NOT APPRECIATING THE THIRD-PARTY
COMPLAINT AS CROSS-CLAIM OF THE PETITIONER AGAINST YORO.22
ISSUE
Drawn from the above assignment of errors, the solitary issue that needs
to be resolved is:
WHETHER OR NOT THE MEMORANDUM OF AGREEMENT ENTERED INTO BY
THE PETITIONER AND YORO HAS THE EFFECT OF MAKING THE
LATTER SOLELY RESPONSIBLE FOR DAMAGES TO THE RESPONDENT.
THE RULINGS OF THE COURT
Petitioner avers that no liability should attach to him by laying the blame
solely on Yoro. He argues that the MOA executed between him and Yoro is
the law between them and must be given weight by the courts. Since
nothing in the MOA goes against the law, morals, good customs and public
policy, it must govern to absolve him from any liability. 23 Petitioner relies
heavily in Paragraph 4 of the MOA, which is again reproduced hereunder:
4. Any damage within or outside the property of the FIRST PARTY incurred
during the digging shall be borne by the SECOND PARTY.
In answer to this, the respondent asserts that the MOA should not absolve
petitioner from any liability. This written contract, according to the
respondent, clearly shows that the intention of the parties therein was to
search for hidden treasure. The alleged digging for a septic tank was just a
cover-up of their real intention.24 The aim of the petitioner and Yoro to
premises should make both parties liable.25
At this juncture, it is vital to underscore the findings of the trial court and
the Court of Appeals as to what was the real intention of the petitioner and
Yoro in undertaking the excavations. The findings of the trial court and the
Court of Appeals on this point are in complete unison. Petitioner and Yoro
were in quest for hidden treasure26 and, undoubtedly, they were partners
in this endeavor.
The Court of Appeals, in its Decision, held in part:
The basis of their solidarity is not the Memorandum of Agreement but the
fact that they have become joint tortfeasors. There is solidary liability only
when the obligation expressly so states, or when the law or the nature of
the obligation requires solidarity.27
We find no compelling reason to disturb this particular conclusion reached
by the Court of Appeals. The issue, therefore, must be ruled in the
negative.
Article 2176 of the New Civil Code provides:
ART. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
Based on this provision of law, the requisites of quasi-delict are the
following:
(a) there must be an act or omission;
(b) such act or omission causes damage to another;
(c) such act or commission is caused by fault or negligence; and
(d) there is no pre-existing contractual relation between the parties.
All the requisites are attendant in the instant case. The tortious act was
the excavation which caused damage to the respondent because it was
done surreptitiously within its premises and it may have affected the
foundation of the chapel. The excavation on respondents premises was
caused by fault. Finally, there was no pre-existing contractual relation
between the petitioner and Yoro on the one hand, and the respondent on
the other.
For the damage caused to respondent, petitioner and Yoro are jointly liable
as they are joint tortfeasors. Verily, the responsibility of two or more
persons who are liable for a quasi-delict is solidary.28
The heavy reliance of petitioner in paragraph 4 of the MOA cited earlier
cannot steer him clear of any liability.
As a general rule, joint tortfeasors are all the persons who command,
instigate, promote, encourage, advise, countenance, cooperate in, aid or
abet the commission of a tort, or who approve of it after it is done, if done
for their benefit.29
Indubitably, petitioner and Yoro cooperated in committing the tort. They
even had provisions in their MOA as to how they would divide the treasure
if any is found within or outside petitioners property line. Thus, the MOA,
instead of exculpating petitioner from liability, is the very noose that
insures that he be so declared as liable.
For such tortious act done with gross negligence, the Court feels that the
amount awarded by the Court of Appeals is inadequate. The exemplary
damages must correspondingly be increased to 100,000.00.
The modification made by this Court to the judgment of the Court of
Appeals must operate as against Yoro, for as fittingly held by the court a
quo:
While it is settled that a party who did not appeal from the decision cannot
seek any relief other than what is provided in the judgment appealed from,
nevertheless, when the rights and liability of the defendants are so
interwoven and dependent as to be inseparable, in which case, the
modification of the appealed judgment in favor of appellant operates as a
modification to Gen. Yoro who did not appeal. In this case, the liabilities of
Gen. Yoro and appellant being solidary, the above exception applies.34
WHEREFORE, the Decision of the Court of Appeals dated 25 September
2003 is AFFIRMED with MODIFICATION as to the award of exemplary
damages, which is hereby increased to 100,000.00. Costs against
petitioner.

Besides, petitioner cannot claim that he did not know that the excavation SO ORDERED.
traversed the respondents property. In fact, he had two (2) of his
employees actually observe the diggings, his security guard and his
engineer Teofilo Oller.30

Coming now to the matter on damages, the respondent questions the

drastic reduction of the exemplary damages awarded to it. It may be
recalled that the trial court awarded exemplary damages in the amount of
10,000,000.00 but same was reduced by the Court of Appeals to
50,000.00.

Exemplary or corrective damages are imposed by way of example or

correction for the public good.31 In quasi-delicts, exemplary damages may
be granted if the defendant acted with gross negligence.32 By gross
negligence is meant such entire want of care as to raise a presumption
that the person in fault is conscious of the probable consequences of
carelessness, and is indifferent, or worse, to the danger of injury to person
or property of others.33

