1.

GASHEM SHOOKAT BAKSH, petitioner,

vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.

Public Attorney's Office for petitioner.

Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside the
Decision1 of the respondent Court of Appeals in CA-G.R. CV No. 24256 which affirmed in toto the 16
October 1939 Decision of Branch 38 (Lingayen) of the Regional Trial Court (RTC) of Pangasinan in Civil
Case No. 16503. Presented is the issue of whether or not damages may be recovered for a breach of
promise to marry on the basis of Article 21 of the Civil Code of the Philippines.

The antecedents of this case are not complicated:

On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid trial
court a complaint2 for damages against the petitioner for the alleged violation of their agreement to get
married. She alleges in said complaint that: she is twenty-two (22) years old, single, Filipino and a pretty
lass of good moral character and reputation duly respected in her community; petitioner, on the other hand,
is an Iranian citizen residing at the Lozano Apartments, Guilig, Dagupan City, and is an exchange student
taking a medical course at the Lyceum Northwestern Colleges in Dagupan City; before 20 August 1987, the
latter courted and proposed to marry her; she accepted his love on the condition that they would get
married; they therefore agreed to get married after the end of the school semester, which was in October of
that year; petitioner then visited the private respondent's parents in Bañaga, Bugallon, Pangasinan to
secure their approval to the marriage; sometime in 20 August 1987, the petitioner forced her to live with him
in the Lozano Apartments; she was a virgin before she began living with him; a week before the filing of the
complaint, petitioner's attitude towards her started to change; he maltreated and threatened to kill her; as a
result of such maltreatment, she sustained injuries; during a confrontation with a representative of the
barangay captain of Guilig a day before the filing of the complaint, petitioner repudiated their marriage
agreement and asked her not to live with him anymore and; the petitioner is already married to someone
living in Bacolod City. Private respondent then prayed for judgment ordering the petitioner to pay her
damages in the amount of not less than P45,000.00, reimbursement for actual expenses amounting to
P600.00, attorney's fees and costs, and granting her such other relief and remedies as may be just and
equitable. The complaint was docketed as Civil Case No. 16503.

In his Answer with Counterclaim, 3 petitioner admitted only the personal circumstances of the parties as
averred in the complaint and denied the rest of the allegations either for lack of knowledge or information
sufficient to form a belief as to the truth thereof or because the true facts are those alleged as his Special
and Affirmative Defenses. He thus claimed that he never proposed marriage to or agreed to be married
with the private respondent; he neither sought the consent and approval of her parents nor forced her to
live in his apartment; he did not maltreat her, but only told her to stop coming to his place because he
discovered that she had deceived him by stealing his money and passport; and finally, no confrontation
took place with a representative of the barangay captain. Insisting, in his Counterclaim, that the complaint
is baseless and unfounded and that as a result thereof, he was unnecessarily dragged into court and
compelled to incur expenses, and has suffered mental anxiety and a besmirched reputation, he prayed for
an award of P5,000.00 for miscellaneous expenses and P25,000.00 as moral damages.

After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order 4 embodying the
stipulated facts which the parties had agreed upon, to wit:

1. That the plaintiff is single and resident (sic) of Bañaga, Bugallon, Pangasinan, while the
defendant is single, Iranian citizen and resident (sic) of Lozano Apartment, Guilig, Dagupan
City since September 1, 1987 up to the present;

2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City, College
of Medicine, second year medicine proper;

3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez Avenue,

Dagupan City since July, 1986 up to the present and a (sic) high school graduate;

4. That the parties happened to know each other when the manager of the Mabuhay
Luncheonette, Johhny Rabino introduced the defendant to the plaintiff on August 3, 1986.

After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16 October 1989
a decision5 favoring the private respondent. The petitioner was thus ordered to pay the latter damages and
attorney's fees; the dispositive portion of the decision reads:

IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the
plaintiff and against the defendant.

1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand
(P20,000.00) pesos as moral damages.

2. Condemning further the defendant to play the plaintiff the sum of three thousand
(P3,000.00) pesos as atty's fees and two thousand (P2,000.00) pesos at (sic) litigation
expenses and to pay the costs.

3. All other claims are denied.6

The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private
respondent were lovers, (b) private respondent is not a woman of loose morals or questionable virtue who
readily submits to sexual advances, (c) petitioner, through machinations, deceit and false pretenses,
promised to marry private respondent, d) because of his persuasive promise to marry her, she allowed
herself to be deflowered by him, (e) by reason of that deceitful promise, private respondent and her parents
— in accordance with Filipino customs and traditions — made some preparations for the wedding that was
to be held at the end of October 1987 by looking for pigs and chickens, inviting friends and relatives and
contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such acts of the petitioner,
who is a foreigner and who has abused Philippine hospitality, have offended our sense of morality, good
customs, culture and traditions. The trial court gave full credit to the private respondent's testimony
because, inter alia, she would not have had the temerity and courage to come to court and expose her
honor and reputation to public scrutiny and ridicule if her claim was false. 7

The above findings and conclusions were culled from the detailed summary of the evidence for the private
respondent in the foregoing decision, digested by the respondent Court as follows:

According to plaintiff, who claimed that she was a virgin at the time and that she never had
a boyfriend before, defendant started courting her just a few days after they first met. He
 later proposed marriage to her several times and she accepted his love as well as his
proposal of marriage on August 20, 1987, on which same day he went with her to her
hometown of Bañaga, Bugallon, Pangasinan, as he wanted to meet her parents and inform
them of their relationship and their intention to get married. The photographs Exhs. "A" to
"E" (and their submarkings) of defendant with members of plaintiff's family or with plaintiff,
were taken that day. Also on that occasion, defendant told plaintiffs parents and brothers
and sisters that he intended to marry her during the semestral break in October, 1987, and
because plaintiff's parents thought he was good and trusted him, they agreed to his
proposal for him to marry their daughter, and they likewise allowed him to stay in their house
and sleep with plaintiff during the few days that they were in Bugallon. When plaintiff and
defendant later returned to Dagupan City, they continued to live together in defendant's
apartment. However, in the early days of October, 1987, defendant would tie plaintiff's
hands and feet while he went to school, and he even gave her medicine at 4 o'clock in the
morning that made her sleep the whole day and night until the following day. As a result of
this live-in relationship, plaintiff became pregnant, but defendant gave her some medicine to
abort the fetus. Still plaintiff continued to live with defendant and kept reminding him of his
promise to marry her until he told her that he could not do so because he was already
married to a girl in Bacolod City. That was the time plaintiff left defendant, went home to her
parents, and thereafter consulted a lawyer who accompanied her to the barangay captain in
Dagupan City. Plaintiff, her lawyer, her godmother, and a barangay tanod sent by the
barangay captain went to talk to defendant to still convince him to marry plaintiff, but
defendant insisted that he could not do so because he was already married to a girl in
Bacolod City, although the truth, as stipulated by the parties at the pre-trial, is that defendant
is still single.

Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of his
desire to marry Marilou, he already looked for sponsors for the wedding, started preparing
for the reception by looking for pigs and chickens, and even already invited many relatives
and friends to the forthcoming wedding. 8

Petitioner appealed the trial court's decision to the respondent Court of Appeals which docketed the case
as CA-G.R. CV No. 24256. In his Brief, 9 he contended that the trial court erred (a) in not dismissing the
case for lack of factual and legal basis and (b) in ordering him to pay moral damages, attorney's fees,
litigation expenses and costs.

On 18 February 1991, respondent Court promulgated the challenged decision 10 affirming in toto the trial
court's ruling of 16 October 1989. In sustaining the trial court's findings of fact, respondent Court made the
following analysis:

First of all, plaintiff, then only 21 years old when she met defendant who was already 29
years old at the time, does not appear to be a girl of loose morals. It is uncontradicted that
she was a virgin prior to her unfortunate experience with defendant and never had
boyfriend. She is, as described by the lower court, a barrio lass "not used and accustomed
to trend of modern urban life", and certainly would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made by the
defendant to marry her." In fact, we agree with the lower court that plaintiff and defendant
must have been sweethearts or so the plaintiff must have thought because of the deception
of defendant, for otherwise, she would not have allowed herself to be photographed with
defendant in public in so (sic) loving and tender poses as those depicted in the pictures
 Exhs. "D" and "E". We cannot believe, therefore, defendant's pretense that plaintiff was a
nobody to him except a waitress at the restaurant where he usually ate. Defendant in fact
admitted that he went to plaintiff's hometown of Bañaga, Bugallon, Pangasinan, at least
thrice; at (sic) the town fiesta on February 27, 1987 (p. 54, tsn May 18, 1988), at ( sic) a
beach party together with the manager and employees of the Mabuhay Luncheonette on
March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when he allegedly talked to plaintiff's
mother who told him to marry her daughter (pp. 55-56, tsn id.). Would defendant have left
Dagupan City where he was involved in the serious study of medicine to go to plaintiff's
hometown in Bañaga, Bugallon, unless there was (sic) some kind of special relationship
between them? And this special relationship must indeed have led to defendant's insincere
proposal of marriage to plaintiff, communicated not only to her but also to her parents, and
(sic) Marites Rabino, the owner of the restaurant where plaintiff was working and where
defendant first proposed marriage to her, also knew of this love affair and defendant's
proposal of marriage to plaintiff, which she declared was the reason why plaintiff resigned
from her job at the restaurant after she had accepted defendant's proposal (pp. 6-7, tsn
March 7, 1988).

Upon the other hand, appellant does not appear to be a man of good moral character and
must think so low and have so little respect and regard for Filipino women that he openly
admitted that when he studied in Bacolod City for several years where he finished his B.S.
Biology before he came to Dagupan City to study medicine, he had a common-law wife in
Bacolod City. In other words, he also lived with another woman in Bacolod City but did not
marry that woman, just like what he did to plaintiff. It is not surprising, then, that he felt so
little compunction or remorse in pretending to love and promising to marry plaintiff, a young,
innocent, trustful country girl, in order to satisfy his lust on her. 11

and then concluded:

In sum, we are strongly convinced and so hold that it was defendant-appellant's fraudulent
and deceptive protestations of love for and promise to marry plaintiff that made her
surrender her virtue and womanhood to him and to live with him on the honest and sincere
belief that he would keep said promise, and it was likewise these (sic) fraud and deception
on appellant's part that made plaintiff's parents agree to their daughter's living-in with him
preparatory to their supposed marriage. And as these acts of appellant are palpably and
undoubtedly against morals, good customs, and public policy, and are even gravely and
deeply derogatory and insulting to our women, coming as they do from a foreigner who has
been enjoying the hospitality of our people and taking advantage of the opportunity to study
in one of our institutions of learning, defendant-appellant should indeed be made, under Art.
21 of the Civil Code of the Philippines, to compensate for the moral damages and injury that
he had caused plaintiff, as the lower court ordered him to do in its decision in this case. 12

Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises therein the
single issue of whether or not Article 21 of the Civil Code applies to the case at bar. 13

It is petitioner's thesis that said Article 21 is not applicable because he had not committed any moral wrong
or injury or violated any good custom or public policy; he has not professed love or proposed marriage to
the private respondent; and he has never maltreated her. He criticizes the trial court for liberally invoking
Filipino customs, traditions and culture, and ignoring the fact that since he is a foreigner, he is not
conversant with such Filipino customs, traditions and culture. As an Iranian Moslem, he is not familiar with
Catholic and Christian ways. He stresses that even if he had made a promise to marry, the subsequent
failure to fulfill the same is excusable or tolerable because of his Moslem upbringing; he then alludes to the
Muslim Code which purportedly allows a Muslim to take four (4) wives and concludes that on the basis
thereof, the trial court erred in ruling that he does not posses good moral character. Moreover, his
controversial "common law life" is now his legal wife as their marriage had been solemnized in civil
ceremonies in the Iranian Embassy. As to his unlawful cohabitation with the private respondent, petitioner
claims that even if responsibility could be pinned on him for the live-in relationship, the private respondent
should also be faulted for consenting to an illicit arrangement. Finally, petitioner asseverates that even if it
was to be assumed arguendo that he had professed his love to the private respondent and had also
promised to marry her, such acts would not be actionable in view of the special circumstances of the case.
The mere breach of promise is not actionable. 14

On 26 August 1991, after the private respondent had filed her Comment to the petition and the petitioner
had filed his Reply thereto, this Court gave due course to the petition and required the parties to submit
their respective Memoranda, which they subsequently complied with.

As may be gleaned from the foregoing summation of the petitioner's arguments in support of his thesis, it is
clear that questions of fact, which boil down to the issue of the credibility of witnesses, are also raised. It is
the rule in this jurisdiction that appellate courts will not disturb the trial court's findings as to the credibility of
witnesses, the latter court having heard the witnesses and having had the opportunity to observe closely
their deportment and manner of testifying, unless the trial court had plainly overlooked facts of substance or
value which, if considered, might affect the result of the case. 15

Petitioner has miserably failed to convince Us that both the appellate and trial courts had overlooked any
fact of substance or values which could alter the result of the case.

Equally settled is the rule that only questions of law may be raised in a petition for review
on certiorari under Rule 45 of the Rules of Court. It is not the function of this Court to analyze or weigh all
over again the evidence introduced by the parties before the lower court. There are, however, recognized
exceptions to this rule. Thus, in Medina vs.Asistio, Jr., 16 this Court took the time, again, to enumerate these
exceptions:

xxx xxx xxx

(1) When the conclusion is a finding grounded entirely on speculation, surmises or

conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is
manifestly mistaken, absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where
there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the
judgment is based on a misapprehension of facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-
9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went
beyond the issues of the case and the same is contrary to the admissions of both appellate
and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v.
Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]);
(8) When the findings of fact are conclusions without citation of specific evidence on which
they are based (Ibid.,); (9) When the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondents (Ibid.,); and (10) The
finding of fact of the Court of Appeals is premised on the supposed absence of evidence
and is contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).
Petitioner has not endeavored to joint out to Us the existence of any of the above quoted exceptions in this
case. Consequently, the factual findings of the trial and appellate courts must be respected.

And now to the legal issue.

The existing rule is that a breach of promise to marry per se is not an actionable wrong. 17 Congress
deliberately eliminated from the draft of the New Civil Code the provisions that would have made it so. The
reason therefor is set forth in the report of the Senate Committees on the Proposed Civil Code, from which
We quote:

The elimination of this chapter is proposed. That breach of promise to marry is not
actionable has been definitely decided in the case of De Jesus vs. Syquia. 18 The history of
breach of promise suits in the United States and in England has shown that no other action
lends itself more readily to abuse by designing women and unscrupulous men. It is this
experience which has led to the abolition of rights of action in the so-called Heart Balm suits
in many of the American states. . . . 19

This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the
concept of torts or quasi-delict in this jurisdiction by granting adequate legal remedy for the untold number
of moral wrongs which is impossible for human foresight to specifically enumerate and punish in the statute
books. 20

As the Code Commission itself stated in its Report:

But the Code Commission had gone farther than the sphere of wrongs defined or
determined by positive law. Fully sensible that there are countless gaps in the statutes,
which leave so many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury, the Commission has deemed it necessary, in the interest
of justice, to incorporate in the proposed Civil Code the following rule:

Art. 23. Any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate
the latter for the damage.

An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year
old daughter of "X". A promise of marriage either has not been made, or can not be proved.
The girl becomes pregnant. Under the present laws, there is no crime, as the girl is above
nineteen years of age. Neither can any civil action for breach of promise of marriage be
filed. Therefore, though the grievous moral wrong has been committed, and though the girl
and family have suffered incalculable moral damage, she and her parents cannot bring
action for damages. But under the proposed article, she and her parents would have such a
right of action.

Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe
adequate legal remedy for that untold number of moral wrongs which it is impossible for
human foresight to provide for specifically in the statutes. 21

Article 2176 of the Civil Code, which defines a quasi-delict thus:

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

is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasi-
delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an
Anglo-American or common law concept. Torts is much broader than culpa aquiliana because it
includes not only negligence, but international criminal acts as well such as assault and battery,
false imprisonment and deceit. In the general scheme of the Philippine legal system envisioned by
the Commission responsible for drafting the New Civil Code, intentional and malicious acts, with
certain exceptions, are to be governed by the Revised Penal Code while negligent acts or
omissions are to be covered by Article 2176 of the Civil Code. 22 In between these opposite
spectrums are injurious acts which, in the absence of Article 21, would have been beyond redress.
Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19 and 20 of the
Civil Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has become
much more supple and adaptable than the Anglo-American law on torts. 23

In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a
man's promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his
representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto
him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise
was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her
consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such
promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and
reputation which followed thereafter. It is essential, however, that such injury should have been committed
in a manner contrary to morals, good customs or public policy.

In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive
protestations of love for and promise to marry plaintiff that made her surrender her virtue and womanhood
to him and to live with him on the honest and sincere belief that he would keep said promise, and it was
likewise these fraud and deception on appellant's part that made plaintiff's parents agree to their daughter's
living-in with him preparatory to their supposed marriage." 24 In short, the private respondent surrendered
her virginity, the cherished possession of every single Filipina, not because of lust but because of moral
seduction — the kind illustrated by the Code Commission in its example earlier adverted to. The petitioner
could not be held liable for criminal seduction punished under either Article 337 or Article 338 of the
Revised Penal Code because the private respondent was above eighteen (18) years of age at the time of
the seduction.

Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of promise to marry
where the woman is a victim of moral seduction. Thus, in Hermosisima vs. Court of Appeals,25 this Court
denied recovery of damages to the woman because:

. . . we find ourselves unable to say that petitioner is morally guilty of seduction, not only
because he is approximately ten (10) years younger than the complainant — who was
around thirty-six (36) years of age, and as highly enlightened as a former high school
teacher and a life insurance agent are supposed to be — when she became intimate with
petitioner, then a mere apprentice pilot, but, also, because the court of first instance found
that, complainant "surrendered herself" to petitioner because, "overwhelmed by her love" for
him, she "wanted to bind" him by having a fruit of their engagement even before they had
the benefit of clergy.
In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery if there had been
moral seduction, recovery was eventually denied because We were not convinced that such seduction
existed. The following enlightening disquisition and conclusion were made in the said case:

The Court of Appeals seem to have overlooked that the example set forth in the Code
Commission's memorandum refers to a tort upon a minor who had been seduced. The
essential feature is seduction, that in law is more than mere sexual intercourse, or a breach
of a promise of marriage; it connotes essentially the idea of deceit, enticement, superior
power or abuse of confidence on the part of the seducer to which the woman has yielded
(U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that —

To constitute seduction there must in all cases be some sufficient promise or

inducement and the woman must yield because of the promise or other
inducement. If she consents merely from carnal lust and the intercourse is
from mutual desire, there is no seduction (43 Cent. Dig. tit. Seduction, par.
56) She must be induced to depart from the path of virtue by the use of
some species of arts, persuasions and wiles, which are calculated to have
and do have that effect, and which result in her person to ultimately
submitting her person to the sexual embraces of her seducer (27 Phil. 123).

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement, persuasion or

deception is the essence of the injury; and a mere proof of intercourse is
insufficient to warrant a recovery.

Accordingly it is not seduction where the willingness arises out of sexual

desire of curiosity of the female, and the defendant merely affords her the
needed opportunity for the commission of the act. It has been emphasized
that to allow a recovery in all such cases would tend to the demoralization of
the female sex, and would be a reward for unchastity by which a class of
adventuresses would be swift to profit. (47 Am. Jur. 662)

xxx xxx xxx

Over and above the partisan allegations, the fact stand out that for one whole year, from
1958 to 1959, the plaintiff-appellee, a woman of adult age, maintain intimate sexual
relations with appellant, with repeated acts of intercourse. Such conduct is incompatible with
the idea of seduction. Plainly there is here voluntariness and mutual passion; for had the
appellant been deceived, had she surrendered exclusively because of the deceit, artful
persuasions and wiles of the defendant, she would not have again yielded to his embraces,
much less for one year, without exacting early fulfillment of the alleged promises of
marriage, and would have cut short all sexual relations upon finding that defendant did not
intend to fulfill his defendant did not intend to fulfill his promise. Hence, we conclude that no
case is made under article 21 of the Civil Code, and no other cause of action being alleged,
no error was committed by the Court of First Instance in dismissing the complaint. 27
In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who recently retired from this
Court, opined that in a breach of promise to marry where there had been carnal knowledge, moral
damages may be recovered:

. . . if there be criminal or moral seduction, but not if the intercourse was due to mutual lust.
(Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs.
Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan. 29, 1962).
(In other words, if the CAUSE be the promise to marry, and the EFFECT be the carnal
knowledge, there is a chance that there was criminal or moral seduction, hence recovery of
moral damages will prosper. If it be the other way around, there can be no recovery of moral
damages, because here mutual lust has intervened). . . .

together with "ACTUAL damages, should there be any, such as the expenses for the wedding
presentations (See Domalagon v. Bolifer, 33 Phil. 471).

Senator Arturo M. Tolentino 29 is also of the same persuasion:

It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the
incorporation of the present article31 in the Code. The example given by the Code
Commission is correct, if there was seduction, not necessarily in the legal sense, but in the
vulgar sense of deception. But when the sexual act is accomplished without any deceit or
qualifying circumstance of abuse of authority or influence, but the woman, already of age,
has knowingly given herself to a man, it cannot be said that there is an injury which can be
the basis for indemnity.

