Elcano vs Hill

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

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

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

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

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

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

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

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

WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by ordering the
dismissal of the above entitled case.

SO ORDERED.

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

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

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

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

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

III

THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL CODE, ARE INAPPLICABLE IN
THE INSTANT CASE; and

IV

THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT MARVIN HILL BECAUSE HE
WAS RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT THROUGH EMANCIPATION BY MARRIAGE.
(page 4, Record.)

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

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

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

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

The first issue presents no more problem than the need for a reiteration and further clarification of the
dual character, criminal and civil, of fault or negligence as a source of obligation which was firmly
established in this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court postulated, on
the basis of a scholarly dissertation by Justice Bocobo on the nature of culpa aquiliana in relation to
culpa criminal or delito and mere culpa or fault, with pertinent citation of decisions of the Supreme
Court of Spain, the works of recognized civilians, and earlier jurisprudence of our own, that the same
given act can result in civil liability not only under the Penal Code but also under the Civil Code. Thus, the
opinion holds:

The, above case is pertinent because it shows that the same act machinist. come under both the Penal
Code and the Civil Code. In that case, the action of the agent killeth unjustified and fraudulent and
therefore could have been the subject of a criminal action. And yet, it was held to be also a proper
subject of a civil action under article 1902 of the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued. (pp. 615-616, 73 Phil.). 1
It will be noticed that the defendant in the above case could have been prosecuted in a criminal case
because his negligence causing the death of the child was punishable by the Penal Code. Here is
therefore a clear instance of the same act of negligence being a proper subject matter either of a
criminal action with its consequent civil liability arising from a crime or of an entirely separate and
independent civil action for fault or negligence under article 1902 of the Civil Code. Thus, in this
jurisdiction, the separate individuality of a cuasi-delito or culpa aquiliana, under the Civil Code has been
fully and clearly recognized, even with regard to a negligent act for which the wrongdoer could have
been prosecuted and convicted in a criminal case and for which, after such a conviction, he could have
been sued for this civil liability arising from his crime. (p. 617, 73 Phil.) 2

It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil
Code. It is thus that although J. V. House could have been criminally prosecuted for reckless or simple
negligence and not only punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for fault or negligence under
article 1902 of the Civil Code. (p. 618, 73 Phil.) 3

The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this
case. But inasmuch as we are announcing doctrines that have been little understood, in the past, it
might not he inappropriate to indicate their foundations.

Firstly, the Revised Penal Code in articles 365 punishes not only reckless but also simple negligence. If
we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not
punished by law, accordingly to the literal import of article 1093 of the Civil Code, the legal institution of
culpa aquiliana would have very little scope and application in actual life. Death or injury to persons and
damage to property- through any degree of negligence - even the slightest - would have to be
Idemnified only through the principle of civil liability arising from a crime. In such a state of affairs, what
sphere would remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any
intention to bring about a situation so absurd and anomalous. Nor are we, in the interpretation of the
laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the
literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana or cuasi-delito, which is conserved and made enduring
in articles 1902 to 1910 of the Spanish Civil Code.

Secondary, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in
damages. There are numerous cases of criminal negligence which can not be shown beyond reasonable
doubt, but can be proved by a preponderance of evidence. In such cases, the defendant can and should
be made responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise. there
would be many instances of unvindicated civil wrongs. "Ubi jus Idemnified remedium." (p. 620,73 Phil.)

Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this
subject, which has given rise to the overlapping or concurrence of spheres already discussed, and for
lack of understanding of the character and efficacy of the action for culpa aquiliana, there has grown up
a common practice to seek damages only by virtue of the civil responsibility arising from a crime,
forgetting that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code.
Although this habitual method is allowed by, our laws, it has nevertheless rendered practically useless
and nugatory the more expeditious and effective remedy based on culpa aquiliana or culpa extra-
contractual. In the present case, we are asked to help perpetuate this usual course. But we believe it is
high time we pointed out to the harms done by such practice and to restore the principle of
responsibility for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high
time we caused the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, so that
its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is believed,
make for the better safeguarding or private rights because it realtor, an ancient and additional remedy,
and for the further reason that an independent civil action, not depending on the issues, limitations and
results of a criminal prosecution, and entirely directed by the party wronged or his counsel, is more
likely to secure adequate and efficacious redress. (p. 621, 73 Phil.)

Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from the
opinion in Garcia that the concurrence of the Penal Code and the Civil Code therein referred to
contemplate only acts of negligence and not intentional voluntary acts - deeper reflection would reveal
that the thrust of the pronouncements therein is not so limited, but that in fact it actually extends to
fault or culpa. This can be seen in the reference made therein to the Sentence of the Supreme Court of
Spain of February 14, 1919, supra, which involved a case of fraud or estafa, not a negligent act. Indeed,
Article 1093 of the Civil Code of Spain, in force here at the time of Garcia, provided textually that
obligations "which are derived from acts or omissions in which fault or negligence, not punishable by
law, intervene shall be the subject of Chapter II, Title XV of this book (which refers to quasi-delicts.)" And
it is precisely the underline qualification, "not punishable by law", that Justice Bocobo emphasized could
lead to an ultimo construction or interpretation of the letter of the law that "killeth, rather than the
spirit that giveth lift- hence, the ruling that "(W)e will not use the literal meaning of the law to smother
and render almost lifeless a principle of such ancient origin and such full-grown development as culpa
aquiliana or quasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the Spanish
Civil Code." And so, because Justice Bacobo was Chairman of the Code Commission that drafted the
original text of the new Civil Code, it is to be noted that the said Code, which was enacted after the
Garcia doctrine, no longer uses the term, 11 not punishable by law," thereby making it clear that the
concept of culpa aquiliana includes acts which are criminal in character or in violation of the penal law,
whether voluntary or matter. Thus, the corresponding provisions to said Article 1093 in the new code,
which is Article 1162, simply says, "Obligations derived from quasi-delicto shall be governed by the
provisions of Chapter 2, Title XVII of this Book, (on quasi-delicts) and by special laws." More precisely, a
new provision, Article 2177 of the new code provides:

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

According to the Code Commission: "The foregoing provision (Article 2177) through at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a "culpa aquiliana" or quasi-
delict, of ancient origin, having always had its own foundation and individuality, separate from criminal
negligence. Such distinction between criminal negligence and "culpa extracontractual" or "cuasi-delito"
has been sustained by decision of the Supreme Court of Spain and maintained as clear, sound and
perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the proposed Article 2177,
acquittal from an accusation of criminal negligence, whether on reasonable doubt or not, shall not be a
bar to a subsequent civil action, not for civil liability arising from criminal negligence, but for damages
due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double recovery.", (Report of the
Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same
argument of Justice Bacobo about construction that upholds "the spirit that giveth lift- rather than that
which is literal that killeth the intent of the lawmaker should be observed in applying the same. And
considering that the preliminary chapter on human relations of the new Civil Code definitely establishes
the separability and independence of liability in a civil action for acts criminal in character (under
Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the Revised Penal
Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111, contemplate also the
same separability, it is "more congruent with the spirit of law, equity and justice, and more in harmony
with modern progress"- to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific
Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to "fault or negligencia covers
not only acts "not punishable by law" but also acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a separate civil action lies against the offender in a criminal act,
whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended
party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and
would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in
the two cases vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule
111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the
civil liability for the same act considered as a quasi-delict only and not as a crime is not estinguished
even by a declaration in the criminal case that the criminal act charged has not happened or has not
been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa
aquiliana includes voluntary and negligent acts which may be punishable by law.4

It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished his liability
for quasi-delict, hence that acquittal is not a bar to the instant action against him.

Coming now to the second issue about the effect of Reginald's emancipation by marriage on the
possible civil liability of Atty. Hill, his father, it is also Our considered opinion that the conclusion of
appellees that Atty. Hill is already free from responsibility cannot be upheld.

While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil
Code), and under Article 397, emancipation takes place "by the marriage of the minor (child)", it is,
however, also clear that pursuant to Article 399, emancipation by marriage of the minor is not really full
or absolute. Thus "(E)mancipation by marriage or by voluntary concession shall terminate parental
authority over the child's person. It shall enable the minor to administer his property as though he were
of age, but he cannot borrow money or alienate or encumber real property without the consent of his
father or mother, or guardian. He can sue and be sued in court only with the assistance of his father,
mother or guardian."

Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not only for one's own
acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of
his death or incapacity, the mother, are responsible. The father and, in case of his death or incapacity,
the mother, are responsible for the damages caused by the minor children who live in their company."
In the instant case, it is not controverted that Reginald, although married, was living with his father and
getting subsistence from him at the time of the occurrence in question. Factually, therefore, Reginald
was still subservient to and dependent on his father, a situation which is not unusual.

It must be borne in mind that, according to Manresa, the reason behind the joint and solidary liability of
presuncion with their offending child under Article 2180 is that is the obligation of the parent to
supervise their minor children in order to prevent them from causing damage to third persons. 5 On the
other hand, the clear implication of Article 399, in providing that a minor emancipated by marriage may
not, nevertheless, sue or be sued without the assistance of the parents, is that such emancipation does
not carry with it freedom to enter into transactions or do any act that can give rise to judicial litigation.
(See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing someone else invites judicial action.
Otherwise stated, the marriage of a minor child does not relieve the parents of the duty to see to it that
the child, while still a minor, does not give answerable for the borrowings of money and alienation or
encumbering of real property which cannot be done by their minor married child without their consent.
(Art. 399; Manresa, supra.)

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the emancipation
by marriage of Reginald. However, inasmuch as it is evident that Reginald is now of age, as a matter of
equity, the liability of Atty. Hill has become milling, subsidiary to that of his son.

WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in
accordance with the foregoing opinion. Costs against appellees.

Singson vs BPI

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

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

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

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

xxx xxx xxx

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

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

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

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

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

The case is an appeal via certiorari from the amended decision[1] of the Court of Appeals[2] affirming
the decision and supplemental decision of the trial court,[3] as follows:

"IN VIEW OF THE FOREGOING, judgment is hereby rendered dismissing the appeals interposed by both
accused and Reyes Trucking Corporation and affirming the Decision and Supplemental Decision dated
June 6, 1992 and October 26, 1992 respectively.

"SO ORDERED."[4]

The facts are as follows:

On October 10, 1989, Provincial Prosecutor Patricio T. Durian of Isabela filed with the Regional Trial
Court, Isabela, Branch 19, Cauayan an amended information charging Romeo Dunca y de Tumol with
reckless imprudence resulting in double homicide and damage to property, reading as follows:

"That on or about the 20th day of June, 1989, in the Municipality of Cauayan, Province of Isabela,
Philippines, and within the jurisdiction of this Honorable Court, the said accused being the driver and
person-in-charge of a Trailer Truck Tractor bearing Plate No. N2A-867 registered in the name of Rafael
Reyes Trucking Corporation, with a load of 2,000 cases of empty bottles of beer grande, willfully,
unlawfully and feloniously drove and operated the same while along the National Highway of Barangay
Tagaran, in said Municipality, in a negligent, careless and imprudent manner, without due regard to
traffic laws, rules and ordinances and without taking the necessary precautions to prevent injuries to
persons and damage to property, causing by such negligence, carelessness and imprudence the said
trailer truck to hit and bump a Nissan Pick-up bearing Plate No. BBG-957 driven by Feliciano Balcita and
Francisco Dy, Jr., @ Pacquing, due to irreversible shock, internal and external hemorrhage and multiple
injuries, open wounds, abrasions, and further causing damages to the heirs of Feliciano Balcita in the
amount of P100,000.00 and to the death of Francisco Dy, Jr.; @ Pacquing and damages to his Nissan
Pick-Up bearing Plate No. BBG-957 in the total amount of P2,000,000.00.

"CONTRARY TO LAW.

"Cauayan, Isabela, October 10, 1989.

"(Sgd.) FAUSTO C. CABANTAC

"Third Assistant Provincial Prosecutor"

Upon arraignment on October 23, 1989, the accused entered a plea of not guilty. On the same occasion,
the offended parties (Rosario P. Dy and minor children and Angelina M. Balcita and minor son Paolo)
made a reservation to file a separate civil action against the accused arising from the offense charged.[5]
On November 29, 1989, the offended parties actually filed with the Regional Trial Court, Isabela, Branch
19, Cauayan a complaint against petitioner Rafael Reyes Trucking Corporation, as employer of driver
Romeo Dunca y de Tumol, based on quasi delict. The petitioner settled the claim of the heirs of Feliciano
Balcita (the driver of the other vehicle involved in the accident). The private respondents opted to
pursue the criminal action but did not withdraw the civil case quasi ex delicto they filed against
petitioner. On December 15, 1989, private respondents withdrew the reservation to file a separate civil
action against the accused and manifested that they would prosecute the civil aspect ex delicto in the
criminal action.[6] However, they did not withdraw the separate civil action based on quasi delict
against petitioner as employer arising from the same act or omission of the accused driver.[7]

Upon agreement of the parties, the trial court consolidated both criminal and civil cases and conducted
a joint trial of the same.

The facts, as found by the trial court, which appear to be undisputed, are as follows:

"The defendant Rafael Reyes Trucking Corporation is a domestic corporation engaged in the business of
transporting beer products for the San Miguel Corporation (SMC for short) from the latters San
Fernando, Pampanga plant to its various sales outlets in Luzon. Among its fleets of vehicles for hire is the
white truck trailer described above driven by Romeo Dunca y Tumol, a duly licensed driver. Aside from
the Corporations memorandum to all its drivers and helpers to physically inspect their vehicles before
each trip (Exh. 15, pars. 4 & 5), the SMCs Traffic Investigator-Inspector certified the roadworthiness of
this White Truck trailer prior to June 20, 1989 (Exh. 17). In addition to a professional drivers license, it
also conducts a rigid examination of all driver applicants before they are hired.

"In the early morning of June 20, 1989, the White Truck driven by Dunca left Tuguegarao, Cagayan
bound to San Fernando, Pampanga loaded with 2,000 cases of empty beer "Grande" bottles. Seated at
the front right seat beside him was Ferdinand Domingo, his truck helper ("pahinante" in Pilipino). At
around 4:00 oclock that same morning while the truck was descending at a slight downgrade along the
national road at Tagaran, Cauayan, Isabela, it approached a damaged portion of the road covering the
full width of the trucks right lane going south and about six meters in length. These made the surface of
the road uneven because the potholes were about five to six inches deep. The left lane parallel to this
damaged portion is smooth. As narrated by Ferdinand Domingo, before approaching the potholes, he
and Dunca saw the Nissan with its headlights on coming from the opposite direction. They used to
evade this damaged road by taking the left lance but at that particular moment, because of the
incoming vehicle, they had to run over it. This caused the truck to bounce wildly. Dunca lost control of
the wheels and the truck swerved to the left invading the lane of the Nissan. As a result, Duncas vehicle
rammed the incoming Nissan dragging it to the left shoulder of the road and climbed a ridge above said
shoulder where it finally stopped. (see Exh. A-5, p. 8, record). The Nissan was severely damaged (Exhs.
A-7, A-8, A-9 and A-14, pp. 9-11, record), and its two passengers, namely: Feliciano Balcita and Francisco
Dy, Jr. died instantly (Exh. A-19) from external and internal hemorrhage and multiple fractures (pp. 15
and 16, record).

"For the funeral expenses of Francisco Dy, Jr. her widow spent P651,360.00 (Exh. I-3). At the time of his
death he was 45 years old. He was the President and Chairman of the Board of the Dynamic Wood
Products and Development Corporation (DWPC), a wood processing establishment, from which he was
receiving an income of P10,000.00 a month (Exh. D). In the Articles of Incorporation of the DWPC, the
spouses Francisco Dy, Jr. and Rosario Perez Dy appear to be stockholders of 10,000 shares each with par
value of P100.00 per share out of its outstanding and subscribed capital stock of 60,000 shares valued at
P6,000,000.00 (Exhs. K-1 & 10-B). Under its 1988 Income Tax Returns (Exh. J) the DWPC had a taxable
net income of P78,499.30 (Exh. J). Francisco Dy, Jr. was a La Salle University graduate in Business
Administration, past president of the Pasay Jaycees, National Treasurer and President of the Philippine
Jaycees in 1971 and 1976, respectively, and World Vice-President of Jaycees International in 1979. He
was also the recipient of numerous awards as a civic leader (Exh. C). His children were all studying in
prestigious schools and spent about P180,000.00 for their education in 1988 alone (Exh. H-4).
"As stated earlier, the plaintiffs procurement of a writ of attachment of the properties of the
Corporation was declared illegal by the Court of Appeals. It was shown that on December 26, 1989,
Deputy Sheriff Edgardo Zabat of the RTC at San Fernando, Pampanga, attached six units of Truck
Tractors and trailers of the Corporation at its garage at San Fernando, Pampanga. These vehicles were
kept under PC guard by the plaintiffs in said garage thus preventing the Corporation to operate them.
However, on December 28, 1989, the Court of Appeals dissolved the writ (p. 30, record) and on
December 29, 1989, said Sheriff reported to this Court that the attached vehicles were taken by the
defendants representative, Melita Manapil (Exh. O, p. 31, record). The defendants general Manager
declared that it lost P21,000.00 per day for the non-operation of the six units during their attachment (p.
31, t.s.n., Natividad C. Babaran, proceedings on December 10, 1990)."[8]

On June 6, 1992, the trial court rendered a joint decision, the dispositive portion of which reads as
follows:

"WHEREFORE, in view of the foregoing considerations judgment is hereby rendered:

"1. Finding the accused Romeo Dunca y de Tumol guilty beyond reasonable doubt of the crime of
Double Homicide through Reckless Imprudence with violation of the Motor Vehicle Law (Rep. Act No.
4136), and appreciating in his favor the mitigating circumstance of voluntary surrender without any
aggravating circumstance to offset the same, the Court hereby sentences him to suffer two (2)
indeterminate penalties of four months and one day of arresto mayor as minimum to three years, six
months and twenty days as maximum; to indemnify the Heirs of Francisco Dy. Jr. in the amount of
P3,000,000.00 as compensatory damages, P1,000,000.00 as moral damages, and P1,030,000.00 as
funeral expenses;

"2. Ordering the plaintiff in Civil Case No. Br. 19-424 to pay the defendant therein actual damages in the
amount of P84,000.00; and

"3. Ordering the dismissal of the complaint in Civil Case No. Br. 19-424.

"No pronouncement as to costs.

"SO ORDERED.

"Cauayan, Isabela, June 6, 1992.

"(Sgd.) ARTEMIO R. ALIVIA

"Regional Trial Judge"[9]

On September 3, 1992, petitioner and the accused filed a notice of appeal from the joint decision.[10]

On the other hand, private respondents moved for amendment of the dispositive portion of the joint
decision so as to hold petitioner subsidiarily liable for the damages awarded to the private respondents
in the event of insolvency of the accused.[11]

On October 26, 1992, the trial court rendered a supplemental decision amending the dispositive portion
by inserting an additional paragraph reading as follows:
"2:A Ordering the defendant Reyes Trucking Corporation subsidiarily liable for all the damages awarded
to the heirs of Francisco Dy, Jr., in the event of insolvency of the accused but deducting therefrom the
damages of P84,000.00 awarded to said defendant in the next preceding paragraph; and x x x"[12]

On November 12, 1992, petitioner filed with the trial court a supplemental notice of appeal from the
supplemental decision.[13]

During the pendency of the appeal, the accused jumped bail and fled to a foreign country. By resolution
dated December 29, 1994, the Court of Appeals dismissed the appeal of the accused in the criminal
case.[14]

On January 6, 1997, the Court of Appeals rendered an amended decision affirming that of the trial court,
as set out in the opening paragraph of this decision.[15]

On January 31, 1997, petitioner filed a motion for reconsideration of the amended decision.[16]

On April 21, 1997, the Court of Appeals denied petitioners motion for reconsideration for lack of
merit.[17]

Hence, this petition for review.[18]

On July 21, 1997, the Court required respondents to comment on the petition within ten (10) days from
notice.[19]

On January 27, 1998, the Solicitor General filed his comment.[20] On April 13, 1998, the Court granted
leave to petitioner to file a reply and noted the reply it filed on March 11, 1998.[21]

We now resolve to give due course to the petition and decide the case.

Petitioner raises three (3) grounds for allowance of the petition, which, however, boil down to two (2)
basic issues, namely:

1.....May petitioner as owner of the truck involved in the accident be held subsidiarily liable for the
damages awarded to the offended parties in the criminal action against the truck driver despite the
filing of a separate civil action by the offended parties against the employer of the truck driver?

2.....May the Court award damages to the offended parties in the criminal case despite the filing of a
civil action against the employer of the truck driver; and in amounts exceeding that alleged in the
information for reckless imprudence resulting in homicide and damage to property?[22]

We grant the petition, resolving under the circumstances pro hac vice to remand the cases to the trial
court for determination of the civil liability of petitioner as employer of the accused driver in the civil
action quasi ex delicto re-opened for the purpose.

In negligence cases, the aggrieved party has the choice between (1) an action to enforce civil liability
arising from crime under Article 100 of the Revised Penal Code; and (2) a separate action for quasi delict
under Article 2176 of the Civil Code of the Philippines. Once the choice is made, the injured party can
not avail himself of any other remedy because he may not recover damages twice for the same
negligent act or omission of the accused.[23] This is the rule against double recovery.

In other words, "the same act or omission can create two kinds of liability on the part of the offender,
that is, civil liability ex delicto, and civil liability quasi delicto" either of which "may be enforced against
the culprit, subject to the caveat under Article 2177 of the Civil Code that the offended party can not
recover damages under both types of liability."[24]

In the instant case, the offended parties elected to file a separate civil action for damages against
petitioner as employer of the accused, based on quasi delict, under Article 2176 of the Civil Code of the
Philippines. Private respondents sued petitioner Rafael Reyes Trucking Corporation, as the employer of
the accused, to be vicariously liable for the fault or negligence of the latter. Under the law, this vicarious
liability of the employer is founded on at least two specific provisions of law.

The first is expressed in Article 2176 in relation to Article 2180 of the Civil Code, which would allow an
action predicated on quasi-delict to be instituted by the injured party against the employer for an act or
omission of the employee and would necessitate only a preponderance of evidence to prevail. Here, the
liability of the employer for the negligent conduct of the subordinate is direct and primary, subject to
the defense of due diligence in the selection and supervision of the employee. The enforcement of the
judgment against the employer in an action based on Article 2176 does not require the employee to be
insolvent since the nature of the liability of the employer with that of the employee, the two being
statutorily considered joint tortfeasors, is solidary.[25] The second, predicated on Article 103 of the
Revised Penal Code, provides that an employer may be held subsidiarily civilly liable for a felony
committed by his employee in the discharge of his duty. This liability attaches when the employee is
convicted of a crime done in the performance of his work and is found to be insolvent that renders him
unable to properly respond to the civil liability adjudged.[26]

As regards the first issue, the answer is in the negative. Rafael Reyes Trucking Corporation, as employer
of the accused who has been adjudged guilty in the criminal case for reckless imprudence, can not be
held subsidiarily liable because of the filing of the separate civil action based on quasi delict against it. In
view of the reservation to file, and the subsequent filing of the civil action for recovery of civil liability,
the same was not instituted with the criminal action. Such separate civil action was for recovery of
damages under Article 2176 of the Civil Code, arising from the same act or omission of the accused.[27]

Pursuant to the provision of Rule 111, Section 1, paragraph 3 of the 1985 Rules of Criminal Procedure,
when private respondents, as complainants in the criminal action, reserved the right to file the separate
civil action, they waived other available civil actions predicated on the same act or omission of the
accused-driver. Such civil action includes the recovery of indemnity under the Revised Penal Code, and
damages under Articles 32, 33, and 34 of the Civil Code of the Philippines arising from the same act or
omission of the accused.[28]

The intention of private respondents to proceed primarily and directly against petitioner as employer of
accused truck driver became clearer when they did not ask for the dismissal of the civil action against
the latter based on quasi delict.

Consequently, the Court of Appeals and the trial court erred in holding the accused civilly liable, and
petitioner-employer of the accused subsidiarily liable for damages arising from crime (ex delicto) in the
criminal action as the offended parties in fact filed a separate civil action against the employer based on
quasi delict resulting in the waiver of the civil action ex delicto.

It might be argued that private respondents as complainants in the criminal case withdrew the
reservation to file a civil action against the driver (accused) and manifested that they would pursue the
civil liability of the driver in the criminal action. However, the withdrawal is ineffective to reverse the
effect of the reservation earlier made because private respondents did not withdraw the civil action
against petitioner based on quasi delict. In such a case, the provision of Rule 111, Section 1, paragraph 3
of the 1985 Rules on Criminal Procedure is clear that the reservation to file or the filing of a separate
civil action results in a waiver of other available civil actions arising from the same act or omission of the
accused. Rule 111, Section 1, paragraph 2 enumerated what are the civil actions deemed waived upon
such reservation or filing, and one of which is the civil indemnity under the Revised Penal Code. Rule
111, Section 1, paragraph 3 of the 1985 Rules on Criminal Procedure specifically provides:

"A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the
right to file, any of said civil actions separately waives the others."

The rationale behind this rule is the avoidance of multiple suits between the same litigants arising out of
the same act or omission of the offender. The restrictive phraseology of the section under consideration
is meant to cover all kinds of civil actions, regardless of their source in law, provided that the action has
for its basis the same act or omission of the offender.[29]

However, petitioner as defendant in the separate civil action for damages filed against it, based on quasi
delict, may be held liable thereon. Thus, the trial court grievously erred in dismissing plaintiffs civil
complaint. And the Court of Appeals erred in affirming the trial courts decision. Unfortunately private
respondents did not appeal from such dismissal and could not be granted affirmative relief.[30]

The Court, however, in exceptional cases has relaxed the rules "in order to promote their objectives and
assist the parties in obtaining just, speedy, and inexpensive determination of every action or
proceeding"[31] or exempted "a particular case from the operation of the rules."[32]

Invoking this principle, we rule that the trial court erred in awarding civil damages in the criminal case
and in dismissing the civil action. Apparently satisfied with such award, private respondent did not
appeal from the dismissal of the civil case. However, petitioner did appeal. Hence, this case should be
remanded to the trial court so that it may render decision in the civil case awarding damages as may be
warranted by the evidence.[33]

With regard to the second issue, the award of damages in the criminal case was improper because the
civil action for the recovery of civil liability was waived in the criminal action by the filing of a separate
civil action against the employer. As enunciated in Ramos vs. Gonong,[34] "civil indemnity is not part of
the penalty for the crime committed." The only issue brought before the trial court in the criminal action
is whether accused Romeo Dunca y de Tumol is guilty of reckless imprudence resulting in homicide and
damage to property. The action for recovery of civil liability is not included therein, but is covered by the
separate civil action filed against the petitioner as employer of the accused truck-driver.

In this case, accused-driver jumped bail pending his appeal from his conviction. Thus, the judgment
convicting the accused became final and executory, but only insofar as the penalty in the criminal action
is concerned. The damages awarded in the criminal action was invalid because of its effective waiver.
The pronouncement was void because the action for recovery of the civil liability arising from the crime
has been waived in said criminal action.

With respect to the issue that the award of damages in the criminal action exceeded the amount of
damages alleged in the amended information, the issue is de minimis. At any rate, the trial court erred
in awarding damages in the criminal case because by virtue of the reservation of the right to bring a
separate civil action or the filing thereof, "there would be no possibility that the employer would be held
liable because in such a case there would be no pronouncement as to the civil liability of the
accused.[35]

As a final note, we reiterate that "the policy against double recovery requires that only one action be
maintained for the same act or omission whether the action is brought against the employee or against
his employer.[36] The injured party must choose which of the available causes of action for damages he
will bring.[37]

Parenthetically, the trial court found the accused "guilty beyond reasonable doubt of the crime of
Double Homicide Through Reckless Imprudence with violation of the Motor Vehicle Law (Rep. Act No.
4136)." There is no such nomenclature of an offense under the Revised Penal Code. Thus, the trial court
was misled to sentence the accused "to suffer two (2) indeterminate penalties of four (4) months and
one (1) day of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of
prision correccional, as maximum." This is erroneous because in reckless imprudence cases, the actual
penalty for criminal negligence bears no relation to the individual willful crime or crimes committed, but
is set in relation to a whole class, or series of crimes.[38]

Unfortunately, we can no longer correct this judgment even if erroneous, as it is, because it has become
final and executory.

Under Article 365 of the Revised Penal Code, criminal negligence "is treated as a mere quasi offense,
and dealt with separately from willful offenses. It is not a question of classification or terminology. In
intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is
the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight,
the imprudencia punible. Much of the confusion has arisen from the common use of such descriptive
phrase as homicide through reckless imprudence, and the like; when the strict technical sense is, more
accurately, reckless imprudence resulting in homicide; or simple imprudence causing damages to
property."[39]

There is need, therefore, to rectify the designation of the offense without disturbing the imposed
penalty for the guidance of bench and bar in strict adherence to precedent.

WHEREFORE, the Court GRANTS the petition and SETS ASIDE the amended decision and resolution of
the Court of Appeals in CA-G. R. CR No. 14448, promulgated on January 6, 1997, and the joint decision of
the Regional Trial Court, Isabela, Branch 19, Cauayan, in Criminal Case No. Br. 19-311 and Civil Case No.
Br. 19-424, dated June 6, 1992.

IN LIEU THEREOF, the Court renders judgment as follows:

(1) In Criminal Case No. Br. 19-311, the Court declares the accused Romeo Dunca y de Tumol guilty
beyond reasonable doubt of reckless imprudence resulting in homicide and damage to property, defined
and penalized under Article 365, paragraph 2 of the Revised Penal Code, with violation of the
automobile law (R. A. No. 4136, as amended), and sentences him to suffer two (2) indeterminate
penalties of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, six (6)
months and twenty (20) days of prision correccional, as maximum,[40] without indemnity, and to pay
the costs, and

(2) In Civil Case No. Br. 19-424, the Court orders the case re-opened to determine the liability of the
defendant Rafael Reyes Trucking Corporation to plaintiffs and that of plaintiffs on defendants
counterclaim.

No costs in this instance.

Basilio vs CA

This is a petition for review[1] under Rule 45 of the Revised Rules of Court which seeks to annul and set
aside the Decision[2] and Resolution[3] of the Court of Appeals dated October 27, 1992 and January 5,
1994, respectively. The decision sustained the Order dated April 7, 1992 of the Regional Trial Court of
Pasig City, Branch 166, denying due course to petitioners appeal from the Judgment in Criminal Case No.
70278 and allowing execution against the petitioner of the subsidiary indemnity arising from the offense
committed by his truck driver.

The relevant facts as gleaned from the records are as follows:

On July 23, 1987, Simplicio Pronebo was charged by the Provincial Fiscal of Rizal with the crime of
reckless imprudence resulting in damage to property with double homicide and double physical
injuries.[4] The case was docketed as Criminal Case No. 70278.

The information against him reads: Scmis

"The undersigned Assistant Fiscal accused Simplicio Pronebo y Cruz of the crime of Reckless Imprudence
Resulting in Damage to Property with Double Homicide and Double Physical Injuries, committed as
follows:

"That on or about the 15th day of July, 1987 in the municipality of Marikina, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the said accused, being then the driver and person in
charge of a dump truck with plate no. NMW-609 owned and registered in the name of Luisito Basilio,
without due regard to traffic laws, rules and regulations and without taking the necessary care and
precaution to prevent damage to property and avoid injuries to persons, did then and there willfully,
unlawfully and feloniously drive, manage and operate said dump truck in a careless, reckless, negligent
and imprudent manner as a result of which said dump truck being then driven by him hit/bumped and
sideswiped the following vehicles, to wit: a) a motorized tricycle with plate no. NF-2457 driven by
Benedicto Abuel thereby causing damage in the amount of P1,100.00; b) an automobile Toyota Corona
with plate no. NAL -138 driven by Virgilio Hipolito thereby causing damage in the amount of P2,190.50 c)
a motorized tricycle with plate no. NW-9018 driven by Ricardo Sese y Julian thereby causing damage of
an undetermined amount d) an automobile Mitsubishi Lancer with plate no. PHE-283 driven by Angelito
Carranto thereby causing damage of an undetermined amount and 3) a Ford Econo Van with plate no.
NFR-898 driven by Ernesto Aseron thereby causing damage of an undetermined amount; that due to the
strong impact caused by the collision, the driver Ricardo Sese y Julian and his 3 passengers including
Danilo Advincula y Poblete were hit/bumped which directly caused their death; while the other 2
passengers, namely; Cirilo Bangot sustained serious physical injuries which required medical attendance
for a period of more than 30 days which incapacitated him from performing his customary labor for the
same period of time and Dominador Legaspi Jr. sustained physical injuries which required medical
attendance for a period of less than nine days and incapacitated him from performing his customary
labor for the same period of time.

Contrary to law." Mis sc

After arraignment and trial, the court rendered its judgment dated February 4, 1991, which reads:

"WHEREFORE, the court finds accused Simplicio Pronebo y Cruz guilty beyond reasonable doubt of
Reckless Imrpudence resulting in the death of Danilo Advincula and is hereby sentenced to suffer the
indeterminate penalty of two (2) years and four (4) months, as minimum to six (6) years of prision
correccional, as maximum, and to indemnify the heirs of danilo Advincula P30,000.00 for the latters
death, P31,614.00, as actual and compensatory damages. P2,000,000.00 for the loss of his earning
capacity. P150,000.00, as moral damages, and P30,000.00 as attorneys fees, plus the costs of suit."[5]

Thereafter, the accused filed an application for probation, so that the above judgment became final and
executory.

Pertinently, the trial court also found that at the time of the vehicular accident accused Simplicio
Pronebo was employed as the driver of the dump truck owned by petitioner Luisito Basilio.

