G.R. No. L-12219 March 15, 1918
The
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
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.
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.
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U.
CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and
LEONARDO DIONISIO, respondents.
In the early morning of 15 November 1975 — at
about 1:30 a.m. — private respondent Leonardo Dionisio
was on his way home — he lived in 1214-B Zamora
Street, Bangkal, Makati — from a cocktails-and-dinner
meeting with his boss, the general manager of a
marketing corporation. During the cocktails phase of the
evening, Dionisio had taken "a shot or two" of liquor.
Dionisio was driving his Volkswagen car and had just
crossed the intersection of General Lacuna and General
Santos Streets at Bangkal, Makati, not far from his home,
and was proceeding down General Lacuna Street, when
his car headlights (in his allegation) suddenly failed. He
switched his headlights on "bright" and thereupon he
saw a Ford dump truck looming some 2-1/2 meters away
from his car. The dump truck, owned by and registered in
the name of petitioner Phoenix Construction Inc.
("Phoenix"), was parked on the right hand side of
General Lacuna Street (i.e., on the right hand side of a
person facing in the same direction toward which
Dionisio's car was proceeding), facing the oncoming
traffic. The dump truck was parked askew (not parallel to
the street curb) in such a manner as to stick out onto the
street, partly blocking the way of oncoming traffic. There
were no lights nor any so-called "early warning" reflector
devices set anywhere near the dump truck, front or rear.
The dump truck had earlier that evening been driven
home by petitioner Armando U. Carbonel, its regular
driver, with the permission of his employer Phoenix, in
view of work scheduled to be carried out early the
following morning, Dionisio claimed that he tried to avoid
a collision by swerving his car to the left but it was too
late and his car smashed into the dump truck. As a result
of the collision, Dionisio suffered some physical injuries
including some permanent facial scars, a "nervous
breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in
the Court of First Instance of Pampanga basically
claiming that the legal and proximate cause of his
injuries was the negligent manner in which Carbonel had
parked the dump truck entrusted to him by his employer
Phoenix. Phoenix and Carbonel, on the other hand,
countered that the proximate cause of Dionisio's injuries
was his own recklessness in driving fast at the time of
the accident, while under the influence of liquor, without
his headlights on and without a curfew pass. Phoenix
also sought to establish that it had exercised due rare in
the selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of
Dionisio and against Phoenix and Carbonel and ordered
the latter:
(1) To pay plaintiff jointly and severally the sum of P
15,000.00 for hospital bills and the replacement of the
lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P
1,50,000.-00 as loss of expected income for plaintiff
brought about the accident in controversy and which is
the result of the negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P
10,000. as moral damages for the unexpected and
sudden withdrawal of plaintiff from his lifetime career as
a marketing man; mental anguish, wounded feeling,
serious anxiety, social humiliation, besmirched
reputation, feeling of economic insecurity, and the untold
sorrows and frustration in life experienced by plaintiff
and his family since the accident in controversy up to the
present time;
(4) To pay plaintiff jointly and severally the sum of P
10,000.00 as damages for the wanton disregard of
defendants to settle amicably this case with the plaintiff
before the filing of this case in court for a smaller
amount.
(5) To pay the plaintiff jointly and severally the sum of P
4,500.00 due as and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
 Phoenix and Carbonel appealed to the
Intermediate Appellate Court. That court in CA-G.R. No.
65476 affirmed the decision of the trial court but modified
the award of damages to the following extent:
1. The award of P15,000.00 as compensatory damages
was reduced to P6,460.71, the latter being the only
amount that the appellate court found the plaintiff to
have proved as actually sustained by him;
2. The award of P150,000.00 as loss of expected income
was reduced to P100,000.00, basically because Dionisio
had voluntarily resigned his job such that, in the opinion
of the appellate court, his loss of income "was not solely
attributable to the accident in question;" and
3. The award of P100,000.00 as moral damages was held
by the appellate court as excessive and unconscionable
and hence reduced to P50,000.00.
The award of P10,000.00 as exemplary damages
and P4,500.00 as attorney's fees and costs remained
untouched.
This decision of the Intermediate Appellate Court
is now before us on a petition for review.
Both the trial court and the appellate court had
made fairly explicit findings of fact relating to the manner
in which the dump truck was parked along General
Lacuna Street on the basis of which both courts drew the
inference that there was negligence on the part of
Carbonel, the dump truck driver, and that this negligence
was the proximate cause of the accident and Dionisio's
injuries. We note, however, that both courts failed to
pass upon the defense raised by Carbonel and Phoenix
that the true legal and proximate cause of the accident
was not the way in which the dump truck had been
parked but rather the reckless way in which Dionisio had
driven his car that night when he smashed into the dump
truck. The Intermediate Appellate Court in its questioned
decision casually conceded that Dionisio was "in some
way, negligent" but apparently failed to see the relevance
of Dionisio's negligence and made no further mention of
it. We have examined the record both before the trial
court and the Intermediate Appellate Court and we find
that both parties had placed into the record sufficient
evidence on the basis of which the trial court and the
appellate court could have and should have made
findings of fact relating to the alleged reckless manner in
which Dionisio drove his car that night. The petitioners
Phoenix and Carbonel contend that if there was
negligence in the manner in which the dump truck was
parked, that negligence was merely a "passive and static
condition" and that private respondent Dionisio's
recklessness constituted an intervening, efficient cause
determinative of the accident and the injuries he
sustained. The need to administer substantial justice as
between the parties in this case, without having to
remand it back to the trial court after eleven years,
compels us to address directly the contention put
forward by the petitioners and to examine for ourselves
the record pertaining to Dionisio's alleged negligence
which must bear upon the liability, or extent of liability, of
Phoenix and Carbonel.
