CASUPANAN VS LAROYA CASE DIGEST G.R. No. 145391 August 26, 2002 action under Rule 65.
action under Rule 65. Clearly, the Capas RTC's order dismissing the petition for certiorari on the
Topic: Criminal Procedure: Rule 111, Rules of Court
FACTS: As a result of a vehicular accident between two vehicles, one driven by Mario Llavore
Laroya and the other owned by Roberto Capitulo and driven by Avelino Casupanan, two cases
were filed before the MCTC of Capas, Tarlac. Laroya filed a criminal case against Casupanan
for reckless imprudence resulting in damage to property. This case was on its preliminary
investigation stage when Casupanan and Capitulo filed a civil case against Laroya for quasi-
delict. However, upon motion of Laroya on the ground of forum-shopping, the MCTC dismissed
the civil case. On Motion for Reconsideration, Casupanan and Capituloinsisted that the civil case
is a separate civil action which can proceedindependently of the criminal case. Casupanan
and Capitulo then filed a petition for certiorari before the Regional Trial Court (RTC) of Capas,
Tarlac. But the RTC ruled that the order of dismissal issued by the MCTC is a final order which
disposes of the case and therefore, the proper remedy should have been an appeal. Hence,
Casupanan and Capitulo filed this petition.
Casupanan and Capitulo’s contention: that if the accused in a criminal case has a counterclaim
against the private complainant, he may file the counterclaim in a separate civil action at the
proper time. They contend that an action on quasi-delict is different from an action resulting
from the crime of reckless imprudence, and an accused in a criminal case can be an aggrieved
party in a civil case arising from the same incident. They maintain that under Articles 31 and
2176 of the Civil Code, the civil case can proceed independently of the criminal action. Finally,
they point out that Casupanan was not the only one who filed the independent civil action based
on quasi-delict but also Capitulo, the owner-operator of the vehicle, who was not a party in the
criminal case.
Laroya’s contention: that the petition is fatally defective as it does not state the real antecedents.
Laroya further alleges that Casupanan and Capitulo forfeited their right to question the order of
dismissal when they failed to avail of the proper remedy of appeal. Laroya argues that there is
no question of law to be resolved as the order of dismissal is already final and a petition for
certiorari is not a substitute for a lapsed appeal.
ISSUE/HELD: WON an accused in a pending criminal case for reckless imprudence can
validly file, simultaneously and independently, a separate civil action for quasi-delict against the
private complainant in the criminal case. AFFIRMATIVE
RATIO DICIDENDI:
The Court held that the MCTC dismissed the civil action for quasi-delict on the ground of forum-
shopping under Supreme Court Administrative Circular No. 04-94. The MCTC did not state in
its order of dismissal that the dismissal was with prejudice. Under the Administrative Circular,
the order of dismissal is without prejudice to refiling the complaint, unless the order of dismissal
expressly states that it is with prejudice. Thus, the MCTC's dismissal, being silent on the matter,
is a dismissal without prejudice. Section 1 of Rule 41 provides that an order dismissing an action
without prejudice is not appealable. The remedy of the aggrieved party is to file a special civil
ground that the proper remedy is an ordinary appeal, is erroneous.
Laroya filed the criminal case for reckless imprudence resulting in damage to property based on
the Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based
on Article 2176 of the Civil Code. Although these two actions arose from the same act or
omission, they have different causes of action. The criminal case is based on culpa criminal
punishable under the Revised Penal Code while the civil case is based on culpa aquiliana
actionable under Articles 2176 and 2177 of the Civil Code. And par 6, sec 1 of Rule 111.
Since the present Rules require the accused in a criminal action to file his counterclaim in a
separate civil action, there can be no forum-shopping if the accused files such separate civil
action.
Under the present Rule 111, the offended party is still given the option to file a separate civil
action to recover civil liability ex-delicto by reserving such right in the criminal action before
the prosecution presents its evidence. Also, the offended party is deemed to make such
reservation if he files a separate civil action before filing the criminal action. If the civil action
to recover civil liability ex-delicto is filed separately but its trial has not yet commenced, the
civil action may be consolidated with the criminal action. The consolidation under this Rule does
not apply to separate civil actions arising from the same act or omission filed under Articles 32,
33, 34 and 2176 of the Civil Code.
Section 2, Rule 111 of the present Rules did not change the rule that the separate civil action,
filed to recover damages ex-delicto, is suspended upon the filing of the criminal action. Section
2 of the present Rule 111 also prohibits the filing, after commencement of the criminal action,
of a separate civil action to recover damages ex-delicto.
Section 3 of the present Rule 111, like its counterpart in the amended 1985 Rules,
expressly allows the "offended party" to bring an independent civil action under Articles 32, 33,
34 and 2176 of the Civil Code. As stated in Section 3 of the present Rule 111, this civil action
shall proceed independently of the criminal action and shall require only a preponderance of
evidence. In no case, however, may the "offended party recover damages twice for the same act
or omission charged in the criminal action."
There is no question that the offended party in the criminal action can file an independent civil
action for quasi-delict against the accused. Section 3 of the present Rule 111 expressly states that
the "offended party" may bring such an action but the "offended party" may not recover damages
twice for the same act or omission charged in the criminal action. Clearly, Section 3 of Rule 111
refers to the offended party in the criminal action, not to the accused.
Thus, the offended party can file two separate suits for the same act or omission. The first a
criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and
the other a civil case for quasi-delict — without violating the rule on non-forum shopping. The
two cases can proceed simultaneously and independently of each other. The commencement or
prosecution of the criminal action will not suspend the civil action for quasi-delict. The only
limitation is that the offended party cannot recover damages twice for the same act or omission
of the defendant. In most cases, the offended party will have no reason to file a second civil
action since he cannot recover damages twice for the same act or omission of the accused. In
some instances, the accused may be insolvent, necessitating the filing of another case against his
employer or guardians.
Similarly, the accused can file a civil action for quasi-delict for the same act or omission he is
accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present
Rule 111 which states that the counterclaim of the accused "may be litigated in a separate civil
action." This is only fair for two reasons. First, the accused is prohibited from setting up any
counterclaim in the civil aspect that is deemed instituted in the criminal case. The accused is
therefore forced to litigate separately his counterclaim against the offended party. If the accused
does not file a separate civil action for quasi-delict, the prescriptive period may set in since the
period continues to run until the civil action for quasi-delict is filed.
Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil
Code, in the same way that the offended party can avail of this remedy which is independent of
the criminal action. To disallow the accused from filing a separate civil action for quasi-delict,
while refusing to recognize his counterclaim in the criminal case, is to deny him due process of
law, access to the courts, and equal protection of the law.Thus, the civil action based on quasi-
delict filed separately by Casupanan and Capitulo is proper.
Posted by zZy at 9:17 PM
Article 20. Every person who, contrary to law, wilfully or negligently causes damage
to another, shall indemnify the latter for the same.
Article 1171. Responsibility arising from fraud is demandable in all obligations. Any
waiver of an action for future fraud is void. (1102a)
Article 1173. The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. When negligence shows
bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the
performance, that which is expected of a good father of a family shall be required.
(1104a)
Article 2201. In contracts and quasi-contracts, the damages for which the obligor who
acted in good faith is liable shall be those that are the natural and probable
consequences of the breach of the obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible
for all damages which may be reasonably attributed to the non-performance of the
obligation. (1107a)
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12219 March 15, 1918
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank
Smith, jr., the sum of P31,000, as damages alleged to have been caused by an
automobile driven by the defendant. From a judgment of the Court of First Instance of
the Province of La Union absolving the defendant from liability the plaintiff has
appealed.
The occurrence which gave rise to the institution of this action took place on
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears
that upon the occasion in question the plaintiff was riding on his pony over said bridge.
Before he had gotten half way across, the defendant approached from the opposite
direction in an automobile, going at the rate of about ten or twelve miles per hour. As
the defendant neared the bridge he saw a horseman on it and blew his horn to give
warning of his approach. He continued his course and after he had taken the bridge
he gave two more successive blasts, as it appeared to him that the man on horseback
before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals.
However, being perturbed by the novelty of the apparition or the rapidity of the
approach, he pulled the pony closely up against the railing on the right side of the
bridge instead of going to the left. He says that the reason he did this was that he
thought he did not have sufficient time to get over to the other side. The bridge is
shown to have a length of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his left, that being the proper
side of the road for the machine. In so doing the defendant assumed that the
horseman would move to the other side. The pony had not as yet exhibited fright, and
the rider had made no sign for the automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to the right while yet some distance
away or slowing down, continued to approach directly toward the horse without
diminution of speed. When he had gotten quite near, there being then no possibility of
the horse getting across to the other side, the defendant quickly turned his car
sufficiently to the right to escape hitting the horse alongside of the railing where it as
then standing; but in so doing the automobile passed in such close proximity to the
animal that it became frightened and turned its body across the bridge with its head
toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange
of the car and the limb was broken. The horse fell and its rider was thrown off with
some violence. From the evidence adduced in the case we believe that when the
accident occurred the free space where the pony stood between the automobile and
the railing of the bridge was probably less than one and one half meters. As a result of
its injuries the horse died. The plaintiff received contusions which caused temporary
unconsciousness and required medical attention for several days.
The question presented for decision is whether or not the defendant in maneuvering
his car in the manner above described was guilty of negligence such as gives rise to a
civil obligation to repair the damage done; and we are of the opinion that he is so
liable. As the defendant started across the bridge, he had the right to assume that the
horse and the rider would pass over to the proper side; but as he moved toward the
center of the bridge it was demonstrated to his eyes that this would not be done; and
he must in a moment have perceived that it was too late for the horse to cross with
safety in front of the moving vehicle. In the nature of things this change of situation
occurred while the automobile was yet some distance away; and from this moment it
was not longer within the power of the plaintiff to escape being run down by going to a
place of greater safety. The control of the situation had then passed entirely to the
defendant; and it was his duty either to bring his car to an immediate stop or, seeing
that there were no other persons on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid the danger of collision. Instead of doing
this, the defendant ran straight on until he was almost upon the horse. He was, we
think, deceived into doing this by the fact that the horse had not yet exhibited fright.
But in view of the known nature of horses, there was an appreciable risk that, if the
animal in question was unacquainted with automobiles, he might get exited and jump
under the conditions which here confronted him. When the defendant exposed the
horse and rider to this danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case may be
stated as follows: Did the defendant in doing the alleged negligent act use that person
would have used in the same situation? If not, then he is guilty of negligence. The law
here in effect adopts the standard supposed to be supplied by the imaginary conduct
of the discreet paterfamilias of the Roman law. The existence of negligence in a given
case is not determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and prudence and determines liability by
that.
The question as to what would constitute the conduct of a prudent man in a given
situation must of course be always determined in the light of human experience and in
view of the facts involved in the particular case. Abstract speculations cannot here be
of much value but this much can be profitably said: Reasonable men govern their
conduct by the circumstances which are before them or known to them. They are not,
and are not supposed to be, omniscient of the future. Hence they can be expected to
take care only when there is something before them to suggest or warn of danger.
Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard
against that harm. Reasonable foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary before negligence can be held
to exist. Stated in these terms, the proper criterion for determining the existence of
negligence in a given case is this: Conduct is said to be negligent when a prudent man
in the position of the tortfeasor would have foreseen that an effect harmful to another
was sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we think that
negligence is clearly established. A prudent man, placed in the position of the
defendant, would in our opinion, have recognized that the course which he was
pursuing was fraught with risk, and would therefore have foreseen harm to the horse
and the rider as reasonable consequence of that course. Under these circumstances
the law imposed on the defendant the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty
of antecedent negligence in planting himself on the wrong side of the road. But as we
have already stated, the defendant was also negligent; and in such case the problem
always is to discover which agent is immediately and directly responsible. It will be
noted that the negligent acts of the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances the law is that the person who has
the last fair chance to avoid the impending harm and fails to do so is chargeable with
the consequences, without reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359)
should perhaps be mentioned in this connection. This Court there held that while
contributory negligence on the part of the person injured did not constitute a bar to
recovery, it could be received in evidence to reduce the damages which would
otherwise have been assessed wholly against the other party. The defendant
company had there employed the plaintiff, as a laborer, to assist in transporting iron
rails from a barge in Manila harbor to the company's yards located not far away. The
rails were conveyed upon cars which were hauled along a narrow track. At certain
spot near the water's edge the track gave way by reason of the combined effect of the
weight of the car and the insecurity of the road bed. The car was in consequence
upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in
evidence that the accident was due to the effects of the typhoon which had dislodged
one of the supports of the track. The court found that the defendant company was
negligent in having failed to repair the bed of the track and also that the plaintiff was,
at the moment of the accident, guilty of contributory negligence in walking at the side
of the car instead of being in front or behind. It was held that while the defendant was
liable to the plaintiff by reason of its negligence in having failed to keep the track in
proper repair nevertheless the amount of the damages should be reduced on account
of the contributory negligence in the plaintiff. As will be seen the defendant's
negligence in that case consisted in an omission only. The liability of the company
arose from its responsibility for the dangerous condition of its track. In a case like the
one now before us, where the defendant was actually present and operating the
automobile which caused the damage, we do not feel constrained to attempt to weigh
the negligence of the respective parties in order to apportion the damage according to
the degree of their relative fault. It is enough to say that the negligence of the
defendant was in this case the immediate and determining cause of the accident and
that the antecedent negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in
the defendant's answer, to the effect that the subject matter of the action had been
previously adjudicated in the court of a justice of the peace. In this connection it
appears that soon after the accident in question occurred, the plaintiff caused criminal
proceedings to be instituted before a justice of the peace charging the defendant with
the infliction of serious injuries (lesiones graves). At the preliminary investigation the
defendant was discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a criminal
prosecution for the offense mentioned would be res adjudicata upon the question of
his civil liability arising from negligence -- a point upon which it is unnecessary to
express an opinion -- the action of the justice of the peace in dismissing the criminal
proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela
and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be
reversed, and judgment is her rendered that the plaintiff recover of the defendant the
sum of two hundred pesos (P200), with costs of other instances. The sum here
awarded is estimated to include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest
on the whole to the date of this recovery. The other damages claimed by the plaintiff
are remote or otherwise of such character as not to be recoverable. So ordered.
Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to concur with the judgment in this
case. I do so because of my understanding of the "last clear chance" rule of the law of
negligence as particularly applied to automobile accidents. This rule cannot be
invoked where the negligence of the plaintiff is concurrent with that of the defendant.
Again, if a traveler when he reaches the point of collision is in a situation to extricate
himself and avoid injury, his negligence at that point will prevent a recovery. But
Justice Street finds as a fact that the negligent act of the interval of time, and that at
the moment the plaintiff had no opportunity to avoid the accident. Consequently, the
"last clear chance" rule is applicable. In other words, when a traveler has reached a
point where he cannot extricate himself and vigilance on his part will not avert the
injury, his negligence in reaching that position becomes the condition and not the
proximate cause of the injury and will not preclude a recovery. (Note especially Aiken
vs. Metcalf [1917], 102 Atl., 330.)
PICART vs. SMITH, JR.
G.R. No. L-12219
March 15, 1918
STREET, J.:
FACTS: On the Carlatan Bridge in La Union. Picart was riding on his pony over said
bridge. Before he had gotten half way across, Smith approached from the opposite
direction in an automobile. As the defendant neared the bridge he saw a horseman on
it and blew his horn to give warning of his approach. He continued his course and after
he had taken the bridge he gave two more successive blasts, as it appeared to him that
the man on horseback before him was not observing the rule of the road.
Picart saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled
the pony closely up against the railing on the right side of the bridge instead of going
to the left. He says that the reason he did this was that he thought he did not have
sufficient time to get over to the other side. As the automobile approached, Smith
guided it toward his left, that being the proper side of the road for the machine. In so
doing the defendant assumed that the horseman would move to the other side. Seeing
that the pony was apparently quiet, the defendant, instead of veering to the right while
yet some distance away or slowing down, continued to approach directly toward the
horse without diminution of speed. When he had gotten quite near, there being then
no possibility of the horse getting across to the other side, the defendant quickly
turned his car sufficiently to the right to escape hitting the horse; but in so doing the
automobile passed in such close proximity to the animal that it became frightened and
turned its body across the bridge, got hit by the car and the limb was broken. The
horse fell and its rider was thrown off with some violenceAs a result of its injuries the
horse died. The plaintiff received contusions which caused temporary unconsciousness
and required medical attention for several days.
From a judgment of the CFI of La Union absolving Smith from liability Picart has
appealed.
ISSUE: WON Smith was guilty of negligence such as gives rise to a civil obligation to
repair the damage done
HELD: the judgment of the lower court must be reversed, and judgment is here
rendered that the Picart recover of Smith damages
YES
The test by which to determine the existence of negligence in a particular case may be
stated as follows: Did the defendant in doing the alleged negligent act use that person
would have used in the same situation? If not, then he is guilty of negligence. The
existence of negligence in a given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence
and determines liability by that. The question as to what would constitute the conduct
of a prudent man in a given situation must of course be always determined in the light
of human experience and in view of the facts involved in the particular case.
Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard
against that harm. Reasonable foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for determining the existence of
negligence in a given case is this: Conduct is said to be negligent when a prudent man
in the position of the tortfeasor would have foreseen that an effect harmful to another
was sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we think that
negligence is clearly established. A prudent man, placed in the position of the
defendant, would in our opinion, have recognized that the course which he was
pursuing was fraught with risk, and would therefore have foreseen harm to the horse
and the rider as reasonable consequence of that course. Under these circumstances the
law imposed on the Smith the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was
guilty of antecedent negligence in planting himself on the wrong side of the road. But
as we have already stated, Smith was also negligent; and in such case the problem
always is to discover which agent is immediately and directly responsible. It will be
noted that the negligent acts of the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the plaintiff by an appreciable
interval. Under these circumstances the law is that the person who has the last fair
chance to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and
ELISA PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R.
AGUILAR, respondents.
DAVIDE, JR., J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners
seek the reversal of the 17 June 1996 decision 1 of the Court of Appeals in C.A. G.R.
No. CV 37937 and the resolution 2 denying their motion for reconsideration. The
assailed decision set aside the 15 January 1992 judgment of the Regional Trial Court
(RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay
damages and attorney's fees to private respondents Conrado and Criselda
(CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store,
Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's
branch manager, operations manager, and supervisor, respectively. Private
respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of
Syvel's Department Store, Makati City. CRISELDA was signing her credit card slip at
the payment and verification counter when she felt a sudden gust of wind and heard a
loud thud. She looked behind her. She then beheld her daughter ZHIENETH on the
floor, her young body pinned by the bulk of the store's gift-wrapping counter/structure.
ZHIENETH was crying and screaming for help. Although shocked, CRISELDA was
quick to ask the assistance of the people around in lifting the counter and retrieving
ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated
on. The next day ZHIENETH lost her speech and thereafter communicated with
CRISELDA by writing on a magic slate. The injuries she sustained took their toil on
her young body. She died fourteen (14) days after the accident or on 22 May 1983, on
the hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained. The provisional
medical certificate 5 issued by ZHIENETH's attending doctor described the extent of
her injuries:
Diagnoses:
1. Shock, severe, sec. to
intra-abdominal injuries
due to blunt injury
 2. Hemorrhage, massive, petitioners' witnesses who testified that ZHIENETH clung to the counter, afterwhich
intraperitoneal sec. to the structure and the girl fell with the structure falling on top of her, pinning her
laceration, (L) lobe liver stomach. In contrast, none of private respondents' witnesses testified on how the
counter fell. The trial court also held that CRISELDA's negligence contributed to
ZHIENETH's accident.
3. Rupture, stomach,
anterior & posterior walls
In absolving petitioners from any liability, the trial court reasoned that the counter was
situated at the end or corner of the 2nd floor as a precautionary measure hence, it
4. Complete transection,
could not be considered as an attractive nuisance. 8 The counter was higher than
4th position, duodenum
ZHIENETH. It has been in existence for fifteen years. Its structure was safe and well-
balanced. ZHIENETH, therefore, had no business climbing on and clinging to it.
5. Hematoma, extensive,
retroperitoneal
Private respondents appealed the decision, attributing as errors of the trial court its
findings that: (1) the proximate cause of the fall of the counter was ZHIENETH's
6. Contusion, lungs, misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners
severe were not negligent in the maintenance of the counter; and (4) petitioners were not
liable for the death of ZHIENETH.
CRITICAL
Further, private respondents asserted that ZHIENETH should be entitled to the
conclusive presumption that a child below nine (9) years is incapable of contributory
After the burial of their daughter, private respondents demanded upon petitioners the negligence. And even if ZHIENETH, at six (6) years old, was already capable of
reimbursement of the hospitalization, medical bills and wake and funeral contributory negligence, still it was physically impossible for her to have propped
expenses 6 which they had incurred. Petitioners refused to pay. Consequently, private
herself on the counter. She had a small frame (four feet high and seventy pounds) and
respondents filed a complaint for damages, docketed as Civil Case No. 7119 wherein the counter was much higher and heavier than she was. Also, the testimony of one of
they sought the payment of P157,522.86 for actual damages, P300,000 for moral the store's former employees, Gerardo Gonzales, who accompanied ZHIENETH when
damages, P20,000 for attorney's fees and an unspecified amount for loss of income
she was brought to the emergency room of the Makati Medical Center belied
and exemplary damages. petitioners' theory that ZHIENETH climbed the counter. Gonzales claimed that when
ZHIENETH was asked by the doctor what she did, ZHIENETH replied, "[N]othing, I did
In their answer with counterclaim, petitioners denied any liability for the injuries and not come near the counter and the counter just fell on me." 9 Accordingly, Gonzales'
consequent death of ZHIENETH. They claimed that CRISELDA was negligent in testimony on ZHIENETH's spontaneous declaration should not only be considered as
exercising care and diligence over her daughter by allowing her to freely roam around part of res gestaebut also accorded credit.
in a store filled with glassware and appliances. ZHIENETH too, was guilty of
contributory negligence since she climbed the counter, triggering its eventual collapse Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her
on her. Petitioners also emphasized that the counter was made of sturdy wood with a to have let go of ZHIENETH at the precise moment that she was signing the credit
strong support; it never fell nor collapsed for the past fifteen years since its card slip.
construction.

