Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 133317 June 29, 1999

ANTONIO R. AGRA, CAYETANO FERRERIA, NAPOLEON M. GAMO and VICENTE O.
NOVALES, petitioners,
vs.
PHILIPPINE NATIONAL BANK, respondent.

PANGANIBAN, J.:
Laches is a recourse in equity. Equity, however, is applied only in the absence, never in
contravention, of statutory law. Thus, laches cannot, as a rule, abate a collection suit filed within the
prescriptive period mandated by the Civil Code.
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the
November 26, 1997 Decision of the Court of Appeals, 1 which disposed as follows:
IN VIEW OF THE FOREGOING, the decision of the lower court is hereby
AFFIRMED, with the modification that the award of attorney's fees is hereby
DELETED and the twelve percent (12%) interest on the P2,500,000.00 the
defendant-appellants are to pay PNB should start from August 30, 1976, the date
when the complaint was filed. 2
The decreral portion of the aforementioned trial court ruling reads:
WHEREFORE, in view of the foregoing, in the interest of justice, judgment is
rendered in favor of the plaintiff ordering all the sureties jointly and severally, to pay
PNB as follows:
a) the amount of P2,500,000.00 plus
twelve per centum (12%) accrued interest from
August 1, 1976;
b) ten percent (10%) of the total amount due as
attorney's fees and cost of the suit.
SO ORDERED.
Also assailed by petitioners is the April 2, 1998 Resolution of the Court of Appeals, which denied
their Motion for Reconsideration. 3

The Facts
The facts are summarized by the Court of Appeals (CA) in this wise: 4
On August 30, 1976, an action for collection of a sum of money was filed by the
Philippine National Bank (PNB, for brevity) against Fil-Eastern Wood Industries, Inc.
(Fil-Eastern, for short) in its capacity as principal debtor and against Cayetano
Ferreria, Pedro Atienza, Vicente O. Novales, Antonio R. Agra, and Napoleon M.
Gamo in their capacity as sureties.
In its complaint, plaintiff PNB alleged that on July 17, 1967 Fil-Eastern was granted a
loan in the amount of [t]wo [m]illion [f]ive [h]undred [t]housand [p]esos
(P2,500,000.00) with interest at twelve percent (12%) per annum. Drawings from
said demand loan were made on different dates as evidenced by several promissory
notes and were credited to the account of Fil-Eastern. To secure the payment of the
said loan Fil-Eastern as principal and sureties Ferreria, Atienza, Novales, Agra, and
Gamo executed a Surety Agreement whereby the sureties, jointly and severally with
the principal, guaranteed and warranted to PNB, its successors or assigns, prompt
payment of subject obligation including notes, drafts, bills of exchange, overdrafts
and other obligations of every kind, on which Fil-Eastern was indebted or may
thereafter become indebted to PNB. It was further alleged that as of May 31, 1976
the total indebtedness of Fil-Eastern and its sureties on subject loan amounted to
[f]ive [m]illion [t]wo [h]undred [n]inety-[s]even [t]housand, [n]ine [h]undred [s]eventy[s]ix [p]esos and [s]eventeen [c]entavos (P5,297,976.17), excluding attorney's fees.
Notwithstanding repeated demands, the defendants refused and failed to pay their
loans.
The defendants (herein sureties) filed separate answers (pp. 49, 68, 205, 208 and
231). Collating these, We drew the following: All of them claimed that they only
signed the Surety Agreement with the understanding that the same was a mere
formality required of the officers of the corporation. They did not in any way or
manner receive a single cent from the proceeds of said loan and/or derive any profit
therefrom. Neither did they receive any consideration valuable or otherwise, from
defendant Fil-Eastern. They further claim that the loan in question was negotiated
and approved under highly irregular, anomalous and suspicious circumstances to the
point that the Surety Agreement executed thereafter is invalid, null and void and from
the beginning due to a defect in the consent of the defendants and that their liabilities
under the Surety Agreement, if any, has been extinguished by novation. The cause
of action of the complainant is barred by laches and estoppel in that the plaintiff with
full knowledge of the deteriorating financial condition of Fil-Eastern did not take steps
to collect from said defendant corporation while still solvent. They also maintained
that if anyone is liable for the payment of said loan, it is Felipe Ysmael, Jr. and not
them or it is only Fil-Eastern and the controlling officers who profited and made use
of the proceeds of the loan. Defendant Agra likewise said that he was made to sign
the Surety Agreement and he did it because of the moral influence and pressure
exerted upon him by Felipe Ysmael, Jr. (their employer at the time of signing),
thereby arousing strong fears of losing a much needed employment to support his
family should he refuse to sign as Surety.
In the order of the trial court dated October 30, 1978, defendant Fil-Eastern was
declared in default for its failure to answer the complaint within the reglementary
period and the case was scheduled for pre-trial conference. The individual

defendants with the court's approval thereafter filed an amended third-party

complaint against Felipe Ysmael, Jr.
The amended third-party complaint alleged that at the time of execution of the
alleged Surety Agreement subject matter of the principal complaint, third-party
plaintiffs were but employees of Ysmael Steel Manufacturing Co., owned by thirdparty-defendant. Third party plaintiffs were in no financial position to act as sureties
to a P2.5 million loan. They became incorporators of original defendant Fil-Eastern
because of fear of losing their employment brought about by the tremendous
pressure and moral influence exerted upon them by their employer-third-partydefendant. They signed the Surety Agreement upon the order of the third-partydefendant. In signing the said document, the third-party-plaintiffs were assured by
the third-party-defendant that they had nothing to fear and worry about because the
latter will assume all liabilities as well as profits therefrom and that the loan subject of
the Surety Agreement was with the prior approval and blessing of a high government
official. They were likewise assured that the surety agreement was but a formality
and that because of such pressure, influence as well as assurances, third-partyplaintiffs signed the Surety Agreement.
Third-party-defendant Felipe Ysmael, Jr. in his answer alleged that the Surety
Agreement was freely and voluntarily signed and executed by third-party-plaintiffs
without any intimidation, undue, improper or fraudulent representations. Further,
granting arguendo that the consent of third-party plaintiffs in signing said Surety
Agreement was vitiated with intimidation, undue influence or fraudulent
representation on the part of third-party-defendant, said Surety Agreement is only
voidable and therefore binding unless annulled by a proper action in court. The thirdparty-plaintiffs did not file the proper court action for the annulment of said
agreement. They are now barred from filing an action for annulment of said
agreement, the prescriptive period therefor being only four (4) years from the time
the defect of the consent had ceased, and from the discovery of the all[e]ged fraud.
In addition, third-party plaintiffs had ratified said agreement which they signed in July
1967 by signing their names on and execution of several promissory thereafter.
At the pre-trial conference held on March 21, 1980, the parties failed to agree on a
possible amicable settlement hence the case was set for trial on the merits. On July
5, 1984, during the pendency of the trial, third-party defendant Felipe Ysmael, Jr.
died. He was substituted by his legal heirs Patrick Ysmael and Jeanne Ysmael as
third-party defendants. Defendant Pedro Atienza died on January 4, 1987. It
appearing that he has no legal heirs, the case against him dismissed.
After trial, the regional trial court (RTC) ruled against herein petitioners. On appeal, the CA modified
the RTC ruling by deleting the award of attorney's fees. Hence, this recourse to this Court.
Ruling of the Court of Appeals
In ruling that petitioners were liable under the surety agreement, the Court of Appeals rejected their
defense of laches. It held that "the lapse of seven years and eight months from December 31, 1968
until the judicial demand on August 30, 1976 cannot be considered as unreasonable delay which
would necessitate the application of laches. The action filed by the plaintiff has not yet prescribed. It
is well within the ten-year prescriptive period provided for by law wherein actions based on written
contracts can be instituted." 5

The Court of Appeals also noted that the "prescriptive period did not begin to run from December 31,
1968 as [herein petitioners] presupposed. It was only from the time of the judicial demand on August
30, 1976 that the cause of action accrued. Thus, [private respondent] was well within the prescriptive
period of ten years when it instituted the case in court." The Court of Appeals further ruled that
"placing the blame on [PNB] for its failure to immediately pounce upon its debtors the moment the
loan matured is grossly unfair for . . . demand upon the sureties to pay is not necessary."
The appellate court also held that petitioners proved only the first of the following four essential
elements of laches: "(1) conduct on the part of the defendant, or one under whom he claims, giving
rise to the situation of which complaint in made and for which the complainant seeks a remedy; (2)
delay in asserting the complainant's rights, the complainant having had knowledge or notice of the
defendant's conduct and having been afforded an opportunity to institute a suit, (3) lack of
knowledge or notice on the part of the defendant that the complainant would assert the right on
which he bares his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to
the complainant, or the suit is not held barred."
Issues
In their Memorandum, petitioners raise the following issues: 6
1. WHETHER OR NOT THE CLAIM OF THE PNB AGAINST THE PETITIONERS IS
ALREADY BARRED BY THE EQUITABLE DEFENSE OF LACHES?
2. WHETHER OR NOT THE RESPECTIVE CONJUGAL PARTNERSHIPS OF THE
PETITIONERS COULD BE HELD LIABLE FOR ANY LIABILITY OF THE
PETITIONERS UNDER THE SURETY AGREEMENT IN FAVOR OF THE PNB?
Under the first issue, petitioners submit four other questions:
1-a WHETHER OR NOT THE EQUITABLE DEFENSE OF LACHES APPLIES
INDEPENDENTLY OF PRESCRIPTION?
1-b WHETHER OR NOT THE CAUSE OF ACTION OF THE PNB AGAINST THE
PETITIONERS ACCRUED ONLY FROM THE TIME OF THE JUDICIAL DEMAND
ON AUGUST 30, 1976?
1-c WHETHER OR NOT THE FOUR (4) WELL-SETTLED ELEMENTS OF LACHES
ARE PRESENT IN THIS CASE?
1-d WHETHER OR NOT THE RULING IN THE CASE OF PHILIPPINE NATIONAL
BANK VS. COURT OF APPEALS, 217 SCRA 347, IS APPLICABLE IN THIS
INSTANT CASE?
In the main, the issue is whether petitioners may raise the defense of laches in order to avoid their
liability under the surety agreement. Preliminarily, we shall also take up the question of petitioners'
liability as sureties.
The Court's Ruling
The appeal is not meritorious.

Preliminary Matter:
Liability of Petitioners as Sureties
The present controversy began when the Philippine National Bank (PNB) sought to enforce the
Surety Agreement. The pertinent provisions of said Agreement are as follows:
WHEREAS, FIL-EASTERN WOOD INDUSTRIES, INC. herein referred to as the
Principal, has obtained and/or desires to obtain certain credits, loans, overdrafts,
discounts, etc., from the Creditor, for all of which the Creditor requires security; and
the Surety, on account of valuable consideration received from the Principal, has
agreed and undertake to assist the principal by becoming such Surety.
NOW THEREFORE, for the purpose above mentioned, the Surety, jointly and
severally with the Principal, hereby guarantees and warrants to the Creditor, its
successors or assigns, the prompt payment at maturity of all the notes, drafts, bills of
exchange, overdrafts and other obligations of every kind, on which the Principal may
now be indebted or may hereafter become indebted to the Creditor, but the liability of
the Surety shall not at any time exceed the sum of TWO MILLION FIVE HUNDRED
THOUSAND ONLY (P2,500.00.00), Philippine Currency, plus the interest thereon at
the rate of (%) per cent annum, and the cost and expenses of the Creditor incurred
in connection with the granting of the credits, loans, overdrafts, etc., covered by this
surety agreement, including those for the custody, maintenance and preservation of
the securities given therefor and also for the collection thereof.
Both the Principal and the Surety shall be considered in default when they fail to pay
the obligation upon maturity with or without demand and in such case the Surety
agrees to pay to the creditor, its [successor] or assigns, all outstanding obligations of
the Principal, whether due or not due and whether held by the Creditor as principal or
agent, and it is agreed that a certified statement by the Creditor as to the amount due
from the Principal shall be accepted as correct by the Surety without question.
The Surety expressly waives all rights to demand for payment and notice of nonpayment and protest, and agrees that the securities of every kind, that are now and
may hereafter be left with the Creditor, its successors, indorsees or assigns, as
collateral to any evidence of debt or obligations or upon which a lien may exist
thereon may be withdrawn or surrendered at any time, and the time of payment
thereof extended, without notice to, or consent by the Surety; and that the liability on
this guaranty shall be solidary, direct and immediate and not contingent upon the
pursuit by the Creditor, its successors, indorsees or assigns, of whatever remedies it
or they have against the Principal or the securities or liens it or they may possess
and the Surety will at any time, whether due or not due, pay to the Creditor with or
without demand upon the Principal, any obligation or indebtedness of the Principal
not in excess of the amount abovementioned.
This instrument is intended to be a complete and perfect indemnity to the Creditor to
the extent above stated, for any indebtedness or liability of any kind owing by the
Principal to the Creditor from time to time, and to be valid and continuous without
further notice to the Surety, and may be revoked by the Surety at any time, but only
after forty-eight hours notice in writing to the Creditor, and such revocation shall not
operate to relieve the Surety from responsibility for obligations incurred by the
Principal prior to the termination of such period. (Emphasis supplied.)

It must be stressed that petitioners, as sureties, bound themselves solidarily for the obligation of FilEastern to PNB. Petitioners admit that they signed the Surety Agreement, but they challenge their
liability thereon on the ground that they were allegedly coerced by their employer into signing the
deed. The argument is too late at best.
As pointed out by the Court of Appeals, petitioners failed to challenge their consent to the
Agreement within the prescriptive period. Article 1391 of the Civil Code provides that the action to
annul a contract vitiated by intimidation, violence or undue influence shall be filed within four years
from the cessation of such defects. In this case, Petitioners Agra, Gamo and Novales resigned from
Fil-Eastern in 1967, 1968 and 1969, respectively. It was only in 1976, when PNB sought to enforce
the contract, that they alleged a defect in their consent. By their inaction, their alleged cause of
action based on vitiated consent had precribed. There was no question that petitioners, in their
capacity as sureties, were answerable for the obligations of Fil-Eastern to PNB.
We shall now go to the main issue of this case: Whether petitioners may invoke the defense of
laches, considering that PNB's claim had not yet prescribed.
Main Issue: Laches
Petitioners admit that PNB's claim, though filed more than seven years from the maturity of the
obligation, fell within the ten-year prescriptive period. They argue, however, that the cause was
already barred by laches, which is defined as "the failure or neglect for an unreasonable or
unexplained length of time to do that which by exercising due diligence, could or should have been
done earlier warranting a presumption that he has abandoned his right or declined to assert it." 7 In
arguing that the appellate court erred in rejecting the defense of laches, petitioners cite four reasons: (1)
the defense of laches applies independently of prescription; (2) the cause of action against petitioners
accrued from the maturity of the obligation, not from the time of judicial demand; (3) the four well-settled
elements of laches were duly proven; and (4) PNB v. CA applies in the instant case. As will be shown
below, all these arguments are devoid of merit.