There are four factual issues that need to be
looked into: (a) whether or not private respondent
Dionisio had a curfew pass valid and effective for that
eventful night; (b) whether Dionisio was driving fast or
speeding just before the collision with the dump truck;
(c) whether Dionisio had purposely turned off his car's
headlights before contact with the dump truck or whether
those headlights accidentally malfunctioned moments
before the collision; and (d) whether Dionisio was
intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it
is clear that no curfew pass was found on the person of
Dionisio immediately after the accident nor was any
found in his car. Phoenix's evidence here consisted of
the testimony of Patrolman Cuyno who had taken
Dionisio, unconscious, to the Makati Medical Center for
emergency treatment immediately after the accident. At
the Makati Medical Center, a nurse took off Dionisio's
clothes and examined them along with the contents of
pockets together with Patrolman Cuyno. Private
respondent Dionisio was not able to produce any curfew
pass during the trial. Instead, he offered the explanation
that his family may have misplaced his curfew pass. He
also offered a certification (dated two years after the
accident) issued by one Major Benjamin N. Libarnes of
the Zone Integrated Police Intelligence Unit of Camp
Olivas, San Fernando, Pampanga, which was said to
have authority to issue curfew passes for Pampanga and
Metro Manila. This certification was to the effect that
private respondent Dionisio had a valid curfew pass. This
certification did not, however, specify any pass serial
number or date or period of effectivity of the supposed
curfew pass. We find that private respondent Dionisio
was unable to prove possession of a valid curfew pass
during the night of the accident and that the
preponderance of evidence shows that he did not have
such a pass during that night. The relevance of
possession or non-possession of a curfew pass that
night lies in the light it tends to shed on the other related
issues: whether Dionisio was speeding home and
whether he had indeed purposely put out his headlights
before the accident, in order to avoid detection and
possibly arrest by the police in the nearby police station
for travelling after the onset of curfew without a valid
curfew pass.
On the second issue — whether or not Dionisio
was speeding home that night — both the trial court and
the appellate court were completely silent.
The defendants in the trial court introduced the
testimony of Patrolman Cuyno who was at the scene of
the accident almost immediately after it occurred, the
police station where he was based being barely 200
meters away. Patrolman Cuyno testified that people who
had gathered at the scene of the accident told him that
Dionisio's car was "moving fast" and did not have its
headlights on. 2 Dionisio, on the other hand, claimed that
he was travelling at a moderate speed at 30 kilometers
per hour and had just crossed the intersection of General
Santos and General Lacuna Streets and had started to
accelerate when his headlights failed just before the
collision took place. 3
Private respondent Dionisio asserts that
Patrolman Cuyno's testimony was hearsay and did not
fag within any of the recognized exceptions to the
hearsay rule since the facts he testified to were not
acquired by him through official information and had not
been given by the informants pursuant to any duty to do
so. Private respondent's objection fails to take account
of the fact that the testimony of Patrolman Cuyno is
admissible not under the official records exception to the
hearsay rule 4 but rather as part of the res gestae. 5
Testimonial evidence under this exception to the hearsay
rule consists of excited utterances made on the occasion
of an occurrence or event sufficiently startling in nature
so as to render inoperative the normal reflective thought
processes of the observer and hence made as a
spontaneous reaction to the occurrence or event, and
not the result of reflective thought. 6
We think that an automobile speeding down a
street and suddenly smashing into a stationary object in
the dead of night is a sufficiently startling event as to
evoke spontaneous, rather than reflective, reactions from
observers who happened to be around at that time. The
testimony of Patrolman Cuyno was therefore admissible
as part of the res gestae and should have been
considered by the trial court. Clearly, substantial weight
should have been ascribed to such testimony, even
though it did not, as it could not, have purported to
describe quantitatively the precise velocity at winch
Dionisio was travelling just before impact with the
Phoenix dump truck.
A third related issue is whether Dionisio
purposely turned off his headlights, or whether his
headlights accidentally malfunctioned, just moments
before the accident. The Intermediate Appellate Court
expressly found that the headlights of Dionisio's car
went off as he crossed the intersection but was non-
committal as to why they did so. It is the petitioners'
contention that Dionisio purposely shut off his
headlights even before he reached the intersection so as
not to be detected by the police in the police precinct
which he (being a resident in the area) knew was not far
away from the intersection. We believe that the
petitioners' theory is a more credible explanation than
that offered by private respondent Dionisio — i.e., that he
had his headlights on but that, at the crucial moment,
these had in some mysterious if convenient way
malfunctioned and gone off, although he succeeded in
switching his lights on again at "bright" split seconds
before contact with the dump truck.
A fourth and final issue relates to whether
Dionisio was intoxicated at the time of the accident. The
evidence here consisted of the testimony of Patrolman
Cuyno to the effect that private respondent Dionisio
smelled of liquor at the time he was taken from his
smashed car and brought to the Makati Medical Center in
an unconscious condition. 7 This testimony has to be
taken in conjunction with the admission of Dionisio that
he had taken "a shot or two" of liquor before dinner with
his boss that night. We do not believe that this evidence
is sufficient to show that Dionisio was so heavily under
the influence of liquor as to constitute his driving a
motor vehicle per se an act of reckless imprudence. 8
There simply is not enough evidence to show how much
liquor he had in fact taken and the effects of that upon
his physical faculties or upon his judgment or mental
alertness. We are also aware that "one shot or two" of
hard liquor may affect different people differently.
The conclusion we draw from the factual
circumstances outlined above is that private respondent
Dionisio was negligent the night of the accident. He was
hurrying home that night and driving faster than he
should have been. Worse, he extinguished his headlights
at or near the intersection of General Lacuna and General
Santos Streets and thus did not see the dump truck that
was parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First
Instance and the Intermediate Appellate Court that the
legal and proximate cause of the accident and of
Dionisio's injuries was the wrongful — or negligent
manner in which the dump truck was parked in other
words, the negligence of petitioner Carbonel. That there
was a reasonable relationship between petitioner
Carbonel's negligence on the one hand and the accident
and respondent's injuries on the other hand, is quite
clear. Put in a slightly different manner, the collision of
Dionisio's car with the dump truck was a natural and
foreseeable consequence of the truck driver's
negligence.