Finally, private respondents vigorously maintained that the proximate cause of

Additionally, petitioner Jarco Marketing Corporation maintained that it observed the ZHIENETH's death, was petitioners' negligence in failing to institute measures to have
diligence of a good father of a family in the selection, supervision and control of its the counter permanently nailed.
employees. The other petitioners likewise raised due care and diligence in the
performance of their duties and countered that the complaint was malicious for which
they suffered besmirched reputation and mental anguish. They sought the dismissal of On the other hand, petitioners argued that private respondents raised purely factual
the complaint and an award of moral and exemplary damages and attorney's fees in issues which could no longer be disturbed. They explained that ZHIENETH's death
their favor. while unfortunate and tragic, was an accident for which neither CRISELDA nor even
ZHIENETH could entirely be held faultless and blameless. Further, petitioners
adverted to the trial court's rejection of Gonzales' testimony as unworthy of credence.
In its decision 7 the trial court dismissed the complaint and counterclaim after finding
that the preponderance of the evidence favored petitioners. It ruled that the proximate
cause of the fall of the counter on ZHIENETH was her act of clinging to it. It believed
As to private respondent's claim that the counter should have been nailed to the
ground, petitioners justified that it was not necessary. The counter had been in
existence for several years without any prior accident and was deliberately placed at a
corner to avoid such accidents. Truth to tell, they acted without fault or negligence for
they had exercised due diligence on the matter. In fact, the criminal case 10 for
homicide through simple negligence filed by private respondents against the individual
petitioners was dismissed; a verdict of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and reversed
the appealed judgment. It found that petitioners were negligent in maintaining a
structurally dangerous counter. The counter was shaped like an inverted "L" 11 with a
top wider than the base. It was top heavy and the weight of the upper portion was
neither evenly distributed nor supported by its narrow base. Thus, the counter was
defective, unstable and dangerous; a downward pressure on the overhanging portion
or a push from the front could cause the counter to fall. Two former employees of
petitioners had already previously brought to the attention of the management the
danger the counter could cause. But the latter ignored their concern. The Court of
Appeals faulted the petitioners for this omission, and concluded that the incident that
befell ZHIENETH could have been avoided had petitioners repaired the defective
counter. It was inconsequential that the counter had been in use for some time without
a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at
the time of the incident, was absolutely incapable of negligence or other tort. It
reasoned that since a child under nine (9) years could not be held liable even for an
intentional wrong, then the six-year old ZHIENETH could not be made to account for a
mere mischief or reckless act. It also absolved CRISELDA of any negligence, finding
nothing wrong or out of the ordinary in momentarily allowing ZHIENETH to walk while
she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It
found them biased and prejudiced. It instead gave credit to the testimony of
disinterested witness Gonzales. The Court of Appeals then awarded P99,420.86 as
actual damages, the amount representing the hospitalization expenses incurred by
private respondents as evidenced by the hospital's statement of account. 12 It denied
an award for funeral expenses for lack of proof to substantiate the same. Instead, a
compensatory damage of P50,000 was awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, 13 thus:
WHEREFORE, premises considered, the judgment of the lower
court is SET ASIDE and another one is entered against
[petitioners], ordering them to pay jointly and severally unto
[private respondents] the following:
1. P50,000.00 by way of
compensatory damages
for the death of Zhieneth
Aguilar, with legal
interest (6% p.a.) from
27 April 1984;
2. P99,420.86 as
reimbursement for
hospitalization expenses
incurred; with legal
interest (6% p.a.) from
27 April 1984;
3. P100,000.00 as moral
and exemplary damages;
4. P20,000.00 in the
concept of attorney's
fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the same was denied
in the Court of Appeals' resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals' decision and the
reinstatement of the judgment of the trial court. Petitioners primarily argue that the
Court of Appeals erred in disregarding the factual findings and conclusions of the trial
court. They stress that since the action was based on tort, any finding of negligence
on the part of the private respondents would necessarily negate their claim for
damages, where said negligence was the proximate cause of the injury sustained. The
injury in the instant case was the death of ZHIENETH. The proximate cause was
ZHIENETH's act of clinging to the counter. This act in turn caused the counter to fall
on her. This and CRISELDA's contributory negligence, through her failure to provide
the proper care and attention to her child while inside the store, nullified private
respondents' claim for damages. It is also for these reasons that parents are made
accountable for the damage or injury inflicted on others by their minor children. Under
these circumstances, petitioners could not be held responsible for the accident that
befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated from
Syvel's at the time he testified; hence, his testimony might have been tarnished by ill-
feelings against them.
For their part, private respondents principally reiterated their arguments that neither
ZHIENETH nor CRISELDA was negligent at any time while inside the store; the
findings and conclusions of the Court of Appeals are substantiated by the evidence on
record; the testimony of Gonzales, who heard ZHIENETH comment on the incident
while she was in the hospital's emergency room should receive credence; and finally,
ZHIENETH's part of the res gestaedeclaration "that she did nothing to cause the
heavy structure to fall on her" should be considered as the correct version of the
gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental
or attributable to negligence; and (2) in case of a finding of negligence, whether the
same was attributable to private respondents for maintaining a defective counter or to
CRISELDA and ZHIENETH for failing to exercise due and reasonable care while
inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence attaches
to the defendant. 15 It is "a fortuitous circumstance, event or happening; an event
happening without any human agency, or if happening wholly or partly through human
agency, an event which under the circumstances is unusual or unexpected by the
person to whom it happens." 16
On the other hand, negligence is the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent and reasonable man
would not do. 17 Negligence is "the failure to observe, for the protection of the interest
of another person, that degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other person suffers injury." 18
Accident and negligence are intrinsically contradictory; one cannot exist with the other.
Accident occurs when the person concerned is exercising ordinary care, which is not
caused by fault of any person and which could not have been prevented by any
means suggested by common prudence. 19
The test in determining the existence of negligence is enunciated in the landmark case
of Plicart v. Smith, 20 thus: Did the defendant in doing the alleged negligent act use
that reasonable care and caution which an ordinarily prudent person would have used
in the same situation? If not, then he is guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident and that
ZHIENETH's death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the incident
and accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did
you hear or notice anything while the child
was being treated?
A At the emergency room we were all
surrounding the child. And when the doctor
asked the child "what did you do," the child
said "nothing, I did not come near the counter
and the counter just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be
translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako
lumapit doon. Basta bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should
be admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of
Court, thus:
Part of res gestae. Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving it
a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and statements
made to a physician are generally considered declarations and admissions. 23 All that
is required for their admissibility as part of the res gestae is that they be made or
uttered under the influence of a startling event before the declarant had the time to
think and concoct a falsehood as witnessed by the person who testified in court.
Under the circumstances thus described, it is unthinkable for ZHIENETH, a child of
such tender age and in extreme pain, to have lied to a doctor whom she trusted with
her life. We therefore accord credence to Gonzales' testimony on the matter, i.e.,
ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did,
through their negligence or omission to secure or make stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep and maintain the
structurally unstable gift-wrapping counter proved their negligence, thus:
 Q When you assumed the position as gift
wrapper at the second floor, will you please
describe the gift wrapping counter, were you
able to examine?
A Because every morning before I start
working I used to clean that counter and
since not nailed and it was only standing on
the floor, it was shaky.
xxx xxx xxx
A That counter assigned to me was when my
supervisor ordered me to carry that counter
to another place. I told him that the counter
needs nailing and it has to be nailed because
it might cause injury or accident to another
since it was shaky.
Q When that gift wrapping counter was
transferred at the second floor on February
12, 1983, will you please describe that to the
honorable Court?

A I told her that the counter wrapper [sic] is

Q Will you please describe the counter at
really in good [sic] condition; it was shaky. I
5:00 o'clock [sic] in the afternoon on [sic] May
told her that we had to nail it.
9 1983?

Q When you said she, to whom are you

A At that hour on May 9, 1983, that counter
referring to [sic]?
was standing beside the verification counter.
And since the top of it was heavy and
considering that it was not nailed, it can A I am referring to Ms. Panelo, sir.
collapse at anytime, since the top is heavy.
Q And what was the answer of Ms. Panelo
xxx xxx xxx when you told her that the counter was
shaky?
Q And what did you do?
A She told me "Why do you have to teach
me. You are only my subordinate and you are
A I informed Mr. Maat about that counter
to teach me?" And she even got angry at me
which is [sic] shaky and since Mr. Maat is
when I told her that.
fond of putting display decorations on tables,
he even told me that I would put some
decorations. But since I told him that it not xxx xxx xxx
[sic] nailed and it is shaky he told me "better
inform also the company about it." And since
Q From February 12, 1983 up to May 9,
the company did not do anything about the
1983, what if any, did Ms. Panelo or any
counter, so I also did not do anything about
employee of the management do to that (sic)
the counter. 24 [Emphasis supplied]