Application of Laches
Assailing the CA ruling that laches was inapplicable because the claim was brought within the tenyear prescriptive period, petitioners stress that the defense of laches differs from and is applied
independently of prescription. In support, they cite, among others, Nielson & Co., Inc. v. Lepanto
Consolidated Mining Co., 8 in which the Supreme Court ruled:
[T]he defense of laches applies independently of prescription. Laches is different
from the statute of limitations. Prescription is concerned with the fact of delay,
whereas laches is concerned with the effect of delay. Prescription is a matter of time;
laches is principally a question of inequity of permitting a claim to be enforced, this
inequity being founded on some change in the condition of the property or the
relation of the parties. Prescription is statutory; laches is not. Laches applies in
equity; whereas prescription applies at law. Prescription is based on fixed time,
laches is not.
True, prescription is different from laches, but petitioners' reliance on Nielson is misplaced. As held
in the aforecited case, laches is principally a question of equity. Necessarily, "there is no absolute
rule as to what constitutes laches or staleness of demand; each case is to be determined according
to its particular circumstances. The question of laches is addressed to the sound discretion of the
court and since laches is an equitable doctrine, its application is controlled by equitable
considerations." 9 Petitioners, however, failed to show that the collection suit against herein sureties was

inequitable. Remedies in equity address only situations tainted with inequity, not those expressly
governed by statutes. Indeed, the petitioners failed to prove the presence of all the four established
requisites of laches, viz:

(1) conduct on the part of the defendant or one under whom he claims, giving rise to
the situation of which complaint is made and for which the complainant seeks a
remedy;
(2) delay in asserting the complainant's right, the complainant having had knowledge
or notice of defendant's conduct and having been afforded an opportunity to institute
a suit;
(3) lack of knowledge or notice on the part of the defendant that the complainant
would assert the right on which he bases his claim; and
(4) injury or prejudice to the defendant in the event relief accorded to the
complainant, or the suit is not held barred. 10
That the first element exists is undisputed. Neither Fil-Eastern nor the sureties, herein petitioners,
paid the obligation under the Surety Agreement.
The second element cannot be deemed to exist. Although the collection suit was filed more than
seven years after the obligation of the sureties became due, the lapse was within the prescriptive
period for filing an action. In this light, we find immaterial petitioners' insistence that the cause of
action accrued on December 31, 1968, when the obligation became due, and not on August 30,
1976, when the judicial demand was made. In either case, both submissions fell within the ten-year
prescriptive period. In any event, "the fact of delay, standing alone, is insufficient to constitute
laches." 11
Petitioners insist that the delay of seven years was unreasonable and unexplained, because
demand was not necessary. Again we point that, unless reasons of inequitable proportions are
adduced, a delay within the prescriptive period is sanctioned by law and is not considered to be a
delay that would bar relief. In Chavez v. Bonto-Perez, 12 the Court reiterated an earlier holding, viz:
Laches is a doctrine in equity while prescription is based on law. Our courts are
basically courts of law and not courts of equity. Thus, laches cannot be invoked to
resist the enforcement of an existing legal right. We have ruled in Arsenal v.
Intermediate Appellate Court . . . that it is a long standing principle that equity follows
the law. Courts exercising equity jurisdiction are bound by rules of law and have no
arbitrary discretion to disregard them. In Zabat, Jr. v. Court of Appeals . . ., this Court
was more emphatic in upholding the rules of procedure. We said therein:
As for equity, which has been aptly described as "justice outside
legality," this is applied only in the absence of, and never against,
statutory law or, as in this case, judicial rules of procedure. Aequetas
nunquam contravenit legis. This pertinent positive rules being present
here, they should preempt and prevail over all abstract arguments
based only on equity.
Thus, where the claim was filed within the three-year statutory period, recovery
therefore cannot be barred by laches.

Petitioners also failed to prove the third element of laches. It is absurd to maintain that petitioners did
not know that PNB would assert its right under the Surety Agreement. It is unnatural, if not unheard
of, for banks to condone debts without adequate recompense in some other form. Petitioners have
not given us reason why they assumed that PNB would not enforce the Agreement against them.
Finally, petitioners maintain that the fourth element is present because they would suffer damage or
injury as a result of PNB's claim. This is the crux of the controversy. In addition to the payment of the
amount stipulated in the Agreement, other equitable grounds were enumerated by petitioners, viz:
1. Petitioners acted as sureties under pressure from Felipe "Baby" Ysmael, Jr., the
headman of the Ysmael Group of Companies where the petitioners were all
employed in various executive positions.
2. Petitioners did not receive a single centavo in consideration of their acting as
sureties.
3. The surety agreement was not really a requisite for the grant of the loan to FILEASTERN because the first release on the loan was made on July 17, 1967, or even
before the Surety Agreement was executed by petitioners on July 21, 1967.
4. Petitioners were assured that the Surety Agreement was merely a formality, and
they had reason to believe that assurance because the loan was principally secured
by an assignment of 15% of the proceeds of the sale of logs of FIL-EASTERN to Iwai
& Co., Ltd., and such assignment was clearly stated in PNB Board Resolution No.
407. In fact, while it was expressly stated in all of the eight (8) promissory notes
covering the releases of the loan that the said loan was secured by 15% of the
contract of sale with Iwai & Co., Ltd., only three (3) promissory notes stated that the
loan was also secured by the "joint and several signatures of the officers of the
corporation". It is to be noted that no mention was even made of the joint and several
signatures of petitioners as sureties. In other words, the principal security was the
assignment of 15% of the contract for the sale of logs to Iwai & Co., Ltd.
5. For reasons not explained by PNB, PNB did not collect the 15% of the proceeds of
the sale of the logs to Iwai & Co., Ltd., and such failure resulted in the non-collection
of the P2,500,000.00 demand loan, or at least a portion of it.
6. For reasons likewise unexplained by PNB, PNB did not make any demand upon
petitioners to pay the unpaid loan of FIL-EASTERN until after FIL-EASTERN had
become bankrupt, and PNB was aware of this fact because it foreclosed the chattel
mortgages on the other loans of FIL-EASTERN which were secured by said chattel
mortgages. 13 (Emphasis found in the original.)
These circumstances do not justify the application of laches. Rather, they disclose petitioners' failure
to understand the language and the nature of the Surety Arrangement. They cannot now argue that
the Surety Agreement was merely a formality, secondary to the assignment of 15 percent of the
proceeds of the sale of Fil-Eastern's logs to Iwai and Co., Ltd. Neither can they rely on PNB's failure
to collect the assigned share in the sale of the logs or to make a demand on petitioners until after FilEastern had become bankrupt. The Court stresses that the obligation of a surety is direct, primary
and absolute. Thus, the Court has held:
[A]lthough the contract of a surety is in essence secondary only to a valid principal
obligation, his liability to the creditor or promisee of the principal is said to be direct,

primary, and absolute; in other words, he is directly and equally bound with the
principal. The surety therefore becomes liable for the debt or duty of another
although he possesses no direct or personal interest over the obligations nor does he
receive any benefit therefrom. 14
When petitioners signed as sureties, they expressly and unequivocally agreed to the stipulation that
"the liability on this guaranty shall be solidary, direct and immediate and not contingent upon the
pursuit by the creditor, its successors, indorsees or assigns, of whatever remedies it or they have
against the principal or the securities or liens it or they may possess."
If they had mistaken the import of the Surety Agreement, they could have easily asked for its
revocation. The Agreement stipulates that it "may be revoked by the Surety at any time, but only
after forty-eight hours notice in writing to the Creditor, and such revocation shall not operate to
relieve the Surety from responsibility for obligations incurred by the Principal prior to the terrmnation
of such period." This they did not do.
Equally unavailing is petitioners' allegation that the Surety Agreement was not a requisite for the
grant of the loan. Even if their assertion is true, the fact remains that they signed the contract and
voluntarily bound themselves to be solidarily liable for the loan amounting to P2,500,000.
The other "equitable" circumstances above enumerated fail to support petitioners' cause. As earlier
stated, petitioners are already barred from questioning the voluntariness of their consent.
Furthermore, this Court has categorically ruled that a surety is liable for the debt of another, although
he or she received no benefit therefrom. 15
Clearly, aside from the fact that the collection suit was filed only after the lapse of seven years from
the date the obligation became due and demandable, petitioners failed to adduce any showing of
inequity. Hence, the rules on equity cannot protect them.
Applicability of PNB v. CA
Petitioners allege that the CA committed grave error in failing to apply PNB v. Court of
Appeals, 16 which they insist to be analogous to the present case. The facts in said case are as follows:
Private Respondent B.P. Mata & Co. Inc. (Mata), is a private corporation engaged in
providing goods and services to shipping companies. Since 1966, it has acted as a
manning or crewing agent for several foreign firms, one of which is Star Kist foods,
Inc., USA (Star Kist). As part of their agreement, Mata makes advances for the
crew's basic personal needs. Subsequently, Mata sends monthly billings to its foreign
principal Star Kist, which in turn reimburses Mata by sending a telegraphic transfer
through banks for credit to the latter's account.
Against this background, on February 21, 1975, Security Pacific National Bank
(SEPAC) of Los Angeles which had an agency arrangement with Philippine National
Bank (PNB), transmitted a cable message to the International Department of PNB to
pay the amount of US$14,000 to Mata by crediting the latter's account with the
Insular Bank of Asia and America (IBAA), per order of Star Kist. Upon receipt of this
cabled message on February 24, 1975, PNB's International Department noticed an
error and sent a service message to SEPAC Bank. The latter replied with the
instructions that the amount of US$14,000 should only be for US$1,400.

On the basis of the cable message dated February 24, 1975, Cashier's Check No.
269522 in the amount of US$1,400 (P9,772.96) representing reimbursement from
Star Kist, was issued by the Star Kist for the account of Mata on February 25, 1975
through the Insular Bank of Asia and America (IBAA).
However, fourteen days after or on March 11, 1975, PNB effected another payment
through Cashier's Check No. 270271 in the amount of US$14,000 (P97,878.60)
purporting to be another transmittal of reimbursement from Star Kist, private
respondent's foreign principal.
Six years later, or more specifically, on May 13, 1981, PNB requested Mata for
refund of US$14,000 (P97,878.60) after it discovered its error in effecting the second
payment.
On February 4, 1982, PNB filed a civil case for collection and refund of US$14,000
against Mata arguing that based on a constructive trust under Article 1456 of the Civil
Code, it has a right to recover the said amount it erroneously credited to respondent
Mata. 17
On the ground of laches, the Court decided against the claim of PNB, stating that:
[i]t is amazing that it took petitioner almost seven years before it discovered that it
had erroneously paid private respondent. Petitioner would attribute its mistake to the
heavy volume of international transactions handled by the Cable and Remittance
Division of the International Department of PNB. Such specious reasoning is not
persuasive. It is unbelievable for a bank, and a government bank at that, which
regularly publishes its balanced financial statements annually or more frequently, by
the quarter, to notice its error only seven years later. As a universal bank with
worldwide operations, PNB cannot afford to commit such costly mistakes. Moreover,
as between parties where negligence is imputable to one and not to the other, the
former must perforce bear the consequences of its neglect. Hence, petitioner should
bear the cost of its own negligence.
Petitioners maintain that the delay in PNB v. CA was even shorter than that in the present case. If
the bank in the aforesaid case was negligent in not discovering the overpayment, herein petitioners
assert that the negligence was even more culpable in the present case. They add that, given the
standard practice of banks to flag delinquent accounts, the inaction for almost seven years of herein
respondent bank was gross and inexcusable.
We are not persuaded. There are no absolute rules in the application of equity, and each case must
be examined in the light of its peculiar facts. In PNB v. CA, there was a mistake, an inexcusable one,
on the part of petitioner bank in making an overpayment and repeating the same error fourteen days
later. If the bank could not immediately discover the mistake despite all its agents and employees,
the beneficiary of the amount could not be expected to do so. It is, thus, inequitable to allow PNB to
collect the amount, after such a long delay, from the beneficiary who had assumed, after all those
years, that the amount really belonged to it.
In the present case, there is no showing of any mistake or any inequity. The fact alone that seven
years had lapsed before PNB filed the collection suit does not mean that it discovered the obligation
of the sureties only then. There was a Surety Arrangement, and the law says that the said contract
can be enforced by action within ten years. The bank and the sureties all knew that the action to
enforce the contract did not have to be filed immediately. In other words, the bank committed no

mistake or inequitable conduct that needed correction, and the sureties had no misconception about
their liabilities under the contract.
Clearly, petitioners have no recourse in equity, because they failed to show any inequity on the part
of PNB.
Additional Issue:
Liability of Conjugal Assets
In their Memorandum, petitioners belatedly ask the Court to rule that, in case of a court ruling
adverse to them, the conjugal properties would not be liable for the husbands' debts that did not
redound to the benefit of the conjugal partnership. 8
This issue cannot be allowed, for it is being raised for the first time only in petitioners' Memorandum.
Issues, arguments, theories and causes of action not raised below may no longer be posed on
appeal. 19 Furthermore, petitioners are asking the Court to issue a ruling on a hypothetical situation. In
effect, they are asking the Court to render an advisory opinion, a task which is beyond its constitutional
mandate.

WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals is
AFFIRMED. Costs against petitioners.
1w phi 1.nt

SO ORDERED.
Vitug, Purisima and Gonzaga-Reyes, JJ., concur.
Romero, J., abroad on official business.
Footnotes

1 Penned by J. Arturo B. Buena (now Associate Justice of the Supreme Court), division
chairman; with the concurrence of JJ. Buenaventura J. Guerrero and Portia AlinoHormachuelos, members.
2 CA Decision, p. 14; rollo, p. 43.
3 Rollo, p. 45.
4 CA Decision, pp. 1-4; rollo, pp. 30-33. The case was deemed submitted for resolution on
January 28, 1999, when the Court received petitioners' Reply Memorandum.
5 CA Decision, p. 10; rollo, p. 39.
6 Petitioners' Memorandum, p. 5; rollo, p. 148.
7 Vitug, Compendium of Civil Law and Jurisprudence, pp. 570-571; citing Madeja v. Patcho
132 SCRA 540.