The petitioners, however, urge that the truck
driver's negligence was merely a "passive and static
condition" and that private respondent Dionisio's
negligence was an "efficient intervening cause and that
consequently Dionisio's negligence must be regarded as
the legal and proximate cause of the accident rather than
the earlier negligence of Carbonel. We note that the
petitioners' arguments are drawn from a reading of some
of the older cases in various jurisdictions in the United
States but we are unable to persuade ourselves that
these arguments have any validity for our jurisdiction.
We note, firstly, that even in the United States, the
distinctions between "cause" and "condition" which the
'petitioners would have us adopt have already been
"almost entirely discredited." Professors and Keeton
make this quite clear:
Cause and condition. Many courts have sought to
distinguish between the active "cause" of the harm and
the existing "conditions" upon which that cause
operated. If the defendant has created only a passive
static condition which made the damage possible, the
defendant is said not to be liable. But so far as the fact of
causation is concerned, in the sense of necessary
antecedents which have played an important part in
producing the result it is quite impossible to distinguish
between active forces and passive situations,
particularly since, as is invariably the case, the latter are
the result of other active forces which have gone before.
The defendant who spills gasoline about the premises
creates a "condition," but the act may be culpable
because of the danger of fire. When a spark ignites the
gasoline, the condition has done quite as much to bring
about the fire as the spark; and since that is the very risk
which the defendant has created, the defendant will not
escape responsibility. Even the lapse of a considerable
time during which the "condition" remains static will not
necessarily affect liability; one who digs a trench in the
highway may still be liable to another who fans into it a
month afterward. "Cause" and "condition" still find
occasional mention in the decisions; but the distinction
is now almost entirely discredited. So far as it has any
validity at all, it must refer to the type of case where the
forces set in operation by the defendant have come to
rest in a position of apparent safety, and some new force
intervenes. But even in such cases, it is not the
distinction between "cause" and "condition" which is
important but the nature of the risk and the character of
the intervening cause. 9
We believe, secondly, that the truck driver's
negligence far from being a "passive and static
condition" was rather an indispensable and efficient
cause. The collision between the dump truck and the
private respondent's car would in an probability not have
occurred had the dump truck not been parked askew
without any warning lights or reflector devices. The
improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this
risk, the truck driver must be held responsible. In our
view, Dionisio's negligence, although later in point of
time than the truck driver's negligence and therefore
closer to the accident, was not an efficient intervening or
independent cause. What the Petitioners describe as an
"intervening cause" was no more than a foreseeable
consequent manner which the truck driver had parked
the dump truck. In other words, the petitioner truck driver
owed a duty to private respondent Dionisio and others
similarly situated not to impose upon them the very risk
the truck driver had created. Dionisio's negligence was
not of an independent and overpowering nature as to cut,
as it were, the chain of causation in fact between the
improper parking of the dump truck and the accident, nor
to sever the juris vinculum of liability. It is helpful to
quote once more from Professor and Keeton:
Foreseeable Intervening Causes. If the
intervening cause is one which in ordinary human
experience is reasonably to be anticipated or one which
the defendant has reason to anticipate under the
particular circumstances, the defendant may be
negligence among other reasons, because of failure to
guard against it; or the defendant may be negligent only
for that reason. Thus one who sets a fire may be required
to foresee that an ordinary, usual and customary wind
arising later wig spread it beyond the defendant's own
property, and therefore to take precautions to prevent
that event. The person who leaves the combustible or
explosive material exposed in a public place may foresee
the risk of fire from some independent source. ... In all of
these cases there is an intervening cause combining
with the defendant's conduct to produce the result and in
each case the defendant's negligence consists in failure
to protect the plaintiff against that very risk.
Obviously the defendant cannot be relieved from
liability by the fact that the risk or a substantial and
important part of the risk, to which the defendant has
subjected the plaintiff has indeed come to pass.
Foreseeable intervening forces are within the scope
original risk, and hence of the defendant's negligence.
The courts are quite generally agreed that intervening
causes which fall fairly in this category will not
supersede the defendant's responsibility.
 Thus it has been held that a defendant will be
required to anticipate the usual weather of the vicinity,
including all ordinary forces of nature such as usual
wind or rain, or snow or frost or fog or even lightning;
that one who leaves an obstruction on the road or a
railroad track should foresee that a vehicle or a train will
run into it; ...
The risk created by the defendant may include
the intervention of the foreseeable negligence of
others. ... [The standard of reasonable conduct may
require the defendant to protect the plaintiff against 'that
occasional negligence which is one of the ordinary
incidents of human life, and therefore to be anticipated.'
Thus, a defendant who blocks the sidewalk and forces
the plaintiff to walk in a street where the plaintiff will be
exposed to the risks of heavy traffic becomes liable when
the plaintiff is run down by a car, even though the car is
negligently driven; and one who parks an automobile on
the highway without lights at night is not relieved of
responsibility when another negligently drives into it.
We hold that private respondent Dionisio's
negligence was "only contributory," that the "immediate
and proximate cause" of the injury remained the truck
driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though such
damages are subject to mitigation by the courts (Article
2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to
as the "last clear chance" doctrine. The theory here of
petitioners is that while the petitioner truck driver was
negligent, private respondent Dionisio had the "last clear
chance" of avoiding the accident and hence his injuries,
and that Dionisio having failed to take that "last clear
chance" must bear his own injuries alone. The last clear
chance doctrine of the common law was imported into
our jurisdiction by Picart vs. Smith but it is a matter for
debate whether, or to what extent, it has found its way
into the Civil Code of the Philippines. The historical
function of that doctrine in the common law was to
mitigate the harshness of another common law doctrine
or rule that of contributory negligence. The common law
rule of contributory negligence prevented any recovery
at all by a plaintiff who was also negligent, even if the
plaintiff's negligence was relatively minor as compared
with the wrongful act or omission of the defendant. The
common law notion of last clear chance permitted courts
to grant recovery to a plaintiff who had also been
negligent provided that the defendant had the last clear
chance to avoid the casualty and failed to do so.