xxx xxx xxx

Ramon Guevarra, another former employee, corroborated the testimony of Gonzales,
thus:
Witness:
Q Will you please described [sic] to the
honorable Court the counter where you were None, sir. They never nailed the
assigned in January 1983? counter. They only nailed the counter after
the accident happened. 25 [Emphasis
supplied]
xxx xxx xxx
Without doubt, petitioner Panelo and another store supervisor were personally
informed of the danger posed by the unstable counter. Yet, neither initiated any
concrete action to remedy the situation nor ensure the safety of the store's employees
and patrons as a reasonable and ordinary prudent man would have done. Thus, as
confronted by the situation petitioners miserably failed to discharge the due diligence
required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish
that the former's testimonies were biased and tainted with partiality. Therefore, the
allegation that Gonzales and Guevarra's testimonies were blemished by "ill feelings"
against petitioners — since they (Gonzales and Guevarra) were already separated
from the company at the time their testimonies were offered in court — was but mere
speculation and deserved scant consideration.
It is settled that when the issue concerns the credibility of witnesses, the appellate
courts will not as a general rule disturb the findings of the trial court, which is in a
better position to determine the same. The trial court has the distinct advantage of
actually hearing the testimony of and observing the deportment of the
witnesses. 26 However, the rule admits of exceptions such as when its evaluation was
reached arbitrarily or it overlooked or failed to appreciate some facts or circumstances
of weight and substance which could affect the result of the case. 27 In the instant
case, petitioners failed to bring their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption
that favors children below nine (9) years old in that they are incapable of contributory
negligence. In his book, 28 former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is
conclusively presumed to have acted without discernment, and is,
on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains in
a case of a person over nine and under fifteen years of age,
unless it is shown that he has acted with discernment. Since
negligence may be a felony and a quasi-delict and required
discernment as a condition of liability, either criminal or civil, a
child under nine years of age is, by analogy, conclusively
presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence in
the case of a child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is that a child
under nine years of age must be conclusively presumed
incapable of contributory negligence as a matter of law.
[Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that she
climbed over the counter, no injury should have occurred if we accept petitioners'
theory that the counter was stable and sturdy. For if that was the truth, a frail six-year
old could not have caused the counter to collapse. The physical analysis of the
counter by both the trial court and Court of Appeals and a scrutiny of the
evidence 29 on record reveal otherwise, i.e., it was not durable after all. Shaped like an
inverted "L," the counter was heavy, huge, and its top laden with formica. It protruded
towards the customer waiting area and its base was not secured. 30
CRISELDA too, should be absolved from any contributory negligence. Initially,
ZHIENETH held on to CRISELDA's waist, later to the latter's hand. 31 CRISELDA
momentarily released the child's hand from her clutch when she signed her credit card
slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of
her child. Further, at the time ZHIENETH was pinned down by the counter, she was
just a foot away from her mother; and the gift-wrapping counter was just four meters
away from CRISELDA. 32 The time and distance were both significant. ZHIENETH
was near her mother and did not loiter as petitioners would want to impress upon us.
She even admitted to the doctor who treated her at the hospital that she did not do
anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the
challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV
37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
Jarco Marketing v. CA
Jarco Marketing, Leonardo Kong, Jose Tiope, Elisa Panelo v. CA, Sps. Conrado
and Criselda Aguilar
1999 / Davide, Jr. [Negligence > Standard of conduct > Children]
Facts
Jarco Marketing owns Syvel’s Department Store; Kong, Tiope, and Panelo are store
managers; Sps. Aguilar are the parents of daughter Zhieneth.
Criselda and Zhieneth Aguilar (6 years old) were at the 2nd floor of Syvel’s Department
Store. Criselda was signing her credit card slip when she felt a sudden gust of wind and
heard a loud thud. When she looked behind her, she saw her daughter pinned by the
bulk of the store’s gift wrapping counter. She asked the assistance of the people around
her, and she was immediately rushed to Makati Medical Center where she was
operated. The next day, she lost her speech. She died 14 days after the accident. The
cause of her death was attributed to the injuries sustained.
After her burial, Sps. Aguilar demanded the reimbursement of hospitalization, medical
bills, and wake and funeral expenses from the petitioners, but they refused to pay. Sps.
Aguilar filed a complaint for damages, seeking the payment of actual [157k~] and moral
[300k] damages, attorney’s fees [20k], and for loss of income and exemplary damages.
 The petitioners denied any liability for Zhieneth’s injuries and death. They also said the
complaint was malicious, so they sought the dismissal of the complaint and an award
of moral and exemplary damages, as well as attorney’s fees.
 Criselda was negligent in exercising care and diligence over her daughter by
allowing her to freely roam around in a store with glassware and appliances
 Zhieneth was guilty of contributory negligence for climbing the counter, thereby
triggering its collapse
 Counter was made of sturdy wood with strong support, and it has never fell nor
collapsed for the past 15 years since its construction
 Jarco Marketing maintained that it observed due diligence of a good father of the
family
 Other petitioners raised due care and diligence in the performance of its duties
RTC found that the preponderance of evidence favored the store, et al, saying that the
proximate cause was Zhieneth’s act of clinging to the counter, and that Criselda’s
negligence contributed to the accident. The RTC found that the counter was not an
attractive nuisance [something that would attract children to approach, get on or use it],
since the counter was situated at the end or corner of the 2nd floor.
Here are the assertions of Sps. Aguilar:
 Zhieneth should be entitled to the conclusive presumption that a child below 9 is
incapable of contributory negligence.
 Even if she is capable of contributory negligence, it was physically impossible for her
to have propped herself on the counter considering her small frame, and height and
weight of the counter.
 The fact that a former employee of the store, Gonzales, accompanied Zhieneth to
the hospital belied the theory that Zhieneth climbed the counter.
 This employee Gonzales said that when Zhieneth was asked by the doctor what she
did, she said “Nothing, I did not come near the counter and the counter just fell on
me.” This should be accorded credit according to the spouses.
 Negligence could not be imputed to Criselda since it was reasonable for her to let
go of Zhieneth at that moment that she was signing the credit card slip.
 The proximate cause was petitioner’s negligence in failing to institute measures to
have the counter permanently nailed.
In response, here is what the petitioners have to say:
 Zhieneth’s death was an ACCIDENT.
 Nailing the counter to the ground was not necessary because it has been there for
the longest time without any prior accident and it’s just in a corner.
 The criminal case for homicide through simple negligence filed against them was
dismissed, and they were acquitted.
The CA reversed RTC, ruling in favor of Sps. Aguilar.
 Petitioners were negligent in maintaining a structurally dangerous counter [it’s
shaped like an inverted L; the top is wider than the base; weight of the upper portion
not evenly distributed nor supported by the narrow base]. Two former employees
brought this to the attention of the management but the latter ignored their concern.
CA said the incident could have been avoided had petitioners repaired this defective
counter. The contention that it has been there for a long time without a prior incident
is immaterial.
 Zhieneth was incapable of negligence or other tort.
 Criselda was absolved of any negligence.
 Testimony of Gonzales (former employee) given credit
 Awarded actual damages, compensatory damages [denied award of funeral
expenses for lack of proof to substantiate it]
CA denied petitioners’ MfR, so they are now seeking the reversal of said decision,
saying that since the action is based on tort, any finding of negligence on the part of
Sps. Aguilar would negate their claim for damages, where said negligence was the
proximate cause of the injury sustained. They also assailed the testimony of Gonzales
who was already separated from the store (tarnished by ill-feelings and all).
Issues and Holding
WON Zhieneth’s death was accidental or attributable to negligence. ATTRIBUTABLE
TO NEGLIGENCE
WON negligence was attributable to petitioners [for maintaining a defective counter] or
to Sps. Aguilar [for failing to exercise due and reasonable care while inside the store].
FAULT OF PETITIONERS
Ratio
Accident v. Negligence – they are intrinsically contradictory
ACCIDENT pertains to an unforeseen event in which no fault or negligence attaches to
defendant (or if it happens wholly or partly through human agency, it is an event which
under the circumstances is unusual or unexpected by the person to whom it happens);
there is exercise of ordinary care here
NEGLIGENCE is the omission to do something which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of human affairs, would do,
or the doing of something which a prudent and reasonable man would not do
Alternatively, it is the failure to observe, for the protection of another person’s interest,
that degree of care, precaution and vigilance which the circumstances justly demand,
whereby such other person suffers injury
Picart v. Smith lays down the test to determine WON negligence exists: Did the
defendant in doing the alleged negligent act use that reasonable care and caution which
an ordinary prudent person would have used in the same situation? If not, he is guilty
of negligence.
SC found that Zhieneth performed no act that facilitated her death. Basis is her
statement to the doctor as related by former employee Gonzales. It was made part of
the res gestae since she made the statement immediately subsequent to the startling
occurrence. It is axiomatic that matters relating to declarations of pain or suffering and
statements made to a physician are generally considered declarations and admissions.
Also, the court considered the fact that Zhieneth was of a tender age (and in so much
pain!), so it would be unthinkable that she would lie.
Other findings:
Petitioners were informed of the danger posed by the unstable counter, yet they did not
act on the matter, so they failed to discharge the due diligence required of a good father
of a family.
They failed to establish that the testimonies of former employees were biased.
Conclusive presumption that children below 9 are incapable of contributory negligence
is applied.
Judge Sangco [book author] says that children below 9 is conclusively presumed to
have acted without discernment, and are exempt from criminal liability. Since negligence
may be a felony and a QD, it required discernment as a condition of liability, so therefore,
said children are presumed to be incapable of negligence.
Even if contributory negligence would be attributed to Zhieneth, no injury should have
occurred if petitioners’ theory that the counter is stable and sturdy is to be believed.
Criselda is absolved from any contributory negligence, since it was reasonable for her
to let go of her child to sign a slip.
Zhieneth was just a foot away from her mother, and the counter was just four meters
away from Criselda (contrary to statements that Zhieneth was loitering at that time).
FACTS:
Petitioner Jarco Marketing Corporation is the owner of Syvel’s Department Store, Makati
City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store’s branch manager,
operations manager, and supervisor, respectively. Private respondents are spouses and the
parents of Zhieneth Aguilar (ZHIENETH) who died due to the negligence of the petitioners.
Criselda together with her child Zhieneth, went to the counter to pay for what they had
bought in the center. When Criselda was signing her credit card slip at the payment and
verification counter, she let go of the hand of Zhieneth which led the latter to come closer to
a gift wrapping counter/structure which fell upon her without doing anything. Due to her
young age, she was not able to survive such incident which caused her death. Thus her
parents, private respondents herein filed a case against the petitioners for being negligent of
not nailing the said counter to avoid from falling.The counter was shaped like an inverted “L”
with a top wider than the base. It was top heavy and the weight of the upper portion was
neither evenly distributed nor supported by its narrow base. Thus, the counter was defective,
unstable and dangerous; a downward pressure on the overhanging portion or a push from
the front could cause the counter to fall.
ISSUES: : (1) whether the death of ZHIENETH was accidental or attributable to negligence;
and (2) in case of a finding of negligence, whether the same was attributable to private
respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to
exercise due and reasonable care while inside the store premises.
HELD:
We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH’s death
could only be attributed to negligence.
An accident pertains to an unforeseen event in which no fault or negligence attaches to the
defendant. It is “a fortuitous circumstance, event or happening; an event happening without
any human agency, or if happening wholly or partly through human agency, an event which
under the circumstances is unusual or unexpected by the person to whom it happens.”