Surreptitiously digging under the respondents chapel which may weaken

the foundation thereof, thereby endangering the lives and limbs of the
people in worship, unquestionably amounts to gross negligence. Not to
mention the damage that may be caused to the structure itself. The
respondent may indeed be awarded exemplary damages.
G.R. No. 157917 August 29, 2012
SPOUSES TEODORO1 and NANETTE PERENA, Petitioners,
vs.
SPOUSES TERESITA PHILIPPINE NICOLAS and L. ZARATE,
NATIONAL RAILWAYS, and the COURT OF APPEALS Respondents.
DECISION
BERSAMIN, J.:
The operator of a. school bus service is a common carrier in the eyes of
the law. He is bound to observe extraordinary diligence in the conduct of
his business. He is presumed to be negligent when death occurs to a
passenger. His liability may include indemnity for loss of earning capacity
even if the deceased passenger may only be an unemployed high school
student at the time of the accident.
The Case
By petition for review on certiorari, Spouses Teodoro and Nanette Perefia
(Perefias) appeal the adverse decision promulgated on November 13,
2002, by which the Court of Appeals (CA) affirmed with modification the
decision rendered on December 3, 1999 by the Regional Trial Court (RTC),
Branch 260, in Paraaque City that had decreed them jointly and severally
liable with Philippine National Railways (PNR), their co-defendant, to
Spouses Nicolas and Teresita Zarate (Zarates) for the death of their 15-
year old son, Aaron John L. Zarate (Aaron), then a high school student of
Don Bosco Technical Institute (Don Bosco).
Antecedents
The Pereas were engaged in the business of transporting students from
their respective residences in Paraaque City to Don Bosco in Pasong
Tamo, Makati City, and back. In their business, the Pereas used a KIA
Ceres Van (van) with Plate No. PYA 896, which had the capacity to
transport 14 students at a time, two of whom would be seated in the front
beside the driver, and the others in the rear, with six students on either
side. They employed Clemente Alfaro (Alfaro) as driver of the van.
In June 1996, the Zarates contracted the Pereas to transport Aaron to
and from Don Bosco. On August 22, 1996, as on previous school days, the
van picked Aaron up around 6:00 a.m. from the Zarates residence. Aaron
took his place on the left side of the van near the rear door. The van, with
its air-conditioning unit turned on and the stereo playing loudly, ultimately
carried all the 14 student riders on their way to Don Bosco. Considering
that the students were due at Don Bosco by 7:15 a.m., and that they were
already running late because of the heavy vehicular traffic on the South
Superhighway, Alfaro took the van to an alternate route at about 6:45
a.m. by traversing the narrow path underneath the Magallanes
Interchange that was then commonly used by Makati-bound vehicles as a
short cut into Makati. At the time, the narrow path was marked by piles of
construction materials and parked passenger jeepneys, and the railroad
crossing in the narrow path had no railroad warning signs, or watchmen,
or other responsible persons manning the crossing. In fact, the bamboo
barandilla was up, leaving the railroad crossing open to traversing
motorists.
At about the time the van was to traverse the railroad crossing, PNR
Commuter No. 302 (train), operated by Jhonny Alano (Alano), was in the
vicinity of the Magallanes Interchange travelling northbound. As the train
neared the railroad crossing, Alfaro drove the van eastward across the
railroad tracks, closely tailing a large passenger bus. His view of the
oncoming train was blocked because he overtook the passenger bus on its
left side. The train blew its horn to warn motorists of its approach. When
the train was about 50 meters away from the passenger bus and the van,
Alano applied the ordinary brakes of the train. He applied the emergency
brakes only when he saw that a collision was imminent. The passenger bus
successfully crossed the railroad tracks, but the van driven by Alfaro did
not. The train hit the rear end of the van, and the impact threw nine of the
12 students in the rear, including Aaron, out of the van. Aaron landed in
the path of the train, which dragged his body and severed his head,
instantaneously killing him. Alano fled the scene on board the train, and
did not wait for the police investigator to arrive.
Devastated by the early and unexpected death of Aaron, the Zarates
commenced this action for damages against Alfaro, the Pereas, PNR and
Alano. The Pereas and PNR filed their respective answers, with cross-
claims against each other, but Alfaro could not be served with summons.
At the pre-trial, the parties stipulated on the facts and issues, viz:
A. FACTS:
(1) That spouses Zarate were the legitimate parents of Aaron
John L. Zarate;
(2) Spouses Zarate engaged the services of spouses Perea for
the adequate and safe transportation carriage of the former
spouses' son from their residence in Paraaque to his school at the
Don Bosco Technical Institute in Makati City;
(3) During the effectivity of the contract of carriage and in the
implementation thereof, Aaron, the minor son of spouses Zarate
died in connection with a vehicular/train collision which occurred
while Aaron was riding the contracted carrier Kia Ceres van of
 spouses Perea, then driven and operated by the latter's
employee/authorized driver Clemente Alfaro, which van collided
with the train of PNR, at around 6:45 A.M. of August 22, 1996,
within the vicinity of the Magallanes Interchange in Makati City,
Metro Manila, Philippines;
(4) At the time of the vehicular/train collision, the subject site of
the vehicular/train collision was a railroad crossing used by
motorists for crossing the railroad tracks;
(5) During the said time of the vehicular/train collision, there were
no appropriate and safety warning signs and railings at the site
commonly used for railroad crossing;
(6) At the material time, countless number of Makati bound public
utility and private vehicles used on a daily basis the site of the
collision as an alternative route and short-cut to Makati;
(7) The train driver or operator left the scene of the incident on
board the commuter train involved without waiting for the police
investigator;
(8) The site commonly used for railroad crossing by motorists was
not in fact intended by the railroad operator for railroad crossing at
the time of the vehicular collision;
(9) PNR received the demand letter of the spouses Zarate;
(10) PNR refused to acknowledge any liability for the
vehicular/train collision;
(11) The eventual closure of the railroad crossing alleged by PNR
was an internal arrangement between the former and its project
contractor; and
(12) The site of the vehicular/train collision was within the vicinity
or less than 100 meters from the Magallanes station of PNR.
B. ISSUES
(1) Whether or not defendant-driver of the van is, in the
performance of his functions, liable for negligence constituting the
proximate cause of the vehicular collision, which resulted in the
death of plaintiff spouses' son;
(2) Whether or not the defendant spouses Perea being the
employer of defendant Alfaro are liable for any negligence which
may be attributed to defendant Alfaro;
(3) Whether or not defendant Philippine National Railways being
the operator of the railroad system is liable for negligence in failing
to provide adequate safety warning signs and railings in the area
commonly used by motorists for railroad crossings, constituting
the proximate cause of the vehicular collision which resulted in the
death of the plaintiff spouses' son;
(4) Whether or not defendant spouses Perea are liable for breach
of the contract of carriage with plaintiff-spouses in failing to
provide adequate and safe transportation for the latter's son;
(5) Whether or not defendants spouses are liable for actual, moral
damages, exemplary damages, and attorney's fees;
(6) Whether or not defendants spouses Teodorico and Nanette
Perea observed the diligence of employers and school bus
operators;
(7) Whether or not defendant-spouses are civilly liable for the
accidental death of Aaron John Zarate;
(8) Whether or not defendant PNR was grossly negligent in
operating the commuter train involved in the accident, in allowing
or tolerating the motoring public to cross, and its failure to install
safety devices or equipment at the site of the accident for the
protection of the public;
(9) Whether or not defendant PNR should be made to reimburse
defendant spouses for any and whatever amount the latter may be
held answerable or which they may be ordered to pay in favor of
plaintiffs by reason of the action;
(10) Whether or not defendant PNR should pay plaintiffs directly
and fully on the amounts claimed by the latter in their Complaint
by reason of its gross negligence;
(11) Whether or not defendant PNR is liable to defendants spouses
for actual, moral and exemplary damages and attorney's fees.2
The Zarates claim against the Pereas was upon breach of the contract of
carriage for the safe transport of Aaron; but that against PNR was based
on quasi-delict under Article 2176, Civil Code.
In their defense, the Pereas adduced evidence to show that they had
exercised the diligence of a good father of the family in the selection and
supervision of Alfaro, by making sure that Alfaro had been issued a
drivers license and had not been involved in any vehicular accident prior
to the collision; that their own son had taken the van daily; and that
Teodoro Perea had sometimes accompanied Alfaro in the vans trips
transporting the students to school.
For its part, PNR tended to show that the proximate cause of the collision
had been the reckless crossing of the van whose driver had not first
stopped, looked and listened; and that the narrow path traversed by the
van had not been intended to be a railroad crossing for motorists.
Ruling of the RTC
On December 3, 1999, the RTC rendered its decision,3 disposing:
WHEREFORE, premises considered, judgment is hereby rendered in favor
of the plaintiff and against the defendants ordering them to jointly and
severally pay the plaintiffs as follows:
(1) (for) the death of Aaron- Php50,000.00;
(2) Actual damages in the amount of Php100,000.00;
(3) For the loss of earning capacity- Php2,109,071.00;
(4) Moral damages in the amount of Php4,000,000.00;
(5) Exemplary damages in the amount of Php1,000,000.00;
(6) Attorneys fees in the amount of Php200,000.00; and
(7) Cost of suit.
SO ORDERED.
On June 29, 2000, the RTC denied the Pereas motion for
reconsideration,4 reiterating that the cooperative gross negligence of the
Pereas and PNR had caused the collision that led to the death of Aaron;
and that the damages awarded to the Zarates were not excessive, but
based on the established circumstances.
The CAs Ruling
Both the Pereas and PNR appealed (C.A.-G.R. CV No. 68916).
PNR assigned the following errors, to wit:5
The Court a quo erred in:
1. In finding the defendant-appellant Philippine National Railways
jointly and severally liable together with defendant-appellants
spouses Teodorico and Nanette Perea and defendant-appellant
Clemente Alfaro to pay plaintiffs-appellees for the death of Aaron
Zarate and damages.
2. In giving full faith and merit to the oral testimonies of plaintiffs-
appellees witnesses despite overwhelming documentary evidence
on record, supporting the case of defendants-appellants Philippine
National Railways.
The Pereas ascribed the following errors to the RTC, namely:
The trial court erred in finding defendants-appellants jointly and severally
liable for actual, moral and exemplary damages and attorneys fees with
the other defendants.
The trial court erred in dismissing the cross-claim of the appellants
Pereas against the Philippine National Railways and in not holding the
latter and its train driver primarily responsible for the incident.
The trial court erred in awarding excessive damages and attorneys fees.
The trial court erred in awarding damages in the form of deceaseds loss of
earning capacity in the absence of sufficient basis for such an award.
On November 13, 2002, the CA promulgated its decision, affirming the
findings of the RTC, but limited the moral damages to 2,500,000.00; and
deleted the attorneys fees because the RTC did not state the factual and
legal bases, to wit:6
WHEREFORE, premises considered, the assailed Decision of the Regional
Trial Court, Branch 260 of Paraaque City is AFFIRMED with the