8 18 SCRA 1040, December 17, 1966, per Zaldivar, J. See also Heirs of Batiog Lacamen v.
Heirs of Laruan, 65 SCRA 605, 609, July 31, 1975; Radio Communication of the Philippines,
Inc. v. NLRC, 233 SCRA 656, June 25, 1993; Jimenez v. Fernandez, 184 SCRA 190, 196
April 6, 1990; Santiago v. Court of Appeals, 278 SCRA 98, August 21, 1997, per
Hermosisima, Jr. J.
9 Jimenez v. Fernandez, 184 SCRA 196, April 6, 1990, per Paras, J.
10 Catholic Bishop of Balanga v. CA, 264 SCRA 181, November 14, 1996, per Hermosisima
Jr., J.; Go Chi Gun, et al, v. Co Cho, et al., 96 Phil. 622, February 28, 1995; Mejia de Lucas
v. Gamponia, 100 Phil. 277, October 31, 1956; Z.E. Lotho, Incv. Ice & Cold Storage
Industries, Inc., 3 SCRA 744, December 28, 1961; Abraham v. Recto-Kasten, 4 SCRA 298,
June 31, 1962; Custodio v. Casiano, 9 SCRA 841, December 27, 1963; Nielzen & Co., Inc.
v. Lepanto Consolidated Mining Co., 18 SCRA 1040, December 17, 1966; Miguel v.
Catalino, 26 SCRA 234, November 29, 1968; Yusingco v. Ong Hing Lian, 42 SCRA 589,
December 24, 1971; Perez v. Ong Chua, 16732, September 23, 1982; Rafols v. Barba, 119
SCRA 146, December 13, 1982; Chung Ka Bio v. Intermediate Appellate Court, supra;
Claverias v. Quingco, 207 SCRA 66, 83 March 6, 1992; Buenaventura v. Court of Appeals,
216 SCRA 818, 824, December 28, 1992.
11 Chavez v. Bonto-Perez, 242 SCRA 73, March 1, 1995, per Puno, J.
12 242 SCRA 81, supra; quoting Imperial Valley Shipping Agency v. NLRC, 200 SCRA 178,
August 5, 1991.
13 Petitioners' Memorandum, pp. 17-18; rollo, pp. 160-161.
14 Garcia v. Court of Appeals, 191 SCRA 493, November 20, 1990, per Cruz, J.
15 Ibid.
16 217 SCRA 347, January 21, 1993, per Romero, J.
17 PNB v. CA , supra, pp. 350-351.
18 Petitioners' Memorandum, p. 27; rollo, p. 170.
19 San juan Structural v. CA, GR No. 129459, September 29, 1998; Keng Hua Pape Product
Co., Inc v. CA, GR No. 116863, February 12, 1998.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-3756

June 30, 1952

SAGRADA ORDEN DE PREDICADORES DEL SANTISMO ROSARIO DE FILIPINAS, plaintiffappellee,

vs.
NATIONAL COCONUT CORPORATION, defendant-appellant.
First Assistant Corporate Counsel Federico C. Alikpala and Assistant Attorney Augusto Kalaw for
appellant.
Ramirez and Ortigas for appellee.
LABRADOR, J.:
This is an action to recover the possession of a piece of real property (land and warehouses)
situated in Pandacan Manila, and the rentals for its occupation and use. The land belongs to the
plaintiff, in whose name the title was registered before the war. On January 4, 1943, during the
Japanese military occupation, the land was acquired by a Japanese corporation by the name of
Taiwan Tekkosho for the sum of P140,00, and thereupon title thereto issued in its name (transfer
certificate of title No. 64330, Register of Deeds, Manila). After liberation, more specifically on April 4,
1946, the Alien Property Custodian of the United States of America took possession, control, and
custody thereof under section 12 of the Trading with the Enemy Act, 40 Stat., 411, for the reason
that it belonged to an enemy national. During the year 1946 the property was occupied by the Copra
Export Management Company under a custodianship agreement with United States Alien Property
Custodian (Exhibit G), and when it vacated the property it was occupied by the defendant herein.
The Philippine Government made representations with the Office Alien Property Custodian for the
use of property by the Government (see Exhibits 2, 2-A, 2-B, and 1). On March 31, 1947, the
defendant was authorized to repair the warehouse on the land, and actually spent thereon the
repairs the sum of P26,898.27. In 1948, defendant leased one-third of the warehouse to one
Dioscoro Sarile at a monthly rental of P500, which was later raised to P1,000 a month. Sarile did not
pay the rents, so action was brought against him. It is not shown, however, if the judgment was ever
executed.
Plaintiff made claim to the property before the Alien Property Custodian of the United States, but as
this was denied, it brought an action in court (Court of First Instance of Manila, civil case No. 5007,
entitled "La Sagrada Orden Predicadores de la Provinicia del Santisimo Rosario de Filipinas," vs.
Philippine Alien Property Administrator, defendant, Republic of the Philippines, intervenor) to annul
the sale of property of Taiwan Tekkosho, and recover its possession. The Republic of the Philippines
was allowed to intervene in the action. The case did not come for trial because the parties presented
a joint petition in which it is claimed by plaintiff that the sale in favor of the Taiwan Tekkosho was null
and void because it was executed under threats, duress, and intimidation, and it was agreed that the
title issued in the name of the Taiwan Tekkosho be cancelled and the original title of plaintiff reissued; that the claims, rights, title, and interest of the Alien Property Custodian be cancelled and
held for naught; that the occupant National Coconut Corporation has until February 28, 1949, to
recover its equipment from the property and vacate the premises; that plaintiff, upon entry of
judgment, pay to the Philippine Alien Property Administration the sum of P140,000; and that the
Philippine Alien Property Administration be free from responsibility or liability for any act of the

National Coconut Corporation, etc. Pursuant to the agreement the court rendered judgment
releasing the defendant and the intervenor from liability, but reversing to the plaintiff the right to
recover from the National Coconut Corporation reasonable rentals for the use and occupation of the
premises. (Exhibit A-1.)
The present action is to recover the reasonable rentals from August, 1946, the date when the
defendant began to occupy the premises, to the date it vacated it. The defendant does not contest
its liability for the rentals at the rate of P3,000 per month from February 28, 1949 (the date specified
in the judgment in civil case No. 5007), but resists the claim therefor prior to this date. It interposes
the defense that it occupied the property in good faith, under no obligation whatsoever to pay rentals
for the use and occupation of the warehouse. Judgment was rendered for the plaintiff to recover
from the defendant the sum of P3,000 a month, as reasonable rentals, from August, 1946, to the
date the defendant vacates the premises. The judgment declares that plaintiff has always been the
owner, as the sale of Japanese purchaser was void ab initio; that the Alien Property Administration
never acquired any right to the property, but that it held the same in trust until the determination as to
whether or not the owner is an enemy citizen. The trial court further declares that defendant can not
claim any better rights than its predecessor, the Alien Property Administration, and that as defendant
has used the property and had subleased portion thereof, it must pay reasonable rentals for its
occupation.
Against this judgment this appeal has been interposed, the following assignment of error having
been made on defendant-appellant's behalf:
The trial court erred in holding the defendant liable for rentals or compensation for the use
and occupation of the property from the middle of August, 1946, to December 14, 1948.
1. Want to "ownership rights" of the Philippine Alien Property Administration did not render
illegal or invalidate its grant to the defendant of the free use of property.
2. the decision of the Court of First Instance of Manila declaring the sale by the plaintiff to the
Japanese purchaser null and void ab initio and that the plaintiff was and has remained as the
legal owner of the property, without legal interruption, is not conclusive.
3. Reservation to the plaintiff of the right to recover from the defendant corporation not
binding on the later;
4. Use of the property for commercial purposes in itself alone does not justify payment of
rentals.
5. Defendant's possession was in good faith.
6. Defendant's possession in the nature of usufruct.
In reply, plaintiff-appellee's counsel contends that the Philippine Allien Property Administration
(PAPA) was a mere administrator of the owner (who ultimately was decided to be plaintiff), and that
as defendant has used it for commercial purposes and has leased portion of it, it should be
responsible therefore to the owner, who had been deprived of the possession for so many years.
(Appellee's brief, pp. 20, 23.)
We can not understand how the trial court, from the mere fact that plaintiff-appellee was the owner of
the property and the defendant-appellant the occupant, which used for its own benefit but by the

express permission of the Alien Property Custodian of the United States, so easily jumped to the
conclusion that the occupant is liable for the value of such use and occupation. If defendantappellant is liable at all, its obligations, must arise from any of the four sources of obligations,
namley, law, contract or quasi-contract, crime, or negligence. (Article 1089, Spanish Civil Code.)
Defendant-appellant is not guilty of any offense at all, because it entered the premises and occupied
it with the permission of the entity which had the legal control and administration thereof, the Allien
Property Administration. Neither was there any negligence on its part. There was also no privity (of
contract or obligation) between the Alien Property Custodian and the Taiwan Tekkosho, which had
secured the possession of the property from the plaintiff-appellee by the use of duress, such that the
Alien Property Custodian or its permittee (defendant-appellant) may be held responsible for the
supposed illegality of the occupation of the property by the said Taiwan Tekkosho. The Allien
Property Administration had the control and administration of the property not as successor to the
interests of the enemy holder of the title, the Taiwan Tekkosho, but by express provision of law
(Trading with the Enemy Act of the United States, 40 Stat., 411; 50 U.S.C.A., 189). Neither is it a
trustee of the former owner, the plaintiff-appellee herein, but a trustee of then Government of the
United States (32 Op. Atty. Gen. 249; 50 U.S.C.A. 283), in its own right, to the exclusion of, and
against the claim or title of, the enemy owner. (Youghioheny & Ohio Coal Co. vs. Lasevich [1920],
179 N.W., 355; 171 Wis., 347; U.S.C.A., 282-283.) From August, 1946, when defendant-appellant
took possession, to the late of judgment on February 28, 1948, Allien Property Administration had
the absolute control of the property as trustee of the Government of the United States, with power to
dispose of it by sale or otherwise, as though it were the absolute owner. (U.S vs. Chemical
Foundation [C.C.A. Del. 1925], 5 F. [2d], 191; 50 U.S.C.A., 283.) Therefore, even if defendantappellant were liable to the Allien Property Administration for rentals, these would not accrue to the
benefit of the plaintiff-appellee, the owner, but to the United States Government.
But there is another ground why the claim or rentals can not be made against defendant-appellant.
There was no agreement between the Alien Property Custodian and the defendant-appellant for the
latter to pay rentals on the property. The existence of an implied agreement to that effect is contrary
to the circumstances. The copra Export Management Company, which preceded the defendantappellant, in the possession and use of the property, does not appear to have paid rentals therefor,
as it occupied it by what the parties denominated a "custodianship agreement," and there is no
provision therein for the payment of rentals or of any compensation for its custody and or occupation
and the use. The Trading with the Enemy Act, as originally enacted, was purely a measure of
conversation, hence, it is very unlikely that rentals were demanded for the use of the property. When
the National coconut Corporation succeeded the Copra Export Management Company in the
possession and use of the property, it must have been also free from payment of rentals, especially
as it was Government corporation, and steps where then being taken by the Philippine Government
to secure the property for the National Coconut Corporation. So that the circumstances do not justify
the finding that there was an implied agreement that the defendant-appellant was to pay for the use
and occupation of the premises at all.
The above considerations show that plaintiff-appellee's claim for rentals before it obtained the
judgment annulling the sale of the Taiwan Tekkosho may not be predicated on any negligence or
offense of the defendant-appellant, or any contract, express or implied, because the Allien Property
Administration was neither a trustee of plaintiff-appellee, nor a privy to the obligations of the Taiwan
Tekkosho, its title being based by legal provision of the seizure of enemy property. We have also
tried in vain to find a law or provision thereof, or any principle in quasi contracts or equity, upon
which the claim can be supported. On the contrary, as defendant-appellant entered into possession
without any expectation of liability for such use and occupation, it is only fair and just that it may not
be held liable therefor. And as to the rents it collected from its lessee, the same should accrue to it
as a possessor in good faith, as this Court has already expressly held. (Resolution, National
Coconut Corporation vs. Geronimo, 83 Phil. 467.)

Lastly, the reservation of this action may not be considered as vesting a new right; if no right to claim
for rentals existed at the time of the reservation, no rights can arise or accrue from such reservation
alone.
Wherefore, the part of the judgment appealed from, which sentences defendant-appellant to pay
rentals from August, 1946, to February 28, 1949, is hereby reversed. In all other respects the
judgment is affirmed. Costs of this appeal shall be against the plaintiff-appellee.
Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, and Bautista Angelo, JJ, concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-36840 May 22, 1973

PEOPLE'S CAR INC., plaintiff-appellant,
vs.
COMMANDO SECURITY SERVICE AGENCY, defendant-appellee.

TEEHANKEE, J.:
In this appeal from the adverse judgment of the Davao court of first instance limiting plaintiffappellant's recovery under its complaint to the sum of P1,000.00 instead of the actual damages of
P8,489.10 claimed and suffered by it as a direct result of the wrongful acts of defendant security
agency's guard assigned at plaintiff's premises in pursuance of their "Guard Service Contract", the
Court finds merit in the appeal and accordingly reverses the trial court's judgment.
The appeal was certified to this Court by a special division of the Court of Appeals on a four-to-one
vote as per its resolution of April 14, 1973 that "Since the case was submitted to the court a quo for
decision on the strength of the stipulation of facts, only questions of law can be involved in the
present appeal."
The Court has accepted such certification and docketed this appeal on the strength of its own finding
from the records that plaintiff's notice of appeal was expressly to this Court (not to the appellate
court)" on pure questions of law" 1 and its record on appeal accordingly prayed that" the corresponding
records be certified and forwarded to the Honorable Supreme Court." 2 The trial court so approved the
same 3 on July 3, 1971 instead of having required the filing of a petition for review of the judgment sought
to be appealed from directly with this Court, in accordance with the provisions of Republic Act 5440. By
some unexplained and hitherto undiscovered error of the clerk of court, furthermore, the record on appeal
was erroneously forwarded to the appellate court rather than to this Court.

The parties submitted the case for judgment on a stipulation of facts. There is thus no dispute as to
the factual bases of plaintiff's complaint for recovery of actual damages against defendant, to wit,
that under the subsisting "Guard Service Contract" between the parties, defendant-appellee as a
duly licensed security service agency undertook in consideration of the payments made by plaintiff to
safeguard and protect the business premises of (plaintiff) from theft, pilferage, robbery, vandalism
and all other unlawful acts of any person or person prejudicial to the interest of (plaintiff)." 4
On April 5, 1970 at around 1:00 A.M., however, defendant's security guard on duty at plaintiff's
premises, "without any authority, consent, approval, knowledge or orders of the plaintiff and/or
defendant brought out of the compound of the plaintiff a car belonging to its customer, and drove
said car for a place or places unknown, abandoning his post as such security guard on duty inside
the plaintiff's compound, and while so driving said car in one of the City streets lost control of said
car, causing the same to fall into a ditch along J.P. Laurel St., Davao City by reason of which the

plaintiff's complaint for qualified theft against said driver, was blottered in the office of the Davao City
Police Department." 5
As a result of these wrongful acts of defendant's security guard, the car of plaintiff's customer,
Joseph Luy, which had been left with plaintiff for servicing and maintenance, "suffered extensive
damage in the total amount of P7,079." 6 besides the car rental value "chargeable to defendant" in the
sum of P1,410.00 for a car that plaintiff had to rent and make available to its said customer to enable him
to pursue his business and occupation for the period of forty-seven (47) days (from April 25 to June 10,
1970) that it took plaintiff to repair the damaged car, 7 or total actual damages incurred by plaintiff in the
sum of P8,489.10.