On the other hand, negligence is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of human affairs, would
do, or the doing of something which a prudent and reasonable man would not do. Negligence
is “the failure to observe, for the protection of the interest of another person, that degree of
care, precaution and vigilance which the circumstances justly demand, whereby such other
person suffers injury.”
Accident and negligence are intrinsically contradictory; one cannot exist with the
other. Accident occurs when the person concerned is exercising ordinary care, which is not
caused by fault of any person and which could not have been prevented by any means
suggested by common prudence.
Thus, as confronted by the situation petitioners miserably failed to discharge the due
diligence required of a good father of a family.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-44264 September 19, 1988
HEDY GAN y YU, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, respondents.
Pacis, Baluyot, Reyes & De Leon for petitioner.
The Solicitor General for respondents.
FERNAN, C.J.:
Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless
Imprudence in Criminal Case No. 10201 of the then Court of First Instance of Manila,
Branch XXII presided by Judge Federico C. Alikpala. She was sentenced to an
indeterminate penalty of four (4) months and one (1) day of arresto mayor as minimum
and two (2) years, four (4) months and one (1) day of prision correccional as
maximum and was made to indemnify the heirs of the victim the sum of P12,000.00
without any subsidiary imprisonment in case of insolvency and to pay the costs. On
appeal, the trial court's decision was modified and petitioner was convicted only of
Homicide thru Simple Imprudence. Still unsatisfied with the decision of the Court of
Appeals,1 petitioner has come to this Court for a complete reversal of the judgment
below.
The facts of the case as found by the appellate court are as follows:
In the morning of July 4, 1972 at about 8:00 o'clock, the accused
Hedy Gan was driving a Toyota car along North Bay Boulevard,
Tondo, Manila. While in front of house no. 694 of North Bay
Boulevard, there were two vehicles, a truck and a jeepney parked
on one side of the road, one following the other about two to three
meters from each other. As the car driven by the accused
approached the place where the two vehicles were parked, there
was a vehicle coming from the opposite direction, followed by
another which tried to overtake and bypass the one in front of it
and thereby encroached the lane of the car driven by the
accused. To avoid a head-on collision with the oncoming vehicle,
the defendant swerved to the right and as a consequence, the
front bumper of the Toyota Crown Sedan hit an old man who was
about to cross the boulevard from south to north, pinning him
against the rear of the parked jeepney. The force of the impact
caused the parked jeepney to move forward hitting the rear of the
parts truck ahead of it. The pedestrian was injured, the Toyota
Sedan was damaged on its front, the jeep suffered damages on
its rear and front paints, and the truck sustained scratches at the
wooden portion of its rear. The body of the old man who was later
Identified as Isidoro Casino was immediately brought to the Jose
Reyes Memorial Hospital but was (pronounced) dead on arrival. 2
An information for Homicide thru Reckless Imprudence was filed against petitioner in
view of the above incident. She entered a plea of not guilty upon arraignment and the
case was set for trial.
Meanwhile, petitioner sought and was granted a re-investigation by the City Fiscal, as
a result of which the trial fiscal moved for the dismissal of the case against petitioner
during the resumption of hearing on September 7, 1972. The grounds cited therefor
were lack of interest on the part of the complaining witness to prosecute the case as
evidenced by an affidavit of desistance submitted to the trial court and lack of
eyewitness to sustain the charge.
The motion to dismiss filed by the fiscal was never resolved. The Court instead
ordered the prosecution to present its evidence. After the prosecution rested its case,
the petitioner filed a motion to dismiss the case on the ground of insufficiency of
evidence.
On December 22, 1972, the trial court rendered judgment finding petitioner guilty
beyond reasonable doubt of the of- offense charged.
Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May 3,
1976, the Court of Appeals rendered a decision, the dispositive portion of which reads
as follows:
Wherefore, as modified, the accused Hedy Gan is guilty beyond
reasonable doubt of the crime of homicide thru simple
imprudence and, pursuant to paragraph 2, Article 365 of the
Revised Penal Code, she is hereby sentenced to the
indeterminate penalty of three (3) months and eleven (11) days
of arresto mayor and to indemnify the heirs of Isidoro Casino in
the sum of Twelve Thousand Pesos (Pl2,000.00) without,
however, any subsidiary imprisonment in case of insolvency, and
to pay the costs. 3
Petitioner now appeals to this Court on the following assignments of errors:
 I into the pedestrian who was crossing at the time but also the
The Court of Appeals erred in holding that when the petitioner
saw a car travelling directly towards her, she should have stepped
on the brakes immediately or in swerving her vehicle to the right
should have also stepped on the brakes or lessened her speed, to
avoid the death of a pedestrian.
II
The Court of Appeals erred in convicting the petitioner of the
crime of Homicide thru Simple Imprudence.
III
The Court of Appeals erred in adjudging the petitioner liable to
indemnify the deceased in the sum of P12,000.00.4
We reverse.
The test for determining whether or not a person is negligent in doing an act whereby
injury or damage results to the person or property of another is this: Would a prudent
man in the position of the person to whom negligence is attributed foresee harm to the
person injured as a reasonable consequence of the course about to be pursued? If so,
the law imposes the duty oil the doer to take precaution against its mischievous results
and the failure to do so constitutes negligence. 5
A corollary rule is what is known in the law as the emergency rule. "Under that rule,
one who suddenly finds himself in a place of danger, and is required to act without
time to consider the best means that may be adopted to avoid the impending danger,
is not guilty of negligence, if he fails to adopt what subsequently and upon reflection
may appear to have been a better method, unless the emergency in which he finds
himself is brought about by his own negligence." 6
Applying the above test to the case at bar, we find the petitioner not guilty of the crime
of Simple Imprudence resulting in Homicide.
The appellate court in finding the petitioner guilty said:
The accused should have stepped on the brakes when she saw
the car going in the opposite direction followed by another which
overtook the first by passing towards its left. She should not only
have swerved the car she was driving to the right but should have
also tried to stop or lessen her speed so that she would not bump
jeepney which was then parked along the street. 7
The course of action suggested by the appellate court would seem reasonable were it
not for the fact that such suggestion did not take into account the amount of time
afforded petitioner to react to the situation she was in. For it is undeniable that the
suggested course of action presupposes sufficient time for appellant to analyze the
situation confronting her and to ponder on which of the different courses of action
would result in the least possible harm to herself and to others.
Due to the lack of eyewitnesses, no evidence was presented by the prosecution with
respect to the relative distances of petitioner to the parked jeepney and the oncoming
overtaking vehicle that would tend to prove that petitioner did have sufficient time to
reflect on the consequences of her instant decision to swerve her car to the light
without stepping on her brakes. In fact, the evidence presented by the prosecution on
this point is the petitioner's statement to the police 8 stating::
And masasabi ko lang ho umiwas ho ako sa isang sasakyan
na biglang nagovertake sa sasakyan na aking kasalubong kung
kaya ay aking kinabig sa kanan ang akin kotse subalit siya
naman biglangpagtawid ng tao o victim at hindi ko na ho
naiwasan at ako ay wala ng magawa . Iyan ho ang buong
pangyayari nang nasabing aksidente.9 (Emphasis supplied)
The prosecution having presented this exhibit as its own evidence, we cannot but
deem its veracity to have been admitted by it. Thus, under the circumstances narrated
by petitioner, we find that the appellate court is asking too much from a mere mortal
like the petitioner who in the blink of an eye had to exercise her best judgment to
extricate herself from a difficult and dangerous situation caused by the driver of the
overtaking vehicle. Petitioner certainly could not be expected to act with all the
coolness of a person under normal conditions. 10 The danger confronting petitioner
was real and imminent, threatening her very existence. She had no opportunity for
rational thinking but only enough time to heed the very powerfull instinct of self-
preservation.
Also, the respondent court itself pronounced that the petitioner was driving her car
within the legal limits. We therefore rule that the "emergency rule" enunciated above
applies with full force to the case at bar and consequently absolve petitioner from any
criminal negligence in connection with the incident under consideration.
We further set aside the award of damages to the heirs of the victim, who by executing
a release of the claim due them, had effectively and clearly waived their right thereto.
WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y YU of
the crime of Homicide thru Simple Imprudence. She is no longer liable for the
P12,000.00 civil indemnity awarded by the appellate court to the heirs of the victim.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 171636 April 7, 2009
NORMAN A. GAID, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
TINGA, J.:
Before the Court is a petition for review on certiorari1 assailing the 12 July 2005
Decision2 of the Court of Appeals and its subsequent Resolution3 denying petitioner’s
motion for reconsideration.
Petitioner Norman A. Gaid was charged with the crime of reckless imprudence
resulting in homicide in an information which reads as follow:
That on or about 12:00 high noon of October 25, 2001, infront of the Laguindingan
National High School, Poblacion, Laguindingan, Misamis Oriental, Philippines and
within the jurisdiction of this Honorable Court, the said accused mentioned above
while driving a passenger’s jeepney color white bearing plate no. KVG-771 owned by
barangay captain Levy Etom has no precautionary measure to preempt the accident,
did then and there willfully, unlawfully and feloniously ran [sic] over Michael Dayata
resulting of [sic] his untimely death as pronounced by the attending physician of
Northern Mindanao Medical Center Hospital, Cagayan de Oro City.
CONTRARY TO LAW.4
Petitioner entered a not guilty plea. Thereafter, trial ensued.
The antecedent facts are undisputed.
At around 12:00 noon on 25 October 2001, petitioner was driving his passenger
jeepney along a two-lane road where the Laguindingan National High School is
located toward the direction of Moog in Misamis Oriental. His jeepney was filled to
seating capacity.5 At the time several students were coming out of the school
premises.6Meanwhile, a fourteen year-old student, Michael Dayata (Dayata), was
seen by eyewitness Artman Bongolto (Bongolto) sitting near a store on the left side of
the road. From where he was at the left side of the road, Dayata raised his left hand to
flag down petitioner’s jeepney7 which was traveling on the right lane of the
road.8 However, neither did petitioner nor the conductor, Dennis Mellalos (Mellalos),
saw anybody flagging down the jeepney to ride at that point.9
The next thing Bongalto saw, Dayata’s feet was pinned to the rear wheel of the
jeepney, after which, he laid flat on the ground behind the jeepney.10 Another
prosecution witness, Usaffe Actub (Actub), who was also situated on the left side of
the street but directly in front of the school gate, heard "a strong impact coming from
the jeep sounding as if the driver forced to accelerate in order to hurdle an
obstacle."11 Dayata was then seen lying on the ground12and caught in between the
rear tires.13 Petitioner felt that the left rear tire of the jeepney had bounced and the
vehicle tilted to the right side.14
Mellalos heard a shout that a boy was run over, prompting him to jump off the jeepney
to help the victim. Petitioner stopped and saw Mellalos carrying the body of the
victim.15 Mellalos loaded the victim on a motorcycle and brought him to the hospital.
Dayata was first brought to the Laguindingan Health Center, but it was closed.
Mellalos then proceeded to the El Salvador Hospital. Upon advice of its doctors,
however, Dayata was brought to the Northern Mindanao Medical Center where he
was pronounced dead on arrival.16
Dr. Tammy Uy issued an autopsy report stating cranio-cerebral injuries as the cause
of death.17 She testified that the head injuries of Dayata could have been caused by
having run over by the jeepney.18
The Municipal Circuit Trial Court (MCTC) of Laguindingan19 found petitioner guilty
beyond reasonable doubt of the crime charged. The lower court held petitioner
negligent in his driving considering that the victim was dragged to a distance of 5.70
meters from the point of impact. He was also scored for "not stopping his vehicle after
noticing that the jeepney’s left rear tire jolted causing the vehicle to tilt towards the
right."20 On appeal, the Regional Trial Court (RTC)21 affirmed in toto the decision of
the MCTC.
The Court of Appeals affirmed the trial court’s judgment with modification in that it
found petitioner guilty only of simple negligence resulting in homicide.1avvphi1.zw+
The Court of Appeals exonerated petitioner from the charge of reckless imprudence
resulting to homicide on the ground that he was not driving recklessly at the time of
the accident. However, the appellate court still found him to be negligent when he
failed "to promptly stop his vehicle to check what caused the sudden jotting of its rear
tire."22
In its 6 February 2006 Resolution, the Court of Appeals denied petitioner’s motion for
reconsideration.23
Hence, the instant petition. ATTY. MACUA:

Petitioner submits that the Court of Appeals erred in finding that "there is (sic) (to the witness)
absolutely lack of precaution on the part of the petitioner when he continued even after
he had noticed that the left rear tire and the jeep tilted to its right side."24 Petitioner
Q Mr. Witness, when the passenger jeepney passed by the gate of the
stressed that he, in fact, stopped his jeep when its left rear tire bounced and upon
Laguindingan National High School, is it running slowly, am I correct?
hearing that somebody had been ran over.

A Yes, he was running slowly.31

Moreover, petitioner asserts that the Court of Appeals committed a grave abuse of
discretion in convicting him of the offense of simple negligence resulting in homicide.
Assuming arguendo that he failed to promptly stop his vehicle, petitioner maintains The slow pace of the jeepney was seconded by Mellalos:
that no prudent man placed in the same situation could have foreseen the vehicular
accident or could have stopped his vehicle in time when its left rear tire bounced due
Q You testified that you heard somebody outside from the vehicle shouting
to the following reasons: (1) the victim was only a trespasser; (2) petitioner’s attention
was focused on the road and the students outside the school’s gate; and (3) the that a boy was ran over, am I correct?
jeepney was fully loaded with passengers and cargoes and it was impossible for the
petitioner to promptly stop his vehicle.25 A Yes, Sir.

The Office of the Solicitor-General (OSG) maintained that petitioner was negligent
when he continued to run towards the direction of Moog, Laguindingan, dragging the
victim a few meters from the point of impact, despite hearing that a child had been run
over.26
The presence or absence of negligence on the part of petitioner is determined by the
operative events leading to the death of Dayata which actually comprised of two
phases or stages. The first stage began when Dayata flagged down the jeepney while
positioned on the left side of the road and ended when he was run over by the
jeepney. The second stage covered the span between the moment immediately after
the victim was run over and the point when petitioner put the jeepney to a halt.
During the first stage, petitioner was not shown to be negligent.
Reckless imprudence consists of voluntarily doing or failing to do, without malice, an
act from which material damage results by reason of an inexcusable lack of precaution
on the part of the person performing or failing to perform such act. 27
In Manzanares v. People,28 this Court convicted petitioner of the crime of reckless
imprudence resulting in multiple homicide and serious physical injuries when he was
found driving the Isuzu truck very fast before it smashed into a jeepney. 29 Likewise, in
Pangonorom v. People,30 a public utility driver, who was driving very fast, failed to
slow down and hit a swerving car. He was found negligent by this Court.
In the instant case, petitioner was driving slowly at the time of the accident, as testified
to by two eyewitnesses. Prosecution witness Actub affirmed this fact on cross-
examination, thus:
Q Now, before you heard that shouting, did you observe any motion from
the vehicle?
A The jeep was moving slowly and I noticed that there was something that
[sic] the jeep a little bit bounced up as if a hump that’s the time I heard a
shout from outside.32
Petitioner stated that he was driving at no more than 15 kilometers per hour.33
It appears from the evidence Dayata came from the left side of the street. Petitioner,
who was driving the jeepney on the right lane, did not see the victim flag him down. He
also failed to see him go near the jeepney at the left side. Understandably, petitioner
was focused on the road ahead. In Dayata’s haste to board the jeep which was then
running, his feet somehow got pinned to the left rear tire, as narrated by Bongolto.
Actub only saw Dayata after he heard a strong impact coming from the jeep.
With the foregoing facts, petitioner can not be held liable during the first stage.
Specifically, he cannot be held liable for reckless imprudence resulting in homicide, as
found by the trial court. The proximate cause of the accident and the death of the
victim was definitely his own negligence in trying to catch up with the moving jeepney
to get a ride.
In the instant case, petitioner had exercised extreme precaution as he drove slowly
upon reaching the vicinity of the school. He cannot be faulted for not having seen the
victim who came from behind on the left side.
However, the Court of Appeals found petitioner guilty of simple negligence resulting in
homicide for failing to stop driving at the time when he noticed the bouncing of his
vehicle. Verily, the appellate court was referring to the second stage of the incident.
Negligence has been defined as the failure to observe for the protection of the
interests of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.34
The elements of simple negligence: are (1) that there is lack of precaution on the part
of the offender; and (2) that the damage impending to be caused is not immediate or
the danger is not clearly manifest.35
The standard test in determining whether a person is negligent in doing an act
whereby injury or damage results to the person or property of another is this: could a
prudent man, in the position of the person to whom negligence is attributed, foresee
harm to the person injured as a reasonable consequence of the course actually
pursued? If so, the law imposes a duty on the actor to refrain from that course or to
take precautions to guard against its mischievous results, and the failure to do so
constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the
admonition born of this provision, is always necessary before negligence can be held
to exist.36
In Philippine National Construction Corporation v. Court of Appeals, 37 the petitioner
was the franchisee that operates and maintains the toll facilities in the North and
South Luzon Toll Expressways. It failed to exercise the requisite diligence in
maintaining the NLEX safe for motorists. The lighted cans and lane dividers on the
highway were removed even as flattened sugarcanes lay scattered on the ground.
The highway was still wet from the juice and sap of the flattened sugarcanes. The
petitioner should have foreseen that the wet condition of the highway would endanger
motorists passing by at night or in the wee hours of the morning. 38 Consequently, it
was held liable for damages.
In an American case, Hernandez v. Lukas,39 a motorist traveling within the speed limit
and did all was possible to avoid striking a child who was then six years old only. The
place of the incident was a neighborhood where children were playing in the parkways
on prior occasions. The court ruled that it must be still proven that the driver did not
exercise due care. The evidence showed that the driver was proceeding in lawful
manner within the speed limit when the child ran into the street and was struck by the
driver’s vehicle. Clearly, this was an emergency situation thrust upon the driver too
suddenly to avoid.
In this case, the courts below zeroed in on the fact that petitioner did not stop the
jeepney when he felt the bouncing of his vehicle, a circumstance which the appellate
court equates with negligence. Petitioner contends that he did not immediately stop
because he did not see anybody go near his vehicle at the time of the incident.40
Assuming arguendo that petitioner had been negligent, it must be shown that his
negligence was the proximate cause of the accident. Proximate cause is defined as
that 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.41 In order to establish a motorist's liability for the negligent operation of a
vehicle, it must be shown that there was a direct causal connection between such
negligence and the injuries or damages complained of. Thus, negligence that is not a
substantial contributing factor in the causation of the accident is not the proximate
cause of an injury.42
The head injuries sustained by Dayata at the point of impact proved to be the
immediate cause of his death, as indicated in the post-mortem findings.43 His skull
was crushed as a result of the accident. Had petitioner immediately stopped the
jeepney, it would still not have saved the life of the victim as the injuries he suffered
were fatal.
The evidence on record do not show that the jeepney dragged the victim after he was
hit and run over by the jeepney. Quite the contrary, the evidence discloses that the
victim was not dragged at all. In fact, it is the other way around. Bongolto narrated that
after the impact, he saw Dayata left behind the jeepney.44 Actub saw Dayata in a
prone position and bleeding within seconds after impact. 45 Right after the impact,
Mellalos immediately jumped out of the jeepney and saw the victim lying on the
ground.46 The distance of 5.70 meters is the length of space between the spot where
the victim fell to the ground and the spot where the jeepney stopped as observed by
the trial judge during the ocular inspection at the scene of the accident. 47
Moreover, mere suspicions and speculations that the victim could have lived had
petitioner stopped can never be the basis of a conviction in a criminal case. 48 The
Court must be satisfied that the guilt of the accused had been proven beyond
reasonable doubt.49 Conviction must rest on nothing less than a moral certainty of the
guilt of the accused. The overriding consideration is not whether the court doubts the
innocence of the accused but whether it entertains doubt as to his guilt. 50
Clearly then, the prosecution was not able to establish that the proximate cause of the
victim’s death was petitioner’s alleged negligence, if at all, even during the second
stage of the incident.
If at all again, petitioner’s failure to render assistance to the victim would constitute
abandonment of one’s victim punishable under Article 275 of the Revised Penal Code.
However, the omission is not covered by the information. Thus, to hold petitioner
criminally liable under the provision would be tantamount to a denial of due process.
Therefore, petitioner must be acquitted at least on reasonable doubt. The award of
damages must also be deleted pursuant to Article 2179 of the Civil Code which states
that when the plaintiff’s own negligence was the immediate and proximate cause of his
injury, he cannot recover damages.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated Republic of the Philippines
12 July 2005 is REVERSED and SET ASIDE. Petitioner Norman A. Gaid is SUPREME COURT
ACQUITTED of the crime of Simple Negligence Resulting in Homicide as found by the Manila
Court of Appeals and of the charge of Reckless Imprudence Resulting in Homicide in
Criminal Case No. 1937 of the MCTC of Laguindingan, Misamis Oriental.
SECOND DIVISION

SO ORDERED.

G.R. No. 45985 May 18, 1990

CHINA AIR LINES, LTD., petitioner,

vs.
COURT OF APPEALS, JOSE PAGSIBIGAN, PHILIPPINE AIR LINES, INC. and
ROBERTO ESPIRITU, respondents.

G.R. No. 46036 May 18, 1990

PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU, petitioners,

vs.
COURT OF APPEALS, JOSE PAGSIBIGAN and CHINA AIR LINES,
LTD., respondents.

Balgos & Perez Law Offices for petitioner China Air Lines, Ltd.

Siguion Reyna, Montecillo & Ongsiako for petitioners in G.R. No. 46036.

Syquia Law Offices for Jose Pagsibigan.