Accordingly, it is difficult to see what role, if any, the
common law last clear chance doctrine has to play in a
jurisdiction where the common law concept of
contributory negligence as an absolute bar to recovery
by the plaintiff, has itself been rejected, as it has been in
Article 2179 of the Civil Code of the Philippines.
Is there perhaps a general concept of "last clear
chance" that may be extracted from its common law
matrix and utilized as a general rule in negligence cases
in a civil law jurisdiction like ours? We do not believe so.
Under Article 2179, the task of a court, in technical terms,
is to determine whose negligence — the plaintiff's or the
defendant's — was the legal or proximate cause of the
injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners
seem to imply by the use of terms like "last" or
"intervening" or "immediate." The relative location in the
continuum of time of the plaintiff's and the defendant's
negligent acts or omissions, is only one of the relevant
factors that may be taken into account. Of more
fundamental importance are the nature of the negligent
act or omission of each party and the character and
gravity of the risks created by such act or omission for
the rest of the community. The petitioners urge that the
truck driver (and therefore his employer) should be
absolved from responsibility for his own prior negligence
because the unfortunate plaintiff failed to act with that
increased diligence which had become necessary to
avoid the peril precisely created by the truck driver's own
wrongful act or omission. To accept this proposition is to
come too close to wiping out the fundamental principle
of law that a man must respond for the forseeable
consequences of his own negligent act or omission. Our
law on quasi-delicts seeks to reduce the risks and
burdens of living in society and to allocate them among
the members of society. To accept the petitioners' pro-
position must tend to weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a
presumption of negligence on the part of his employer
Phoenix in supervising its employees properly and
adequately. The respondent appellate court in effect
found, correctly in our opinion, that Phoenix was not able
to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver to
bring the dump truck to his home whenever there was
work to be done early the following morning, when
coupled with the failure to show any effort on the part of
Phoenix to supervise the manner in which the dump
truck is parked when away from company premises, is an
affirmative showing of culpa in vigilando on the part of
Phoenix.
Turning to the award of damages and taking into
account the comparative negligence of private
respondent Dionisio on one hand and petitioners
Carbonel and Phoenix upon the other hand, 17 we
believe that the demands of substantial justice are
satisfied by allocating most of the damages on a 20-80
ratio. Thus, 20% of the damages awarded by the
respondent appellate court, except the award of
P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs, shall be borne by private
respondent Dionisio; only the balance of 80% needs to
be paid by petitioners Carbonel and Phoenix who shall
be solidarity liable therefor to the former. The award of
exemplary damages and attorney's fees and costs shall
be borne exclusively by the petitioners. Phoenix is of
course entitled to reimbursement from Carbonel. 18 We
see no sufficient reason for disturbing the reduced award
of damages made by the respondent appellate court.
WHEREFORE, the decision of the respondent
appellate court is modified by reducing the aggregate
amount of compensatory damages, loss of expected
income and moral damages private respondent Dionisio
is entitled to by 20% of such amount. Costs against the
petitioners.
SO ORDERED.
TOMAS BERNAL and FORTUNATA ENVERSO, plaintiffs-
appellants,
vs.
J. V. HOUSE and TACLOBAN ELECTRIC and ICE PLANT,
LTD., defendants-appellee.
The parents of the five-year old child, Purificacion
Bernal, appeal from a judgment of the Court of First
Instance of Leyte, which denied them P15,000 damages
from J.V. House and the Tacloban Electric & Ice Plant,
Ltd., for the death of the child as a consequence of burns
alleged to have been caused by the fault and negligence
of the defendants.
The salient facts as found by the trial judge are the
following:
On the evening of April 10, 1925, the procession
of Holy Friday was held in Tacloban, Leyte. Fortunata
Enverso with her daughter Purificacion Bernal came from
another municipality to attend the religious celebration.
After the procession was over, the woman and her
daughter, accompanied by two other persons by the
names of Fausto and Elias, passed along a public street
named Gran Capitan. The little girl was allowed to get a
short distance in advance of her mother and her friends.
When in front of the offices of the Tacloban Electric & Ice
Plant, Ltd., and automobile appeared from the opposite
direction which so frightened the child that she turned to
run, with the result that she fell into the street gutter. At
that time there was hot water in this gutter or ditch
coming from the Electric Ice Plant of J.V. House. When
the mother and her companions reached the child, they
found her face downward in the hot water. Her clothes
were immediately removed and, then covered with a
garment, the girl was taken to the provincial hospital.
There she was attended by the resident physician, Dr.
Victoriano A. Benitez. Despite his efforts, the child died
that same night at 11:40 o'clock.
Dr. Benitez, who, of course, was in a better
position than any one to know the cause of the death,
and who had no reason to depart from the true facts,
certified that the cause of death was "Burns, 3rd Degree,
whole Body", and that the contributory causes were
"Congestion of the Brain and visceras of the chest &
abdomen". The same physician in his general record in
the Leyte Hospital for this patient, under diagnosis in full,
stated: "Burned 3rd Degree, whole body". The treatment
record of the attending nurse was much to the same
effect.
The defense was that the hot water was permitted
to flow down the side of the street Gran Captain with the
knowledge and consent of the authorities; that the cause
of death was other than the hot water; and that in the
death the plaintiffs contributed by their own fault and
negligence. The trial judge, however, after examination of
the evidence presented by the defendants, failed to
sustain their theory of the case, except as to the last
mentioned special defense. We are shown no good
reason for the departing from the conclusion of the trial
judge to the effect that the sudden death of the child
Purification Bernal was due principally to the nervous
shock and organic calefaction produced by the extensive
burns from the hot water. "The danger from burns is
proportional rather to the extent of surface involved than
to the depth of the burn". (Wharton & Stille's Medical
Jurisprudence, vol. 3, p. 263). The same authority
continues. "Burns of the first degree, covering two-thirds
of the body surface, are rarely recovered from. . . .