Plaintiff claimed that defendant was liable for the entire amount under paragraph 5 of their contract
whereunder defendant assumed "sole responsibility for the acts done during their watch hours" by its
guards, whereas defendant contended, without questioning the amount of the actual damages
incurred by plaintiff, that its liability "shall not exceed one thousand (P1,000.00) pesos per guard
post" under paragraph 4 of their contract.
The parties thus likewise stipulated on this sole issue submitted by them for adjudication, as follows:
Interpretation of the contract, as to the extent of the liability of the defendant to the
plaintiff by reason of the acts of the employees of the defendant is the only issue to
be resolved.
The defendant relies on Par. 4 of the contract to support its contention while the
plaintiff relies on Par. 5 of the same contract in support of its claims against the
defendant. For ready reference they are quoted hereunder:
'Par. 4. Party of the Second Part (defendant) through the
negligence of its guards, after an investigation has been conducted
by the Party of the First Part (plaintiff) wherein the Party of the
Second Part has been duly represented shall assume full
responsibilities for any loss or damages that may occur to any
property of the Party of the First Part for which it is accountable,
during the watch hours of the Party of the Second Part, provided the
same is reported to the Party of the Second Part within twenty-four
(24) hours of the occurrence, except where such loss or damage is
due to force majeure, provided however that after the proper
investigation to be made thereof that the guard on post is found
negligent and that the amount of the loss shall not exceed ONE
THOUSAND (P1,000.00) PESOS per guard post.'
'Par. 5 The party of the Second Part assumes the responsibility for
the proper performance by the guards employed, of their duties and
(shall) be solely responsible for the acts done during their watch
hours, the Party of the First Part being specifically released from any
and all liabilities to the former's employee or to the third parties
arising from the acts or omissions done by the guard during their tour
of
duty.' ... 8
The trial court, misreading the above-quoted contractual provisions, held that "the liability of the
defendant in favor of the plaintiff falls under paragraph 4 of the Guard Service Contract" and

rendered judgment "finding the defendant liable to the plaintiff in the amount of P1,000.00 with
costs."
Hence, this appeal, which, as already indicated, is meritorious and must be granted.
Paragraph 4 of the contract, which limits defendant's liability for the amount of loss or damage to any
property of plaintiff to "P1,000.00 per guard post," is by its own terms applicable only for loss or
damage 'through the negligence of its guards ... during the watch hours" provided that the same is
duly reported by plaintiff within 24 hours of the occurrence and the guard's negligence is verified
after proper investigation with the attendance of both contracting parties. Said paragraph is
manifestly inapplicable to the stipulated facts of record, which involve neither property of plaintiff that
has been lost or damaged at its premises nor mere negligence of defendant's security guard on
duty.
Here, instead of defendant, through its assigned security guards, complying with its contractual
undertaking 'to safeguard and protect the business premises of (plaintiff) from theft, robbery,
vandalism and all other unlawful acts of any person or persons," defendant's own guard on duty
unlawfully and wrongfully drove out of plaintiffs premises a customer's car, lost control of it on the
highway causing it to fall into a ditch, thereby directly causing plaintiff to incur actual damages in the
total amount of P8,489.10.
Defendant is therefore undoubtedly liable to indemnify plaintiff for the entire damages thus incurred,
since under paragraph 5 of their contract it "assumed the responsibility for the proper performance
by the guards employed of their duties and (contracted to) be solely responsible for the acts done
during their watch hours" and "specifically released (plaintiff) from any and all liabilities ... to the third
parties arising from the acts or omissions done by the guards during their tour of duty." As plaintiff
had duly discharged its liability to the third party, its customer, Joseph Luy, for the undisputed
damages of P8,489.10 caused said customer, due to the wanton and unlawful act of defendant's
guard, defendant in turn was clearly liable under the terms of paragraph 5 of their contract to
indemnify plaintiff in the same amount.
The trial court's approach that "had plaintiff understood the liability of the defendant to fall under
paragraph 5, it should have told Joseph Luy, owner of the car, that under the Guard Service
Contract, it was not liable for the damage but the defendant and had Luy insisted on the liability of
the plaintiff, the latter should have challenged him to bring the matter to court. If Luy accepted the
challenge and instituted an action against the plaintiff, it should have filed a third-party complaint
against the Commando Security Service Agency. But if Luy instituted the action against the plaintiff
and the defendant, the plaintiff should have filed a crossclaim against the latter," 9 was unduly
technical and unrealistic and untenable.

Plaintiff was in law liable to its customer for the damages caused the customer's car, which had been
entrusted into its custody. Plaintiff therefore was in law justified in making good such damages and
relying in turn on defendant to honor its contract and indemnify it for such undisputed damages,
which had been caused directly by the unlawful and wrongful acts of defendant's security guard in
breach of their contract. As ordained in Article 1159, Civil Code, "obligations arising from contracts
have the force of law between the contracting parties and should be complied with in good faith."
Plaintiff in law could not tell its customer, as per the trial court's view, that "under the Guard Service
Contract it was not liable for the damage but the defendant" since the customer could not hold
defendant to account for the damages as he had no privity of contract with defendant. Such an
approach of telling the adverse party to go to court, notwithstanding his plainly valid claim, aside
from its ethical deficiency among others, could hardly create any goodwill for plaintiff's business, in

the same way that defendant's baseless attempt to evade fully discharging its contractual liability to
plaintiff cannot be expected to have brought it more business. Worse, the administration of justice is
prejudiced, since the court dockets are unduly burdened with unnecessary litigation.
ACCORDINGLY, the judgment appealed from is hereby reversed and judgment is hereby rendered
sentencing defendant-appellee to pay plaintiff-appellant the sum of P8,489.10 as and by way of
reimbursement of the stipulated actual damages and expenses, as well as the costs of suit in both
instances. It is so ordered.
Makalintal, Zaldivar, Castro, Fernando, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Footnotes
1 Rec. on appeal, p. 39.
2 Idem, pp. 40-41.
3 Idem, p. 42.
4 Annex A, complaint, Rec. on app., pp. 8-13.
5 Par. 1. Stipulation of Facts, Rec. on app., p. 24.
6 Par. 2, idem.
7 Par. 3, idem.
8 Rec. on app., pp. 26-27; notes in emphasis supplied.
9 Decision, Rec. on App, pp. 29-30.
The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 158995

September 26, 2006

L.G. FOODS CORPORATION and VICTORINO GABOR, Vice-President and General

Manager, petitioners,
vs.
HON. PHILADELFA B. PAGAPONG-AGRAVIADOR, in her capacity as Presiding Judge of
Regional Trial Court, Branch 43, Bacolod City, and SPS. FLORENTINO and THERESA
VALLEJERA, respondents.
DECISION
GARCIA, J.:
Assailed and sought to be set aside in this petition for review on certiorari is the Decision1 dated April
25, 2003 of the Court of Appeals (CA), as reiterated in its Resolution of July 10, 2003,2 in CA-G.R.
SP No. 67600, affirming an earlier Order of the Regional Trial Court (RTC) of Bacolod City, Branch
43, which denied the petitioners' motion to dismiss in Civil Case No. 99-10845, an action for
damages arising from a vehicular accident thereat instituted by the herein private respondents - the
spouses Florentino Vallejera and Theresa Vallejera - against the petitioners.
The antecedent facts may be briefly stated as follows:
On February 26, 1996, Charles Vallereja, a 7-year old son of the spouses Florentino Vallejera and
Theresa Vallejera, was hit by a Ford Fiera van owned by the petitioners and driven at the time by
their employee, Vincent Norman Yeneza y Ferrer. Charles died as a result of the accident.
In time, an Information for Reckless Imprudence Resulting to Homicide was filed against the driver
before the Municipal Trial Court in Cities (MTCC), Bacolod City, docketed as Criminal Case No.
67787, entitled People of the Philippines v. Vincent Norman Yeneza.
Unfortunately, before the trial could be concluded, the accused driver committed suicide, evidently
bothered by conscience and remorse. On account thereof, the MTCC, in its order of September 30,
1998, dismissed the criminal case.
On June 23, 1999, in the RTC of Bacolod City, the spouses Vallejera filed a complaint3 for damages
against the petitioners as employers of the deceased driver, basically alleging that as such
employers, they failed to exercise due diligence in the selection and supervision of their employees.
Thereat docketed as Civil Case No. 99-10845, the complaint was raffled to Branch 43 of the court.
In their Answer with Compulsory Counterclaim,4 the petitioners as defendants denied liability for the
death of the Vallejeras' 7-year old son, claiming that they had exercised the required due diligence in
the selection and supervision of their employees, including the deceased driver. They thus prayed in
their Answer for the dismissal of the complaint for lack of cause of action on the part of the Vallejera
couple.

During pre-trial, the defendant petitioners insisted that their dismissal prayer be resolved. Hence, the
trial court required them to file within ten days a memorandum of authorities supportive of their
position.
Instead, however, of the required memorandum of authorities, the defendant petitioners filed
a Motion to Dismiss, principally arguing that the complaint is basically a "claim for subsidiary liability
against an employer" under the provision of Article 1035 of the Revised Penal Code. Prescinding
therefrom, they contend that there must first be a judgment of conviction against their driver as a
condition sine qua non to hold them liable. Ergo, since the driver died during the pendency of the
criminal action, the sine qua non condition for their subsidiary liability was not fulfilled, hence the of
lack of cause of action on the part of the plaintiffs. They further argue that since the plaintiffs did not
make a reservation to institute a separate action for damages when the criminal case was filed, the
damage suit in question is thereby deemed instituted with the criminal action. which was already
dismissed.
In an Order dated September 4, 2001,6 the trial court denied the motion to dismiss for lack of merit
and set the case for pre-trial. With their motion for reconsideration having been denied by the same
court in its subsequent order7 of September 26, 2001, the petitioners then went on certiorari to
the CA in CA-G.R. SP No. 67600, imputing grave abuse of discretion on the part of the trial judge in
refusing to dismiss the basic complaint for damages in Civil Case No. 99-10845.
In the herein assailed decision8 dated April 25, 2003, the CA denied the petition and upheld the trial
court. Partly says the CA in its challenged issuance:
xxx

xxx

xxx

It is clear that the complaint neither represents nor implies that the responsibility charged
was the petitioner's subsidiary liability under Art. 103, Revised Penal Code. As pointed out
[by the trial court] in the Order of September 4, 2001, the complaint does not even allege the
basic elements for such a liability, like the conviction of the accused employee and his
insolvency. Truly enough, a civil action to enforce subsidiary liability separate and distinct
from the criminal action is even unnecessary.
xxx

xxx

xxx

Specifically, Civil Case No. 99-10845 exacts responsibility for fault or negligence under Art.
2176, Civil Code, which is entirely separate and distinct from the civil liability arising from
negligence under the Revised Penal Code. Verily, therefore, the liability under Art. 2180,
Civil Code, is direct and immediate, and not conditioned upon prior recourse against the
negligent employee or prior showing of the latter's insolvency. (Underscoring in the original.)
In time, the petitioners moved for a reconsideration but their motion was denied by the CA in its
resolution9 of July 10, 2003. Hence, the petitioners' present recourse on their submission that the
appellate court committed reversible error in upholding the trial court's denial of their motion to
dismiss.
We DENY.
As the Court sees it, the sole issue for resolution is whether the spouses Vallejeras' cause of action
in Civil Case No. 99-10845 is founded on Article 103 of the Revised Penal Code, as maintained by
the petitioners, or derived from Article 218010 of the Civil Code, as ruled by the two courts below.

It thus behooves us to examine the allegations of the complaint for damages in Civil Case No. 9910845. That complaint alleged, inter alia, as follows:
xxx

xxx

xxx

3. That defendant [LG Food Corporation] is the registered owner of a Ford Fiera Van with
Plate No. NMS 881 and employer sometime February of 1996 of one Vincent Norman
Yeneza y Ferrer, a salesman of said corporation;
4. That sometime February 26, 1996 at around 2:00 P.M. at Rosario St., Bacolod City, the
minor son of said plaintiffs [now respondents], Charles Vallejera, 7 years old, was hit and
bumped by above-described vehicle then driven by said employee, Vincent Norman Yeneza
y Ferrer;
5. That the mishap was due to the gross fault and negligence of defendant's employee, who
drove said vehicle, recklessly, negligently and at a high speed without regard to traffic
condition and safety of other road users and likewise to the fault and negligence of the owner
employer, herein defendants LG Food Corporation who failed to exercise due diligence in the
selection and supervision of his employee, Vincent Norman Yeneza y Ferrer;
6. That as a result of said incident, plaintiffs' son suffered multiple body injuries which led to
his untimely demise on that very day;
7. That a criminal case was filed against the defendant's employee, docketed as Criminal
Case No. 67787, (earlier filed as Crim. Case No. 96-17570 before RTC) before MTC-Branch
III, entitled "People v. Yeneza" for "Reckless Imprudence resulting to Homicide," but the
same was dismissed because pending litigation, then remorse-stricken [accused] committed
suicide;
xxx xxx xxx
8. That the injuries and complications as well as the resultant death suffered by the late
minor Charles Vallejera were due to the negligence and imprudence of defendant's
employee;
9. That defendant LG Foods Corporation is civilly liable for the negligence/imprudence
of its employee since it failed to exercise the necessary diligence required of a good
father of the family in the selection and supervision of his employee, Vincent Norman
Yeneza y Ferrer which diligence if exercised, would have prevented said
incident. (Bracketed words and emphasis ours.)
Nothing in the foregoing allegations suggests, even remotely, that the herein petitioners are being
made to account for their subsidiary liability under Article 103 of the Revised Penal Code. As
correctly pointed out by the trial court in its order of September 4, 2001 denying the
petitioners' Motion to Dismiss, the complaint did not even aver the basic elements for the subsidiary
liability of an employer under Article 103 of the Revised Penal Code, such as the prior conviction of
the driver in the criminal case filed against him nor his insolvency.
Admittedly, the complaint did not explicitly state that plaintiff Vallejeras were suing the defendant
petitioners for damages based on quasi-delict. Clear it is, however, from the allegations of the
complaint that quasi-delict was their choice of remedy against the petitioners. To stress, the plaintiff