On March 27, 1991, petitioner Luisito Basilio filed with the trial court a "Special Appearance and Motion
for Reconsideration"[6] praying that the judgment dated February 4, 1991, be reconsidered and set
aside insofar as it affected him and subjected him to a subsidiary liability for the civil aspect of the
criminal case. The motion was denied for lack of merit on September 16, 1991.[7] Petitioner filed a
Notice of Appeal[8] on September 25, 1991. Mis spped

On September 23, 1991, private respondent filed a Motion for Execution of the subsidiary civil liability[9]
of petitioner Basilio.

On April 7, 1992, the trial court issued two separate Orders. One denied due course and dismissed
Basilios appeal for having been filed beyond the reglementary period.[10] The other directed the
issuance of a writ of execution against him for the enforcement and satisfaction of the award of civil
indemnity decreed in judgment on February 4, 1991.[11]

Aggrieved, petitioner filed a petition for certiorari[12] under Rule 65 of the Revised Rules of Court with
the Court of Appeals, alleging that respondent judge acted without jurisdiction or with grave abuse of
discretion in issuing: (1) the Order dated September 16, 1991, denying the petitioners motion for
reconsideration of the judgment dated February 4, 1991 insofar as the subsidiary liability of the
petitioner was concerned, and (2) the Order dated April 7, 1992, directing the issuance of a writ of
execution against the petitioner. Before the appellate court, petitioner claimed he was not afforded due
process when he was found subsidiarily liable for the civil liability of the accused Pronebo in the criminal
case.
The Court of Appeals dismissed the petition in its Decision dated October 27, 1992, disposing as follows:
Spped

"ACCORDINGLY, in view of the foregoing disquisitions, the instant petition for certiorari and prohibition
with preliminary injunction is DENIED DUE COURSE and should be, as it is hereby, DISMISSED for lack of
persuasive force and effect."[13]

A motion for reconsideration[14] was filed by the petitioner on November 24, 1992. This was denied in a
Resolution[15] dated January 5, 1994. Hence this petition for review.

Now, petitioner, in his assignment of errors, avers that respondent Court of Appeals erred:

I. ... IN SUSTAINING THE RULING OF THE TRIAL COURT THAT THE JUDGMENT OF 4 FEBRUARY 1991 HAD
BECOME FINAL AND EXECUTORY AS REGARDS BOTH THE CIVIL AND CRIMINAL ASPECTS WHEN THE
ACCUSED APPLIED FOR PROBATION AT THE PROMULGATION.

II. ... IN HOLDING THAT AS PETITIONER IS NEITHER AN ACCUSED OR A PARTY IN CRIMINAL CASE NO.
70278, HE IS NOT ENTITLED TO FILE A MOTION FOR RECONSIDERATION OF THE JUDGMENT OF
SUBSIDIARY CIVIL LIABILITY AGAINST HIM.

III. ... IN HOLDING THAT PETITIONER WAS NOT DEPRIVED OF HIS DAY IN COURT IN VIOLATION OF
PROCEDURAL DUE PROCESS. Jo spped

IV. ... IN HOLDING THAT PETITIONER WAS NOT ENTITLED TO THE AUXILIARY RELIEF OF PRELIMINARY
INJUNCTION BECAUSE THE JUDGMENT OF CONVICTION "IS CONCLUSIVE UPON THE EMPLOYER".

V. IN RULING THAT THE RESPONDENT JUDGE DID NOT ACT IN ABUSE OF AND/OR EXCESS OF
JURISDICTION.[16]

The issue before us is whether respondent Court of Appeals erred and committed grave abuse of
discretion in denying the special civil action under Rule 65 filed by petitioner against the trial court. To
resolve it, we must, however, also pass upon the following:

(1) Had the judgment of February 4, 1991 of the trial court become final and executory when accused
applied for probation at the promulgation?

(2) May the petitioner as employer file a Motion for Reconsideration concerning civil liability decreed in
the judgment if he is not a party to the criminal case?

(3) May petitioner, as employer, be granted relief by way of a writ of preliminary injunction? Spped jo

Petitioner asserts that he was not given the opportunity to be heard by the trial court to prove the
absence of an employer-employee relationship between him and accused. Nor that, alternatively, the
accused was not lawfully discharging duties as an employee at the time of the incident. While these
assertions are not moved, we shall give them due consideration.

The statutory basis for an employers subsidiary liability is found in Article 103 of the Revised Penal
Code.[17] This liability is enforceable in the same criminal proceeding where the award is made.[18]
However, before execution against an employer ensues, there must be a determination, in a hearing set
for the purpose of 1) the existence of an employer-employee relationship; 2) that the employer is
engaged in some kind of industry; 3) that the employee is adjudged guilty of the wrongful act and found
to have committed the offense in the discharge of his duties (not necessarily any offense he commits
"while" in the discharge of such duties; and 4) that said employee is insolvent.[19]

In Vda. De Paman vs. Seeris, 115 SCRA 709, 714 (1982), the Court observed that the drawback in the
enforcement of the subsidiary liability in the same criminal proceeding is that the alleged employer is
not afforded due process. Not being a party to the case, he is not heard as to whether he is indeed the
employer. Hence, we held: Miso

"To remedy the situation and thereby afford due process to the alleged employer, this Court directed
the court a quo in Pajarito vs. Seeris (supra) to hear and decide in the same proceeding the subsidiary
liability of the alleged owner and operator of the passenger bus. It was explained therein that the
proceeding for the enforcement of the subsidiary liability may be considered as part of the proceeding
for the execution of the judgment. A case in which an execution has been issued is regarded as still
pending so that all proceedings on the execution are proceedings in the suit."[20]

There are two instances when the existence of an employer-employee relationship of an accused driver
and the alleged vehicle owner may be determined. One during the criminal proceeding, and the other,
during the proceeding for the execution of the judgment. In both instances, petitioner should be given
the opportunity to be heard, which is the essence of due process.[21]

Petitioner knew of the criminal case that was filed against accused because it was his truck that was
involved in the incident.[22] Further, it was the insurance company, with which his truck was insured,
that provided the counsel for the accused, pursuant to the stipulations in their contract.[23] Petitioner
did not intervene in the criminal proceedings, despite knowledge, through counsel, that the prosecution
adduced evidence to show employer-employee relationship.[24] With the convicts application for
probation, the trial courts judgment became final and executory. All told, it is our view that the lower
court did not err when it found that petitioner was not denied due process. He had all his chances to
intervene in the criminal proceedings, and prove that he was not the employer of the accused, but he
chooses not to intervene at the appropriate time. Nex old

Petitioner was also given the opportunity during the proceedings for the enforcement of judgment. Even
assuming that he was not properly notified of the hearing on the motion for execution of subsidiary
liability, he was asked by the trial court to make an opposition thereto, which he did on October 17,
1991, where he properly alleged that there was no employer-employee relationship between him and
accused and that the latter was not discharging any function in relation to his work at the time of the
incident.[25] In addition, counsel for private respondent filed and duly served on December 3, 1991, and
December 9, 1991, respectively, a manifestation praying for the grant of the motion for execution.[26]
This was set for hearing on December 13, 1991. However, counsel for petitioner did not appear.
Consequently, the court ordered in open court that the matter be submitted for resolution. It was only
on January 6, 1992, that the petitioners counsel filed a counter-manifestation[27] that belatedly
attempted to contest the move of the private prosecutor for the execution of the civil liability. Thus, on
April 7, 1992, the trial court issued the Order granting the motion for execution of the subsidiary
liability. Given the foregoing circumstances, we cannot agree with petitioner that the trial court denied
him due process of law. Neither can we fault respondent appellant court for sustaining the judgment
and orders of the trial court. Mani kx
Accordingly, the instant petition is DENIED for lack of merit. The Decision of the Court of Appeals dated
October 27, 1992, in CA-G.R. SP No. 27850 is AFFIRMED. Costs against petitioner.

Professional Services vs Agana

Hospitals, having undertaken one of mankind’s most important and delicate endeavors, must assume
the grave responsibility of pursuing it with appropriate care. The care and service dispensed through this
high trust, however technical, complex and esoteric its character may be, must meet standards of
responsibility commensurate with the undertaking to preserve and protect the health, and indeed, the
very lives of those placed in the hospital’s keeping.1

Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals’ Decision2
dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming with modification
the Decision3 dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96, Quezon City in Civil
Case No. Q-43322 and nullifying its Order dated September 21, 1993.

The facts, as culled from the records, are:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City
Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of medical
examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering from
"cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the Medical City Hospital, performed an
anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread
on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the
consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No.
126467, to perform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and
closed the incision.

However, the operation appeared to be flawed. In the corresponding Record of Operation dated April
11, 1984, the attending nurses entered these remarks:

"sponge count lacking 2

"announced to surgeon searched (sic) done but to no avail continue for closure."

On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including the
doctors’ fees, amounted to P60,000.00.

After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both
Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of the
surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous nodes
which were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further
treatment. After four months of consultations and laboratory examinations, Natividad was told she was
free of cancer. Hence, she was advised to return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed about
it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze measuring
1.5 inches in width. He then assured her that the pains would soon vanish.

Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek
treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the
presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in width
which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive organs
which forced stool to excrete through the vagina. Another surgical operation was needed to remedy the
damage. Thus, in October 1984, Natividad underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a
complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City Hospital,
Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter are liable for
negligence for leaving two pieces of gauze inside Natividad’s body and malpractice for concealing their
acts of negligence.

Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an
administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes,
docketed as Administrative Case No. 1690. The PRC Board of Medicine heard the case only with respect
to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in the United States.

On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly substituted
by her above-named children (the Aganas).

On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and Dr.
Fuentes liable for negligence and malpractice, the decretal part of which reads:

WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants PROFESSIONAL
SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly and severally,
except in respect of the award for exemplary damages and the interest thereon which are the liabilities
of defendants Dr. Ampil and Dr. Fuentes only, as follows:

1. As actual damages, the following amounts:

a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of P21.60-US$1.00, as
reimbursement of actual expenses incurred in the United States of America;

b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;

c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic Hospital, medical
fees, and cost of the saline solution;
2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;

4. As attorney’s fees, the sum of P250,000.00;

5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the complaint
until full payment; and

6. Costs of suit.

SO ORDERED.

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed as CA-
G.R. CV No. 42062.

Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its
Decision, which was granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon certain
properties of Dr. Ampil and sold them for P451,275.00 and delivered the amount to the Aganas.

Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr. Fuentes to
indefinitely suspend any further execution of the RTC Decision. However, not long thereafter, the
Aganas again filed a motion for an alias writ of execution against the properties of PSI and Dr. Fuentes.
On September 21, 1993, the RTC granted the motion and issued the corresponding writ, prompting Dr.
Fuentes to file with the Court of Appeals a petition for certiorari and prohibition, with prayer for
preliminary injunction, docketed as CA-G.R. SP No. 32198. During its pendency, the Court of Appeals
issued a Resolution5 dated October 29, 1993 granting Dr. Fuentes’ prayer for injunctive relief.

On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.

Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision6 in Administrative
Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the prosecution failed to
show that Dr. Fuentes was the one who left the two pieces of gauze inside Natividad’s body; and that he
concealed such fact from Natividad.

On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV No.
42062 and CA-G.R. SP No. 32198, thus:

WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan Fuentes is
hereby DISMISSED, and with the pronouncement that defendant-appellant Dr. Miguel Ampil is liable to
reimburse defendant-appellant Professional Services, Inc., whatever amount the latter will pay or had
paid to the plaintiffs-appellees, the decision appealed from is hereby AFFIRMED and the instant appeal
DISMISSED.

Concomitant with the above, the petition for certiorari and prohibition filed by herein defendant-
appellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order of the
respondent judge dated September 21, 1993, as well as the alias writ of execution issued pursuant
thereto are hereby NULLIFIED and SET ASIDE. The bond posted by the petitioner in connection with the
writ of preliminary injunction issued by this Court on November 29, 1993 is hereby cancelled.

Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.

SO ORDERED.

Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution7 dated December
19, 1996.

Hence, the instant consolidated petitions.

In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is
estopped from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr.
Ampil; and (3) it is not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is not
its employee, but a mere consultant or independent contractor. As such, he alone should answer for his
negligence.

In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is
not guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They contend
that the pieces of gauze are prima facie proofs that the operating surgeons have been negligent.

Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina. He
pointed to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing the
hysterectomy; (2) the attending nurses’ failure to properly count the gauzes used during surgery; and (3)
the medical intervention of the American doctors who examined Natividad in the United States of
America.

For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr.
Ampil liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving Dr.
Fuentes of any liability; and third, whether PSI may be held solidarily liable for the negligence of Dr.
Ampil.

I - G.R. No. 127590

Whether the Court of Appeals Erred in Holding Dr. Ampil

Liable for Negligence and Malpractice.

Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes of
Natividad’s detriment. He argues that the Court should not discount either of the following possibilities:
first, Dr. Fuentes left the gauzes in Natividad’s body after performing hysterectomy; second, the
attending nurses erred in counting the gauzes; and third, the American doctors were the ones who
placed the gauzes in Natividad’s body.

Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he did not present
any evidence to prove that the American doctors were the ones who put or left the gauzes in Natividad’s
body. Neither did he submit evidence to rebut the correctness of the record of operation, particularly
the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil
examined his (Dr. Fuentes’) work and found it in order.

The glaring truth is that all the major circumstances, taken together, as specified by the Court of
Appeals, directly point to Dr. Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the patient
during the surgical operation.

Second, immediately after the operation, the nurses who assisted in the surgery noted in their report
that the ‘sponge count (was) lacking 2’; that such anomaly was ‘announced to surgeon’ and that a
‘search was done but to no avail’ prompting Dr. Ampil to ‘continue for closure’ x x x.

Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs. Agana
where the surgery was performed.

An operation requiring the placing of sponges in the incision is not complete until the sponges are
properly removed, and it is settled that the leaving of sponges or other foreign substances in the wound
after the incision has been closed is at least prima facie negligence by the operating surgeon.8 To put it
simply, such act is considered so inconsistent with due care as to raise an inference of negligence. There
are even legions of authorities to the effect that such act is negligence per se.9

Of course, the Court is not blind to the reality that there are times when danger to a patient’s life
precludes a surgeon from further searching missing sponges or foreign objects left in the body. But this
does not leave him free from any obligation. Even if it has been shown that a surgeon was required by
the urgent necessities of the case to leave a sponge in his patient’s abdomen, because of the dangers
attendant upon delay, still, it is his legal duty to so inform his patient within a reasonable time thereafter
by advising her of what he had been compelled to do. This is in order that she might seek relief from the
effects of the foreign object left in her body as her condition might permit. The ruling in Smith v.
Zeagler10 is explicit, thus:

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails to
remove a sponge he has placed in his patient’s body that should be removed as part of the operation, he
thereby leaves his operation uncompleted and creates a new condition which imposes upon him the
legal duty of calling the new condition to his patient’s attention, and endeavoring with the means he has
at hand to minimize and avoid untoward results likely to ensue therefrom.

Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled
her that the pain she was experiencing was the ordinary consequence of her operation. Had he been
more candid, Natividad could have taken the immediate and appropriate medical remedy to remove the
gauzes from her body. To our mind, what was initially an act of negligence by Dr. Ampil has ripened into
a deliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully
pursue this kind of case, a patient must only prove that a health care provider either failed to do
something which a reasonably prudent health care provider would have done, or that he did something
that a reasonably prudent provider would not have done; and that failure or action caused injury to the
patient.11 Simply put, the elements are duty, breach, injury and proximate causation. Dr, Ampil, as the
lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s body before
closure of the incision. When he failed to do so, it was his duty to inform Natividad about it. Dr. Ampil
breached both duties. Such breach caused injury to Natividad, necessitating her further examination by
American doctors and another surgery. That Dr. Ampil’s negligence is the proximate cause12 of
Natividad’s injury could be traced from his act of closing the incision despite the information given by
the attending nurses that two pieces of gauze were still missing. That they were later on extracted from
Natividad’s vagina established the causal link between Dr. Ampil’s negligence and the injury. And what
further aggravated such injury was his deliberate concealment of the missing gauzes from the
knowledge of Natividad and her family.

II - G.R. No. 126467

Whether the Court of Appeals Erred in Absolving

Dr. Fuentes of any Liability

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it
is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of gauze
were left inside Natividad’s body is a prima facie evidence of Dr. Fuentes’ negligence.

We are not convinced.

Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the occurrence
of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption
of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for defendant to
meet with an explanation.13 Stated differently, where the thing which caused the injury, without the
fault of the injured, is under the exclusive control of the defendant and the injury is such that it should
not have occurred if he, having such control used proper care, it affords reasonable evidence, in the
absence of explanation that the injury arose from the defendant’s want of care, and the burden of proof
is shifted to him to establish that he has observed due care and diligence.14

From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa
loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control
and management of the defendant; (3) the occurrence was such that in the ordinary course of things,
would not have happened if those who had control or management used proper care; and (4) the
absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the
"control and management of the thing which caused the injury."15

We find the element of "control and management of the thing which caused the injury" to be wanting.
Hence, the doctrine of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He
requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that
the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery and
thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding everything to
be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed operating on
Natividad. He was about to finish the procedure when the attending nurses informed him that two
pieces of gauze were missing. A "diligent search" was conducted, but the misplaced gauzes were not
found. Dr. Ampil then directed that the incision be closed. During this entire period, Dr. Fuentes was no
longer in the operating room and had, in fact, left the hospital.

Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the
surgery room and all personnel connected with the operation. Their duty is to obey his orders.16 As
stated before, Dr. Ampil was the lead surgeon. In other words, he was the "Captain of the Ship." That he
discharged such role is evident from his following conduct: (1) calling Dr. Fuentes to perform a
hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’
permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of ordering
the closure of the incision notwithstanding that two pieces of gauze remained unaccounted for, that
caused injury to Natividad’s body. Clearly, the control and management of the thing which caused the
injury was in the hands of Dr. Ampil, not Dr. Fuentes.

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or
constitute an independent or separate ground of liability, being a mere evidentiary rule.17 In other
words, mere invocation and application of the doctrine does not dispense with the requirement of proof
of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not by Dr.
Fuentes.

III - G.R. No. 126297

Whether PSI Is Liable for the Negligence of Dr. Ampil

The third issue necessitates a glimpse at the historical development of hospitals and the resulting
theories concerning their liability for the negligence of physicians.

Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical
services to the lowest classes of society, without regard for a patient’s ability to pay.18 Those who could
afford medical treatment were usually treated at home by their doctors.19 However, the days of house
calls and philanthropic health care are over. The modern health care industry continues to distance itself
from its charitable past and has experienced a significant conversion from a not-for-profit health care to
for-profit hospital businesses. Consequently, significant changes in health law have accompanied the
business-related changes in the hospital industry. One important legal change is an increase in hospital
liability for medical malpractice. Many courts now allow claims for hospital vicarious liability under the
theories of respondeat superior, apparent authority, ostensible authority, or agency by estoppel. 20

In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code,
which reads:

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

A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of
respondeat superior, thus:
ART. 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.

x x x x x x
The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.

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.

x x x x x x
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.

A prominent civilist commented that professionals engaged by an employer, such as physicians, dentists,
and pharmacists, are not "employees" under this article because the manner in which they perform
their work is not within the control of the latter (employer). In other words, professionals are considered
personally liable for the fault or negligence they commit in the discharge of their duties, and their
employer cannot be held liable for such fault or negligence. In the context of the present case, "a
hospital cannot be held liable for the fault or negligence of a physician or surgeon in the treatment or
operation of patients."21

The foregoing view is grounded on the traditional notion that the professional status and the very
nature of the physician’s calling preclude him from being classed as an agent or employee of a hospital,
whenever he acts in a professional capacity.22 It has been said that medical practice strictly involves
highly developed and specialized knowledge,23 such that physicians are generally free to exercise their
own skill and judgment in rendering medical services sans interference.24 Hence, when a doctor
practices medicine in a hospital setting, the hospital and its employees are deemed to subserve him in
his ministrations to the patient and his actions are of his own responsibility.25

The case of Schloendorff v. Society of New York Hospital26 was then considered an authority for this
view. The "Schloendorff doctrine" regards a physician, even if employed by a hospital, as an
independent contractor because of the skill he exercises and the lack of control exerted over his work.
Under this doctrine, hospitals are exempt from the application of the respondeat superior principle for
fault or negligence committed by physicians in the discharge of their profession.

However, the efficacy of the foregoing doctrine has weakened with the significant developments in
medical care. Courts came to realize that modern hospitals are increasingly taking active role in
supplying and regulating medical care to patients. No longer were a hospital’s functions limited to
furnishing room, food, facilities for treatment and operation, and attendants for its patients. Thus, in
Bing v. Thunig,27 the New York Court of Appeals deviated from the Schloendorff doctrine, noting that
modern hospitals actually do far more than provide facilities for treatment. Rather, they regularly
employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual
workers. They charge patients for medical care and treatment, even collecting for such services through
legal action, if necessary. The court then concluded that there is no reason to exempt hospitals from the
universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the physicians is rendered
inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals28 that for
purposes of apportioning responsibility in medical negligence cases, an employer-employee relationship
in effect exists between hospitals and their attending and visiting physicians. This Court held:

"We now discuss the responsibility of the hospital in this particular incident. The unique practice (among
private hospitals) of filling up specialist staff with attending and visiting "consultants," who are allegedly
not hospital employees, presents problems in apportioning responsibility for negligence in medical
malpractice cases. However, the difficulty is more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the
conduct of their work within the hospital premises. Doctors who apply for ‘consultant’ slots, visiting or
attending, are required to submit proof of completion of residency, their educational qualifications,
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who either accept or reject the
application. x x x.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to

attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege
of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the
hospital. In addition to these, the physician’s performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses,
interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the
minimum standards acceptable to the hospital or its peer review committee, is normally politely
terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
‘consultant’ staff. While ‘consultants’ are not, technically employees, x x x, the control exercised, the
hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-
employee relationship, with the exception of the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we
rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting physicians. "

But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is also
anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of
corporate negligence which have gained acceptance in the determination of a hospital’s liability for
negligent acts of health professionals. The present case serves as a perfect platform to test the
applicability of these doctrines, thus, enriching our jurisprudence.

Apparent authority, or what is sometimes referred to as the "holding

out" theory, or doctrine of ostensible agency or agency by estoppel,29 has its origin from the law of
agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather
because of the actions of a principal or an employer in somehow misleading the public into believing
that the relationship or the authority exists.30 The concept is essentially one of estoppel and has been
explained in this manner:

"The principal is bound by the acts of his agent with the apparent authority which he knowingly permits
the agent to assume, or which he holds the agent out to the public as possessing. The question in every
case is whether the principal has by his voluntary act placed the agent in such a situation that a person
of ordinary prudence, conversant with business usages and the nature of the particular business, is
justified in presuming that such agent has authority to perform the particular act in question.31

The applicability of apparent authority in the field of hospital liability was upheld long time ago in Irving
v. Doctor Hospital of Lake Worth, Inc.32 There, it was explicitly stated that "there does not appear to be
any rational basis for excluding the concept of apparent authority from the field of hospital liability."
Thus, in cases where it can be shown that a hospital, by its actions, has held out a particular physician as
its agent and/or employee and that a patient has accepted treatment from that physician in the
reasonable belief that it is being rendered in behalf of the hospital, then the hospital will be liable for
the physician’s negligence.

Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the Civil
Code reads:

ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack of
action, or his failure to repudiate the agency, knowing that another person is acting on his behalf
without authority.

In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations
of the physicians associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur
with the Court of Appeals’ conclusion that it "is now estopped from passing all the blame to the
physicians whose names it proudly paraded in the public directory leading the public to believe that it
vouched for their skill and competence." Indeed, PSI’s act is tantamount to holding out to the public that
Medical City Hospital, through its accredited physicians, offers quality health care services. By
accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their qualifications, the hospital created
the impression that they were its agents, authorized to perform medical or surgical services for its
patients. As expected, these patients, Natividad being one of them, accepted the services on the
reasonable belief that such were being rendered by the hospital or its employees, agents, or servants.
The trial court correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with the
defense of absence of employer-employee relationship between the hospital and the independent
physician whose name and competence are certainly certified to the general public by the hospital’s act
of listing him and his specialty in its lobby directory, as in the case herein. The high costs of today’s
medical and health care should at least exact on the hospital greater, if not broader, legal responsibility
for the conduct of treatment and surgery within its facility by its accredited physician or surgeon,
regardless of whether he is independent or employed."33

The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable of
acting only through other individuals, such as physicians. If these accredited physicians do their job well,
the hospital succeeds in its mission of offering quality medical services and thus profits financially.
Logically, where negligence mars the quality of its services, the hospital should not be allowed to escape
liability for the acts of its ostensible agents.

We now proceed to the doctrine of corporate negligence or corporate responsibility.

One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI as
owner, operator and manager of Medical City Hospital, "did not perform the necessary supervision nor
exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff, resident
doctors, and medical interns who assisted Drs. Ampil and Fuentes in the performance of their duties as
surgeons."34 Premised on the doctrine of corporate negligence, the trial court held that PSI is directly
liable for such breach of duty.

We agree with the trial court.

Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem of
allocating hospital’s liability for the negligent acts of health practitioners, absent facts to support the
application of respondeat superior or apparent authority. Its formulation proceeds from the judiciary’s
acknowledgment that in these modern times, the duty of providing quality medical service is no longer
the sole prerogative and responsibility of the physician. The modern hospitals have changed structure.
Hospitals now tend to organize a highly professional medical staff whose competence and performance
need to be monitored by the hospitals commensurate with their inherent responsibility to provide
quality medical care.35

The doctrine has its genesis in Darling v. Charleston Community Hospital.36 There, the Supreme Court of
Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a sufficient
number of trained nurses attending the patient; failing to require a consultation with or examination by
members of the hospital staff; and failing to review the treatment rendered to the patient." On the basis
of Darling, other jurisdictions held that a hospital’s corporate negligence extends to permitting a
physician known to be incompetent to practice at the hospital.37 With the passage of time, more duties
were expected from hospitals, among them: (1) the use of reasonable care in the maintenance of safe
and adequate facilities and equipment; (2) the selection and retention of competent physicians; (3) the
overseeing or supervision of all persons who practice medicine within its walls; and (4) the formulation,
adoption and enforcement of adequate rules and policies that ensure quality care for its patients.38
Thus, in Tucson Medical Center, Inc. v. Misevich,39 it was held that a hospital, following the doctrine of
corporate responsibility, has the duty to see that it meets the standards of responsibilities for the care
of patients. Such duty includes the proper supervision of the members of its medical staff. And in Bost v.
Riley,40 the court concluded that a patient who enters a hospital does so with the reasonable
expectation that it will attempt to cure him. The hospital accordingly has the duty to make a reasonable
effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in
its premises.

In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose
and under the concept of providing comprehensive medical services to the public. Accordingly, it has the
duty to exercise reasonable care to protect from harm all patients admitted into its facility for medical
treatment. Unfortunately, PSI failed to perform such duty. The findings of the trial court are convincing,
thus:
x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the nota
bene of the count nurse. Such failure established PSI’s part in the dark conspiracy of silence and
concealment about the gauzes. Ethical considerations, if not also legal, dictated the holding of an
immediate inquiry into the events, if not for the benefit of the patient to whom the duty is primarily
owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and the
healing professions, through their members like defendant surgeons, and their institutions like PSI’s
hospital facility, can callously turn their backs on and disregard even a mere probability of mistake or
negligence by refusing or failing to investigate a report of such seriousness as the one in Natividad’s
case.

It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the
Medical City Hospital’s staff, composed of resident doctors, nurses, and interns. As such, it is reasonable
to conclude that PSI, as the operator of the hospital, has actual or constructive knowledge of the
procedures carried out, particularly the report of the attending nurses that the two pieces of gauze were
missing. In Fridena v. Evans,41 it was held that a corporation is bound by the knowledge acquired by or
notice given to its agents or officers within the scope of their authority and in reference to a matter to
which their authority extends. This means that the knowledge of any of the staff of Medical City Hospital
constitutes knowledge of PSI. Now, the failure of PSI, despite the attending nurses’ report, to investigate
and inform Natividad regarding the missing gauzes amounts to callous negligence. Not only did PSI
breach its duties to oversee or supervise all persons who practice medicine within its walls, it also failed
to take an active step in fixing the negligence committed. This renders PSI, not only vicariously liable for
the negligence of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own
negligence under Article 2176. In Fridena, the Supreme Court of Arizona held:

x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded. The
emerging trend is to hold the hospital responsible where the hospital has failed to monitor and review
medical services being provided within its walls. See Kahn Hospital Malpractice Prevention, 27 De Paul .
Rev. 23 (1977).

Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d
335 (1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a
medical practitioner because he was an independent contractor within the hospital. The Court of
Appeals pointed out that the hospital had created a professional staff whose competence and
performance was to be monitored and reviewed by the governing body of the hospital, and the court
held that a hospital would be negligent where it had knowledge or reason to believe that a doctor using
the facilities was employing a method of treatment or care which fell below the recognized standard of
care.

Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain
inherent responsibilities regarding the quality of medical care furnished to patients within its walls and it
must meet the standards of responsibility commensurate with this undertaking. Beeck v. Tucson
General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the rulings of the
Court of Appeals that a hospital has the duty of supervising the competence of the doctors on its staff. x
x x.

x x x x x x
In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital
with its knowledge, aid, and assistance, and that the negligence of the defendants was the proximate
cause of the patient’s injuries. We find that such general allegations of negligence, along with the
evidence produced at the trial of this case, are sufficient to support the hospital’s liability based on the
theory of negligent supervision."

Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be
emphasized that PSI, apart from a general denial of its responsibility, failed to adduce evidence showing
that it exercised the diligence of a good father of a family in the accreditation and supervision of the
latter. In neglecting to offer such proof, PSI failed to discharge its burden under the last paragraph of
Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover, as
we have discussed, PSI is also directly liable to the Aganas.

One final word. Once a physician undertakes the treatment and care of a patient, the law imposes on
him certain obligations. In order to escape liability, he must possess that reasonable degree of learning,
skill and experience required by his profession. At the same time, he must apply reasonable care and
diligence in the exercise of his skill and the application of his knowledge, and exert his best judgment.

WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of Appeals in
CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.

Costs against petitioners PSI and Dr. Miguel Ampil.

Manliclic vs Calaunan

Assailed before Us is the decision1 of the Court of Appeals in CA-G.R. CV No. 55909 which affirmed in
toto the decision2 of the Regional Trial Court (RTC) of Dagupan City, Branch 42, in Civil Case No. D-
10086, finding petitioners Mauricio Manliclic and Philippine Rabbit Bus Lines, Inc. (PRBLI) solidarily liable
to pay damages and attorney’s fees to respondent Modesto Calaunan.

The factual antecedents are as follows:

The vehicles involved in this case are: (1) Philippine Rabbit Bus No. 353 with plate number CVD-478,
owned by petitioner PRBLI and driven by petitioner Mauricio Manliclic; and (2) owner-type jeep with
plate number PER-290, owned by respondent Modesto Calaunan and driven by Marcelo Mendoza.

At around 6:00 to 7:00 o’clock in the morning of 12 July 1988, respondent Calaunan, together with
Marcelo Mendoza, was on his way to Manila from Pangasinan on board his owner-type jeep. The
Philippine Rabbit Bus was likewise bound for Manila from Concepcion, Tarlac. At approximately
Kilometer 40 of the North Luzon Expressway in Barangay Lalangan, Plaridel, Bulacan, the two vehicles
collided. The front right side of the Philippine Rabbit Bus hit the rear left side of the jeep causing the
latter to move to the shoulder on the right and then fall on a ditch with water resulting to further
extensive damage. The bus veered to the left and stopped 7 to 8 meters from point of collision.

Respondent suffered minor injuries while his driver was unhurt. He was first brought for treatment to
the Manila Central University Hospital in Kalookan City by Oscar Buan, the conductor of the Philippine
Rabbit Bus, and was later transferred to the Veterans Memorial Medical Center.
By reason of such collision, a criminal case was filed before the RTC of Malolos, Bulacan, charging
petitioner Manliclic with Reckless Imprudence Resulting in Damage to Property with Physical Injuries,
docketed as Crim. Case No. 684-M-89. Subsequently on 2 December 1991, respondent filed a complaint
for damages against petitioners Manliclic and PRBLI before the RTC of Dagupan City, docketed as Civil
Case No. D-10086. The criminal case was tried ahead of the civil case. Among those who testified in the
criminal case were respondent Calaunan, Marcelo Mendoza and Fernando Ramos.

In the civil case (now before this Court), the parties admitted the following:

1. The parties agreed on the capacity of the parties to sue and be sued as well as the venue and the
identities of the vehicles involved;

2. The identity of the drivers and the fact that they are duly licensed;

3. The date and place of the vehicular collision;

4. The extent of the injuries suffered by plaintiff Modesto Calaunan and the existence of the medical
certificate;

5. That both vehicles were going towards the south; the private jeep being ahead of the bus;

6. That the weather was fair and the road was well paved and straight, although there was a ditch on the
right side where the jeep fell into.3

When the civil case was heard, counsel for respondent prayed that the transcripts of stenographic notes
(TSNs)4 of the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the
criminal case be received in evidence in the civil case in as much as these witnesses are not available to
testify in the civil case.

Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left for abroad sometime in
November, 1989 and has not returned since then. Rogelio Ramos took the stand and said that his
brother, Fernando Ramos, left for Amman, Jordan, to work. Rosalia Mendoza testified that her husband,
Marcelo Mendoza, left their residence to look for a job. She narrated that she thought her husband
went to his hometown in Panique, Tarlac, when he did not return after one month. She went to her
husband’s hometown to look for him but she was informed that he did not go there.1awphil.net

The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos, Bulacan, the court where
Criminal Case No. 684-M-89 was tried, to bring the TSNs of the testimonies of respondent Calaunan,5
Marcelo Mendoza6 and Fernando Ramos7 in said case, together with other documentary evidence
marked therein. Instead of the Branch Clerk of Court, it was Enrique Santos Guevara, Court Interpreter,
who appeared before the court and identified the TSNs of the three afore-named witnesses and other
pertinent documents he had brought.8 Counsel for respondent wanted to mark other TSNs and
documents from the said criminal case to be adopted in the instant case, but since the same were not
brought to the trial court, counsel for petitioners compromised that said TSNs and documents could be
offered by counsel for respondent as rebuttal evidence.
For the defendants, petitioner Manliclic and bus conductor Oscar Buan testified. The TSN9 of the
testimony of Donato Ganiban, investigator of the PRBLI, in Criminal Case No. 684-M-89 was marked and
allowed to be adopted in the civil case on the ground that he was already dead.

Respondent further marked, among other documents, as rebuttal evidence, the TSNs10 of the
testimonies of Donato Ganiban, Oscar Buan and petitioner Manliclic in Criminal Case No. 684-M-89.

The disagreement arises from the question: Who is to be held liable for the collision?

Respondent insists it was petitioner Manliclic who should be liable while the latter is resolute in saying it
was the former who caused the smash up.

The versions of the parties are summarized by the trial court as follows:

The parties differed only on the manner the collision between the two (2) vehicles took place. According
to the plaintiff and his driver, the jeep was cruising at the speed of 60 to 70 kilometers per hour on the
slow lane of the expressway when the Philippine Rabbit Bus overtook the jeep and in the process of
overtaking the jeep, the Philippine Rabbit Bus hit the rear of the jeep on the left side. At the time the
Philippine Rabbit Bus hit the jeep, it was about to overtake the jeep. In other words, the Philippine
Rabbit Bus was still at the back of the jeep when the jeep was hit. Fernando Ramos corroborated the
testimony of the plaintiff and Marcelo Mendoza. He said that he was on another jeep following the
Philippine Rabbit Bus and the jeep of plaintiff when the incident took place. He said, the jeep of the
plaintiff overtook them and the said jeep of the plaintiff was followed by the Philippine Rabbit Bus which
was running very fast. The bus also overtook the jeep in which he was riding. After that, he heard a loud
sound. He saw the jeep of the plaintiff swerved to the right on a grassy portion of the road. The
Philippine Rabbit Bus stopped and they overtook the Philippine Rabbit Bus so that it could not moved
(sic), meaning they stopped in front of the Philippine Rabbit Bus. He testified that the jeep of plaintiff
swerved to the right because it was bumped by the Philippine Rabbit bus from behind.

Both Mauricio Manliclic and his driver, Oscar Buan admitted that the Philippine Rabbit Bus bumped the
jeep in question. However, they explained that when the Philippine Rabbit bus was about to go to the
left lane to overtake the jeep, the latter jeep swerved to the left because it was to overtake another jeep
in front of it. Such was their testimony before the RTC in Malolos in the criminal case and before this
Court in the instant case. [Thus, which of the two versions of the manner how the collision took place
was correct, would be determinative of who between the two drivers was negligent in the operation of
their respective vehicles.]11

Petitioner PRBLI maintained that it observed and exercised the diligence of a good father of a family in
the selection and supervision of its employee, specifically petitioner Manliclic.

On 22 July 1996, the trial court rendered its decision in favor of respondent Calaunan and against
petitioners Manliclic and PRBLI. The dispositive portion of its decision reads:

WHEREFORE, judgment is rendered in favor of the plaintiff and against the defendants ordering the said
defendants to pay plaintiff jointly and solidarily the amount of P40,838.00 as actual damages for the
towing as well as the repair and the materials used for the repair of the jeep in question; P100,000.00 as
moral damages and another P100,000.00 as exemplary damages and P15,000.00 as attorney’s fees,
including appearance fees of the lawyer. In addition, the defendants are also to pay costs.12
Petitioners appealed the decision via Notice of Appeal to the Court of Appeals.13

In a decision dated 28 September 2001, the Court of Appeals, finding no reversible error in the decision
of the trial court, affirmed it in all respects.14

Petitioners are now before us by way of petition for review assailing the decision of the Court of
Appeals. They assign as errors the following:

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S
QUESTIONABLE ADMISSION IN EVIDENCE OF THE TSN’s AND OTHER DOCUMENTS PRESENTED IN THE
CRIMINAL CASE.

II

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S RELIANCE
ON THE VERSION OF THE RESPONDENT ON HOW THE ACCIDENT SUPPOSEDLY OCCURRED.

III

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S UNFAIR
DISREGARD OF HEREIN PETITIONER PRBL’s DEFENSE OF EXERCISE OF DUE DILIGENCE IN THE SELECTION
AND SUPERVISION OF ITS EMPLOYEES.

IV

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S
QUESTIONABLE AWARD OF DAMAGES AND ATTORNEY’S FEE.

With the passing away of respondent Calaunan during the pendency of this appeal with this Court, we
granted the Motion for the Substitution of Respondent filed by his wife, Mrs. Precila Zarate Vda. De
Calaunan, and children, Virgilio Calaunan, Carmelita Honeycomb, Evelyn Calaunan, Marko Calaunan and
Liwayway Calaunan.15

In their Reply to respondent’s Comment, petitioners informed this Court of a Decision16 of the Court of
Appeals acquitting petitioner Manliclic of the charge17 of Reckless Imprudence Resulting in Damage to
Property with Physical Injuries attaching thereto a photocopy thereof.

On the first assigned error, petitioners argue that the TSNs containing the testimonies of respondent
Calaunan,18 Marcelo Mendoza19 and Fernando Ramos20 should not be admitted in evidence for failure
of respondent to comply with the requisites of Section 47, Rule 130 of the Rules of Court.

For Section 47, Rule 13021 to apply, the following requisites must be satisfied: (a) the witness is dead or
unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or
administrative, between the same parties or those representing the same interests; (c) the former case
involved the same subject as that in the present case, although on different causes of action; (d) the
issue testified to by the witness in the former trial is the same issue involved in the present case; and (e)
the adverse party had an opportunity to cross-examine the witness in the former case.22

Admittedly, respondent failed to show the concurrence of all the requisites set forth by the Rules for a
testimony given in a former case or proceeding to be admissible as an exception to the hearsay rule.
Petitioner PRBLI, not being a party in Criminal Case No. 684-M-89, had no opportunity to cross-examine
the three witnesses in said case. The criminal case was filed exclusively against petitioner Manliclic,
petitioner PRBLI’s employee. The cases dealing with the subsidiary liability of employers uniformly
declare that, strictly speaking, they are not parties to the criminal cases instituted against their
employees.23

Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the testimonies of
the three witnesses are still admissible on the ground that petitioner PRBLI failed to object on their
admissibility.

It is elementary that an objection shall be made at the time when an alleged inadmissible document is
offered in evidence; otherwise, the objection shall be treated as waived, since the right to object is
merely a privilege which the party may waive. Thus, a failure to except to the evidence because it does
not conform to the statute is a waiver of the provisions of the law. Even assuming ex gratia argumenti
that these documents are inadmissible for being hearsay, but on account of failure to object thereto, the
same may be admitted and considered as sufficient to prove the facts therein asserted.24 Hearsay
evidence alone may be insufficient to establish a fact in a suit but, when no objection is made thereto, it
is, like any other evidence, to be considered and given the importance it deserves.25

In the case at bar, petitioner PRBLI did not object to the TSNs containing the testimonies of respondent
Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case when the same were offered in
evidence in the trial court. In fact, the TSNs of the testimonies of Calaunan and Mendoza were admitted
by both petitioners.26 Moreover, petitioner PRBLI even offered in evidence the TSN containing the
testimony of Donato Ganiban in the criminal case. If petitioner PRBLI argues that the TSNs of the
testimonies of plaintiff’s witnesses in the criminal case should not be admitted in the instant case, why
then did it offer the TSN of the testimony of Ganiban which was given in the criminal case? It appears
that petitioner PRBLI wants to have its cake and eat it too. It cannot argue that the TSNs of the
testimonies of the witnesses of the adverse party in the criminal case should not be admitted and at the
same time insist that the TSN of the testimony of the witness for the accused be admitted in its favor. To
disallow admission in evidence of the TSNs of the testimonies of Calaunan, Marcelo Mendoza and
Fernando Ramos in the criminal case and to admit the TSN of the testimony of Ganiban would be unfair.

We do not subscribe to petitioner PRBLI’s argument that it will be denied due process when the TSNs of
the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case are to be
admitted in the civil case. It is too late for petitioner PRBLI to raise denial of due process in relation to
Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the TSNs. For
failure to object at the proper time, it waived its right to object that the TSNs did not comply with
Section 47.

In Mangio v. Court of Appeals,27 this Court, through Associate Justice Reynato S. Puno,28 admitted in
evidence a TSN of the testimony of a witness in another case despite therein petitioner’s assertion that
he would be denied due process. In admitting the TSN, the Court ruled that the raising of denial of due
process in relation to Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the
admissibility of the TSN was belatedly done. In so doing, therein petitioner waived his right to object
based on said ground.

Petitioners contend that the documents in the criminal case should not have been admitted in the
instant civil case because Section 47 of Rule 130 refers only to "testimony or deposition." We find such
contention to be untenable. Though said section speaks only of testimony and deposition, it does not
mean that documents from a former case or proceeding cannot be admitted. Said documents can be
admitted they being part of the testimonies of witnesses that have been admitted. Accordingly, they
shall be given the same weight as that to which the testimony may be entitled.29

On the second assigned error, petitioners contend that the version of petitioner Manliclic as to how the
accident occurred is more credible than respondent’s version. They anchor their contention on the fact
that petitioner Manliclic was acquitted by the Court of Appeals of the charge of Reckless Imprudence
Resulting in Damage to Property with Physical Injuries.

To be resolved by the Court is the effect of petitioner Manliclic’s acquittal in the civil case.

From the complaint, it can be gathered that the civil case for damages was one arising from, or based
on, quasi-delict.30 Petitioner Manliclic was sued for his negligence or reckless imprudence in causing the
collision, while petitioner PRBLI was sued for its failure to exercise the diligence of a good father in the
selection and supervision of its employees, particularly petitioner Manliclic. The allegations read:

"4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was on board the above-described
motor vehicle travelling at a moderate speed along the North Luzon Expressway heading South towards
Manila together with MARCELO MENDOZA, who was then driving the same;

"5. That approximately at kilometer 40 of the North Luzon Express Way, the above-described motor
vehicle was suddenly bumped from behind by a Philippine Rabbit Bus with Body No. 353 and with plate
No. CVD 478 then being driven by one Mauricio Manliclic of San Jose, Concepcion, Tarlac, who was then
travelling recklessly at a very fast speed and had apparently lost control of his vehicle;

"6. That as a result of the impact of the collision the above-described motor vehicle was forced off the
North Luzon Express Way towards the rightside where it fell on its driver’s side on a ditch, and that as a
consequence, the above-described motor vehicle which maybe valued at EIGHTY THOUSAND PESOS
(P80,000) was rendered a total wreck as shown by pictures to be presented during the pre-trial and trial
of this case;

"7. That also as a result of said incident, plaintiff sustained bodily injuries which compounded plaintiff’s
frail physical condition and required his hospitalization from July 12, 1988 up to and until July 22, 1988,
copy of the medical certificate is hereto attached as Annex "A" and made an integral part hereof;

"8. That the vehicular collision resulting in the total wreckage of the above-described motor vehicle as
well as bodily (sic) sustained by plaintiff, was solely due to the reckless imprudence of the defendant
driver Mauricio Manliclic who drove his Philippine Rabbit Bus No. 353 at a fast speed without due regard
or observance of existing traffic rules and regulations;

"9. That defendant Philippine Rabbit Bus Line Corporation failed to exercise the diligence of a good
father of (sic) family in the selection and supervision of its drivers; x x x"31
Can Manliclic still be held liable for the collision and be found negligent notwithstanding the declaration
of the Court of Appeals that there was an absence of negligence on his part?

In exonerating petitioner Manliclic in the criminal case, the Court of Appeals said:

To the following findings of the court a quo, to wit: that accused-appellant was negligent "when the bus
he was driving bumped the jeep from behind"; that "the proximate cause of the accident was his having
driven the bus at a great speed while closely following the jeep"; x x x

We do not agree.

The swerving of Calaunan’s jeep when it tried to overtake the vehicle in front of it was beyond the
control of accused-appellant.

xxxx

Absent evidence of negligence, therefore, accused-appellant cannot be held liable for Reckless
Imprudence Resulting in Damage to Property with Physical Injuries as defined in Article 365 of the
Revised Penal Code.32

From the foregoing declaration of the Court of Appeals, it appears that petitioner Manliclic was
acquitted not on reasonable doubt, but on the ground that he is not the author of the act complained of
which is based on Section 2(b) of Rule 111 of the Rules of Criminal Procedure which reads:

(b) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction
proceeds from a declaration in a final judgment that the fact from which the civil might arise did not
exist.

In spite of said ruling, petitioner Manliclic can still be held liable for the mishap. The afore-quoted
section applies only to a civil action arising from crime or ex delicto and not to a civil action arising from
quasi-delict or culpa aquiliana. The extinction of civil liability referred to in Par. (e) of Section 3, Rule 111
[now Section 2 (b) of Rule 111], refers exclusively to civil liability founded on Article 100 of the Revised
Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a
crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not
happened or has not been committed by the accused.33

A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a substantivity
all its own, and individuality that is entirely apart and independent from a delict or crime – a distinction
exists between the civil liability arising from a crime and the responsibility for quasi-delicts or culpa
extra-contractual. The same negligence causing damages may produce civil liability arising from a crime
under the Penal Code, or create an action for quasi-delicts or culpa extra-contractual under the Civil
Code.34 It is now settled that acquittal of the accused, even if based on a finding that he is not guilty,
does not carry with it the extinction of the civil liability based on quasi delict.35

In other words, if an accused is acquitted based on reasonable doubt on his guilt, his civil liability arising
from the crime may be proved by preponderance of evidence only. However, if an accused is acquitted
on the basis that he was not the author of the act or omission complained of (or that there is declaration
in a final judgment that the fact from which the civil might arise did not exist), said acquittal closes the
door to civil liability based on the crime or ex delicto. In this second instance, there being no crime or
delict to speak of, civil liability based thereon or ex delicto is not possible. In this case, a civil action, if
any, may be instituted on grounds other than the delict complained of.

As regards civil liability arising from quasi-delict or culpa aquiliana, same will not be extinguished by an
acquittal, whether it be on ground of reasonable doubt or that accused was not the author of the act or
omission complained of (or that there is declaration in a final judgment that the fact from which the civil
liability might arise did not exist). The responsibility arising from fault or negligence in a quasi-delict is
entirely separate and distinct from the civil liability arising from negligence under the Penal Code.36 An
acquittal or conviction in the criminal case is entirely irrelevant in the civil case37 based on quasi-delict
or culpa aquiliana.

Petitioners ask us to give credence to their version of how the collision occurred and to disregard that of
respondent’s. Petitioners insist that while the PRBLI bus was in the process of overtaking respondent’s
jeep, the latter, without warning, suddenly swerved to the left (fast) lane in order to overtake another
jeep ahead of it, thus causing the collision.

As a general rule, questions of fact may not be raised in a petition for review. The factual findings of the
trial court, especially when affirmed by the appellate court, are binding and conclusive on the Supreme
Court.38 Not being a trier of facts, this Court will not allow a review thereof unless:

(1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the
inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based
on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went
beyond the issues of the case and its findings are contrary to the admissions of both appellant and
appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said
findings of fact are conclusions without citation of specific evidence on which they are based; (9) the
facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed
absence of evidence and contradicted by the evidence on record.39

After going over the evidence on record, we do not find any of the exceptions that would warrant our
departure from the general rule. We fully agree in the finding of the trial court, as affirmed by the Court
of Appeals, that it was petitioner Manliclic who was negligent in driving the PRBLI bus which was the
cause of the collision. In giving credence to the version of the respondent, the trial court has this say:

x x x Thus, which of the two versions of the manner how the collision took place was correct, would be
determinative of who between the two drivers was negligent in the operation of their respective
vehicle.

In this regard, it should be noted that in the statement of Mauricio Manliclic (Exh. 15) given to the
Philippine Rabbit Investigator CV Cabading no mention was made by him about the fact that the driver
of the jeep was overtaking another jeep when the collision took place. The allegation that another jeep
was being overtaken by the jeep of Calaunan was testified to by him only in Crim. Case No. 684-M-89
before the Regional Trial Court in Malolos, Bulacan and before this Court. Evidently, it was a product of
an afterthought on the part of Mauricio Manliclic so that he could explain why he should not be held
responsible for the incident. His attempt to veer away from the truth was also apparent when it would
be considered that in his statement given to the Philippine Rabbit Investigator CV Cabading (Exh. 15), he
alleged that the Philippine Rabbit Bus bumped the jeep of Calaunan while the Philippine Rabbit Bus was
behind the said jeep. In his testimony before the Regional Trial Court in Malolos, Bulacan as well as in
this Court, he alleged that the Philippine Rabbit Bus was already on the left side of the jeep when the
collision took place. For this inconsistency between his statement and testimony, his explanation
regarding the manner of how the collision between the jeep and the bus took place should be taken
with caution. It might be true that in the statement of Oscar Buan given to the Philippine Rabbit
Investigator CV Cabading, it was mentioned by the former that the jeep of plaintiff was in the act of
overtaking another jeep when the collision between the latter jeep and the Philippine Rabbit Bus took
place. But the fact, however, that his statement was given on July 15, 1988, one day after Mauricio
Manliclic gave his statement should not escape attention. The one-day difference between the giving of
the two statements would be significant enough to entertain the possibility of Oscar Buan having
received legal advise before giving his statement. Apart from that, as between his statement and the
statement of Manliclic himself, the statement of the latter should prevail. Besides, in his Affidavit of
March 10, 1989, (Exh. 14), the unreliability of the statement of Oscar Buan (Exh. 13) given to CV
Cabading rear its "ugly head" when he did not mention in said affidavit that the jeep of Calaunan was
trying to overtake another jeep when the collision between the jeep in question and the Philippine
Rabbit bus took place.

xxxx

If one would believe the testimony of the defendant, Mauricio Manliclic, and his conductor, Oscar Buan,
that the Philippine Rabbit Bus was already somewhat parallel to the jeep when the collision took place,
the point of collision on the jeep should have been somewhat on the left side thereof rather than on its
rear. Furthermore, the jeep should have fallen on the road itself rather than having been forced off the
road. Useless, likewise to emphasize that the Philippine Rabbit was running very fast as testified to by
Ramos which was not controverted by the defendants.40

Having ruled that it was petitioner Manliclic’s negligence that caused the smash up, there arises the juris
tantum presumption that the employer is negligent, rebuttable only by proof of observance of the
diligence of a good father of a family.41 Under Article 218042 of the New Civil Code, when an injury is
caused by the negligence of the employee, there instantly arises a presumption of law that there was
negligence on the part of the master or employer either in the selection of the servant or employee, or
in supervision over him after selection or both. The liability of the employer under Article 2180 is direct
and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior
showing of the insolvency of such employee. Therefore, it is incumbent upon the private respondents to
prove that they exercised the diligence of a good father of a family in the selection and supervision of
their employee.43

In the case at bar, petitioner PRBLI maintains that it had shown that it exercised the required diligence in
the selection and supervision of its employees, particularly petitioner Manliclic. In the matter of
selection, it showed the screening process that petitioner Manliclic underwent before he became a
regular driver. As to the exercise of due diligence in the supervision of its employees, it argues that
presence of ready investigators (Ganiban and Cabading) is sufficient proof that it exercised the required
due diligence in the supervision of its employees.

In the selection of prospective employees, employers are required to examine them as to their
qualifications, experience and service records. In the supervision of employees, the employer must
formulate standard operating procedures, monitor their implementation and impose disciplinary
measures for the breach thereof. To fend off vicarious liability, employers must submit concrete proof,
including documentary evidence, that they complied with everything that was incumbent on them.44

In Metro Manila Transit Corporation v. Court of Appeals,45 it was explained that:

Due diligence in the supervision of employees on the other hand, includes the formulation of suitable
rules and regulations for the guidance of employees and the issuance of proper instructions intended for
the protection of the public and persons with whom the employer has relations through his or its
employees and the imposition of necessary disciplinary measures upon employees in case of breach or
as may be warranted to ensure the performance of acts indispensable to the business of and beneficial
to their employer. To this, we add that actual implementation and monitoring of consistent compliance
with said rules should be the constant concern of the employer, acting through dependable supervisors
who should regularly report on their supervisory functions.

In order that the defense of due diligence in the selection and supervision of employees may be deemed
sufficient and plausible, it is not enough to emptily invoke the existence of said company guidelines and
policies on hiring and supervision. As the negligence of the employee gives rise to the presumption of
negligence on the part of the employer, the latter has the burden of proving that it has been diligent not
only in the selection of employees but also in the actual supervision of their work. The mere allegation
of the existence of hiring procedures and supervisory policies, without anything more, is decidedly not
sufficient to overcome such presumption.

We emphatically reiterate our holding, as a warning to all employers, that "the formulation of various
company policies on safety without showing that they were being complied with is not sufficient to
exempt petitioner from liability arising from negligence of its employees. It is incumbent upon petitioner
to show that in recruiting and employing the erring driver the recruitment procedures and company
policies on efficiency and safety were followed." x x x.

The trial court found that petitioner PRBLI exercised the diligence of a good father of a family in the
selection but not in the supervision of its employees. It expounded as follows:

From the evidence of the defendants, it seems that the Philippine Rabbit Bus Lines has a very good
procedure of recruiting its driver as well as in the maintenance of its vehicles. There is no evidence
though that it is as good in the supervision of its personnel. There has been no iota of evidence
introduced by it that there are rules promulgated by the bus company regarding the safe operation of its
vehicle and in the way its driver should manage and operate the vehicles assigned to them. There is no
showing that somebody in the bus company has been employed to oversee how its driver should
behave while operating their vehicles without courting incidents similar to the herein case. In regard to
supervision, it is not difficult to observe that the Philippine Rabbit Bus Lines, Inc. has been negligent as
an employer and it should be made responsible for the acts of its employees, particularly the driver
involved in this case.

We agree. The presence of ready investigators after the occurrence of the accident is not enough to
exempt petitioner PRBLI from liability arising from the negligence of petitioner Manliclic. Same does not
comply with the guidelines set forth in the cases above-mentioned. The presence of the investigators
after the accident is not enough supervision. Regular supervision of employees, that is, prior to any
accident, should have been shown and established. This, petitioner failed to do. The lack of supervision
can further be seen by the fact that there is only one set of manual containing the rules and regulations
for all the drivers of PRBLI. 46 How then can all the drivers of petitioner PRBLI know and be continually
informed of the rules and regulations when only one manual is being lent to all the drivers?

For failure to adduce proof that it exercised the diligence of a good father of a family in the selection
and supervision of its employees, petitioner PRBLI is held solidarily responsible for the damages caused
by petitioner Manliclic’s negligence.

We now go to the award of damages. The trial court correctly awarded the amount of P40,838.00 as
actual damages representing the amount paid by respondent for the towing and repair of his jeep.47 As
regards the awards for moral and exemplary damages, same, under the circumstances, must be
modified. The P100,000.00 awarded by the trial court as moral damages must be reduced to
P50,000.00.48 Exemplary damages are imposed by way of example or correction for the public good.49
The amount awarded by the trial court must, likewise, be lowered to P50,000.00.50 The award of
P15,000.00 for attorney’s fees and expenses of litigation is in order and authorized by law.51

WHEREFORE, premises considered, the instant petition for review is DENIED. The decision of the Court
of Appeals in CA-G.R. CV No. 55909 is AFFIRMED with the MODIFICATION that (1) the award of moral
damages shall be reduced to P50,000.00; and (2) the award of exemplary damages shall be lowered to
P50,000.00. Costs against petitioners.

Libi vs IAC

SYLLABUS

1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING FROM CRIMINAL
OFFENSES COMMITTED BY THEIR MINOR CHILDREN; RULE. — The parents are and should be held
primarily liable for the civil liability arising from criminal offenses committed by their minor children
under their legal authority or control, or who live in their company, unless it is proven that the former
acted with the diligence of a good father of a family to prevent such damages. That primary liability is
premised on the provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto
caused by their children 9 years of age or under, or over 9 but under 15 years of age who acted without
discernment; and, with regard to their children over 9 but under 15 years of age who acted with
discernment, or 15 years or over but under 21 years of age, such primary liability shall be imposed
pursuant to Article 2180 of the Civil Code. Under said Article 2180, the enforcement of such liability shall
be effected against the father and, in case of his death or incapacity, the mother. This was amplified by
the Child and Youth Welfare Code which provides that the same shall devolve upon the father and, in
case of his death or incapacity, upon the mother or, in case of her death or incapacity, upon the
guardian, but the liability may also be voluntarily assumed by a relative or family friend of the youthful
offender. However, under the Family Code, this civil liability is now, without such alternative
qualification, the responsibility of the parents and those who exercise parental authority over the minor
offender. For civil liability arising from quasi-delicts committed by minors, the same rules shall apply in
accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

DECISION
REGALADO, J.:

One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A
tragic illustration is provided by the instant case, wherein two lovers died while still in the prime of their
years, a bitter episode for those whose lives they have touched. While we cannot expect to award
complete assuagement to their families through seemingly prosaic legal verbiage, this disposition should
at least terminate the acrimony and rancor of an extended judicial contest resulting from the
unfortunate occurrence.

In this final denouement of the judicial recourse the stages whereof were alternately initiated by the
parties, petitioners are now before us seeking the reversal of the judgment of respondent court
promulgated on January 2, 1985 in AC-G.R. CV No. 69060 with the following decretal
portion:jgc:chanrobles.com.ph

"WHEREFORE, the decision of the lower court dismissing plaintiff’s complaint is hereby reversed; and
instead, judgment is hereby rendered sentencing defendants, jointly and solidarily, to pay to plaintiffs
the following amounts:chanrobles.com : virtual law library

1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;

3. Attorney’s fees, P20,000.00, and costs.

However, denial of defendants-appellees’ counterclaims is affirmed." 1

Synthesized from the findings of the lower courts, it appears that respondent spouses are the legitimate
parents of Julie Ann Gotiong who, at the time of the deplorable incident which took place and from
which she died on January 14, 1979, was an 18-year old first year commerce student of the University of
San Carlos, Cebu City; while petitioners are the parents of Wendell Libi, then a minor between 18 and 19
years of age living with his aforesaid parents, and who also died in the same event on the same date.

For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi were sweethearts
until December, 1978 when Julie Ann broke up her relationship with Wendell after she supposedly
found him to be sadistic and irresponsible. During the first and second weeks of January, 1979, Wendell
kept pestering Julie Ann with demands for reconciliation but the latter persisted in her refusal,
prompting the former to resort to threats against her. In order to avoid him, Julie Ann stayed in the
house of her best friend, Malou Alfonso, at the corner of Maria Cristina and Juana Osmeña Streets, Cebu
City, from January 7 to 13, 1978.

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted with the
same firearm, a Smith and Wesson revolver licensed in the name of petitioner Cresencio Libi, which was
recovered from the scene of the crime inside the residence of private respondents at the corner of
General Maxilom and D. Jakosalem streets of the same city.
Due to the absence of an eyewitness account of the circumstances surrounding the death of both
minors, their parents, who are the contending parties herein, posited their respective theories drawn
from their interpretation of circumstantial evidence, available reports, documents and evidence of
physical facts.

Private respondents, bereaved over the death of their daughter, submitted that Wendell caused her
death by shooting her with the aforesaid firearm and, thereafter, turning the gun on himself to commit
suicide. On the other hand, Petitioners, puzzled and likewise distressed over the death of their son,
rejected the imputation and contended that an unknown third party, whom Wendell may have
displeased or antagonized by reason of his work as a narcotics informer of the Constabulary Anti-
Narcotics Unit (CANU), must have caused Wendell’s death and then shot Julie Ann to eliminate any
witness and thereby avoid identification.chanrobles.com:cralaw:red

As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the then Court of First
Instance of Cebu against the parents of Wendell to recover damages arising from the latter’s vicarious
liability under Article 2180 of the Civil Code. After trial, the court below rendered judgment on October
20, 1980 as follows:jgc:chanrobles.com.ph

"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing plaintiffs’ complaint
for insufficiency of the evidence. Defendants’ counterclaim is likewise denied for lack of sufficient
merit." 2

On appeal to respondent court, said judgment of the lower court dismissing the complaint of therein
plaintiffs-appellants was set aside and another judgment was rendered against defendants-appellees
who, as petitioners in the present appeal by certiorari, now submit for resolution the following issues in
this case:chanrob1es virtual 1aw library

1. Whether or not respondent court correctly reversed the trial court in accordance with
established decisional laws; and

2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent court to
make petitioners liable for vicarious liability. 3

In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of Cebu,
submitted his findings and opinions on some postulates for determining whether or not the gunshot
wound was inflicted on Wendell Libi by his own suicidal act. However, undue emphasis was placed by
the lower court on the absence of gunpowder or tattooing around the wound at the point of entry of
the bullet. It should be emphasized, however, that this is not the only circumstance to be taken into
account in the determination of whether it was suicide or not.

It is true that said witness declared that he found no evidence of contact or close-contact of an explosive
discharge in the entrance wound. However, as pointed out by private respondents, the body of
deceased Wendell Libi must have been washed at the funeral parlor, considering the hasty interment
thereof a little after eight (8) hours from the occurrence wherein he died. Dr. Cerna himself could not
categorically state that the body of Wendell Libi was left untouched at the funeral parlor before he was
able to conduct his autopsy. It will also be noted that Dr. Cerna was negligent in not conducting a
paraffin test on Wendell Libi, hence possible evidence of gunpowder residue on Wendell’s hands was
forever lost when Wendell was hastily buried.cralawnad
More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell Libi about
eight (8) hours after the incident or, to be exact, eight (8) hours and twenty (20) minutes based on the
record of death; that when he arrived at the Cosmopolitan Funeral Homes, the body of the deceased
was already on the autopsy table and in the stage of rigor mortis; and that said body was not washed,
but it was dried. 4 However, on redirect examination, he admitted that during the 8-hour interval, he
never saw the body nor did he see whether said body was wiped or washed in the area of the wound on
the head which he examined because the deceased was inside the morgue. 5 In fact, on cross-
examination, he had earlier admitted that as far as the entrance of the wound, the trajectory of the
bullet and the exit of the wound are concerned, it is possible that Wendell Libi shot himself. 6

He further testified that the muzzle of the gun was not pressed on the head of the victim and that he
found no burning or singeing of the hair or extensive laceration on the gunshot wound of entrance
which are general characteristics of contact or near-contact fire. On direct examination, Dr. Cerna
nonetheless made these clarification:jgc:chanrobles.com.ph

"Q Is it not a fact that there are certain guns which are so made that there would be no black
residue or tattooing that could result from these guns because they are what we call clean?

A Yes, sir. I know that there are what we call smokeless powder.

ATTY. ORTIZ:chanrob1es virtual 1aw library

Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those indications that you
said may not rule out the possibility that the gun was closer than 24 inches, is that correct?

A If the . . . assuming that the gun used was .. the bullet used was a smokeless powder.

Q At any rate, doctor, from . . . disregarding those other matters that you have noticed, the
singeing, etc., from the trajectory, based on the trajectory of the bullet as shown in your own sketch, is
it not a fact that the gun could have been fired by the person himself, the victim himself, Wendell Libi,
because it shows a point of entry a little above the right ear and point of exit a little above that, to be
very fair and on your oath?

A As far as the point of entrance is concerned and as far as the trajectory of the bullet is
concerned and as far as the angle or the manner of fire is concerned, it could have been fired by the
victim." 7

As shown by the evidence, there were only two used bullets 8 found at the scene of the crime, each of
which were the bullets that hit Julie Ann Gotiong and Wendell Libi, respectively. Also, the sketch
prepared by the Medico-Legal Division of the National Bureau of Investigation, 9 shows that there is only
one gunshot wound of entrance located at the right temple of Wendell Libi. The necropsy report
prepared by Dr. Cerna states:chanrob1es virtual 1aw library

x x x
"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest inferiorly by 0.2 cm.,
edges inverted, oriented upward, located at the head, temporal region, right, 2.8 cms. behind and 5.5
cms. above right external auditory meatus, directed slightly forward, upward and to the left, involving
skin and soft tissues, making a punch-in fracture on the temporal bone, right, penetrating cranial cavity,
lacerating extensively along its course the brain tissues, fracturing parietal bone, left, and finally making
an EXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted, parietal region, left, 2.0 cms. behind and 12.9
cms. above left external auditory meatus.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph

x x x

"Evidence of contact or close-contact fire, such as burning around the gunshot wound of entrance,
gunpowder tatooing (sic), smudging, singeing of hair, extensive laceration or bursting of the gunshot
wound of entrance, or separation of the skin from the underlying tissue, are absent." 10

On cross-examination, Dr. Cerna demonstrated his theory which was made of record,
thus:jgc:chanrobles.com.ph

"Q Now, will you please use yourself as Wendell Libi, and following the entrance of the wound, the
trajectory of the bullet and the exit of the wound, and measuring yourself 24 inches, will you please
indicate to the Honorable Court how would it have been possible for Wendell Libi to kill himself? Will
you please indicate the 24 inches?

WITNESS:chanrob1es virtual 1aw library

A Actually, sir, the 24 inches is approximately one arm’s length.