modification that the award of Actual Damages is reduced to 59,502.76;
Moral Damages is reduced to 2,500,000.00; and the award for
Attorneys Fees is Deleted.
SO ORDERED.
The CA upheld the award for the loss of Aarons earning capacity, taking
cognizance of the ruling in Cariaga v. Laguna Tayabas Bus Company and
Manila Railroad Company,7 wherein the Court gave the heirs of Cariaga a
sum representing the loss of the deceaseds earning capacity despite
Cariaga being only a medical student at the time of the fatal incident.
Applying the formula adopted in the American Expectancy Table of
Mortality:
2/3 x (80 - age at the time of death) = life expectancy
the CA determined the life expectancy of Aaron to be 39.3 years upon
reckoning his life expectancy from age of 21 (the age when he would have
graduated from college and started working for his own livelihood) instead
of 15 years (his age when he died). Considering that the nature of his
work and his salary at the time of Aarons death were unknown, it used
the prevailing minimum wage of 280.00/day to compute Aarons gross
annual salary to be 110,716.65, inclusive of the thirteenth month pay.
Multiplying this annual salary by Aarons life expectancy of 39.3 years, his
gross income would aggregate to 4,351,164.30, from which his
estimated expenses in the sum of 2,189,664.30 was deducted to finally
arrive at P 2,161,500.00 as net income. Due to Aarons computed net
income turning out to be higher than the amount claimed by the Zarates,
only 2,109,071.00, the amount expressly prayed for by them, was
granted.
On April 4, 2003, the CA denied the Pereas motion for reconsideration.8
Issues
In this appeal, the Pereas list the following as the errors committed by
the CA, to wit:
I. The lower court erred when it upheld the trial courts decision holding
the petitioners jointly and severally liable to pay damages with Philippine
National Railways and dismissing their cross-claim against the latter.
II. The lower court erred in affirming the trial courts decision awarding
damages for loss of earning capacity of a minor who was only a high
school student at the time of his death in the absence of sufficient basis
for such an award.
III. The lower court erred in not reducing further the amount of damages
awarded, assuming petitioners are liable at all.
Ruling
The petition has no merit.
1.
Were the Pereas and PNR jointly
and severally liable for damages?
The Zarates brought this action for recovery of damages against both the
Pereas and the PNR, basing their claim against the Pereas on breach of
contract of carriage and against the PNR on quasi-delict.
The RTC found the Pereas and the PNR negligent. The CA affirmed the
findings.
We concur with the CA.
To start with, the Pereas defense was that they exercised the diligence of
a good father of the family in the selection and supervision of Alfaro, the
van driver, by seeing to it that Alfaro had a drivers license and that he
had not been involved in any vehicular accident prior to the fatal collision
with the train; that they even had their own son travel to and from school
on a daily basis; and that Teodoro Perea himself sometimes accompanied
Alfaro in transporting the passengers to and from school. The RTC gave
scant consideration to such defense by regarding such defense as
inappropriate in an action for breach of contract of carriage.
We find no adequate cause to differ from the conclusions of the lower
courts that the Pereas operated as a common carrier; and that their
standard of care was extraordinary diligence, not the ordinary diligence of
a good father of a family.
Although in this jurisdiction the operator of a school bus service has been
usually regarded as a private carrier,9primarily because he only caters to
some specific or privileged individuals, and his operation is neither open to
the indefinite public nor for public use, the exact nature of the operation of
a school bus service has not been finally settled. This is the occasion to lay
the matter to rest.
A carrier is a person or corporation who undertakes to transport or convey
goods or persons from one place to another, gratuitously or for hire. The
carrier is classified either as a private/special carrier or as a
common/public carrier.10 A private carrier is one who, without making the
activity a vocation, or without holding himself or itself out to the public as
ready to act for all who may desire his or its services, undertakes, by
special agreement in a particular instance only, to transport goods or
persons from one place to another either gratuitously or for hire. 11 The
provisions on ordinary contracts of the Civil Code govern the contract of
private carriage.The diligence required of a private carrier is only ordinary,
that is, the diligence of a good father of the family. In contrast, a common
carrier is a person, corporation, firm or association engaged in the
business of carrying or transporting passengers or goods or both, by land,
water, or air, for compensation, offering such services to the
public.12 Contracts of common carriage are governed by the provisions on
common carriers of the Civil Code, the Public Service Act, 13 and other
special laws relating to transportation. A common carrier is required to
observe extraordinary diligence, and is presumed to be at fault or to have
acted negligently in case of the loss of the effects of passengers, or the
death or injuries to passengers.14
In relation to common carriers, the Court defined public use in the
following terms in United States v. Tan Piaco,15viz:
"Public use" is the same as "use by the public". The essential feature of the
public use is not confined to privileged individuals, but is open to the
indefinite public. It is this indefinite or unrestricted quality that gives it its
public character. In determining whether a use is public, we must look not
only to the character of the business to be done, but also to the proposed
mode of doing it. If the use is merely optional with the owners, or the
public benefit is merely incidental, it is not a public use, authorizing the
exercise of the jurisdiction of the public utility commission. There must be,
in general, a right which the law compels the owner to give to the general
public. It is not enough that the general prosperity of the public is
promoted. Public use is not synonymous with public interest. The true
criterion by which to judge the character of the use is whether the public
may enjoy it by right or only by permission.
In De Guzman v. Court of Appeals,16 the Court noted that Article 1732 of
the Civil Code avoided any distinction between a person or an enterprise
offering transportation on a regular or an isolated basis; and has not
distinguished a carrier offering his services to the general public, that is,
the general community or population, from one offering his services only
to a narrow segment of the general population.
Nonetheless, the concept of a common carrier embodied in Article 1732 of
the Civil Code coincides neatly with the notion of public service under the
Public Service Act, which supplements the law on common carriers found
in the Civil Code. Public service, according to Section 13, paragraph (b) of
the Public Service Act, includes:
x x x every person that now or hereafter may own, operate, manage, or
control in the Philippines, for hire or compensation, with general or limited
clientle, whether permanent or occasional, and done for the general
business purposes, any common carrier, railroad, street railway, traction
railway, subway motor vehicle, either for freight or passenger, or both,
with or without fixed route and whatever may be its classification, freight
or carrier service of any class, express service, steamboat, or steamship
line, pontines, ferries and water craft, engaged in the transportation of
passengers or freight or both, shipyard, marine repair shop, ice-
refrigeration plant, canal, irrigation system, gas, electric light, heat and
power, water supply and power petroleum, sewerage system, wire or
wireless communications systems, wire or wireless broadcasting stations
and other similar public services. x x x.17
Given the breadth of the aforequoted characterization of a common
carrier, the Court has considered as common carriers pipeline
operators,18 custom brokers and warehousemen,19 and barge
20
operators even if they had limited clientle.
As all the foregoing indicate, the true test for a common carrier is not the
quantity or extent of the business actually transacted, or the number and
character of the conveyances used in the activity, but whether the
undertaking is a part of the activity engaged in by the carrier that he has
held out to the general public as his business or occupation. If the
undertaking is a single transaction, not a part of the general business or
occupation engaged in, as advertised and held out to the general public,
the individual or the entity rendering such service is a private, not a
common, carrier. The question must be determined by the character of the
business actually carried on by the carrier, not by any secret intention or
mental reservation it may entertain or assert when charged with the duties
and obligations that the law imposes.21
Applying these considerations to the case before us, there is no question
that the Pereas as the operators of a school bus service were: (a)
engaged in transporting passengers generally as a business, not just as a
casual occupation; (b) undertaking to carry passengers over established
roads by the method by which the business was conducted; and (c)
transporting students for a fee. Despite catering to a limited clientle, the
Pereas operated as a common carrier because they held themselves out
as a ready transportation indiscriminately to the students of a particular
school living within or near where they operated the service and for a fee.
The common carriers standard of care and vigilance as to the safety of the
passengers is defined by law. Given the nature of the business and for
reasons of public policy, the common carrier is 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."22 Article 1755 of the Civil Code specifies that the common
carrier should "carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons,
with a due regard for all the circumstances." To successfully fend off
liability in an action upon the death or injury to a passenger, the common
carrier must prove his or its observance of that extraordinary diligence;
otherwise, the legal presumption that he or it was at fault or acted
negligently would stand.23 No device, whether by stipulation, posting of
notices, statements on tickets, or otherwise, may dispense with or lessen
the responsibility of the common carrier as defined under Article 1755 of
the Civil Code. 24
And, secondly, the Pereas have not presented any compelling defense or
reason by which the Court might now reverse the CAs findings on their
liability. On the contrary, an examination of the records shows that the
evidence fully supported the findings of the CA.
As earlier stated, the Pereas, acting as a common carrier, were already
presumed to be negligent at the time of the accident because death had
occurred to their passenger.25 The presumption of negligence, being a
presumption of law, laid the burden of evidence on their shoulders to
establish that they had not been negligent.26 It was the law no less that
required them to prove their observance of extraordinary diligence in
seeing to the safe and secure carriage of the passengers to their
destination. Until they did so in a credible manner, they stood to be held
legally responsible for the death of Aaron and thus to be held liable for all
the natural consequences of such death.
There is no question that the Pereas did not overturn the presumption of
their negligence by credible evidence. Their defense of having observed
the diligence of a good father of a family in the selection and supervision
of their driver was not legally sufficient. According to Article 1759 of the
Civil Code, their liability as a common carrier did not cease upon proof that
they exercised all the diligence of a good father of a family in the selection
and supervision of their employee. This was the reason why the RTC
treated this defense of the Pereas as inappropriate in this action for
breach of contract of carriage.
The Pereas were liable for the death of Aaron despite the fact that their