REGALADO, J.:

These consolidated petitions seek the review of the decision of respondent court in
CA-G.R. No. 53023-R entitled "Jose E. Pagsibigan, Plaintiff-Appellant, vs. Philippine
Air Lines, Inc. and Roberto Espiritu, Defendants-Appellants; China Air Lines, Ltd.,
Defendant-Appellee," 1 the dispositive portion of which declares:

WHEREFORE, except for a modification of the judgment in the

sense that the award of P20,000.00 in favor of the plaintiff shall
be in the concept of nominal damages instead of exemplary
damages, and that defendant China Air Lines, Ltd. shall likewise
be liable with its two co-defendants in a joint and solidary
capacity, the judgment appealed from is hereby affirmed in all
other respects, without costs. 2
The challenged decision of respondent court contains a synthesis of the facts that
spawned these cases and the judgment of the court a quo which it affirmed with
modifications, thus:
On June 4, 1968, plaintiff Jose E. Pagsibigan, then Vice-President
and General Manager of Rentokil (Phils.) Inc., a local firm dealing
in insecticides, pesticides and related services appurtenant
thereto, purchased a plane ticket for a Manila-Taipei-Hongkong-
Manila flight from the Transaire Travel Agency. The said agency,
through its Cecille Baron, contacted the Manila Hotel branch of
defendant Philippine Air Lines which at that time was a sales and
ticketing agent of defendant China Air lines. On June 6, 1968,
PAL, through its ticketing clerk defendant Roberto Espiritu, cut
and issued PAL Ticket No. 01 7991 for a Manila-Taipei-
Hongkong-Manila flight. According to the plane ticket, the plaintiff
was booked on CAL CI Flight No. 812 to depart from Manila for
Taipei on June 10, 1968 at 17:20 hours (5:20 p.m.), Exhibit A.
On June 10, 1968, one hour before the scheduled time of the
flight as stated in his ticket, the plaintiff arrived at the airport to
check in for CI Flight No. 812. Upon arriving at the airport, the
plaintiff was informed that the plane he was supposed to take for
Taipei had left at 10:20 in the morning of that day. The PAL
employees at the airport made appropriate arrangements for the
plaintiff to take PAL's flight to Taipei the following day, June 11,
1968. The plaintiff took said flight and arrived in Taipei around
noontime of the said date.
On July 8, 1968, the plaintiff, through counsel, made formal
demand on defendant PAL, for moral damages in not less than
P125,000.00 for what the plaintiff allegedly suffered as a result of
his failure to take the flight as stated in his plane ticket. (Exhibit E)
After a series of negotiations among the plaintiff, PAL and CAL
failed to reach an amicable settlement, the plaintiff instituted this
action in the Court of First Instance of Rizal on September 22,
1969. In his complaint, plaintiff prays for the recovery of
P125,000.00 as moral damages and P25,000.00 for and as
attorney's fees. The moral damages allegedly arose from the
gross negligence of defendant Roberto Espiritu in stating on the
plane ticket that the time of departure was 17:20 hours, instead of
10:20 hours which was the correct time of departure in the revised
summer schedule of CAL. Plaintiff claims that by reason of his
failure to take the plane, he suffered besmirched reputation,
embarrassment, mental anguish, wounded feelings and sleepless
nights, inasmuch as when he went to the airport, he was
accompanied by his business associates, close friends and
relatives. He further averred that his trip to Taipei was for the
purpose of conferring with a certain Peng Siong Lim, President of
the Union Taiwan Chemical Corporation, scheduled at 9:00 a.m.
on June 11, 1968.
Defendant Philippine Air Lines alleged in its answer that the
departure time indicated by Espiritu in the ticket was furnished
and confirmed by the reservation office of defendant China Air
Lines. It further averred that CAL had not informed PAL's Manila
Hotel Branch of the revised schedule of its flight, nor provided it
with revised timetable; that when the travel agency sought to
purchase the ticket for the plaintiff on CAL CI Flight No. 812 for
June 10, 1968, Espiritu who was then the ticketing clerk on duty,
checked with the reservation office of CAL on the availability of
space, the date and the time of said flight; that CAL's Dory Chan
informed Espiritu that the departure time of Flight No. 812 on
June 10, 1968 was at 5:20 in the afternoon of said date. PAL
asserted a cross-claim against CAL for attorney's fees and for
reimbursement of whatever amount the court may adjudge PAL to
be liable to the plaintiff. Defendant Espiritu adopted the defenses
of his co-defendant PAL.
Defendant China Air Lines, for its part, disclaims liability for the
negligence and incompetence of the employees of PAL. It avers
that it had revised its schedule since April 1, 1968, the same to be
effective on April 20, 1968, and the said revised schedule was
adopted only after proper petition with and approval of the Civil
Aeronautics Board of which all airlines, including defendant PAL,
were notified; that both printed copies of the international
timetable and of the mimeographed notices of the official
schedule and flight departure schedules were distributed to all its
sales agents, including PAL, that after the effectivity of the new
time schedules, PAL's Manila Hotel office had been issuing and
selling tickets based on the revised time schedule; and that,
assuming that the plaintiff is entitled to recover damages, the
liability is on PAL and not on CAL. A cross-claim was likewise
asserted by CAL against its co-defendant PAL.
After due trial, the Court a quo rendered judgment laying the
blame for the erroneous entry in the ticket as to the time of
departure to defendant Roberto Espiritu, ticketing agent of
defendant PAL, and that no employee of CAL contributed to such
erroneous entry. It was further ruled that the plaintiff had no
reason to claim moral damages but may be entitled to recover
exemplary damages. The dispositive portion of the decision
makes the following adjudication:
WHEREFORE, premises considered,
judgment is hereby rendered sentencing the
defendants Philippine Air Lines, Inc. and
 Roberto Espiritu, to pay to plaintiff Jose
Pagsibigan jointly and severally, by way of
exemplary damages, the sum of Twenty
Thousand Pesos (P20,000.00) plus Two
Thousand Pesos (P2,000.00) as
reimbursement for attorney's fees and the
costs.
The complaint is dismissed with respect to
the defendant China Air Lines, Ltd. The
cross-claim filed by defendant PAL and
Espiritu against defendant CAL as well as the
cross-claim filed by the defendant CAL
against defendant PAL and Espiritu are also
hereby dismissed. 3
From said decision of the court below, all the parties, except China Air Lines, Ltd.
appealed to respondent court which, however, sustained the ruling of the trial court
denying Pagsibigan's claim for moral damages. It concluded that Roberto Espiritu did
not act with malice or in bad faith in making a wrong entry of the time of departure on
the ticket, and that the mistake committed by Espiritu appears to be an honest one
done in good faith.
Respondent court also ruled out the claim for exemplary damages for lack of legal
basis. Nonetheless, as earlier noted, it awarded Pagsibigan P20,000.00 as nominal
damages, under Article 2221 of the Civil Code, for the vindication of a legal wrong
committed against him. As regards the liability of the parties, respondent court held:
However, in proving that the fault lied with Espiritu, defendant
CAL derives no solace nor gains an advantage. It may not claim
exemption from liability by reason thereof. Espiritu was an
employee of PAL and whatever negligence was committed by him
is attributable to PAL. It is an admitted fact that PAL is an
authorized agent of CAL. In this relationship, the responsibility of
defendant PAL for the tortious act of its agent or representative is
inescapable. . . .
xxx xxx xxx
A similar principle is recognized in our Civil Code in its Art. 2180 .
. . . Unlike in the doctrine of respondeat superior, however, the
Civil Code permits the employer to escape this liability upon proof
of having observed all the diligence of a good father of a family to
prevent the damage. We find the evidence of defendant CAL to
be insufficient to overcome the presumption of negligence on its
part for the act done by defendant Roberto Espiritu. (Emphasis
supplied)
The liability for the damage sustained by the plaintiff should,
therefore, be borne by all of the defendants in a joint and solidary
capacity (Art. 2194). The liability of an employer under Art. 2180
is primary and direct. . . .
xxx xxx xxx

It appearing that defendant CAL, as employer or principal, did not

There can be little question as to the liability of PAL and Espiritu
contribute to the negligence committed by defendants PAL and
for the damage caused to the plaintiff due to the erroneous entry
Roberto Espiritu, its liability to the plaintiff could be passed on to
in the plane ticket made by the latter. They seek to justify the
said defendants. Defendant CAL, however, did not take an appeal
erroneous statement as to the time of departure on the ground
and did not, therefore, take exception to the dismissal of its cross-
that such was the time given by Dory Chan to Espiritu when the
claim against defendants PAL and Espiritu. This serves as an
latter called up for the reservation in favor of plaintiff. Aside from
obstacle for a rendition of judgment favorable to CAL on its said
the fact that Dory Chan had vigorously disclaimed having given
counterclaim. 4
such information to Espiritu, We are convinced that, as the trial
court had found, CAL had no share in the error committed by
Espiritu in indicating the time of departure of Flight No. 812. PAL In its petition for review on certiorari in G.R. No. L-45985, petitioner China Air Lines,
had shown through the testimony of Carmen Ibazeta Gallaga, Ltd. (CAL) relied on the following grounds:
ticket representative of PAL at the Manila Hotel Office, that they
received circulars and timetables of airlines in the PAL main
office. It further appears that on two occasions, defendant PAL cut 1. A principal cannot be held liable, much less solidarily, for the
negligence of the sub-agent, where the former never participated
and issued tickets for CAL based on the new schedule even
before June 10, 1968. As a matter of fact, the other entries of time in, ratified or authorized the latter's act or omission.
departures in the ticket issued to the plaintiff are in accordance
with the revised schedule, and that the only error therein was with 2. Dismissal of the cross-claim of petitioner against the private
respect to the departure from Manila on June 10, 1968. respondents Philippine Air Lines, Inc. and Roberto Espiritu will not
 prevent the release of the petitioner from liability to the private the complaint of respondent Pagsibigan will readily disclose that the allegations
respondent Pagsibigan. thereof clearly and unmistakably make out a case for a quasi-delict in this wise:

3. The award of damages was unwarranted both legally and
factually. 5
On their part, petitioners Philippine Air Lines, Inc. (PAL) and Roberto Espiritu made
the following submissions in G.R. No. L-46036, to wit:
1. The respondent Court of Appeals erred in not holding that
respondent China Air Lines, Ltd., being the principal, is solely
liable to respondent Pagsibigan.
2. The respondent Court of Appeals erred in awarding respondent
Pagsibigan the sum of P20,000.00 as nominal damages. 6
4. That at all pertinent times particularly in June of 1968,
defendant China Air Lines Ltd. has been operating regular
scheduled flights to and from Manila, and has offered
accommodations thereon through, among others, defendant PAL
as its authorized sales agent and/or ticketing agent, such that
China Airlines Ltd. is here impleaded as being the principal of
defendant PAL;
5. That at all pertinent times, particularly in June of 1968,
defendant Roberto Espiritu has been in the employ of defendant
PAL at its sales counter at the PAL Manila Hotel branch office and
is here impleaded as defendant as being the proximate malfeasor
in this cause of action;

In G.R. No. L-45985, respondent Pagsibigan contends, by way of refutation, that xxx xxx xxx
CAL's liability is based on breach of contract of transportation which was the
proximate result of the negligence and/or error committed by PAL and Espiritu; that
12. That plaintiff missed the initial Manila-Taipei leg (CI Flight
even assuming that CAL has no share in the negligence of PAL and Espiritu, the
812) on June 10, 1968, as set forth in his ticket (Annex "A") solely
liability of CAL does not cease upon proof that it exercised all the diligence of a good
and exclusively by reason of gross incompetence and
father of a family in the selection and supervision of its employees. Traversing such
inexcusable negligence amounting to bad faith of defendant PAL
contentions, CAL argues that it can not be made liable under Article 2180 of the Civil
— acting, through its sales representative, the defendant Roberto
Code because of the absence of employer-employee relationship between it and PAL.
Espiritu, of its Manila Hotel branch office — in the discharge of its
duties as sales agent and/or ticketing agent for defendant China
On the other hand, in G.R. No. L-46036, respondent Pagsibigan claims that PAL is Airlines Ltd. as principal.
liable under Article 1909 of the said code which holds an agent responsible not only
for fraud but also for negligence which shall be judged with more or less rigor by the
13. That as a direct result of culpable incompetence and
courts, according to whether the agency was or was not for a compensation. PAL,
negligence of defendant Roberto Espiritu as sales representative
however, maintains that for lack of privity with Pagsibigan, the suit for breach of
of defendant PAL, plaintiff was unable to attend to previously
contract should have been directed against CAL.
scheduled business commitments in Taipei . . . resulting in direct
and indirect prejudice to plaintiff that has yet to be fully assessed;
What surfaces as a procedural maneuver taken by respondent Pagsibigan in the (Emphasis supplied) 7
course of the proceedings in these cases has confused the real issues in the
controversy subject of both petitions before us.
xxx xxx xxx