spouses alleged in their complaint gross fault and negligence on the part of the driver and the failure
of the petitioners, as employers, to exercise due diligence in the selection and supervision of their
employees. The spouses further alleged that the petitioners are civilly liable for the
negligence/imprudence of their driver since they failed to exercise the necessary diligence required
of a good father of the family in the selection and supervision of their employees, which diligence, if
exercised, could have prevented the vehicular accident that resulted to the death of their 7-year old
son.
Section 2, Rule 2, of the 1997 Rules of Civil Procedure defines cause of action as the "act or
omission by which a party violates the right of another." Such act or omission gives rise to an
obligation which may come from law, contracts, quasi contracts, delicts or quasi-delicts.11
Corollarily, an act or omission causing damage to another may give rise to two separate civil
liabilities on the part of the offender, i.e., 1) civil liability ex delicto;12 and 2) independent civil
liabilities, such as those (a) not arising from an act or omission complained of as felony (e.g., culpa
contractual or obligations arising from law;13 the intentional torts;14 and culpa aquiliana15); or (b)
where the injured party is granted a right to file an action independent and distinct from the criminal
action.16 Either of these two possible liabilities may be enforced against the offender.17
Stated otherwise, victims of negligence or their heirs have a choice between an action to enforce the
civil liability arising from culpa criminal under Article 100 of the Revised Penal Code, and an action
for quasi-delict (culpa aquiliana) under Articles 2176 to 2194 of the Civil Code. If, as here, the action
chosen is for quasi-delict, the plaintiff may hold the employer liable for the negligent act of its
employee, subject to the employer's defense of exercise of the diligence of a good father of the
family. On the other hand, if the action chosen is for culpa criminal, the plaintiff can hold the
employer subsidiarily liable only upon proof of prior conviction of its employee.18
Article 116119 of the Civil Code provides that civil obligation arising from criminal offenses shall be
governed by penal laws subject to the provision of Article 217720 and of the pertinent provision of
Chapter 2, Preliminary Title on Human Relation, and of Title XVIII of this Book, regulating damages.
Plainly, Article 2177 provides for the alternative remedies the plaintiff may choose from in case the
obligation has the possibility of arising indirectly from the delict/crime or directly from quasi-delict/tort.
The choice is with the plaintiff who makes known his cause of action in his initiatory pleading or
complaint,21 and not with the defendant who can not ask for the dismissal of the plaintiff's cause of
action or lack of it based on the defendant's perception that the plaintiff should have opted to file a
claim under Article 103 of the Revised Penal Code.
Under Article 2180 of the Civil Code, the liability of the employer is direct or immediate. It is not
conditioned upon prior recourse against the negligent employee and a prior showing of insolvency of
such employee.22
Here, the complaint sufficiently alleged that the death of the couple's minor son was caused by the
negligent act of the petitioners' driver; and that the petitioners themselves were civilly liable for the
negligence of their driver for failing "to exercise the necessary diligence required of a good father of
the family in the selection and supervision of [their] employee, the driver, which diligence, if
exercised, would have prevented said accident."
Had the respondent spouses elected to sue the petitioners based on Article 103 of the Revised
Penal Code, they would have alleged that the guilt of the driver had been proven beyond reasonable
doubt; that such accused driver is insolvent; that it is the subsidiary liability of the defendant
petitioners as employers to pay for the damage done by their employee (driver) based on the
principle that every person criminally liable is also civilly liable.23Since there was no conviction in the

criminal case against the driver, precisely because death intervened prior to the termination of the
criminal proceedings, the spouses' recourse was, therefore, to sue the petitioners for their direct and
primary liability based on quasi-delict.
Besides, it is worthy to note that the petitioners, in their Answer with Compulsory CounterClaim,24 repeatedly made mention of Article 2180 of the Civil Code and anchored their defense on
their allegation that "they had exercised due diligence in the selection and supervision of [their]
employees." The Court views this defense as an admission that indeed the petitioners
acknowledged the private respondents' cause of action as one for quasi-delict under Article 2180 of
the Civil Code.
All told, Civil Case No. 99-10845 is a negligence suit brought under Article 2176 - Civil Code to
recover damages primarily from the petitioners as employers responsible for their negligent driver
pursuant to Article 2180 of the Civil Code. The obligation imposed by Article 2176 is demandable not
only for one's own acts or omissions, but also for those of persons for whom one is responsible.
Thus, the employer is liable for damages caused by his employees and household helpers acting
within the scope of their assigned tasks, even though the former is not engaged in any business or
industry.
Citing Maniago v. CA,25 petitioner would argue that Civil Case No. 99-10845 should have been
dismissed for failure of the respondent spouses to make a reservation to institute a separate civil
action for damages when the criminal case against the driver was filed.
The argument is specious.
To start with, the petitioners' reliance on Maniago is obviously misplaced. There, the civil case was
filed while the criminal case against the employee was still pending. Here, the criminal case against
the employee driver was prematurely terminated due to his death. Precisely, Civil Case No. 9910845 was filed by the respondent spouses because no remedy can be obtained by them against
the petitioners with the dismissal of the criminal case against their driver during the pendency
thereof.
The circumstance that no reservation to institute a separate civil action for damages was made when
the criminal case was filed is of no moment for the simple reason that the criminal case was
dismissed without any pronouncement having been made therein. In reality, therefor, it is as if there
was no criminal case to speak of in the first place. And for the petitioners to insist for the conviction
of their driver as a condition sine qua non to hold them liable for damages is to ask for the
impossible.
IN VIEW WHEREOF, the instant petition is DENIED for lack of merit.
Costs against the petitioners.
SO ORDERED.
Puno, Chairperson, Sandoval-Gutierrez, Corona, Azcuna, J.J., concur.

Footnotes

Penned by Associate Justice Lucas P. Bersamin with Associate Justices Ruben T. Reyes
(now Presiding Justice) and Elvi John Asuncion, concurring. Rollo, pp. 17-22.
2

Id. at 23.

Id. at 93-98.

Id. at 85-91.

Article 103. Subsidiary civil liability of other persons. The subsidiary liability established in
the next preceding article shall also apply to employers, teachers, persons and corporations
engaged in any kind of industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.
5

Rollo, pp. 71-74.

Id. at 65.

Supra note 1.

Rollo, p. 23.

10

Article 2180. The obligation imposed by Article 2176 is demandable not only for one's own
acts or omissions, but also for those of persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in
any business or industry.
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.
(1903a)
11

Article 1157, Civil Code of the Philippines.

12

Article 100, Revised Penal Code.

13

Article 31, Civil Code.

14

Articles 32 and 34, Civil Code.

15

Article 2176, Civil Code.

16

Article 33, Civil Code.

17

Cancio, Jr. v. Isip, G.R. No. 133978, November 12, 2002, 391 SCRA 393.

18

Joaquin, et al. v. Aniceto, et al., 120 Phil. 1100 (1964).

19

ARTICLE 1161. Civil obligations arising from criminal offenses shall be governed by the
penal laws, subject to the provisions of article 2177, and of the pertinent provisions of
Chapter 2, Preliminary Title, on Human Relations, and of Title XVIII of this Book, regulating
damages. (1092a)
20

ARTICLE 2177. Responsibility for fault or negligence under the preceding article is entirely
separate and distinct from the civil liability arising from negligence under the Penal Code. But
the plaintiff cannot recover damages twice for the same act or omission of the defendant. (n)
21

Section 3, Rule 6, 1997 Rules on Criminal Procedure.

22

Kapalaran Bus Lines v. Coronado, G.R. No. 85331, August 25, 1989, 176 SCRA 792.

23

Article 100, Revised Penal Code.

24

Supra note 4.

25

G.R. 104392, February 20, 1996, 253 SCRA 674.

The Lawphil Project - Arellano Law Foundation

SECOND DIVISION
LARRY V. CAMINOS, JR., G.R. No. 147437
Petitioner,
Present:
CARPIO MORALES, J.*
Chairperson,
- versus - TINGA,
VELASCO, JR.,
LEONARDO DE CASTRO,** and
BRION, JJ.
PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent.
May 8, 2009
x---------------------------------------------------------------------------------x

DECISION
TINGA, J.:
The right of a person using public streets and highways for travel in
relation to other motorists is mutual, coordinate and reciprocal.[1] He is

bound to anticipate the presence of other persons whose rights on the street or
highway are equal to his own.[2] Although he is not an insurer against injury to
persons or property,[3] it is nevertheless his duty to operate his motor vehicle with
due and reasonable care and caution under the circumstances for the safety of
others[4] as well as for his own.[5]
This Petition for Review[6] seeks the reversal of the Decision[7] of the Court
of Appeals in CA-G.R. CR No. 14819 dated 28 February 1995. The assailed

decision affirmed the judgment of conviction[8] rendered by the Regional Trial

Court of Pasig City, Branch 163 in Criminal Case No. 76653one for reckless
imprudence resulting in damage to propertyagainst petitioner Larry V. Caminos, Jr.
but reduced the latters civil liability on account of the finding that the negligence
of Arnold Litonjua, the private offended party, had contributed to the vehicular
collision subject of the instant case.

The case is rooted on a vehicular collision that happened on the night of 21

June
1988 at
the
intersection
of Ortigas
Avenue and Columbia
Street in Mandaluyong City, right in front of Gate 6 of East Greenhills
Subdivision. The vehicles involved were a Mitsubishi Super Saloon[9] driven by
petitioner and a Volkswagen Karmann Ghia[10] driven by Arnold Litonjua
(Arnold). The mishap occurred at approximately 7:45 in the evening.[11] That night,
the road was wet.[12] Arnold, who had earlier passed by Wack Wack Subdivision,
was traversing Ortigas Avenue toward the direction of Epifanio Delos Santos
Avenue. He prepared to make a left turn as he reached the intersection of Ortigas
Avenue and Columbia Street, and as soon as he had maneuvered the turn through
the break in the traffic island the Mitsubishi car driven by petitioner suddenly came
ramming into his car from his right-hand side. Petitioner, who was also
traversing Ortigas Avenue, was headed towards the direction of San Juan and he
approached the same intersection from the opposite direction.[13]

The force exerted by petitioners car heaved Arnolds car several feet away
from the break in the island, sent it turning 180 degrees until it finally settled on
the outer lane of Ortigas Avenue.[14] It appears that it was the fender on the lefthand side of petitioners car that made contact with Arnolds car, and that the
impactwhich entered from the right-hand side of Arnolds car to the leftwas
established on the frontal center of the latter vehicle which thus caused the lefthand side of its hood to curl upward.[15]

Arnold immediately summoned to the scene of the collision Patrolman Ernesto

Santos (Patrolman Santos),[16] a traffic investigator of the Mandaluyong Police
Force who at the time was manning the police outpost in front of the Philippine
Overseas Employment Administration Building.[17] Patrolman Santos interrogated
both petitioner and Arnold and made a sketch depicting the relative positions of the
two colliding vehicles after the impact.[18] The sketch, signed by both petitioner
and Arnold and countersigned by Patrolman Santos, shows petitioners car

which, it seems, was able to keep its momentum and general direction
even upon impactwas stalled along Ortigas Avenue a few feet away from the
intersection and facing the direction of San Juan whereas Arnolds car had settled
on the outer lane of Ortigas Avenue with its rear facing the meeting point of the
median lines of the intersecting streets at a 45-degree angle.[19]
At the close of the investigation, a traffic accident investigation report
(TAIR)[20] was forthwith issued by P/Cpl. Antonio N. Nato of the Eastern Police
District. The report revealed that at the time of the collision, Arnolds car, which
had no right of way,[21] was turning left whereas petitioners car was going straight
and was exceeding lawful speed.[22] It also indicated that the vision of the drivers
was obstructed by the center island flower bed.[23]

Petitioner
was
subsequently
charged
before
the Regional Trial Court of Pasig City with reckless imprudence resulting in dama
ge to

property.[24] He entered a negative plea on arraignment.[25]

At the ensuing trial, Patrolman Santos admitted having executed the sketch
which depicts the post-collision positions of the two vehicles.[26] Arnolds testimony
established that his vehicle was at a full stop at the intersection when the incident

happened.[27] Told by the trial court to demonstrate how the incident transpired, he
executed a sketch which showed that his car had not yet invaded the portion of the
road beyond the median line of the island and that the path taken by petitioners car,
depicted by broken lines, came swerving from the outer lane of the road to the left
and rushing toward the island where Arnolds car was executing a turn.[28] On crossexamination, he admitted the correctness of the entry in the TAIR to the effect that
he was turning left when hit by petitioners car,[29] but he claimed on re-direct
examination that he had stopped at the intersection in order to keep the traffic open
to other vehicles and that it was then that petitioner bumped his car. On re-cross
examination, however, he stated that he had brought his car to a full stop before
turning left but that the front portion thereof was already two (2) feet into the other
lane of Ortigas Avenue and well beyond the median line of the traffic island.[30]
Antonio Litonjua (Antonio), the father of Arnold in whose name the
Volkswagen car was registered, testified that the estimation of the cost of repairs to
be made on the car was initially made by SKB Motors Philippines, Inc. The
estimation report dated 30 June 1988 showed the total cost of repairs to
be P73,962.00. The necessary works on the car, according to Antonio, had not
been performed by SKB Motors because the needed materials had not been
delivered.[31] Meanwhile, SKB Motors allegedly ceased in its operation, so Antonio
procured another repair estimation this time from Fewkes Corporation.[32] The
estimation report was dated 13 December 1991, and it bloated the total cost of
repairs to P139,294.00.[33] Ricardo Abrencia, resident manager of Fewkes
Corporation, admitted that he personally made and signed the said estimation
report and that Antonio had already delivered a check representing the payment for
half of the total assessment.[34]

Petitioner, the lone defense witness, was a company driver in the employ of
Fortune Tobacco, Inc. assigned to drive for the company secretary, Mariano
Tanigan, who was with him at the time of the incident. In an effort to exonerate
himself from liability, he imputed negligence to Arnold as the cause of the mishap,
claiming that that he, moments before the collision, was actually carefully
traversing Ortigas Avenue on second gear. He lamented that it was Arnolds car
which bumped his car and not the other way around and that he had not seen

Arnolds car coming from the left side of the intersectionwhich seems to suggest
that Arnolds car was in fact in motion or in the process of making the turn when
the collision occurred. His speed at the time, according to his own estimate, was
between 25 and 30 kph because he had just passed by the stoplight located
approximately 100 meters away at the junction of Ortigas Avenue and EDSA, and
that he even slowed down as he approached the intersection.[35]
In its 18 September 1992 Decision,[36] the trial court found petitioner guilty
as charged. The trial court relied principally on the sketch made by Patrolman
Santos depicting the post-collision positions of the two vehiclesthat piece of
evidence which neither of the parties assailed at the trialand found that of the two
conflicting accounts of how the collision happened it was Arnolds version that is
consistent with the evidence. It pointed out that just because Arnold had no right of
way, as shown in the TAIR, does not account for fault on his part since it was in
fact petitioners car that came colliding with Arnolds car. It concluded that
petitioner, by reason of his own admission that he did not notice Arnolds car at the
intersection, is solely to be blamed for the incident especially absent any showing
that there was any obstruction to his line of sight. Petitioner, according to the trial
court, would have in fact noticed on-coming vehicles coming across his path had
he employed proper precaution. Accordingly, the trial court ordered petitioner to
pay civil indemnity in the amount of P139,294.00 as well as a fine in the same
amount.
The Court of Appeals agreed with the factual findings of the trial court. In its
Decision dated 28 February 1995, the appellate court affirmed the judgment of
conviction rendered by the trial court against petitioner. However, it mitigated the
award of civil indemnity on its finding that Arnold himself was likewise reckless in
maneuvering a left turn inasmuch as he had neglected to look out, before entering
the other lane of the road, for vehicles that could likewise be possibly entering the
intersection from his right side.[37]
This notwithstanding, petitioner was still unsatisfied with the ruling of the
appellate court. Seeking an acquittal, he filed the present petition for review in
which he maintains Arnolds own negligence was the principal determining factor
that caused the mishap and which should thus defeat any claim for damages. In
declaring him liable to the charge despite the existence of negligence attributable

to Arnold, petitioner believes that the Court of Appeals had misapplied the
principle of last clear chance in this case.
The Office of the Solicitor General (OSG), in its Comment,[38] argues that
petitioners negligence is the proximate cause of the collision and that Arnold
Litonjuas negligence was contributory to the accident which, however, does not
bar recovery of damages. Additionally, it recommends the reduction of both the
fine and the civil indemnity as the same are beyond what the prosecution was able
to prove at the trial.
The Court denies the petition.
Reckless imprudence generally defined by our penal law consists in
voluntarily but without malice, doing or failing to do an act from which material
damage results by reason of inexcusable lack of precaution on the part of the
person performing or failing to perform such act, taking into consideration his
employment or occupation, degree of intelligence, physical condition and other
circumstances regarding persons, time and place.[39]
Imprudence connotes a deficiency of action. It implies a failure in
precaution or a failure to take the necessary precaution once the danger or

peril becomes foreseen.[40] Thus, something more than mere negligence in the
operation of a motor vehicle is necessary to constitute the offense of reckless
driving, and a willful and wanton disregard of the consequences is
required.[41] Willful, wanton or reckless disregard for the safety of others within the
meaning of reckless driving statutes has been held to involve a conscious choice of
a course of action which injures another, either with knowledge of serious danger
to others involved, or with knowledge of facts which would disclose the danger to
any reasonable person.[42]
Hence, in prosecutions for reckless imprudence resulting in damage to
property, whether or not one of the drivers of the colliding automobiles is guilty of
the offense is a question that lies in the manner and circumstances of the operation

of the motor vehicle,[43] and a finding of guilt beyond reasonable doubt requires the
concurrence of the following elements, namely, (a) that the offender has done or
failed to do an act; (b) that the act is voluntary; (c) that the same is without malice;
(d) that material damage results; and (e) that there has been inexcusable lack of
precaution on the part of the offender.[44]