driver might have acted beyond the scope of his authority or even in
violation of the orders of the common carrier.27 In this connection, the
records showed their drivers actual negligence. There was a showing, to
begin with, that their driver traversed the railroad tracks at a point at
which the PNR did not permit motorists going into the Makati area to cross
the railroad tracks. Although that point had been used by motorists as a
shortcut into the Makati area, that fact alone did not excuse their driver
into taking that route. On the other hand, with his familiarity with that
shortcut, their driver was fully aware of the risks to his passengers but he
still disregarded the risks. Compounding his lack of care was that loud
music was playing inside the air-conditioned van at the time of the
accident. The loudness most probably reduced his ability to hear the
warning horns of the oncoming train to allow him to correctly appreciate
the lurking dangers on the railroad tracks. Also, he sought to overtake a
passenger bus on the left side as both vehicles traversed the railroad
tracks. In so doing, he lost his view of the train that was then coming from
the opposite side of the passenger bus, leading him to miscalculate his
chances of beating the bus in their race, and of getting clear of the train.
As a result, the bus avoided a collision with the train but the van got
slammed at its rear, causing the fatality. Lastly, he did not slow down or
go to a full stop before traversing the railroad tracks despite knowing that
his slackening of speed and going to a full stop were in observance of the
right of way at railroad tracks as defined by the traffic laws and
regulations.28He thereby violated a specific traffic regulation on right of
way, by virtue of which he was immediately presumed to be negligent.29
The omissions of care on the part of the van driver constituted
negligence,30 which, according to Layugan v. Intermediate Appellate
Court,31 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,32 or as Judge Cooley defines it, (t)he 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."33
The test by which to determine the existence of negligence in a particular
case has been aptly stated in the leading case of Picart v.
Smith,34 thuswise:
The test by which to determine the existence of negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard supposed
to be supplied by the imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is not determined
by reference to the personal judgment of the actor in the situation before
him. The law considers what would be reckless, blameworthy, or negligent
in the man of ordinary intelligence and prudence and determines liability
by that.
The question as to what would constitute the conduct of a prudent man in
a given situation must of course be always determined in the light of
human experience and in view of the facts involved in the particular case.
Abstract speculation cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not, and
are not supposed to be, omniscient of the future. Hence they can be
expected to take care only when there is something before them to
suggest or warn of danger. Could a prudent man, in the case under
consideration, foresee harm as a result of the course actually pursued? If
so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by the ignoring of the
suggestion born of this prevision, is always necessary before negligence
can be held to exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given case is this: Conduct is
said to be negligent when a prudent man in the position of the tortfeasor
would have foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing the conduct or guarding against its
consequences. (Emphasis supplied)
Pursuant to the Picart v. Smith test of negligence, the Pereas driver was
entirely negligent when he traversed the railroad tracks at a point not
allowed for a motorists crossing despite being fully aware of the grave
harm to be thereby caused to his passengers; and when he disregarded
the foresight of harm to his passengers by overtaking the bus on the left
side as to leave himself blind to the approach of the oncoming train that
he knew was on the opposite side of the bus.
Unrelenting, the Pereas cite Phil. National Railways v. Intermediate
Appellate Court,35 where the Court held the PNR solely liable for the
damages caused to a passenger bus and its passengers when its train hit
the rear end of the bus that was then traversing the railroad crossing. But
the circumstances of that case and this one share no similarities. In
Philippine National Railways v. Intermediate Appellate Court, no evidence
of contributory negligence was adduced against the owner of the bus.
Instead, it was the owner of the bus who proved the exercise of
extraordinary diligence by preponderant evidence. Also, the records are
replete with the showing of negligence on the part of both the Pereas and
the PNR. Another distinction is that the passenger bus in Philippine
National Railways v. Intermediate Appellate Court was traversing the
dedicated railroad crossing when it was hit by the train, but the Pereas
school van traversed the railroad tracks at a point not intended for that
purpose.
At any rate, the lower courts correctly held both the Pereas and the PNR
"jointly and severally" liable for damages arising from the death of Aaron.
They had been impleaded in the same complaint as defendants against
whom the Zarates had the right to relief, whether jointly, severally, or in
the alternative, in respect to or arising out of the accident, and questions
of fact and of law were common as to the Zarates.36 Although the basis of
the right to relief of the Zarates (i.e., breach of contract of carriage)
against the Pereas was distinct from the basis of the Zarates right to
relief against the PNR (i.e., quasi-delict under Article 2176, Civil Code),
they nonetheless could be held jointly and severally liable by virtue of their
respective negligence combining to cause the death of Aaron. As to the
PNR, the RTC rightly found the PNR also guilty of negligence despite the
school van of the Pereas traversing the railroad tracks at a point not
dedicated by the PNR as a railroad crossing for pedestrians and motorists,
because the PNR did not ensure the safety of others through the placing of
crossbars, signal lights, warning signs, and other permanent safety
barriers to prevent vehicles or pedestrians from crossing there. The RTC
observed that the fact that a crossing guard had been assigned to man
that point from 7 a.m. to 5 p.m. was a good indicium that the PNR was
aware of the risks to others as well as the need to control the vehicular
and other traffic there. Verily, the Pereas and the PNR were joint
tortfeasors.
2.
Was the indemnity for loss of
Aarons earning capacity proper?
The RTC awarded indemnity for loss of Aarons earning capacity. Although
agreeing with the RTC on the liability, the CA modified the amount. Both
lower courts took into consideration that Aaron, while only a high school
student, had been enrolled in one of the reputable schools in the
Philippines and that he had been a normal and able-bodied child prior to
his death. The basis for the computation of Aarons earning capacity was
not what he would have become or what he would have wanted to be if
not for his untimely death, but the minimum wage in effect at the time of
his death. Moreover, the RTCs computation of Aarons life expectancy rate
was not reckoned from his age of 15 years at the time of his death, but on
21 years, his age when he would have graduated from college.
We find the considerations taken into account by the lower courts to be
reasonable and fully warranted.
Yet, the Pereas submit that the indemnity for loss of earning capacity was
speculative and unfounded.1wphi1 They cited People v. Teehankee,
Jr.,37 where the Court deleted the indemnity for victim Jussi Leinos loss of
earning capacity as a pilot for being speculative due to his having
graduated from high school at the International School in Manila only two
years before the shooting, and was at the time of the shooting only
enrolled in the first semester at the Manila Aero Club to pursue his
ambition to become a professional pilot. That meant, according to the
Court, that he was for all intents and purposes only a high school
graduate.
We reject the Pereas submission.
First of all, a careful perusal of the Teehankee, Jr. case shows that the
situation there of Jussi Leino was not akin to that of Aaron here. The CA
and the RTC were not speculating that Aaron would be some highly-paid
professional, like a pilot (or, for that matter, an engineer, a physician, or a
lawyer). Instead, the computation of Aarons earning capacity was
premised on him being a lowly minimum wage earner despite his being
then enrolled at a prestigious high school like Don Bosco in Makati, a fact
that would have likely ensured his success in his later years in life and at intended by the law to assuage the Zarates deep mental anguish over
work. their sons unexpected and violent death, and their moral shock over the
senseless accident. That amount would not be too much, considering that
And, secondly, the fact that Aaron was then without a history of earnings it would help the Zarates obtain the means, diversions or amusements
should not be taken against his parents and in favor of the defendants that would alleviate their suffering for the loss of their child. At any rate,
whose negligence not only cost Aaron his life and his right to work and reducing the amount as excessive might prove to be an injustice, given
earn money, but also deprived his parents of their right to his presence the passage of a long time from when their mental anguish was inflicted
and his services as well. Our law itself states that the loss of the earning on them on August 22, 1996.
capacity of the deceased shall be the liability of the guilty party in favor of
the heirs of the deceased, and shall in every case be assessed and Anent the 1,000,000.00 allowed as exemplary damages, we should not
awarded by the court "unless the deceased on account of permanent reduce the amount if only to render effective the desired example for the
physical disability not caused by the defendant, had no earning capacity at public good. As a common carrier, the Pereas needed to be vigorously
the time of his death."38 Accordingly, we emphatically hold in favor of the reminded to observe their duty to exercise extraordinary diligence to
indemnification for Aarons loss of earning capacity despite him having prevent a similarly senseless accident from happening again. Only by an
been unemployed, because compensation of this nature is awarded not for award of exemplary damages in that amount would suffice to instill in
loss of time or earnings but for loss of the deceaseds power or ability to them and others similarly situated like them the ever-present need for
earn money.39 greater and constant vigilance in the conduct of a business imbued with
public interest.
This favorable treatment of the Zarates claim is not unprecedented. In
Cariaga v. Laguna Tayabas Bus Company and Manila Railroad WHEREFORE, we DENY the petition for review on certiorari; AFFIRM the
Company,40 fourth-year medical student Edgardo Carriagas earning decision promulgated on November 13, 2002; and ORDER the petitioners
capacity, although he survived the accident but his injuries rendered him to pay the costs of suit.
permanently incapacitated, was computed to be that of the physician that
he dreamed to become. The Court considered his scholastic record SO ORDERED.
sufficient to justify the assumption that he could have finished the medical
course and would have passed the medical board examinations in due
time, and that he could have possibly earned a modest income as a
medical practitioner. Also, in People v. Sanchez,41 the Court opined that
murder and rape victim Eileen Sarmienta and murder victim Allan Gomez
could have easily landed good-paying jobs had they graduated in due
time, and that their jobs would probably pay them high monthly salaries
from 10,000.00 to 15,000.00 upon their graduation. Their earning
capacities were computed at rates higher than the minimum wage at the
time of their deaths due to their being already senior agriculture students
of the University of the Philippines in Los Baos, the countrys leading
educational institution in agriculture.