Children seem especially susceptible to the effect of
burns." (Pp. 263, 264).
Although the trial judge made the findings of fact
hereinbefore outlined, he nevertheless was led to order
the dismissal of the action because of the contributory
negligence of the plaintiffs. It is from this point that a
majority of the court depart from the stand taken by the
trial judge. The mother and her child had a perfect right
to be on the principal street of Tacloban, Leyte, on the
evening when the religious procession was held. There
was nothing abnormal in allowing the child to run along a
few paces in advance of the mother. No one could
foresee the coincidence of an automobile appearing and
of a frightened child running and falling into a ditch filled
with hot water. The doctrines announced in the much
debated case of Rakes vs. Atlantic, Gulf and Pacific Co.
([1907], 7 Phil., 359), still rule. Article 1902 of the Civil
Code must again be enforced. The contributory
negligence of the child and her mother, if any, does not
operate as a bar to recovery, but in its strictest sense
could only result in reduction of the damages.
Having reached the conclusion that liability
exists, we next turn to discover who can recover
damages for the obligation, and against whom the action
will lie. The plaintiffs are Tomas Bernal and Fortunata
Enverso. The latter was the mother of Purificacion Bernal
and the former was the natural father, who had never
legally recognized his child. The daughter lived with the
mother, and presumably was supported by her. Under
these facts, recovery should be permitted the mother but
not the father. As to the defendants, they are J.V. House
and the Tacloban Electric & Ice Plant, Ltd., J.V. House
was granted a franchise by Act No. 2700 of the Philippine
Legislature approved on March 9, 1917. He only
transferred this franchise formally to the Tacloban
Electric & Ice Plant, Ltd. on March 30, 1926, that is, nearly
a year after the death of the child Purificacion Bernal.
Under these facts, J.V. House is solely responsible.
Counsel for appellees point out that there is no
satisfactory proof to establish the pecuniary loss. That is
true. But in cases of this character the law presumes a
loss because of the impossibility of exact computation.
There is not enough money in the entire world to
compensate a mother for the death of her child. In
criminal cases, the rule has been to allow as a matter of
course P1,000 as indemnity to the heirs of the deceased.
In the case of Manzanares vs. Moreta ([1918], 38 Phil.,
821), which in many respects is on all fours with the case
at bar, the same amount of P1,000 was allowed the
mother of the dead boy eight or nine years of age. The
same criterion will have to be followed in this instance.
The result will, therefore, be to accept the
findings of fact made by the trial judge; to set aside the
legal deductions flowing from those facts; to hold that
the death of the child Purificacion Bernal was the result
of fault and negligence in permitting hot water to flow
through the public streets, there to endanger the lives of
passers-by who were unfortunately enough to fall into it;
to rule that the proper plaintiff is the mother Fortunata
Enverso and not the natural father Tomas Bernal; to
likewise rule that the person responsible to the plaintiff is
J.V. House and not the entity the Tacloban Electric & Ice
Plant, Ltd.; and finally to adjudge that the amount of
recovery, without the tendering of special proof, should
be fixed, as in other cases, at P1,000.
Concordant with the pronouncements just made,
the judgment appealed from shall in part be reversed and
in the court of origin another judgment shall issue in
favor of Fortunata Enverso and against J.V. House for
the amount of P1,000, and for the costs of both
instances.
Street, Villamor, Ostrand, Johns and Villa-Real, JJ.,
concur.
Johnson, J., dissents.
G.R. No. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO
KONG, JOSE TIOPE and ELISA PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C.
AGUILAR and CRISELDA R. AGUILAR, respondents.
In this petition for review on certiorari under Rule
45 of the Rules of Court, petitioners seek the reversal of
the 17 June 1996 decision 1 of the Court of Appeals in
C.A. G.R. No. CV 37937 and the resolution 2 denying their
motion for reconsideration. The assailed decision set
aside the 15 January 1992 judgment of the Regional Trial
Court (RTC), Makati City, Branch 60 in Civil Case No.
7119 and ordered petitioners to pay damages and
attorney's fees to private respondents Conrado and
Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of
Syvel's Department Store, Makati City. Petitioners
Leonardo Kong, Jose Tiope and Elisa Panelo are the
store's branch manager, operations manager, and
supervisor, respectively. Private respondents are
spouses and the parents of Zhieneth Aguilar
(ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and
ZHIENETH were at the 2nd floor of Syvel's Department
Store, Makati City. CRISELDA was signing her credit card
slip at the payment and verification counter when she felt
a sudden gust of wind and heard a loud thud. She looked
behind her. She then beheld her daughter ZHIENETH on
the floor, her young body pinned by the bulk of the
store's gift-wrapping counter/structure. ZHIENETH was
crying and screaming for help. Although shocked,
CRISELDA was quick to ask the assistance of the people
around in lifting the counter and retrieving ZHIENETH
from the floor. 3
ZHIENETH was quickly rushed to the Makati
Medical Center where she was operated on. The next day
ZHIENETH lost her speech and thereafter communicated
with CRISELDA by writing on a magic slate. The injuries
she sustained took their toil on her young body. She died
fourteen (14) days after the accident or on 22 May 1983,
on the hospital bed. She was six years old. 4
T he cause of her death was attributed to the
injuries she sustained. The provisional medical
certificate 5 issued by ZHIENETH's attending doctor
described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to
blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to
laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private
respondents demanded upon petitioners the
reimbursement of the hospitalization, medical bills and
wake and funeral expenses 6 which they had incurred.
Petitioners refused to pay. Consequently, private
respondents filed a complaint for damages, docketed as
Civil Case No. 7119 wherein they sought the payment of
P157,522.86 for actual damages, P300,000 for moral
damages, P20,000 for attorney's fees and an unspecified
amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners
denied any liability for the injuries and consequent death
of ZHIENETH. They claimed that CRISELDA was
negligent in exercising care and diligence over her
daughter by allowing her to freely roam around in a store
filled with glassware and appliances. ZHIENETH too, was
guilty of contributory negligence since she climbed the
counter, triggering its eventual collapse on her.