ATTY. SENINING:chanrob1es virtual 1aw library

I would like to make of record that the witness has demonstrated by extending his right arm almost
straight towards his head." 11

Private respondents assail the fact that the trial court gave credence to the testimonies of defendants’
witnesses Lydia Ang and James Enrique Tan, the first being a resident of an apartment across the street
from the Gotiongs and the second, a resident of the house adjacent to the Gotiong residence, who
declared having seen a "shadow" of a person at the gate of the Gotiong house after hearing shots
therefrom.

On cross-examination, Lydia Ang testified that the apartment where she was staying faces the gas
station; that it is the second apartment; that from her window she can see directly the gate of the
Gotiongs and, that there is a firewall between her apartment and the gas station. 12 After seeing a man
jump from the gate of the Gotiongs to the rooftop of the Tans, she called the police station but the
telephone lines were busy. Later on, she talked with James Enrique Tan and told him that she saw a man
leap from the gate towards his rooftop. 13

However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the Gotiongs, but
denied having talked with anyone regarding what he saw. He explained that he lives in a duplex house
with a garden in front of it; that his house is next to Felipe Gotiong’s house; and he further gave the
following answers to these questions:chanrobles.com : virtual law library

"ATTY. ORTIZ: (TO WITNESS).

Q What is the height of the wall of the Gotiong’s in relation to your house?

WITNESS:chanrob1es virtual 1aw library

A It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

WITNESS:chanrob1es virtual 1aw library

A From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q From Your living room window, is that correct?

WITNESS:chanrob1es virtual 1aw library

A Yes, but not very clear because the wall is high." 14

Analyzing the foregoing testimonies, we agree with respondent court that the same do not inspire
credence as to the reliability and accuracy of the witnesses’ observations, since the visual perceptions of
both were obstructed by high walls in their respective houses in relation to the house of herein private
respondents. On the other hand, witness Manolo Alfonso, testifying on rebuttal, attested without
contradiction that he and his sister, Malou Alfonso, were waiting for Julie Ann Gotiong when they heard
her scream; that when Manolo climbed the fence to see what was going on inside the Gotiong house, he
heard the first shot; and, not more than five (5) seconds later, he heard another shot. Consequently, he
went down from the fence and drove to the police station to report the incident. 15 Manolo’s direct and
candid testimony establishes and explains the fact that it was he whom Lydia Ang and James Enrique
Tan saw as the "shadow" of a man at the gate of the Gotiong house.

We have perforce to reject petitioners’ effete and unsubstantiated pretension that it was another man
who shot Wendell and Julie Ann. It is significant that the Libi family did not even point to or present any
suspect in the crime nor did they file any case against any alleged "John Doe." Nor can we sustain the
trial court’s dubious theory that Wendell Libi did not die by his own hand because of the overwhelming
evidence — testimonial, documentary and pictorial — the confluence of which point to Wendell as the
assailant of Julie Ann, his motive being revenge for her rejection of his persistent pleas for a
reconciliation.chanrobles.com:cralaw:red
Petitioners’ defense that they had exercised the due diligence of a good father of a family, hence they
should not be civilly liable for the crime committed by their minor son, is not borne out by the evidence
on record either.

Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi, owns a gun
which he kept in a safety deposit box inside a drawer in their bedroom. Each of these petitioners holds a
key to the safety deposit box and Amelita’s key is always in her bag, all of which facts were known to
Wendell. They have never seen their son Wendell taking or using the gun. She admitted, however, that
on that fateful night the gun was no longer in the safety deposit box. 16 We, accordingly, cannot but
entertain serious doubts that petitioner spouses had really been exercising the diligence of a good
father of a family by safely locking the fatal gun away. Wendell could not have gotten hold thereof
unless one of the keys to the safety deposit box was negligently left lying around or he had free access
to the bag of his mother where the other key was.

The diligence of a good father of a family required by law in a parent and child relationship consists, to a
large extent, of the instruction and supervision of the child. Petitioners were gravely remiss in their
duties as parents in not diligently supervising the activities of their son, despite his minority and
immaturity, so much so that it was only at the time of Wendell’s death that they allegedly discovered
that he was a CANU agent and that Cresencio’s gun was missing from the safety deposit box. Both
parents were sadly wanting in their duty and responsibility in monitoring and knowing the activities of
their children who, for all they know, may be engaged in dangerous work such as being drug informers,
17 or even drug users. Neither was a plausible explanation given for the photograph of Wendell, with a
handwritten dedication to Julie Ann at the back thereof, 18 holding upright what clearly appears as a
revolver and on how or why he was in possession of that firearm.

In setting aside the judgment of the court a quo and holding petitioners civilly liable, as explained at the
start of this opinion, respondent court waved aside the protestations of diligence on the part of
petitioners and had this to say:jgc:chanrobles.com.ph

". . . It is still the duty of parents to know the activity of their children who may be engaged in this
dangerous activity involving the menace of drugs. Had the defendants-appellees been diligent in
supervising the activities of their son, Wendell, and in keeping said gun from his reach, they could have
prevented Wendell from killing Julie Ann Gotiong. Therefore, appellants are liable under Article 2180 of
the Civil Code which provides:chanrob1es virtual 1aw library

‘The father, and in case of his death or incapacity, the mother, are responsible for the damages caused
by their minor children who live in their company.’

"Having been grossly negligent in preventing Wendell Libi from having access to said gun which was
allegedly kept in a safety deposit box, defendants-appellees are subsidiarily liable for the natural
consequence of the criminal act of said minor who was living in their company. This vicarious liability of
herein defendants-appellees has been reiterated by the Supreme Court in many cases, prominent of
which is the case of Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held
that:chanrob1es virtual 1aw library

‘The subsidiary liability of parents for damages caused by their minor children imposed by Article 2180
of the New Civil Code covers obligations arising from both quasi-delicts and criminal offenses.’
‘The subsidiary liability of parent’s arising from the criminal acts of their minor children who acted with
discernment is determined under the provisions of Article 2180, N.C.C. and under Article 101 of the
Revised Penal Code, because to hold that the former only covers obligations which arise from quasi-
delicts and not obligations which arise from criminal offenses, would result in the absurdity that while
for an act where mere negligence intervenes the father or mother may stand subsidiarily liable for the
damages caused by his or her son, no liability would attach if the damage is caused with criminal intent.’
(3 SCRA 361-362).

". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi somehow got hold of
the key to the drawer where said gun was kept under lock without defendant-spouses ever knowing
that said gun had been missing from that safety box since 1978 when Wendell Libi had) a picture taken
wherein he proudly displayed said gun and dedicated this picture to his sweetheart, Julie Ann Gotiong;
also since then, Wendell Libi was said to have kept said gun in his car, in keeping up with his supposed
role of a CANU agent . . ." chanrobles lawlibrary : rednad

x x x

"Based on the foregoing discussions of the assigned errors, this Court holds that the lower court was not
correct in dismissing herein plaintiffs-appellants’ complaint because as preponderantly shown by
evidence, defendants-appellees utterly failed to exercise all the diligence of a good father of the family
in preventing their minor son from committing this crime by means of the gun of defendants-appellees
which was freely accessible to Wendell Libi for they have not regularly checked whether said gun was
still under lock, but learned that it was missing from the safety deposit box only after the crime had
been committed." (Emphases ours.) 19

We agree with the conclusion of respondent court that petitioners should be held liable for the civil
liability based on what appears from all indications was a crime committed by their minor son. We take
this opportunity, however, to digress and discuss its ratiocination therefor on jurisprudential dicta which
we feel require clarification.

In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites Fuellas v.
Cadano, Et. Al. 20 which supposedly holds that" (t)he subsidiary liability of parents for damages caused
by their minor children imposed by Article 2180 of the New Civil Code covers obligations arising from
both quasi-delicts and criminal offenses," followed by an extended quotation ostensibly from the same
case explaining why under Article 2180 of the Civil Code and Article 101 of the Revised Penal Code
parents should assume subsidiary liability for damages caused by their minor children. The quoted
passages are set out two paragraphs back, with pertinent underscoring for purposes of the discussion
hereunder.chanrobles law library

Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the
categorization of their liability as being subsidiary, and not primary, in nature requires a hard second
look considering previous decisions of this court on the matter which warrant comparative analyses. Our
concern stems from our readings that if the liability of the parents for crimes or quasi-delicts of their
minor children is subsidiary, then the parents can neither invoke nor be absolved of civil liability on the
defense that they acted with the diligence of a good father of a family to prevent damages. On the other
hand, if such liability imputed to the parents is considered direct and primary, that diligence would
constitute a valid and substantial defense.
We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in
Article 2180 of the Civil Code, is primary and not subsidiary. In fact, if we apply Article 2194 of said code
which provides for solidary liability of joint tortfeasors, the persons responsible for the act or omission,
in this case the minor and the father and, in case of his death of incapacity, the mother, are solidarily
liable. Accordingly, such parental liability is primary and not subsidiary, hence the last paragraph of
Article 2180 provides that" (t)he 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
damages."cralaw virtua1aw library

We are also persuaded that the liability of the parents for felonies committed by their minor children is
likewise primary, not subsidiary. Article 101 of the Revised Penal Code provides:jgc:chanrobles.com.ph

"ARTICLE 101. Rules regarding civil liability in certain cases. —

x x x

First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts committed by . . . a
person under nine years of age, or by one over nine but under fifteen years of age, who has acted
without discernment, shall devolve upon those having such person under their legal authority or control,
unless it appears that there was no fault or negligence on their part." (Emphasis supplied.) 21

Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision the civil
liability of the parents for crimes committed by their minor children is likewise direct and primary, and
also subject to the defense of lack of fault or negligence on their part, that is, the exercise of the
diligence of a good father of a family.

That in both quasi-delicts and crimes the parents primarily respond for such damages is buttressed by
the corresponding provisions in both codes that the minor transgressor shall be answerable or shall
respond with his own property only in the absence or in case of insolvency of the former. Thus, for civil
liability ex quasi delicto of minors, Article 2182 of the Civil Code states that" (i)f the minor causing
damage has no parents or guardian, the minor . . . shall be answerable with his own property in an
action against him where a guardian ad litem shall be appointed." For civil liability ex delicto of minors,
an equivalent provision is found in the third paragraph of Article 101 of the Revised Penal Code, to
wit:jgc:chanrobles.com.ph

"Should there be no person having such . . . minor under his authority, legal guardianship or control, or if
such person be insolvent, said . . . minor shall respond with (his) own property, excepting property
exempt from execution, in accordance with civil law."cralaw virtua1aw library

The civil liability of parents for felonies committed by their minor children contemplated in the aforesaid
rule in Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code has, aside from
the aforecited case of Fuellas, been the subject of a number of cases adjudicated by this Court, viz.:
Exconde v. Capuno, Et Al., 22 Araneta v. Arreglado, 23 Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v.
Bangkili, Et Al., 25 and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the aforesaid cases were basically
on the issue of the civil liability of parents for crimes committed by their minor children over 9 but under
15 years of age, who acted with discernment, and also of minors 15 years of aye or over, since these
situations are not covered by Article 101, Revised Penal Code. In both instances, this Court held that the
issue of parental civil liability should be resolved in accordance with the provisions of Article 2180 of the
Civil Code for the reasons well expressed in Salen and adopted in the cases hereinbefore enumerated
that to hold that the civil liability under Article 2180 would apply only to quasi-delicts and not to criminal
offenses would result in the absurdity that in an act involving mere negligence the parents would be
liable but not where the damage is caused with criminal intent. In said cases, however, there are
unfortunate variances resulting in a regrettable inconsistency in the Court’s determination of whether
the liability of the parents, in cases involving either crimes or quasi-delicts of their minor children, is
primary or subsidiary.

In Exconde, where the 15-year old minor was convicted of double homicide through reckless
imprudence, in a separate civil action arising from the crime the minor and his father were held jointly
and severally liable for failure of the latter to prove the diligence of a good father of a family. The same
liability in solidum and, therefore, primary liability was imposed in a separate civil action in Araneta on
the parents and their 14-year old son who was found guilty of frustrated homicide, but on the authority
of Article 2194 of the Civil Code providing for solidary responsibility of two or more persons who are
liable for a quasi-delict.

However, in Salen, the father was declared subsidiarily liable for damages arising from the conviction of
his son, who was over 15 but less than 18 years of age, by applying Article 2180 but, this time,
disregarding Article 2194 of the Civil Code. In the present case, as already explained, the petitioners
herein were also held liable but supposedly in line with Fuellas which purportedly declared the parents
subsidiarily liable for the civil liability for serious physical injuries committed by their 13-year old son. On
the other hand, in Paleyan, the mother and her 19-year old son were adjudged solidarily liable for
damages arising from his conviction for homicide by the application of Article 2180 of the Civil Code
since this is likewise not covered by Article 101 of the Revised Penal Code. Finally, in Elcano, although
the son was acquitted in a homicide charge due to "lack of intent, coupled with mistake," it was ruled
that while under Article 2180 of the Civil Code there should be solidary liability for damages, since the
son, "although married, was living with his father and getting subsistence from him at the time of the
occurrence," but "is now of age, as a matter of equity" the father was only held subsidiarily liable.

It bears stressing, however, that the Revised Penal Code provides for subsidiary liability only for persons
causing damages under the compulsion of irresistible force or under the impulse of an uncontrollable
fear; 27 innkeepers, tavernkeepers and proprietors of establishments; 28 employers, teachers, persons
and corporations engaged in industry; 29 and principals, accomplices and accessories for the unpaid civil
liability of their co-accused in the other classes. 30

Also, coming back to respondent court’s reliance on Fuellas in its decision in the present case, it is not
exactly accurate to say that Fuellas provided for subsidiary liability of the parents therein. A careful
scrutiny shows that what respondent court quoted verbatim in its decision now on appeal in the present
case, and which it attributed to Fuellas, was the syllabus on the law report of said case which spoke of
"subsidiary" liability. However, such categorization does not specifically appear in the text of the
decision in Fuellas. In fact, after reviewing therein the cases of Exconde, Araneta and Salen and the
discussions in said cases of Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil
Code, this Court concluded its decision in this wise:jgc:chanrobles.com.ph

"Moreover, the case at bar was decided by the Court of Appeals on the basis of evidence submitted
therein by both parties, independent of the criminal case. And responsibility for fault or negligence
under Article 2176 upon which the present action was instituted, is entirely separate and distinct from
the civil liability arising from fault or negligence under the Penal Code (Art. 2177), and having in mind
the reasons behind the law as heretofore stated, any discussion as to the minor’s criminal responsibility
is of no moment."cralaw virtua1aw library

Under the foregoing considerations, therefore, we hereby rule that the parents are and should be held
primarily liable for the civil liability arising from criminal offenses committed by their minor children
under their legal authority or control, or who live in their company, unless it is proven that the former
acted with the diligence of a good father of a family to prevent such damages. That primary liability is
premised on the provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto
caused by their children 9 years of age or under, or over 9 but under 15 years of age who acted without
discernment; and, with regard to their children over 9 but under 15 years of age who acted with
discernment, or 15 years or over but under 21 years of age, such primary liability shall be imposed
pursuant to Article 2180 of the Civil Code. 31

Under said Article 2180, the enforcement of such liability shall be effected against the father and, in
case of his death or incapacity, the mother. This was amplified by the Child and Youth Welfare Code
which provides that the same shall devolve upon the father and, in case of his death or incapacity, upon
the mother or, in case of her death or incapacity, upon the guardian, but the liability may also be
voluntarily assumed by a relative or family friend of the youthful offender. 32 However, under the
Family Code, this civil liability is now, without such alternative qualification, the responsibility of the
parents and those who exercise parental authority over the minor offender. 33 For civil liability arising
from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180 and
2182 of the Civil Code, as so modified.

In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a felony or a quasi-
delict committed by Wendell Libi, respondent court did not err in holding petitioners liable for damages
arising therefrom. Subject to the preceding modifications of the premises relied upon by it therefor and
on the bases of the legal imperatives herein explained, we conjoin in its findings that said petitioners
failed to duly exercise the requisite diligentissimi patris familias to prevent such damages.

ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent Court of Appeals
is hereby AFFIRMED, with costs against petitioners.

SO ORDERED.

Taylor vs Manila Electric

An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a
minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric light
system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig
River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat
or by crossing a footbridge, impassable for vehicles, at the westerly end of the island.
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age,
the son of a mechanical engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age,
crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of
the defendant, who and promised to make them a cylinder for a miniature engine. Finding on inquiry
that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and
perhaps by the unusual interest which both seem to have taken in machinery, spent some time in
wandering about the company's premises. The visit was made on a Sunday afternoon, and it does not
appear that they saw or spoke to anyone after leaving the power house where they had asked for Mr.
Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they walked
across the open space in the neighborhood of the place where the company dumped in the cinders and
ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the
ground. These caps are approximately of the size and appearance of small pistol cartridges and each has
attached to it two long thin wires by means of which it may be discharged by the use of electricity. They
are intended for use in the explosion of blasting charges of dynamite, and have in themselves a
considerable explosive power. After some discussion as to the ownership of the caps, and their right to
take them, the boys picked up all they could find, hung them on stick, of which each took end, and
carried them home. After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9
years old, and all three went to the home of the boy Manuel. The boys then made a series of
experiments with the caps. They trust the ends of the wires into an electric light socket and obtained no
result. They next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could
not find one. Then they opened one of the caps with a knife, and finding that it was filled with a
yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to
the contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who when
the boys proposed putting a match to the contents of the cap, became frightened and started to run
away, received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck
in the face by several particles of the metal capsule, one of which injured his right eye to such an extent
as to the necessitate its removal by the surgeons who were called in to care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the defendant's
premises, nor how long they had been there when the boys found them. It appears, however, that some
months before the accident, during the construction of the defendant's plant, detonating caps of the
same size and kind as those found by the boys were used in sinking a well at the power plant near the
place where the caps were found; and it also appears that at or about the time when these caps were
found, similarly caps were in use in the construction of an extension of defendant's street car line to Fort
William McKinley. The caps when found appeared to the boys who picked them up to have been lying
for a considerable time, and from the place where they were found would seem to have been discarded
as detective or worthless and fit only to be thrown upon the rubbish heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent visitors
from entering and walking about its premises unattended, when they felt disposed so to do. As admitted
in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes crossed the
foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed premises of the
defendant, in the neighborhood of the place where the caps were found. There is evidence that any
effort ever was made to forbid these children from visiting the defendant company's premises, although
it must be assumed that the company or its employees were aware of the fact that they not infrequently
did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he obtained employment as a mechanical
draftsman and continued in that employment for six months at a salary of P2.50 a day; and it appears
that he was a boy of more than average intelligence, taller and more mature both mentally and
physically than most boys of fifteen.

The facts set out in the foregoing statement are to our mind fully and conclusively established by the
evidence of record, and are substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant
company's premises were the property of the defendant, or that they had come from its possession and
control, and that the company or some of its employees left them exposed on its premises at the point
where they were found.

The evidence in support of these allegations is meager, and the defendant company, apparently relying
on the rule of law which places the burden of proof of such allegations upon the plaintiff, offered no
evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that plaintiff's
evidence is sufficient to sustain a finding in accord with his allegations in this regard.

It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the
McKinley extension of the defendant company's track; that some of these caps were used in blasting a
well on the company's premises a few months before the accident; that not far from the place where
the caps were found the company has a storehouse for the materials, supplies and so forth, used by it in
its operations as a street railway and a purveyor of electric light; and that the place, in the neighborhood
of which the caps were found, was being used by the company as a sort of dumping ground for ashes
and cinders. Fulminating caps or detonators for the discharge by electricity of blasting charges by
dynamite are not articles in common use by the average citizen, and under all the circumstances, and in
the absence of all evidence to the contrary, we think that the discovery of twenty or thirty of these caps
at the place where they were found by the plaintiff on defendant's premises fairly justifies the inference
that the defendant company was either the owner of the caps in question or had the caps under its
possession and control. We think also that the evidence tends to disclose that these caps or detonators
were willfully and knowingly thrown by the company or its employees at the spot where they were
found, with the expectation that they would be buried out of the sight by the ashes which it was
engaged in dumping in that neighborhood, they being old and perhaps defective; and, however this may
be, we are satisfied that the evidence is sufficient to sustain a finding that the company or some of its
employees either willfully or through an oversight left them exposed at a point on its premises which
the general public, including children at play, where not prohibited from visiting, and over which the
company knew or ought to have known that young boys were likely to roam about in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these
conclusions are based by intimidating or rather assuming that the blasting work on the company's well
and on its McKinley extension was done by contractors. It was conclusively proven, however, that while
the workman employed in blasting the well was regularly employed by J. G. White and Co., a firm of
contractors, he did the work on the well directly and immediately under the supervision and control of
one of defendant company's foremen, and there is no proof whatever in the record that the blasting on
the McKinley extension was done by independent contractors. Only one witness testified upon this
point, and while he stated that he understood that a part of this work was done by contract, he could
not say so of his own knowledge, and knew nothing of the terms and conditions of the alleged contract,
or of the relations of the alleged contractor to the defendant company. The fact having been proven
that detonating caps were more or less extensively employed on work done by the defendant
company's directions and on its behalf, we think that the company should have introduced the
necessary evidence to support its contention if it wished to avoid the not unreasonable inference that it
was the owner of the material used in these operations and that it was responsible for tortious or
negligent acts of the agents employed therein, on the ground that this work had been intrusted to
independent contractors as to whose acts the maxim respondent superior should not be applied. If the
company did not in fact own or make use of caps such as those found on its premises, as intimated by
counsel, it was a very simple matter for it to prove that fact, and in the absence of such proof we think
that the other evidence in the record sufficiently establishes the contrary, and justifies the court in
drawing the reasonable inference that the caps found on its premises were its property, and were left
where they were found by the company or some of its employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the
provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that code.

ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and omissions
or by those in which any kind of fault or negligence occurs.

ART. 1902 A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.

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

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

xxx xxx xxx

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

xxx xxx xxx

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

ART. 1908 The owners shall also be liable for the damage caused —

1 By the explosion of machines which may not have been cared for with due diligence, and for kindling
of explosive substances which may not have been placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts
proven at the trial do not established the liability of the defendant company under the provisions of
these articles, and since we agree with this view of the case, it is not necessary for us to consider the
various questions as to form and the right of action (analogous to those raised in the case of Rakes vs.
Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision affirming
the judgment of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine
in the United States, the plaintiff in an action such as that under consideration, in order to establish his
right to a recovery, must establish by competent evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must
respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising in
the application of these principles to the particular facts developed in the case under consideration.

It is clear that the accident could not have happened and not the fulminating caps been left exposed at
the point where they were found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his
own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon
without the express permission of the defendant, and had he not picked up and carried away the
property of the defendant which he found on its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon
defendant company's premises, and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the accident which resulted in his injury
should not be held to have contributed in any wise to the accident, which should be deemed to be the
direct result of defendant's negligence in leaving the caps exposed at the place where they were found
by the plaintiff, and this latter the proximate cause of the accident which occasioned the injuries
sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts
of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and the
cases based thereon.

In a typical cases, the question involved has been whether a railroad company is liable for an injury
received by an infant of tender years, who from mere idle curiosity, or for the purposes of amusement,
enters upon the railroad company's premises, at a place where the railroad company knew, or had good
reason to suppose, children would be likely to come, and there found explosive signal torpedoes left
unexposed by the railroad company's employees, one of which when carried away by the visitor,
exploded and injured him; or where such infant found upon the premises a dangerous machine, such as
a turntable, left in such condition as to make it probable that children in playing with it would be
exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with
such machine.

In these, and in great variety of similar cases, the great weight of authority holds the owner of the
premises liable.

As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was
whether a railroad company was liable for in injury received by an infant while upon its premises, from
idle curiosity, or for purposes of amusement, if such injury was, under circumstances, attributable to the
negligence of the company), the principles on which these cases turn are that "while a railroad company
is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its
premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such
strangers for injuries arising from its negligence or from its tortious acts;" and that "the conduct of an
infant of tender years is not to be judged by the same rule which governs that of adult. While it is the
general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the
fault or negligence of another he must himself have been free from fault, such is not the rule in regard
to an infant of tender years. The care and caution required of a child is according to his maturity and
capacity only, and this is to be determined in each case by the circumstances of the case."

The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs. Towar (128
Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases, especially that laid
down in Railroad Company vs. Stout, in a very able decision wherein it held, in the language of the
syllabus: (1) That the owner of the land is not liable to trespassers thereon for injuries sustained by
them, not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of children
who are injured by dangerous machinery naturally calculated to attract them to the premises; (3) that
an invitation or license to cross the premises of another can not be predicated on the mere fact that no
steps have been taken to interfere with such practice; (4) that there is no difference between children
and adults as to the circumstances that will warrant the inference of an invitation or a license to enter
upon another's premises.

Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the courts
in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349). And the
doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and
approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36),
lay down the rule in these cases in accord with that announced in the Railroad Company vs. Stout
(supra), and the Supreme Court of the United States, in a unanimous opinion delivered by Justice Harlan
in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down in Railroad
Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the adjudged cases,
both English and American, formally declared that it adhered "to the principles announced in the case of
Railroad Co. vs. Stout."

In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The plaintiff, a
boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited the defendant's
premises, without defendant's express permission or invitation, and while there, was by accident injured
by falling into a burning slack pile of whose existence he had no knowledge, but which had been left by
defendant on its premises without any fence around it or anything to give warning of its dangerous
condition, although defendant knew or had reason the interest or curiosity of passers-by. On these facts
the court held that the plaintiff could not be regarded as a mere trespasser, for whose safety and
protection while on the premises in question, against the unseen danger referred to, the defendant was
under no obligation to make provision.

We quote at length from the discussion by the court of the application of the principles involved to the
facts in that case, because what is said there is strikingly applicable in the case at bar, and would seem
to dispose of defendant's contention that, the plaintiff in this case being a trespasser, the defendant
company owed him no duty, and in no case could be held liable for injuries which would not have
resulted but for the entry of plaintiff on defendant's premises.

We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case now before
us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the slack
pile, made by it in the vicinity of its depot building. It could have forbidden all persons from coming to its
coal mine for purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it
permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual
approach to the mine was by a narrow path skirting its slack pit, close to its depot building, at which the
people of the village, old and young, would often assemble. It knew that children were in the habit of
frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit.
The slightest regard for the safety of these children would have suggested that they were in danger from
being so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain
prevailed) a mass of burning coals into which a child might accidentally fall and be burned to death.
Under all the circumstances, the railroad company ought not to be heard to say that the plaintiff, a mere
lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it
owed no duty, or for whose protection it was under no obligation to make provisions.

In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited with flesh,
in his own ground, so near to a highway, or to the premises of another, that dogs passing along the
highway, or kept in his neighbors premises, would probably be attracted by their instinct into the traps,
and in consequence of such act his neighbor's dogs be so attracted and thereby injured, an action on the
case would lie. "What difference," said Lord Ellenborough, C.J., "is there in reason between drawing the
animal into the trap by means of his instinct which he can not resist, and putting him there by manual
force?" What difference, in reason we may observe in this case, is there between an express license to
the children of this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an
implied license, resulting from the habit of the defendant to permit them, without objection or warning,
to do so at will, for purposes of curiosity or pleasure? Referring it the case of Townsend vs. Wathen,
Judge Thompson, in his work on the Law of Negligence, volume 1, page 305, note, well says: "It would
be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited
with stinking meat, so that his neighbor's dog attracted by his natural instinct, might run into it and be
killed, and which would exempt him from liability for the consequence of leaving exposed and
unguarded on his land a dangerous machine, so that his neighbor's child attracted to it and tempted to
intermeddle with it by instincts equally strong, might thereby be killed or maimed for life."

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs.
Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others
who are chargeable with a duty of care and caution toward them must calculate upon this, and take
precautions accordingly. If they leave exposed to the observation of children anything which would be
tempting to them, and which they in their immature judgment might naturally suppose they were at
liberty to handle or play with, they should expect that liberty to be taken.

And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit
the premises of another, says:

In the case of young children, and other persons not fully sui juris, an implied license might sometimes
arise when it would not on behalf of others. Thus leaving a tempting thing for children to play with
exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to
them to make use of it; and, perhaps, if one were to throw away upon his premises, near the common
way, things tempting to children, the same implication should arise. (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusion in the cases of
Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less cogent and
convincing in this jurisdiction than in that wherein those cases originated. Children here are actuated by
similar childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth,
boys here as well as there will usually be found whenever the public is permitted to congregate. The
movement of machinery, and indeed anything which arouses the attention of the young and inquiring
mind, will draw them to the neighborhood as inevitably as does the magnet draw the iron which comes
within the range of its magnetic influence. The owners of premises, therefore, whereon things attractive
to children are exposed, or upon which the public are expressly or impliedly permitted to enter or upon
which the owner knows or ought to know children are likely to roam about for pastime and in play, "
must calculate upon this, and take precautions accordingly." In such cases the owner of the premises
can not be heard to say that because the child has entered upon his premises without his express
permission he is a trespasser to whom the owner owes no duty or obligation whatever. The owner's
failure to take reasonable precautions to prevent the child from entering his premises at a place where
he knows or ought to know that children are accustomed to roam about of to which their childish
instincts and impulses are likely to attract them is at least equivalent to an implied license to enter, and
where the child does enter under such conditions the owner's failure to take reasonable precautions to
guard the child against injury from unknown or unseen dangers, placed upon such premises by the
owner, is clearly a breach of duty, responsible, if the child is actually injured, without other fault on its
part than that it had entered on the premises of a stranger without his express invitation or permission.
To hold otherwise would be expose all the children in the community to unknown perils and
unnecessary danger at the whim of the owners or occupants of land upon which they might naturally
and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has a
right to do what will with his own property or that children should be kept under the care of their
parents or guardians, so as to prevent their entering on the premises of others is of sufficient weight to
put in doubt. In this jurisdiction as well as in the United States all private property is acquired and held
under the tacit condition that it shall not be so used as to injure the equal rights and interests of the
community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and except as to infants of very
tender years it would be absurd and unreasonable in a community organized as is that in which we lived
to hold that parents or guardian are guilty of negligence or imprudence in every case wherein they
permit growing boys and girls to leave the parental roof unattended, even if in the event of accident to
the child the negligence of the parent could in any event be imputed to the child so as to deprive it a
right to recover in such cases — a point which we neither discuss nor decide.

But while we hold that the entry of the plaintiff upon defendant's property without defendant's express
invitation or permission would not have relieved defendant from responsibility for injuries incurred
there by plaintiff, without other fault on his part, if such injury were attributable to the negligence of the
defendant, we are of opinion that under all the circumstances of this case the negligence of the
defendant in leaving the caps exposed on its premises was not the proximate cause of the injury
received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of
the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the
detonating cap and putting match to its contents was the proximate cause of the explosion and of the
resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible
for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's
youth the intervention of his action between the negligent act of the defendant in leaving the caps
exposed on its premises and the explosion which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we can not agree with this proposition,
although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to
discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co. vs.
Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover damages
for an injury resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be determined in each case by the
circumstances of the case." As we think we have shown, under the reasoning on which rests the
doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of responsibility
for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown boy of 15 years
of age, because of his entry upon defendant's uninclosed premises without express permission or
invitation' but it is wholly different question whether such youth can be said to have been free from
fault when he willfully and deliberately cut open the detonating cap, and placed a match to the
contents, knowing, as he undoubtedly did, that his action would result in an explosion. On this point,
which must be determined by "the particular circumstances of this case," the doctrine laid down in the
Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the
"Torpedo" and analogous cases which our attention has been directed, the record discloses that the
plaintiffs, in whose favor judgments have been affirmed, were of such tender years that they were held
not to have the capacity to understand the nature or character of the explosive instruments which fell
into their hands.

In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both
mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able to
earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record
discloses throughout that he was exceptionally well qualified to take care of himself. The evidence of
record leaves no room for doubt that, despite his denials on the witness stand, he well knew the
explosive character of the cap with which he was amusing himself. The series of experiments made by
him in his attempt to produce an explosion, as described by the little girl who was present, admit of no
other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts to
explode it with a stone or a hammer, and the final success of his endeavors brought about by the
application of a match to the contents of the caps, show clearly that he knew what he was about. Nor
can there be any reasonable doubt that he had reason to anticipate that the explosion might be
dangerous, in view of the fact that the little girl, 9 years of age, who was within him at the time when he
put the match to the contents of the cap, became frightened and ran away.

True, he may not have known and probably did not know the precise nature of the explosion which
might be expected from the ignition of the contents of the cap, and of course he did not anticipate the
resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might be
expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. It would
be going far to say that "according to his maturity and capacity" he exercised such and "care and
caution" as might reasonably be required of him, or that defendant or anyone else should be held civilly
responsible for injuries incurred by him under such circumstances.

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand
and appreciate the nature and consequences of his own acts, so as to make it negligence on his part to
fail to exercise due care and precaution in the commission of such acts; and indeed it would be
impracticable and perhaps impossible so to do, for in the very nature of things the question of
negligence necessarily depends on the ability of the minor to understand the character of his own acts
and their consequences; and the age at which a minor can be said to have such ability will necessarily
depends of his own acts and their consequences; and at the age at which a minor can be said to have
such ability will necessarily vary in accordance with the varying nature of the infinite variety of acts
which may be done by him. But some idea of the presumed capacity of infants under the laws in force in
these Islands may be gathered from an examination of the varying ages fixed by our laws at which
minors are conclusively presumed to be capable of exercising certain rights and incurring certain
responsibilities, though it can not be said that these provisions of law are of much practical assistance in
cases such as that at bar, except so far as they illustrate the rule that the capacity of a minor to become
responsible for his own acts varies with the varying circumstances of each case. Under the provisions of
the Penal Code a minor over fifteen years of age is presumed to be capable of committing a crime and is
to held criminally responsible therefore, although the fact that he is less than eighteen years of age will
be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of
age a child may, under certain circumstances, choose which parent it prefers to live with (Code of Civil
Procedure, sec. 771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may
consent or refuse to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of
contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of
the danger to which he exposed himself when he put the match to the contents of the cap; that he was
sui juris in the sense that his age and his experience qualified him to understand and appreciate the
necessity for the exercise of that degree of caution which would have avoided the injury which resulted
from his own deliberate act; and that the injury incurred by him must be held to have been the direct
and immediate result of his own willful and reckless act, so that while it may be true that these injuries
would not have been incurred but for the negligence act of the defendant in leaving the caps exposed
on its premises, nevertheless plaintiff's own act was the proximate and principal cause of the accident
which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest,
book 50, tit. 17 rule 203.)