3. Were the amounts of damages excessive?

The Pereas plead for the reduction of the moral and exemplary damages
awarded to the Zarates in the respective amounts of 2,500,000.00 and
1,000,000.00 on the ground that such amounts were excessive.

The plea is unwarranted.

The moral damages of 2,500,000.00 were really just and reasonable

under the established circumstances of this case because they were
G.R. No. 60506 August 6, 1992
FIGURACION VDA. DE MAGLANA, EDITHA M. CRUZ, ERLINDA M.
MASESAR, LEONILA M. MALLARI, GILDA ANTONIO and the minors
LEAH, LOPE, JR., and ELVIRA, all surnamed MAGLANA, herein
represented by their mother, FIGURACION VDA. DE
MAGLANA, petitioners,
vs.
HONORABLE FRANCISCO Z. CONSOLACION, Presiding Judge of
Davao City, Branch II, and AFISCO INSURANCE
CORPORATION, respondents.
Jose B. Guyo for petitioners.
Angel E. Fernandez for private respondent.
ROMERO, J.:
The nature of the liability of an insurer sued together with the
insured/operator-owner of a common carrier which figured in an accident
causing the death of a third person is sought to be defined in this petition
for certiorari.
The facts as found by the trial court are as follows:
. . . Lope Maglana was an employee of the Bureau of
Customs whose work station was at Lasa, here in Davao
City. On December 20, 1978, early morning, Lope Maglana
was on his way to his work station, driving a motorcycle
owned by the Bureau of Customs. At Km. 7, Lanang, he
met an accident that resulted in his death. He died on the
spot. The PUJ jeep that bumped the deceased was driven
by Pepito Into, operated and owned by defendant
Destrajo. From the investigation conducted by the traffic
investigator, the PUJ jeep was overtaking another
passenger jeep that was going towards the city poblacion.
While overtaking, the PUJ jeep of defendant Destrajo
running abreast with the overtaken jeep, bumped the
motorcycle driven by the deceased who was going towards
the direction of Lasa, Davao City. The point of impact was
on the lane of the motorcycle and the deceased was
thrown from the road and met his untimely death. 1
Consequently, the heirs of Lope Maglana, Sr., here petitioners, filed an
action for damages and attorney's fees against operator Patricio Destrajo
and the Afisco Insurance Corporation (AFISCO for brevity) before the then
Court of First Instance of Davao, Branch II. An information for homicide
thru reckless imprudence was also filed against Pepito Into.
During the pendency of the civil case, Into was sentenced to suffer an
indeterminate penalty of one (1) year, eight (8) months and one (1) day
of prision correccional, as minimum, to four (4) years, nine (9) months
and eleven (11) days of prision correccional, as maximum, with all the
accessory penalties provided by law, and to indemnify the heirs of Lope
Maglana, Sr. in the amount of twelve thousand pesos (P12,000.00) with
subsidiary imprisonment in case of insolvency, plus five thousand pesos
(P5,000.00) in the concept of moral and exemplary damages with costs.
No appeal was interposed by accused who later applied for probation. 2
On December 14, 1981, the lower court rendered a decision finding that
Destrajo had not exercised sufficient diligence as the operator of the
jeepney. The dispositive portion of the decision reads:
WHEREFORE, the Court finds judgment in favor of the
plaintiffs against defendant Destrajo, ordering him to pay
plaintiffs the sum of P28,000.00 for loss of income; to pay
plaintiffs the sum of P12,000.00 which amount shall be
deducted in the event judgment in Criminal Case No.
3527-D against the driver, accused Into, shall have been
enforced; to pay plaintiffs the sum of P5,901.70
representing funeral and burial expenses of the deceased;
to pay plaintiffs the sum of P5,000.00 as moral damages
which shall be deducted in the event judgment (sic) in
Criminal Case No. 3527-D against the driver, accused Into;
to pay plaintiffs the sum of P3,000.00 as attorney's fees
and to pay the costs of suit.
The defendant insurance company is ordered to reimburse
defendant Destrajo whatever amounts the latter shall have
paid only up to the extent of its insurance coverage.
SO ORDERED. 3
Petitioners filed a motion for the reconsideration of the second paragraph
of the dispositive portion of the decision contending that AFISCO should
not merely be held secondarily liable because the Insurance Code provides
that the insurer's liability is "direct and primary and/or jointly and
severally with the operator of the vehicle, although only up to the extent
of the insurance coverage." 4 Hence, they argued that the P20,000.00
coverage of the insurance policy issued by AFISCO, should have been
awarded in their favor.
In its comment on the motion for reconsideration, AFISCO argued that
since the Insurance Code does not expressly provide for a solidary
obligation, the presumption is that the obligation is joint.
In its Order of February 9, 1982, the lower court denied the motion for
reconsideration ruling that since the insurance contract "is in the nature of
suretyship, then the liability of the insurer is secondary only up to the
extent of the insurance coverage." 5
Petitioners filed a second motion for reconsideration reiterating that the
liability of the insurer is direct, primary and solidary with the jeepney
operator because the petitioners became direct beneficiaries under the
provision of the policy which, in effect, is a stipulation pour autrui. 6 This
motion was likewise denied for lack of merit.
Hence, petitioners filed the instant petition for certiorari which, although it
does not seek the reversal of the lower court's decision in its entirety,
prays for the setting aside or modification of the second paragraph of the
dispositive portion of said decision. Petitioners reassert their position that
the insurance company is directly and solidarily liable with the negligent
operator up to the extent of its insurance coverage.
We grant the petition.
The particular provision of the insurance policy on which petitioners base
their claim is as follows:
Sec. 1 LIABILITY TO THE PUBLIC
1. The Company will, subject to the Limits of Liability, pay
all sums necessary to discharge liability of the insured in
respect of
(a) death of or bodily injury to any THIRD PARTY
(b) . . . .
2. . . . .
3. In the event of the death of any person entitled to
indemnity under this Policy, the Company will, in respect
of the liability incurred to such person indemnify his
personal representatives in terms of, and subject to the
terms and conditions hereof. 7
The above-quoted provision leads to no other conclusion but that AFISCO
can be held directly liable by petitioners. As this Court ruled in Shafer vs.
Judge, RTC of Olongapo City, Br. 75, "[w]here an insurance policy insures
directly against liability, the insurer's liability accrues immediately upon
the occurrence of the injury or even upon which the liability depends, and
does not depend on the recovery of judgment by the injured party against
the insured." 8 The underlying reason behind the third party liability (TPL)
of the Compulsory Motor Vehicle Liability Insurance is "to protect injured
persons against the insolvency of the insured who causes such injury, and
to give such injured person a certain beneficial interest in the proceeds of
the policy . . ." 9 Since petitioners had received from AFISCO the sum of
P5,000.00 under the no-fault clause, AFISCO's liability is now limited to
P15,000.00.
However, we cannot agree that AFISCO is likewise solidarily liable with
Destrajo. In Malayan Insurance Co., Inc. v. Court of Appeals, 10 this Court
had the opportunity to resolve the issue as to the nature of the liability of
the insurer and the insured vis-a-vis the third party injured in an accident.
We categorically ruled thus:
While it is true that where the insurance contract provides
for indemnity against liability to third persons, such third
persons can directly sue the insurer, however, the direct
liability of the insurer under indemnity contracts against
third party liability does not mean that the insurer can be
held solidarily liable with the insured and/or the other
parties found at fault. The liability of the insurer is based
on contract; that of the insured is based on tort.
In the case at bar, petitioner as insurer of Sio Choy, is
liable to respondent Vallejos (the injured third party), but
it cannot, as incorrectly held by the trial court, be made
"solidarily" liable with the two principal tortfeasors, namely
respondents Sio Choy and San Leon Rice Mill, Inc. For if
petitioner-insurer were solidarily liable with said, two (2)
respondents by reason of the indemnity contract against
third party liability under which an insurer can be
directly sued by a third party this will result in a
violation of the principles underlying solidary obligation
and insurance contracts. (emphasis supplied)
The Court then proceeded to distinguish the extent of the liability and
manner of enforcing the same in ordinary contracts from that of insurance
contracts. While in solidary obligations, the creditor may enforce the entire
obligation against one of the solidary debtors, in an insurance contract, the
insurer undertakes for a consideration to indemnify the insured against
loss, damage or liability arising from an unknown or contingent
event. 11 Thus, petitioner therein, which, under the insurance contract is
liable only up to P20,000.00, can not be made solidarily liable with the
insured for the entire obligation of P29,013.00 otherwise there would
result "an evident breach of the concept of solidary obligation."
Similarly, petitioners herein cannot validly claim that AFISCO, whose
liability under the insurance policy is also P20,000.00, can be held
solidarily liable with Destrajo for the total amount of P53,901.70 in
accordance with the decision of the lower court. Since under both the law
and the insurance policy, AFISCO's liability is only up to P20,000.00, the
second paragraph of the dispositive portion of the decision in question may
have unwittingly sown confusion among the petitioners and their counsel.
What should have been clearly stressed as to leave no room for doubt was
the liability of AFISCO under the explicit terms of the insurance contract.

In fine, we conclude that the liability of AFISCO based on the insurance

contract is direct, but not solidary with that of Destrajo which is based on
Article 2180 of the Civil Code. 12 As such, petitioners have the option
either to claim the P15,000 from AFISCO and the balance from Destrajo or
enforce the entire judgment from Destrajo subject to reimbursement from
AFISCO to the extent of the insurance coverage.

While the petition seeks a definitive ruling only on the nature of AFISCO's
liability, we noticed that the lower court erred in the computation of the
probable loss of income. Using the formula: 2/3 of (80-56) x P12,000.00,
it awarded P28,800.00. 13 Upon recomputation, the correct amount is
P192,000.00. Being a "plain error," we opt to correct the
same. 14 Furthermore, in accordance with prevailing jurisprudence, the
death indemnity is hereby increased to P50,000.00. 15

WHEREFORE, premises considered, the present petition is hereby

GRANTED. The award of P28,800.00 representing loss of income is
INCREASED to P192,000.00 and the death indemnity of P12,000.00 to
P50,000.00.