But so long as there is fraud, which is characterized by willfulness (sic), the action lies. The
court, however, must weigh the degree of fraud, if it is sufficient to deceive the woman under
the circumstances, because an act which would deceive a girl sixteen years of age may not
constitute deceit as to an experienced woman thirty years of age. But so long as there is a
wrongful act and a resulting injury, there should be civil liability, even if the act is not
punishable under the criminal law and there should have been an acquittal or dismissal of
the criminal case for that reason.

We are unable to agree with the petitioner's alternative proposition to the effect that granting, for
argument's sake, that he did promise to marry the private respondent, the latter is nevertheless also at
fault. According to him, both parties are in pari delicto; hence, pursuant to Article 1412(1) of the Civil Code
and the doctrine laid down in Batarra vs. Marcos, 32 the private respondent cannot recover damages from
the petitioner. The latter even goes as far as stating that if the private respondent had "sustained any injury
or damage in their relationship, it is primarily because of her own doing, 33 for:

. . . She is also interested in the petitioner as the latter will become a doctor sooner or later.
Take notice that she is a plain high school graduate and a mere employee . . . (Annex "C")
or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and without doubt, is in need
of a man who can give her economic security. Her family is in dire need of financial
assistance. (TSN, pp. 51-53, May 18, 1988). And this predicament prompted her to accept a
proposition that may have been offered by the petitioner. 34

These statements reveal the true character and motive of the petitioner. It is clear that he harbors a
condescending, if not sarcastic, regard for the private respondent on account of the latter's ignoble birth,
inferior educational background, poverty and, as perceived by him, dishonorable employment. Obviously
then, from the very beginning, he was not at all moved by good faith and an honest motive. Marrying with a
woman so circumstances could not have even remotely occurred to him. Thus, his profession of love and
promise to marry were empty words directly intended to fool, dupe, entice, beguile and deceive the poor
woman into believing that indeed, he loved her and would want her to be his life's partner. His was nothing
but pure lust which he wanted satisfied by a Filipina who honestly believed that by accepting his proffer of
love and proposal of marriage, she would be able to enjoy a life of ease and security. Petitioner clearly
violated the Filipino's concept of morality and brazenly defied the traditional respect Filipinos have for their
women. It can even be said that the petitioner committed such deplorable acts in blatant disregard of Article
19 of the Civil Code which directs every person to act with justice, give everyone his due and observe
honesty and good faith in the exercise of his rights and in the performance of his obligations.

No foreigner must be allowed to make a mockery of our laws, customs and traditions.

The pari delicto rule does not apply in this case for while indeed, the private respondent may not have been
impelled by the purest of intentions, she eventually submitted to the petitioner in sexual congress not out of
lust, but because of moral seduction. In fact, it is apparent that she had qualms of conscience about the
entire episode for as soon as she found out that the petitioner was not going to marry her after all, she left
him. She is not, therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault; in a similar
offense or crime; equal in guilt or in legal fault." 35At most, it could be conceded that she is merely in delicto.

Equity often interferes for the relief of the less guilty of the parties, where his transgression
has been brought about by the imposition of undue influence of the party on whom the
burden of the original wrong principally rests, or where his consent to the transaction was
itself procured by
fraud. 36

In Mangayao vs. Lasud, 37 We declared:

Appellants likewise stress that both parties being at fault, there should be no action by one
against the other (Art. 1412, New Civil Code). This rule, however, has been interpreted as
applicable only where the fault on both sides is, more or less, equivalent. It does not apply
where one party is literate or intelligent and the other one is not. (c.f. Bough vs. Cantiveros,
40 Phil. 209).

We should stress, however, that while We find for the private respondent, let it not be said that this Court
condones the deplorable behavior of her parents in letting her and the petitioner stay together in the same
room in their house after giving approval to their marriage. It is the solemn duty of parents to protect the
honor of their daughters and infuse upon them the higher values of morality and dignity.

WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby
DENIED, with costs against the petitioner.

SO ORDERED.

2.
EXXON SHIPPING CO. et al. v. BAKER et al.

certiorari to the united states court of appeals for the ninth circuit

No. 07–219. Argued February 27, 2008—Decided June 25, 2008

In 1989, petitioners’ (collectively, Exxon) supertanker grounded on a reef off Alaska,
spilling millions of gallons of crude oil into Prince William Sound. The accident occurred
after the tanker’s captain, Joseph Hazelwood—who had a history of alcohol abuse and
whose blood still had a high alcohol level 11 hours after the spill—inexplicably exited the
bridge, leaving a tricky course correction to unlicensed subordinates. Exxon spent some
$2.1 billion in cleanup efforts, pleaded guilty to criminal violations occasioning fines,
settled a civil action by the United States and Alaska for at least $900 million, and paid
another $303 million in voluntary payments to private parties. Other civil cases were
consolidated into this one, brought against Exxon, Hazelwood, and others to recover
economic losses suffered by respondents (hereinafter Baker), who depend on Prince
William Sound for their livelihoods. At Phase I of the trial, the jury found Exxon and
Hazelwood reckless (and thus potentially liable for punitive damages) under instructions
providing that a corporation is responsible for the reckless acts of employees acting in a
managerial capacity in the scope of their employment. In Phase II, the jury awarded $287
million in compensatory damages to some of the plaintiffs; others had settled their
compensatory claims for $22.6 million. In Phase III, the jury awarded $5,000 in punitive
damages against Hazelwood and $5 billion against Exxon. The Ninth Circuit upheld the
Phase I jury instruction on corporate liability and ultimately remitted the punitive
damages award against Exxon to $2.5 billion.

Held:

1. Because the Court is equally divided on whether maritime law allows corporate
liability for punitive damages based on the acts of managerial agents, it leaves the Ninth
Circuit’s opinion undisturbed in this respect. Of course, this disposition is not
precedential on the derivative liability question. See, e.g., Neil v. Biggers, 409 U. S. 188,
192. Pp. 7–10.

2. The Clean Water Act’s water pollution penalties, 33 U. S. C. §1321, do not preempt
punitive-damages awards in maritime spill cases. Section 1321(b) protects “navigable
waters … , adjoining shorelines, … [and] natural resources,” subject to a saving clause
reserving “obligations … under any … law for damages to any … privately owned property
resulting from [an oil] discharge,” §1321(o). Exxon’s admission that the CWA does not
displace compensatory remedies for the consequences of water pollution, even those for
economic harms, leaves the company with the untenable claim that the CWA somehow
preempts punitive damages, but not compensatory damages, for economic loss. Nothing
in the statute points to that result, and the Court has rejected similar attempts to sever
remedies from their causes of action, see Silkwood v. Kerr-McGee Corp., 464 U. S. 238,
255–256. There is no clear indication of congressional intent to occupy the entire field of
pollution remedies, nor is it likely that punitive damages for private harms will have any
frustrating effect on the CWA’s remedial scheme. Pp. 10–15.

3. The punitive damages award against Exxon was excessive as a matter of maritime
common law. In the circumstances of this case, the award should be limited to an
amount equal to compensatory damages. Pp. 15–42.

(a) Although legal codes from ancient times through the Middle Ages called for
multiple damages for certain especially harmful acts, modern Anglo-American punitive
damages have their roots in 18th-century English law and became widely accepted in
American courts by the mid-19th century. See, e.g., Day v. Woodworth, 13 How. 363, 371.
Pp. 16–17.

(b) The prevailing American rule limits punitive damages to cases of

“enormity,” Day v. Woodworth, 13 How. 363, 371, in which a defendant’s conduct is
outrageous, owing to gross negligence, willful, wanton, and reckless indifference for
others’ rights, or even more deplorable behavior. The consensus today is that punitive
damages are aimed at retribution and deterring harmful conduct. Pp. 17–21.

(c) State regulation of punitive damages varies. A few States award them rarely, or not
at all, and others permit them only when authorized by statute. Many States have
imposed statutory limits on punitive awards, in the form of absolute monetary caps, a
maximum ratio of punitive to compensatory damages, or, frequently, some combination
of the two. Pp. 21–23.

(d) American punitive damages have come under criticism in recent decades, but the
most recent studies tend to undercut much of it. Although some studies show the dollar
amounts of awards growing over time, even in real terms, most accounts show that the
median ratio of punitive to compensatory awards remains less than 1:1. Nor do the data
show a marked increase in the percentage of cases with punitive awards. The real
problem is the stark unpredictability of punitive awards. Courts are concerned with
fairness as consistency, and the available data suggest that the spread between high and
low individual awards is unacceptable. The spread in state civil trials is great, and the
outlier cases subject defendants to punitive damages that dwarf the corresponding
compensatories. The distribution of judge-assessed awards is narrower, but still
remarkable. These ranges might be acceptable if they resulted from efforts to reach a
generally accepted optimal level of penalty and deterrence in cases involving a wide
range of circumstances, but anecdotal evidence suggests that is not the case,
see, e.g.,Gore, supra, at 565, n. 8. Pp. 24–27.

(e) This Court’s response to outlier punitive damages awards has thus far been
confined by claims that state-court awards violated due process. See, e.g., State Farm
Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408, 425. In contrast, today’s enquiry
arises under federal maritime jurisdiction and requires review of a jury award at the level
of judge-made federal common law that precedes and should obviate any application of
the constitutional standard. In this context, the unpredictability of high punitive awards is
in tension with their punitive function because of the implication of unfairness that an
eccentrically high punitive verdict carries. A penalty should be reasonably predictable in
its severity, so that even Holmes’s “bad man” can look ahead with some ability to know
what the stakes are in choosing one course of action or another. And a penalty scheme
ought to threaten defendants with a fair probability of suffering in like degree for like
damage. Cf. Koon v. United States, 518 U. S. 81, 113. Pp. 28–29.

(f) The Court considers three approaches, one verbal and two quantitative, to arrive at
a standard for assessing maritime punitive damages. Pp. 29–42.

(i) The Court is skeptical that verbal formulations are the best insurance against
unpredictable outlier punitive awards, in light of its experience with attempts to produce
consistency in the analogous business of criminal sentencing. Pp. 29–32.

(ii) Thus, the Court looks to quantified limits. The option of setting a hard-dollar
punitive cap, however, is rejected because there is no “standard” tort or contract injury,
making it difficult to settle upon a particular dollar figure as appropriate across the
board; and because a judicially selected dollar cap would carry the serious drawback that
the issue might not return to the docket before there was a need to revisit the figure
selected. Pp. 32–39.

(iii) The more promising alternative is to peg punitive awards to compensatory

damages using a ratio or maximum multiple. This is the model in many States and in
analogous federal statutes allowing multiple damages. The question is what ratio is most
appropriate. An acceptable standard can be found in the studies showing the median
ratio of punitive to compensatory awards. Those studies reflect the judgments of juries
and judges in thousands of cases as to what punitive awards were appropriate in
circumstances reflecting the most down to the least blameworthy conduct, from malice
and avarice to recklessness to gross negligence. The data in question put the median
ratio for the entire gamut at less than 1:1, meaning that the compensatory award
exceeds the punitive award in most cases. In a well-functioning system, awards at or
below the median would roughly express jurors’ sense of reasonable penalties in cases
like this one that have no earmarks of exceptional blameworthiness. Accordingly, the
Court finds that a 1:1 ratio is a fair upper limit in such maritime cases. Pp. 39–42.

(iv) Applying this standard to the present case, the Court takes for granted the District
Court’s calculation of the total relevant compensatory damages at $507.5 million. A
punitive-to-compensatory ratio of 1:1 thus yields maximum punitive damages in that
amount. P. 42.

472 F. 3d 600 and 490 F. 3d 1066, vacated and remanded.

Souter, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Kennedy,
and Thomas, JJ., joined, and in which Stevens, Ginsburg, and Breyer, JJ., joined, as to Parts
I, II, and III. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Stevens, J.,
Ginsburg, J., and Breyer, J., filed opinions concurring in part and dissenting in part. Alito,
J., took no part in the consideration or decision of the cas

3.
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

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

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

Directly at issue is the propriety of the dismissal of Civil Case No. TG-748 in accordance with Section 3 (a)
of Rule 111 of the 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.

4.
Child Learning vs Tagorio

DECISION

AZCUNA, J.:

This petition started with a tort case filed with the Regional Trial Court of
Makati by Timothy Tagorio and his parents, Basilio R. Tagorio and Herminia
Tagorio, docketed as Civil Case No. 91-1389. The complaint[1] alleged that
during the school year 1990-1991, Timothy was a Grade IV student at
Marymount School, an academic institution operated and maintained by Child
Learning Center, Inc. (CLC). In the afternoon of March 5, 1991, between 1 and 2
p.m., Timothy entered the boys comfort room at the third floor of the
Marymount building to answer the call of nature. He, however, found himself
locked inside and unable to get out. Timothy started to panic and so he banged
and kicked the door and yelled several times for help. When no help arrived he
decided to open the window to call for help. In the process of opening the
window, Timothy went right through and fell down three stories. Timothy was
hospitalized and given medical treatment for serious multiple physical injuries.

An action under Article 2176 of the Civil Code was filed by respondents against
the CLC, the members of its Board of Directors, namely Spouses Edgardo and
Sylvia Limon, Alfonso Cruz, Carmelo Narciso and Luningning Salvador, and
the Administrative Officer of Marymount School, Ricardo Pilao. In its defense,
[2] CLC maintained that there was nothing defective about the locking
mechanism of the door and that the fall of Timothy was not due to its fault or
negligence. CLC further maintained that it had exercised the due care and
diligence of a good father of a family to ensure the safety, well-being and
convenience of its students.
After trial, the court a quo found in favor of respondents and ordered petitioners
CLC and Spouses Limon to pay respondents, jointly and severally, P200,253.12
as actual and compensatory damages, P200,000 as moral damages, P50,000 as
exemplary damages, P100,000 as attorneys fees and the costs of the suit. The
trial court disregarded the corporate fiction of CLC and held the Spouses Limon
personally liable because they were the ones who actually managed the affairs
of the CLC.

Petitioners CLC and the Spouses Limon appealed the decision to the Court of
Appeals.

On September 28, 2001, the Court of Appeals[3] affirmed the decision in toto.
Petitioners elevated the case to this Court under Rule 45 of the Rules of Court,
after their motion for reconsideration was denied by Resolution of November
23, 2001.[4]

Petitioners question several factual findings of the trial court, which were
affirmed by the Court of Appeals, namely:[5]

1. That respondent was allegedly trapped inside the boys

comfort room located at the third floor of the school building on
March 5, 1991;

2. That respondent allegedly banged and kicked the door

of said comfort room several times to attract attention and that he
allegedly yelled thereat for help which never came;

3. That respondent was allegedly forced to open the

window of said comfort room to seek help;

4. That the lock set installed at the boys comfort room

located in the third floor of the school building on March 5, 1991 was
allegedly defective and that the same lock set was involved in
previous incidents of alleged malfunctioning;

5. That petitioner Child Learning Center, Inc. allegedly

failed to install iron grills in the window of the boys comfort room at
the third floor of the school building;

6. That petitioner Child Learning Center, Inc. allegedly

failed to exercise the due care of a good father of a family in the
selection and supervision of its employees;
 7. That the proximate cause of respondents accident was
allegedly not due to his own contributory negligence;

8. That there was an alleged basis to apply the legal

principle of piercing the veil of corporate entity in resolving the
issue of alleged liability of petitioners Edgardo L. Limon and Sylvia
S. Limon;

9. That there was alleged basis for petitioners to pay

respondent actual, moral and exemplary damages, plus attorneys
fees;

10. That there was an alleged basis in not awarding

petitioners prayer for moral and exemplary damages, including
attorneys fees.

Generally, factual findings of the trial court, affirmed by the Court of Appeals,
are final and conclusive and may not be reviewed on appeal. The established
exceptions are: (1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is grave abuse of discretion; (3) when the findings are
grounded entirely on speculations, surmises or conjectures; (4) when the
judgment of the Court of Appeals is based on misapprehension of facts; (5)
when the findings of fact are conflicting; (6) when the Court of Appeals, in
making its findings, went beyond the issues of the case and the same is contrary
to the admissions of both appellant and appellee; (7) when the findings of fact
are conclusions without citation of specific evidence on which they are based;
(8) when the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties and which, if properly considered, would justify a
different conclusion; and (9) when the findings of fact of the Court of Appeals
are premised on the absence of evidence and are contradicted by the evidence
on record.[6]
On the basis of the records of this case, this Court finds no justification to
reverse the factual findings and consider this case as an exception to the general
rule.

In every tort case filed under Article 2176 of the Civil Code, plaintiff has to
prove by a preponderance of evidence: (1) the damages suffered by the plaintiff;
(2) the fault or negligence of the defendant or some other person for whose act
he must respond; and (3) the connection of cause and effect between the fault or
negligence and the damages incurred.[7]

Fault, in general, signifies a voluntary act or omission which causes damage to

the right of another giving rise to an obligation on the part of the actor to repair
such damage. Negligence is the failure to observe for the protection of the
interest of another person that degree of care, precaution and vigilance which
the circumstances justly demand. Fault requires the execution of a positive act
which causes damage to another while negligence consists of the omission to do
acts which result in damage to another.[8]

In this tort case, respondents contend that CLC failed to provide precautionary
measures to avoid harm and injury to its students in two instances: (1) failure to
fix a defective door knob despite having been notified of the problem; and (2)
failure to install safety grills on the window where Timothy fell from.

The trial court found that the lock was defective on March 5, 1991:[9]

The door knob was defective. After the incident of March 5, 1991,
said door knob was taken off the door of the toilet where Timothy
was in. The architect who testified during the trial declared that
although there were standard specifications for door knobs for
comfort room[s], and he designed them according to that
requirement, he did not investigate whether the door knob specified
 in his plans during the construction [was] actually put in place. This
is so because he did not verify whether the door knob he specified
w[as] actually put in place at the particular comfort room where
Timothy was barred from getting outside. (TSN, pp. 19-20,
December 8, 1994).

The Court of Appeals held that there was no reason to disturb the factual
assessment:[10]

After having perused the records, We fail to see any indication of

whim or arbitrariness on the part of the trial magistrate in his
assessment of the facts of the case. That said, We deem it not to be
within Our business to recast the factual conclusions reached by the
court below.

Petitioners would make much of the point that no direct evidence was presented
to prove that the door knob was indeed defective on the date in question.

The fact, however, that Timothy fell out through the window shows that the
door could not be opened from the inside. That sufficiently points to the fact
that something was wrong with the door, if not the door knob, under the
principle of res ipsa loquitor. The doctrine of res ipsa loquitor 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.[11] Petitioners are clearly answerable for failure to
see to it that the doors of their school toilets are at all times in working
condition. The fact that a student had to go through the window, instead of the
door, shows that something was wrong with the door.
As to the absence of grills on the window, petitioners contend that there was no
such requirement under the Building Code. Nevertheless, the fact is that such
window, as petitioners themselves point out, was approximately 1.5 meters
from the floor, so that it was within reach of a student who finds the regular
exit, the door, not functioning. Petitioners, with the due diligence of a good
father of the family, should have anticipated that a student, locked in the toilet
by a non-working door, would attempt to use the window to call for help or
even to get out. Considering all the circumstances, therefore, there is sufficient
basis to sustain a finding of liability on petitioners part.

Petitioners argument that CLC exercised the due diligence of a good father of a
family in the selection and supervision of its employees is not decisive. Due
diligence in the selection and supervision of employees is applicable where the
employer is being held responsible for the acts or omissions of others under
Article 2180 of the Civil Code.[12] In this case, CLCs liability is under Article
2176 of the Civil Code, premised on the fact of its own negligence in not
ensuring that all its doors are properly maintained.

Our pronouncement that Timothy climbed out of the window because he could
not get out using the door, negates petitioners other contention that the
proximate cause of the accident was Timothys own negligence. The injuries he
sustained from the fall were the product of a natural and continuous sequence,
unbroken by any intervening cause, that originated from CLCs own negligence.

We, however, agree with petitioners that there was no basis to pierce CLCs
separate corporate personality. To disregard the corporate existence, the plaintiff
must prove: (1) Control by the individual owners, not mere majority or
complete stock ownership, resulting in complete domination not only of
finances but of policy and business practice in respect to a transaction so that the
corporate entity as to this transaction had at the time no separate mind, will or
existence of its own; (2) such control must have been used by the defendant to
commit fraud or wrong, to perpetuate the violation of a statutory or other
positive legal duty, or a dishonest and unjust act in contravention of the
plaintiffs legal right; and (3) the control and breach of duty must proximately
cause the injury or unjust loss complained of. The absence of these elements
prevents piercing the corporate veil.[13] The evidence on record fails to show
that these elements are present, especially given the fact that plaintiffs complaint
had pleaded that CLC is a corporation duly organized and existing under the
laws of the Philippines.

On 9th and 10th points raised concerning the award of damages, the resolution
would rest on factual determinations by the trial court, affirmed by the Court of
Appeals, and no legal issue warrants our intervention.

WHEREFORE, the petition is partly granted and the Decision and Resolution of
the Court of Appeals in CA-G.R. CV No. 50961 dated September 28, 2001 and
November 23, 2001, respectively, are MODIFIED in that petitioners Spouses
Edgardo and Sylvia Limon are absolved from personal liability. The Decision
and Resolution are AFFIRMED in all other respects. No pronouncement as to
costs.

5.
DR. GENEVIEVE L. HUANG, Petitioner,
vs.
PHILIPPINE HOTELIERS, INC., DUSIT THANI PUBLIC CO., LTD. And FIRST LEPANTO TAISHO
INSURANCE CORPORATION, Respondents.