Petitioners also emphasized that the counter was made
of sturdy wood with a strong support; it never fell nor
collapsed for the past fifteen years since its
construction.
Additionally, petitioner Jarco Marketing
Corporation maintained that it observed the diligence of
a good father of a family in the selection, supervision and
control of its employees. The other petitioners likewise
raised due care and diligence in the performance of their
duties and countered that the complaint was malicious
for which they suffered besmirched reputation and
mental anguish. They sought the dismissal of the
complaint and an award of moral and exemplary
damages and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint
and counterclaim after finding that the preponderance of
the evidence favored petitioners. It ruled that the
proximate cause of the fall of the counter on ZHIENETH
was her act of clinging to it. It believed petitioners'
witnesses who testified that ZHIENETH clung to the
counter, afterwhich the structure and the girl fell with the
structure falling on top of her, pinning her stomach. In
contrast, none of private respondents' witnesses testified
on how the counter fell. The trial court also held that
CRISELDA's negligence contributed to ZHIENETH's
accident.
In absolving petitioners from any liability, the trial
court reasoned that the counter was situated at the end
or corner of the 2nd floor as a precautionary measure
hence, it could not be considered as an attractive
nuisance. 8 The counter was higher than ZHIENETH. It
has been in existence for fifteen years. Its structure was
safe and well-balanced. ZHIENETH, therefore, had no
business climbing on and clinging to it.
Private respondents appealed the decision,
attributing as errors of the trial court its findings that: (1)
the proximate cause of the fall of the counter was
ZHIENETH's misbehavior; (2) CRISELDA was negligent in
her care of ZHIENETH; (3) petitioners were not negligent
in the maintenance of the counter; and (4) petitioners
were not liable for the death of ZHIENETH.
Further, private respondents asserted that
ZHIENETH should be entitled to the conclusive
presumption that a child below nine (9) years is
incapable of contributory negligence. And even if
ZHIENETH, at six (6) years old, was already capable of
contributory negligence, still it was physically impossible
for her to have propped herself on the counter. She had a
small frame (four feet high and seventy pounds) and the
counter was much higher and heavier than she was.
Also, the testimony of one of the store's former
employees, Gerardo Gonzales, who accompanied
ZHIENETH when she was brought to the emergency
room of the Makati Medical Center belied petitioners'
theory that ZHIENETH climbed the counter. Gonzales
claimed that when ZHIENETH was asked by the doctor
what she did, ZHIENETH replied, "[N]othing, I did not
come near the counter and the counter just fell on me." 9
Accordingly, Gonzales' testimony on ZHIENETH's
spontaneous declaration should not only be considered
as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to
CRISELDA for it was reasonable for her to have let go of
ZHIENETH at the precise moment that she was signing
the credit card slip.
Finally, private respondents vigorously
maintained that the proximate cause of ZHIENETH's
death, was petitioners' negligence in failing to institute
measures to have the counter permanently nailed.
On the other hand, petitioners argued that private
respondents raised purely factual issues which could no
longer be disturbed. They explained that ZHIENETH's
death while unfortunate and tragic, was an accident for
which neither CRISELDA nor even ZHIENETH could
entirely be held faultless and blameless. Further,
petitioners adverted to the trial court's rejection of
Gonzales' testimony as unworthy of credence.
As to private respondent's claim that the counter
should have been nailed to the ground, petitioners
justified that it was not necessary. The counter had been
in existence for several years without any prior accident
and was deliberately placed at a corner to avoid such
accidents. Truth to tell, they acted without fault or
negligence for they had exercised due diligence on the
matter. In fact, the criminal case 10 for homicide through
simple negligence filed by private respondents against
the individual petitioners was dismissed; a verdict of
acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of
private respondents and reversed the appealed
judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The
counter was shaped like an inverted "L" 11 with a top
wider than the base. It was top heavy and the weight of
the upper portion was neither evenly distributed nor
supported by its narrow base. Thus, the counter was
defective, unstable and dangerous; a downward pressure
on the overhanging portion or a push from the front
could cause the counter to fall. Two former employees of
petitioners had already previously brought to the
attention of the management the danger the counter
could cause. But the latter ignored their concern. The
Court of Appeals faulted the petitioners for this
omission, and concluded that the incident that befell
ZHIENETH could have been avoided had petitioners
repaired the defective counter. It was inconsequential
that the counter had been in use for some time without a
prior incident.
The Court of Appeals declared that ZHIENETH,
who was below seven (7) years old at the time of the
incident, was absolutely incapable of negligence or other
tort. It reasoned that since a child under nine (9) years
could not be held liable even for an intentional wrong,
then the six-year old ZHIENETH could not be made to
account for a mere mischief or reckless act. It also
absolved CRISELDA of any negligence, finding nothing
wrong or out of the ordinary in momentarily allowing
ZHIENETH to walk while she signed the document at the
nearby counter.
 The Court of Appeals also rejected the
testimonies of the witnesses of petitioners. It found them
biased and prejudiced. It instead gave credit to the
testimony of disinterested witness Gonzales. The Court
of Appeals then awarded P99,420.86 as actual damages,
the amount representing the hospitalization expenses
incurred by private respondents as evidenced by the
hospital's statement of account. 12 It denied an award for
funeral expenses for lack of proof to substantiate the
same. Instead, a compensatory damage of P50,000 was
awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed
decision, 13 thus:
WHEREFORE, premises considered, the judgment of the
lower court is SET ASIDE and another one is entered
against [petitioners], ordering them to pay jointly and
severally unto [private respondents] the following:
1. P50,000.00 by way of compensatory damages for the
death of Zhieneth Aguilar, with legal interest (6% p.a.)