The Patidas contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his own fault, and
that he can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.)

And they even said that when a man received an injury through his own acts the grievance should be
against himself and not against another. (Law 2, tit. 7, Partida 2.)

According to ancient sages, when a man received an injury through his own acts the grievance should be
against himself and not against another. (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays down the law
touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its
provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and
Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover damages
from the defendant, in whole or in part, for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is
directly in point. In that case the court said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of
obligation when between such negligence and the injury there exists the relation of cause and effect;
but if the injury produced should not be the result of acts or omissions of a third party, the latter has no
obligation to repair the same, although such acts or omission were imprudent or unlawful, and much
less when it is shown that the immediate cause of the injury was the negligence of the injured party
himself.

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del
Codigo Civil (1902 Anuario, p. 455), commenting on the decision of March 7, 1902 of the Civil Code, fault
or negligence gives rise to an obligation when between it and the damage there exists the relation of
cause and effect; but if the damage caused does not arise from the acts or omissions of a third person,
there is no obligation to make good upon the latter, even though such acts or omissions be imprudent
or illegal, and much less so when it is shown that the immediate cause of the damage has been the
recklessness of the injured party himself.

And again —

In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is
apparent that it is duty of him who shall claim damages to establish their existence. The decisions of
April 9, 1896, and March 18, July, and September 27, 1898, have especially supported the principle, the
first setting forth in detail the necessary points of the proof, which are two: An act or omission on the
part of the person who is to be charged with the liability, and the production of the damage by said act
or omission.
This includes, by inference, the establishment of a relation of cause or effect between the act or
omission and the damage; the latter must be the direct result of one of the first two. As the decision of
March 22, 1881, said, it is necessary that the damages result immediately and directly from an act
performed culpably and wrongfully; "necessarily presupposing a legal ground for imputability." (Decision
of October 29, 1887.)

Negligence is not presumed, but must be proven by him who alleges it. (Scavoela, Jurisprudencia del
Codigo Civil, vol. 6, pp. 551-552.)

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)

Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in this
court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein we held
that while "There are many cases (personal injury cases) was exonerated," on the ground that "the
negligence of the plaintiff was the immediate cause of the casualty" (decisions of the 15th of January,
the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that year); none of the
cases decided by the supreme court of Spain "define the effect to be given the negligence of its causes,
though not the principal one, and we are left to seek the theory of the civil law in the practice of other
countries;" and in such cases we declared that law in this jurisdiction to require the application of "the
principle of proportional damages," but expressly and definitely denied the right of recovery when the
acts of the injured party were the immediate causes of the accident.

The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered
immediate causes of the accident. The test is simple. Distinction must be made between the accident
and the injury, between the event itself, without which there could have been no accident, and those
acts of the victim not entering into it, independent of it, but contributing to his own proper hurt. For
instance, the cause of the accident under review was the displacement of the crosspiece or the failure to
replace it. This produces the event giving occasion for damages—that is, the sinking of the track and the
sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not
contribute, although it was an element of the damage which came to himself. Had the crosspiece been
out of place wholly or partly through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been responsible. Where he
contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in
conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that
the defendant responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the
accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents of the
cap, and that having "contributed to the principal occurrence, as one of its determining factors, he can
not recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of cause
and effect between the negligent act or omission of the defendant in leaving the caps exposed on its
premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps. Under the
doctrine of the Torpedo cases, such action on the part of an infant of very tender years would have no
effect in relieving defendant of responsibility, but whether in view of the well-known fact admitted in
defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the age and maturity of
plaintiff should be deemed without fault in picking up the caps in question under all the circumstances
of this case, we neither discuss nor decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment of the court
below, without costs to either party in this instance, and ten days thereafter let the record be returned
to the court wherein it originated, where the judgment will be entered in favor of the defendant for the
costs in first instance and the complaint dismissed without day. So ordered.

Air France vs Carrascoso

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

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

The case is now before us for review on certiorari.

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

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

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

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court
of Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the
issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to
overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of
record without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This
is echoed in the statutory demand that a judgment determining the merits of the case shall state
"clearly and distinctly the facts and the law on which it is based"; 6 and that "Every decision of the Court
of Appeals shall contain complete findings of fact on all issues properly raised before it". 7

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

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written
statement of the ultimate facts as found by the court ... and essential to support the decision and
judgment rendered thereon". 16 They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one
which does not call for an examination of the probative value of the evidence presented by the parties."
18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the
Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of
this Court to alter the facts or to review the questions of fact. 20

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

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

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

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

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

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

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

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

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?

A. That the space is confirmed.

Q. Confirmed for first class?

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

xxx xxx xxx

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

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe
that after such confirmation defendant had a verbal understanding with plaintiff that the "first class"
ticket issued to him by defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount
refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of
Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the
judgment of the lower court. 24 Implicit in that affirmance is a determination by the Court of Appeals
that the proceeding in the Court of First Instance was free from prejudicial error and "all questions
raised by the assignments of error and all questions that might have been raised are to be regarded as
finally adjudicated against the appellant". So also, the judgment affirmed "must be regarded as free
from all error". 25 We reached this policy construction because nothing in the decision of the Court of
Appeals on this point would suggest that its findings of fact are in any way at war with those of the trial
court. Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those
which were made the basis of the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger have? It
will always be an easy matter for an airline aided by its employees, to strike out the very stipulations in
the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a
schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform language;
that spoken word could be notoriously unreliable. If only to achieve stability in the relations between
passenger and air carrier, adherence to the ticket so issued is desirable. Such is the case here. The lower
courts refused to believe the oral evidence intended to defeat the covenants in the ticket.

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

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

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

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok,
defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments
and/or insistence were made by the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only Tourist
Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been compelled
by defendant's employees to leave the First Class accommodation berths at Bangkok after he was
already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments
brought by defendant's breach of contract was forced to take a Pan American World Airways plane on
his return trip from Madrid to Manila.32

xxx xxx xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid,
plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental
anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral
damages in the amount of P30,000.00. 33

xxx xxx xxx

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

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

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

"First-class passenger was forced to go to the tourist class against his will, and that the captain refused
to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the
plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do
so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the
plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at the trial
of the case, or yet to secure his disposition; but defendant did neither. 37

The Court of appeals further stated —

Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if
the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already
been taken, surely the plaintiff should not have been picked out as the one to suffer the consequences
and to be subjected to the humiliation and indignity of being ejected from his seat in the presence of
others. Instead of explaining to the white man the improvidence committed by defendant's employees,
the manager adopted the more drastic step of ousting the plaintiff who was then safely ensconsced in
his rightful seat. We are strengthened in our belief that this probably was what happened there, by the
testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning of the letters
"O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for first class. Likewise,
Zenaida Faustino, another witness for defendant, who was the chief of the Reservation Office of
defendant, testified as follows:

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

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

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

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

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

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

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of
the Court of First Instance, thus:

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

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

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

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

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

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

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract
and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her that
the check was worthless and demand payment under threat of ejection, though the language used was
not insulting and she was not ejected." 46 And this, because, although the relation of passenger and
carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract may be
also a tort". 47 And in another case, "Where a passenger on a railroad train, when the conductor came
to collect his fare tendered him the cash fare to a point where the train was scheduled not to stop, and
told him that as soon as the train reached such point he would pay the cash fare from that point to
destination, there was nothing in the conduct of the passenger which justified the conductor in using
insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina there
held the carrier liable for the mental suffering of said passenger.1awphîl.nèt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action
as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner
air carrier — a case of quasi-delict. Damages are proper.

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

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

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

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

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

Mr. VALTE —

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

COURT —

I will allow that as part of his testimony. 49

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

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

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

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

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

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

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

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

Picart vs Smith

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of
P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From a
judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability
the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the
Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff
was riding on his pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles
per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give
warning of his approach. He continued his course and after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on horseback before him was not observing the
rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up
against the railing on the right side of the bridge instead of going to the left. He says that the reason he
did this was that he thought he did not have sufficient time to get over to the other side. The bridge is
shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile approached,
the defendant guided it toward his left, that being the proper side of the road for the machine. In so
doing the defendant assumed that the horseman would move to the other side. The pony had not as yet
exhibited fright, and the rider had made no sign for the automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing
down, continued to approach directly toward the horse without diminution of speed. When he had
gotten quite near, there being then no possibility of the horse getting across to the other side, the
defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the
railing where it as then standing; but in so doing the automobile passed in such close proximity to the
animal that it became frightened and turned its body across the bridge with its head toward the railing.
In so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb was broken.
The horse fell and its rider was thrown off with some violence. From the evidence adduced in the case
we believe that when the accident occurred the free space where the pony stood between the
automobile and the railing of the bridge was probably less than one and one half meters. As a result of
its injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness
and required medical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the
manner above described was guilty of negligence such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is so liable. As the defendant started across the bridge,
he had the right to assume that the horse and the rider would pass over to the proper side; but as he
moved toward the center of the bridge it was demonstrated to his eyes that this would not be done; and
he must in a moment have perceived that it was too late for the horse to cross with safety in front of the
moving vehicle. In the nature of things this change of situation occurred while the automobile was yet
some distance away; and from this moment it was not longer within the power of the plaintiff to escape
being run down by going to a place of greater safety. The control of the situation had then passed
entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that
there were no other persons on the bridge, to take the other side and pass sufficiently far away from the
horse to avoid the danger of collision. Instead of doing this, the defendant ran straight on until he was
almost upon the horse. He was, we think, deceived into doing this by the fact that the horse had not yet
exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the
animal in question was unacquainted with automobiles, he might get exited and jump under the
conditions which here confronted him. When the defendant exposed the horse and rider to this danger
he was, in our opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use that person would have used in the same
situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to
be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of
negligence in a given case is not determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless, blameworthy, or negligent in the man
of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in the
particular case. Abstract speculations cannot here be of much value but this much can be profitably said:
Reasonable men govern their conduct by the circumstances which are before them or known to them.
They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take
care only when there is something before them to suggest or warn of danger. Could a prudent man, in
the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the
duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed
by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given
case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would
have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing
conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly
established. A prudent man, placed in the position of the defendant, would in our opinion, have
recognized that the course which he was pursuing was fraught with risk, and would therefore have
foreseen harm to the horse and the rider as reasonable consequence of that course. Under these
circumstances the law imposed on the defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances the law is that the person who has the last fair chance
to avoid the impending harm and fails to do so is chargeable with the consequences, without reference
to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held that while contributory negligence on the part of
the person injured did not constitute a bar to recovery, it could be received in evidence to reduce the
damages which would otherwise have been assessed wholly against the other party. The defendant
company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge
in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which
were hauled along a narrow track. At certain spot near the water's edge the track gave way by reason of
the combined effect of the weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in
evidence that the accident was due to the effects of the typhoon which had dislodged one of the
supports of the track. The court found that the defendant company was negligent in having failed to
repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of
contributory negligence in walking at the side of the car instead of being in front or behind. It was held
that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep
the track in proper repair nevertheless the amount of the damages should be reduced on account of the
contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted
in an omission only. The liability of the company arose from its responsibility for the dangerous
condition of its track. In a case like the one now before us, where the defendant was actually present
and operating the automobile which caused the damage, we do not feel constrained to attempt to
weigh the negligence of the respective parties in order to apportion the damage according to the degree
of their relative fault. It is enough to say that the negligence of the defendant was in this case the
immediate and determining cause of the accident and that the antecedent negligence of the plaintiff
was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the court
of a justice of the peace. In this connection it appears that soon after the accident in question occurred,
the plaintiff caused criminal proceedings to be instituted before a justice of the peace charging the
defendant with the infliction of serious injuries (lesiones graves). At the preliminary investigation the
defendant was discharged by the magistrate and the proceedings were dismissed. Conceding that the
acquittal of the defendant at the trial upon the merits in a criminal prosecution for the offense
mentioned would be res adjudicata upon the question of his civil liability arising from negligence -- a
point upon which it is unnecessary to express an opinion -- the action of the justice of the peace in
dismissing the criminal proceeding upon the preliminary hearing can have no effect. (See U. S. vs.
Banzuela and Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and
judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel, and
lawful interest on the whole to the date of this recovery. The other damages claimed by the plaintiff are
remote or otherwise of such character as not to be recoverable. So ordered.

Rakes vs Atlantic Gulf

This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the employment of
the defendant, was at work transporting iron rails from a barge in the harbor to the company's yard
near the malecon in Manila. Plaintiff claims that but one hand car was used in this work. The defendant
has proved that there were two immediately following one another, upon which were piled lengthwise
seven rails, each weighing 560 pounds, so that the ends of the rails lay upon two crosspieces or sills
secured to the cars, but without side pieces or guards to prevent them from slipping off. According to
the testimony of the plaintiff, the men were either in the rear of the car or at its sides. According to that
defendant, some of them were also in front, hauling by a rope. At a certain spot at or near the water's
edge the track sagged, the tie broke, the car either canted or upset, the rails slid off and caught the
plaintiff, breaking his leg, which was afterwards amputated at about the knee.

This first point for the plaintiff to establish was that the accident happened through the negligence of
the defendant. The detailed description by the defendant's witnesses of the construction and quality of
the track proves that if was up to the general stranded of tramways of that character, the foundation
consisting on land of blocks or crosspieces of wood, by 8 inches thick and from 8 to 10 feet long laid, on
the surface of the ground, upon which at a right angle rested stringers of the same thickness, but from
24 to 30 feet in length. On the across the stringers the parallel with the blocks were the ties to which the
tracks were fastened. After the road reached the water's edge, the blocks or crosspieces were replaced
with pilling, capped by timbers extending from one side to the other. The tracks were each about 2 feet
wide and the two inside rails of the parallel tracks about 18 inches apart. It was admitted that there
were no side pieces or guards on the car; that where no ends of the rails of the track met each other and
also where the stringers joined, there were no fish plates. the defendant has not effectually overcome
the plaintiff's proof that the joints between the rails were immediately above the joints between the
underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the immediate occasion of
the accident, is not clear in the evidence, but is found by the trial court and is admitted in the briefs and
in the argument to have been the dislodging of the crosspiece or piling under the stringer by the water
of the bay raised by a recent typhoon. The superintendent of the company attributed it to the giving
way of the block laid in the sand. No effort was made to repair the injury at the time of the occurrence.
According to plaintiffs witnesses, a depression of the track, varying from one half inch to one inch and a
half, was therafter apparent to the eye, and a fellow workman of the plaintiff swears that the day before
the accident he called the attention of McKenna, the foreman, to it and asked by simply straightening
out the crosspiece, resetting the block under the stringer and renewing the tie, but otherwise leaving
the very same timbers as before. It has not proven that the company inspected the track after the
typhoon or had any proper system of inspection.

In order to charge the defendant with negligence, it was necessary to show a breach of duty on its part
in failing either to properly secure the load on iron to vehicles transporting it, or to skillfully build the
tramway or to maintain it in proper condition, or to vigilantly inspect and repair the roadway as soon as
the depression in it became visible. It is upon the failure of the defendant to repair the weakened track,
after notice of its condition, that the judge below based his judgment.

This case presents many important matters for our decision, and first among them is the standard of
duty which we shall establish in our jurisprudence on the part of employees toward employees.

The lack or the harshness of legal rules on this subject has led many countries to enact designed to put
these relations on a fair basis in the form of compensation or liability laws or the institution of
insurance. In the absence of special legislation we find no difficulty in so applying the general principles
of our law as to work out a just result.

Article 1092 of the Civil Code provides:

Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the Penal
Code.

And article 568 of the latter code provides:

He who shall execute through reckless negligence an act that if done with malice would constitute a
grave crime, shall be punished.

And article 590 provides that the following shall be punished:

4. Those who by simple imprudence or negligence, without committing any infraction of

regulations, shall cause an injury which, had malice intervened, would have constituted a crime or
misdemeanor.

And finally by articles 19 and 20, the liability of owners and employers for the faults of their servants
and representatives is declared to be civil and subsidiary in its character.

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

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil
Code makes obligations arising from faults or negligence not punished by the law, subject to the
provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:

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

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

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

xxx xxx xxx

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

xxx xxx xxx

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

As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not punished by the law " and falls under
civil rather than criminal jurisprudence. But the answer may be a broader one. We should be reluctant,
under any conditions, to adopt a forced construction of these scientific codes, such as is proposed by the
defendant, that would rob some of these articles of effect, would shut out litigants their will from the
civil courts, would make the assertion of their rights dependent upon the selection for prosecution of
the proper criminal offender, and render recovery doubtful by reason of the strict rules of proof
prevailing in criminal actions. Even if these articles had always stood alone, such a construction would
be unnecessary, but clear light is thrown upon their meaning by the provisions of the Law of Criminal
Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though n ever in actual force in these
Islands, was formerly given a suppletory or explanatory effect. Under article 111 of this law, both classes
of action, civil and criminal, might be prosecuted jointly or separately, but while the penal action was
pending the civil was suspended. According to article 112, the penal action once started, the civil
remedy should be sought therewith, unless it had been waived by the party injured or been expressly
reserved by him for civil proceedings for the future. If the civil action alone was prosecuted, arising out
of a crime that could be enforced by only on private complaint, the penal action thereunder should be
extinguished. These provisions are in harmony with those of articles 23 and 133 of our Penal Code on
the same subject.
An examination of this topic might be carried much further, but the citations of these articles suffices to
show that the civil liability was not intended to be merged in the criminal nor even to be suspended
thereby, except as expressly provided by law. Where an individual is civilly liable for a negligent act or
omission, it is not required that the inured party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in
respect of criminal actions against his employees only while they are process of prosecution, or in so far
as they determinate the existence of the criminal act from which liability arises, and his obligation under
the civil law and its enforcement in the civil courts is not barred thereby unless by election of the injured
person. Inasmuch as no criminal in question, the provisions of the Penal Code can not affect this action.
This construction renders it unnecessary to finally determine here whether this subsidiary civil liability in
penal actions survived the laws that fully regulated it or has been abrogated by the American civil and
criminal procedure now in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the briefs
before us to have arisen from the interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of offenses in articles 568 and 590 of the
Penal Code. It has been shown that the liability of an employer arising out of his relation to his employee
who is the offender is not to be regarded as derived from negligence punished by the law, within the
meaning of articles 1092 and 1093. More than this, however, it can not be said to fall within the class of
acts unpunished by the law, the consequences of which are regulated by articles 1902 and 1903 of the
Civil Code. The acts to which these articles are applicable are understood to be those and growing out of
preexisting duties of the parties to one another. But were relations already formed give rise to duties,
whether springing from contract or quasi contract, then breaches of those duties are subject to articles
1101, 1103, and 1104, of the same code. A typical application of the distinction may be found in the
consequences of a railway accident due to defective machinery supplied by the employer. His liability to
his employee would arise out of the contract of employment, that to the passengers out of the contract
for passage. while that to that injured bystander would originate in the negligent act itself. This
distinction is thus clearly set forth by Manresa in his commentary on article 1093.

We are with reference to such obligations, that culpa, or negligence, may be understood in two
difference senses; either as culpa, substantive and independent, which on account of its origin arises in
an obligation between two persons not formerly bound by any other obligation; or as an incident in the
performance of an obligation; or as already existed, which can not be presumed to exist without the
other, and which increases the liability arising from the already exiting obligation.

Of these two species of culpa the first one mentioned, existing by itself, may be also considered as a real
source of an independent obligation, and, as chapter 2, title 16 of this book of the code is devoted to it,
it is logical to presume that the reference contained in article 1093 is limited thereto and that it does not
extend to those provisions relating to the other species of culpa (negligence), the nature of which we
will discuss later. (Vol. 8, p. 29.)

And in his commentary on articles 1102 and 1104 he says that these two species of negligence may be
somewhat inexactly described as contractual and extra-contractual, the letter being the culpa aquiliana
of the Roman law and not entailing so strict an obligation as the former. This terminology is
unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No. 12),
and the principle stated is supported be decisions of the supreme court of Spain, among them those of
November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75 Jurisprudencia Civil, No.
182). The contract is one for hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No.
107.)

Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30, 1900,
throws uncertain light on the relation between master and workman. Moved by the quick industrial
development of their people, the courts of France early applied to the subject the principles common to
the law of both countries, which are lucidly discussed by the leading French commentators.

The original French theory, resting the responsibility of owners of industrial enterprises upon articles
1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and 1903 of the
Spanish Code, soon yielded to the principle that the true basis is the contractual obligation of the
employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)

Later the hardships resulting from special exemptions inserted in contracts for employment led to the
discovery of a third basis for liability in an article of he French Code making the possessor of any object
answerable for damage done by it while in his charge. Our law having no counterpart of this article,
applicable to every kind of object, we need consider neither the theory growing out of it nor that of
"professional risk" more recently imposed by express legislation, but rather adopting the interpretation
of our Civil Code above given, find a rule for this case in the contractual obligation. This contractual
obligation, implied from the relation and perhaps so inherent in its nature to be invariable by the
parties, binds the employer to provide safe appliances for the use of the employee, thus closely
corresponding to English and American Law. On these principles it was the duty of the defendant to
build and to maintain its track in reasonably sound condition, so as to protect its workingmen from
unnecessary danger. It is plain that in one respect or the other it failed in its duty, otherwise the
accident could not have occurred; consequently the negligence of the defendant is established.

Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his
employment and, as such, one assumed by him. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly inspect, it for the employee is not
presumed to have stipulated that the employer might neglect his legal duty. Nor may it be excused upon
the ground that the negligence leading to the accident was that of a fellow-servant of the injured man. It
is not apparent to us that the intervention of a third person can relieve the defendant from the
performance of its duty nor impose upon the plaintiff the consequences of an act or omission not his
own. Sua cuique culpa nocet. This doctrine, known as "the fellow-servant, rule," we are not disposed to
introduce into our jurisprudence. Adopted in England by Lord Abinger in the case of Prescott vs. Fowler
(3 Meeson & Welsby, 1) in 1837, it has since been effectually abrogated by "the Employers' Liability
Acts" and the "Compensation Law." The American States which applied it appear to be gradually getting
rid of it; for instance, the New York State legislature of 1906 did away with it in respect to railroad
companies, and had in hand a scheme for its total abolition. It has never found place in the civil law of
continental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804.
Also more recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)

The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28, 1841,
in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the plaintiff, contributing to the
accident, to what extent it existed in fact and what legal effect is to be given it. In two particulars is he
charged with carelessness:

First. That having noticed the depression in the track he continued his work; and

Second. That he walked on the ends of the ties at the side of the car instead of along the boards, either
before or behind it.

As to the first point, the depression in the track night indicate either a serious or a rival difficulty. There
is nothing in the evidence to show that the plaintiff did or could see the displaced timber underneath
the sleeper. The claim that he must have done so is a conclusion drawn from what is assumed to have
been a probable condition of things not before us, rather than a fair inference from the testimony.
While the method of construction may have been known to the men who had helped build the road, it
was otherwise with the plaintiff who had worked at this job less than two days. A man may easily walk
along a railway without perceiving a displacement of the underlying timbers. The foreman testified that
he knew the state of the track on the day of the accident and that it was then in good condition, and one
Danridge, a witness for the defendant, working on the same job, swore that he never noticed the
depression in the track and never saw any bad place in it. The sagging of the track this plaintiff did
perceive, but that was reported in his hearing to the foreman who neither promised nor refused to
repair it. His lack of caution in continuing at his work after noticing the slight depression of the rail was
not of so gross a nature as to constitute negligence, barring his recovery under the severe American
rule. On this point we accept the conclusion of the trial judge who found as facts that "the plaintiff did
not know the cause of the one rail being lower than then other" and "it does not appear in this case that
the plaintiff knew before the accident occurred that the stringers and rails joined in the same place."

Were we not disposed to agree with these findings they would, nevertheless, be binding upon us,
because not "plainly and manifestly against the weight of evidence," as those words of section 497,
paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the United States
in the De la Rama case (201 U. S., 303).

In respect of the second charge of negligence against the plaintiff, the judgment below is not so specific.
While the judge remarks that the evidence does not justify the finding that the car was pulled by means
of a rope attached to the front end or to the rails upon it, and further that the circumstances in evidence
make it clear that the persons necessary to operate the car could not walk upon the plank between the
rails and that, therefore, it was necessary for the employees moving it to get hold upon it as best they
could, there is no specific finding upon the instruction given by the defendant to its employees to walk
only upon the planks, nor upon the necessity of the plaintiff putting himself upon the ties at the side in
order to get hold upon the car. Therefore the findings of the judge below leave the conduct of the
plaintiff in walking along the side of the loaded car, upon the open ties, over the depressed track, free to
our inquiry.

While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this way,
but were expressly directed by the foreman to do so, both the officers of the company and three of the
workmen testify that there was a general prohibition frequently made known to all the gang against
walking by the side of the car, and the foreman swears that he repeated the prohibition before the
starting of this particular load. On this contradiction of proof we think that the preponderance is in favor
of the defendant's contention to the extent of the general order being made known to the workmen. If
so, the disobedience of the plaintiff in placing himself in danger contributed in some degree to the injury
as a proximate, although not as its primary cause. This conclusion presents sharply the question, What
effect is to be given such an act of contributory negligence? Does it defeat a recovery, according to the
American rule, or is it to be taken only in reduction of damages?

While a few of the American States have adopted to a greater or less extent the doctrine of comparative
negligence, allowing a recovery by a plaintiff whose own act contributed to his injury, provided his
negligence was slight as compared with that of the defendant, and some others have accepted the
theory of proportional damages, reducing the award to a plaintiff in proportion to his responsibility for
the accident, yet the overwhelming weight of adjudication establishes the principle in American
jurisprudence that any negligence, however slight, on the part of the person injured which is one of the
causes proximately contributing to his injury, bars his recovery. (English and American Encyclopedia of
law, Titles "Comparative Negligence" and Contributory Negligence.")

In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the United
States thus authoritatively states the present rule of law:

Although the defendant's' negligence may have been the primary cause of the injury complained of, yet
an action for such injury can not be maintained if the proximate and immediate cause of the injury can
be traced to the want of ordinary care and caution in the person injured; subject to this qualification,
which has grown up in recent years (having been first enunciated in Davies vs. Mann, 10 M. & W., 546)
that the contributory negligence of the party injured will not defeat the action if it be shown that the
defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of
the injured party's negligence.

There are may cases in the supreme court of Spain in which the defendant was exonerated, but when
analyzed they prove to have been decided either upon the point that he was not negligent or that the
negligence of the plaintiff was the immediate cause of the casualty or that the accident was due to casus
fortuitus. Of the first class in the decision of January 26, 1887 (38 Jurisprudencia Criminal, No. 70), in
which a railway employee, standing on a car, was thrown therefrom and killed by the shock following
the backing up of the engine. It was held that the management of the train and engine being in
conformity with proper rules of the company, showed no fault on its part.

Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of March,
1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th of June, 1888
(64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by the logs of the
defendant impelled against it by the Tajo River, was held due to a freshet as a fortuitous cause.

The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one, that the
defendant was not negligent, because expressly relieved by royal order from the common obligation
imposed by the police law of maintaining a guard at the road crossing; the other, because the act of the
deceased in driving over level ground with unobstructed view in front of a train running at speed, with
the engine whistle blowing was the determining cause of the accident. It is plain that the train was doing
nothing but what it had a right to do and that the only fault lay with the injured man. His negligence was
not contributory, it was sole, and was of such an efficient nature that without it no catastrophe could
have happened.
On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining
damages was not free from contributory negligence; for instance, the decision of the 14th of December,
1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building was held liable for not
furnishing protection to workmen engaged in hanging out flags, when the latter must have perceived
beforehand the danger attending the work.

None of those cases define the effect to be given the negligence of a plaintiff which contributed to his
injury as one of its causes, though not the principal one, and we are left to seek the theory of the civil
law in the practice of other countries.

In France in the case of Marquant, August 20, 1879, the cour de cassation held that the carelessness of
the victim did not civilly relieve the person without whose fault the accident could not have happened,
but that the contributory negligence of the injured man had the effect only of reducing the damages.
The same principle was applied in the case of Recullet, November 10, 1888. and that of Laugier of the
11th of November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like tenor are citations
in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title Responsibilite, 193, 198).

In the Canadian Province of Quebee, which has retained for the most part the French Civil Law, now
embodied in a code following the Code Napoleon, a practice in accord with that of France is laid down in
many cases collected in the annotations to article 1053 of the code edited by Beauchamps, 1904. One of
these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6, page 90, in which the
court of Kings bench, otherwise known as the court of appeals, the highest authority in the Dominion of
Canada on points of French law, held that contributory negligence did not exonerate the defendants
whose fault had been the immediate cause of the accident, but entitled him to a reduction of damages.
Other similar cases in the provincial courts have been overruled by appellate tribunals made up of
common law judges drawn from other provinces, who have preferred to impose uniformally throughout
the Dominion the English theory of contributory negligence. Such decisions throw no light upon the
doctrines of the civil law. Elsewhere we find this practice embodied in legislation; for instance, section 2
of article 2398 of the Code of Portugal reads as follows:

If in the case of damage there was fault or negligence on the part of the person injured or in the part of
some one else, the indemnification shall be reduced in the first case, and in the second case it shall be
appropriated in proportion to such fault or negligence as provided in paragraphs 1 and 2 of section
2372.

And in article 1304 of the Austrian Code provides that the victim who is partly changeable with the
accident shall stand his damages in proportion to his fault, but when that proportion is incapable of
ascertainment, he shall share the liability equally with the person principally responsible. The principle
of proportional damages appears to be also adopted in article 51 of the Swiss Code. Even in the United
States in admirality jurisdictions, whose principles are derived from the civil law, common fault in cases
of collision have been disposed of not on the ground of contradictor negligence, but on that of equal
loss, the fault of the one part being offset against that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)

The damage of both being added together and the sum equally divided, a decree is entered in favor of
the vessel sustaining the greater loss against the other for the excess of her damages over one-half of
the aggregate sum. (The Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code of
Commerce, article 827, makes each vessel for its own damage when both are the fault; this provision
restricted to a single class of the maritime accidents, falls for short of a recognition of the principle of
contributory negligence as understood in American Law, with which, indeed, it has little in common. This
is a plain from other articles of the same code; for instance, article 829, referring to articles 826, 827,
and 828, which provides: "In the cases above mentioned the civil action of the owner against the person
liable for the damage is reserved, as well as the criminal liability which may appear."

The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the
parties, appears to have grown out the original method of trial by jury, which rendered difficult a nice
balancing of responsibilities and which demanded an inflexible standard as a safeguard against too
ready symphaty for the injured. It was assumed that an exact measure of several concurring faults was
unattainable.

The reason why, in cases of mutual concurring negligence, neither party can maintain an action against
the other, is, not the wrong of the one is set off against the wrong of the other; it that the law can not
measure how much of the damage suffered is attributable to the plaintiff's own fault. If he were allowed
to recover, it might be that he would obtain from the other party compensation for hiss own
misconduct. (Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)

The parties being mutually in fault, there can be no appointment of damages. The law has no scales to
determine in such cases whose wrongdoing weighed most in the compound that occasioned the
mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)

Experience with jury trials in negligence cases has brought American courts to review to relax the vigor
of the rule by freely exercising the power of setting aside verdicts deemed excessive, through the device
of granting new trials, unless reduced damages are stipulated for, amounting to a partial revision of
damages by the courts. It appears to us that the control by the court of the subject matter may be
secured on a moral logical basis and its judgment adjusted with greater nicety to the merits of the
litigants through the practice of offsetting their respective responsibilities. In the civil law system the
desirable end is not deemed beyond the capacity of its tribunals.

Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress
and counter stress of novel schemers of legislation, we find the theory of damages laid down in the
judgment the most consistent with the history and the principals of our law in these Islands and with its
logical development.

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered
immediate causes of the accident. The test is simple. Distinction must be between the accident and the
injury, between the event itself, without which there could have been no accident, and those acts of the
victim not entering into it, independent of it, but contributing under review was the displacement of the
crosspiece or the failure to replace it. this produced the event giving occasion for damages — that is, the
shinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by
the side of the car did not contribute, although it was an element of the damage which came to himself.
Had the crosspiece been out of place wholly or partly thorough his act of omission of duty, the last
would have been one of the determining causes of the event or accident, for which he would have been
responsible. Where he contributes to the principal occurrence, as one of its determining factors, he can
not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may
recover the amount that the defendant responsible for the event should pay for such injury, less a sum
deemed a suitable equivalent for his own imprudence.

Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred by
the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct therefrom
2,500 pesos, the amount fairly attributable to his negligence, and direct judgment to be entered in favor
of the plaintiff for the resulting sum of 2,500 pesos, with cost of both instances, and ten days hereafter
let the case be remanded to the court below for proper action. So ordered.

Arellano, C.J. Torres and Mapa, JJ., concur.

Separate Opinions

WILLARD, J., dissenting:

The knowledge which the plaintiff had in regard to the condition of the track is indicated by his own
evidence. He testified, among other things, as follows:

Q. Now, describe the best you can the character of the track that ran from the place where you
loaded the irons from the barge up to the point where you unloaded them on the ground.