SO ORDERED.
G.R. No. 141538 March 23, 2004
HERMANA R. CEREZO, petitioner,
vs.
DAVID TUAZON, respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari1 to annul the Resolution2 dated 21
October 1999 of the Court of Appeals in CA-G.R. SP No. 53572, as well as
its Resolution dated 20 January 2000 denying the motion for
reconsideration. The Court of Appeals denied the petition for annulment of
the Decision3 dated 30 May 1995 rendered by the Regional Trial Court of
Angeles City, Branch 56 ("trial court"), in Civil Case No. 7415. The trial
court ordered petitioner Hermana R. Cerezo ("Mrs. Cerezo") to pay
respondent David Tuazon ("Tuazon") actual damages, loss of earnings,
moral damages, and costs of suit.
Antecedent Facts
Around noontime of 26 June 1993, a Country Bus Lines passenger bus
with plate number NYA 241 collided with a tricycle bearing plate number
TC RV 126 along Captain M. Palo Street, Sta. Ines, Mabalacat, Pampanga.
On 1 October 1993, tricycle driver Tuazon filed a complaint for damages
against Mrs. Cerezo, as owner of the bus line, her husband Attorney Juan
Cerezo ("Atty. Cerezo"), and bus driver Danilo A. Foronda ("Foronda"). The
complaint alleged that:
7. At the time of the incident, plaintiff [Tuazon] was in his proper
lane when the second-named defendant [Foronda], being then the
driver and person in charge of the Country Bus with plate number
NYA 241, did then and there willfully, unlawfully, and feloniously
operate the said motor vehicle in a negligent, careless, and
imprudent manner without due regard to traffic rules and
regulations, there being a "Slow Down" sign near the scene of the
incident, and without taking the necessary precaution to prevent
loss of lives or injuries, his negligence, carelessness and
imprudence resulted to severe damage to the tricycle and serious
physical injuries to plaintiff thus making him unable to walk and
becoming disabled, with his thumb and middle finger on the left
hand being cut[.]4
On 1 October 1993, Tuazon filed a motion to litigate as a pauper.
Subsequently, the trial court issued summons against Atty. Cerezo and
Mrs. Cerezo ("the Cerezo spouses") at the Makati address stated in the
complaint. However, the summons was returned unserved on 10
November 1993 as the Cerezo spouses no longer held office nor resided in
Makati. On 18 April 1994, the trial court issued alias summons against the
Cerezo spouses at their address in Barangay Sta. Maria, Camiling, Tarlac.
The alias summons and a copy of the complaint were finally served on 20
April 1994 at the office of Atty. Cerezo, who was then working as Tarlac
Provincial Prosecutor. Atty. Cerezo reacted angrily on learning of the
service of summons upon his person. Atty. Cerezo allegedly told Sheriff
William Canlas: "Punyeta, ano ang gusto mong mangyari? Gusto mong
hindi ka makalabas ng buhay dito? Teritoryo ko ito. Wala ka sa teritoryo
mo."5
The records show that the Cerezo spouses participated in the proceedings
before the trial court. The Cerezo spouses filed a comment with motion for
bill of particulars dated 29 April 1994 and a reply to opposition to
comment with motion dated 13 June 1994.6 On 1 August 1994, the trial
court issued an order directing the Cerezo spouses to file a comment to
the opposition to the bill of particulars. Atty. Elpidio B. Valera ("Atty.
Valera") of Valera and Valera Law Offices appeared on behalf of the Cerezo
spouses. On 29 August 1994, Atty. Valera filed an urgent ex-parte motion
praying for the resolution of Tuazons motion to litigate as a pauper and
for the issuance of new summons on the Cerezo spouses to satisfy proper
service in accordance with the Rules of Court.7
On 30 August 1994, the trial court issued an order resolving Tuazons
motion to litigate as a pauper and the Cerezo spouses urgent ex-parte
motion. The order reads:
At the hearing on August 30, 1994, the plaintiff [Tuazon] testified
that he is presently jobless; that at the time of the filing of this
case, his son who is working in Malaysia helps him and sends him
once in a while P300.00 a month, and that he does not have any
real property. Attached to the Motion to Litigate as Pauper are his
Affidavit that he is unemployed; a Certification by the Barangay
Captain of his poblacion that his income is not enough for his
familys subsistence; and a Certification by the Office of the
Municipal Assessor that he has no landholding in the Municipality
of Mabalacat, Province of Pampanga.
The Court is satisfied from the unrebutted testimony of the plaintiff
that he is entitled to prosecute his complaint in this case as a
pauper under existing rules.
 On the other hand, the Court denies the prayer in the Appearance The docket fees and other expenses in the filing of this suit shall
and Urgent Ex-Parte Motion requiring new summons to be served be lien on whatever judgment may be rendered in favor of the
to the defendants. The Court is of the opinion that any infirmity in plaintiff.
the service of the summons to the defendant before plaintiff was
allowed to prosecute his complaint in this case as a pauper has SO ORDERED.10
been cured by this Order.
Mrs. Cerezo received a copy of the decision on 25 June 1995. On 10 July
If within 15 days from receipt of this Order, the defendants do not 1995, Mrs. Cerezo filed before the trial court a petition for relief from
question on appeal this Order of this Court, the Court shall proceed judgment on the grounds of "fraud, mistake or excusable negligence."
to resolve the Motion for Bill of Particulars.8 Testifying before the trial court, both Mrs. Cerezo and Atty. Valera denied
receipt of notices of hearings and of orders of the court. Atty. Valera added
On 27 September 1994, the Cerezo spouses filed an urgent ex-parte that he received no notice before or during the 8 May 1995 elections,
motion for reconsideration. The trial court denied the motion for "when he was a senatorial candidate for the KBL Party, and very busy,
reconsideration. using his office and residence as Party National Headquarters." Atty.
Valera claimed that he was able to read the decision of the trial court only
On 14 November 1994, the trial court issued an order directing the Cerezo after Mrs. Cerezo sent him a copy.11
spouses to file their answer within fifteen days from receipt of the order.
The Cerezo spouses did not file an answer. On 27 January 1995, Tuazon Tuazon did not testify but presented documentary evidence to prove the
filed a motion to declare the Cerezo spouses in default. On 6 February participation of the Cerezo spouses in the case. Tuazon presented the
1995, the trial court issued an order declaring the Cerezo spouses in following exhibits:
default and authorizing Tuazon to present his evidence. 9
Exhibit 1 - Sheriffs return and summons;
On 30 May 1995, after considering Tuazons testimonial and documentary
Exhibit 1-A - Alias summons dated April 20, 1994;
evidence, the trial court ruled in Tuazons favor. The trial court made no
pronouncement on Forondas liability because there was no service of Exhibit 2 - Comment with Motion;
summons on him. The trial court did not hold Atty. Cerezo liable as Tuazon Exhibit 3 - Minutes of the hearing held on August 1, 1994;
failed to show that Mrs. Cerezos business benefited the family, pursuant Exhibit 3-A - Signature of defendants counsel;
to Article 121(3) of the Family Code. The trial court held Mrs. Cerezo solely
Exhibit 4 - Minutes of the hearing held on August 30, 1994;
liable for the damages sustained by Tuazon arising from the negligence of
Mrs. Cerezos employee, pursuant to Article 2180 of the Civil Code. The Exhibit 4-A - Signature of the defendants counsel;
dispositive portion of the trial courts decision reads: Exhibit 5 - Appearance and Urgent Ex-Parte Motion;
Exhibit 6 - Order dated November 14, 1994;
WHEREFORE, judgment is hereby rendered ordering the defendant Exhibit 6-A - Postal certification dated January 13, 1995;
Hermana Cerezo to pay the plaintiff:
Exhibit 7 - Order dated February [illegible];
Exhibit 7-A - Courts return slip addressed to Atty. Elpidio Valera;
a) For Actual Damages - P69,485.35
Exhibit 7-B - Courts return slip addressed to Spouses Juan and Herma
1) Expenses for operation and medical
Exhibit 8 - Decision dated May [30], 1995
Treatment
Exhibit 8-A - Courts return slip addressed to defendant Hermana Cere
2) Cost of repair of the tricycle
Exhibit 8-B - Courts return slip addressed to defendants counsel, Atty
b) For loss of earnings - 39,921.00
Exhibit 9 - Order dated September 21, 1995;
c) For moral damages - 43,300.00 Exhibit 9-A - Second Page of Exhibit 9;
d) And to pay the cost of the suit. - 20,000.00 Exhibit 9-B - Third page of Exhibit 9;
Exhibit 9-C - Fourth page of Exhibit 9;
Exhibit 9-D - Courts return slip addressed to Atty. Elpidio Valera;
 and
Exhibit 9-E - Courts return slip addressed to plaintiffs counsel, Atty. Norman Dick de
12
Guzman.
13
On 4 March 1998, the trial court issued an order denying the petition for
relief from judgment. The trial court stated that having received the
decision on 25 June 1995, the Cerezo spouses should have filed a notice of
appeal instead of resorting to a petition for relief from judgment. The trial
court refused to grant relief from judgment because the Cerezo spouses
could have availed of the remedy of appeal. Moreover, the Cerezo spouses
not only failed to prove fraud, accident, mistake or excusable negligence
by conclusive evidence, they also failed to prove that they had a good and
substantial defense. The trial court noted that the Cerezo spouses failed to
appeal because they relied on an expected settlement of the case.
The Cerezo spouses subsequently filed before the Court of Appeals a
petition for certiorari under Section 1 of Rule 65. The petition was
docketed as CA-G.R. SP No. 48132.14 The petition questioned whether the
trial court acquired jurisdiction over the case considering there was no
service of summons on Foronda, whom the Cerezo spouses claimed was
an indispensable party. In a resolution15 dated 21 January 1999, the Court
of Appeals denied the petition for certiorari and affirmed the trial courts
order denying the petition for relief from judgment. The Court of Appeals
declared that the Cerezo spouses failure to file an answer was due to their
own negligence, considering that they continued to participate in the
proceedings without filing an answer. There was also nothing in the
records to show that the Cerezo spouses actually offered a reasonable
On 20 January 2000, the Court of Appeals denied the Cerezo spouses
settlement to Tuazon. The Court of Appeals also denied Cerezo spouses
motion for reconsideration.19 The Court of Appeals stated:
motion for reconsideration for lack of merit.
The Cerezo spouses filed before this Court a petition for review
on certiorari under Rule 45. Atty. Cerezo himself signed the petition,
docketed as G.R. No. 137593. On 13 April 1999, this Court rendered a
resolution denying the petition for review on certiorari for failure to attach
an affidavit of service of copies of the petition to the Court of Appeals and
to the adverse parties. Even if the petition complied with this requirement,
the Court would still have denied the petition as the Cerezo spouses failed
to show that the Court of Appeals committed a reversible error. The
Courts resolution was entered in the Book of Entries and Judgments when
it became final and executory on 28 June 1999.16
Undaunted, the Cerezo spouses filed before the Court of Appeals on 6 July
1999 a petition for annulment of judgment under Rule 47 with prayer for
restraining order. Atty. Valera and Atty. Dionisio S. Daga ("Atty. Daga")
represented Mrs. Cerezo in the petition, docketed as CA-G.R. SP No.
53572.17 The petition prayed for the annulment of the 30 May 1995
decision of the trial court and for the issuance of a writ of preliminary
injunction enjoining execution of the trial courts decision pending
resolution of the petition.
The Court of Appeals denied the petition for annulment of judgment in a
resolution dated 21 October 1999. The resolution reads in part:
In this case, records show that the petitioner previously filed with
the lower court a Petition for Relief from Judgment on the ground
that they were wrongfully declared in default while waiting for an
amicable settlement of the complaint for damages. The court a
quo correctly ruled that such petition is without merit. The
defendant spouses admit that during the initial hearing they
appeared before the court and even mentioned the need for an
amicable settlement. Thus, the lower court acquired jurisdiction
over the defendant spouses.
Therefore, petitioner having availed of a petition for relief, the
remedy of an annulment of judgment is no longer available. The
proper action for the petitioner is to appeal the order of the lower
court denying the petition for relief.
Wherefore, the instant petition could not be given due course and
should accordingly be dismissed.
SO ORDERED.18
A distinction should be made between a courts jurisdiction over a
person and its jurisdiction over the subject matter of a case. The
former is acquired by the proper service of summons or by the
parties voluntary appearance; while the latter is conferred by law.
Resolving the matter of jurisdiction over the subject matter,
Section 19(1) of B[atas] P[ambansa] 129 provides that Regional
Trial Courts shall exercise exclusive original jurisdiction in all civil
actions in which the subject of the litigation is incapable of
pecuniary estimation. Thus it was proper for the lower court to
decide the instant case for damages.
Unlike jurisdiction over the subject matter of a case which is
absolute and conferred by law; any defects [sic] in the acquisition
of jurisdiction over a person (i.e., improper filing of civil complaint
or improper service of summons) may be waived by the voluntary
appearance of parties.
 The lower court admits the fact that no summons was served on
defendant Foronda. Thus, jurisdiction over the person of defendant
Foronda was not acquired, for which reason he was not held liable
in this case. However, it has been proven that jurisdiction over the
other defendants was validly acquired by the court a quo.
The defendant spouses admit to having appeared in the initial
hearings and in the hearing for plaintiffs motion to litigate as a
pauper. They even mentioned conferences where attempts were
made to reach an amicable settlement with plaintiff. However, the
possibility of amicable settlement is not a good and substantial
defense which will warrant the granting of said petition.
xxx
Assuming arguendo that private respondent failed to reserve his
right to institute a separate action for damages in the criminal
action, the petitioner cannot now raise such issue and question the
lower courts jurisdiction because petitioner and her husband have
waived such right by voluntarily appearing in the civil case for
damages. Therefore, the findings and the decision of the lower
court may bind them.
Records show that the petitioner previously filed with the lower
court a Petition for Relief from Judgment on the ground that they
were wrongfully declared in default while waiting for an amicable
settlement of the complaint for damages. The court a quo correctly
ruled that such petition is without merit, jurisdiction having been
acquired by the voluntary appearance of defendant spouses.
Once again, it bears stressing that having availed of a petition for
relief, the remedy of annulment of judgment is no longer available.
Based on the foregoing, the motion for reconsideration could not
be given due course and is hereby DENIED.
SO ORDERED.20
The Issues
On 7 February 2000, Mrs. Cerezo, this time with Atty. Daga alone
representing her, filed the present petition for review on certiorari before
this Court. Mrs. Cerezo claims that:
1. In dismissing the Petition for Annulment of Judgment, the Court
of Appeals assumes that the issues raised in the petition for
annulment is based on extrinsic fraud related to the denied
petition for relief notwithstanding that the grounds relied upon
involves questions of lack of jurisdiction.
2. In dismissing the Petition for Annulment, the Court of Appeals
disregarded the allegation that the lower court[s] findings of
negligence against defendant-driver Danilo Foronda [whom] the
lower court did not summon is null and void for want of due
process and consequently, such findings of negligence which is
[sic] null and void cannot become the basis of the lower court to
adjudge petitioner-employer liable for civil damages.
3. In dismissing the Petition for Annulment, the Court of Appeals
ignored the allegation that defendant-driver Danilo A. Foronda
whose negligence is the main issue is an indispensable party
whose presence is compulsory but [whom] the lower court did not
summon.
4. In dismissing the Petition for Annulment, the Court of Appeals
ruled that assuming arguendo that private respondent failed to
reserve his right to institute a separate action for damages in the
criminal action, the petitioner cannot now raise such issue and
question the lower courts jurisdiction because petitioner [has]
waived such right by voluntarily appearing in the civil case for
damages notwithstanding that lack of jurisdiction cannot be
waived.21
The Courts Ruling
The petition has no merit. As the issues are interrelated, we shall discuss
them jointly.
Remedies Available to a Party Declared in Default
An examination of the records of the entire proceedings shows that three
lawyers filed and signed pleadings on behalf of Mrs. Cerezo, namely, Atty.
Daga, Atty. Valera, and Atty. Cerezo. Despite their number, Mrs. Cerezos
counsels failed to avail of the proper remedies. It is either by sheer
ignorance or by malicious manipulation of legal technicalities that they
have managed to delay the disposition of the present case, to the
detriment of pauper litigant Tuazon.
Mrs. Cerezo claims she did not receive any copy of the order declaring the
Cerezo spouses in default. Mrs. Cerezo asserts that she only came to know
of the default order on 25 June 1995, when she received a copy of the
decision. On 10 July 1995, Mrs. Cerezo filed before the trial court a
petition for relief from judgment under Rule 38, alleging "fraud, mistake,
or excusable negligence" as grounds. On 4 March 1998, the trial court aside the order of default has been presented by him (Sec. 2, Rule
denied Mrs. Cerezos petition for relief from judgment. The trial court 41). (Emphasis added)
stated that Mrs. Cerezo could have availed of appeal as a remedy and that
she failed to prove that the judgment was entered through fraud, accident, Moreover, a petition for certiorari to declare the nullity of a judgment by
mistake, or excusable negligence. Mrs. Cerezo then filed before the Court default is also available if the trial court improperly declared a party in
of Appeals a petition for certiorari under Section 1 of Rule 65 assailing the default, or even if the trial court properly declared a party in default, if
denial of the petition for relief from judgment. On 21 January 1999, the grave abuse of discretion attended such declaration.23
Court of Appeals dismissed Mrs. Cerezos petition. On 24 February 1999,
the appellate court denied Mrs. Cerezos motion for reconsideration. On 11
Mrs. Cerezo admitted that she received a copy of the trial courts decision
March 1999, Mrs. Cerezo filed before this Court a petition for review
on 25 June 1995. Based on this admission, Mrs. Cerezo had at least three
on certiorari under Rule 45, questioning the denial of the petition for relief
remedies at her disposal: an appeal, a motion for new trial, or a petition
from judgment. We denied the petition and our resolution became final
for certiorari.
and executory on 28 June 1999.