from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization
expenses incurred; with legal interest (6% p.a.) from 27
April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney's fees; and
5. Costs.
Private respondents sought a reconsideration of
the decision but the same was denied in the Court of
Appeals' resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of
Appeals' decision and the reinstatement of the judgment
of the trial court. Petitioners primarily argue that the
Court of Appeals erred in disregarding the factual
findings and conclusions of the trial court. They stress
that since the action was based on tort, any finding of
negligence on the part of the private respondents would
necessarily negate their claim for damages, where said
negligence was the proximate cause of the injury
sustained. The injury in the instant case was the death of
ZHIENETH. The proximate cause was ZHIENETH's act of
clinging to the counter. This act in turn caused the
counter to fall on her. This and CRISELDA's contributory
negligence, through her failure to provide the proper care
and attention to her child while inside the store, nullified
private respondents' claim for damages. It is also for
these reasons that parents are made accountable for the
damage or injury inflicted on others by their minor
children. Under these circumstances, petitioners could
not be held responsible for the accident that befell
ZHIENETH.
Petitioners also assail the credibility of Gonzales
who was already separated from Syvel's at the time he
testified; hence, his testimony might have been tarnished
by ill-feelings against them.
For their part, private respondents principally
reiterated their arguments that neither ZHIENETH nor
CRISELDA was negligent at any time while inside the
store; the findings and conclusions of the Court of
Appeals are substantiated by the evidence on record; the
testimony of Gonzales, who heard ZHIENETH comment
on the incident while she was in the hospital's
emergency room should receive credence; and finally,
ZHIENETH's part of the res gestae declaration "that she
did nothing to cause the heavy structure to fall on her"
should be considered as the correct version of the
gruesome events. We deny the petition.
The two issues to be resolved are: (1) whether the
death of ZHIENETH was accidental or attributable to
negligence; and (2) in case of a finding of negligence,
whether the same was attributable to private
respondents for maintaining a defective counter or to
CRISELDA and ZHIENETH for failing to exercise due and
reasonable care while inside the store premises.
An accident pertains to an unforeseen event in
which no fault or negligence attaches to the defendant. 15
It is "a fortuitous circumstance, event or happening; an
event happening without any human agency, or if
happening wholly or partly through human agency, an
event which under the circumstances is unusual or
unexpected by the person to whom it happens." 16
On the other hand, negligence is the omission to
do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something
which a prudent and reasonable man would not do. 17
Negligence is "the failure to observe, for the protection
of the interest of another person, that degree of care,
precaution and vigilance which the circumstances justly
demand, whereby such other person suffers injury." 18
Accident and negligence are intrinsically
contradictory; one cannot exist with the other. Accident
occurs when the person concerned is exercising
ordinary care, which is not caused by fault of any person
and which could not have been prevented by any means
suggested by common prudence. 19
The test in determining the existence of
negligence is enunciated in the landmark case of Plicart
v. Smith, 20 thus: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which
an ordinarily prudent person would have used in the
same situation? If not, then he is guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH
was no accident and that ZHIENETH's death could only
be attributed to negligence.
We quote the testimony of Gerardo Gonzales who
was at the scene of the incident and accompanied
CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or
notice anything while the child was being treated?
A At the emergency room we were all surrounding the
child. And when the doctor asked the child "what did you
do," the child said "nothing, I did not come near the
counter and the counter just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon.
Basta bumagsak." 22
This testimony of Gonzales pertaining to
ZHIENETH's statement formed (and should be admitted
as) part of the res gestae under Section 42, Rule 130 of
the Rules of Court, thus:
Part of res gestae. Statements made by a person
while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to
the circumstances thereof, may be given in evidence as
part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and
giving it a legal significance, may be received as part of
the res gestae.
It is axiomatic that matters relating to
declarations of pain or suffering and statements made to
a physician are generally considered declarations and
admissions. 23 All that is required for their admissibility
as part of the res gestae is that they be made or uttered
under the influence of a startling event before the
declarant had the time to think and concoct a falsehood
as witnessed by the person who testified in court. Under
the circumstances thus described, it is unthinkable for
ZHIENETH, a child of such tender age and in extreme
pain, to have lied to a doctor whom she trusted with her
life. We therefore accord credence to Gonzales'
testimony on the matter, i.e., ZHIENETH performed no act
that facilitated her tragic death. Sadly, petitioners did,
through their negligence or omission to secure or make
stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to
keep and maintain the structurally unstable gift-wrapping
counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the
second floor, will you please describe the gift wrapping
counter, were you able to examine?
A Because every morning before I start working I used to
clean that counter and since not nailed and it was only
standing on the floor, it was shaky.
xxx xxx xxx
Q Will you please describe the counter at 5:00 o'clock
[sic] in the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing
beside the verification counter. And since the top of it
was heavy and considering that it was not nailed, it can
collapse at anytime, since the top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic]
shaky and since Mr. Maat is fond of putting display
decorations on tables, he even told me that I would put
some decorations. But since I told him that it not [sic]
nailed and it is shaky he told me "better inform also the
company about it." And since the company did not do
anything about the counter, so I also did not do anything
about the counter. 24 [Emphasis supplied]
Ramon Guevarra, another former employee,
corroborated the testimony of Gonzales, thus:
Q Will you please described [sic] to the honorable Court
the counter where you were assigned in January 1983?
xxx xxx xxx
A That counter assigned to me was when my supervisor
ordered me to carry that counter to another place. I told
him that the counter needs nailing and it has to be nailed
because it might cause injury or accident to another
since it was shaky.
Q When that gift wrapping counter was transferred at the
second floor on February 12, 1983, will you please
describe that to the honorable Court?
A I told her that the counterwrapper [sic] is really in good
[sic] condition; it was shaky. I told her that we had to nail
it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told
her that the counter was shaky?