A. — Well, it was pretty bad character.

xxx xxx xxx

Q. And you were familiar with the track before that its construction?

A. Familiar with what?

Q. Well, you have described it here to the court.

A. Oh, yes; I knew the condition of the track.

Q. You knew its conditions as you have described it here at the time you were working around there?

A. Yes, sir.

xxx xxx xxx

Q. And while operating it from the side it was necessary for you to step from board to board on the
cross-ties which extended out over the stringers?

A. Yes, sir.

Q. And these were very of irregular shape, were they not?

A. They were in pretty bad condition.

xxx xxx xxx

Q. And it was not safe to walk along on the outside of these crosspieces?

A. It was safe if the car stayed on the track. We didn't try to hold the load on. We tried to hold the
car back, keep it from going too fast, because we knew the track was in bad condition just here, and
going down too fast we could be liable to run off most any time.

Q. You knew the track was in bad condition when you got hold?

A. Sure, it was in bad condition.

xxx xxx xxx

Q. And the accident took place at that point where you believed it to be so dangerous?

A. Yes, sir.

Q. But you knew it was dangerous?

A. Why certainly, anybody could see it; but a workingman had to work in those days or get arrested
for a vag here in Manila.

The court below, while it found that the plaintiff knew in a general way of the bad condition of the track,
found that he was not informed of the exact cause of the accident, namely, the washing away of the
large crosspiece laid upon the ground or placed upon the posts as the foundation upon which the
stripers rested. This finding of fact to my mind is plainly and manifestly against the weight of the
evidence. Ellis, a witness for the plaintiff, testified that on the morning of the accident he called the
attention of McKenna, the foreman, to the defective condition of the track at his precise point where
the accident happened. His testimony in part is as follows:

A. I called Mr. McKenna. I showed him the track and told him I didn't think it was safe working, and
that if he didn't fix it he was liable to have an accident; I told him I thought if he put fish plates on it
would it. He said, you keep on fishing around here for fish plates and you will be fishing for another job
the first thing you know." He says, "You see to much."

xxx xxx xxx

Q. Who else was present at the time you had this conversation with Mr. McKenna?

A. Well, at that conversation as far as I can remember, we were all walking down the track and I
know that McCoy and Mr. Blakes was along at the time. I remember them two, but we were all walking
down the track in a bunch, but I disremember them.

xxx xxx xxx

Q. Was that the exact language that you used, that you wanted some fish plates put on?
A. No, sir: I told him to look at that track. I says get some fish plates. I says if there was any fish plates
we would fix that.

Q. What did the fish plates have to do with that?

A. It would have strengthened that joint.

Q. Why didn't you put the 8 by 8 which was washed crossways in place?

A. That would have been taken the raising of the track and digging out along this upright piece and then
putting it up again.

The plaintiff himself testified that he was present with Ellis at the time this conversation was had with
McKenna. It thus appears that on the morning in question the plaintiff and McKenna were standing
directly over the place where the accident happened later in the day. The accident was caused, as the
court below found, by the washing away or displacement of the large 8 by 8 piece of timber. This track
was constructed as all other tracks are, all of it open work, with no floor over the ties, and of course see
the ground and the entire construction of the road, including these large 8 by 8 pieces, the long stringers
placed thereon, the ties placed on these stringers, and the rails placed on the ties. The plaintiff himself
must have seen that the 8 by 8 piece of timber was out of place.

If the testimony of the plaintiff's witnesses is to be believed, the displacement was more markedly
apparent even than it would appear from the testimony of the defendant's witnesses. According to the
plaintiff's witnesses, the water at high tide reached the place in question and these 8 by 8 pieces were
therefore not laid upon the ground but were placed upon posts driven into the ground, the height of the
posts at this particular place being, according to the testimony of the plaintiff's witnesses, from a foot to
two feet and a half. As has been said, Ellis testified that the reason why they did not put the 8 by 8 back
in its place was because that would have required the raising up of the track and digging out along this
upright piece and then putting it up again.

It conclusively appears from the evidence that the plaintiff, before the accident happened, knew the
exact condition of the track and was informed and knew of the defect which caused the accident. There
was no promise on the part of McKenna to repair the track.

Under the circumstances the plaintiff was negligent in placing himself on the side of the car where he
knew that he would be injured by the falling of the rails from the car when they reached this point in the
track where the two stringers were without any support of their ends. He either should have refused to
work at all or he should have placed himself behind the car, on the other side of it, or in front of it,
drawing it with a rope. He was guilty of contributory negligence and is not entitled to recover.

It is, said however, that contributory negligence on the part of the plaintiff in a case like this is no
defense under the law in force in these Islands. To this proposition I can not agree. The liability of the
defendant is based in the majority opinion upon articles 1101 and 1103 of the Civil Code.

In order to impose such liability upon the defendant, it must appear that its negligence caused the
accident. The reason why contradictory negligence on the part of the plaintiff is a defense in this class of
cases is that the negligence of the defendant did not alone cause the accident. If nothing but that
negligence had existed, the accident would not have happened and, as I understand it, in every case in
which contradictory negligence is a defense it is made so because the negligence of the plaintiff is the
cause of the accident, to this extent, that if the plaintiff had not been negligent the accident would not
have happened, although the defendant was also negligent. In other words, the negligence of the
defendant is not alone sufficient to cause the accident. It requires also the negligence of the plaintiff.

There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The rule of the
Roman law was: "Quod quis ex culap sua damnum sentit, no intelligitur damnum sentire." (Digest, book,
50, tit. 17, rule 203.)

The partidas contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his own fault, and
that he can not demand reparation therefor from another. (Law 25, tit. 5, partida 3.)

And they even said that when a man received an injury through his own acts, the grievance should be
against himself and not against another. (Law 2, tit. 7, partida 2.)

In several cases in the supreme court of Spain the fact has been negligence that the plaintiff was himself
guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th of February, 1887,
and in the criminal judgments of the 20th of February 1888, the 90th of March, 1876, and the 6th of
October, 1882. These cases do not throw much light upon the subject. The judgment of the 7th of
March, 1902 (93 Jurisprudencia Civil, 391), is, however, directly in point. In that case the supreme court
of Spain said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of
obligation when between such negligence and the injury thereby caused there exists the relation of
cause and effect; but in the injury caused should not be the result of acts or omissions of a third party,
the latter has no obligation to repair the same, even though such acts or omissions were imprudent or
unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of
the injured person party himself.

Found the reasons above stated, and the court below having found that the death of the deceased was
due to his own imprudence, and not therefore due to the absence of a guard at the grade crossing
where the accident occurred, it seems clear that court in acquitting the railroad company of the
complaint filed by the widow did not violate the provisions of the aforesaid article of the Civil Code.

For the same reason, although the authority granted to the railroad company to open the grade crossing
without a special guard was nullified by the subsequent promulgation of the railroad police law and the
regulations for the execution of the same, the result would be identical, leaving one of the grounds upon
which the judgment of acquittal is based, to wit, that the accident was caused by the imprudence of the
injured party himself, unaffected.

It appears that the accident in this case took place at a grade crossing where, according to the claim of
the plaintiff, it was the duty of the railroad company to maintain husband was injured by a train at this
crossing, his negligence contributing to the injury according to the ruling of the court below. This
judgment, then, amounts to a holding that a contributory negligence is a defense according to the law of
Spain. (See also judgment of the 21st of October, 1903, vol. 96 p. 400, Jurisprudencia Civil.)
Although in the Civil Code there is no express provision upon the subject, in the Code of Commerce
there is found a distinct declaration upon it in reference to damages caused by collission at sea. Article
827 of the Code of Commerce is as follows:

If both vessels may be blamed for the collission, each one shall for liable for his own damages, and both
shall jointly responsible for the loss and damages suffered to their cargoes.

That article is an express recognition of the fact that in collision cases contributory negligence is a
defense,

I do not think that this court is justified in view of the Roman law, of the provisions of the Partidas, of
the judgment of March 7, 1902, of article 827 of the Code of Commerce, and in the absence of any
declaration upon the subject in the Civil Code, in saying that it was the intention rule announced in the
majority opinion, a rule dimetrically opposed to that put in force by the Code of Commerce.

The chief, is not the only, reason stated in the opinion for adopting the rule that contradictory
negligence is not a defense seems to be that such is the holding of the later French decisions.

As to whether, if any liability existed in this case, it would be necessary in accordance with the provisions
of the Penal Code, or primary, in accordance with the provision of the Civil Code, I express no opinion.

The judgment should, I think, be reversed and the defendant acquitted of the complaint.

Africa vs Caltex

This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed
that of the Court of First Instance of Manila dismissing petitioners' second amended complaint against
respondents.

The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the
afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo
street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank truck into the
underground storage, right at the opening of the receiving tank where the nozzle of the hose was
inserted. The fire spread to and burned several neighboring houses, including the personal properties
and effects inside them. Their owners, among them petitioners here, sued respondents Caltex (Phil.),
Inc. and Mateo Boquiren, the first as alleged owner of the station and the second as its agent in charge
of operation. Negligence on the part of both of them was attributed as the cause of the fire.

The trial court and the Court of Appeals found that petitioners failed to prove negligence and that
respondents had exercised due care in the premises and with respect to the supervision of their
employees.

The first question before Us refers to the admissibility of certain reports on the fire prepared by the
Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the
Philippines. Portions of the first two reports are as follows:
1. Police Department report: —

Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was transferring
gasoline from a tank truck, plate No. T-5292 into the underground tank of the Caltex Gasoline Station
located at the corner of Rizal Avenue and Antipolo Street, this City, an unknown Filipino lighted a
cigarette and threw the burning match stick near the main valve of the said underground tank. Due to
the gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores in pulling off the gasoline hose
connecting the truck with the underground tank prevented a terrific explosion. However, the flames
scattered due to the hose from which the gasoline was spouting. It burned the truck and the following
accessorias and residences.

2. The Fire Department report: —

In connection with their allegation that the premises was (sic) subleased for the installation of a coca-
cola and cigarette stand, the complainants furnished this Office a copy of a photograph taken during the
fire and which is submitted herewith. it appears in this picture that there are in the premises a coca-cola
cooler and a rack which according to information gathered in the neighborhood contained cigarettes
and matches, installed between the gasoline pumps and the underground tanks.

The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the
history of the gasoline station and what the chief of the fire department had told him on the same
subject.

The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were admitted
by the trial court without objection on the part of respondents; secondly, that with respect to the police
report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly "for Salvador Capacillo,"
the latter was presented as witness but respondents waived their right to cross-examine him although
they had the opportunity to do so; and thirdly, that in any event the said reports are admissible as an
exception to the hearsay rule under section 35 of Rule 123, now Rule 130.

The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953
(pp. 167-170) shows that the reports in question, when offered as evidence, were objected to by
counsel for each of respondents on the ground that they were hearsay and that they were "irrelevant,
immaterial and impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were
admitted without objection; the admission of the others, including the disputed ones, carried no such
explanation.

On the second point, although Detective Capacillo did take the witness stand, he was not examined and
he did not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he
said was that he was one of those who investigated "the location of the fire and, if possible, gather
witnesses as to the occurrence, and that he brought the report with him. There was nothing, therefore,
on which he need be cross-examined; and the contents of the report, as to which he did not testify, did
not thereby become competent evidence. And even if he had testified, his testimony would still have
been objectionable as far as information gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial
evidence on their contents, fall within the scope of section 35, Rule 123, which provides that "entries in
official records made in the performance of his duty by a public officer of the Philippines, or by a person
in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein
stated."

There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made
by a public officer, or by another person specially enjoined by law to do so; (b) that it was made by the
public officer in the performance of his duties, or by such other person in the performance of a duty
specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the
facts by him stated, which must have been acquired by him personally or through official information
(Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).

Of the three requisites just stated, only the last need be considered here. Obviously the material facts
recited in the reports as to the cause and circumstances of the fire were not within the personal
knowledge of the officers who conducted the investigation. Was knowledge of such facts, however,
acquired by them through official information? As to some facts the sources thereof are not even
identified. Others are attributed to Leopoldo Medina, referred to as an employee at the gas station were
the fire occurred; to Leandro Flores, driver of the tank truck from which gasoline was being transferred
at the time to the underground tank of the station; and to respondent Mateo Boquiren, who could not,
according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their statements as
"official information" acquired by the officers who prepared the reports, the persons who made the
statements not only must have personal knowledge of the facts stated but must have the duty to give
such statements for record.1

The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were
not acquired by the reporting officers through official information, not having been given by the
informants pursuant to any duty to do so.

The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of
res ipsa loquitur should apply so as to presume negligence on the part of appellees. Both the trial court
and the appellate court refused to apply the doctrine in the instant case on the grounds that "as to (its)
applicability ... in the Philippines, there seems to he nothing definite," and that while the rules do not
prohibit its adoption in appropriate cases, "in the case at bar, however, we find no practical use for such
doctrine." The question deserves more than such summary dismissal. The doctrine has actually been
applied in this jurisdiction, in the case of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No.
3240-R, September 20, 1949), wherein the decision of the Court of Appeals was penned by Mr. Justice
J.B.L. Reyes now a member of the Supreme Court.

The facts of that case are stated in the decision as follows:

In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass
between the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and
without any wind blowing, an electric transmission wire, installed and maintained by the defendant
Philippine Power and Development Co., Inc. alongside the road, suddenly parted, and one of the broken
ends hit the head of the plaintiff as he was about to board the truck. As a result, plaintiff received the
full shock of 4,400 volts carried by the wire and was knocked unconscious to the ground. The electric
charge coursed through his body and caused extensive and serious multiple burns from skull to legs,
leaving the bone exposed in some parts and causing intense pain and wounds that were not completely
healed when the case was tried on June 18, 1947, over one year after the mishap.

The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific
act of negligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur.
The court said:

The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense.
While it is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa
aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was
the negligence of the defendant, it is also a recognized principal that "where the thing which caused
injury, without fault of the injured person, is under the exclusive control of the defendant and the injury
is such as in the ordinary course of things does not occur if he having such control use proper care, it
affords reasonable evidence, in the absence of the explanation, that the injury arose from defendant's
want of care."

And the burden of evidence is shifted to him to establish that he has observed due care and diligence.
(San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name of
res ipsa loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at bar, where
it is unquestioned that the plaintiff had every right to be on the highway, and the electric wire was
under the sole control of defendant company. In the ordinary course of events, electric wires do not
part suddenly in fair weather and injure people, unless they are subjected to unusual strain and stress or
there are defects in their installation, maintenance and supervision; just as barrels do not ordinarily roll
out of the warehouse windows to injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H
& Co. 722; 159 Eng. Reprint 299, the leading case that established that rule). Consequently, in the
absence of contributory negligence (which is admittedly not present), the fact that the wire snapped
suffices to raise a reasonable presumption of negligence in its installation, care and maintenance.
Thereafter, as observed by Chief Baron Pollock, "if there are any facts inconsistent with negligence, it is
for the defendant to prove."

It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the
Supreme Court, but we do not consider this a reason for not applying the particular doctrine of res ipsa
loquitur in the case at bar. Gasoline is a highly combustible material, in the storage and sale of which
extreme care must be taken. On the other hand, fire is not considered a fortuitous event, as it arises
almost invariably from some act of man. A case strikingly similar to the one before Us is Jones vs. Shell
Petroleum Corporation, et al., 171 So. 447:

Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to
the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of the
lease, while gasoline was being transferred from the tank wagon, also operated by the Shell Petroleum
Corporation, to the underground tank of the station, a fire started with resulting damages to the
building owned by Jones. Alleging that the damages to his building amounted to $516.95, Jones sued the
Shell Petroleum Corporation for the recovery of that amount. The judge of the district court, after
hearing the testimony, concluded that plaintiff was entitled to a recovery and rendered judgment in his
favor for $427.82. The Court of Appeals for the First Circuit reversed this judgment, on the ground the
testimony failed to show with reasonable certainty any negligence on the part of the Shell Petroleum
Corporation or any of its agents or employees. Plaintiff applied to this Court for a Writ of Review which
was granted, and the case is now before us for decision.1äwphï1.ñët
In resolving the issue of negligence, the Supreme Court of Louisiana held:

Plaintiff's petition contains two distinct charges of negligence — one relating to the cause of the fire and
the other relating to the spreading of the gasoline about the filling station.

Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were
placed on the stand by the defendant.

Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the
record that the filling station and the tank truck were under the control of the defendant and operated
by its agents or employees. We further find from the uncontradicted testimony of plaintiff's witnesses
that fire started in the underground tank attached to the filling station while it was being filled from the
tank truck and while both the tank and the truck were in charge of and being operated by the agents or
employees of the defendant, extended to the hose and tank truck, and was communicated from the
burning hose, tank truck, and escaping gasoline to the building owned by the plaintiff.

Predicated on these circumstances and the further circumstance of defendant's failure to explain the
cause of the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res
ipsa loquitur. There are many cases in which the doctrine may be successfully invoked and this, we
think, is one of them.

Where the thing which caused the injury complained of is shown to be under the management of
defendant or his servants and the accident is such as in the ordinary course of things does not happen if
those who have its management or control use proper care, it affords reasonable evidence, in absence
of explanation by defendant, that the accident arose from want of care. (45 C.J. #768, p. 1193).

This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of
last resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the
following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111
La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So.
892; Bents v. Page, 115 La. 560, 39 So. 599.

The principle enunciated in the aforequoted case applies with equal force here. The gasoline station,
with all its appliances, equipment and employees, was under the control of appellees. A fire occurred
therein and spread to and burned the neighboring houses. The persons who knew or could have known
how the fire started were appellees and their employees, but they gave no explanation thereof
whatsoever. It is a fair and reasonable inference that the incident happened because of want of care.

In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa)
the following appears:

Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a
lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is
within a very busy business district near the Obrero Market, a railroad crossing and very thickly
populated neighborhood where a great number of people mill around t

until
gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration.

Furthermore, aside from precautions already taken by its operator the concrete walls south and west
adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from
leaping over it in case of fire.

Records show that there have been two cases of fire which caused not only material damages but
desperation and also panic in the neighborhood.

Although the soft drinks stand had been eliminated, this gasoline service station is also used by its
operator as a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another risk
to the possible outbreak of fire at this already small but crowded gasoline station.

The foregoing report, having been submitted by a police officer in the performance of his duties on the
basis of his own personal observation of the facts reported, may properly be considered as an exception
to the hearsay rule. These facts, descriptive of the location and objective circumstances surrounding the
operation of the gasoline station in question, strengthen the presumption of negligence under the
doctrine of res ipsa loquitur, since on their face they called for more stringent measures of caution than
those which would satisfy the standard of due diligence under ordinary circumstances. There is no more
eloquent demonstration of this than the statement of Leandro Flores before the police investigator.
Flores was the driver of the gasoline tank wagon who, alone and without assistance, was transferring
the contents thereof into the underground storage when the fire broke out. He said: "Before loading the
underground tank there were no people, but while the loading was going on, there were people who
went to drink coca-cola (at the coca-cola stand) which is about a meter from the hole leading to the
underground tank." He added that when the tank was almost filled he went to the tank truck to close
the valve, and while he had his back turned to the "manhole" he, heard someone shout "fire."

Even then the fire possibly would not have spread to the neighboring houses were it not for another
negligent omission on the part of defendants, namely, their failure to provide a concrete wall high
enough to prevent the flames from leaping over it. As it was the concrete wall was only 2-1/2 meters
high, and beyond that height it consisted merely of galvanized iron sheets, which would predictably
crumple and melt when subjected to intense heat. Defendants' negligence, therefore, was not only with
respect to the cause of the fire but also with respect to the spread thereof to the neighboring houses.

There is an admission on the part of Boquiren in his amended answer to the second amended complaint
that "the fire was caused through the acts of a stranger who, without authority, or permission of
answering defendant, passed through the gasoline station and negligently threw a lighted match in the
premises." No evidence on this point was adduced, but assuming the allegation to be true — certainly
any unfavorable inference from the admission may be taken against Boquiren — it does not extenuate
his negligence. A decision of the Supreme Court of Texas, upon facts analogous to those of the present
case, states the rule which we find acceptable here. "It is the rule that those who distribute a dangerous
article or agent, owe a degree of protection to the public proportionate to and commensurate with a
danger involved ... we think it is the generally accepted rule as applied to torts that 'if the effects of the
actor's negligent conduct actively and continuously operate to bring about harm to another, the fact
that the active and substantially simultaneous operation of the effects of a third person's innocent,
tortious or criminal act is also a substantial factor in bringing about the harm, does not protect the actor
from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The
intention of an unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer from
consequences of negligence, if such negligence directly and proximately cooperates with the
independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd
442.)

The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue
depends on whether Boquiren was an independent contractor, as held by the Court of Appeals, or an
agent of Caltex. This question, in the light of the facts not controverted, is one of law and hence may be
passed upon by this Court. These facts are: (1) Boquiren made an admission that he was an agent of
Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the equipment therein; (3)
Caltex exercised control over Boquiren in the management of the state; (4) the delivery truck used in
delivering gasoline to the station had the name of CALTEX painted on it; and (5) the license to store
gasoline at the station was in the name of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-
Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).

In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his
drivers to remove gasoline from the truck into the tank and alleged that the "alleged driver, if one there
was, was not in his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of
the gasoline station." It is true that Boquiren later on amended his answer, and that among the changes
was one to the effect that he was not acting as agent of Caltex. But then again, in his motion to dismiss
appellants' second amended complaint the ground alleged was that it stated no cause of action since
under the allegations thereof he was merely acting as agent of Caltex, such that he could not have
incurred personal liability. A motion to dismiss on this ground is deemed to be an admission of the facts
alleged in the complaint.

Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the
business conducted at the service station in question was owned and operated by Boquiren. But Caltex
did not present any contract with Boquiren that would reveal the nature of their relationship at the time
of the fire. There must have been one in existence at that time. Instead, what was presented was a
license agreement manifestly tailored for purposes of this case, since it was entered into shortly before
the expiration of the one-year period it was intended to operate. This so-called license agreement
(Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as of January 1, 1948 so as to
cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite significant, and
gives rise to the conclusion that it was designed precisely to free Caltex from any responsibility with
respect to the fire, as shown by the clause that Caltex "shall not be liable for any injury to person or
property while in the property herein licensed, it being understood and agreed that LICENSEE (Boquiren)
is not an employee, representative or agent of LICENSOR (Caltex)."

But even if the license agreement were to govern, Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the
use of the premises and all the equipment therein. He could sell only Caltex Products. Maintenance of
the station and its equipment was subject to the approval, in other words control, of Caltex. Boquiren
could not assign or transfer his rights as licensee without the consent of Caltex. The license agreement
was supposed to be from January 1, 1948 to December 31, 1948, and thereafter until terminated by
Caltex upon two days prior written notice. Caltex could at any time cancel and terminate the agreement
in case Boquiren ceased to sell Caltex products, or did not conduct the business with due diligence, in
the judgment of Caltex. Termination of the contract was therefore a right granted only to Caltex but not
to Boquiren. These provisions of the contract show the extent of the control of Caltex over Boquiren.
The control was such that the latter was virtually an employee of the former.

Taking into consideration the fact that the operator owed his position to the company and the latter
could remove him or terminate his services at will; that the service station belonged to the company and
bore its tradename and the operator sold only the products of the company; that the equipment used
by the operator belonged to the company and were just loaned to the operator and the company took
charge of their repair and maintenance; that an employee of the company supervised the operator and
conducted periodic inspection of the company's gasoline and service station; that the price of the
products sold by the operator was fixed by the company and not by the operator; and that the receipts
signed by the operator indicated that he was a mere agent, the finding of the Court of Appeals that the
operator was an agent of the company and not an independent contractor should not be disturbed.

To determine the nature of a contract courts do not have or are not bound to rely upon the name or
title given it by the contracting parties, should thereby a controversy as to what they really had intended
to enter into, but the way the contracting parties do or perform their respective obligations stipulated
or agreed upon may be shown and inquired into, and should such performance conflict with the name
or title given the contract by the parties, the former must prevail over the latter. (Shell Company of the
Philippines, Ltd. vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil. 757).

The written contract was apparently drawn for the purpose of creating the apparent relationship of
employer and independent contractor, and of avoiding liability for the negligence of the employees
about the station; but the company was not satisfied to allow such relationship to exist. The evidence
shows that it immediately assumed control, and proceeded to direct the method by which the work
contracted for should be performed. By reserving the right to terminate the contract at will, it retained
the means of compelling submission to its orders. Having elected to assume control and to direct the
means and methods by which the work has to be performed, it must be held liable for the negligence of
those performing service under its direction. We think the evidence was sufficient to sustain the verdict
of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).

Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices
were presented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales
contract to prove the same.

As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of
P2,000.00 collected by them on the insurance of the house. The deduction is now challenged as
erroneous on the ground that Article 2207 of the New Civil Code, which provides for the subrogation of
the insurer to the rights of the insured, was not yet in effect when the loss took place. However,
regardless of the silence of the law on this point at that time, the amount that should be recovered be
measured by the damages actually suffered, otherwise the principle prohibiting unjust enrichment
would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the lower
court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property was worth P4,000.00. We agree that the court
erred, since it is of common knowledge that the assessment for taxation purposes is not an accurate
gauge of fair market value, and in this case should not prevail over positive evidence of such value. The
heirs of Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily
to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively,
with interest from the filing of the complaint, and costs.

McKee vs IAC

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R. CV
Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated 29 November
1983 reversing the Decision of the trial court which dismissed petitioners' complaints in Civil Case No.
4477 and Civil Case No. 4478 of the then Court of First Instance (now Regional Trial Court) of Pampanga
entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh
Turla vs. Jaime Tayag and Rosalinda Manalo," and "George McKee and Araceli Koh McKee vs. Jaime
Tayag and Rosalinda Manalo," respectively, and granted the private respondents' counterclaim for
moral damages, attorney's fees and litigation expenses.

The said civil cases for damages based on quasi-delict were filed as a result of a vehicular accident which
led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical injuries to George
Koh McKee, Christopher Koh McKee and petitioner Araceli Koh McKee.

Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee and the
deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner Carmen Dayrit Koh
and her co-petitioners in G.R. No. 68103, who are the wife and children, respectively, of the late Jose
Koh, were the plaintiffs in Civil Case No. 4477. Upon the other hand, private respondents are the owners
of the cargo truck which figured in the mishap; a certain Ruben Galang was the driver of the truck at the
time of the accident.

The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along MacArthur
Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took place between
an International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76 owned by private
respondents, and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850 Pampanga '76
driven by Jose Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc,
and physical injuries to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all
passengers of the Ford Escort.

Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher and
Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year old Kim. At
the time of the collision, Kim was seated on the lap of Loida Bondoc who was at the front passenger's
seat of the car while Araceli and her two (2) sons were seated at the car's back seat.

Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of
rice weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando
Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles
City from San Fernando. When the northbound car was about (10) meters away from the southern
approach of the bridge, two (2) boys suddenly darted from the right side of the road and into the lane of
the car. The boys were moving back and forth, unsure of whether to cross all the way to the other side
or turn back. Jose Koh blew the horn of the car, swerved to the left and entered the lane of the truck; he
then switched on the headlights of the car, applied the brakes and thereafter attempted to return to his
lane. Before he could do so, his car collided with the truck. The collision occurred in the lane of the
truck, which was the opposite lane, on the said bridge.

The incident was immediately reported to the police station in Angeles City; consequently, a team of
police officers was forthwith dispatched to conduct an on the spot investigation. In the sketch 1
prepared by the investigating officers, the bridge is described to be sixty (60) "footsteps" long and
fourteen (14) "footsteps" wide — seven (7) "footsteps" from the center line to the inner edge of the side
walk on both sides. 2 Pulong Pulo Bridge, which spans a dry brook, is made of concrete with soft
shoulders and concrete railings on both sides about three (3) feet high.

The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two (2)
"footsteps" from the edge of the right sidewalk, while its left front portion was touching the center line
of the bridge, with the smashed front side of the car resting on its front bumper. The truck was about
sixteen (16) "footsteps" away from the northern end of the bridge while the car was about thirty-six (36)
"footsteps" from the opposite end. Skid marks produced by the right front tire of the truck measured
nine (9) "footsteps", while skid marks produced by the left front tire measured five (5) "footsteps." The
two (2) rear tires of the truck, however, produced no skid marks.

In his statement to the investigating police officers immediately after the accident, Galang admitted that
he was traveling at thirty (30) miles (48 kilometers) per hour.

As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on 31
January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch III and
Branch V of the said court, respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the
award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as moral damages, P60,000.00
as exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for burial expenses, P3,650.00 for
the burial lot and P9,500.00 for the tomb, plus attorney's fees. 3 In the second case, petitioners in G.R.
No. 68102 prayed for the following: (a) in connection with the death of Kim McKee, the sum of
P12,000.00 as death benefit, P3,150.00 for funeral services, P3,650.00 for the cemetery lot, P3,000.00
for the tomb, P50,000.00 as moral damages, P10,000.00 as exemplary damages and P2,000.00 as
miscellaneous damages; (b) in the case of Araceli Koh McKee, in connection with the serious physical
injuries suffered, the sum of P100,000.00 as moral damages, P20,000.00 as exemplary damages,
P12,000.00 for loss of earnings, P5,000.00 for the hospitalization expenses up to the date of the filing of
the complaint; and (c) with respect to George McKee, Jr., in connection with the serious physical injuries
suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages and the following
medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable to the St. Francis Medical
Center, P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous expenses amounting to
P5,000.00. They also sought an award of attorney's fees amounting to 25% of the total award plus
traveling and hotel expenses, with costs. 4

On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence
Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the
trial court. It was docketed as Criminal Case No. 3751 and was raffled to Branch V of the court, the same
Branch where Civil Case No. 4478 was assigned. 5
In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it was the
Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang and, as
counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated
damages, P100,000.00 as moral damages and P30,000.00 as business losses. 6 In Civil Case No. 4478,
private respondents first filed a motion to dismiss on grounds of pendency of another action (Civil Case
No. 4477) and failure to implead an indispensable party, Ruben Galang, the truck driver; they also filed a
motion to consolidate the case with Civil Case No. 4477 pending before Branch III of the same court,
which was opposed by the plaintiffs. 7 Both motions were denied by Branch V, then presided over by
Judge Ignacio Capulong. Thereupon, private respondents filed their Answer with Counter-claim 8
wherein they alleged that Jose Koh was the person "at fault having approached the lane of the truck
driven by Ruben Galang, . . . which was on the right lane going towards Manila and at a moderate speed
observing all traffic rules and regulations applicable under the circumstances then prevailing;" in their
counterclaim, they prayed for an award of damages as may be determined by the court after due
hearing, and the sums of P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation.

Petitioners filed their Answers to the Counterclaims in both cases.

To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion to
adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which private
respondents opposed and which the court denied. 9 Petitioners subsequently moved to reconsider the
order denying the motion for consolidation, 10 which Judge Capulong granted in the Order of 5
September 1978; he then directed that Civil Case No. 4478 be consolidated with Civil Case No. 4477 in
Branch III of the court then presided over by Judge Mario Castañeda, Jr.

Left then with Branch V of the trial court was Criminal Case No. 3751.

In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuñag, Col. Robert
Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and offered several
documentary exhibits. Upon the other hand, private respondents presented as witnesses Ruben Galang,
Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12

In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc.
Fernando Nuñag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc.
Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco,
and offered several documentary exhibits. 13 Upon the other hand, the defense presented the accused
Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered documentary exhibits.
14

On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the
aforesaid criminal case. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben Galang
guilty beyond reasonable doubt of the crime charged in the information and after applying the
provisions of Article 365 of the Revised Penal Code and indeterminate sentence law, this Court, imposes
upon said accused Ruben Galang the penalty of six (6) months of arresto mayor as minimum to two (2)
years, four (4) months and one (1) day of prision correccional as maximum; the accused is further
sentenced to pay and indemnify the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for
her death; to reimburse the heirs of Loida Bondoc the amount of P2,000.00 representing the funeral
expenses; to pay the heirs of Loida Bondoc the amount of P20,000.00 representing her loss of income;
to indemnify and pay the heirs of the deceased Jose Koh the value of the car in the amount of
P53,910.95, and to pay the costs. 15

The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for
petitioners filed with Branch III of the court — where the two (2) civil cases were pending — a
manifestation to that effect and attached thereto a copy of the decision. 16

Upon the other hand, Judge Mario Castañeda, Jr. dismissed the two (2) civil cases on 12 November 1980
and awarded the private respondents moral damages, exemplary damages and attorney's fees. 17 The
dispositive portion of the said decision reads as follows:

WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and against the
plaintiffs, these cases are hereby ordered DISMISSED with costs against the plaintiffs. The defendants
had proven their counter-claim, thru evidences (sic) presented and unrebutted. Hence, they are hereby
awarded moral and exemplary damages in the amount of P100,000.00 plus attorney's fee of P15,000.00
and litigation expenses for (sic) P2,000.00. The actual damages claimed for (sic) by the defendants is (sic)
hereby dismissing for lack of proof to that effect (sic). 18

A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was
received on 2 December 1980. 19

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal was
docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs in Civil
Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to the appellate
court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No. 69040-R, respectively, and
were assigned to the Fourth Civil Cases Division.

On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-CR
affirming the conviction of Galang. 21 The dispositive portion of the decision reads:

DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang kabuuan. Ang
naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol.

A motion for reconsideration of the decision was denied by the respondent Court in its Kapasiyahan
promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this Court; said
petition was subsequently denied. A motion for its reconsideration was denied with finality in the
Resolution of 20 April 1983. 24

On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court,
promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive portion
of which reads:

WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is rendered,
ordering defendants-appellees to pay plaintiffs-appellants as follows:

For the death of Jose Koh:

P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)

For the death of Kim Koh McKee:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)

For the physical injuries suffered by George Koh McKee:

P 25,000.00 as moral damages

P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)

For the physical injuries suffered by Araceli Koh McKee:

P 25,000.00 as moral damages

P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muñoz Clinic (Exh. MM)

For the physical injuries suffered by Christopher Koh McKee:

P 10,000.00 as moral damages

P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another P10,000.00; as
counsel (sic) fees in Civil Case No. 4478.