Mrs. Cerezo could have appealed under Rule 4124 from the default
On 6 July 1999, a mere eight days after our resolution became final and
judgment within 15 days from notice of the judgment. She could have
executory, Mrs. Cerezo filed before the Court of Appeals a petition for
availed of the power of the Court of Appeals to try cases and conduct
annulment of the judgment of the trial court under Rule 47. Meanwhile, on
hearings, receive evidence, and perform all acts necessary to resolve
25 August 1999, the trial court issued over the objection of Mrs. Cerezo an
factual issues raised in cases falling within its appellate jurisdiction.25
order of execution of the judgment in Civil Case No. 7415. On 21 October
1999, the Court of Appeals dismissed the petition for annulment of
judgment. On 20 January 2000, the Court of Appeals denied Mrs. Cerezos Mrs. Cerezo also had the option to file under Rule 37 26 a motion for new
motion for reconsideration. On 7 February 2000, Mrs. Cerezo filed the trial within the period for taking an appeal. If the trial court grants a new
present petition for review on certiorari under Rule 45 challenging the trial, the original judgment is vacated, and the action will stand for trial de
dismissal of her petition for annulment of judgment. novo. The recorded evidence taken in the former trial, as far as the same
is material and competent to establish the issues, shall be used at the new
trial without retaking the same.27
Lina v. Court of Appeals22 enumerates the remedies available to a party
declared in default:
Mrs. Cerezo also had the alternative of filing under Rule 6528 a petition
for certiorari assailing the order of default within 60 days from notice of
a) The defendant in default may, at any time after discovery
the judgment. An order of default is interlocutory, and an aggrieved party
thereof and before judgment, file a motion under oath to set
may file an appropriate special civil action under Rule 65.29 In a petition
aside the order of default on the ground that his failure to
for certiorari, the appellate court may declare void both the order of
answer was due to fraud, accident, mistake or excusable
default and the judgment of default.
negligence, and that he has a meritorious defense (Sec. 3, Rule 18
[now Sec. 3(b), Rule 9]);
Clearly, Mrs. Cerezo had every opportunity to avail of these remedies
within the reglementary periods provided under the Rules of Court.
b) If the judgment has already been rendered when the defendant
However, Mrs. Cerezo opted to file a petition for relief from judgment,
discovered the default, but before the same has become final and
which is available only in exceptional cases. A petition for relief from
executory, he may file a motion for new trial under Section 1 (a)
judgment should be filed within the reglementary period of 60 days from
of Rule 37;
knowledge of judgment and six months from entry of judgment, pursuant
to
c) If the defendant discovered the default after the judgment has
become final and executory, he may file a petition for
Rule 38 of the Rules of Civil Procedure.30 Tuason v. Court of
relief under Section 2 [now Section 1] of Rule 38; and
Appeals31 explained the nature of a petition for relief from judgment:

d) He may also appeal from the judgment rendered against him

When a party has another remedy available to him, which may
as contrary to the evidence or to the law, even if no petition to set
either be a motion for new trial or appeal from an adverse decision
of the trial court, and he was not prevented by fraud, accident,
 mistake or excusable negligence from filing such motion or taking
such appeal, he cannot avail himself of this petition. Indeed, relief
will not be granted to a party who seeks avoidance from the
effects of the judgment when the loss of the remedy at law was
due to his own negligence; otherwise the petition for relief can be
used to revive the right to appeal which has been lost thru
inexcusable negligence.
Evidently, there was no fraud, accident, mistake, or excusable negligence
that prevented Mrs. Cerezo from filing an appeal, a motion for new trial or
a petition for certiorari. It was error for her to avail of a petition for relief
from judgment.
After our resolution denying Mrs. Cerezos petition for relief became final
and executory, Mrs. Cerezo, in her last ditch attempt to evade liability,
filed before the Court of Appeals a petition for annulment of the judgment
of the trial court. Annulment is available only on the grounds of extrinsic
fraud and lack of jurisdiction. If based on extrinsic fraud, a party must file
the petition within four years from its discovery, and if based on lack of
jurisdiction, before laches or estoppel bars the petition. Extrinsic fraud is
not a valid ground if such fraud was used as a ground, or could have been
used as a ground, in a motion for new trial or petition for relief from
judgment.32
Mrs. Cerezo insists that lack of jurisdiction, not extrinsic fraud, was her
ground for filing the petition for annulment of judgment. However, a party
may avail of the remedy of annulment of judgment under Rule 47 only if
the ordinary remedies of new trial, appeal, petition for relief from
judgment, or other appropriate remedies are no longer available through
no fault of the party.33 Mrs. Cerezo could have availed of a new trial or
appeal but through her own fault she erroneously availed of the remedy of
a petition for relief, which was denied with finality. Thus, Mrs. Cerezo may
no longer avail of the remedy of annulment.
In any event, the trial court clearly acquired jurisdiction over Mrs. Cerezos
person. Mrs. Cerezo actively participated in the proceedings before the
trial court, submitting herself to the jurisdiction of the trial court. The
defense of lack of jurisdiction fails in light of her active participation in the
trial court proceedings. Estoppel or laches may also bar lack of jurisdiction
as a ground for nullity especially if raised for the first time on appeal by a
party who participated in the proceedings before the trial court, as what
happened in this case.34
For these reasons, the present petition should be dismissed for utter lack
of merit. The extraordinary action to annul a final judgment is restricted to
the grounds specified in the rules. The reason for the restriction is to
prevent this extraordinary action from being used by a losing party to
make a complete farce of a duly promulgated decision that has long
become final and executory. There would be no end to litigation if parties
who have unsuccessfully availed of any of the appropriate remedies or lost
them through their fault could still bring an action for annulment of
judgment.35 Nevertheless, we shall discuss the issues raised in the present
petition to clear any doubt about the correctness of the decision of the trial
court.
Mrs. Cerezos Liability and the Trial Courts Acquisition of
Jurisdiction
Mrs. Cerezo contends that the basis of the present petition for annulment
is lack of jurisdiction. Mrs. Cerezo asserts that the trial court could not
validly render judgment since it failed to acquire jurisdiction over Foronda.
Mrs. Cerezo points out that there was no service of summons on Foronda.
Moreover, Tuazon failed to reserve his right to institute a separate civil
action for damages in the criminal action. Such contention betrays a faulty
foundation. Mrs. Cerezos contention proceeds from the point of view of
criminal law and not of civil law, while the basis of the present action of
Tuazon is quasi-delict under the Civil Code, not delict under the Revised
Penal Code.
The same negligent act may produce civil liability arising from a delict
under Article 103 of the Revised Penal Code, or may give rise to an action
for a quasi-delict under Article 2180 of the Civil Code. An aggrieved party
may choose between the two remedies. An action based on a quasi-delict
may proceed independently from the criminal action. 36There is, however, a
distinction between civil liability arising from a delict and civil liability
arising from a quasi-delict. The choice of remedy, whether to sue for a
delict or a quasi-delict, affects the procedural and jurisdictional issues of
the action.37
Tuazon chose to file an action for damages based on a quasi-delict. In his
complaint, Tuazon alleged that Mrs. Cerezo, "without exercising due care
and diligence in the supervision and management of her employees and
buses," hired Foronda as her driver. Tuazon became disabled because of
Forondas "recklessness, gross negligence and imprudence," aggravated
by Mrs. Cerezos "lack of due care and diligence in the selection and
supervision of her employees, particularly Foronda."38
The trial court thus found Mrs. Cerezo liable under Article 2180 of the Civil
Code. Article 2180 states in part:
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry.
Contrary to Mrs. Cerezos assertion, Foronda is not an indispensable party
to the case. An indispensable party is one whose interest is affected by the
courts action in the litigation, and without whom no final resolution of the
case is possible.39 However, Mrs. Cerezos liability as an employer in an
action for a quasi-delict is not only solidary, it is also primary and direct.
Foronda is not an indispensable party to the final resolution of Tuazons
action for damages against Mrs. Cerezo.
The responsibility of two or more persons who are liable for a quasi-delict
is solidary.40 Where there is a solidary obligation on the part of debtors, as
in this case, each debtor is liable for the entire obligation. Hence, each
debtor is liable to pay for the entire obligation in full. There is no merger
or renunciation of rights, but only mutual representation.41 Where the
obligation of the parties is solidary, either of the parties is indispensable,
and the other is not even a necessary party because complete relief is
available from either.42 Therefore, jurisdiction over Foronda is not even
necessary as Tuazon may collect damages from Mrs. Cerezo alone.
Moreover, an employers liability based on a quasi-delict is primary and
direct, while the employers liability based on a delict is merely
subsidiary.43 The words "primary and direct," as contrasted with
"subsidiary," refer to the remedy provided by law for enforcing the
obligation rather than to the character and limits of the
obligation.44 Although liability under Article 2180 originates from the
negligent act of the employee, the aggrieved party may sue the employer
directly. When an employee causes damage, the law presumes that the
employer has himself committed an act of negligence in not preventing or
avoiding the damage. This is the fault that the law condemns. While the
employer is civilly liable in a subsidiary capacity for the employees
criminal negligence, the employer is also civilly liable directly and
separately for his own civil negligence in failing to exercise due diligence in
selecting and supervising his employee. The idea that the employers
liability is solely subsidiary is wrong.45
The action can be brought directly against the person responsible
(for another), without including the author of the act. The action
against the principal is accessory in the sense that it implies the
existence of a prejudicial act committed by the employee, but it is
not subsidiary in the sense that it can not be instituted till after the
judgment against the author of the act or at least, that it is
subsidiary to the principal action; the action for responsibility (of
the employer) is in itself a principal action.46
Thus, there is no need in this case for the trial court to acquire jurisdiction
over Foronda. The trial courts acquisition of jurisdiction over Mrs. Cerezo
is sufficient to dispose of the present case on the merits.
In contrast, an action based on a delict seeks to enforce the subsidiary
liability of the employer for the criminal negligence of the employee as
provided in Article 103 of the Revised Penal Code. To hold the employer
liable in a subsidiary capacity under a delict, the aggrieved party must
initiate a criminal action where the employees delict and corresponding
primary liability are established.47 If the present action proceeds from a
delict, then the trial courts jurisdiction over Foronda is necessary.
However, the present action is clearly for the quasi-delict of Mrs. Cerezo
and not for the delict of Foronda.
The Cerezo spouses contention that summons be served anew on them is
untenable in light of their participation in the trial court proceedings. To
uphold the Cerezo spouses contention would make a fetish of a
technicality.48Moreover, any irregularity in the service of summons that
might have vitiated the trial courts jurisdiction over the persons of the
Cerezo spouses was deemed waived when the Cerezo spouses filed a
petition for relief from judgment.49
We hold that the trial court had jurisdiction and was competent to decide
the case in favor of Tuazon and against Mrs. Cerezo even in the absence of
Foronda. Contrary to Mrs. Cerezos contention, Foronda is not an
indispensable party to the present case. It is not even necessary for
Tuazon to reserve the filing of a separate civil action because he opted to
file a civil action for damages against Mrs. Cerezo who is primarily and
directly liable for her own civil negligence. The words of Justice Jorge
Bocobo in Barredo v. Garcia still hold true today as much as it did in
1942:
x x x [T]o hold that there is only one way to make defendants
liability effective, and that is, to sue the driver and exhaust his
(the latters) property first, would be tantamount to compelling the
plaintiff to follow a devious and cumbersome method of obtaining
relief. True, there is such a remedy under our laws, but there is
also a more expeditious way, which is based on the primary and
direct responsibility of the defendant under article [2180] of the
Civil Code. Our view of the law is more likely to facilitate remedy
for civil wrongs, because the procedure indicated by the defendant
is wasteful and productive of delay, it being a matter of common
knowledge that professional drivers of taxis and other similar
public conveyances do not have sufficient means with which to pay
damages. Why, then, should the plaintiff be required in all cases to
go through this roundabout, unnecessary, and probably useless
procedure? In construing the laws, courts have endeavored to
shorten and facilitate the pathways of right and justice.50
Interest at the rate of 6% per annum is due on the amount of damages
adjudged by the trial court.51 The 6% per annum interest shall commence
from 30 May 1995, the date of the decision of the trial court. Upon finality
of this decision, interest at 12% per annum, in lieu of 6% per annum, is
due on the amount of damages adjudged by the trial court until full
payment.

WHEREFORE, we DENY the instant petition for review. The Resolution dated 21
October 1999 of the Court of Appeals in CA-G.R. SP No. 53572, as well as its
Resolution dated 20 January 2000 denying the motion for reconsideration,
is AFFIRMED with the MODIFICATION that the amount due shall earn legal
interest at 6% per annum computed from 30 May 1995, the date of the trial courts
decision. Upon finality of this decision, the amount due shall earn interest at
12% per annum, in lieu of 6% per annum, until full payment. SO ORDERED.