Respondent Pagsibigan has opted to seek redress by pursuing two remedies at the
Had the intention of respondent Pagsibigan been to maintain an action based on
same time, that is, to enforce the civil liability of CAL for breach of contract and,
breach of contract of carriage, he could have sued CAL alone considering that PAL is
likewise, to recover from PAL and Espiritu for tort or culpa aquiliana. What he has
not a real party to the contract. Moreover, in cases of such nature, the aggrieved party
overlooked is the proscription against double recovery under Article 2177 of the Civil
does not have to prove that the common carrier was at fault or was negligent. All he
Code which, while not preventing recourse to any appropriate remedy, prevents
has to prove is the existence of the contract and the fact of its non-performance by the
double relief for a single wrong.
carrier. 8

To avoid inequitable effects under such confluence of remedies, the true nature of the
action instituted by respondent Pagsibigan must be determined. A careful perusal of
The records disclose that the trial court delved much into the issues of who was at
fault, and its decision is primarily anchored on its factual findings regarding the civil
liability arising from culpa aquiliana of the erring party, to this effect:
Plaintiff said that the erroneous entry in his ticket which made it
appear that his CAL flight of June 10, 1968 was to be at 5:20 in
the afternoon was due to the fault or negligence of PAL's Roberto
Espiritu, a co-defendant herein, as well as the employees of the
defendant CAL. In making CAL co-responsible, plaintiff appears
to rely on the doctrine that the principal is responsible for the act
of an agent done within the scope of the agency.
There is no proof extant that any of the employees of PAL had
contributed to the erroneous entry in plaintiffs PAL ticket for Taipei
which placed his time of departure to 5:20 o'clock in the afternoon
of June 10, 1968. Only defendant Roberto Espiritu appears to be
solely and exclusively responsible for such error and therefor the
conclusion becomes inevitable that CAL must be absolved from
any blame because defendant Roberto Espiritu who committed
the error is not an employee or agent of the defendant CAL. 9
It, therefore, becomes evident that respondent Pagsibigan, having sensed that he can
not hold CAL liable on a quasi-delict, decided on appeal to instead make a sinistral
detour, so to speak, by claiming that his action against CAL is based on a breach of
contract of carriage.
We can not permit respondent Pagsibigan to change his theory at this stage; it would
be unfair to the adverse party who would have no more opportunity to present further
evidence, material to the new theory, which it could have done had it been aware
earlier of the new theory at the time of the hearing before the trial court. 10
There is indeed no basis whatsoever to hold CAL liable on a quasi-delict or culpa
aquiliana. As hereinbefore stated, the court a quo absolved CAL of any liability for fault
or negligence. This finding was shared by respondent court when it concluded that
defendant CAL did not contribute to the negligence committed by therein defendants-
appellants PAL and Roberto Espiritu.
Respondent Pagsibigan insists that CAL was barred from proving that it observed due
diligence in the selection and supervision of its employees. This argument is obviously
misplaced. CAL is not the employer of PAL or Espiritu. In Duavit vs. The Hon. Court of
Appeals, et al., 11 we have stressed the need of first establishing the existence of an
employer-employee relationship before an employer may be vicariously liable under
Article 2180 of the Civil Code.
With respect to PAL and Espiritu, they disclaim any liability on the theory that the
former is merely an agent of CAL and that the suit should have been directed against
CAL alone. There is no question that the contractual relation between both airlines is
one of agency. Suffice it to say, however, that in an action premised on the
employee's negligence, whereby respondent Pagsibigan seeks recovery for the
resulting damages from both PAL and Espiritu without qualification, what is sought to
be imposed is the direct and primary liability of PAL as an employer under said Article
2180.
When an injury is caused by the negligence of an employee, there instantly arises a
presumption of law that there was negligence on the part of the employer either in the
selection of the employee or in the supervision over him after such selection. The
presumption, however, may be rebutted by a clear showing on the part of the
employer that it has exercised the care and diligence of a good father of a family in the
selection and supervision of his employee. 12
Hence, to escape solidary liability for the quasi-delict committed by Espiritu, it is
imperative that PAL must adduce sufficient proof that it exercised such degree of care.
PAL failed to overcome the presumption. As found by respondent court, CAL had
revised its schedule of flights since April 1, 1968; that after the Civil Aeronautics Board
had approved the revised schedule of flights, PAL was duly informed thereof and, in
fact, PAL's Manila Hotel branch office had been issuing and selling tickets based on
the revised time schedule before June 10, 1968.
PAL's main defense is that it is only an agent. As a general proposition, an agent who
duly acts as such is not personally liable to third persons. However, there are admitted
exceptions, as in this case where the agent is being sued for damages arising from a
tort committed by his employee.
The respondent court found that the mistake committed by Espiritu was done in good
faith. While there is no evidence that he acted with malice, we can not entirely
condone his actuations. As an employee of PAL, the nature of his functions requires
him to observe for the protection of the interests of another person that degree of care,
precaution and vigilance which the circumstances justly demand. He committed a
clear neglect of duty.
Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan under
Article 2176 of the Civil Code. For the failure of PAL to rebut the legal presumption of
negligence in the selection and supervision of its employee, it is also primarily liable
under Article 2180 of the same code which explicitly provides that employers shall be
liable for the damages caused by their employees and household helpers acting within
the scope of their assigned tasks, even though the former are not engaged in any
business or industry.
Under the aforesaid provision, all that is required is that the employee, by his
negligence, committed a quasi-delictwhich caused damage to another, and this
suffices to hold the employer primarily and solidarity responsible for the tortious act of
the employee. PAL, however, can demand from Espiritu reimbursement of the amount
which it will have to pay the offended party's claim. 13
On the issue of damages, we agree, except as to the amount, that nominal damages
may be awarded to respondent Pagsibigan to vindicate the legal wrong committed
against him. It appearing that the wrong committed was immediately rectified when
PAL promptly booked him for the next morning's flight to Taipei where he arrived
before noon of June 11, 1968 and was able to attend his scheduled conference, and
considering the concept and purpose of nominal damages, the award of P20,000.00
must accordingly be reduced to an amount equal or at least commensurate to the
injury sustained.

WHEREFORE, the decision of respondent Court of Appeals is MODIFIED

accordingly. China Air Lines, Ltd. is hereby absolved from liability. Philippine Air Lines,
Inc. and Roberto Espiritu are declared jointly and severally liable to pay the sum of
P10,000.00 by way of nominal damages, without prejudice to the right of Philippine Air
Lines, Inc. to recover from Roberto Espiritu reimbursement of the damages that it may
pay respondent Jose Pagsibigan.

SO ORDERED.
 CHINA AIRLINES LTD. contractIt is thus evident that when Pagsibigan sensed that he cannot hold CAL liable
on a quasi-delict, he made a detour on appeal, by claiming that his action against CAL
is based on breach of contract of carriage.SC did not allow Pagsibigan to change his
VS
theory at this stage because it would be unfair for CAL as it would have no opportunity
to present further evidence material to the new theory.But there is no basis to hold CAL
COURT OF APPEALS liable on a quasi-delict, hence its exoneration from any liability for fault or negligence.

G.R. No. 45985, 18 May 1990
This is a petition for review of the decision of the CA.
FACTS:
Jose Pagsibigan purchased a plane ticket for a Manila-Taipei-Hongkong-Manila flight
from the Transaire Travel Agency.The said agency contacted Philippine Airlines (PAL)
which at that time was a sales and ticketing agent of China Airlines (CAL).PAL, through
its ticketing agent Roberto Espiritu, issued to Pagsibigan the plane ticket which showed
that the latter had been booked at the June 10, 1968 5:20 PM flight of China Airlines,
departing from Manila for Taipei.When Pagisibigan showed up at the airport an hour
before the supposed scheduled time of departure, he was informed that the CAL plane
he was supposed to take for Taipei had left at 10:20 AM that day.The PAL employees
then made appropriate arrangements so that he could take the PAL’s flight toTaipei the
following day. Pagsibigan took the re-scheduled flight.A few months after, he filed
a complaint for moral damages and attorney’s fees against PAL. He alleged that Espiritu
had been grossly negligent in his duties.In its defense, PAL alleged that: (1) the
departure time indicated on Pagsibigan’s plane ticket was furnished and confirmed by
CAL; and (2) CAL did not inform the issuing PAL branch of the revised timetable of CAL
flights. Hence, PAL asserted a cross-claim against CAL.CAL, for its part, averred that:
(1) all airlines, including PAL, were informed of the revised schedule of flights; (2)
notices of these revised schedule were furnished to all sales agent; and (3) the issuing
PAL branch had in fact been issuing and selling tickets based on the revised
time schedule. Thus, CAL also asserted a cross claim against PAL.
With respect to PAL and Espiritu, PAL’s main defense is that is only an agent. As
a general proposition, an agent who duly acts as such is not personally liable to third
persons. However, there are admitted exceptions, as in this case where the agent is being
sued for damages arising from a tort committed by his employee. In an action premised
on the employee’s negligence, whereby Pagsibigan seeks recovery for the damages from
both PAL and Espiritu without qualification, what is sought to be imposed is the direct
and primary liability of PAL as an employer. When an injury is caused by the negligence
of an employee, there instantly arises a presumption of law that there was negligence on
the part of the employer. This presumption, however, may be rebutted by clear showing
on the part of the employer that it has exercised the care and diligence of a good father of
a family in the selection and supervision of his employee. PAL failed to overcome
such presumption. As found by CA, PAL was duly informed of CAL’s revised schedule,
and in fact, PAL had been issuing and selling ticket based on said revised time schedule.
For his negligence, Espiritu is primarily liable to Pagisbigan under Article 2176 of
the CC. For the failure of PAL to rebut the legal presumption of negligence, it is also
primarily liable under Article 2180 of CC. Under Article 2180, all that is required is that
the employee, by his negligence, committed a quasi-delict which caused damage to
another, and this suffices to hold the employer primarily and solidarily liable for the
tortious act of the employee. PAL, however, can demand from Espiritu reimbursement
of the amount which it will have to pay the offended party’s claim.

The trial court found PAL and Roberto Espiritu jointly and severally liable by way of
exemplary damages. It did not award moral damages. CAL was exonerated.CA ruled out
the claim for moral and exemplary damages, and instead awarded nominal damages.

ISSUE:Who should be held liable?

HELD:

The SC noted that Pagsibigan has opted to seek redress by pursuing two remedies at the
same time, that is, to enforce the civil liability of CAL for breach of contract and,
likewise, to recover from PAL and Espiritu for tort or culpa aquiliana.A perusal of
the complaint of Pagisbigan will disclose that the allegations therein make out a case for
a quasi-delict. Had Pagisibigan intended to maintain an action based on breach of
contract, he could have sued CAL alone considering that PAL is not a real party to the