No pronouncement as to costs.

SO ORDERED. 26

The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's
inattentiveness or reckless imprudence which caused the accident. The appellate court further said that
the law presumes negligence on the part of the defendants (private respondents), as employers of
Galang, in the selection and supervision of the latter; it was further asserted that these defendants did
not allege in their Answers the defense of having exercised the diligence of a good father of a family in
selecting and supervising the said employee.27 This conclusion of reckless imprudence is based on the
following findings of fact:

In the face of these diametrically opposed judicial positions, the determinative issue in this appeal is
posited in the fourth assigned error as follows:

IV

THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS TRUCK BLEW HIS
HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.

Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right
side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the
two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2)
boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to give
us the right of way to come back to our right lane.

Q Did the truck slow down?

A No, sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic)
coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. (tsn,
pp. 5-6, July 22, 1977); or (Exhibit "O" in these Civil Cases).

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not
reduce its speed before the actual impact of collision (sic) as you narrated in this Exhibit "1," how did
you know (sic)?

A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right
lane on side (sic) of the highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these Civil Cases)
(pp. 30-31, Appellants' Brief).

Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and
circumstances:

1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck stopped only
when it had already collided with the car:
xxx xxx xxx

Tanhueco repeated the same testimony during the hearing in the criminal case:

xxx xxx xxx

Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the first to
arrive at the scene of the accident. As a matter of fact, he brought one of the injured passengers to the
hospital.

We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a passenger
of the truck, and Roman Dayrit, who supposedly lived across the street.

Regarding Soliman, experience has shown that in the ordinary course of events people usually take the
side of the person with whom they are associated at the time of the accident, because, as a general rule,
they do not wish to be identified with the person who was at fault. Thus an imaginary bond is
unconsciously created among the several persons within the same group (People vs. Vivencio, CA-G.R.
No. 00310-CR, Jan. 31, 1962).

With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness. He did
not go to the succor of the injured persons. He said he wanted to call the police authorities about the
mishap, but his phone had no dial tone. Be this (sic) as it may, the trial court in the criminal case acted
correctly in refusing to believe Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his truck at a
safe distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This contention of appellants
was completely passed sub-silencio or was not refuted by appellees in their brief. Exhibit 2 is one of the
exhibits not included in the record. According to the Table of Contents submitted by the court below,
said Exhibit 2 was not submitted by defendants-appellees. In this light, it is not far-fetched to surmise
that Galang's claim that he stopped was an eleventh-hour desperate attempt to exculpate himself from
imprisonment and damages.

3. Galang divulged that he stopped after seeing the car about 10 meters away:

ATTY. SOTTO:

Q Do I understand from your testimony that inspite of the fact that you admitted that the road is
straight and you may be able to (sic) see 500-1000 meters away from you any vehicle, you first saw that
car only about ten (10) meters away from you for the first time?

xxx xxx xxx

A I noticed it, sir, that it was about ten (10) meters away.

ATTY. SOTTO:
Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed it
before that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants' Brief)

Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of the
impact. At ten (10) meters away, with the truck running at 30 miles per hour, as revealed in Galang's
affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh impossible to avoid a collision on a bridge.

5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh to
return to his proper lane. The police investigator, Pfc. Fernando L. Nuñag, stated that he found skid
marks under the truck but there were not (sic) skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3,
1978). The presence of skid marks show (sic) that the truck was speeding. Since the skid marks were
found under the truck and none were found at the rear of the truck, the reasonable conclusion is that
the skid marks under the truck were caused by the truck's front wheels when the trucks (sic) suddenly
stopped seconds before the mishap in an endeavor to avoid the same. But, as aforesaid, Galang saw the
car at barely 10 meters away, a very short distance to avoid a collision, and in his futile endeavor to
avoid the collision he abruptly stepped on his brakes but the smashup happened just the same.

For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the part of
the defendants in the selection of their driver or in the supervision over him. Appellees did not allege
such defense of having exercised the duties of a good father of a family in the selection and supervision
of their employees in their answers. They did not even adduce evidence that they did in fact have
methods of selection and programs of supervision. The inattentiveness or negligence of Galang was the
proximate cause of the mishap. If Galang's attention was on the highway, he would have sighted the car
earlier or at a very safe distance than (sic) 10 meters. He proceeded to cross the bridge, and tried to stop
when a collision was already inevitable, because at the time that he entered the bridge his attention was
not riveted to the road in front of him.

On the question of damages, the claims of appellants were amply proven, but the items must be
reduced. 28

A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by
private respondents on the basis of which the respondent Court, in its Resolution of 3 April 1984, 29
reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial court's
judgment of 12 November 1980. A motion to reconsider this Resolution was denied by the respondent
Court on 4 July 1984.30

Hence, this petition.

Petitioners allege that respondent Court:

. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY REVERSED ITS DECISION BY
MERELY BASING IT FROM (sic) A MERE "PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE
RESPONDENTS' DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE
PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO DISREGARDED THE EVIDENCE ADDUCED
AND FOUND IN THE RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B,
PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS, CONJECTURES AND WITHOUT
SURE FOUNDATION IN THE EVIDENCE.

II

. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A DOCTRINE LAID
DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT
THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE
ACCIDENT WAS INDICTED.

III

. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A MISLEADING

PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFS-APPELLANTS
(APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE
PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER.

IV

. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE OF DISCRETION AND
CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE CASES.

. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING THE FINDINGS
OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND IN
THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED FACTS AND JUDICIAL
ADMISSIONS MADE BY THE PRIVATE RESPONDENTS' DRIVER.

VI

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED
WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED
BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW AND THE CONSISTENT
DECISIONS OF THIS HONORABLE COURT.

VII

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED
WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES TO PETITIONERS WHICH IS
CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE RELATIVE TO THE
AWARD OF DAMAGES. 31

In the Resolution of 12 September 1984, We required private respondents to Comment on the petition.
32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this Court then gave
due course to the instant petitions and required petitioners to file their Brief, 35 which they accordingly
complied with.
There is merit in the petition. Before We take on the main task of dissecting the arguments and counter-
arguments, some observations on the procedural vicissitudes of these cases are in order.

Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-delict
under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal Case No.
3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint trial in Branch III
of the trial court. The records do not indicate any attempt on the part of the parties, and it may
therefore be reasonably concluded that none was made, to consolidate Criminal Case No. 3751 with the
civil cases, or vice-versa. The parties may have then believed, and understandably so, since by then no
specific provision of law or ruling of this Court expressly allowed such a consolidation, that an
independent civil action, authorized under Article 33 in relation to Article 2177 of the Civil Code, such as
the civil cases in this case, cannot be consolidated with the criminal case. Indeed, such consolidation
could have been farthest from their minds as Article 33 itself expressly provides that the "civil action
shall proceed independently of the criminal prosecution, and shall require only a preponderance of
evidence." Be that as it may, there was then no legal impediment against such consolidation. Section 1,
Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against oppression and
abuse, prevent delays, clear congested dockets to simplify the work of the trial court, or in short, attain
justice with the least expense to the parties litigants, 36 would have easily sustained a consolidation,
thereby preventing the unseeming, if no ludicrous, spectacle of two (2) judges appreciating, according to
their respective orientation, perception and perhaps even prejudice, the same facts differently, and
thereafter rendering conflicting decisions. Such was what happened in this case. It should not, hopefully,
happen anymore. In the recent case of Cojuangco vs. Court or Appeals, 37 this Court held that the
present provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an independent
civil action for the recovery of civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code
with the criminal action subject, however, to the condition that no final judgment has been rendered in
that criminal case.

Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of reckless
imprudence, although already final by virtue of the denial by no less than this Court of his last attempt
to set aside the respondent Court's affirmance of the verdict of conviction, has no relevance or
importance to this case.

As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in a quasi-delict
is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. And,
as more concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case of independent
civil actions under the new Civil Code, the result of the criminal case, whether acquittal or conviction,
would be entirely irrelevant to the civil action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this
Court stated:

. . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33, permitted in
the same manner to be filed separately from the criminal case, may proceed similarly regardless of the
result of the criminal case.

Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately and to
proceed independently even during the pendency of the latter case, the intention is patent to make the
court's disposition of the criminal case of no effect whatsoever on the separate civil case. This must be
so because the offenses specified in Article 33 are of such a nature, unlike other offenses not
mentioned, that they may be made the subject of a separate civil action because of the distinct
separability of their respective juridical cause or basis of action . . . .

What remains to be the most important consideration as to why the decision in the criminal case should
not be considered in this appeal is the fact that private respondents were not parties therein. It would
have been entirely different if the petitioners' cause of action was for damages arising from a delict, in
which case private respondents' liability could only be subsidiary pursuant to Article 103 of the Revised
Penal Code. In the absence of any collusion, the judgment of conviction in the criminal case against
Galang would have been conclusive in the civil cases for the subsidiary liability of the private
respondents. 41

And now to the merits of the petition.

It is readily apparent from the pleadings that the principal issue raised in this petition is whether or not
respondent Court's findings in its challenged resolution are supported by evidence or are based on mere
speculations, conjectures and presumptions.

The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal by
certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised. The
resolution of factual issues is the function of the lower courts whose findings on these matters are
received with respect and are, as a rule, binding on this Court. 42

The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the Court
of Appeals may be set aside when such findings are not supported by the evidence or when the trial
court failed to consider the material facts which would have led to a conclusion different from what was
stated in its judgment. 43 The same is true where the appellate court's conclusions are grounded
entirely on conjectures, speculations and surmises 44 or where the conclusions of the lower courts are
based on a misapprehension of facts. 45

It is at once obvious to this Court that the instant case qualifies as one of the aforementioned exceptions
as the findings and conclusions of the trial court and the respondent Court in its challenged resolution
are not supported by the evidence, are based on an misapprehension of facts and the inferences made
therefrom are manifestly mistaken. The respondent Court's decision of 29 November 1983 makes the
correct findings of fact.

In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the
lane of the truck and that the collision occurred in said lane gave rise to the presumption that the driver
of the car, Jose Koh, was negligent. On the basis of this presumed negligence, the appellate court
immediately concluded that it was Jose Koh's negligence that was the immediate and proximate cause
of the collision. This is an unwarranted deduction as the evidence for the petitioners convincingly shows
that the car swerved into the truck's lane because as it approached the southern end of the bridge, two
(2) boys darted across the road from the right sidewalk into the lane of the car. As testified to by
petitioner Araceli Koh McKee:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right
side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the
two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2)
boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to give
us the right of way to come back to our right lane.

Q Did the truck slow down?

A No sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic)
coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. 46

Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into the
lane of the truck was necessary in order to avoid what was, in his mind at that time, a greater peril —
death or injury to the two (2) boys. Such act can hardly be classified as negligent.

Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate Court, 47
thus:

. . . Negligence is the omission to do something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a
prudent and reasonable man would not do (Black's Law Dictionary, Fifth Edition, 930), or as Judge
Cooley defines it, "(T)he failure to observe for the protection of the interests of another person, that
degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other
person suffers injury." (Cooley on Torts, Fourth Edition, vol. 3, 265)

In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound rule, (W)e
held:

The test by which to determine the existence of negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use that (reasonable care and caution which an
ordinarily prudent person would have used in the same situation?) If not, then he is guilty of negligence.
The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman
law. . . .

In Corliss vs. Manila Railroad Company, 48 We held:

. . . Negligence is want of the care required by the circumstances. It is a relative or comparative, not an
absolute, term and its application depends upon the situation of the parties and the degree of care and
vigilance which the circumstances reasonably require. Where the danger is great, a high degree of care
is necessary, and the failure to observe it is a want of ordinary care under the circumstances. (citing
Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894).

On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it is
manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man
would have tried to avoid running over the two boys by swerving the car away from where they were
even if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural
course to take particularly where the vehicle in the opposite lane would be several meters away and
could very well slow down, move to the side of the road and give way to the oncoming car. Moreover,
under what is known as the emergency rule, "one who suddenly finds himself in a place of danger, and is
required to act without time to consider the best means that may be adopted to avoid the impending
danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may
appear to have been a better method, unless the emergency in which he finds himself is brought about
by his own negligence." 49

Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh
adopted the best means possible in the given situation to avoid hitting them. Applying the above test,
therefore, it is clear that he was not guilty of negligence.

In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence was the
proximate cause of the collision. Proximate cause has been defined as:

. . . that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have occurred. And more comprehensively,
the proximate legal cause is that acting first and producing the injury, either immediately or by setting
other events in motion, all constituting a natural and continuous chain of events, each having a close
causal connection with its immediate predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person might
probably result therefrom. 50

Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was
the initial act in the chain of events, it cannot be said that the same caused the eventual injuries and
deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck driver,
which was the actual cause of the tragedy. The entry of the car into the lane of the truck would not have
resulted in the collision had the latter heeded the emergency signals given by the former to slow down
and give the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to
the far right of the road, which was the proper precautionary measure under the given circumstances,
the truck driver continued at full speed towards the car. The truck driver's negligence becomes more
apparent in view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and
the truck, 2.286 meters, in width. This would mean that both car and truck could pass side by side with a
clearance of 3.661 meters to spare. 51 Furthermore, the bridge has a level sidewalk which could have
partially accommodated the truck. Any reasonable man finding himself in the given situation would have
tried to avoid the car instead of meeting it head-on.

The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30
miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge 52
is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is
presumed negligent if at the time of the mishap, he was violating any traffic regulation. We cannot give
credence to private respondents' claim that there was an error in the translation by the investigating
officer of the truck driver's response in Pampango as to whether the speed cited was in kilometers per
hour or miles per hour. The law presumes that official duty has been regularly performed; 53 unless
there is proof to the contrary, this presumption holds. In the instant case, private respondents' claim is
based on mere conjecture.

The truck driver's negligence was likewise duly established through the earlier quoted testimony of
petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio Tanhueco, an
impartial eyewitness to the mishap.

Araceli Koh McKee testified further, thus:

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its
speed before the actual impact of collision as you narrated in this Exhibit "1," how did you know?

A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right
lane on side (sic) of the highway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in these Civil Cases)
(pp. 30-31, Appellants' Brief)54

while Eugenio Tanhueco testified thus:

Q When you saw the truck, how was it moving?

A It was moving 50 to 60 kilometers per hour, sir.

Q Immediately after you saw this truck, do you know what happened?

A I saw the truck and a car collided (sic), sir, and I went to the place to help the victims. (tsn. 28,
April 19, 1979)

xxx xxx xxx

Q From the time you saw the truck to the time of the impact, will you tell us if the said truck ever
stopped?

A I saw it stopped (sic) when it has (sic) already collided with the car and it was already
motionless. (tsn. 31, April 19, 1979; Emphasis Supplied). (p. 27, Appellants' Brief). 55

Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper measures
and degree of care necessary to avoid the collision which was the proximate cause of the resulting
accident.

Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear
chance is a doctrine in the law of torts which states that the contributory negligence of the party injured
will not defeat the claim for damages if it is shown that the defendant might, by the exercise of
reasonable care and prudence, have avoided the consequences of the negligence of the injured party. In
such cases, the person who had the last clear chance to avoid the mishap is considered in law solely
responsible for the consequences thereof.56
In Bustamante vs. Court of Appeals, 57 We held:

The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that
the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it
appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious
consequences to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of
last clear chance means that even though a person's own acts may have placed him in a position of peril,
and an injury results, the injured person is entitled to recovery (sic). As the doctrine is usually stated, a
person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the
negligent acts of his opponent or that of a third person imputed to the opponent is considered in law
solely responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p.
165).

The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or
even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiff's
peril, or according to some authorities, should have been aware of it in the reasonable exercise of due
care, had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp.
798-799).

In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:

The doctrine of last clear chance was defined by this Court in the case of Ong v. Metropolitan Water
District, 104 Phil. 397 (1958), in this wise:

The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude
a recovery for the negligence of defendant where it appears that the latter, by exercising reasonable
care and prudence, might have avoided injurious consequences to claimant notwithstanding his
negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence
but the defendant, who had the last fair chance to avoid the impending harm and failed to do so, is
made liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff
[Picart v. Smith, 37 Phil. 809 (1918); Glan People's Lumber and Hardware, et al. vs. Intermediate
Appellate Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No. 70493, May, 18, 1989]. The subsequent
negligence of the defendant in failing to exercise ordinary care to avoid injury to plaintiff becomes the
immediate or proximate cause of the accident which intervenes between the accident and the more
remote negligence of the plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith,
supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a
plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as a defense to
defeat claim (sic) for damages.

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's
negligence in failing to exert ordinary care to avoid the collision which was, in law, the proximate cause
of the collision. As employers of the truck driver, the private respondents are, under Article 2180 of the
Civil Code, directly and primarily liable for the resulting damages. The presumption that they are
negligent flows from the negligence of their employee. That presumption, however, is only juris tantum,
not juris et de jure. 59 Their only possible defense is that they exercised all the diligence of a good father
of a family to prevent the damage. Article 2180 reads as follows:

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.

The diligence of a good father referred to means the diligence in the selection and supervision of
employees. 60 The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not
interpose this defense. Neither did they attempt to prove it.

The respondent Court was then correct in its Decision of 29 November 1983 in reversing the decision of
the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution of 3 April 1984
finds no sufficient legal and factual moorings.

In the light of recent decisions of this Court, 61 the indemnity for death must, however, be increased
from P12,000.00 to P50,000.00.

WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of 3 April
1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED,
subject to the modification that the indemnity for death is increased from P12,000.00 to P50,000.00
each for the death of Jose Koh and Kim Koh McKee.

Costs against private respondents.

Erezo vs Jepte

Appeal from a judgment of the Court of First Instance of Manila ordering defendant to pay plaintiff
Gaudioso Erezo P3,000 on the death of Ernesto Erezo, son of plaintiff Gaudioso Erezo.

Defendant-appellant is the registered owner of a six by six truck bearing plate No. TC-1253. On August,
9, 1949, while the same was being driven by Rodolfo Espino y Garcia, it collided with a taxicab at the
intersection of San Andres and Dakota Streets, Manila. As the truck went off the street, it hit Ernesto
Erezo and another, and the former suffered injuries, as a result of which he died. The driver was
prosecuted for homicide through reckless negligence in criminal case No. 10663 of the Court of First
Instance of Manila. The accused pleaded guilty and was sentenced to suffer imprisonment and to pay
the heirs of Ernesto Erezo the sum of P3,000. As the amount of the judgment could not be enforced
against him, plaintiff brought this action against the registered owner of the truck, the defendant-
appellant. The circumstances material to the case are stated by the court in its decision.

The defendant does not deny at the time of the fatal accident the cargo truck driven by Rodolfo Espino y
Garcia was registered in his name. He, however, claims that the vehicle belonged to the Port Brokerage,
of which he was the broker at the time of the accident. He explained, and his explanation was
corroborated by Policarpio Franco, the manager of the corporation, that the trucks of the corporation
were registered in his name as a convenient arrangement so as to enable the corporation to pay the
registration fee with his backpay as a pre-war government employee. Franco, however, admitted that
the arrangement was not known to the Motor Vehicle Office.

The trial court held that as the defendant-appellant represented himself to be the owner of the truck
and the Motor Vehicle Office, relying on his representation, registered the vehicles in his name, the
Government and all persons affected by the representation had the right to rely on his declaration of
ownership and registration. It, therefore, held that the defendant-appellant is liable because he cannot
be permitted to repudiate his own declaration. (Section 68 [a], Rule 123, and Art. 1431, New Civil Code.).

Against the judgment, the defendant has prosecuted this appeal claiming that at the time of the
accident the relation of employer and employee between the driver and defendant-appellant was not
established, it having been proved at the trial that the owner of the truck was the Port Brokerage, of
which defendant-appellant was merely a broker. We find no merit or justice in the above contention. In
previous decisions, We already have held that the registered owner of a certificate of public
convenience is liable to the public for the injuries or damages suffered by passengers or third persons
caused by the operation of said vehicle, even though the same had been transferred to a third person.
(Montoya vs. Ignacio, 94 Phil., 182, 50 Off. Gaz., 108; Roque vs. Malibay Transit Inc.,1 G. R. No. L- 8561,
November 18,1955; Vda. de Medina vs. Cresencia, 99 Phil., 506, 52 Off. Gaz., [10], 4606.)The principle
upon which this doctrine is based is that in dealing with vehicles registered under the Public Service Law,
the public has the right to assume or presume that the registered owner is the actual owner thereof, for
it would be difficult for the public to enforce the actions that they may have for injuries caused to them
by the vehicles being negligently operated if the public should be required to prove who the actual
owner is. How would the public or third persons know against whom to enforce their rights in case of
subsequent transfers of the vehicles? We do not imply by this doctrine, however, that the registered
owner may not recover whatever amount he had paid by virtue of his liability to third persons from the
person to whom he had actually sold, assigned or conveyed the vehicle.

Under the same principle the registered owner of any vehicle, even if not used for a public service,
should primarily be responsible to the public or to third persons for injuries caused the latter while the
vehicle is being driven on the highways or streets. The members of the Court are in agreement that the
defendant-appellant should be held liable to plaintiff-appellee for the injuries occasioned to the latter
because of the negligence of the driver even if the defendant-appellant was no longer the owner of the
vehicle at the time of the damage because he had previously sold it to another. What is the legal basis
for his (defendant-appellant's) liability?.

There is a presumption that the owner of the guilty vehicle is the defendant-appellant as he is the
registered owner in the Motor Vehicle Office. Should he not be allowed to prove the truth, that he had
sold it to another and thus shift the responsibility for the injury to the real and actual owner? The
defendant holds the affirmative of this proposition; the trial court held the negative.
The Revised Motor Vehicle Law (Act No. 3992, as amended) provides that no vehicle may be used or
operated upon any public highway unless the same is properly registered. It has been stated that the
system of licensing and the requirement that each machine must carry a registration number,
conspicuously displayed, is one of the precautions taken to reduce the danger of injury to pedestrians
and other travelers from the careless management of automobiles, and to furnish a means of
ascertaining the identity of persons violating the laws and ordinances, regulating the speed and
operation of machines upon the highways (2 R. C. L. 1176). Not only are vehicles to be registered and
that no motor vehicles are to be used or operated without being properly registered for the current
year, but that dealers in motor vehicles shall furnish the Motor Vehicles Office a report showing the
name and address of each purchaser of motor vehicle during the previous month and the
manufacturer's serial number and motor number. (Section 5 [c], Act. No. 3992, as amended.).

Registration is required not to make said registration the operative act by which ownership in vehicles is
transferred, as in land registration cases, because the administrative proceeding of registration does not
bear any essential relation to the contract of sale between the parties (Chinchilla vs. Rafael and
Verdaguer, 39 Phil. 888), but to permit the use and operation of the vehicle upon any public highway
(section 5 [a], Act No. 3992, as amended).The main aim of motor vehicle registration is to identify the
owner so that if any accident happens, or that any damage or injury is caused by the vehicles on the
public highways, responsibility therefore can be fixed on a definite individual, the registered owner.
Instances are numerous where vehicles running on public highways caused accidents or injuries to
pedestrians or other vehicles without positive identification of the owner or drivers, or with very scant
means of identification. It is to forestall those circumstances, so inconvenient or prejudicial to the
public, that the motor vehicle registration is primarily ordained, in the interest of the determination of
persons responsible for damages or injuries caused on public highways.

One of the principal purposes of motor vehicles legislation is identification of the vehicle and of the
operator, in case of accident; and another is that the knowledge that means of detection are always
available may act as a deterrent from lax observance of the law and of the rules of conservative and safe
operation. Whatever purpose there may be in these statutes, it is subordinate at the last to the primary
purpose of rendering it certain that the violator of the law or of the rules of safety shall not escape
because of lack of means to discover him." The purpose of the statute is thwarted, and the displayed
number becomes a "snare and delusion," if courts will entertain such defenses as that put forward by
appellee in this case. No responsible person or corporation could be held liable for the most outrageous
acts of negligence, if they should be allowed to place a "middleman" between them and the public, and
escape liability by the manner in which they recompense their servants. (King vs. Brenham Automobile
Co., 145 S. W. 278,279.)

With the above policy in mind, the question that defendant-appellant poses is: should not be registered
owner be allowed at the trial to prove who the actual and real owner is, and in accordance with such
proof escape or evade responsibility and lay the same on the person actually owning the vehicle? We
hold with the trial court that the laws does not allow him to do so; the law, with its aim and policy in
mind, does not relieve him directly of the responsibility that the law fixes and places upon him as an
incident or consequence of registration. Were a registered owner allowed to evade responsibility by
proving who the supposed transferee or owner is, it would be easy for him, by collusion with others or
otherwise, to escape said responsibility and transfer the same to an indefinite person, or to one who
possesses no property with which to respond financially for the damage or injury done. A victim of
recklessness on the public highways is usually without means to discover or identify the person actually
causing the injury or damage. He has no means other than by a recourse to the registration in the Motor
Vehicles Office to determine who is the owner. The protection that the law aims to extend to him would
become illusory were the registered owner given the opportunity to escape liability by disproving his
ownership. If the policy of the law is to be enforced and carried out, the registered owner should be
allowed to prove the contrary to the prejudice of the person injured that is, to prove that a third person
or another has become the owner, so that he may thereby be relieved of the responsibility to the
injured person.1âwphïl.nêt

The above policy and application of the law may appear quite harsh and would seem to conflict with
truth and justice. We do not think it is so. A registered owner who has already sold or transferred a
vehicle has the recourse to a third-party complaint, in the same action brought against him to recover
for the damage or injury done, against the vendee or transferee of the vehicle. The inconvenience of the
suit is no justification for relieving him of liability; said inconvenience is the price he pays for failure to
comply with the registration that the law demands and requires.

In synthesis, we hold that the registered owner, the defendant-appellant herein, is primarily responsible
for the damage caused to the vehicle of the plaintiff-appellee, but he (defendant-appellant) has a right
to be indemnified by the real or actual owner of the amount that he may be required to pay as damage
for the injury caused to the plaintiff-appellant.1âwphïl.nêt

Caedo vs YuK he Thai

As a result of a vehicular accident in which plaintiff Marcial Caedo and several members of his family
were injured they filed this suit for recovery of damages from the defendants. The judgment, rendered
by the Court of First Instance of Rizal on February 26, 1960 (Q-2952), contains the following disposition:

IN VIEW OF THE FOREGOING, the court renders a judgment, one in favor of the plaintiffs and against the
defendants, Yu Khe Thai and Rafael Bernardo, jointly and severally, to pay to plaintiffs Marcial Caedo, et
al., the sum of P1,929.70 for actual damages; P48,000.00 for moral damages; P10,000.00 for exemplary
damages; and P5,000.00 for attorney's fees, with costs against the defendants. The counterclaim of the
defendants against the plaintiffs is hereby ordered dismissed, for lack of merits.

On March 12, 1960 the judgment was amended so as to include an additional award of P3,705.11 in
favor of the plaintiffs for the damage sustained by their car in the accident.

Both parties appealed to the Court of Appeals, which certified the case to us in view of the total amount
of the plaintiffs' claim.

There are two principal questions posed for resolution: (1) who was responsible for the accident? and
(2) if it was defendant Rafael Bernardo, was his employer, defendant Yu Khe Thai, solidarily liable with
him? On the first question the trial court found Rafael Bernardo negligent; and on the second, held his
employer solidarily liable with him.

The mishap occurred at about 5:30 in the morning of March 24, 1958 on Highway 54 (now E. de los
Santos Avenue) in the vicinity of San Lorenzo Village. Marcial was driving his Mercury car on his way
from his home in Quezon City to the airport, where his son Ephraim was scheduled to take a plane for
Mindoro. With them in the car were Mrs. Caedo and three daughters. Coming from the opposite
direction was the Cadillac of Yu Khe Thai, with his driver Rafael Bernardo at the wheel, taking the owner
from his Parañaque home to Wack Wack for his regular round of golf. The two cars were traveling at
fairly moderate speeds, considering the condition of the road and the absence of traffic — the Mercury
at 40 to 50 kilometers per hour, and the Cadillac at approximately 30 to 35 miles (48 to 56 kilometers).
Their headlights were mutually noticeable from a distance. Ahead of the Cadillac, going in the same
direction, was a caretella owned by a certain Pedro Bautista. The carretela was towing another horse by
means of a short rope coiled around the rig's vertical post on the right side and held at the other end by
Pedro's son, Julian Bautista.

Rafael Bernardo testified that he was almost upon the rig when he saw it in front of him, only eight
meters away. This is the first clear indication of his negligence. The carretela was provided with two
lights, one on each side, and they should have given him sufficient warning to take the necessary
precautions. And even if he did not notice the lights, as he claimed later on at the trial, the carretela
should anyway have been visible to him from afar if he had been careful, as it must have been in the
beam of his headlights for a considerable while.

In the meantime the Mercury was coming on its own lane from the opposite direction. Bernardo,
instead of slowing down or stopping altogether behind the carretela until that lane was clear, veered to
the left in order to pass. As he did so the curved end of his car's right rear bumper caught the forward
rim of the rig's left wheel, wrenching it off and carrying it along as the car skidded obliquely to the other
lane, where it collided with the oncoming vehicle. On his part Caedo had seen the Cadillac on its own
lane; he slackened his speed, judged the distances in relation to the carretela and concluded that the
Cadillac would wait behind. Bernardo, however, decided to take a gamble — beat the Mercury to the
point where it would be in line with the carretela, or else squeeze in between them in any case. It was a
risky maneuver either way, and the risk should have been quite obvious. Or, since the car was moving at
from 30 to 35 miles per hour (or 25 miles according to Yu Khe Thai) it was already too late to apply the
brakes when Bernardo saw the carretela only eight meters in front of him, and so he had to swerve to
the left in spite of the presence of the oncoming car on the opposite lane. As it was, the clearance
Bernardo gave for his car's right side was insufficient. Its rear bumper, as already stated, caught the
wheel of the carretela and wrenched it loose. Caedo, confronted with the unexpected situation, tried to
avoid the collision at the last moment by going farther to the right, but was unsuccessful. The
photographs taken at the scene show that the right wheels of his car were on the unpaved shoulder of
the road at the moment of impact.

There is no doubt at all that the collision was directly traceable to Rafael Bernardo's negligence and that
he must be held liable for the damages suffered by the plaintiffs. The next question is whether or not Yu
Khe Thai, as owner of the Cadillac, is solidarily liable with the driver. The applicable law is Article 2184 of
the Civil Code, which reads:

ART. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who
was in the vehicle, could have, by the use of due diligence, prevented the misfortune. It is disputably
presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic
regulations at least twice within the next preceding two months.

Under the foregoing provision, if the causative factor was the driver's negligence, the owner of the
vehicle who was present is likewise held liable if he could have prevented the mishap by the exercise of
due diligence. The rule is not new, although formulated as law for the first time in the new Civil Code. It
was expressed in Chapman vs. Underwood (1914), 27 Phil. 374, where this Court held:
... The same rule applies where the owner is present, unless the negligent acts of the driver are
continued for such a length of time as to give the owner a reasonable opportunity to observe them and
to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and
permits his driver to continue in a violation of the law by the performance of negligent acts, after he has
had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes
himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up the
Escolta, for example, at a speed of 60 miles an hour, without any effort to stop him, although he has had
a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the
results produced by the acts of the chauffeur. On the other hand, if the driver, by a sudden act of
negligence, and without the owner having a reasonable opportunity to prevent the act or its
continuance, injures a person or violates the criminal law, the owner of the automobile, although
present therein at the time the act was committed, is not responsible, either civilly or criminally,
therefor. The act complained of must be continued in the presence of the owner for such a length of
time that the owner, by his acquiescence, makes his driver act his own.

The basis of the master's liability in civil law is not respondent superior but rather the relationship of
paterfamilias. The theory is that ultimately the negligence of the servant, if known to the master and
susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to
prevent injury or damage.

In the present case the defendants' evidence is that Rafael Bernardo had been Yu Khe Thai's driver since
1937, and before that had been employed by Yutivo Sons Hardware Co. in the same capacity for over
ten years. During that time he had no record of violation of traffic laws and regulations. No negligence
for having employed him at all may be imputed to his master. Negligence on the part of the latter, if any,
must be sought in the immediate setting and circumstances of the accident, that is, in his failure to
detain the driver from pursuing a course which not only gave him clear notice of the danger but also
sufficient time to act upon it. We do not see that such negligence may be imputed. The car, as has been
stated, was not running at an unreasonable speed. The road was wide and open, and devoid of traffic
that early morning. There was no reason for the car owner to be in any special state of alert. He had
reason to rely on the skill and experience of his driver. He became aware of the presence of the
carretela when his car was only twelve meters behind it, but then his failure to see it earlier did not
constitute negligence, for he was not himself at the wheel. And even when he did see it at that distance,
he could not have anticipated his driver's sudden decision to pass the carretela on its left side in spite of
the fact that another car was approaching from the opposite direction. The time element was such that
there was no reasonable opportunity for Yu Khe Thai to assess the risks involved and warn the driver
accordingly. The thought that entered his mind, he said, was that if he sounded a sudden warning it
might only make the other man nervous and make the situation worse. It was a thought that, wise or
not, connotes no absence of that due diligence required by law to prevent the misfortune.