DECISION

PEREZ, J.:

For this Court’s resolution is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
assailing the Decision1 of the Court of Appeals in CA-G.R. CV No. 87065 dated 9 August 2007, affirming
the Decision2 of Branch 56 of the Regional Trial Court (RTC) of Makati City in Civil Case No. 96-1367 dated
21 February 2006, dismissing for lack of merit herein petitioner Dr. Genevieve L. Huang’s Complaint for
Damages. Assailed as well is the Court of Appeals’ Resolution 3 dated 5 November 2007 denying for lack of
merit petitioner’s Motion for Reconsideration.

This case stemmed from a Complaint for Damages filed on 28 August 1996 by petitioner Dr. Genevieve L.
Huang4against herein respondents Philippine Hoteliers, Inc. (PHI) 5 and Dusit Thani Public Co., Ltd.
(DTPCI),6 as owners of Dusit Thani Hotel Manila (Dusit Hotel); 7 and co-respondent First Lepanto Taisho
Insurance Corporation (First Lepanto),8 as insurer of the aforesaid hotel. The said Complaint was premised
on the alleged negligence of respondents PHI and DTPCI’s staff, in the untimely putting off all the lights
within the hotel’s swimming pool area, as well as the locking of the main entrance door of the area,
prompting petitioner to grope for a way out. While doing so, a folding wooden counter top fell on her head
causing her serious brain injury. The negligence was allegedly compounded by respondents PHI and
DTPCI’s failure to render prompt and adequate medical assistance.

Petitioner’s version of the antecedents of this case is as follows:

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 hotel’s swimming pool facility. They started bathing at around 5:00
p.m. At around 7:00 p.m., the hotel’s swimming pool attendant informed them that the swimming pool area
was about to be closed. The two subsequently proceeded to the shower room adjacent to the swimming
pool to take a shower and dress up. However, when they came out of the bathroom, the entire swimming
pool area was already pitch black and there was no longer any person around but the two of them. They
carefully walked towards the main door leading to the hotel but, to their surprise, the door was locked. 9

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 anxious about their situation so petitioner began to walk around to
look for a house phone. Delia followed petitioner. After some time, petitioner saw a phone behind the
lifeguard’s counter. While slowly walking towards the phone, a hard and heavy object, which later turned
out to be the folding wooden counter top, fell on petitioner’s head that knocked her down almost
unconscious.10

Delia immediately got hold of the house phone and notified the hotel 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
least 20 to 30 minutes to get inside. When the door was finally opened, three hotel chambermaids assisted
petitioner by placing an ice pack and applying some ointment on her head. After petitioner had slightly
recovered, she requested to be assisted to the hotel’s coffee shop to have some rest. Petitioner demanded
the services of the hotel physician.11

Dr. Violeta Dalumpines (Dr. Dalumpines) arrived. She approached petitioner and introduced herself as the
hotel physician. However, instead of immediately providing the needed medical assistance, Dr. Dalumpines
presented a "Waiver" and demanded that it be signed by petitioner, otherwise, the hotel management will
not render her any assistance. Petitioner refused to do so.12

After eating her dinner and having rested for a while, petitioner left the hotel’s coffee shop and went home.
Thereupon, petitioner started to feel extraordinary dizziness accompanied by an uncomfortable feeling in
her stomach, which lasted until the following day. Petitioner was constrained to stay at home, thus, missing
all her important appointments with her patients. She also began experiencing "on" and "off" severe
headaches that caused her three (3) sleepless nights.13

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 and a Magnetic Resonance Imaging (MRI) tests. 14 The MRI
Report15 dated 23 August 1995 revealed the following findings:

CONSULTATION REPORT:

MRI examination of the brain shows scattered areas of intraparenchymal contusions and involving mainly
the left middle and posterior temporal and slightly the right anterior temporal lobe.
Other small areas of contusions with suggestive pertechiae are seen in the left fronto-parietal, left parieto-
occipital and with deep frontal 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

Petitioner claimed that the aforesaid MRI result clearly showed that her head was bruised. Based also on
the same MRI result, Dr. Noble told her that she has a very serious brain injury. In view thereof, Dr. Noble
prescribed the necessary medicine for her condition. 17

Petitioner likewise consulted a certain Dr. Ofelia Adapon, also a neurologist from Makati Medical Center,
who required her to undergo an Electroencephalogram examination (EEG) to measure the electrostatic in
her brain.18Based on its result,19 Dr. Ofelia Adapon informed her that she has a serious condition—a
permanent one. Dr. Ofelia Adapon similarly prescribed medicines for her brain injury. 20

Petitioner’s condition did not get better. Hence, sometime in September 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. Sibayan’s finding was the same as those of the previous doctors that she
had consulted—she has a serious brain injury.22

By reason of the unfortunate 11 June 1995 incident inside the hotel’s swimming pool area, petitioner also
started to feel losing her memory, which greatly affected and disrupted the practice of her chosen
profession.23 Thus, on 25 October 1995, petitioner, through counsel, sent a demand letter 24 to respondents
PHI and DTPCI seeking payment of an amount not less than P100,000,000.00 representing loss of
earnings on her remaining life span. But, petitioner’s demand was unheeded.

In November 1995, petitioner went to the United States of America (USA) for further medical treatment.
She consulted a certain Dr. Gerald Steinberg and a certain Dr. Joel Dokson 25 from Mount Sinai Hospital
who 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 Petitioner’s Eye Report dated 5 March 1996 30 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
For petitioner’s frustration to dissipate and to regain her former strength and physical well-being, she
consulted another neuro-surgeon from Makati Medical Center by the name of Dr. Leopoldo P. Pardo, Jr.
(Dr. Pardo, 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, which also resulted in thrombocytopenia. In Dr. Pardo,
Jr.’s medical evaluation of petitioner dated 15 May 1996, 33 he made the following diagnosis and opinion:

DIAGNOSIS AND OPINION:

This patient sustained a severe head injury in (sic) 11 June 1995 and as a result of which she developed
the following injuries:

1. Cerebral Concussion and Contusion

2. Post-traumatic Epilepsy

3. Post-concussional Syndrome

4. Minimal Brain Dysfunction

5. Cervical Sprain, chronic recurrent

It is my opinion that the symptoms she complained of in the foregoing history are all related to and a result
of the injury sustained on 11 June 1995.

It is further my opinion that the above diagnosis and complaints do materially affect her duties and
functions as a practicing physician and dermatologist, and that she will require treatment for an
undetermined period of time.

The percentage of disability is not calculated at this time and will require further evaluation and
observation.34

Dr. Pardo, Jr. then advised petitioner to continue her medications.35

Petitioner likewise consulted a certain Dr. Tenchavez 36 for her follow-up EEG.37 He similarly prescribed
medicine for petitioner’s deep brain injury. He also gave her pain killer for her headache and advised her to
undergo physical therapy. Her symptoms, however, persisted all the more.38

In 1999, petitioner consulted another neurologist at the Makati Medical Center by the name of Dr. Martesio
Perez (Dr. Perez) because of severe fleeting pains in her head, arms and legs; difficulty in concentration;
and warm sensation of the legs, which symptoms also occurred after the 11 June 1995 incident. Upon
examination, Dr. Perez observed that petitioner has been experiencing severe pains and she has a slight
difficulty in concentration. He likewise noted that there was a slight spasm of petitioner’s neck muscle but,
otherwise, there was no objective neurologic finding. The rest of petitioner’s neurologic examination was
essentially normal.39

Dr. Perez’s neurologic evaluation40 of petitioner reflected, among others: (1) petitioner’s past medical
history, which includes, among others, mitral valve stenosis; (2) an interpretation of petitioner’s EEG results
in October 1995 and in January 1999, i.e., the first EEG showed sharp waves seen bilaterally more on the
left while the second one was normal; and (3) interpretation of petitioner’s second MRI result, i.e., petitioner
has a permanent damage in the brain, which can happen either after a head injury or after a stroke. Dr.
Perez concluded that petitioner has post-traumatic or post concussion syndrome. 41

Respondents, on the other hand, denied all the material allegations of petitioner and, in turn, countered the
latter’s statement of facts, thus:
According to respondents PHI and DTPCI, a sufficient notice had been posted on the glass door of the
hotel leading to the swimming pool area to apprise the people, especially the hotel guests, that the
swimming pool area is open only from 7:00 a.m. to 7:00 p.m. 42 Though the hotel’s swimming pool area is
open only between the aforestated time, the lights thereon are kept on until 10:00 p.m. for, (1) security
reasons; (2) housekeeping personnel to do the cleaning of the swimming pool surroundings; and (3) people
doing their exercise routine at the Slimmer’s World Gym adjacent to the swimming pool area, which was
then open until 10:00 p.m., to have a good view of the hotel’s swimming pool. Even granting that the lights
in the hotel’s swimming pool area were turned off, it would not render the area completely dark as the
Slimmer’s World Gym near it was well-illuminated.43

Further, on 11 June 1995, at round 7:00 p.m., the hotel’s swimming pool attendant advised petitioner and
Delia to take their showers as it was 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 operator informing her that there was a guest requiring
medical assistance at the hotel’s swimming pool area located one floor above the clinic. 44

Immediately, Ms. Pearlie got hold of her medical kit and hurriedly went to the hotel’s swimming pool area.
There she saw Delia and petitioner, who told her that she was hit on the head by a folding wooden counter
top. Although petitioner looked normal as there was no indication of any blood or bruise on her head, Ms.
Pearlie still asked her if she needed any medical attention to which petitioner replied that she is a doctor,
she was fine and she did not need any medical attention. Petitioner, instead, requested for a hirudoid
cream to which Ms. Pearlie acceded.45

At about 8:00 p.m., after attending to petitioner, Ms. Pearlie went back to the hotel clinic to inform Dr.
Dalumpines of the incident at the hotel’s swimming pool area. But before she could do that, Dr. Dalumpines
had already chanced upon Delia and petitioner at the hotel’s coffee shop and the latter reported to Dr.
Dalumpines that her head was hit by a folding wooden counter top while she was inside the hotel’s
swimming pool area. When asked by Dr. Dalumpines how she was, petitioner responded she is a doctor,
she was fine and she was already attended to by the hotel nurse, who went at the hotel’s swimming pool
area right after the accident. Dr. Dalumpines then called Ms. Pearlie to verify the same, which the latter
confirmed.46

Afterwards, Dr. Dalumpines went back to petitioner and checked the latter’s condition. Petitioner insisted
that she was fine and that the hirudoid cream was enough. Having been assured that everything was fine,
Dr. Dalumpines requested petitioner to execute a handwritten certification 47 regarding the incident that
occurred that night. Dr. Dalumpines then suggested to petitioner to have an X-ray test. Petitioner replied
that it was not necessary. Petitioner also refused further medical attention. 48

On 13 June 1995, petitioner called up Dr. Dalumpines. The call, however, had nothing to do with the 11
June 1995 incident. Instead, petitioner merely engaged in small talk with Dr. Dalumpines while having her
daily massage. The two talked about petitioner’s 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 hotel’s swimming pool area. Dr. Dalumpines accordingly issued Certification
dated 7 September 1995, which states that:50

C E RTI F I CATI O N

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 lifeguard’s 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 latter’s 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 petitioner’s Complaint for lack
of merit.

The trial court found petitioner’s testimony self-serving, thus, devoid of credibility. Petitioner failed to
present any evidence to substantiate her allegation that the lights in the hotel’s 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, petitioner’s 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 hotel’s 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 hotel’s 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 petitioner’s 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 petitioner’s 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 petitioner’s 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 Sanchez’s (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 hotel’s swimming pool
area beyond its closing hours and for lifting the folding wooden counter top that eventually hit her head. 56

For petitioner’s 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 attorney’s fees, must all fail.57

With regard to respondent First Lepanto’s 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 DTPCI’s 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 petitioner’s use of the hotel’s pool was only upon the invitation of Delia,
the hotel’s 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 petitioner’s contention.

One. Petitioner recognized the fact that the pool area’s 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 pool’s 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 petitioner’s 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 court’s 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).

Petitioner’s 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 petitioner’s 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, attorney’s 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 petitioner’s 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 hotel’s swimming pool facility was only upon the
invitation of the hotel’s 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
services—its 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 hotel’s swimming pool area. Following the
doctrine of res ipsa loquitur, respondents PHI and DTPCI’s 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 DTPCI’s employees done so, petitioner would not have been injured.
Since respondents PHI and DTPCI’s 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 petitioner’s 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 hotel’s 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 hotel’s 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 attorney’s 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 petitioner’s 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 court’s 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 court’s 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 judge’s 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 petitioner’s
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 petitioner’s Complaint evidently shows that her cause of action was based solely on quasi-
delict. Telling are the following allegations in petitioner’s Complaint:
6. THAT, in the evening of 11 June 1995, between the hours from 7:00 to 8:00 o’clock, 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 hotel’s swimming pool, without any notice or warning, the Hotel’s
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 DTPCI’S 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 hotel’s 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 Hotel’s 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 DTPCI’s 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 DTPCI’s 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 petitioner’s Loss of Income, the
amounts are stated in its prayer hereunder.69

It is clear from petitioner’s allegations that her Complaint for Damages was predicated on the alleged
negligence of respondents PHI and DTPCI’s staff in the untimely putting off of all the lights within the hotel’s
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 DTPCI’s failure to render prompt and adequate
medical assistance. These allegations in petitioner’s 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 petitioner’s 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

Petitioner’s 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 former’s 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, petitioner’s 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 petitioner’s new argument. Second, the
burden of proof will be shifted from petitioner to respondents PHI and DTPCI. Petitioner’s change of theory
from quasi-delict to breach ofcontract must be repudiated.

As petitioner’s 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 petitioner’s 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 petitioner’s self-serving testimony
that all the lights in the hotel’s 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 hotel’s swimming pool area was never presented to corroborate her
allegations. Moreover, petitioner’s 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 pool’s 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 petitioner’s contention.

One. Petitioner recognized the fact that the pool area’s 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 pool’s 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 petitioner’s 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 petitioner’s 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 hotel’s swimming pool
facility. Below is the portion of petitioner’s Complaint that would contradict her very own statement, thus:

14. THAT, due to the unfortunate incident caused by respondents PHI and DTPCI’s 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 petitioner’s 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
petitioner’s 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 petitioner’s 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 Hotel’s coffee
shop, but again petitioner declined the offer. Moreover, the Hotel as a show of concern for the petitioner’s
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 petitioner’s 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 hotel’s
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 petitioner’s 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 plaintiff’s
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 defendant’s 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 DTPCI’s staff negligently turned off the lights
and locked the door, the folding wooden counter top would still not fall on petitioner’s 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
petitioner’s 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:

Petitioner’s 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

Petitioner’s 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:

C E RTI F I CATI O N

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 lifeguard’s 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 petitioner’s 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 petitioner’s 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 petitioner’s debilitating and permanent injuries were the result of the accident she
suffered at the hotel’s 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. Sanchez’s 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. 1âwphi1
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.

6.
Lucas vs Tuano
PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL LUCAS AND GILLIAN
LUCAS,Petitioners,
vs.
DR. PROSPERO MA. C. TUAÑO, Respondent.

DECISION

CHICO-NAZARIO, J.:

In this petition for review on certiorari1 under Rule 45 of the Revised Rules of Court, petitioners Peter Paul
Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27
September 2006 Decision2 and 3 July 2007 Resolution,3 both of the Court of Appeals in CA-G.R. CV No.
68666, entitled "Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v.
Prospero Ma. C. Tuaño."

In the questioned decision and resolution, the Court of Appeals affirmed the 14 July 2000 Decision of the
Regional Trial Court (RTC), Branch 150, Makati City, dismissing the complaint filed by petitioners in a civil
case entitled, "Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v.
Prospero Ma. C. Tuaño," docketed as Civil Case No. 92-2482.

From the record of the case, the established factual antecedents of the present petition are:
Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted "sore eyes" in his right
eye.

On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made use of his health care
insurance issued by Philamcare Health Systems, Inc. (Philamcare), for a possible consult. The Philamcare
Coordinator, Dr. Edwin Oca, M.D., referred Peter to respondent, Dr. Prospero Ma. C. Tuaño, M.D. (Dr.
Tuaño), an ophthalmologist at St. Luke’s Medical Center, for an eye consult.

Upon consultation with Dr. Tuaño, Peter narrated that it had been nine (9) days since the problem with his
right eye began; and that he was already taking Maxitrol to address the problem in his eye. According to Dr.
Tuaño, he performed "ocular routine examination" on Peter’s eyes, wherein: (1) a gross examination of
Peter’s eyes and their surrounding area was made; (2) Peter’s visual acuity were taken; (3) Peter’s eyes
were palpated to check the intraocular pressure of each; (4) the motility of Peter’s eyes was observed; and
(5) the ophthalmoscopy4 on Peter’s eyes was used. On that particular consultation, Dr. Tuaño diagnosed
that Peter was suffering from conjunctivitis5 or "sore eyes." Dr. Tuaño then prescribed Spersacet-C6 eye
drops for Peter and told the latter to return for follow-up after one week.

As instructed, Peter went back to Dr. Tuaño on 9 September 1988. Upon examination, Dr. Tuaño told Peter
that the "sore eyes" in the latter’s right eye had already cleared up and he could discontinue the Spersacet-
C. However, the same eye developed Epidemic Kerato Conjunctivitis (EKC), 7 a viral infection. To address
the new problem with Peter’s right eye, Dr. Tuaño prescribed to the former a steroid-based eye drop called
Maxitrol,8 a dosage of six (6) drops per day. 9 To recall, Peter had already been using Maxitrol prior to his
consult with Dr. Tuaño.

On 21 September 1988, Peter saw Dr. Tuaño for a follow-up consultation. After examining both of Peter’s
eyes, Dr. Tuaño instructed the former to taper down 10 the dosage of Maxitrol, because the EKC in his right
eye had already resolved. Dr. Tuaño specifically cautioned Peter that, being a steroid, Maxitrol had to be
withdrawn gradually; otherwise, the EKC might recur. 11

Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuaño for another
check-up on 6 October 1988. Dr. Tuaño examined Peter’s eyes and found that the right eye had once more
developed EKC. So, Dr. Tuaño instructed Peter to resume the use of Maxitrol at six (6) drops per day.

On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock. Consequently, Peter
was told by Dr. Tuano to take, instead, Blephamide 12 another steroid-based medication, but with a lower
concentration, as substitute for the unavailable Maxitrol, to be used three (3) times a day for five (5) days;
two (2) times a day for five (5) days; and then just once a day.13

Several days later, on 18 October 1988, Peter went to see Dr. Tuaño at his clinic, alleging severe eye pain,
feeling as if his eyes were about to "pop-out," a headache and blurred vision. Dr. Tuaño examined Peter’s
eyes and discovered that the EKC was again present in his right eye. As a result, Dr. Tuaño told Peter to
resume the maximum dosage of Blephamide.

Dr. Tuaño saw Peter once more at the former’s clinic on 4 November 1988. Dr. Tuaño’s examination
showed that only the periphery of Peter’s right eye was positive for EKC; hence, Dr. Tuaño prescribed a
lower dosage of Blephamide.

It was also about this time that Fatima Gladys Lucas (Fatima), Peter’s spouse, read the accompanying
literature of Maxitrol and found therein the following warning against the prolonged use of such steroids:

WARNING:
Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual acuity and fields of
vision, and posterior, subcapsular cataract formation. Prolonged use may suppress the host response and
thus increase the hazard of secondary ocular infractions, in those diseases causing thinning of the cornea
or sclera, perforations have been known to occur with the use of topical steroids. In acute purulent
conditions of the eye, steroids may mask infection or enhance existing infection. If these products are used
for 10 days or longer, intraocular pressure should be routinely monitored even though it may be difficult in
children and uncooperative patients.

Employment of steroid medication in the treatment of herpes simplex requires great caution.

xxxx

ADVERSE REACTIONS:

Adverse reactions have occurred with steroid/anti-infective combination drugs which can be attributed to
the steroid component, the anti-infective component, or the combination. Exact incidence figures are not
available since no denominator of treated patients is available.

Reactions occurring most often from the presence of the anti-infective ingredients are allergic
sensitizations. The reactions due to the steroid component in decreasing order to frequency are elevation
of intra-ocular pressure (IOP) with possible development of glaucoma, infrequent optic nerve damage;
posterior subcapsular cataract formation; and delayed wound healing.

Secondary infection: The development of secondary has occurred after use of combination containing
steroids and antimicrobials. Fungal infections of the correa are particularly prone to develop coincidentally
with long-term applications of steroid. The possibility of fungal invasion must be considered in any
persistent corneal ulceration where steroid treatment has been used.

Secondary bacterial ocular infection following suppression of host responses also occurs.

On 26 November 1988, Peter returned to Dr. Tuaño’s clinic, complaining of "feeling worse." 14 It appeared
that the EKC had spread to the whole of Peter’s right eye yet again. Thus, Dr. Tuaño instructed Peter to
resume the use of Maxitrol. Petitioners averred that Peter already made mention to Dr. Tuaño during said
visit of the above-quoted warning against the prolonged use of steroids, but Dr. Tuaño supposedly brushed
aside Peter’s concern as mere paranoia, even assuring him that the former was taking care of him (Peter).

Petitioners further alleged that after Peter’s 26 November 1988 visit to Dr. Tuaño, Peter continued to suffer
pain in his right eye, which seemed to "progress," with the ache intensifying and becoming more frequent.

Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye. Fatima observed
that Peter’s right eye appeared to be bloody and swollen. 15 Thus, spouses Peter and Fatima rushed to the
clinic of Dr. Tuaño. Peter reported to Dr. Tuaño that he had been suffering from constant headache in the
afternoon and blurring of vision.

Upon examination, Dr. Tuaño noted the hardness of Peter’s right eye. With the use of a tonometer 16 to
verify the exact intraocular pressure17 (IOP) of Peter’s eyes, Dr. Tuaño discovered that the tension in
Peter’s right eye was 39.0 Hg, while that of his left was 17.0 Hg. 18 Since the tension in Peter’s right eye
was way over the normal IOP, which merely ranged from 10.0 Hg to 21.0 Hg,19 Dr. Tuaño ordered20 him
to immediately discontinue the use of Maxitrol and prescribed to the latter Diamox 21 and Normoglaucon,
instead.22 Dr. Tuaño also required Peter to go for daily check-up in order for the former to closely monitor
the pressure of the latter’s eyes.
On 15 December 1988, the tonometer reading of Peter’s right eye yielded a high normal level, i.e., 21.0
Hg. Hence, Dr. Tuaño told Peter to continue using Diamox and Normoglaucon. But upon Peter’s complaint
of "stomach pains and tingling sensation in his fingers," 23 Dr. Tuaño discontinued Peter’s use of Diamox.24

Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), on 21 December
1988, who allegedly conducted a complete ophthalmological examination of Peter’s eyes. Dr.
Batungbacal’s diagnosis was Glaucoma 25 O.D.26 He recommended Laser Trabeculoplasty27 for Peter’s
right eye.

When Peter returned to Dr. Tuaño on 23 December 1988, 28 the tonometer measured the IOP of Peter’s
right eye to be 41.0 Hg,29 again, way above normal. Dr. Tuaño addressed the problem by advising Peter to
resume taking Diamox along with Normoglaucon.

During the Christmas holidays, Peter supposedly stayed in bed most of the time and was not able to
celebrate the season with his family because of the debilitating effects of Diamox. 30

On 28 December 1988, during one of Peter’s regular follow-ups with Dr. Tuaño, the doctor conducted
another ocular routine examination of Peter’s eyes. Dr. Tuaño noted the recurrence of EKC in Peter’s right
eye. Considering, however, that the IOP of Peter’s right eye was still quite high at 41.0 Hg, Dr. Tuaño was
at a loss as to how to balance the treatment of Peter’s EKC vis-à-vis the presence of glaucoma in the same
eye. Dr. Tuaño, thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another ophthalmologist
specializing in the treatment of glaucoma.31 Dr. Tuaño’s letter of referral to Dr. Agulto stated that:

Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw him Sept. 2, 1988
because of conjunctivitis. The latter resolved and he developed EKC for which I gave Maxitrol. The EKC
was recurrent after stopping steroid drops. Around 1 month of steroid treatment, he noted blurring of vision
& pain on the R. however, I continued the steroids for the sake of the EKC. A month ago, I noted iris
atrophy, so I took the IOP and it was definitely elevated. I stopped the steroids immediately and has (sic)
been treating him medically.

It seems that the IOP can be controlled only with oral Diamox, and at the moment, the EKC has recurred
and I’m in a fix whether to resume the steroid or not considering that the IOP is still uncontrolled. 32

On 29 December 1988, Peter went to see Dr. Agulto at the latter’s clinic. Several tests were conducted
thereat to evaluate the extent of Peter’s condition. Dr. Agulto wrote Dr. Tuaño a letter containing the
following findings and recommendations:

Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and 20/20L. Tension curve
19 R and 15 L at 1210 H while on Normoglaucon BID OD & Diamox ½ tab every 6h po.

Slit lamp evaluation33 disclosed subepithelial corneal defect outer OD. There was circumferential
peripheral iris atrophy, OD. The lenses were clear.

Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L.

Zeiss gonioscopy35 revealed basically open angles both eyes with occasional PAS, 36 OD.

Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest that we do a
baseline visual fields and push medication to lowest possible levels. If I may suggest further, I think we
should prescribe Timolol37 BID38 OD in lieu of Normoglaucon. If the IOP is still inadequate, we may try
D’epifrin39 BID OD (despite low PAS). I’m in favor of retaining Diamox or similar CAI. 40

If fields show further loss in say – 3 mos. then we should consider trabeculoplasty.
I trust that this approach will prove reasonable for you and Peter. 41

Peter went to see Dr. Tuaño on 31 December 1988, bearing Dr. Agulto’s aforementioned letter. Though
Peter’s right and left eyes then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuaño still gave
him a prescription for Timolol B.I.D. so Peter could immediately start using said medication. Regrettably,
Timolol B.I.D. was out of stock, so Dr. Tuaño instructed Peter to just continue using Diamox and
Normoglaucon in the meantime.

Just two days later, on 2 January 1989, the IOP of Peter’s right eye remained elevated at 21.0 Hg,42 as he
had been without Diamox for the past three (3) days.

On 4 January 1989, Dr. Tuaño conducted a visual field study 43 of Peter’s eyes, which revealed that the
latter had tubular vision44 in his right eye, while that of his left eye remained normal. Dr. Tuaño directed
Peter to religiously use the Diamox and Normoglaucon, as the tension of the latter’s right eye went up even
further to 41.0 Hg in just a matter of two (2) days, in the meantime that Timolol B.I.D. and D’epifrin were still
not available in the market. Again, Dr. Tuaño advised Peter to come for regular check-up so his IOP could
be monitored.

Obediently, Peter went to see Dr. Tuaño on the 7th, 13th, 16th and 20th of January 1989 for check-up and
IOP monitoring.

In the interregnum, however, Peter was prodded by his friends to seek a second medical opinion. On 13
January 1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn,
referred Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino), another ophthalmologist who specializes in the
treatment of glaucoma and who could undertake the long term care of Peter’s eyes.

According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peter’s eyes, the said
doctor informed Peter that his eyes were relatively normal, though the right one sometimes manifested
maximum borderline tension. Dr. Aquino also confirmed Dr. Tuaño’s diagnosis of tubular vision in Peter’s
right eye. Petitioners claimed that Dr. Aquino essentially told Peter that the latter’s condition would require
lifetime medication and follow-ups.

In May 1990 and June 1991, Peter underwent two (2) procedures of laser trabeculoplasty to attempt to
control the high IOP of his right eye.

Claiming to have steroid-induced glaucoma45 and blaming Dr. Tuaño for the same, Peter, joined by: (1)
Fatima, his spouse46; (2) Abbeygail, his natural child 47; and (3) Gillian, his legitimate child48 with Fatima,
instituted on 1 September 1992, a civil complaint for damages against Dr. Tuaño, before the RTC, Branch
150, Quezon City. The case was docketed as Civil Case No. 92-2482.

In their Complaint, petitioners specifically averred that as the "direct consequence of [Peter’s] prolonged
use of Maxitrol, [he] suffered from steroid induced glaucoma which caused the elevation of his intra-ocular
pressure. The elevation of the intra-ocular pressure of [Peter’s right eye] caused the impairment of his
vision which impairment is not curable and may even lead to total blindness." 49

Petitioners additionally alleged that the visual impairment of Peter’s right eye caused him and his family so
much grief. Because of his present condition, Peter now needed close medical supervision forever; he had
already undergone two (2) laser surgeries, with the possibility that more surgeries were still needed in the
future; his career in sports casting had suffered and was continuing to suffer; 50 his anticipated income had
been greatly reduced as a result of his "limited" capacity; he continually suffered from "headaches, nausea,
dizziness, heart palpitations, rashes, chronic rhinitis, sinusitis," 51 etc.; Peter’s relationships with his spouse
and children continued to be strained, as his condition made him highly irritable and sensitive; his mobility
and social life had suffered; his spouse, Fatima, became the breadwinner in the family; 52 and his two
children had been deprived of the opportunity for a better life and educational prospects. Collectively,
petitioners lived in constant fear of Peter becoming completely blind.53

In the end, petitioners sought pecuniary award for their supposed pain and suffering, which were ultimately
brought about by Dr. Tuaño’s grossly negligent conduct in prescribing to Peter the medicine Maxitrol for a
period of three (3) months, without monitoring Peter’s IOP, as required in cases of prolonged use of said
medicine, and notwithstanding Peter’s constant complaint of intense eye pain while using the same.
Petitioners particularly prayed that Dr. Tuaño be adjudged liable for the following amounts:

1. The amount of ₱2,000,000.00 to plaintiff Peter Lucas as and by way of compensation for his
impaired vision.

2. The amount of ₱300,000.00 to spouses Lucas as and by way of actual damages plus such
additional amounts that may be proven during trial.

3. The amount of ₱1,000,000.00 as and by way of moral damages.

4. The amount of ₱500,000.00 as and by way of exemplary damages.

5. The amount of ₱200,000.00 as and by way of attorney’s fees plus costs of suit. 54

In rebutting petitioners’ complaint, Dr. Tuaño asserted that the "treatment made by [him] more than three
years ago has no causal connection to [Peter’s] present glaucoma or condition." 55 Dr. Tuaño explained that
"[d]rug-induced glaucoma is temporary and curable, steroids have the side effect of increasing intraocular
pressure. Steroids are prescribed to treat Epidemic Kerato Conjunctivitis or EKC which is an infiltration of
the cornea as a result of conjunctivitis or sore eyes." 56 Dr. Tuaño also clarified that (1) "[c]ontrary to
[petitioners’] fallacious claim, [he] did NOT continually prescribe the drug Maxitrol which contained steroids
for any prolonged period"57 and "[t]he truth was the Maxitrol was discontinued x x x as soon as EKC
disappeared and was resumed only when EKC reappeared" 58; (2) the entire time he was treating Peter, he
"continually monitored the intraocular pressure of [Peter’s eyes] by palpating the eyes and by putting
pressure on the eyeballs," and no hardening of the same could be detected, which meant that there was no
increase in the tension or IOP, a possible side reaction to the use of steroid medications; and (3) it was only
on 13 December 1988 that Peter complained of a headache and blurred vision in his right eye, and upon
measuring the IOP of said eye, it was determined for the first time that the IOP of the right eye had an
elevated value.

But granting for the sake of argument that the "steroid treatment of [Peter’s] EKC caused the steroid
induced glaucoma,"59 Dr. Tuaño argued that:

[S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake of steroids is
discontinued, the intraocular pressure automatically is reduced. Thus, [Peter’s] glaucoma can only be due
to other causes not attributable to steroids, certainly not attributable to [his] treatment of more than three
years ago x x x.

From a medical point of view, as revealed by more current examination of [Peter], the latter’s glaucoma can
only be long standing glaucoma, open angle glaucoma, because of the large C:D ratio. The steroids
provoked the latest glaucoma to be revealed earlier as [Peter] remained asymptomatic prior to steroid
application. Hence, the steroid treatment was in fact beneficial to [Peter] as it revealed the incipient open
angle glaucoma of [Peter] to allow earlier treatment of the same.60
In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 "for insufficiency of
evidence."61 The decretal part of said Decision reads:

Wherefore, premises considered, the instant complaint is dismissed for insufficiency of evidence. The
counter claim (sic) is likewise dismissed in the absence of bad faith or malice on the part of plaintiff in filing
the suit.62

The RTC opined that petitioners failed to prove by preponderance of evidence that Dr. Tuaño was negligent
in his treatment of Peter’s condition. In particular, the record of the case was bereft of any evidence to
establish that the steroid medication and its dosage, as prescribed by Dr. Tuaño, caused Peter’s glaucoma.
The trial court reasoned that the "recognized standards of the medical community has not been established
in this case, much less has causation been established to render [Tuaño] liable." 63 According to the RTC:

[Petitioners] failed to establish the duty required of a medical practitioner against which Peter Paul’s
treatment by defendant can be compared with. They did not present any medical expert or even a medical
doctor to convince and expertly explain to the court the established norm or duty required of a physician
treating a patient, or whether the non taking (sic) by Dr. Tuaño of Peter Paul’s pressure a deviation from the
norm or his non-discovery of the glaucoma in the course of treatment constitutes negligence. It is important
and indispensable to establish such a standard because once it is established, a medical practitioner who
departed thereof breaches his duty and commits negligence rendering him liable. Without such testimony
or enlightenment from an expert, the court is at a loss as to what is then the established norm of duty of a
physician against which defendant’s conduct can be compared with to determine negligence. 64

The RTC added that in the absence of "any medical evidence to the contrary, this court cannot accept
[petitioners’] claim that the use of steroid is the proximate cause of the damage sustained by [Peter’s]
eye."65

Correspondingly, the RTC accepted Dr. Tuaño’s medical opinion that "Peter Paul must have been suffering
from normal tension glaucoma, meaning, optic nerve damage was happening but no elevation of the eye
pressure is manifested, that the steroid treatment actually unmasked the condition that resulted in the
earlier treatment of the glaucoma. There is nothing in the record to contradict such testimony. In fact,
plaintiff’s Exhibit ‘S’ even tends to support them."

Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals. Their appeal was
docketed as CA-G.R. CV No. 68666.

On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No. 68666 denying
petitioners’ recourse and affirming the appealed RTC Decision. The fallo of the judgment of the appellate
court states:

WHEREFORE, the Decision appealed from is AFFIRMED.66

The Court of Appeals faulted petitioners because they –

[D]id not present any medical expert to testify that Dr. Tuano’s prescription of Maxitrol and Blephamide for
the treatment of EKC on Peter’s right eye was not proper and that his palpation of Peter’s right eye was not
enough to detect adverse reaction to steroid. Peter testified that Dr. Manuel Agulto told him that he should
not have used steroid for the treatment of EKC or that he should have used it only for two (2) weeks, as
EKC is only a viral infection which will cure by itself. However, Dr. Agulto was not presented by [petitioners]
as a witness to confirm what he allegedly told Peter and, therefore, the latter’s testimony is hearsay. Under
Rule 130, Section 36 of the Rules of Court, a witness can testify only to those facts which he knows of his
own personal knowledge, x x x. Familiar and fundamental is the rule that hearsay testimony is inadmissible
as evidence.67

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

[W]hen a doctor sees a patient, he cannot determine whether or not the latter would react adversely to the
use of steroids, that it was only on December 13, 1989, when Peter complained for the first time of
headache and blurred vision that he observed that the pressure of the eye of Peter was elevated, and it
was only then that he suspected that Peter belongs to the 5% of the population who reacts adversely to
steroids.68

Petitioners’ Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 3 July
2007.

Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court premised on the
following assignment of errors:

I.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING THE

DECISION OF THE TRIAL COURT DISMISSING THE PETITIONERS’ COMPLAINT FOR
DAMAGES AGAINST THE RESPONDENT ON THE GROUND OF INSUFFICIENCY OF
EVIDENCE;

II.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING

THE PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE
GROUND THAT NO MEDICAL EXPERT WAS PRESENTED BY THE PETITIONERS TO
PROVE THEIR CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE RESPONDENT; AND

III.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING

THE RESPONDENT LIABLE TO THE PETITIONERS’ FOR ACTUAL, MORAL AND
EXEMPLARY DAMAGES, ASIDE FROM ATTORNEY’S FEES, COSTS OF SUIT, AS A
RESULT OF HIS GROSS NEGLIGENCE.69

A reading of the afore-quoted reversible errors supposedly committed by the Court of Appeals in its
Decision and Resolution would reveal that petitioners are fundamentally assailing the finding of the Court of
Appeals that the evidence on record is insufficient to establish petitioners’ entitlement to any kind of
damage. Therefore, it could be said that the sole issue for our resolution in the Petition at bar is whether
the Court of Appeals committed reversible error in affirming the judgment of the RTC that petitioners failed
to prove, by preponderance of evidence, their claim for damages against Dr. Tuaño.

Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the factual findings of
the Court of Appeals, as well as of the RTC. In effect, petitioners would have us sift through the evidence
on record and pass upon whether there is sufficient basis to establish Dr. Tuaño’s negligence in his
treatment of Peter’s eye condition. This question clearly involves a factual inquiry, the determination of
which is not within the ambit of this Court’s power of review under Rule 45 of the 1997 Rules Civil
Procedure, as amended.70
Elementary is the principle that this Court is not a trier of facts; only errors of law are generally reviewed in
petitions for review on certiorari criticizing decisions of the Court of Appeals. Questions of fact are not
entertained.71

Nonetheless, the general rule that only questions of law may be raised on appeal in a petition for review
under Rule 45 of the Rules of Court admits of certain exceptions, including the circumstance when the
finding of fact of the Court of Appeals is premised on the supposed absence of evidence, but is
contradicted by the evidence on record. Although petitioners may not explicitly invoke said exception, it
may be gleaned from their allegations and arguments in the instant Petition. 1avvphi1.zw+

Petitioners contend, that "[c]ontrary to the findings of the Honorable Court of Appeals, [they] were more
than able to establish that: Dr. Tuaño ignored the standard medical procedure for ophthalmologists,
administered medication with recklessness, and exhibited an absence of competence and skills expected
from him."72 Petitioners reject the necessity of presenting expert and/or medical testimony to establish (1)
the standard of care respecting the treatment of the disorder affecting Peter’s eye; and (2) whether or not
negligence attended Dr. Tuaño’s treatment of Peter, because, in their words –

That Dr. Tuaño was grossly negligent in the treatment of Peter’s simple eye ailment is a simple case of
cause and effect. With mere documentary evidence and based on the facts presented by the petitioners,
respondent can readily be held liable for damages even without any expert testimony. In any case,
however, and contrary to the finding of the trial court and the Court of Appeals, there was a medical expert
presented by the petitioner showing the recklessness committed by [Dr. Tuaño] – Dr. Tuaño himself.
[Emphasis supplied.]

They insist that Dr. Tuaño himself gave sufficient evidence to establish his gross negligence that ultimately
caused the impairment of the vision of Peter’s right eye, 73 i.e., that "[d]espite [Dr. Tuaño’s] knowledge that
5% of the population reacts adversely to Maxitrol, [he] had no qualms whatsoever in prescribing said
steroid to Peter without first determining whether or not the (sic) Peter belongs to the 5%." 74

We are not convinced. The judgments of both the Court of Appeals and the RTC are in accord with the
evidence on record, and we are accordingly bound by the findings of fact made therein.

Petitioners’ position, in sum, is that Peter’s glaucoma is the direct result of Dr. Tuaño’s negligence in his
improper administration of the drug Maxitrol; "thus, [the latter] should be liable for all the damages suffered
and to be suffered by [petitioners]." 75 Clearly, the present controversy is a classic illustration of a medical
negligence case against a physician based on the latter’s professional negligence. In this type of suit, the
patient or his heirs, in order to prevail, is required to prove by preponderance of evidence that the physician
failed to exercise that degree of skill, care, and learning possessed by other persons in the same
profession; and that as a proximate result of such failure, the patient or his heirs suffered damages.

For lack of a specific law geared towards the type of negligence committed by members of the medical
profession, such claim for damages is almost always anchored on the alleged violation of Article 2176 of
the Civil Code, which states that:

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

In medical negligence cases, also called medical malpractice suits, there exist a physician-patient
relationship between the doctor and the victim. But just like any other proceeding for damages, four
essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate causation, 76 must be
established by the plaintiff/s. All the four (4) elements must co-exist in order to find the physician negligent
and, thus, liable for damages.

When a patient engages the services of a physician, a physician-patient relationship is generated. And in
accepting a case, the physician, for all intents and purposes, represents that he has the needed training
and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such
training, care, and skill in the treatment of the patient. 77 Thus, in treating his patient, a physician is under
a duty to [the former] to exercise that degree of care, skill and diligence which physicians in the same
general neighborhood and in the same general line of practice ordinarily possess and exercise in like
cases.78 Stated otherwise, the physician has the duty to use at least the same level of care that any other
reasonably competent physician would use to treat the condition under similar circumstances.

This standard level of care, skill and diligence is a matter best addressed by expert medical testimony,
because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of
experts in the field.79

There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the
attending physician when the patient is injured in body or in health [and this] constitutes the actionable
malpractice.80 Proof of such breach must likewise rest upon the testimony of an expert witness that the
treatment accorded to the patient failed to meet the standard level of care, skill and diligence which
physicians in the same general neighborhood and in the same general line of practice ordinarily possess
and exercise in like cases.

Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be a
causal connection between said breach and the resulting injury sustained by the patient. Put in another
way, in order that there may be a recovery for an injury, it must be shown that the "injury for which recovery
is sought must be the legitimate consequence of the wrong done; the connection between the negligence
and the injury must be a direct and natural sequence of events, unbroken by intervening efficient
causes";81 that is, the negligence must be the proximate cause of the injury. And the proximate cause of an
injury is that cause, which, in the natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have occurred. 82

Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of the
injury] by a preponderance of the evidence in a medical malpractice action, [the patient] must similarly use
expert testimony, because the question of whether the alleged professional negligence caused [the
patient’s] injury is generally one for specialized expert knowledge beyond the ken of the average layperson;
using the specialized knowledge and training of his field, the expert’s role is to present to the [court] a
realistic assessment of the likelihood that [the physician’s] alleged negligence caused [the patient’s]
injury.83

From the foregoing, it is apparent that medical negligence cases are best proved by opinions of expert
witnesses belonging in the same general neighborhood and in the same general line of practice as
defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians [or
surgeons] stems from the former’s realization that the latter possess unusual technical skills which laymen
in most instances are incapable of intelligently evaluating; 84 hence, the indispensability of expert
testimonies.