Among the elements constitutive of the offense, what perhaps is most central
to a finding of guilt is the conclusive determination that the accused has exhibited,
by his voluntary act without malice, an inexcusable lack of precaution because it is
that which supplies the criminal intent so indispensable as to bring an act of mere
negligence and imprudence under the operation of the penal law.[45] This, because a
conscious indifference to the consequences of the conduct is all that that is required
from the standpoint of the frame of mind of the accused,[46] that is, without regard
to whether the private offended party may himself be considered likewise at fault.
Inasmuch as the Revised Penal Code, however, does not detail what
particular act or acts causing damage to property may be characterized as reckless
imprudence, certainly, as with all criminal prosecutions, the inquiry as to whether
the accused could be held liable for the offense is a question that must be addressed
by the facts and circumstances unique to a given case. Thus, if we must determine
whether petitioner in this case has shown a conscious indifference to the
consequences of his conduct, our attention must necessarily drift to the most
fundamental factual predicate. And we proceed from petitioners contention that at
the time the collision took place, he was carefully driving the car as he in fact
approached the intersection on second gear and that his speed allegedly was
somewhere between 25 and 30 kph which under normal conditions could be
considered so safe and manageable as to enable him to bring the car to a full stop
when necessary.
Aside from the entry in the TAIR, however, which noted petitioners speed to
be beyond what is lawful, the physical evidence on record likewise seems to negate
petitioners contention. The photographs taken of Arnolds car clearly show that the

extent of the damage to it could not have been caused by petitioners car running on
second gear at the speed of 25-30 kph. The fact that the hood of Arnolds car was
violently wrenched as well as the fact that on impact the car even turned around
180 degrees and was hurled several feet away from the junction to the outer lane of
Ortigas Avenuewhen in fact Arnold had already established his turn to the left on
the inner lane and into the opposite laneclearly demonstrate that the force of the
collision had been created by a speed way beyond what petitioners estimation.
Rate of speed, in connection with other circumstances, is one of the principal
considerations in determining whether a motorist has been reckless in driving an
automobile,[47] and evidence of the extent of the damage caused may show the
force of the impact from which the rate of speed of the vehicle may be modestly
inferred.[48] While an adverse inference may be gathered with respect to reckless
driving[49] from proof of excessive speed under the circumstances[50]as in this case
where the TAIR itself shows that petitioner approached the intersection in excess
of lawful speedsuch proof raises the presumption of imprudent driving which may
be overcome by evidence,[51] or, as otherwise stated, shifts the burden of proof so
as to require the accused to show that under the circumstances he was not driving
in a careless or imprudent manner.[52]
We find, however, that petitioner has not been able to discharge that burden
inasmuch as the physical evidence on record is heavy with conviction way more
than his bare assertion that his speed at the time of the incident was well within
what is controllable. Indeed, the facts of this case do warrant a finding that
petitioner, on approach to the junction, was traveling at a speed far greater than
that conveniently fixed in his testimony. Insofar as such facts are consistent with
that finding, their truth must reasonably be admitted.[53]
Speeding, moreover, is indicative of imprudent behavior because a motorist
is bound to exercise such ordinary care and drive at a reasonable rate of speed
commensurate with the conditions encountered on the road. What is reasonable
speed, of course, is necessarily subjective as it must conform to the peculiarities of
a given case but in all cases, it is that which will enable the driver to keep the
vehicle under control and avoid injury to others using the highway. [54] This
standard of reasonableness is actually contained in Section 35 of R.A. No. 4136. It
states:

SEC. 35. Restriction as to speed.(a) Any person driving a motor

vehicle on a highway shall drive the same at a careful and prudent speed,
not greater nor less than is reasonable and proper, having due regard for
the traffic, the width of the highway, and of any other condition then and
there existing; and no person shall drive any motor vehicle upon a
highway at such speed as to endanger the life, limb and property of any
person, nor at a speed greater than will permit him to bring the vehicle to a
stop within the assured clear distance ahead.

Even apart from statutory regulations as to speed, a motorist is nevertheless

expected to exercise ordinary care and drive at a reasonable rate of speed
commensurate with all the conditions encountered [55] which will enable him to
keep the vehicle under control and, whenever necessary, to put the vehicle to a full
stop to avoid injury to others using the highway. [56]
It is must be stressed that this restriction on speed assumes more importance
where the motorist is approaching an intersection. Ordinary or reasonable care in
the operation of a motor vehicle at an intersection would naturally require more
precaution than is necessary when driving elsewhere in a street or highway. [57] A
driver approaching an intersection is generally under duty, among others, to be
vigilant and to have the vehicle under control as to be able to stop at the shortest
possible notice,[58] that is, he must look for vehicles that might be approaching
from within the radius that denotes the limit of danger.[59]
Since compliance with this duty is measured by whether an approaching
motorist has exercised the level of precaution required under the circumstances,
then with more reason that he exhibit a relatively higher level of care when the
intersection is blind at the point where the roads meet. In other words, where the
view at an intersection is obstructed and an approaching motorist cannot get a good
view to the right or left until he is close to the intersection, prudence would dictate
that he take particular care to observe the traffic before entering the intersection or
otherwise use reasonable care to avoid a collision,[60] which means that he is bound
is to move with the utmost caution until it is determinable that he can proceed
safely and at the slowest speed possible[61] so that the vehicle could be stopped
within the distance the driver can see ahead.[62]

On this score, what brings certain failure in petitioners case is his own
admission that he had not seen Arnolds car making a left turn at the
intersection. Of course, there had been an arduous debate at the trial as to whether
Arnolds car was in motion or at a full stop at the intersection moments before the
collision; nevertheless, inasmuch as he (Arnold), as shown by the evidence, had
been able to establish himself at the intersection significantly ahead of petitioner, it
defies logic to accord even a semblance of truth to petitioners assertion that he had
not seen Arnolds car entering the intersection laterally from his left especially
when the said car admittedly had already taken two feet of the other lane of the
roadthe lane on which petitioner was proceeding to crossand well beyond the
median line of the intersecting road on which Arnold proceeded after making the
turn. Indeed, not even the fact that the view at the intersection was blocked by the
flower bed on the traffic island could provide an excuse for petitioner as it has
likewise been established that he approached the intersection at such a speed that
could not, as in fact it did not, enable him to arrest his momentum and forestall the
certainty of the collision.
It can only be surmised at this point that petitioner had inexcusably fallen
short of the standard of care in a situation which called for more precaution on the
highway in failing to make an observation in the interest at least of his own safety
whether or not it was safe to enter the crossing. Since he is chargeable with what
he should have observed only had he exercised the commensurate care required
under the circumstances of the case, the inescapable conclusion is that he had
inexcusably breached the elementary duties of a responsible, prudent and
reasonable motorist.
In general, the degree of care and attention required of a driver in a
particular case in exercising reasonable care will vary with and must be measured
in the light of all the surrounding circumstances, such that it must be
commensurate with the dangers which are to be anticipated and the injuries which
are likely to result from the use of the vehicle.[63] In other words, he must observe a
sense of proportionality between precaution and the peculiar risks attendant or
even inherent in the condition of the road[64] which are open to ordinary
observation.[65] The ultimate test, in other words, is to be found in the reasonable
foreseeability that harm might result if commensurate care is not exercised. It is

not necessary, however, that a motorist actually foresee the probability of harm or
that the particular injury which resulted was foreseeable; it would suffice that he,
in the position of an ordinary prudent man, knowing what he knew or should have
known, anticipate that harm of a general nature as that suffered was to
materialize.[66] The evidence in this case is teeming with suggestion that petitioner
had failed to foresee the certainty of the collision that was about to happen as he
entered the junction in question especially considering that his lateral vision at the
intersection was blocked by the structures on the road. In the same way, he failed
to solidly establish that such failure to foresee the danger lurking on the road could
be deemed excusable as indeed his contention that he was running at a safe speed
is totally negated by the evidence derived from the physical facts of the case.
Yet, petitioner clings to a chance of acquittal. In his petition, he theorizes
that the negligence of Arnold, which according to the Court of Appeals was
incipient in character, was actually the principal determining factor which caused
the mishap and the fact that the TAIR indicated that Arnold had no right of way, it
is he himself who had the status of a favored driver. The contention is utterly
without merit.

In traffic law parlance, the term right of way is understood as the right of
one vehicle to proceed in a lawful manner in preference to another approaching
vehicle under such circumstances of direction, speed and proximity as to give rise
to a danger of collision unless one of the vehicles grants precedence to the
other.[67] Although there is authority to the effect that the right of way is merely of
statutory creation and exists only according to express statutory provision,[68] it is
generally recognized, where no statute or ordinance governs the matter, that the
vehicle first entering an intersection is entitled to the right of way, and it becomes
the duty of the other vehicle likewise approaching the intersection to proceed with
sufficient care to permit the exercise of such right without danger of collisions.[69]
In our setting, the right of way rule is governed by Section 42 of Republic
Act (R.A.) No. 4136,[70] which materially provides:
Section 42. Right of Way.

(a) When two vehicles approach or enter an intersection at

approximately the same time, the driver of the vehicle on the left
shall yield the right of way to the vehicle on the right, except as
otherwise hereinafter provided. The driver of any vehicle traveling
at an unlawful speed shall forfeit any right which he might
otherwise have hereunder.
(b) The driver of a vehicle approaching but not having entered an
intersection shall yield the right of a way to a vehicle within such
intersection or turning therein to the left across the line of travel of
such first-mentioned vehicle, provided the driver of the vehicle
turning left has given a plainly visible signal of intention to turn as
required in this Act. x x x.

The provision governs the situation when two vehicles approach the
intersection from the same direction and one of them intends make a turn on either
side of the road. But the rule embodied in the said provision, also prevalent in
traffic statutes in the United States, has also been liberally applied to a situation in
which two vehicles approach an intersection from directly opposite directions at
approximately the same time on the same street and one of them attempts to make
a left-hand turn into the intersecting street, so as to put the other upon his right, the
vehicle making the turn being under the duty of yielding to the other. [71]
Nevertheless, the right of way accorded to vehicles approaching an
intersection is not absolute in terms. It is actually subject to and is affected by the
relative distances of the vehicles from the point of intersection.[72] Thus, whether
one of the drivers has the right of way or, as sometimes stated, has the status of a
favored driver on the highway, is a question that permeates a situation where the
vehicles approach the crossing so nearly at the same time and at such distances and
speed that if either of them proceeds without regard to the other a collision is likely
to occur.[73] Otherwise stated, the statutory right of way rule under Section 42 of
our traffic law applies only where the vehicles are approaching the intersection at
approximately the same time and not where one of the vehicles enter the junction
substantially in advance of the other.
Whether two vehicles are approaching the intersection at the same time does
not necessarily depend on which of the vehicles enters the intersection
first. Rather, it is determined by the imminence of collision when the relative

distances and speeds of the two vehicles are considered.[74] It is said that two
vehicles are approaching the intersection at approximately the same time where it
would appear to a reasonable person of ordinary prudence in the position of the
driver approaching from the left of another vehicle that if the two vehicles
continued on their courses at their speed, a collision would likely occur, hence, the
driver of the vehicle approaching from the left must give the right of precedence to
the driver of the vehicle on his right.[75]
Nevertheless, the rule requiring the driver on the left to yield the right of
way to the driver on the right on approach to the intersection, no duty is imposed
on the driver on the left to come to a dead stop, but he is merely required to
approach the intersection with his vehicle under control so that he may yield the
right of way to a vehicle within the danger zone on his right.[76] He is not bound to
wait until there is no other vehicle on his right in sight before proceeding to the
intersection but only

until it is reasonably safe to proceed.[77] Thus, in Adzuara v. Court of Appeals,[78] it

was established that a motorist crossing a thru-stop street has the right of way over
the one making a turn; but if the person making the turn has already negotiated half
of the turn and is almost on the other side so that he is already visible to the person
on the thru-street, he is bound to give way to the former.
Moreover, in a prosecution for reckless or dangerous driving, the negligence
of the person who was injured or who was the driver of the motor vehicle with
which the accuseds vehicle collided does not constitute a defense.[79] In fact, even
where such driver is said to be guilty of a like offense, proof thereof may never
work favors to the case of the accused.[80] In other words, proof that the offended
party was also negligent or imprudent in the operation of his automobile bears little
weight, if at all, at least for purposes of establishing the accuseds culpability
beyond reasonable doubt. Hence, even if we are to hypothesize that Arnold was
likewise negligent in neglecting to keep a proper lookout as he took a left turn at
the intersection, such negligence, contrary to petitioners contention, will
nevertheless not support an acquittal. At best, it will only determine the
applicability of several other rules governing situations where concurring

negligence exists and only for the purpose of arriving at a proper assessment of the
award of damages in favor of the private offended party.