The test of imputed negligence under Article 2184 of the Civil Code is, to a great degree, necessarily
subjective. Car owners are not held to a uniform and inflexible standard of diligence as are professional
drivers. In many cases they refrain from driving their own cars and instead hire other persons to drive
for them precisely because they are not trained or endowed with sufficient discernment to know the
rules of traffic or to appreciate the relative dangers posed by the different situations that are continually
encountered on the road. What would be a negligent omission under aforesaid Article on the part of a
car owner who is in the prime of age and knows how to handle a motor vehicle is not necessarily so on
the part, say, of an old and infirm person who is not similarly equipped.
The law does not require that a person must possess a certain measure of skill or proficiency either in
the mechanics of driving or in the observance of traffic rules before he may own a motor vehicle. The
test of his intelligence, within the meaning of Article 2184, is his omission to do that which the evidence
of his own senses tells him he should do in order to avoid the accident. And as far as perception is
concerned, absent a minimum level imposed by law, a maneuver that appears to be fraught with danger
to one passenger may appear to be entirely safe and commonplace to another. Were the law to require
a uniform standard of perceptiveness, employment of professional drivers by car owners who, by their
very inadequacies, have real need of drivers' services, would be effectively proscribed.

We hold that the imputation of liability to Yu Khe Thai, solidarily with Rafael Bernardo, is an error. The
next question refers to the sums adjudged by the trial court as damages. The award of P48,000 by way
of moral damages is itemized as follows:

1. Marcial Caedo

P 20,000.00

2. Juana S. Caedo

15,000.00

3. Ephraim Caedo

3,000.00

4. Eileen Caedo

4,000.00

5. Rose Elaine Caedo

3,000.00

6. Merilyn Caedo

3,000.00

Plaintiffs appealed from the award, claiming that the Court should have granted them also actual or
compensatory damages, aggregating P225,000, for the injuries they sustained. Defendants, on the other
hand maintain that the amounts awarded as moral damages are excessive and should be reduced. We
find no justification for either side. The amount of actual damages suffered by the individual plaintiffs by
reason of their injuries, other than expenses for medical treatment, has not been shown by the
evidence. Actual damages, to be compensable, must be proven. Pain and suffering are not capable of
pecuniary estimation, and constitute a proper ground for granting moral, not actual, damages, as
provided in Article 2217 of the Civil Code.

The injuries sustained by plaintiffs are the following:

MARCIAL T. CAEDO:

A. Contusion, with hematoma, scalp, frontal left; abrasions, chest wall, anterior;
B. Multiple fractures, ribs, right, lst to 5th inclusive. Third rib has a double fracture; Subparieto-
plaural hematoma; Basal disc atelectasis, lung, right lower lobe, secondary;
C. Pseudotosis, left, secondary to probable basal fracture, skull.

JUANA SANGALANG CAEDO:

A. Abrasions, multiple:
(1)frontal region, left; (2) apex of nose; (3) upper eyelid, left; (4) knees.
B. Wound, lacerated, irregular, deep, frontal;
C. Fracture, simple, 2nd rib posterior, left with displacement.
D. Fracture, simple, base, proximal phalanx right, big toe.
E. Fracture, simple, base, metatarsals III and V right.
F. Concussion, cerebral.

EPHRAIM CAEDO:

A. Abrasions, multiple:
(1) left temporal area; (2) left frontal; (3) left supraorbital

EILEEN CAEDO:

A. Lacerated wound (V-shaped), base, 5th finger, right, lateral aspect.

B. Abrasions, multiple:
(1) dorsum, proximal phalanx middle finger; (2) Knee, anterior, bilateral; (3) shin, lower 1/3.

ROSE ELAINE CAEDO:

A. Abrasions, multiple: (1) upper and lower lids; (2) left temporal; (3) nasolabial region; (4) leg, lower
third, anterior.

MARILYN CAEDO:

A. Abrasions, multiple: (1)shin, lower 1/3 right; (2) arm, lower third

C. Contusion with hematoma, shin, lower 1/3, anterior aspect, right. (See Exhibits D, D-1, D-2, D-3, D-4,
and D- 5)

It is our opinion that, considering the nature and extent of the above-mentioned injuries, the amounts
of moral damages granted by the trial court are not excessive.

WHEREFORE, the judgment appealed from is modified in the sense of declaring defendant-appellant Yu
Khe Thai free from liability, and is otherwise affirmed with respect to defendant Rafael Bernardo, with
costs against the latter.
City of Manila vs Teotico

Appeal by certiorari from a decision of the Court of Appeals.

On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner of the Old Luneta and P.
Burgos Avenue, Manila, within a "loading and unloading" zone, waiting for a jeepney to take him down
town. After waiting for about five minutes, he managed to hail a jeepney that came along to a stop. As
he stepped down from the curb to board the jeepney, and took a few steps, he fell inside an uncovered
and unlighted catch basin or manhole on P. Burgos Avenue. Due to the fall, his head hit the rim of the
manhole breaking his eyeglasses and causing broken pieces thereof to pierce his left eyelid. As blood
flowed therefrom, impairing his vision, several persons came to his assistance and pulled him out of the
manhole. One of them brought Teotico to the Philippine General Hospital, where his injuries were
treated, after which he was taken home. In addition to the lacerated wound in his left upper eyelid,
Teotico suffered contusions on the left thigh, the left upper arm, the right leg and the upper lip apart
from an abrasion on the right infra-patella region. These injuries and the allergic eruption caused by
anti-tetanus injections administered to him in the hospital, required further medical treatment by a
private practitioner who charged therefor P1,400.00.

As a consequence of the foregoing occurrence, Teotico filed, with the Court of First Instance of Manila, a
complaint — which was, subsequently, amended — for damages against the City of Manila, its mayor,
city engineer, city health officer, city treasurer and chief of police. As stated in the decision of the trial
court, and quoted with approval by the Court of Appeals,

At the time of the incident, plaintiff was a practicing public accountant, a businessman and a professor
at the University of the East. He held responsible positions in various business firms like the Philippine
Merchandising Co., the A.U. Valencia and Co., the Silver Swan Manufacturing Company and the Sincere
Packing Corporation. He was also associated with several civic organizations such as the Wack Wack Golf
Club, the Chamber of Commerce of the Philippines, Y's Men Club of Manila and the Knights of Rizal. As a
result of the incident, plaintiff was prevented from engaging in his customary occupation for twenty
days. Plaintiff has lost a daily income of about P50.00 during his incapacity to work. Because of the
incident, he was subjected to humiliation and ridicule by his business associates and friends. During the
period of his treatment, plaintiff was under constant fear and anxiety for the welfare of his minor
children since he was their only support. Due to the filing of this case, plaintiff has obligated himself to
pay his counsel the sum of P2,000.00.

On the other hand, the defense presented evidence, oral and documentary, to prove that the Storm
Drain Section, Office of the City Engineer of Manila, received a report of the uncovered condition of a
catchbasin at the corner of P. Burgos and Old Luneta Streets, Manila, on January 24, 1958, but the same
was covered on the same day (Exhibit 4); that again the iron cover of the same catch basin was reported
missing on January 30, 1958, but the said cover was replaced the next day (Exhibit 5); that the Office of
the City Engineer never received any report to the effect that the catchbasin in question was not
covered between January 25 and 29, 1968; that it has always been a policy of the said office, which is
charged with the duty of installation, repair and care of storm drains in the City of Manila, that
whenever a report is received from whatever source of the loss of a catchbasin cover, the matter is
immediately attended to, either by immediately replacing the missing cover or covering the catchbasin
with steel matting that because of the lucrative scrap iron business then prevailing, stealing of iron
catchbasin covers was rampant; that the Office of the City Engineer has filed complaints in court
resulting from theft of said iron covers; that in order to prevent such thefts, the city government has
changed the position and layout of catchbasins in the City by constructing them under the sidewalks
with concrete cement covers and openings on the side of the gutter; and that these changes had been
undertaken by the city from time to time whenever funds were available.

After appropriate proceedings the Court of First Instance of Manila rendered the aforementioned
decision sustaining the theory of the defendants and dismissing the amended complaint, without costs.

On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except insofar as the
City of Manila is concerned, which was sentenced to pay damages in the aggregate sum of P6,750.00. 1
Hence, this appeal by the City of Manila.

The first issue raised by the latter is whether the present case is governed by Section 4 of Republic Act
No. 409 (Charter of the City of Manila) reading:

The city shall not be liable or held for damages or injuries to persons or property arising from the failure
of the Mayor, the Municipal Board, or any other city officer, to enforce the provisions of this chapter, or
any other law or ordinance, or from negligence of said Mayor, Municipal Board, or other officers while
enforcing or attempting to enforce said provisions.

or by Article 2189 of the Civil Code of the Philippines which provides:

Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by,
any person by reason of defective conditions of road, streets, bridges, public buildings, and other public
works under their control or supervision.

Manila maintains that the former provision should prevail over the latter, because Republic Act 409, is a
special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law,
applicable to the entire Philippines.

The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as
its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a general
legislation; but, as regards the subject-matter of the provisions above quoted, Section 4 of Republic Act
409 establishes a general rule regulating the liability of the City of Manila for: "damages or injury to
persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or
any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers
while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil
Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for
damages for the death of, or injury suffered by any person by reason" — specifically — "of the defective
condition of roads, streets, bridges, public buildings, and other-public works under their control or
supervision." In other words, said section 4 refers to liability arising from negligence, in general,
regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets," in
particular. Since the present action is based upon the alleged defective condition of a road, said Article
2189 is decisive thereon.

It is urged that the City of Manila cannot be held liable to Teotico for damages: 1) because the accident
involving him took place in a national highway; and 2) because the City of Manila has not been negligent
in connection therewith.
As regards the first issue, we note that it is based upon an allegation of fact not made in the answer of
the City. Moreover, Teotico alleged in his complaint, as well as in his amended complaint, that his
injuries were due to the defective condition of a street which is "under the supervision and control" of
the City. In its answer to the amended complaint, the City, in turn, alleged that "the streets
aforementioned were and have been constantly kept in good condition and regularly inspected and the
storm drains and manholes thereof covered by the defendant City and the officers concerned" who
"have been ever vigilant and zealous in the performance of their respective functions and duties as
imposed upon them by law." Thus, the City had, in effect, admitted that P. Burgos Avenue was and is
under its control and supervision.

Moreover, the assertion to the effect that said Avenue is a national highway was made, for the first
time, in its motion for reconsideration of the decision of the Court of Appeals. Such assertion raised,
therefore, a question of fact, which had not been put in issue in the trial court, and cannot be set up, for
the first time, on appeal, much less after the rendition of the decision of the appellate court, in a motion
for the reconsideration thereof.

At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to
attach that the defective roads or streets belong to the province, city or municipality from which
responsibility is exacted. What said article requires is that the province, city or municipality have either
"control or supervision" over said street or road. Even if P. Burgos Avenue were, therefore, a national
highway, this circumstance would not necessarily detract from its "control or supervision" by the City of
Manila, under Republic Act 409. In fact Section 18(x) thereof provides:

Sec. 18. Legislative powers. — The Municipal Board shall have the following legislative powers:

xxx xxx xxx

(x) Subject to the provisions of existing law to provide for the laying out, construction and improvement,
and to regulate the use of streets, avenues, alleys, sidewalks, wharves, piers, parks, cemeteries, and
other public places; to provide for lighting, cleaning, and sprinkling of streets and public places; . . . to
provide for the inspection of, fix the license fees for and regulate the openings in the same for the laying
of gas, water, sewer and other pipes, the building and repair of tunnels, sewers, and drains, and all
structures in and under the same and the erecting of poles and the stringing of wires therein; to provide
for and regulate cross-works, curbs, and gutters therein, . . . to regulate traffic and sales upon the streets
and other public places; to provide for the abatement of nuisances in the same and punish the authors
or owners thereof; to provide for the construction and maintenance, and regulate the use, of bridges,
viaducts and culverts; to prohibit and regulate ball playing, kite-flying, hoop rolling, and other
amusements which may annoy persons using the streets and public places, or frighten horses or other
animals; to regulate the speed of horses and other animals, motor and other vehicles, cars, and
locomotives within the limits of the city; to regulate the lights used on all vehicles, cars, and
locomotives; . . . to provide for and change the location, grade, and crossing of railroads, and compel
any such railroad to raise or lower its tracks to conform to such provisions or changes; and to require
railroad companies to fence their property, or any part thereof, to provide suitable protection against
injury to persons or property, and to construct and repair ditches, drains, sewers, and culverts along and
under their tracks, so that the natural drainage of the streets and adjacent property shall not be
obstructed.
This authority has been neither withdrawn nor restricted by Republic Act No. 917 and Executive Order
No. 113, dated May 2, 1955, upon which the City relies. Said Act governs the disposition or
appropriation of the highway funds and the giving of aid to provinces, chartered cities and municipalities
in the construction of roads and streets within their respective boundaries, and Executive Order No. 113
merely implements the provisions of said Republic Act No. 917, concerning the disposition and
appropriation of the highway funds. Moreover, it provides that "the construction, maintenance and
improvement of national primary, national secondary and national aid provincial and city roads shall be
accomplished by the Highway District Engineers and Highway City Engineers under the supervision of
the Commissioner of Public Highways and shall be financed from such appropriations as may be
authorized by the Republic of the Philippines in annual or special appropriation Acts."

Then, again, the determination of whether or not P. Burgos Avenue is under the control or supervision
of the City of Manila and whether the latter is guilty of negligence, in connection with the maintenance
of said road, which were decided by the Court of Appeals in the affirmative, is one of fact, and the
findings of said Court thereon are not subject to our review.

WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs against the City
of Manila. It is so ordered.1äwphï1.ñët

Cachero vs Manila Yellow Taxicab

There is no dispute as to the following facts: on December 13, 1952, Atty. Tranquilino F. Cachero
boarded a Yellow Taxicab, with plate No. 2159-52 driven by Gregorio Mira Abinion and owned by the
Manila Yellow Taxicab Co., Inc. On passing Oroquieta between Doroteo Jose and Lope de Vega streets,
Gregorio Mira Abinion bumped said taxicab against a Meralco post, No. 1-4/387, with the result that the
cab was badly smashed and the plaintiff fell out of the vehicle to the ground, suffering thereby physical
injuries, slight in nature.

The chauffeur was subsequently prosecuted by the City Fiscal and on February 26, 1963, upon his plea
of guilty the Municipal Court of Manila sentenced him to suffer 1 month and 1 day of arresto mayor, and
to pay the costs. On December 17, 1952, Tranquilino F. Cachero addressed a letter to the Manila Yellow
Taxicab Co., Inc., which was followed by another of January 6, 1953, which reads as follows:

MANILA, January 6, 1953

The MANILA YELLOW TAXICAB CO., INC.

1338 Arlegui, Manila

Dear Sirs:

As you have been already advised by the letter dated December 17, 1952, on December 13, 1952, while
I was a passenger of your taxicab bearing plate No. 2159 and driven by your chauffeur Gregorio Mira
and through his negligence and the bad condition of the said car, he bumped the same against the
pavement on the street (Oroquieta — between Doroteo Jose and Lope de Vega streets, Manila) and hit
the Meralco post on said street, resulting in the smashing of the said taxicab, and as a result thereof I
was gravely injured and suffered and is still suffering physical, mental and moral damages and not being
able to resume my daily calling.
For the said damages, I hereby make a demand for the payment of the sum of P79,245.65, covering
expenses for transportation to the hospital for medical treatment, medicines, doctors bills, actual
monetary loss, moral, compensatory and exemplary damages, etc., within 5 days from date of receipt
hereof.

I trust to hear from you on the matter within the period of 5 days above specified.

Truly yours,

(Sgd.) TRANQUILINO F. CACHERO

2256 Int. B, Misericordia St.,
Sta. Cruz, Manila

(Exhibit K)

The Taxicab Co. to avoid expenses and time of litigation offered to settle the case amicably with plaintiff
but the latter only agreed to reduce his demand to the sum of P72,050.20 as his only basis for
settlement which, of course, was not accepted by said company. So plaintiff instituted this action on
February 2, 1953, in the Court of First Instance of Manila, praying in the complaint that the defendant be
condemned to pay him:

(a) The sum of P72,050.20, the total sum of the itemized losses and/or damages under paragraph 7 of
the complaint, with legal interest thereon from the date of the filing of the complaint;

(b) The sum of P5,000 as attorney's fee; and the costs of the suit; and

Plaintiff further respectfully prays for such other and further reliefs as the facts and the law pertaining to
the case may warrant.

The defendant answered the complaint setting forth affirmative defenses and a counterclaim for P930
as damages and praying for the dismissal of plaintiff's action. After hearing the Court rendered decision
only July 20, 1954, the dispositive part of which is as follows:

IN VIEW OF THE FOREGOING, the Court hereby renders judgment in favor of the plaintiff and against the
defendant, sentencing the latter to pay the former the following: (1) For medicine, doctor's fees for
services rendered and transportation, P700; (2) professional fee as attorney for the defendant in
Criminal Case No. 364, "People vs. Manolo Maddela et al." of the Court of First Instance of Nueva
Vizcaya, P3,000; (3) professional fees as attorney for the defendant in Civil Case No. 23891 of the
Municipal Court of Manila, "Virginia Tangulan vs. Leonel da Silva," and for the taking of the deposition of
Gabina Angrepan in a case against the Philippine National Bank, P200; and(4) moral damages in the
amount of P2,000.

Defendant's counterclaim is hereby dismissed.

Defendant shall also pay the costs."

From this decision both parties appealed to Us, plaintiff limiting his appeal to the part of the decision
which refers to the moral damages awarded to him which he considered inadequate, and to the failure
of said judgment to grant the attorney's fees asked for in the prayer of his complaint. Defendant in turn
alleges that the trial Court erred in awarding to the plaintiff the following:

(1) P700 — for medicine, doctor's fees and transportation expenses;

(2) P3,000 — as supposedly unearned full professional fees as attorney for the defendant in Criminal
Case No. 364, "People vs. Manolo Maddela et al.";

(3) P200 — as supposedly unearned professional fees as attorney for the defendant in Civil Case No.
23891 of the Manila Municipal Court, "Virginia Tangulan vs. Leonel de Silva", and for failure to take the
deposition of a certain Gabina Angrepan in an unnamed case; and

(4) P2,000 — as moral damages, amounting to the grand total of P5,900, these amounts being very
much greater than what plaintiff deserves.

In connection with his appeal, plaintiff calls attention to the testimonies of Dr. Modesto S. Purisima and
of Dr. Francisco Aguilar, a member of the staff of the National Orthopedic Hospital, which he considers
necessary as a basis for ascertaining not only the physical sufferings undergone by him, but also for
determining the adequate compensation for moral damages that he should be awarded by reason of
said accident.

The exact nature of plaintiff's injuries, their degree of seriousness and the period of his involuntary
disability can be determined by the medical certificate (Exhibit D) issued by the National Orthopedic
Hospital on December 16, 1952, and the testimonies of Dr. Francisco Aguilar, physician in said hospital,
and of Dr. Modesto Purisima, a private practitioner. The medical certificate (Exhibit D) lists: (a) a
subluxation of the right shoulder joint; (b) a contusion on the right chest; and (c) a "suspicious fracture"
of the upper end of the right humerus. Dr. Aguilar who issued the medical certificate admitted,
however, with regard to the "suspicious fracture", that in his opinion with (the aid of) the x-ray there
was no fracture. According to this doctor plaintiff went to the National 0rthopedic Hospital at least six
times during the period from December 16, 1952, to April 7, 1953; that he strapped plaintiffs body (see
Exhibit E), which strap was not removed until after a period of six weeks had elapsed Dr. Modesto
Purisima, a private practitioner, testified that he advised and treated plaintiff from, December 14, 1952,
to the end of March (1953). Plaintiff was never hospitalized for treatment of the injuries he received in
said accident.

Counsel for the defendant delves quite extensively on these injuries. He says in his brief the following:

Just what is a subluxation? Luxation is another term for dislocation (Dorland, W.A.N., The American
Illustrated Medical Dictionary (13th ed.), p. 652), and hence, a sublaxation is an incomplete or partial
dislocation (Ibid., p. 1115). While a dislocation is the displacement of a bone or bones from its or their
normal setting (and, therefore, applicable and occurs only to joints and not to rigid or non-movable
parts of the skeletal system) (Ibid., p. 358; Christopher, F., A Textbook of Surgery (5th ed.), p. 342), it
should be distinguished from a fracture which is a break or rupture in a bone or cartilage, usually due to
external violence (Christopher, F., A Textbook of Surgery (5th Ed.) p. 194; Dorland, W.A.N., The American
Illustrated Medical Dictionary (13th ed.), P.459). Because, unlike fracture which may be partial (a crack
in the bone) or total (a complete break in the bone), there can be no half-way situations with regard to
dislocations of the shoulder joint (the head or ball of the humerus — the humerus is the bone from the
elbow to the shoulder) must be either inside the socket of the scapula or shoulder blade (in which case
there is no dislocation) or out of the latter (in which event there is a dislocation), to denote a condition
where due to external violence, the muscles and ligaments connecting the humerus to the scapula have
subjected to strain intense enough to produce temporary distention or lessening of their tautness and
consequently resulting in the loosening or wrenching of the ball of the humerus from its snug fit in the
socket of the scapula, by using the terms subluxation or partial dislocation(as used in the medical
certificate), is to fall into a misnomer — a term often used by "chiropractors" and by those who would
want to sound impressive, but generally unfavored by the medical profession. To describe the above
condition more aptly, the medical profession usually employs the expression luxatio imperfecta, or, in
simple language, a sprain (Dorland, W.A.N., The American Illustrated Medical Dictionary (13th ed.), p.
652). The condition we have described is a paraphrase of the definition of a sprain. Plaintiff suffered this
very injury (a sprained or wrenched shoulder joint) and a cursory scrutiny of his x-ray plates (Exhibits A
and B) by a qualified orthopedic surgeon or by a layman with a picture or x-ray plate of a normal
shoulder joint (found in any standard textbook on human anatomy; the one we used was Schemer, J.P.,
Morris' Human Anatomy (10 ed., p. 194) for comparison will bear out our claim.

Treatment for a sprain is by the use of adhesive or elastic bandage, elevation of the joint, heat,
effleurage and later massage (Christopher, F., A Textbook of Surgery (5th ed., p. 116). The treatment
given to the plaintiff was just exactly that Dr. Aguilar bandaged (strapped) plaintiff's right shoulder and
chest (t.s.n., p. 31) in an elevated position (with the forearm horizontal to the chest (see photograph,
Exhibit E), and certain vitamins were prescribed for him (t.s.n., p. 131). He also underwent massage for
some time by Drs. Aguilar and Purisima. The medicines and appurtenances to treatment purchased by
plaintiff from the Orthopedic Hospital, Botica Boie and Metro Drug Store were, by his own admission,
adhesive plaster, bandage, gauze, oil and "tintura arnica" (t.s.n., p. 3 — continuation of transcript ), and
Dr. Purisima also prescribed "Numotizin", a beat generating ointment (t.s.n., p. 23), all of which are
indicated for a sprain, and by their nature, can cure nothing more serious than a sprain anyway.
Fractures and true dislocations cannot be cured by the kind of treatment and medicines which plaintiff
received. A true dislocation, for instance, is treated by means of reduction through traction of the arm
until the humeral head returns to the proper position in the scapular socket (pulling the arm at a 60
degree angle and guiding the ball of the humerus into proper position, in its socket) while the patient is
under deep anaesthesia, and then, completely immobilizing the part until the injured capsule has healed
(Christopher, F., A Textbook of Surgery, pp. 343 and 344). No evidence was submitted that plaintiff ever
received the latter kind of treatment. Dr. Purisima even declared that after the plaintiff's first visit to the
Orthopedic Hospital the latter informed him that there was no fracture or dislocation (t.s.n., p. 26). Dr.
Purisima's statement is the truth of the matter as we have already explained — joints of the shoulder
being only subject to total dislocation (due to their anatomical design), not to partial ones, and any
injury approximating dislocation but not completely, it being classified as mere sprains, slight or bad.

The second and last injury plaintiff sustained was a contusion. What is a contusion? It is just a high flown
expression for a bruise or the act of bruising (Dorland, W.A.N., The American Illustrated Medical
Dictionary (13th ed. p. 290). No further discussion need be made on this particular injury since the
nature of a bruise is of common knowledge (it's a bit uncomfortable but not disabling unless it occurs on
movable parts like the fingers or elbow which is not the case, herein having occurred in the right chest)
and the kind of medical treatment or help it is also well known. (pp. 10-14, defendant-appellant's brief).

The trial Judge undoubtedly did not give much value to the testimonies of the doctors when in the
statement of facts made in his decision he referred to the physical injuries received by the plaintiff as
slight in nature and the latter is estopped from discussing the same in order to make them appear as
serious, because in the statement of facts made in his brief as appellant, he says the following:

The facts of the case as found by the lower court in its decision, with the permission of this Honorable
Court, we respectfully quote them hereunder as our STATEMENT OF FACTS for the purpose of this
appeal.

Before entering into a discussion of the merits of plaintiff's appeal, We will say a few words as to the
nature of the action on which his demand for damages is predicated.

The nature of an action as in contract or in tort is determined from the essential elements of the
complaint, taken as a whole, in the case of doubt a construction to sustain the action being given to it.

While the prayer for relief or measure of damages sought does not necessarily determine the character
of the action, it may be material in the determination of the question and therefore entitled to
consideration and in case of doubt will open determine character of the action and indeed there are
actions whose character is necessarily determined thereby. (1 C.J.S. 1100)

A mere perusal of plaintiff complaint will show that his action against the defendant is predicated on an
alleged breach of contract of carriage, i.e., the failure of the defendant to bring him "safely and without
mishaps" to his destination, and it is to be noted that the chauffeur of defendant's taxicab that plaintiff
used when he received the injuries involved herein, Gregorio Mira, has not even been made a party
defendant to this case.

Considering, therefore, the nature of plaintiff's action in this case, is he entitled to compensation for
moral damages? Article 2219 of the Civil Code says the following:

ART. 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in Article 309;

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34 and 35.
xxx xxx xxx

Of the cases enumerated in the just quoted Article 2219 only the first two may have any bearing on the
case at bar. We find, however, with regard to the first that the defendant herein has not committed in
connection with this case any "criminal offense resulting in physical injuries". The one that committed
the offense against the plaintiff is Gregorio Mira, and that is why he has been already prosecuted and
punished therefor. Although (a) owners and managers of an establishment or enterprise are responsible
for damages caused by their employees in the service of the branches in which the latter are employed
or on the occasion of their functions; (b) employers are likewise liable for damages caused by their
employees and household helpers acting within the scope of their assigned task (Article 2180 of the Civil
Code); and (c) employers and corporations engaged in any kind of industry are subsidiarily civilly liable
for felonies committed by their employees in the discharge of their duties (Art. 103, Revised Penal
Code), plaintiff herein does not maintain this action under the provisions of any of the articles of the
codes just mentioned and against all the persons who might be liable for the damages caused, but as a
result of an admitted breach of contract of carriage and against the defendant employer alone. We,
therefore, hold that the case at bar does not come within the exception of paragraph 1, Article 2219 of
the Civil Code.

The present complaint is not based either on a "quasi delict causing physical injuries" (Art. 2219 par. 2,
of the Civil Code). From the report of the Code Commission on the new Civil Code We copy the
following:

A question of nomenclature confronted the Commission. After a careful deliberation, it was agreed to
use the term "quasi-delict" for those obligations which do not arise from law, contracts quasi-contracts
or criminal offenses. They are known in Spanish legal treatises as "culpa aquiliana", "culpa-extra-
contractual" or "cuasi-delitos". The phrase "culpa-extra-contractual" or its translation "extra-contractual
fault" was eliminated because it did not exclude quasi-contractual or penal obligations. "Aquilian fault"
might have been selected, but it was thought inadvisable to refer to so ancient a law as the "Lex
Aquilia". So "quasi-delicts" was chosen, which more nearly corresponds to the Roman Law classification
of obligations, and is in harmony with the nature of this kind of liability.

The Commission also thought of the possibility of adopting the word "tort" from Anglo-American Law.
But "tort" under that system is much broader than the Spanish-Philippine concept of obligations arising
from non-contractual negligence." "Tort" in Anglo-American jurisprudence includes not only negligence,
but also intentional criminal acts, such as assault and battery, false imprisonment and deceit. In the
general plan of the Philippine legal system, intentional and malicious are governed by the Penal Code,
although certain exceptions are made in the Project. (Report of the Code Commission, pp. 161-162).

In the case of Cangco vs. Manila Railroad, 38 Phil. 768, We established the distinction between
obligation derived from negligence and obligation as a result of a breach of a contract. Thus, We said:

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 the legal view
point from that presumptive responsibility for the negligence of its servants, imposed by Article 1903 of
the Civil Code (Art. 2180 of the new), which can be rebutted by proof of the exercise of due care in their
selection or supervision. Article 1903 is not applicable to obligation 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.

The decisions in the cases of Castro vs. Acro Taxicab (82 Phil., 359, 46 Off. Gaz., Na. 5, p. 2023); Lilius et
al. vs. Manila Railroad, (59 Phil. 758) and others, wherein moral damages, are awarded to the plaintiffs,
are not applicable to the case at bar because said decisions were rendered before the effectivity of the
new Civil Code (August 30, 1950) and for the further reason that the complaints filed therein were based
on different causes of action.

In view of the foregoing the sum of P2,000 awarded as moral damages by the trial Court has to be
eliminated, for under the law it is not a compensation awardable in a case like the one at bar.

As to plaintiff's demand for P5,000 as attorney's fees, the Civil Code provides the following:

ART, 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial
costs, cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to
incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident had faith in refusing to satisfy the plaintiff's plainly
valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;

(8) in actions for indemnity under workmen's compensation and employers liability laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of
litigation should be recovered.

In all cases, the attorney's fees and expenses of litigation must be reasonable.

The present case does not come under any of exceptions enumerated in the preceding article, specially
of paragraph 2 thereof, because defendant's failure to meet its responsibility was not the plaintiff to
litigate or to incur expenses to protect his interests. The present action was instituted because plaintiff
an exorbitant amount for damages (P60,000) and naturally the defendant did not and could not yield to
such demand. This is neither a case that comes under paragraph 11 of Article 2208 because the Lower
Court did not deem it just and equitable to award any amount for attorney's fees. As We agree with the
trial Judge on this point, We cannot declare that he erred for not awarding to plaintiff any such fees in
this case.

Coming now to the appeal of the defendant, the Court, after due consideration of the evidence
appearing on record:

(1) Approves the award of P700 for medicine, doctors' fees and transportation expenses;

(2) Reduces the award of P3,000 as attorney's fees to the sum of P2,000, as Manolo Maddela, defendant
in Criminal Case No. 364 of the Court of First Instance of Nueva Vizcaya testified that he has already paid
to plaintiff part of the latter's fees of P3,000, the amount of which was not disclosed, though it was
incumbent upon the plaintiff to establish how much he had been paid of said fees;

(3) Approves the award of P200 as unearned professional fees as attorney for the defendant in Civil Case
No. 238191 of the Municipal Court of Manila whom plaintiff was unable to represent, and for the latter's
failure to take the deposition of one Agripina Angrepan due to the automobile accident referred to in
this case.

Before closing this decision We deem it convenient to quote the following passage of defendant's brief
as appellant:

Realizing its obligation under its contract of carriage with the plaintiff, and because the facts of the case,
as have been shown, mark it as more proper for the Municipal Court only, the defendant, to avoid the
expense and time of litigation, offered to settle the case amicably with plaintiff, but the latter refused
and insisted on his demand for P72,050.20 (Exhibit K) as the only basis for settlement, thus adding a
clearly petty case to the already overflowing desk of the Honorable Members of this Court.

We admire and respect at all times a man for standing up and fighting for his rights, and when said right
consists in injuries sustained due to a breach of a contract of carriage with us, sympathy and
understanding are added thereto. But when a person starts demanding P72,050.20 for a solitary bruise
and sprain, injuries for which the trial court, even at its generous although erroneous best, could only
grant P5,900, then respect and sympathy give way to something else. It is time to fight, for, in our
humble opinion, there is nothing more loathsome nor truly worthy of condemnation than one who uses
his injuries for other purposes than just rectification. If plaintiff's claim is granted, it would be a blessing,
not a misfortune, to be injured. (p. 34-35)

This case was instituted by a lawyer who, as an officer of the courts, should be the first in helping Us in
the administration of justice, and after going over the record of this case, we do not hesitate to say that
the demand of P72,050.20 for a subluxation of the right humerus bone and an insignificant contusion in
the chest, has not even the semblance of reasonableness. As a matter of fact, Dr. Aguilar himself said
that the x-ray plates (Exhibits A, Band C) " did not show anything significant except that it shows a slight
subluxation of the right shoulder, and that there is a suspicious fracture", which ultimately he admitted
not to exist. The plaintiff himself must have felt embarrassed by his own attitude when after receiving
defendant's brief as appellant, he makes in his brief as appellee the categorical statement that he DOES
NOT NOW INSIST NOR PRETEND IN THE LEAST to Collect from the defendant all the damages he had
claimed in his complaint, but instead he is submitting his case to the sound discretion of the Honorable
Court for the award of a reasonable and equitable damages allowable by law, to compensate the
plaintiff of the suffering and losses he had undergone and incurred of the accident oftentimes
mentioned in this brief in which plaintiff was injured" (p. 17-18).This acknowledgment comes too late,
for plaintiff has already deprived the Court of Appeals of the occasion to exercise its appellate
jurisdiction over this case which he recklessly dumped to this Court. We certainly cannot look with at
favor at his attitude of plaintiff.

WHEREFORE, the decision appealed from is hereby modified by reducing the amount awarded as
professional fees from P3,000 to P2,000 and by eliminating the moral damages of P2,000 awarded by
the Lower Court to the plaintiff. Said decision is in all other respects affirmed, without pronouncement
as to costs. It is so ordered.