In the case at bar, there is no question that a physician-patient relationship developed between Dr. Tuaño
and Peter when Peter went to see the doctor on 2 September 1988, seeking a consult for the treatment of
his sore eyes. Admittedly, Dr. Tuaño, an ophthalmologist, prescribed Maxitrol when Peter developed and
had recurrent EKC. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a
multiple-dose anti-infective steroid combination in sterile form for topical application. 85 It is the drug which
petitioners claim to have caused Peter’s glaucoma.

However, as correctly pointed out by the Court of Appeals, "[t]he onus probandi was on the patient to
establish before the trial court that the physicians ignored standard medical procedure, prescribed and
administered medication with recklessness and exhibited an absence of the competence and skills
expected of general practitioners similarly situated."86 Unfortunately, in this case, there was absolute failure
on the part of petitioners to present any expert testimony to establish: (1) the standard of care to be
implemented by competent physicians in treating the same condition as Peter’s under similar
circumstances; (2) that, in his treatment of Peter, Dr. Tuaño failed in his duty to exercise said standard of
care that any other competent physician would use in treating the same condition as Peter’s under similar
circumstances; and (3) that the injury or damage to Peter’s right eye, i.e., his glaucoma, was the result of
his use of Maxitrol, as prescribed by Dr. Tuaño. Petitioners’ failure to prove the first element alone is
already fatal to their cause.

Petitioners maintain that Dr. Tuaño failed to follow in Peter’s case the required procedure for the prolonged
use of Maxitrol. But what is actually the required procedure in situations such as in the case at bar? To be
precise, what is the standard operating procedure when ophthalmologists prescribe steroid medications
which, admittedly, carry some modicum of risk?

Absent a definitive standard of care or diligence required of Dr. Tuaño under the circumstances, we have
no means to determine whether he was able to comply with the same in his diagnosis and treatment of
Peter. This Court has no yardstick upon which to evaluate or weigh the attendant facts of this case to be
able to state with confidence that the acts complained of, indeed, constituted negligence and, thus, should
be the subject of pecuniary reparation.

Petitioners assert that prior to prescribing Maxitrol, Dr. Tuaño should have determined first whether Peter
was a "steroid responder."87 Yet again, petitioners did not present any convincing proof that such
determination is actually part of the standard operating procedure which ophthalmologists should unerringly
follow prior to prescribing steroid medications.

In contrast, Dr. Tuaño was able to clearly explain that what is only required of ophthalmologists, in cases
such as Peter’s, is the conduct of standard tests/procedures known as "ocular routine
examination,"88 composed of five (5) tests/procedures – specifically, gross examination of the eyes and the
surrounding area; taking of the visual acuity of the patient; checking the intraocular pressure of the patient;
checking the motility of the eyes; and using ophthalmoscopy on the patient’s eye – and he did all those
tests/procedures every time Peter went to see him for follow-up consultation and/or check-up.

We cannot but agree with Dr. Tuaño’s assertion that when a doctor sees a patient, he cannot determine
immediately whether the latter would react adversely to the use of steroids; all the doctor can do is map out
a course of treatment recognized as correct by the standards of the medical profession. It must be
remembered that a physician is not an insurer of the good result of treatment. The mere fact that the
patient does not get well or that a bad result occurs does not in itself indicate failure to exercise due
care.89 The result is not determinative of the performance [of the physician] and he is not required to be
infallible.90

Moreover, that Dr. Tuaño saw it fit to prescribe Maxitrol to Peter was justified by the fact that the latter was
already using the same medication when he first came to see Dr. Tuaño on 2 September 1988 and had
exhibited no previous untoward reaction to that particular drug. 91
Also, Dr. Tuaño categorically denied petitioners’ claim that he never monitored the tension of Peter’s eyes
while the latter was on Maxitrol. Dr. Tuaño testified that he palpated Peter’s eyes every time the latter came
for a check-up as part of the doctor’s ocular routine examination, a fact which petitioners failed to rebut. Dr.
Tuaño’s regular conduct of examinations and tests to ascertain the state of Peter’s eyes negate the very
basis of petitioners’ complaint for damages. As to whether Dr. Tuaño’s actuations conformed to the
standard of care and diligence required in like circumstances, it is presumed to have so conformed in the
absence of evidence to the contrary.

Even if we are to assume that Dr. Tuaño committed negligent acts in his treatment of Peter’s condition, the
causal connection between Dr. Tuaño’s supposed negligence and Peter’s injury still needed to be
established. The critical and clinching factor in a medical negligence case is proof of the causal connection
between the negligence which the evidence established and the plaintiff’s injuries. 92 The plaintiff must
plead and prove not only that he has been injured and defendant has been at fault, but also that the
defendant’s fault caused the injury. A verdict in a malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a reasonable medical probability based upon competent
expert testimony.93

The causation between the physician’s negligence and the patient’s injury may only be established by the
presentation of proof that Peter’s glaucoma would not have occurred but for Dr. Tuaño’s supposed
negligent conduct. Once more, petitioners failed in this regard.

Dr. Tuaño does not deny that the use of Maxitrol involves the risk of increasing a patient’s IOP. In fact, this
was the reason why he made it a point to palpate Peter’s eyes every time the latter went to see him -- so
he could monitor the tension of Peter’s eyes. But to say that said medication conclusively caused Peter’s
glaucoma is purely speculative. Peter was diagnosed with open-angle glaucoma. This kind of glaucoma is
characterized by an almost complete absence of symptoms and a chronic, insidious course. 94 In open-
angle glaucoma, halos around lights and blurring of vision do not occur unless there has been a sudden
increase in the intraocular vision. 95 Visual acuity remains good until late in the course of the
disease.96 Hence, Dr. Tuaño claims that Peter’s glaucoma "can only be long standing x x x because of the
large C:D97 ratio," and that "[t]he steroids provoked the latest glaucoma to be revealed earlier" was a
blessing in disguise "as [Peter] remained asymptomatic prior to steroid application."

Who between petitioners and Dr. Tuaño is in a better position to determine and evaluate the necessity of
using Maxitrol to cure Peter’s EKC vis-à-vis the attendant risks of using the same?

That Dr. Tuaño has the necessary training and skill to practice his chosen field is beyond cavil. Petitioners
do not dispute Dr. Tuaño’s qualifications – that he has been a physician for close to a decade and a half at
the time Peter first came to see him; that he has had various medical training; that he has authored
numerous papers in the field of ophthalmology, here and abroad; that he is a Diplomate of the Philippine
Board of Ophthalmology; that he occupies various teaching posts (at the time of the filing of the present
complaint, he was the Chair of the Department of Ophthalmology and an Associate Professor at the
University of the Philippines-Philippine General Hospital and St. Luke’s Medical Center, respectively); and
that he held an assortment of positions in numerous medical organizations like the Philippine Medical
Association, Philippine Academy of Ophthalmology, Philippine Board of Ophthalmology, Philippine Society
of Ophthalmic Plastic and Reconstructive Surgery, Philippine Journal of Ophthalmology, Association of
Philippine Ophthalmology Professors, et al.

It must be remembered that when the qualifications of a physician are admitted, as in the instant case,
there is an inevitable presumption that in proper cases, he takes the necessary precaution and employs the
best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. 98 In
making the judgment call of treating Peter’s EKC with Maxitrol, Dr. Tuaño took the necessary precaution by
palpating Peter’s eyes to monitor their IOP every time the latter went for a check-up, and he employed the
best of his knowledge and skill earned from years of training and practice.

In contrast, without supporting expert medical opinions, petitioners’ bare assertions of negligence on Dr.
Tuaño’s part, which resulted in Peter’s glaucoma, deserve scant credit.

Our disposition of the present controversy might have been vastly different had petitioners presented a
medical expert to establish their theory respecting Dr. Tuaño’s so-called negligence. In fact, the record of
the case reveals that petitioners’ counsel recognized the necessity of presenting such evidence. Petitioners
even gave an undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no
follow-through on said undertaking was made. 1avvphi1

The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue. However, in
the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the
burden of evidence shifts to defendant to controvert plaintiff’s prima facie case; otherwise, a verdict must
be returned in favor of plaintiff. 99 The party having the burden of proof must establish his case by a
preponderance of evidence.100 The concept of "preponderance of evidence" refers to evidence which is of
greater weight or more convincing than that which is offered in opposition to it; 101 in the last analysis, it
means probability of truth. It is evidence which is more convincing to the court as worthy of belief than that
which is offered in opposition thereto. 102 Rule 133, Section 1 of the Revised Rules of Court provides the
guidelines for determining preponderance of evidence, thus:

In civil cases, the party having the burden of proof must establish his case by a preponderance of
evidence. In determining where the preponderance or superior weight of evidence on the issues involved
lies the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying,
their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature
of the facts to which they testify, the probability or improbability of their testimony, their interest or want of
interest, and also their personal credibility so far as the same legitimately appear upon the trial. The court
may also consider the number of witnesses, though the preponderance is not necessarily with the greater
number.

Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court, to establish their
case by a preponderance of evidence showing a reasonable connection between Dr. Tuaño’s alleged
breach of duty and the damage sustained by Peter’s right eye. This, they did not do. In reality, petitioners’
complaint for damages is merely anchored on a statement in the literature of Maxitrol identifying the risks of
its use, and the purported comment of Dr. Agulto – another doctor not presented as witness before the RTC
– concerning the prolonged use of Maxitrol for the treatment of EKC.

It seems basic that what constitutes proper medical treatment is a medical question that should have been
presented to experts. If no standard is established through expert medical witnesses, then courts have no
standard by which to gauge the basic issue of breach thereof by the physician or surgeon. The RTC and
Court of Appeals, and even this Court, could not be expected to determine on its own what medical
technique should have been utilized for a certain disease or injury. Absent expert medical opinion, the
courts would be dangerously engaging in speculations.

All told, we are hard pressed to find Dr. Tuaño liable for any medical negligence or malpractice where there
is no evidence, in the nature of expert testimony, to establish that in treating Peter, Dr. Tuaño failed to
exercise reasonable care, diligence and skill generally required in medical practice. Dr. Tuaño’s testimony,
that his treatment of Peter conformed in all respects to standard medical practice in this locality, stands
unrefuted. Consequently, the RTC and the Court of Appeals correctly held that they had no basis at all to
rule that petitioners were deserving of the various damages prayed for in their Complaint.

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The
assailed Decision dated 27 September 2006 and Resolution dated 3 July 2007, both of the Court of
Appeals in CA-G.R. CV No. 68666, are hereby AFFIRMED. No cost.

SO ORDERED.

7.
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.

Lichauco, Picazo and Agcaoili for petitioner.

Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:

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

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

The case is now before us for review on certiorari.

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

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

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

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

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

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however,
solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is
drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece of
evidence 10 presented by one party and the other upon the issues raised. Neither is it to be burdened with
the obligation "to specify in the sentence the facts" which a party "considered as proved". 11 This is but a
part of the mental process from which the Court draws the essential ultimate facts. A decision is not to be
so clogged with details such that prolixity, if not confusion, may result. So long as the decision of the Court
of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court to withhold
therefrom "any specific finding of facts with respect to the evidence for the defense". Because as this Court
well observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify (in the decision)
the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the
same contrary to the requirements of the provisions of law and the Constitution". It is in this setting that
in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence for the
prosecution without taking into consideration or even mentioning the appellant's side in the controversy as
shown by his own testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the
testimony of each witness for, or each item of evidence presented by, the defeated party, it does not mean
that the court has overlooked such testimony or such item of evidence. 14 At any rate, the legal
presumptions are that official duty has been regularly performed, and that all the matters within an issue in
a case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement
of the ultimate facts as found by the court ... and essential to support the decision and judgment rendered
thereon". 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. 1awphîl.nèt

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

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

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

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

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

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

Mr. VALTE —

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

COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook
reading "First class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent.
We do not think so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry
does not come within the proscription of the best evidence rule. Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the
startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down.
Statements then, in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the
nervous excitement and mental and physical condition of the declarant". 51 The utterance of the purser
regarding his entry in the notebook was spontaneous, and related to the circumstances of the ouster
incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay rule. It
forms part of the res gestae.

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

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

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

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

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals,
thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as
attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did
not interfere with the same. The dictates of good sense suggest that we give our imprimatur thereto.
Because, the facts and circumstances point to the reasonableness thereof. 57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against petitioner. So ordered.

8.
PSBA vs CA
PADILLA, J.:

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

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

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they are
presumably sued under Article 2180 of the Civil Code, the complaint states no cause of action against
them, as jurisprudence on the subject is to the effect that academic institutions, such as the PSBA, are
beyond the ambit of the rule in the afore-stated article.

The respondent trial court, however, overruled petitioners' contention and thru an order dated 8 December
1987, denied their motion to dismiss. A subsequent motion for reconsideration was similarly dealt with by
an order dated 25 January 1988. Petitioners then assailed the trial court's 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 the Palisoc 4 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.

9.
Manila Railroad vs La Campanaia Transatlantica

STREET, J.:
In March 1914, the steamship Alicante, belonging to the Compañia Transatlantica de Barcelona, arrived at
Manila with two locomotive boilers aboard, the property of The Manila Railroad Company. The equipment
of the ship for discharging heavy cargo was not sufficiently strong to handle these boilers, and it was
therefore necessary for the Steamship Company to procure assistance in the port of Manila.

The Atlantic, Gulf and Pacific Company (hereafter called the Atlantic Company) was accordingly employed
by the Steamship Company, as having probably the best equipment for this purpose of any contracting
company in the city. The service to be performed by the Atlantic Company consisted in bringing it s floating
crane alongside the Alicante, lifting the boilers our of the ship's hold, and transferring them to a barge
which would be placed ready to receive them.

Upon the arrival of the Alicante, the Atlantic company sent out its crane in charge of one Leyden. In
preparing to hoist the first boiler the sling was unfortunately adjusted near the middle of the boiler, and it
was thus raised nearly in an horizontal position. The boiler was too long to clear the hatch in this position,
and after one end of the boiler had emerged on one side of the hatch, the other still remained below on the
other side. When the boiler had been gotten into this position and was being hoisted still further, a river
near the head of the boiler was caught under the edge of the hatch. The weight on the crane was thus
increased by a strain estimated at fifteen tons with the result that the cable of the sling parted and the boiler
fell to the bottom of the ship's hold. The sling was again adjusted to the boiler but instead of being placed
near the middle it was now slung nearer one of the ends, as should have been done at first. The boiler was
gain lifted; but as it was being brought up, the bolt at the end of the derrick book broke, and again the boiler
fell.

The crane was repaired and the boiler discharged, but it was found to be so badly damaged that it had to
be reshipped to England where it was rebuilt, and afterwards was returned to Manila. The Railroad
Company's damage by reason of the cost of repairs, expenses and loss of the use of the boiler proved to
be P23,343.29; and as to the amount of the damage so resulting there is practically no dispute. To recover
these damages the present action was instituted by the Railroad Company against the Steamship
Company. the latter caused the Atlantic Company to be brought in as a codefendant, and insisted that
whatever liability existed should be fixed upon the Atlantic Company as an independent contractor who had
undertaken to discharge the boilers and had become responsible for such damage as had been done.

The judge of the Court of First Instance gave judgment in favor of the plaintiff against the Atlantic Company,
but the absolved the Steamship Company from the complaint. The plaintiff has appealed from the action of
the court in failing to give judgment against the Steamship company, while the Atlantic company has
appealed from the judgment against it.

The mishap was undoubtedly due, as the lower court found, to the negligence of one Leyden, the foreman
in charge; and we may add that the evidence tends to show that his negligence was of a type which may
without exaggeration be denominated gross. The sling was in the first place improperly adjusted, and the
attention of Leyden was at once called to this by the man in charge of the stevedores. Nevertheless he
proceeded and, instead of lowering the boiler when it was seen that it could not readily pass through the
hatch, he attempted to force it through; and the ship's tackle was brought into use to assist in this
maneuver. The second fall was, it appears, caused by the weakening of the bolt at the head of the derrick
boom, due to the shock incident to the first accident. This defect was possibly such as not to be patent to
external observation but we are of the opinion that a person of sufficient skill to be trusted with the
operation of machinery of this character should be trusted with the operation of machinery of this character
should have known that the crane had possibly been weakened by the jar received in the first accident. The
foreman was therefore guilty of negligence in attempting to hoist the boiler the second time under the
conditions that had thus developed. It should be noted that the operation was at all its states entirely under
Leyden's control; and, although in the first lift he utilized the ship's tackle to aid in hoisting the boiler,
everything was done under his immediate supervision. There is no evidence tending to show that the first
fall of the boiler might have been due to any hidden defect in the lifting apparatus; and if it had not been for
the additional strain caused by one end of the boiler catching under the hatch, the operation would
doubtless have been accomplished without difficulty. The accident is therefore to be attributed to the failure
of Leyden to exercise the degree of care which an ordinarily competent and prudent person would have
exhibited under the circumstances which then confronted him. This conclusion of fact cannot be refuted;
and, indeed, no attempt is here made by the appellant to reverse this finding of the trial court.

Three questions are involved in the case, namely: (1) Is the steamship company liable to the plaintiff by
reason of having delivered the boiler in question in a damaged condition? (2) Is the atlantic company liable
to be made to respond to the steamship company for the amount the latter may be required to pay to the
plaintiff for the damage done? Is the Atlantic company directly liable to the plaintiff, as the trial court held?

It will be observed that the contractual relation existed between the railroad company and the steamship
company; and the duties of the latter with respect to the carrying and delivery of the boilers are to be
discovered by considering the terms and legal effect of that contract. A contractual relation also existed
between the Steamship company and the atlantic company; and the duties owing by the latter to the former
with respect to the lifting and the transferring of the boiler are likewise to be discovered by considering the
terms and legal effect of the contract between these parties. On the other hand, no contractual relation
existed directly between the Railroad Company and the Atlantic Company.

We are all agreed, that, under the contract for transportation from England to Manila, the Steamship
company is liable to the plaintiff for the injury done to the boiler while it was being discharged from the ship.
The obligation to transport the boiler necessarily involves the duty to convey and deliver it in a proper
condition according to its nature, and conformably with good faith, custom, and the law (art. 1258, Civ.
Code). The contract to convey import the duty to convey and deliver safely and securely with reference to
the degree of care which, under the circumstances, are required by law and custom applicable to the case.
The duty to carry and to carry safely is all one.

Such being the contract of the Steamship Company, said company is necessarily liable, under articles 1103
and 1104 of the Civil Code, for the consequences of the omission of the care necessary to the proper
performance of this obligation. The contact to transport and deliver at the port of Manila a locomotive boiler,
which was received by it in proper condition, is not complied with the delivery at the port of destination of a
mass of iron the utility of which had been destroyed.

Nor does the Steamship Company escape liability by reason of the fact that it employed a competent
independent contractor to discharge the boilers. The law applicable to this feature of the case will be more
fully discussed further on in this opinion. At this point we merely observe that in the performance of this
service the Atlantic company, and it has never yet been held that the failure to comply with a contractual
obligation can be excused by showing that such delinquency was due to the negligence of one to whom
the contracting party had committed the performance of the contract.

Coming to the question of the liability of the Atlantic Company to respond to the Steamship Company for
the damages which the latter will be compelled to pay to the plaintiff, we observe that the defense of the
Atlantic company comprises two contentions, to-wit, first, that by the terms of the engagement in
accordance with which the Atlantic company agreed to render the service, all risk incident to the discharge
of the boilers was assumed by the steamship company, and secondly, that the atlantic company should be
absolved under the last paragraph of article 1903 of the civil code, inasmuch as it had used due care in the
selection of the employee whose negligent act caused the damage in question.

At the hearing in first instance the Atlantic Company introduced four witnesses to prove that at the time said
company agreed to lift the boilers out of the Alicante, as upon other later occasions, the steamship
company not be responsible for damage. The vice-president of the atlantic company testified that hew as
present upon the occasion when the agent of the Steamship company made arrangements for the
discharge of the boilers and he heard the conversation between the president and said agent. According to
this witness the substance of the agreement was that, while the Atlantic Company would use all due care in
getting the boilers out, no responsibility was assumed for damage done either to ship or cargo. The
intermediary who acted as agent for the Steamship Company in arranging for the performance of this
service stoutly denied that any such terms were announced by the officials or anybody else connected with
the Atlantic Company at any time while the arrangements were pending.

In the conflict of the evidence, we recognize that, by a preponderance of the evidence, some reservation or
other was made as to the responsibility of the Atlantic Company; was made to the responsibility of the
atlantic company and though the agent who acted on behalf of the steamship company possibly never
communicated this reservation to his principal, the latter should nevertheless be held bound thereby. It thus
becomes necessary to discover what the exact terms of this supposed reservation were.

We think that we must put aside at once the words of studies precision with which the president of the
Atlantic company could exclude the possibility of any liability attaching to his company, though we may
accept his statement as showing that the excepted risk contemplated breakage of the lifting equipment.
There is undoubtedly a larger element of truth in the more reasonable statement by the vice-president of
the company. According to this witness the contract combined two features, namely, an undertaking on the
part of the Atlantic Company to use all due care, combined with a reservation concerning the company's
liability for damage.