But it must be asked: do the facts of the case support a finding

that Arnold was likewise negligent in executing the left turn? The answer is in the
negative. It is as much unsafe as it is unjust to assume that Arnold, just because the
TAIR so indicated that he at the time had no right of way, that Arnold had
performed a risky maneuver at the intersection in failing
to keep a proper lookout for oncoming vehicles. In fact, aside from petitioners bare
and self-serving assertion that Arnolds fault was the principal determining cause of
the mishap as well as his allegation that it was actually Arnolds car that came
colliding with his car, there is no slightest suggestion in the records that could tend
to negate what the physical evidence in this case has established. Clearly, it was
petitioners negligence, as pointed out by the OSG, that proximately caused the
accident.
Finally, on the issue of damages, inasmuch as petitioner had not extended
efforts to present countervailing evidence disproving the extent and cost of the
damage sustained by Arnolds car, the award assessed and ordered by the trial court
must stand.
All told, it must be needlessly emphasized that the measure of a motorists
duty is such care as is, under the facts and circumstances of the particular case,
commensurate with the dangers which are to be anticipated and the injuries which
are likely to result from the use of the vehicle, and in proportion to or
commensurate with the peculiar risk attendant on the circumstances and conditions
in the particular case,[81] the driver being under the duty to know and to take into
consideration those circumstances and factors affecting the safe operation of the
vehicle which would be open to ordinary observation.[82]

WHEREFORE, the petition is DENIED. The Decision of the Court of

Appeals
in
CA-G.R.
CR
No.
14819
dated 28
February
1995 is REVERSED and SET ASIDE. The Decision of the Regional Trial Court

of Pasig, Branch 163 in Criminal Case No. 76653 dated 18 September

1992 is REINSTATED.
SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice
Acting Chairperson

PRESBITERO J. VELASCO, JR. TERESITA LEONARDO DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

CONCHITA CARPIO MORALES

Associate Justice
Acting Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Acting Chairpersons Attestation, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

Acting Chairperson as replacement of Justice Leonardo A. Quisumbing who is on official leave per
Special Order No. 618.
**
Additional member of the Second Division per Special Order No. 619.
[1]

Richards v. Begenstos, 21 N.W.2d 23; Hodges v. Smith, 298 S.W. 1023; Lawson v. Fordyce, 12 N.W.2d

[2]

Magnolia Petroleum Co. v. Owen, 101 S.W.2d 354.

[3]

Atlantic Greyhound Corp. v. Lyon, 107 F.2d 157; Oklahoma Natural Gas Co. v. McKee, 121 F.2d 583.

301.

[4]

Burdick v. Powell Bros. Truck Lines, 124 F.2d 694; Dixie Motor Coach Corp. v. Lane, 116 F.2d
264; Shipley v. Komer, 154 F.2d 861.
[5]

Magnolia Petroleum Co. v. Owen, 101 S.W.2d 354.

[6]

Under Rule 45 of the RULES OF COURT. Rollo, pp. 8-23.

[7]

Penned by then Associate Justice Romeo J. Callejo (now retired Associate Justice, Supreme Court of
the Philippines) and concurred in by Associate Justices Alfredo L. Benipayo and Ricardo P. Galvez. CA rollo, pp.
94-113; Rollo, pp. 27-46.
[8]

In Criminal Case No. 76653. The trial court decision dated 18 September 1992 was penned by Acting
Judge Rodolfo R. Bonifacio. Records, pp. 182-194.
[9]

The Mitubishi Super Saloon with plate numbers PDU 403 was registered in the name of Antonio S.

Gonzales.
[10]

The Volkswagen Karmann Ghia bore plate numbers NTX 617. It was registered in the name of Antonio
K. Litonjua, the father of the private offended party, Arnold Litonjua. See Records, Exhibit E.
[11]

Records, Exhibits 1 and D; Rollo, p. 27.

[12]

See the Traffic Accident Investigation Report. Records; see also rollo, p. 27.

[13]

Rollo, p. 28.

[14]

Id. at 28.

[15]

See Records, Exhibits C, C-1, C-2, C-3 and C-4. These exhibits in the form of photographs depict the
extent of the damage caused to Arnold Litonjuas Volkswagen Karmann Ghia.
[16]

Rollo, p. 28.

[17]

TSN, 21 February 1990, pp. 5-6.

[18]

Id. at 7-8. The sketch executed by Patrolaman Ernesto Santos was marked as Exhibit A for the
prosecution.
[19]

Records, Exhibit A.

[20]

Id., Exhibit 1 of the defense and Exhibit D of the prosecution.

[21]

Id., Exhibit 1-b.

[22]

Id., Exhibits 1 and D.

[23]

Id., Exhibit 1-a.

[24]

Id. at 1. The inculpatory portion of the Information reads:

That on or about the 21st day of June 1988, in the municipality of Mandaluyong, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the said accused,

being then the driver and/or person in charge of the Mitsubishi 4-door sedan bearing Plate
No. PDU 403, did then and there willfully, unlawfully and feloniously drive, manage and
operate the same in a careless, reckless, negligent and imprudent manner, without due regard
to traffic laws, rules and regulations and without taking the necessary care and precaution to
avoid damage to property, causing by such negligence, carelessness and imprudence the said
vehicle to bump/collide with a Volkswagen bearing Plate No. NTX 617 being then driven by
one Arnold M. Litonjua and owned by one Antonio K. Litonjua, thereby causing damage to
the latter motor vehicle in the amount of P73,962.00, to the damage and prejudice of its
owner in the aforesaid amount of P73,962.00, Philippine currency.
Contrary to law.
[25]

Records, p. 23.

[26]

TSN, 21 February 1990, pp. 7, 12-13.

[27]

TSN, 14 August 1991, p. 5.

[28]

Records, Exhibit B.

[29]

TSN, 25 September 1991, pp. 4-6.

[30]

TSN, 26 September 1991, pp. 2-3, 5, 7-8.

[31]

TSN, 29 October, 1991, p. 6-8. See Records, Exhibits F and F-1.

[32]

TSN, 16 January 1992, pp. 4, 6.

[33]

Records, Exhibit G and G-1.

[34]

TSN, 16 January 1992, pp. 19-22.

[35]

TSN, 3 March 1992, pp. 4-6, 8, 10-11.

[36]

The dispositive portion of the trial courts decision reads:

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the
offense of Reckless Imprudence Resulting [in] Damage to Property, and hereby sentences him to
pay a fine of One Hundred Thirty[-nine] Thousand Two Hundred Ninety[-four (P139,294.00)
Pesos which is [the] amount equal to the damage to property resulting from said Reckless
Imprudence.
On the civil aspect, the accused is hereby ordered to indemnify Antonio Litonjua the
similar amount of One Hundred Thirty[-nine] Thousand Two Hundred Ninety[-four]
(P139,294.00) Pesos for the damages sustained by his motor vehicle, with costs de officio.
SO ORDERED.

[37]

Rollo, p. 46.

[38]

Id. at 138-166.

[39]

THE REVISED PENAL CODE, REYES, LUIS B., 15th ed. (2001) p. 995.

[40]

THE REVISED PENAL CODE, REYES, LUIS B., 15th ed. (2001) pp. 994-995.

[41]

People v. Paarlberg, 612 N.E.2d 106 (1933); People v. Crawford, 467 N.W.2d 818 (1991); Wood v. City
of Casper, 683 P.2d 1147 (1984); State v. Houser, 626 P.2d 256 (1981); State v. Boydston, 609 P.2d 224
(1980); State v. Tamanaha, 377 P.2d 688 (1962).
[42]

Wofford v. State, 395 S.E.2d 630 (1990); Shorter v. State, 122 N.E.2d 847 (1954); White v. State, 647
S.W.2d 751 (1983).
[43]

7A AM. JUR. 2d, pp. 861-862.

[44]

THE REVISED PENAL CODE, REYES, LUIS B., 15th ed. (2001) p. 995.

[45]

White v. State, 647 S.W.2d 751 (1983).

[46]

People v. Ackroyd, 543 N.Y.S.2d 848 (1989).

[47]

52 A.L.R.2d 1343.

[48]
Knuth v. Murphy, 54 N.W.2d 771. This case held that evidence of the extent of personal injuries is
competent to show the force of the impact as a basis for an inference of the rate of speed of the vehicle.
[49]

Sanford v. State, 16 So.2d 628; People v. Whitby, 44 N.Y.S.2d 76.

[50]

People v. Devoe, 159 N.E. 682; People v. Whitby, 44 N.Y.S.2d 76.

[51]

People v. Carrie, 204 N.Y.S. 759.

[52]

People v. Herman, 20 N.Y.S.2d 149.

[53]

See Woodson v. Germas, 104 S.E.2d 739.

[54]

Gabriel v. Court of Appeals, G.R. No. 128474, 6 October 2004, 440 SCRA 136, 148-149.

[55]

Foster v. ConAgra Poultry Co., 670 So.2d 471.

[56]

Nunn v. Financial Indem. Co., 694 So.2d 630. Duty of reasonable care includes duty to keep the vehicle
under control and to maintain proper lookout for hazards.
[57]

Roberts v. Leahy, 214 P.2d 673.

[58]

Reppert v. White Star Lines, 106 A.L.R. 413; Riccio v. Ginsberg, 62 A.L.R. 967.

[59]

Stauffer v. School District of Tecumseh, 473 N.W.2d 392.

[60]

Kane v. Locke, 12 N.W.2d 495; Shelton v. Detamore, 93 S.E.2d 314.

[61]

Matthews v. Patton, 123 A.2d 667.

[62]

Henthorn v. M.G.C.Corp., 83 N.W.2d 759.

[63]

Reed v. Stroh, 128 P.2d 829; Butcher v. Thornhill, 58 P.2d 179.

[64]

Reed v. Stroh, 128 P.2d 829; Tucker v. Ragland-Potter Co., 148 S.W.2d 691.

[65]

Webb v. Smith, 10 S.E. 2d 503; Le Master v. Fort Worth Transit Co., 142 S.W.2d 908.

[66]

Figlar v. Gordon, 53 A.2d 645.

[67]

Burrows v. Jacobsen, 311 N.W.2d 880 (1981).

[68]

Betchkal v. Willis, 378 N.W.2d 684 (1985).

[69]

Creech v. Blackwell, 298 S.W.2d 394.

[70]

Entitled AN ACT TO COMPILE THE LAWS RELATIVE TO LAND TRANSPORTATION AND

TRAFFIC RULES, TO CREATE A LAND TRANSPORTATION COMMISSION AND FOR OTHER
PURPOSES. The law was approved on 20 June 1964.
[71]
McCarthy v. Beckwith, 141 N.E. 126; Arvo v. Delta Hardware Co., 204 N.W. 134; Cohen v. Silverman,
190 N.W. 795; Webber v. Park Auto Transp. Co., 47 A.L.R. 590.
[72]

Wlodkowski v. Yerkaitis, 57 A.2d 792.

[73]

Reynolds v. Madison Bus Co., 26 N.W. 2d 653.

[74]

Wilmes v. Mihelich, 25 N.W.2d 833.

[75]

Moore v. Kujath, 29 N.W.2d 883.

[76]

Moore v. Kujath, 29 N.W.2d 883.

[77]

Metzger v. Cushmans Sons, 152 N.E. 695.

[78]

G.R. No. 125134, 22 January 1999, 301 SCRA 657.

[79]

State v. Blake, 255 N.W. 108.

[80]

State v. Sullivan, 277 N.W. 230.

[81]

Reed v. Stroh, 128 P.2d 829.

[82]

Webb v. Smith, 10 S.E. 2d 503; Le Master v. Fort Worth Transit Co., 142 S.W.2d 908.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12191

October 14, 1918

JOSE CANGCO, plaintiff-appellant,

vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.

FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the
employment of Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He
lived in the pueblo of San Mateo, in the province of Rizal, which is located upon the line of the
defendant railroad company; and in coming daily by train to the company's office in the city of Manila
where he worked, he used a pass, supplied by the company, which entitled him to ride upon the
company's trains free of charge. Upon the occasion in question, January 20, 1915, the plaintiff arose
from his seat in the second class-car where he was riding and, making, his exit through the door,
took his position upon the steps of the coach, seizing the upright guardrail with his right hand for
support.
On the side of the train where passengers alight at the San Mateo station there is a cement platform
which begins to rise with a moderate gradient some distance away from the company's office and
extends along in front of said office for a distance sufficient to cover the length of several coaches.
As the train slowed down another passenger, named Emilio Zuiga, also an employee of the railroad
company, got off the same car, alighting safely at the point where the platform begins to rise from
the level of the ground. When the train had proceeded a little farther the plaintiff Jose Cangco
stepped off also, but one or both of his feet came in contact with a sack of watermelons with the
result that his feet slipped from under him and he fell violently on the platform. His body at once
rolled from the platform and was drawn under the moving car, where his right arm was badly
crushed and lacerated. It appears that after the plaintiff alighted from the train the car moved forward
possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was
lighted dimly by a single light located some distance away, objects on the platform where the
accident occurred were difficult to discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is
found in the fact that it was the customary season for harvesting these melons and a large lot had
been brought to the station for the shipment to the market. They were contained in numerous sacks
which has been piled on the platform in a row one upon another. The testimony shows that this row
of sacks was so placed of melons and the edge of platform; and it is clear that the fall of the plaintiff
was due to the fact that his foot alighted upon one of these melons at the moment he stepped upon

the platform. His statement that he failed to see these objects in the darkness is readily to be
credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the
injuries which he had received were very serious. He was therefore brought at once to a certain
hospital in the city of Manila where an examination was made and his arm was amputated. The
result of this operation was unsatisfactory, and the plaintiff was then carried to another hospital
where a second operation was performed and the member was again amputated higher up near the
shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the form of
medical and surgical fees and for other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of
Manila to recover damages of the defendant company, founding his action upon the negligence of
the servants and employees of the defendant in placing the sacks of melons upon the platform and
leaving them so placed as to be a menace to the security of passenger alighting from the company's
trains. At the hearing in the Court of First Instance, his Honor, the trial judge, found the facts
substantially as above stated, and drew therefrom his conclusion to the effect that, although
negligence was attributable to the defendant by reason of the fact that the sacks of melons were so
placed as to obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself
had failed to use due caution in alighting from the coach and was therefore precluded form
recovering. Judgment was accordingly entered in favor of the defendant company, and the plaintiff
appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in piling
these sacks on the platform in the manner above stated; that their presence caused the plaintiff to
fall as he alighted from the train; and that they therefore constituted an effective legal cause of the
injuries sustained by the plaintiff. It necessarily follows that the defendant company is liable for the
damage thereby occasioned unless recovery is barred by the plaintiff's own contributory negligence.
In resolving this problem it is necessary that each of these conceptions of liability, to-wit, the primary
responsibility of the defendant company and the contributory negligence of the plaintiff should be
separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract of
carriage, and that the obligation to respond for the damage which plaintiff has suffered arises, if at
all, from the breach of that contract by reason of the failure of defendant to exercise due care in its
performance. That is to say, its liability is direct and immediate, differing essentially, in legal
viewpoint from that presumptive responsibility for the negligence of its servants, imposed by article
1903 of the Civil Code, which can be rebutted by proof of the exercise of due care in their selection
and supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu,
but only to extra-contractual obligations or to use the technical form of expression, that article
relates only to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly
points out this distinction, which was also recognized by this Court in its decision in the case of
Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa
clearly points out the difference between "culpa, substantive and independent, which of itself
constitutes the source of an obligation between persons not formerly connected by any legal tie"
and culpa considered as an accident in the performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition
that article 1903 of the Civil Code is not applicable to acts of negligence which constitute the breach
of a contract.