The Atlantic Company offered in evidence, a number of letters which had been written by it at different
times, extending over a period of years, in response to inquiries made by other firms and person in Manila
concerning the terms upon which the Atlantic Company was not accustomed to assume the risk incident to
such work and required the parties for whom the service might be rendered either to carry the risk or insure
against it. One such letter, dated nearly four years prior to the occurrence such letter, dated nearly four
years prior to the occurrences which gave rise to this lawsuit, was addressed to the Compañia
Transatlantica de Barcelona one of the defendants in this case. It was stated in this communication that the
company's derrick would be subject to inspection prior to making the lift but that the Atlantic Company
would not assume responsibility for damage that might occur either to ship or cargo from any whatsoever.
The steamship company rejected the services of the Atlantic company in that instance as being too
onerous.

The letters directed to this parties, it may observed, would not, generally speaking, be admissible as
against the plaintiff for the purpose of proving that a similar reservation was inserted in the contract with it
on this occasion; but if knowledge of such custom is brought home to the steamship company, the fact that
such reservation was commonly made is of some probative force. Reference to a number of these letters
will show that no particular formula was used by the Atlantic Company in defining its exemption, and the
tenor of these various communications differs materially. We think, however, that some of the letters are of
value as an aid in interpreting the reservation which the Atlantic Company may have intended to make. We
therefore quote from some of these letters as follows:
 We will use our best endeavors to carry out the work successfully and will ask you to inspect our
plant but we wish it distinctly understood that we cannot assume responsibility for damage which
may occur . . . while the lift is being made. (To Rear Admiral, U.S.N., Oct. 4, 1909.)

Our quotation is based on the understanding that we assume no responsibility from any accident
which may happen during our operations. We always insert this clause as precautionary measure,
but we have never had to avail ourselves of it as yet and do not expect to now. (To "El Varadero de
Manila," Nov. 1, 1913.)

As is customary in these cases, we will use all precaution as necessary to handle the gun in a
proper manner. Our equipment has been tested and will be again, before making the lift, but we do
not assume any responsibility for damage to the gun ship, or cargo. (To Warner, Barnes & Co.,
June 7, 1909.)

The idea expressed in these letters is, we think entirely consonant with the interpretation which the vice-
president of the company placed upon the contract which was made with the steamship company upon this
occasion, that is, the company recognized its duty to exercise due supervisory care; and the exemption
from liability, whatever may have been its precise words had reference to disasters which might result from
some inherent hidden defect in the lifting apparatus or other unforeseen occurrence not directly attributable
to negligence of the company in the lifting operations. Neither party could have supposed for a moment that
it was intended to absolve the Atlantic Company from its duty to use due care in the work.

It is not pretended that negligence on the part of the Atlantic Company or its employees was expressly
included in the excepted risk, and we are of the opinion that the contract should not be understood as
covering such an exemption. It is a rudimentary principle that the contractor is responsible for the work
executed by persons whom he employees in its performance, and this expressed in the Civil Code in the
form of a positive rule of law (art. 1596). It is also expressly declared by law that liability arising from
negligence is demandable in the fulfillment of all kinds of obligations (art. 1103, Civil Code). Every contract
for the presentation of service therefore has annexed to it, as an inseparable implicit obligation, the duty to
exercise due care in the accomplishment of the work; and no reservation whereby the person rendering the
services seeks to escape from the consequences of a violation of this obligations can viewed with favor.

Contracts against liability for negligence are not favored by law. In some instances, such as
common carriers, they are prohibited as against public policy. In all cases such contracts should be
construed strictly, with every intendment against the party seeking its protection. (Crew vs.
Bradstreet Company, 134 Pa. St., 161; 7 L. R. A., 661; 19 Am. St. Rep., 681.)

The strictness with which contracts conferring such an unusual exemption are construed is illustrated in
Bryan vs. Eastern & Australian S. S. Co. (28 Phil. Rep., 310). The decision in that case is not precisely
applicable to the case at bar, since the court was there applying the law of a foreign jurisdiction, and the
question at issue involved a doctrine peculiar to contracts of common carriers. Nevertheless the case is
instructive as illustrating the universal attitude of courts upon the right of a contracting party to stipulate
against the consequences of his own negligence. It there appeared that the plaintiff had purchased from
the defendant company a ticket for the transportation of himself and baggage from Hongkong to Manila By
the terms of the contract printed in legible type upon the back of the ticket it was provided that the company
could not hold itself responsible for any loss or damage to luggage, under any circumstances whatsoever,
unless it had been paid for as freight. It was held that this limitation upon the liability of the defendant
company did not relieve it from liability of the defendant company for negligence of its servants by which
the baggage of the passenger was lost. Said the court: Ordinarily this language would seem to be broad
enough to cover every possible contingency, including the negligent act of the defendant's servants. To so
hold, however, would run counter to the established law of England and the United States on that subject.
The court then quoted the following proposition from the decision of the King's Bench Division in Price &
Co. vs. Union Lighterage Co. ([1903], 1 K. B. D., 750, 754):

"An exemption in general words not expressly relating to negligence, even though the words are
wide enough to include loss by negligence or default of carriers' servants' must be construed as
limiting the liability of the carrier as assurer, and not as relieving from the duty of the exercising
reasonable skill and care."

Even admitting that, generally speaking, a person may stipulate against liability for the consequences of
negligence, at least in those cases where the negligence is not gross or willful, the contract conferring such
exemption must be so clear as to leave no room for the operation of the ordinary rules of liability
consecrated by experience and sanctioned by the express provisions of law.

If the exemption should be understood in the scene that counsel for the Atlantic Company now insists it
should bear, that is, as an absolute exemption from all responsibility for negligence, it is evident that the
agreement was a most inequitable and unfair one, and hence it is one that the steamship company can not
be lightly assumed to have made. Understood in that sense it is the equivalent of licensing the Atlantic
Company to perform its tasks in any manner and fashion that it might please, and to hold it harmless from
the consequences.

It is true that, in these days insurance can usually be obtained in the principal ports of commerce by parties
circumstanced as was the steamship company in the case now before us. But the best insurance against
disasters of this kind is found in the exercise of due care; and the chief incentive to the exercise of care is a
feeling of responsibility on the part of him who undertakes the work. Naturally the courts are little inclined to
aid tin the efforts of contractors to evade this responsibility.

There may have been in the minds of the officials of the Atlantic Company an idea that the promise to use
due care in the lifting operations was not accompanied by a legal obligation, such promise being intended
merely for its moral effect as an assurance to the steamship company that the latter might rely upon
competence and diligence of the employees of the Atlantic Company to accomplish the work in a proper
way. The contract can not be permitted to operate in this one-sided manner. The two features of the
engagement, namely, the promise to use due care and the exemption from liability for damage should be
so construed as to give some legal effect to both. The result is, as already indicated, that the Atlantic
Company was bound by its undertaking to use due care and that he exemption was intended to cover
accidents use to hidden defects in the apparatus or other unforeseeable occurrences not having their origin
in the immediate personal negligence of the party in charge of the operations.

We now proceed to consider the contention that the Atlantic Company under the last paragraph of article
1903 of the Civil Code, which declares that the liability there referred to 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. In this connection the conclusion of fact must be conceded in favor of the Atlantic Company that it
had used proper care in the selection of Leyden and that , so far as the company was aware, he was a
person to whom might properly be committed the task of discharging the boilers. The answer to the
contention, however is the obligation of the Atlantic Company was created by contract, and article 1903 is
not applicable to negligence arising in the course of the performance of a contractual obligation. Article
1903 is exclusively concerned with cases where the negligence arises in the absence of agreement.

In discussing the liability of the Steamship Company to the plaintiff Railroad Company we have already
shown that a party is bound to the full performance of his contractual engagements under articles 1101 et
seq. of the Civil Code, and other special provisions of the Code relative to contractual obligations; and if he
falls short of complete performance by reason of his own negligence or that of any person to whom he may
commit the work, he is liable for the damages resulting therefrom. What was there said is also applicable
with reference to the liability of the Atlantic Company upon its contract with the Steamship Company, and
the same need not be here repeated. It is desirable, however, in this connection, to bring out somewhat
more fully the distinction between negligence in the performance of a contractual obligation (culpa
contractual) and neligence considered as an independent source of obligation between parties not
previously bound (culpa aquiliana).

This distinction is well established in legal jurisprudence and is fully recognized in the provisions of the Civil
Code. As illustrative of this, we quote the following passage from the opinion of this Court in the well-known
case of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil. Rep., 359, 365), and in this quotation we reproduce
the first paragraph of here presenting a more correct English version of said passage.

The acts to which these articles are applicable are understood to be those not growing out of
preexisting duties of the parties to one another. But where relations already formed give arise to
duties, whether springing form 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 for passage, while that of the
injured by-stander would originate in the negligent act itself. This distinction is thus clearly set forth
by Manresa in his commentary on article 1093:

"We see with reference to such obligations, that culpa, or negligence, may be understood in
two different senses, either as culpa, substantive and independent, which of itself
constitutes the source of an obligation between two person not formerly bound by any other
obligation; or as an incident in the performance of an obligation which already existed, and
which increases the liability arising from the already existing obligation."

Justice Tracey, the author of the opinion from which we have quoted, proceeds to observe that Manresa, in
commenting on articles 1101 and 1104, has described these two species of negligence as contractual and
extra-contractual, the latter being the culpa aquiliana of the Roman law. "This terminology is unreservedly
accepted by Sanchez Roman (Derecho Civil, fourth section, chapter XI, article II, No. 12), and the principle
stated is supported by decisions of the supreme court of Spain,. among them those of November 29, 11896
(80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75 Jurisprudencia Civil, No. 182.)"

The principle that negligence in the performance of a contract is not governed by article of the Civil Code
but rather by article 1104 of the same Code was directly applied by this court in the case of Baer Senior &
Co.'s successors vs. Compañía Maritima (6 Phil. Rep., 215); and the same idea has been impliedly if not
expressly recognized in other cases (N. T. Hashim & Co. vs. Rocha & Co., 18 Phil. Rep., 315; Tan Chiong
Sian vs. Inchausti & Co., 22 Phil. Rep., 152).

What has been said suffices in our opinion to demonstrate that the Atlantic Company is liable to the
Steamship Company for the damages brought upon the latter by the failure of the Atlantic company to use
due care in discharging the boiler, regardless of the fact that the damage was caused by the negligence of
an employee who was qualified for the work and who had been chosen by the Atlantic Company with due
care.

This brings us to the last question here to be answered, which is, Can the Atlantic Company be held
directly liable to the Railroad Company? In other words, can the judgement entered in the trial court directly
in favor of the plaintiff against the Atlantic Company be sustained? To answer this it is necessary to
examine carefully the legal relations existing between the Atlantic Company and the Railroad Company
with reference to this affair; and we shall for a moment ignore the existence of the contract between the
steamship company and the atlantic company, to which the railroad company was not a party.

Having regard then to the bare fact that the Atlantic Company undertook to remove the boiler from the
ship's hold and for this purpose took the property into its power and control, there arose a duty to the owner
to use due care in the performance of that service and to avoid damaging was obviously in existence
before the negligent act may, if we still ignore the existence of the express contract, be considered as an
act done in violation of this duty.

The duty thus to use due care is an implied obligation, of a quasi contractual nature, since it is created by
implication of liability with which we are here confronted is somewhat similar to that which is revealed in the
case of the depositary, or commodatary, whose legal duty with respect to the property committed to their
care is defined by law even in the absence of express contract; and it can not be doubted that a person
who takes possession of the property of another for the purpose of moving or conveying it from one place
to another, or for the purpose of performing any other service in connection therewith ( locatio operis
faciendi), owes to the owner a positive duty to refrain from damaging it, to the same extent as if an
agreement for the performance of such service had been expressly made with the owner. The obligation as
if an agreement made with the owner. The obligation here is really a species of contract re, and it has its
source and explanation in vital fact, that the active party has taken upon himself to do something with or to
the property and has taken it into his power and control for the purpose of performing such service.
(Compare art. 1889, Civil Code.)

In the passage which we have already from the decision in the Rakes case this Court recognized the fact
that the violation of a quasi-contractual duty is subject to articles 1101, 1103, 1104 of the Civil Code, and
not within the purview of article 1903. Manresa also, in the paragraph reproduced above is of the opinion
that negligence, considered a substantive and independent source of liability, does not include cases where
the parties are previously bound by any other obligation. Again, it is instructive in this connection to refer to
the contents of article 1103 of the Civil Code, where it is demandable in the fulfillment of all kinds of
obligations. These words evidently comprehend both forms of positive obligations, whether arising from
express contract or from implied contract (quasi contract).

In this connection it is instructive to recall celebrate case of Coggs vs. Bernard (2 Ld. Raym, 909), decided
in the court of the King's Bench of England in the year of 1803. The action was brought by the owner of
certain casks of brandy to recover damages from a person who had undertaken to transport them from one
place to another. It was alleged that in so doing the defendant so negligently and improvidently put then
down that one of the casks was staved and the brandy lost. The complaint did not allege that the defendant
was a common carrier or that he was to be paid for his services. It was therefore considered that the
compliant did not state facts sufficient to support an action for breach of any express contract. This made it
necessary for the court to go back to fundamental principles and to place liability on the ground of a
violation of the legal duty incident to the mere fact of carriage. Said Powell, J.: "An action indeed will not lie
for not doing the thing, for want of a sufficient consideration; but yet if the bailee will take the goods into his
custody, he shall be answerable for them; for the taking of the goods into his custody is his own act." S9
Gould, J.: ". . . any man that undertakes to carry goods in liable to an action, be he a common carrier or
whatever he is, if through his neglect they are lost or come to any damage: . . . . " Behind these
expressions was an unbroken line of ancient English precedents holding persons liable for damage inflicted
by reason of a misfeasance in carrying out an undertaking. The principle determined by the court in the
case cited is expressed in the syllabus in these words: 'If a man undertakes to carry goods safely and
securely, he is responsible for any damage they may sustain in the carriage through his neglect, though he
was not a common carrier and was to have nothing for the carriage." Though not stated in so many words,
this decision recognizes that from the mere fact that a person takes the property of another into his
possession and control there arises an obligation in the nature of an assumpsit that he will use due care
with respect thereto. This must be considered a principle of universal jurisprudence, for it is consonant with
justice and common sense and as we have already seen harmonizes with the doctrine above deduced
from the provisions of the Civil Code.

The conclusion must therefore be that if there had been no contract of any sort between the Atlantic
company and the Steamship Company, an action could have been maintained by the Railroad Company,
as owner, against the Atlantic Company to recover the damages sustained by the former. Such damages
would have been demandable under article 1103 of the Civil Code and the action would not have been
subject to the qualification expressed in the last paragraph of article 1903.

The circumstance that a contract was made between the Atlantic Company and the Steamship company
introduces, however, an important, and in our opinion controlling factor into this branch of the case. It
cannot be denied that the Steamship company has possession of this boiler in the capacity of carrier and
that as such it was authorized to make a contract with Atlantic Company to discharge the same from the
ship. Indeed, it appears in evidence that even before the contract of affreightment was made the Railroad
Company was informed that it would necessary for steamship company to procure the services of some
contractor in the port of Manila to handle the discharge, as the ship's tackle was inadequate to handle
heavy cargo. It is therefore to be assumed that the Railroad Company had in fact assented to the
employment of a contractor to perform this service.

Now, it cannot be admitted that a person who contract to do a service like that rendered by the Atlantic
company in this case incurs a double responsibility upon entering upon performance, namely, a
responsibility to the party with whom he contracted, and another entirely different responsibility to the
owner, based on an implied contract. The two liabilities can not in our opinion coexist. It is a general rule
that an implied conract never arises where an express contract has been made.

If double responsibility existed in such case as this, it would result that a person who had limited his liability
by express stipulation might find himself liable to the owner without regard to the limitation which he had
seen fit to impose by contract. There appears to be no possibility of reconciling the conflict that would be
developed in attempting to give effect to those inconsistent liabilities. The contract which was in fact made,
in our opinion, determine not only the character and extent of the liability of the Atlantic company but also
the person or entity by whom the obligation is eligible. It is of course quite clear that if the Atlantic company
had refused to carry out its agreement to discharge the cargo, the plaintiff could have enforced specific
performance and could not have recovered damages for non-performance. (Art. 1257, Civil Code;
Donaldson, Sim & Co. vs. Smith, Bell & Co., 2 Phil. Rep., 766; Uy Tam and Uy Yet vs. Leonard, 30 Phil.
Rep., 471.) In view of the preceding discussion it is equally obvious that, for lack of privity with the contract,
the Railroad Company can have no right of action to recover damages from the Atlantic Company for the
wrongful act which constituted the violation of said contract. The rights of the plaintiff can only be made
effective through the Compañia Trasatlantica de Barcelona with whom the contract of affreightment was
made.

The judgment entered in the Court of First Instance must, therefore be reversed not only with respect to the
judgment entered in favor of the plaintiff directly against the Atlantic company but also with respect to the
absolution of the steamship company and the further failure of the court to enter judgment in favor of the
latter against the Atlantic Company. The Compañía Transatlantic de Barcelona should be and is hereby
adjudged to pay to the Manila Railroad Company the sum of twenty nine thousand three hundred forty
three pesos and twenty nine centavos (P23,343.29) with interest from May 11, 1914, until paid; and when
this judgment is satisfied, the Compañia Transatlantic de Barcelona is declared to be entitled to recover the
same amount from the Atlantic & Pacific Gulf Company, against whom judgment is to this end hereby
rendered in favor of the Compañia Transatlantica de Barcelona. No express adjudication of costs of either
instance will be made. So ordered.

10.
Light Rail Transit Authority vs Navidad

VITUG, J.:

The case before the Court is an appeal from the decision and resolution of
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 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, 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.

On 14 October 1993, about half an hour past seven oclock in the evening,
Nicanor Navidad, then drunk, entered the EDSA LRT station after purchasing a
token (representing payment of the fare). While Navidad was standing on the
platform near the LRT tracks, Junelito Escartin, the security guard assigned to
the area approached Navidad. A misunderstanding or an altercation between
the two apparently ensued that led to a fist fight. No evidence, however, was
adduced to indicate how the fight started or who, between the two, delivered the
first blow or how 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. Navidad was struck by the moving train, and he was killed instantaneously.

On 08 December 1994, the widow of Nicanor, herein respondent Marjorie

Navidad, along with her children, filed a complaint for damages against Junelito
Escartin, Rodolfo Roman, the LRTA, the Metro Transit 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 liability and averred that it had exercised
due diligence in the selection and supervision of its security guards.
 The LRTA and Roman presented their evidence while Prudent and Escartin,
instead of presenting evidence, filed a demurrer contending that Navidad had
failed to prove that Escartin was negligent in his assigned task. On 11 August
1998, the trial court rendered its decision; it adjudged:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the
defendants Prudent Security and Junelito Escartin ordering the latter to pay jointly and
severally the plaintiffs the following:
a) 1) Actual damages of P44,830.00;
2) Compensatory damages of P443,520.00;
3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;
b) Moral damages of P50,000.00;
c) Attorneys fees of P20,000;
d) Costs of suit.
The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of
merit.
The compulsory counterclaim of LRTA and Roman are likewise dismissed.[1]

Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate

court promulgated its now assailed decision exonerating Prudent from any
liability for the death of Nicanor Navidad and, instead, holding the LRTA and
Roman jointly and severally liable thusly:
WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the
appellants from any liability for the death of Nicanor Navidad, Jr.Instead, appellees
Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held liable for his death
and are hereby directed to pay jointly and severally to the plaintiffs-appellees, the
following amounts:
a) P44,830.00 as actual damages;
b) P50,000.00 as nominal damages;
c) P50,000.00 as moral damages;
d) P50,000.00 as indemnity for the death of the deceased; and
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 stopped the act or
omission.[7] In case of such death or injury, a carrier is presumed to have been
at fault or been negligent, and [8] by simple proof of 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 the carrier to prove that the injury is due
to an unforeseen event or to force majeure. [9] In the absence of satisfactory
explanation by the carrier on how the accident occurred, which petitioners,
according to the appellate court, have failed to show, the presumption would be
that it has been at fault,[10] an exception from the general rule that negligence
must be proved.[11]

The foundation of LRTAs liability is the contract of carriage and its obligation
to indemnify the victim arises from the breach of that contract by reason of its
failure to exercise the high diligence required of the common carrier. In the
discharge of its commitment to ensure the safety 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 the task. In either case, the common carrier is
not relieved of its responsibilities under the contract of carriage.

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
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 2194[14] 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, Escartin, has not
been duly proven x x x. This finding of the appellate court is not without
substantial justification in our own review of the records of the case.

There being, similarly, no showing that petitioner Rodolfo Roman himself is

guilty of any culpable act or omission, he must also be absolved from
liability. Needless to say, the contractual tie between the LRT and Navidad is not
itself a juridical relation between the latter and Roman; thus, Roman can be
made liable only for his own fault or negligence.

The award of nominal damages in addition to actual damages is

untenable. Nominal damages are adjudicated in order that a right of the plaintiff,
which has been violated or invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the plaintiff for any loss
suffered by him.[18] It is an established rule that nominal damages cannot co-
exist with compensatory damages.[19]

WHEREFORE, the assailed decision of the appellate court is AFFIRMED

with MODIFICATION but only in that (a) the award of nominal damages is
DELETED and (b) petitioner Rodolfo Roman is absolved from liability. No costs.

SO ORDERED.
11.
Barredo v Garcia and Almario

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 daño al otro, pero acaescio por su culpa."

The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the five
sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual: "los actos . . . en que
intervenga cualquier genero de culpa o negligencia." Then article 1093 provides that this kind of obligation
shall be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-0910. This portion of the Civil
Code is exclusively devoted to the legal institution of culpa aquiliana.

Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-
delito under the Civil Code are:

1. That crimes affect the public interest, while cuasi-delitos are only of private concern.

2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by means
of indemnification, merely repairs the damage.

3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a penal
law clearly covering them, while the latter, cuasi-delitos, include all acts in which "any king of fault or
negligence intervenes." However, it should be noted that not all violations of the penal law produce civil
responsibility, such as begging in contravention of ordinances, violation of the game laws, infraction of the
rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso Elemental de Derecho Civil," Vol. 3, p.
728.)

Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the employer's
primary and direct liability under article 1903 of the Civil Code.

Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Española" (Vol. XXVII, p.
414) says:

El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a diferentes

personas. Asi, existe una responsabilidad civil propiamente dicha, que en ningun casl lleva
aparejada responsabilidad criminal alguna, y otra que es consecuencia indeclinable de la penal
que nace de todo delito o falta."

The juridical concept of civil responsibility has various aspects and comprises different persons.
Thus, there is a civil responsibility, properly speaking, which in no case carries with it any criminal
responsibility, and another which is a necessary consequence of the penal liability as a result of
every felony or misdemeanor."

Maura, an outstanding authority, was consulted on the following case: There had been a collision between
two trains belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte. An employee of
the latter had been prosecuted in a criminal case, in which the company had been made a party as
subsidiarily responsible in civil damages. The employee had been acquitted in the criminal case, and the
employer, the Ferrocarril del Norte, had also been exonerated. The question asked was whether the
Ferrocarril Cantabrico could still bring a civil action for damages against the Ferrocarril del Norte. Maura's
opinion was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos
parece sostenible que exista cosa juzgada acerca de la obligacion civil de indemnizar los
quebrantos y menoscabos inferidos por el choque de los trenes. El titulo en que se funda la accion
para demandar el resarcimiento, no puede confundirse con las responsabilidades civiles nacidas
de delito, siquiera exista en este, sea el cual sea, una culpa rodeada de notas agravatorias que
motivan sanciones penales, mas o menos severas. La lesion causada por delito o falta en los
derechos civiles, requiere restituciones, reparaciones o indemnizaciones, que cual la pena misma
atañen al orden publico; por tal motivo vienen encomendadas, de ordinario, al Ministerio Fiscal; y
claro es que si por esta via se enmiendan los quebrantos y menoscabos, el agraviado excusa
procurar el ya conseguido desagravio; pero esta eventual coincidencia de los efectos, no borra la
diversidad originaria de las acciones civiles para pedir indemnizacion.

Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento y que
tiene otro regimen), dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u omision,
causante de daños o perjuicios, en que intervenga culpa o negligencia. Es trivial que acciones
semejantes son ejercitadas ante los Tribunales de lo civil cotidianamente, sin que la Justicia
punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al 128 del Codigo Penal,
atentos al espiritu y a los fines sociales y politicos del mismo, desenvuelven y ordenan la materia
de responsabilidades civiles nacidas de delito, en terminos separados del regimen por ley comun
de la culpa que se denomina aquiliana, por alusion a precedentes legislativos del Corpus Juris.
Seria intempestivo un paralelo entre aquellas ordenaciones, y la de la obligacion de indemnizar a
titulo de culpa civil; pero viene al caso y es necesaria una de las diferenciaciones que en el tal
paralelo se notarian.

Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las responsabilidades
civiles, entre los que sean por diversos conceptos culpables del delito o falta, las hacen extensivas
a las empresas y los establecimientos al servicio de los cuales estan los delincuentes; pero con
caracter subsidiario, o sea, segun el texto literal, en defecto de los que sean responsables
criminalmente. No coincide en ello el Codigo Civil, cuyo articulo 1903, dice; La obligacion que
impone el articulo anterior es exigible, no solo por los actos y omisiones propios, sino por los de
aquellas personas de quienes se debe responder; personas en la enumeracion de las cuales
figuran los dependientes y empleados de los establecimientos o empresas, sea por actos del
servicio, sea con ocasion de sus funciones. Por esto acontece, y se observa en la jurisprudencia,
que las empresas, despues de intervenir en las causas criminales con el caracter subsidiario de su
responsabilidad civil por razon del delito, son demandadas y condenadas directa y aisladamente,
cuando se trata de la obligacion, ante los tribunales civiles.

Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de nuestro
regimen judicial la separacion entre justicia punitiva y tribunales de lo civil, de suerte que tienen
unos y otros normas de fondo en distintos cuerpos legales, y diferentes modos de proceder,
habiendose, por añadidura, abstenido de asistir al juicio criminal la Compañia del Ferrocarril
Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de indemnizacion por
los daños y perjuicios que le irrogo el choque, no estuvo sub judice ante el Tribunal del Jurado, ni
fue sentenciada, sino que permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando
el veredicto no hubiese sido de inculpabilidad, mostrose mas arriba, que tal accion quedaba
legitimamente reservada para despues del proceso; pero al declararse que no existio delito, ni
responsabilidad dimanada de delito, materia unica sobre que tenian jurisdiccion aquellos
juzgadores, se redobla el motivo para la obligacion civil ex lege, y se patentiza mas y mas que la
accion para pedir su cumplimiento permanece incolume, extraña a la cosa juzgada.

As things are, apropos of the reality pure and simple of the facts, it seems less tenable that there
should be res judicata with regard to the civil obligation for damages on account of the losses
caused by the collision of the trains. The title upon which the action for reparation is based cannot
be confused with the civil responsibilities born of a crime, because there exists in the latter,
whatever each nature, a culpa surrounded with aggravating aspects which give rise to penal
measures that are more or less severe. The injury caused by a felony or misdemeanor upon civil
rights requires restitutions, reparations, or indemnifications which, like the penalty itself, affect
public order; for this reason, they are ordinarily entrusted to the office of the prosecuting attorney;
and it is clear that if by this means the losses and damages are repaired, the injured party no longer
desires to seek another relief; but this coincidence of effects does not eliminate the peculiar nature
of civil actions to ask for indemnity.

Such civil actions in the present case (without referring to contractual faults which are not pertinent
and belong to another scope) are derived, according to article 1902 of the Civil Code, from every
act or omission causing losses and damages in which culpa or negligence intervenes. It is
unimportant that such actions are every day filed before the civil courts without the criminal courts
interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal Code, bearing in mind the spirit
and the social and political purposes of that Code, develop and regulate the matter of civil
responsibilities arising from a crime, separately from the regime under common law, of culpa which
is known as aquiliana, in accordance with legislative precedent of the Corpus Juris. It would be
unwarranted to make a detailed comparison between the former provisions and that regarding the
obligation to indemnify on account of civil culpa; but it is pertinent and necessary to point out to one
of such differences.

Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil responsibilities
among those who, for different reasons, are guilty of felony or misdemeanor, make such civil
responsibilities applicable to enterprises and establishments for which the guilty parties render
service, but with subsidiary character, that is to say, according to the wording of the Penal Code, in
default of those who are criminally responsible. In this regard, the Civil Code does not coincide
because article 1903 says: "The obligation imposed by the next preceding article is demandable,
not only for personal acts and omissions, but also for those of persons for whom another is
responsible." Among the persons enumerated are the subordinates and employees of
establishments or enterprises, either for acts during their service or on the occasion of their
functions. It is for this reason that it happens, and it is so observed in judicial decisions, that the
companies or enterprises, after taking part in the criminal cases because of their subsidiary civil
responsibility by reason of the crime, are sued and sentenced directly and separately with regard to
the obligation, before the civil courts.

Seeing that the title of this obligation is different, and the separation between punitive justice and
the civil courts being a true postulate of our judicial system, so that they have different fundamental
norms in different codes, as well as different modes of procedure, and inasmuch as the Compaña
del Ferrocarril Cantabrico has abstained from taking part in the criminal case and has reserved the
right to exercise its actions, it seems undeniable that the action for indemnification for the losses
and damages caused to it by the collision was not sub judice before the Tribunal del Jurado, nor
was it the subject of a sentence, but it remained intact when the decision of March 21 was
rendered. Even if the verdict had not been that of acquittal, it has already been shown that such
 action had been legitimately reserved till after the criminal prosecution; but because of the
declaration of the non-existence of the felony and the non-existence of the responsibility arising
from the crime, which was the sole subject matter upon which the Tribunal del Jurado had
jurisdiction, there is greater reason for the civil obligation ex lege, and it becomes clearer that the
action for its enforcement remain intact and is not res judicata.

Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish Civil
Code is largely based and whose provisions on cuasi-delito or culpa extra-contractual are similar to those
of the Spanish Civil Code, says, referring to article 1384 of the French Civil Code which corresponds to
article 1903, Spanish Civil Code:

The action can be brought directly against the person responsible (for another), without including
the author of the act. The action against the principal is accessory in the sense that it implies the
existence of a prejudicial act committed by the employee, but it is not subsidiary in the sense that it
can not be instituted till after the judgment against the author of the act or at least, that it is
subsidiary to the principal action; the action for responsibility (of the employer) is in itself a principal
action. (Laurent, Principles of French Civil Law, Spanish translation, Vol. 20, pp. 734-735.)

Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the
responsibility of the employer is principal and not subsidiary. He writes:

Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de

aquellas personas por las que se debe responder, es subsidiaria? es principal? Para contestar a
esta pregunta es necesario saber, en primer lugar, en que se funda el precepto legal. Es que
realmente se impone una responsabilidad por una falta ajena? Asi parece a primera vista; pero
semejante afirmacion seria contraria a la justicia y a la maxima universal, segun la que las faltas
son personales, y cada uno responde de aquellas que le son imputables. La responsabilidad de
que tratamos se impone con ocasion de un delito o culpa, pero no por causa de ellos, sino por
causa del causi delito, esto es, de la imprudencia o de la negligencia del padre, del tutor, del dueño
o director del establecimiento, del maestro, etc. Cuando cualquiera de las personas que enumera
el articulo citado (menores de edad, incapacitados, dependientes, aprendices) causan un daño, la
ley presume que el padre, el tutor, el maestro, etc., han cometido una falta de negligencia para
prevenir o evitar el daño. Esta falta es la que la ley castiga. No hay, pues, responsabilidad por un
hecho ajeno, sino en la apariencia; en realidad la responsabilidad se exige por un hecho propio. La
idea de que esa responsabilidad sea subsidiaria es, por lo tanto, completamente inadmisible.

Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of those
persons for who one is responsible, subsidiary or principal? In order to answer this question it is
necessary to know, in the first place, on what the legal provision is based. Is it true that there is a
responsibility for the fault of another person? It seems so at first sight; but such assertion would be
contrary to justice and to the universal maxim that all faults are personal, and that everyone is liable
for those faults that can be imputed to him. The responsibility in question is imposed on the
occasion of a crime or fault, but not because of the same, but because of the cuasi-delito, that is to
say, the imprudence or negligence of the father, guardian, proprietor or manager of the
establishment, of the teacher, etc. Whenever anyone of the persons enumerated in the article
referred to (minors, incapacitated persons, employees, apprentices) causes any damage, the law
presumes that the father, guardian, teacher, etc. have committed an act of negligence in not
preventing or avoiding the damage. It is this fault that is condemned by the law. It is, therefore, only
 apparent that there is a responsibility for the act of another; in reality the responsibility exacted is for
one's own act. The idea that such responsibility is subsidiary is, therefore, completely inadmissible.

Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Español," says in
Vol. VII, p. 743:

Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa, doctrina del
articulo 1902; mas por excepcion, se responde de la ajena respecto de aquellas personas con las
que media algun nexo o vinculo, que motiva o razona la responsabilidad. Esta responsabilidad, es
directa o es subsidiaria? En el orden penal, el Codigo de esta clase distingue entre menores e
incapacitados y los demas, declarando directa la primera (articulo 19) y subsidiaria la segunda
(articulos 20 y 21); pero en el orden civil, en el caso del articulo 1903, ha de entenderse directa, por
el tenor del articulo que impone la responsabilidad precisamente "por los actos de aquellas
personas de quienes se deba responder."

That is to say, one is not responsible for the acts of others, because one is liable only for his own
faults, this being the doctrine of article 1902; but, by exception, one is liable for the acts of those
persons with whom there is a bond or tie which gives rise to the responsibility. Is this responsibility
direct or subsidiary? In the order of the penal law, the Penal Code distinguishes between minors
and incapacitated persons on the one hand, and other persons on the other, declaring that the
responsibility for the former is direct (article 19), and for the latter, subsidiary (articles 20 and 21);
but in the scheme of the civil law, in the case of article 1903, the responsibility should be
understood as direct, according to the tenor of that articles, for precisely it imposes responsibility
"for the acts of those persons for whom one should be responsible."

Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles above
set forth: that a quasi-delict or culpa extra-contractual is a separate and distinct legal institution,
independent from the civil responsibility arising from criminal liability, and that an employer is, under article
1903 of the Civil Code, primarily and directly responsible for the negligent acts of his employee.

One of the most important of those Spanish decisions is that of October 21, 1910. In that case, Ramon
Lafuente died as the result of having been run over by a street car owned by the "compañia Electric
Madrileña de Traccion." The conductor was prosecuted in a criminal case but he was acquitted.
Thereupon, the widow filed a civil action against the street car company, paying for damages in the amount
of 15,000 pesetas. The lower court awarded damages; so the company appealed to the Supreme Tribunal,
alleging violation of articles 1902 and 1903 of the Civil Code because by final judgment the non-existence
of fault or negligence had been declared. The Supreme Court of Spain dismissed the appeal, saying:

Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el
Tribunal a quo, al condonar a la compañia Electrica Madrileña al pago del daño causado con la
muerte de Ramon La fuente Izquierdo, desconoce el valor y efectos juridicos de la sentencia
absolutoria deictada en la causa criminal que se siguio por el mismo hecho, cuando es lo cierto
que de este han conocido las dos jurisdicciones bajo diferentes as pectos, y como la de lo criminal
declrao dentro de los limites de su competencia que el hecho de que se trata no era constitutivo de
delito por no haber mediado descuido o negligencia graves, lo que no excluye, siendo este el unico
fundamento del fallo absolutorio, el concurso de la culpa o negligencia no califacadas, fuente de
obligaciones civiles segun el articulo 1902 del Codigo, y que alcanzan, segun el 1903, netre otras
perosnas, a los Directores de establecimientos o empresas por los daños causados por sus
dependientes en determinadas condiciones, es manifesto que la de lo civil, al conocer del mismo
hehco baho este ultimo aspecto y al condenar a la compañia recurrente a la indemnizacion del
 daño causado por uno de sus empleados, lejos de infringer los mencionados textos, en relacion
con el articulo 116 de la Ley de Enjuciamiento Criminal, se ha atenido estrictamente a ellos, sin
invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el fallo recaido
en la causa.

Considering that the first ground of the appeal is based on the mistaken supposition that the trial
court, in sentencing the Compañia Madrileña to the payment of the damage caused by the death of
Ramon Lafuente Izquierdo, disregards the value and juridical effects of the sentence of acquittal
rendered in the criminal case instituted on account of the same act, when it is a fact that the two
jurisdictions had taken cognizance of the same act in its different aspects, and as the criminal
jurisdiction declared within the limits of its authority that the act in question did not constitute a
felony because there was no grave carelessness or negligence, and this being the only basis of
acquittal, it does no exclude the co-existence of fault or negligence which is not qualified, and is a
source of civil obligations according to article 1902 of the Civil Code, affecting, in accordance with
article 1903, among other persons, the 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.º, que las expediciones facturadas por la compañia ferroviaria a
la consignacion del actor de las vasijas vacias que en su demanda relacionan tenian como fin el
que este las devolviera a sus remitentes con vinos y alcoholes; 2.º, que llegadas a su destino tales
mercanias no se quisieron entregar a dicho consignatario por el jefe de la estacion sin motivo
justificado y con intencion dolosa, y 3.º, que la falta de entrega de estas expediciones al tiempo de
reclamarlas el demandante le originaron daños y perjuicios en cantidad de bastante importancia
como expendedor al por mayor que era de vinos y alcoholes por las ganancias que dejo de obtener
al verse privado de servir los pedidos que se le habian hecho por los remitentes en los envases:

Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran este
recurso, porque la demanda inicial del pleito a que se contrae no contiene accion que nazca del
incumplimiento del contrato de transporte, toda vez que no se funda en el retraso de la llegada de
las mercancias ni de ningun otro vinculo contractual entre las partes contendientes, careciendo, por
tanto, de aplicacion el articulo 371 del Codigo de Comercio, en que principalmente descansa el
fallo recurrido, sino que se limita a pedir la reparaction de los daños y perjuicios producidos en el
patrimonio del actor por la injustificada y dolosa negativa del porteador a la entrega de las
mercancias a su nombre consignadas, segun lo reconoce la sentencia, y cuya responsabilidad esta
claramente sancionada en el articulo 1902 del Codigo Civil, que obliga por el siguiente a la
Compañia demandada como ligada con el causante de aquellos por relaciones de caracter
economico y de jurarquia administrativa.

Considering that the sentence, in question recognizes, in virtue of the facts which it declares, in
relation to the evidence in the case: (1) that the invoice issued by the railroad company in favor of
the plaintiff contemplated that the empty receptacles referred to in the complaint should be returned
to the consignors with wines and liquors; (2) that when the said merchandise reached their
destination, their delivery to the consignee was refused by the station agent without justification and
with fraudulent intent, and (3) that the lack of delivery of these goods when they were demanded by
the plaintiff caused him losses and damages of considerable importance, as he was a wholesale
vendor of wines and liquors and he failed to realize the profits when he was unable to fill the orders
sent to him by the consignors of the receptacles:

Considering that upon this basis there is need of upholding the four assignments of error, as the
original complaint did not contain any cause of action arising from non-fulfillment of a contract of
transportation, because the action was not based on the delay of the goods nor on any contractual
relation between the parties litigant and, therefore, article 371 of the Code of Commerce, on which
the decision appealed from is based, is not applicable; but it limits to asking for reparation for losses
and damages produced on the patrimony of the plaintiff on account of the unjustified and fraudulent
refusal of the carrier to deliver the goods consigned to the plaintiff as stated by the sentence, and
the carrier's responsibility is clearly laid down in article 1902 of the Civil Code which binds, in virtue
 of the next article, the defendant company, because the latter is connected with the person who
caused the damage by relations of economic character and by administrative hierarchy. (Emphasis
supplied.)

The above case is pertinent because it shows that the same act may come under both the Penal Code and
the Civil Code. In that case, the action of the agent was unjustified and fraudulent and therefore could have
been the subject of a criminal action. And yet, it was held to be also a proper subject of a civil action under
article 1902 of the Civil Code. It is also to be noted that it was the employer and not the employee who was
being sued.

Let us now examine the cases previously decided by this Court.

In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the trial
court awarded damages to the plaintiff, a laborer of the defendant, because the latter had negligently failed
to repair a tramway in consequence of which the rails slid off while iron was being transported, and caught
the plaintiff whose leg was broken. This Court held:

It is contended by the defendant, as its first defense to the action that the necessary conclusion
from these collated laws is that the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made primarily liable and his employer
held only subsidiarily to him. According to this theory the plaintiff should have procured the arrest of
the representative of the company accountable for not repairing the track, and on his prosecution a
suitable fine should have been imposed, payable primarily by him and secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject to
the provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:

"A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.

"SEC. 1903. The obligation imposed by the preceeding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.

"The father, and on his death or incapacity, the mother, is liable for the damages caused by
the minors who live with them.

xxx xxx xxx

"Owners or directors of an establishment or enterprise are equally liable for the damages
caused by their employees in the service of the branches in which the latter may be
employed or in the performance of their duties.

xxx xxx xxx

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

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 defendant is wasteful and productive of delay, it being
a matter of common knowledge that professional drivers of taxis and similar public conveyance usually do
not have sufficient means with which to pay damages. Why, then, should the plaintiff be required in all
cases to go through this roundabout, unnecessary, and probably useless procedure? In construing the
laws, courts have endeavored to shorten and facilitate the pathways of right and justice.

At this juncture, it should be said that the primary and direct responsibility of employers and their presumed
negligence are principles calculated to protect society. Workmen and employees should be carefully
chosen and supervised in order to avoid injury to the public. It is the masters or employers who principally
reap the profits resulting from the services of these servants and employees. It is but right that they should
guarantee the latter's careful conduct for the personnel and patrimonial safety of others. As Theilhard has
said, "they should reproach themselves, at least, some for their weakness, others for their poor selection
and all for their negligence." And according to Manresa, "It is much more equitable and just that such
responsibility should fall upon the principal or director who could have chosen a careful and prudent
employee, and not upon the injured person who could not exercise such selection and who used such
employee because of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also
base this primary responsibility of the employer on the principle of representation of the principal by the
agent. Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before third persons the employer
and employee "vienen a ser como una sola personalidad, por refundicion de la del dependiente en la de
quien le emplea y utiliza." ("become as one personality by the merging of the person of the employee in
that of him who employs and utilizes him.") All these observations acquire a peculiar force and significance
when it comes to motor accidents, and there is need of stressing and accentuating the responsibility of
owners of motor vehicles.

Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this
subject, which has given rise to the overlapping or concurrence of spheres already discussed, and for lack
of understanding of the character and efficacy of the action for culpa aquiliana, there has grown up a
common practice to seek damages only by virtue of the civil responsibility arising from a crime, forgetting
that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code. Although this
habitual method is allowed by our laws, it has nevertheless rendered practically useless and nugatory the
more expeditious and effective remedy based on culpa aquiliana or culpa extra-contractual. In the present
case, we are asked to help perpetuate this usual course. But we believe it is high time we pointed out to the
harm done by such practice and to restore the principle of responsibility for fault or negligence under
articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-delict
or culpa aquiliana to flow on its own natural channel, so that its waters may no longer be diverted into that
of a crime under the Penal Code. This will, it is believed, make for the better safeguarding of private rights
because it re-establishes an ancient and additional remedy, and for the further reason that an independent
civil action, not depending on the issues, limitations and results of a criminal prosecution, and entirely
directed by the party wronged or his counsel, is more likely to secure adequate and efficacious redress.

In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with costs
against the defendant-petitioner.

12.
Elcano vs Hill
BARREDO, J.:
Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in Civil Case
No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to dismiss of defendants,
the complaint of plaintiffs for recovery of damages from defendant Reginald Hill, a minor, married at the
time of the occurrence, and his father, the defendant Marvin Hill, with whom he was living and getting
subsistence, for the killing by Reginald of the son of the plaintiffs, named Agapito Elcano, of which, when
criminally prosecuted, the said accused was acquitted on the ground that his act was not criminal, because
of "lack of intent to kill, coupled with mistake."

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

1. The present action is not only against but a violation of section 1, Rule 107, which is now
Rule III, of the Revised Rules of Court;

2. The action is barred by a prior judgment which is now final and or in res-adjudicata;

3. The complaint had no cause of action against defendant Marvin Hill, because he was
relieved as guardian of the other defendant through emancipation by marriage.

(P. 23, Record [p. 4, Record on Appeal.])

was first denied by the trial court. It was only upon motion for reconsideration of the defendants of such
denial, reiterating the above grounds that the following order was issued:

Considering the motion for reconsideration filed by the defendants on January 14, 1965 and
after thoroughly examining the arguments therein contained, the Court finds the same to be
meritorious and well-founded.

WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by

ordering the dismissal of the above entitled case.

SO ORDERED.

Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on Appeal.)

Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our resolution the
following assignment of errors:

THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE CLAIM
OF DEFENDANTS THAT -

THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF SECTION
1, RULE 107, NOW RULE 111, OF THE REVISED RULES OF COURT, AND THAT
SECTION 3(c) OF RULE 111, RULES OF COURT IS APPLICABLE;

II

THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RES-

ADJUDICTA;

III

THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL CODE,

ARE INAPPLICABLE IN THE INSTANT CASE; and
 IV

THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT

MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER
DEFENDANT THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)

It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant- appellee Reginald Hill
was prosecuted criminally in Criminal Case No. 5102 of the Court of First Instance of Quezon City. After
due trial, he was acquitted on the ground that his act was not criminal because of "lack of intent to kill,
coupled with mistake." Parenthetically, none of the parties has favored Us with a copy of the decision of
acquittal, presumably because appellants do not dispute that such indeed was the basis stated in the
court's decision. And so, when appellants filed their complaint against appellees Reginald and his father,
Atty. Marvin Hill, on account of the death of their son, the appellees filed the motion to dismiss above-
referred to.

As We view the foregoing background of this case, the two decisive issues presented for Our resolution
are:

1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal case wherein
the action for civil liability, was not reversed?

2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty. Hill,
notwithstanding the undisputed fact that at the time of the occurrence complained of. Reginald, though a
minor, living with and getting subsistenee from his father, was already legally married?

The first issue presents no more problem than the need for a reiteration and further clarification of the dual
character, criminal and civil, of fault or negligence as a source of obligation which was firmly established in
this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court postulated, on the basis of a
scholarly dissertation by Justice Bocobo on the nature of culpa aquiliana in relation to culpa
criminal or delito and mere culpa or fault, 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.

12.
Equitable Leasing Corporation vs Lucita Suyom
DECISION

PANGANIBAN, J.:

In an action based on quasi delict, the registered owner of a motor vehicle is solidarily
liable for the injuries and damages caused by the negligence of the driver, in spite of the fact
that the vehicle may have already been the subject of an unregistered Deed of Sale in favor
of another person. Unless registered with the Land Transportation Office, the sale -- while
valid and binding between the parties -- does not affect third parties, especially the victims of
accidents involving the said transport equipment. Thus, in the present case, petitioner, which
is the registered owner, is liable for the acts of the driver employed by its former lessee who
has become the owner of that vehicle by virtue of an unregistered Deed of Sale.

Statement of the Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the May
12, 2000 Decision[1] of the Court of Appeals[2](CA) in CA-GR CV No. 55474. The decretal
portion of the Decision reads as follows:

WHEREFORE, premises considered, the instant appeal is hereby DISMISSED for lack
of merit. The assailed decision, dated May 5, 1997, of the Regional Trial Court of
Manila, Branch 14, in Civil Case No. 95-73522, is
hereby AFFIRMED with MODIFICATION that the award of attorneys fees
is DELETED.[3]

On the other hand, in Civil Case No. 95-73522, the Regional Trial Court (RTC) of Manila
(Branch 14) had earlier disposed in this wise:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the
defendant Equitable Leasing Corporation ordering said defendant to pay to the plaintiffs
the following:
A. TO MYRNA TAMAYO
1. the sum of P50,000.00 for the death of Reniel Tamayo;
2. P50,000.00 as moral damages; and
3. P56,000.00 for the damage to the store and its contents, and funeral expenses.
B. TO FELIX OLEDAN
1. the sum of P50,000.00 for the death of Felmarie Oledan;
2. P50,000.00 as moral damages; and
3. P30,000.00 for medical expenses, and funeral expenses.
C. TO MARISSA ENANO
1. P7,000.00 as actual damages
D. TO LUCITA SUYOM
1. The sum of P5,000.00 for the medical treatment of her two sons.
The sum of P120,000.00 as and for attorneys fees.[4]

The Facts

On July 17, 1994, a Fuso Road Tractor driven by Raul Tutor rammed into the house
cum store of Myrna Tamayo located at Pier 18, Vitas, Tondo, Manila. A portion of the house
was destroyed. Pinned to death under the engine of the tractor were Respondent Myrna
Tamayos son, Reniel Tamayo, and Respondent Felix Oledans daughter, Felmarie
Oledan. Injured were Respondent Oledan himself, Respondent Marissa Enano, and two sons
of Respondent Lucita Suyom.

Tutor was charged with and later convicted of reckless imprudence resulting in multiple
homicide and multiple physical injuries in Criminal Case No. 296094-SA, Metropolitan Trial
Court of Manila, Branch 12.[5]

Upon verification with the Land Transportation Office, respondents were furnished a copy
of Official Receipt No. 62204139[6] and Certificate of Registration No. 08262797,[7] showing
that the registered owner of the tractor was Equitable Leasing Corporation/leased to Edwin
Lim. On April 15, 1995, respondents filed against Raul Tutor, Ecatine Corporation (Ecatine)
and Equitable Leasing Corporation (Equitable) a Complaint [8] for damages docketed as Civil
Case No. 95-73522 in the RTC of Manila, Branch 14.
 The trial court, upon motion of plaintiffs counsel, issued an Order dropping Raul Tutor,
Ecatine and Edwin Lim from the Complaint, because they could not be located and served
with summonses.[9] On the other hand, in its Answer with Counterclaim, [10] petitioner alleged
that the vehicle had already been sold to Ecatine and that the former was no longer in
possession and control thereof at the time of the incident. It also claimed that Tutor was an
employee, not of Equitable, but of Ecatine.

After trial on the merits, the RTC rendered its Decision ordering petitioner to pay actual
and moral damages and attorneys fees to respondents. It held that since the Deed of Sale
between petitioner and Ecatine had not been registered with the Land Transportation Office
(LTO), the legal owner was still Equitable. [11] Thus, petitioner was liable to respondents. [12]

Ruling of the Court of Appeals

Sustaining the RTC, the CA held that petitioner was still to be legally deemed the
owner/operator of the tractor, even if that vehicle had been the subject of a Deed of Sale in
favor of Ecatine on December 9, 1992. The reason cited by the CA was that the Certificate of
Registration on file with the LTO still remained in petitioners name. [13] In order that a transfer
of ownership of a motor vehicle can bind third persons, it must be duly recorded in the LTO. [14]

The CA likewise upheld respondents claim for moral damages against petitioner because
the appellate court considered Tutor, the driver of the tractor, to be an agent of the registered
owner/operator.[15]

Hence, this Petition.[16]

Issues

In its Memorandum, petitioner raises the following issues for the Courts consideration:

Whether or not the Court of Appeals and the trial court gravely erred when they decided
and held that petitioner [was] liable for damages suffered by private respondents in an
action based on quasi delict for the negligent acts of a driver who [was] not the
employee of the petitioner.

II
Whether or not the Court of Appeals and the trial court gravely erred when they awarded
moral damages to private respondents despite their failure to prove that the injuries they
suffered were brought by petitioners wrongful act.[17]

This Courts Ruling

The Petition has no merit.

First Issue:
Liability for Wrongful Acts

Petitioner contends that it should not be held liable for the damages sustained by
respondents and that arose from the negligence of the driver of the Fuso Road Tractor, which
it had already sold to Ecatine at the time of the accident. Not having employed Raul Tutor, the
driver of the vehicle, it could not have controlled or supervised him. [18]

We are not persuaded. In negligence cases, the aggrieved party may sue the negligent
party under (1) Article 100 [19] of the Revised Penal Code, for civil liability ex delicto; or (2)
under Article 2176[20] of the Civil Code, for civil liability ex quasi delicto.[21]

Furthermore, under Article 103 of the Revised Penal Code, employers may be
held subsidiarily liable for felonies committed by their employees in the discharge of the
latters duties.[22] This liability attaches when the employees who are convicted of crimes
committed in the performance of their work are found to be insolvent and are thus unable to
satisfy the civil liability adjudged.[23]

On the other hand, under Article 2176 in relation to Article 2180 [24] of the Civil Code, an
action predicated on quasi delict may be instituted against the employer for an employees act
or omission. The liability for the negligent conduct of the subordinate is direct and primary, but
is subject to the defense of due diligence in the selection and supervision of the employee.
[25] The enforcement of the judgment against the employer for an action based on Article 2176

does not require the employee to be insolvent, since the liability of the former is solidary -- the
latter being statutorily considered a joint tortfeasor. [26] To sustain a claim based on quasi
delict, the following requisites must be proven: (a) damage suffered by the plaintiff, (b) fault or
negligence of the defendant, and (c) connection of cause and effect between the fault or
negligence of the defendant and the damage incurred by the plaintiff. [27]
 These two causes of action (ex delicto or ex quasi delicto) may be availed of, subject to
the caveat[28] that the offended party cannot recover damages twice for the same act or
omission or under both causes.[29] Since these two civil liabilities are distinct and independent
of each other, the failure to recover in one will not necessarily preclude recovery in the other.
[30]

In the instant case, respondents -- having failed to recover anything in the criminal case --
elected to file a separate civil action for damages, based on quasi delict under Article 2176 of
the Civil Code.[31] The evidence is clear that the deaths and the injuries suffered by
respondents and their kins were due to the fault of the driver of the Fuso tractor.

Dated June 4, 1991, the Lease Agreement [32] between petitioner and Edwin Lim
stipulated that it is the intention of the parties to enter into a FINANCE LEASE AGREEMENT.
[33] Under such scheme, ownership of the subject tractor was to be registered in the name of

petitioner, until the value of the vehicle has been fully paid by Edwin Lim. [34] Further, in the
Lease Schedule,[35] the monthly rental for the tractor was stipulated, and the term of the Lease
was scheduled to expire on December 4, 1992. After a few months, Lim completed the
payments to cover the full price of the tractor. [36] Thus, on December 9, 1992, a Deed of
Sale[37] over the tractor was executed by petitioner in favor of Ecatine represented by Edwin
Lim. However, the Deed was not registered with the LTO.

We hold petitioner liable for the deaths and the injuries complained of, because it was the
registered owner of the tractor at the time of the accident on July 17, 1994. [38] The Court has
consistently ruled that, regardless of sales made of a motor vehicle, the registered owner is
the lawful operator insofar as the public and third persons are concerned; consequently, it is
directly and primarily responsible for the consequences of its operation. [39] In contemplation of
law, the owner/operator of record is the employer of the driver, the actual operator and
employer being considered as merely its agent.[40] The same principle applies even if the
registered owner of any vehicle does not use it for public service. [41]

Since Equitable remained the registered owner of the tractor, it could not escape primary
liability for the deaths and the injuries arising from the negligence of the driver. [42]

The finance-lease agreement between Equitable on the one hand and Lim or Ecatine on
the other has already been superseded by the sale. In any event, it does not bind third
persons. The rationale for this rule has been aptly explained in Erezo v. Jepte,[43] which we
quote hereunder:

x x x. The main aim of motor vehicle registration is to identify the owner so that if any
accident happens, or that any damage or injury is caused by the vehicle on the public
highways, responsibility therefor can be fixed on a definite individual, the registered
owner. Instances are numerous where vehicles running on public highways caused
accidents or injuries to pedestrians or other vehicles without positive identification of the
owner or drivers, or with very scant means of identification. It is to forestall these
circumstances, so inconvenient or prejudicial to the public, that the motor vehicle
registration is primarily ordained, in the interest of the determination of persons
responsible for damages or injuries caused on public highways.[44]

Further, petitioners insistence on FGU Insurance Corp. v. Court of Appeals is misplaced.

[45] First, in FGU Insurance, the registered vehicle owner, which was engaged in a rent-a-car

business, rented out the car. In this case, the registered owner of the truck, which is engaged
in the business of financing motor vehicle acquisitions, has actually sold the truck to Ecatine,
which in turn employed Tutor.Second, in FGU Insurance, the registered owner of the vehicle
was not held responsible for the negligent acts of the person who rented one of its cars,
because Article 2180 of the Civil Code was not applicable. We held that no vinculum juris as
employer and employee existed between the owner and the driver. [46] In this case, the
registered owner of the tractor is considered under the law to be the employer of the driver,
while the actual operator is deemed to be its agent.[47] Thus, Equitable, the registered owner
of the tractor, is -- for purposes of the law on quasi delict -- the employer of Raul Tutor, the
driver of the tractor. Ecatine, Tutors actual employer, is deemed as merely an agent of
Equitable.[48]

True, the LTO Certificate of Registration, dated 5/31/91, qualifies the name of the
registered owner as EQUITABLE LEASING CORPORATION/Leased to Edwin Lim. But the
lease agreement between Equitable and Lim has been overtaken by the Deed of Sale on
December 9, 1992, between petitioner and Ecatine. While this Deed does not affect
respondents in this quasi delict suit, it definitely binds petitioner because, unlike them, it is a
party to it.

We must stress that the failure of Equitable and/or Ecatine to register the sale with the
LTO should not prejudice respondents, who have the legal right to rely on the legal principle
that the registered vehicle owner is liable for the damages caused by the negligence of the
driver.Petitioner cannot hide behind its allegation that Tutor was the employee of Ecatine. This
will effectively prevent respondents from recovering their losses on the basis of the inaction or
fault of petitioner in failing to register the sale. The non-registration is the fault of petitioner,
which should thus face the legal consequences thereof.

Second Issue:
Moral Damages
 Petitioner further claims that it is not liable for moral damages, because respondents
failed to establish or show the causal connection or relation between the factual basis of their
claim and their wrongful act or omission, if any. [49]

Moral damages are not punitive in nature, but are designed to compensate [50] and
alleviate in some way the physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury
unjustly caused a person.[51] Although incapable of pecuniary computation, moral damages
must nevertheless be somehow proportional to and in approximation of the suffering inflicted.
[52] This is so because moral damages are in the category of an award designed to

compensate the claimant for actual injury suffered, not to impose a penalty on the wrongdoer.
[53]

Viewed as an action for quasi delict, the present case falls squarely within the purview of
Article 2219 (2),[54] which provides for the payment of moral damages in cases of quasi delict.
[55] Having established the liability of petitioner as the registered owner of the vehicle,

[56]respondents have satisfactorily shown the existence of the factual basis for the

award[57] and its causal connection to the acts of Raul Tutor, who is deemed as petitioners
employee.[58] Indeed, the damages and injuries suffered by respondents were the proximate
result of petitioners tortious act or omission.[59]

Further, no proof of pecuniary loss is necessary in order that moral damages may be
awarded, the amount of indemnity being left to the discretion of the court. [60] The evidence
gives no ground for doubt that such discretion was properly and judiciously exercised by the
trial court.[61] The award is in fact consistent with the rule that moral damages are not intended
to enrich the injured party, but to alleviate the moral suffering undergone by that party by
reason of the defendants culpable action.[62]

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs
against petitioner.

SO ORDERED.

13.
Lim vs Ping
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?
chanroble svirtualawlibrary

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 Lim s (Lim) Petition for Review 1 assails the October 20, 2005 Resolution 2 of the Second Division in CA-G.R. CV No.
85138, which ruled on the above issue in the affirmative: ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Due to the filing of the said civil complaint (Civil Case No. 5112396), Charlie Co filed the instant motion to dismiss [Lily
Lim s] appeal, alleging that in filing said civil case, Lily Lim violated the rule against forum shopping as the elements
of litis pendentia are present. ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

This Court agrees.3 ςrνll

xxx

IN VIEW OF THE FOREGOING, the appeal is DISMISSED.

SO ORDERED.4 ςrνll

chanroble s virtual law library

On the other hand, Charlie Co s (Co) Petition for Review 5 assails the April 10, 2007 Decision 6 of the Seventeenth
Division in CA-G.R. SP No. 93395 for ruling on the same issue in the negative: ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

We find no grave abuse of discretion committed by respondent judge. The elements of litis pendentia and forum-
shopping were not met in this case.7 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

xxx

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WHEREFORE, in view of the foregoing, the instant petition is DENIED. This case is REMANDED to the
court of origin for further proceedings. ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

SO ORDERED.8 ςrνll

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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 P3.15 million or P63.00 per bag.10 On February 15,
1999, Co sold these withdrawal authorities to Lim allegedly at the price of P64.00 per bag or a total of P3.2 million.11 ςrνll

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: ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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 P2,380,800.00 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 P2,300,800.00 [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 P2,380,800.00. ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Contrary to Law.12 ςrνll

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The private complainant, Lily Lim, participated in the criminal proceedings to prove her damages. She prayed for Co to
return her money amounting to P2,380,800.00, foregone profits, and legal interest, and for an award of moral and
exemplary damages, as well as attorney s fees.13 ςrνll

On November 19, 2003, the RTC of Pasig City, Branch 154, rendered its Order 14 acquitting Co of the estafa charge for
insufficiency of evidence. The criminal court s Order reads: ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

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 prosecution s evidence. ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

xxx

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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 ςrνll

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 o clock [sic] in the morning. ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

SO ORDERED.16 ςrνll

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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: ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

WHEREFORE, premises considered, judgment is hereby rendered holding the accused CHARLIE CO not civilly liable to
the private complainant Lily Lim. ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

SO ORDERED

Lim sought a reconsideration of the above Order, arguing that she has presented preponderant evidence
that Co committed estafa against her.19 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

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: ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

ALLEGATIONS COMMON
TO ALL CAUSES OF ACTION ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

xxx

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23. Charlie Co obligated himself to deliver to Lily Lim 50,000 bags of cement of P64.00 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 P3.2 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
Cement s unjustified refusal to honor the Withdrawal Authorities. x x x ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

xxx

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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 Co s 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 Corporation s unjust refusal to honor the Withdrawal Authorities they issued also caused
damage to Lily Lim. Further, FR Cement Corporation s 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 Borja s 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
ATTORNEY S FEES AND COSTS OF SUIT22 ςrνll

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 ςrνll

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 case24 and Lim s 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 Co s 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 Co s motion and dismissed Lim s 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 Lim s 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 Lim s
appeal for forum shopping.28 The CA denied29Lim s motion for reconsideration.30 ςrνll

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 Co s Motion to Dismiss in an Order 31 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 RTC s Order in Civil Case No. 05-112396 for having been issued with grave abuse of
discretion.33 ςrνll

Ruling of the Court of Appeals Seventeenth Division in CA-G.R. SP No. 93395

The CA Seventeenth Division denied Co s 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 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

The CA denied35 Co s motion for reconsideration.36 ςrνll

Co filed the instant Petition for Review, which was docketed as G.R. No. 179160. ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Upon Co s motion,37 the Court resolved to consolidate the two petitions.38 ςrν

Kou Co Ping s 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 Co
s 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 ςrνll

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 ςrνll

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 ςrνll

In G.R. No. 175256, Co prays for the affirmation of the CA Decision in CA-G.R. CV No. 85138 (which dismissed Lim s
appeal from the trial court s decision in Criminal Case No. 116377).42 ςrνll

Lily Lim s 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 ςrνll

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 Lim s 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, Lim s cause of action in Civil Case No. 05-112396 is based on contract. Co violated Lim
s 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 ςrνll

In G.R. No. 179160, Lim prays for the denial of Co s 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 ςrνll

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 offender51 -ï€ (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 ςrνll

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: ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

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 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

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 ςrνll

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 ςrνll

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 P64.00 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 P64.00 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 ςrνll

WHEREFORE, premises considered, Lily Lim s 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
Lim s 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 Co s 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.