Upon this point the Court said:

The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are
understood to be those not growing out of pre-existing duties of the parties to one another.
But where relations already formed give rise to duties, whether springing from contract or
quasi-contract, then breaches of those duties are subject to article 1101, 1103, and 1104 of
the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain
cases imposed upon employers with respect to damages occasioned by the negligence of their
employees to persons to whom they are not bound by contract, is not based, as in the English
Common Law, upon the principle of respondeat superior if it were, the master would be liable in
every case and unconditionally but upon the principle announced in article 1902 of the Civil Code,
which imposes upon all persons who by their fault or negligence, do injury to another, the obligation
of making good the damage caused. One who places a powerful automobile in the hands of a
servant whom he knows to be ignorant of the method of managing such a vehicle, is himself guilty of
an act of negligence which makes him liable for all the consequences of his imprudence. The
obligation to make good the damage arises at the very instant that the unskillful servant, while acting
within the scope of his employment causes the injury. The liability of the master is personal and
direct. But, if the master has not been guilty of any negligence whatever in the selection and
direction of the servant, he is not liable for the acts of the latter, whatever done within the scope of
his employment or not, if the damage done by the servant does not amount to a breach of the
contract between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the servant
relieves the master from liability for the latter's acts on the contrary, that proof shows that the
responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability arising from extracontractual culpa is always based upon a voluntary act or omission which, without willful intent, but
by mere negligence or inattention, has caused damage to another. A master who exercises all
possible care in the selection of his servant, taking into consideration the qualifications they should
possess for the discharge of the duties which it is his purpose to confide to them, and directs them
with equal diligence, thereby performs his duty to third persons to whom he is bound by no
contractual ties, and he incurs no liability whatever if, by reason of the negligence of his servants,
even within the scope of their employment, such third person suffer damage. True it is that under
article 1903 of the Civil Code the law creates a presumption that he has been negligent in the
selection or direction of his servant, but the presumption is rebuttable and yield to proof of due care
and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico
Code, has held that these articles are applicable to cases of extra-contractual culpa exclusively.
(Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua
and Leynes, (30 Phil. rep., 624), which was an action brought upon the theory of the extracontractual liability of the defendant to respond for the damage caused by the carelessness of his
employee while acting within the scope of his employment. The Court, after citing the last paragraph
of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that there
was negligence on the part of the master or employer either in selection of the servant or
employee, or in supervision over him after the selection, or both; and (2) that that

presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It
follows necessarily that if the employer shows to the satisfaction of the court that in selection
and supervision he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not
on that of his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in relations with strangers, the
negligence of the servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based
upon negligence, it is necessary that there shall have been some fault attributable to the defendant
personally, and that the last paragraph of article 1903 merely establishes a rebuttable presumption,
is in complete accord with the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the
liability created by article 1903 is imposed by reason of the breach of the duties inherent in the
special relations of authority or superiority existing between the person called upon to repair the
damage and the one who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions of their
servants or agents, when such acts or omissions cause damages which amount to the breach of a
contact, is not based upon a mere presumption of the master's negligence in their selection or
control, and proof of exercise of the utmost diligence and care in this regard does not relieve the
master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual
obligation has its source in the breach or omission of those mutual duties which civilized society
imposes upon it members, or which arise from these relations, other than contractual, of certain
members of society to others, generally embraced in the concept of status. The legal rights of each
member of society constitute the measure of the corresponding legal duties, mainly negative in
character, which the existence of those rights imposes upon all other members of society. The
breach of these general duties whether due to willful intent or to mere inattention, if productive of
injury, give rise to an obligation to indemnify the injured party. The fundamental distinction between
obligations of this character and those which arise from contract, rests upon the fact that in cases of
non-contractual obligation it is the wrongful or negligent act or omission itself which creates
the vinculum juris, whereas in contractual relations the vinculum exists independently of the breach
of the voluntary duty assumed by the parties when entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is
competent for the legislature to elect and our Legislature has so elected whom such an
obligation is imposed is morally culpable, or, on the contrary, for reasons of public policy, to extend
that liability, without regard to the lack of moral culpability, so as to include responsibility for the
negligence of those person who acts or mission are imputable, by a legal fiction, to others who are in
a position to exercise an absolute or limited control over them. The legislature which adopted our
Civil Code has elected to limit extra-contractual liability with certain well-defined exceptions to
cases in which moral culpability can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in the selection and control of one's
agents or servants, or in the control of persons who, by reason of their status, occupy a position of
dependency with respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to render service to
another, is wholly different from that to which article 1903 relates. When the sources of the obligation
upon which plaintiff's cause of action depends is a negligent act or omission, the burden of proof

rests upon plaintiff to prove the negligence if he does not his action fails. But when the facts
averred show a contractual undertaking by defendant for the benefit of plaintiff, and it is alleged that
plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to specify in his
pleadings whether the breach of the contract is due to willful fault or to negligence on the part of the
defendant, or of his servants or agents. Proof of the contract and of its nonperformance is
sufficientprima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor
should assume the burden of proof of its existence, as the only fact upon which his action is
based; while on the contrary, in a case of negligence which presupposes the existence of a
contractual obligation, if the creditor shows that it exists and that it has been broken, it is not
necessary for him to prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach
was due to the negligent conduct of defendant or of his servants, even though such be in fact the
actual cause of the breach, it is obvious that proof on the part of defendant that the negligence or
omission of his servants or agents caused the breach of the contract would not constitute a defense
to the action. If the negligence of servants or agents could be invoked as a means of discharging the
liability arising from contract, the anomalous result would be that person acting through the medium
of agents or servants in the performance of their contracts, would be in a better position than those
acting in person. If one delivers a valuable watch to watchmaker who contract to repair it, and the
bailee, by a personal negligent act causes its destruction, he is unquestionably liable. Would it be
logical to free him from his liability for the breach of his contract, which involves the duty to exercise
due care in the preservation of the watch, if he shows that it was his servant whose negligence
caused the injury? If such a theory could be accepted, juridical persons would enjoy practically
complete immunity from damages arising from the breach of their contracts if caused by negligent
acts as such juridical persons can of necessity only act through agents or servants, and it would no
doubt be true in most instances that reasonable care had been taken in selection and direction of
such servants. If one delivers securities to a banking corporation as collateral, and they are lost by
reason of the negligence of some clerk employed by the bank, would it be just and reasonable to
permit the bank to relieve itself of liability for the breach of its contract to return the collateral upon
the payment of the debt by proving that due care had been exercised in the selection and direction
of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a
mere incident to the performance of a contract has frequently been recognized by the supreme court
of Spain. (Sentencias of June 27, 1894; November 20, 1896; and December 13, 1896.) In the
decisions of November 20, 1896, it appeared that plaintiff's action arose ex contractu, but that
defendant sought to avail himself of the provisions of article 1902 of the Civil Code as a defense.
The Spanish Supreme Court rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by fault or
negligence, such as those to which article 1902 of the Civil Code relates, but of damages
caused by the defendant's failure to carry out the undertakings imposed by the contracts . . .
.
A brief review of the earlier decision of this court involving the liability of employers for damage done
by the negligent acts of their servants will show that in no case has the court ever decided that the
negligence of the defendant's servants has been held to constitute a defense to an action for
damages for breach of contract.

In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was
not liable for the damages caused by the negligence of his driver. In that case the court commented
on the fact that no evidence had been adduced in the trial court that the defendant had been
negligent in the employment of the driver, or that he had any knowledge of his lack of skill or
carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff
sued the defendant for damages caused by the loss of a barge belonging to plaintiff which was
allowed to get adrift by the negligence of defendant's servants in the course of the performance of a
contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the
defendant grew out of a contract made between it and the plaintiff . . . we do not think that the
provisions of articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover
damages for the personal injuries caused by the negligence of defendant's chauffeur while driving
defendant's automobile in which defendant was riding at the time. The court found that the damages
were caused by the negligence of the driver of the automobile, but held that the master was not
liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time as to give the
owner a reasonable opportunity to observe them and to direct the driver to desist therefrom. .
. . The act complained of must be continued in the presence of the owner for such length of
time that the owner by his acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep.,
8), it is true that the court rested its conclusion as to the liability of the defendant upon article 1903,
although the facts disclosed that the injury complaint of by plaintiff constituted a breach of the duty to
him arising out of the contract of transportation. The express ground of the decision in this case was
that article 1903, in dealing with the liability of a master for the negligent acts of his servants "makes
the distinction between private individuals and public enterprise;" that as to the latter the law creates
a rebuttable presumption of negligence in the selection or direction of servants; and that in the
particular case the presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though
founded in tort rather than as based upon the breach of the contract of carriage, and an examination
of the pleadings and of the briefs shows that the questions of law were in fact discussed upon this
theory. Viewed from the standpoint of the defendant the practical result must have been the same in
any event. The proof disclosed beyond doubt that the defendant's servant was grossly negligent and
that his negligence was the proximate cause of plaintiff's injury. It also affirmatively appeared that
defendant had been guilty of negligence in its failure to exercise proper discretion in the direction of
the servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether the breach of
the duty were to be regarded as constituting culpa aquiliana or culpa contractual. As Manresa points
out (vol. 8, pp. 29 and 69) whether negligence occurs an incident in the course of the performance of
a contractual undertaking or its itself the source of an extra-contractual undertaking obligation, its
essential characteristics are identical. There is always an act or omission productive of damage due
to carelessness or inattention on the part of the defendant. Consequently, when the court holds that
a defendant is liable in damages for having failed to exercise due care, either directly, or in failing to
exercise proper care in the selection and direction of his servants, the practical result is identical in
either case. Therefore, it follows that it is not to be inferred, because the court held in the Yamada
case that defendant was liable for the damages negligently caused by its servants to a person to
whom it was bound by contract, and made reference to the fact that the defendant was negligent in
the selection and control of its servants, that in such a case the court would have held that it would

have been a good defense to the action, if presented squarely upon the theory of the breach of the
contract, for defendant to have proved that it did in fact exercise care in the selection and control of
the servant.
The true explanation of such cases is to be found by directing the attention to the relative spheres of
contractual and extra-contractual obligations. The field of non- contractual obligation is much more
broader than that of contractual obligations, comprising, as it does, the whole extent of juridical
human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that
a person is bound to another by contract does not relieve him from extra-contractual liability to such
person. When such a contractual relation exists the obligor may break the contract under such
conditions that the same act which constitutes the source of an extra-contractual obligation had no
contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in
safety and to provide safe means of entering and leaving its trains (civil code, article 1258). That
duty, being contractual, was direct and immediate, and its non-performance could not be excused by
proof that the fault was morally imputable to defendant's servants.
The railroad company's defense involves the assumption that even granting that the negligent
conduct of its servants in placing an obstruction upon the platform was a breach of its contractual
obligation to maintain safe means of approaching and leaving its trains, the direct and proximate
cause of the injury suffered by plaintiff was his own contributory negligence in failing to wait until the
train had come to a complete stop before alighting. Under the doctrine of comparative negligence
announced in the Rakes case (supra), if the accident was caused by plaintiff's own negligence, no
liability is imposed upon defendant's negligence and plaintiff's negligence merely contributed to his
injury, the damages should be apportioned. It is, therefore, important to ascertain if defendant was in
fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the
particular injury suffered by him could not have occurred. Defendant contends, and cites many
authorities in support of the contention, that it is negligence per se for a passenger to alight from a
moving train. We are not disposed to subscribe to this doctrine in its absolute form. We are of the
opinion that this proposition is too badly stated and is at variance with the experience of every-day
life. In this particular instance, that the train was barely moving when plaintiff alighted is shown
conclusively by the fact that it came to stop within six meters from the place where he stepped from
it. Thousands of person alight from trains under these conditions every day of the year, and sustain
no injury where the company has kept its platform free from dangerous obstructions. There is no
reason to believe that plaintiff would have suffered any injury whatever in alighting as he did had it
not been for defendant's negligent failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in
Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of negligence in
attempting to alight from a moving railway train, is that of ordinary or reasonable care. It is to
be considered whether an ordinarily prudent person, of the age, sex and condition of the
passenger, would have acted as the passenger acted under the circumstances disclosed by
the evidence. This care has been defined to be, not the care which may or should be used
by the prudent man generally, but the care which a man of ordinary prudence would use
under similar circumstances, to avoid injury." (Thompson, Commentaries on Negligence, vol.
3, sec. 3010.)

Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep.,
809), we may say that the test is this; Was there anything in the circumstances surrounding the
plaintiff at the time he alighted from the train which would have admonished a person of average
prudence that to get off the train under the conditions then existing was dangerous? If so, the plaintiff
should have desisted from alighting; and his failure so to desist was contributory negligence.
1aw ph!l.net

As the case now before us presents itself, the only fact from which a conclusion can be drawn to the
effect that plaintiff was guilty of contributory negligence is that he stepped off the car without being
able to discern clearly the condition of the platform and while the train was yet slowly moving. In
considering the situation thus presented, it should not be overlooked that the plaintiff was, as we
find, ignorant of the fact that the obstruction which was caused by the sacks of melons piled on the
platform existed; and as the defendant was bound by reason of its duty as a public carrier to afford
to its passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the
absence of some circumstance to warn him to the contrary, that the platform was clear. The place,
as we have already stated, was dark, or dimly lighted, and this also is proof of a failure upon the part
of the defendant in the performance of a duty owing by it to the plaintiff; for if it were by any
possibility concede that it had right to pile these sacks in the path of alighting passengers, the
placing of them adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence on the part of the plaintiff in this case the
following circumstances are to be noted: The company's platform was constructed upon a level
higher than that of the roadbed and the surrounding ground. The distance from the steps of the car
to the spot where the alighting passenger would place his feet on the platform was thus reduced,
thereby decreasing the risk incident to stepping off. The nature of the platform, constructed as it was
of cement material, also assured to the passenger a stable and even surface on which to alight.
Furthermore, the plaintiff was possessed of the vigor and agility of young manhood, and it was by no
means so risky for him to get off while the train was yet moving as the same act would have been in
an aged or feeble person. In determining the question of contributory negligence in performing such
act that is to say, whether the passenger acted prudently or recklessly the age, sex, and
physical condition of the passenger are circumstances necessarily affecting the safety of the
passenger, and should be considered. Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such conditions, as the nature of their wearing
apparel obstructs the free movement of the limbs. Again, it may be noted that the place was
perfectly familiar to the plaintiff as it was his daily custom to get on and of the train at this station.
There could, therefore, be no uncertainty in his mind with regard either to the length of the step
which he was required to take or the character of the platform where he was alighting. Our
conclusion is that the conduct of the plaintiff in undertaking to alight while the train was yet slightly
under way was not characterized by imprudence and that therefore he was not guilty of contributory
negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a
copyist clerk, and that the injuries he has suffered have permanently disabled him from continuing
that employment. Defendant has not shown that any other gainful occupation is open to plaintiff. His
expectancy of life, according to the standard mortality tables, is approximately thirty-three years. We
are of the opinion that a fair compensation for the damage suffered by him for his permanent
disability is the sum of P2,500, and that he is also entitled to recover of defendant the additional sum
of P790.25 for medical attention, hospital services, and other incidental expenditures connected with
the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of
P3,290.25, and for the costs of both instances. So ordered.

Arellano, C.J., Torres, Street and Avancea, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting:

With one sentence in the majority decision, we are of full accord, namely, "It may be admitted that
had plaintiff waited until the train had come to a full stop before alighting, the particular injury
suffered by him could not have occurred." With the general rule relative to a passenger's contributory
negligence, we are likewise in full accord, namely, "An attempt to alight from a moving train is
negligence per se." Adding these two points together, should be absolved from the complaint, and
judgment affirmed.
Johnson, J., concur.

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