A She told me "Why do you have to teach me. You are
only my subordinate and you are to teach me?" And she
even got angry at me when I told her that.
xxx xxx xxx
Q From February 12, 1983 up to May 9, 1983, what if any,
did Ms. Panelo or any employee of the management do to
that (sic)
xxx xxx xxx
Witness:
None, sir. They never nailed the counter. They only
nailed the counter after the accident happened. 25
[Emphasis supplied]
Without doubt, petitioner Panelo and another
store supervisor were personally informed of the danger
posed by the unstable counter. Yet, neither initiated any
concrete action to remedy the situation nor ensure the
safety of the store's employees and patrons as a
reasonable and ordinary prudent man would have done.
Thus, as confronted by the situation petitioners
miserably failed to discharge the due diligence required
of a good father of a family.
On the issue of the credibility of Gonzales and
Guevarra, petitioners failed to establish that the former's
testimonies were biased and tainted with partiality.
Therefore, the allegation that Gonzales and Guevarra's
testimonies were blemished by "ill feelings" against
petitioners — since they (Gonzales and Guevarra) were
already separated from the company at the time their
testimonies were offered in court — was but mere
speculation and deserved scant consideration.
It is settled that when the issue concerns the
credibility of witnesses, the appellate courts will not as a
general rule disturb the findings of the trial court, which
is in a better position to determine the same. The trial
court has the distinct advantage of actually hearing the
testimony of and observing the deportment of the
witnesses. 26 However, the rule admits of exceptions
such as when its evaluation was reached arbitrarily or it
overlooked or failed to appreciate some facts or
circumstances of weight and substance which could
affect the result of the case. 27 In the instant case,
petitioners failed to bring their claim within the
exception.
Anent the negligence imputed to ZHIENETH, we
apply the conclusive presumption that favors children
below nine (9) years old in that they are incapable of
contributory negligence. In his book, 28 former Judge
Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is
conclusively presumed to have acted without
discernment, and is, on that account, exempt from
criminal liability. The same presumption and a like
exemption from criminal liability obtains in a case of a
person over nine and under fifteen years of age, unless it
is shown that he has acted with discernment. Since
negligence may be a felony and a quasi-delict and
required discernment as a condition of liability, either
criminal or civil, a child under nine years of age is, by
analogy, conclusively presumed to be incapable of
negligence; and that the presumption of lack of
discernment or incapacity for negligence in the case of a
child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is that
a child under nine years of age must be conclusively
presumed incapable of contributory negligence as a
matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to
ZHIENETH and assume that she climbed over the
counter, no injury should have occurred if we accept
petitioners' theory that the counter was stable and
sturdy. For if that was the truth, a frail six-year old could
not have caused the counter to collapse. The physical
analysis of the counter by both the trial court and Court
of Appeals and a scrutiny of the evidence 29 on record
reveal otherwise, i.e., it was not durable after all. Shaped
like an inverted "L," the counter was heavy, huge, and its
top laden with formica. It protruded towards the
customer waiting area and its base was not secured. 30
CRISELDA too, should be absolved from any
contributory negligence. Initially, ZHIENETH held on to
CRISELDA's waist, later to the latter's hand. 31 CRISELDA
momentarily released the child's hand from her clutch
when she signed her credit card slip. At this precise
moment, it was reasonable and usual for CRISELDA to
let go of her child. Further, at the time ZHIENETH was
pinned down by the counter, she was just a foot away
from her mother; and the gift-wrapping counter was just
four meters away from CRISELDA. 32 The time and
distance were both significant. ZHIENETH was near her
mother and did not loiter as petitioners would want to
impress upon us. She even admitted to the doctor who
treated her at the hospital that she did not do anything;
the counter just fell on her.
WHEREFORE, in view of all the foregoing, the
instant petition is DENIED and the challenged decision of
the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV
37937 is hereby AFFIRMED.
Costs against petitioners.
FGU INSURANCE CORPORATION, petitioner, vs. THE
COURT OF APPEALS, SAN MIGUEL CORPORATION, and
ESTATE OF ANG GUI, represented by LUCIO, JULIAN,
and JAIME, all surnamed ANG, and CO TO, respondents.
[G.R. No. 140704. March 31, 2005]
ESTATE OF ANG GUI, Represented by LUCIO, JULIAN
and JAIME, all surnamed ANG, and CO TO, petitioners,
vs. THE HONORABLE COURT OF APPEALS, SAN
MIGUEL CORP., and FGU INSURANCE CORP.,
respondents.
Before Us are two separate Petitions for review
assailing the Decision[1] of the Court of Appeals in CA-
G.R. CV No. 49624 entitled, “San Miguel Corporation,
Plaintiff-Appellee versus Estate of Ang Gui, represented
by Lucio, Julian and Jaime, all surnamed Ang, and Co
To, Defendants-Appellants, Third–Party Plaintiffs versus
FGU Insurance Corporation, Third-Party Defendant-
Appellant,” which affirmed in toto the decision[2] of the
Regional Trial Court of Cebu City, Branch 22. The
dispositive portion of the Court of Appeals decision
reads:
WHEREFORE, for all the foregoing, judgment is
hereby rendered as follows:
1) Ordering defendants to pay plaintiff the
sum of P1,346,197.00 and an interest of 6% per
annum to be reckoned from the filing of this case on
October 2, 1990;
2) Ordering defendants to pay plaintiff the
sum of P25,000.00 for attorney’s fees and an
additional sum of P10,000.00 as litigation
expenses;
3) With cost against defendants.
For the Third-Party Complaint:
1) Ordering third-party defendant FGU Insurance
Company to pay and reimburse defendants the amount
of P632,700.00.[3]
The Facts
Evidence shows that Anco Enterprises Company
(ANCO), a partnership between Ang Gui and Co To, was
engaged in the shipping business. It owned the M/T
ANCO tugboat and the D/B Lucio barge which were
operated as common carriers. Since the D/B Lucio had
no engine of its own, it could not maneuver by itself and
had to be towed by a tugboat for it to move from one
place to another.
On 23 September 1979, San Miguel Corporation
(SMC) shipped from Mandaue City, Cebu, on board the
D/B Lucio, for towage by M/T ANCO, the following
cargoes:
Bill of Lading No. Shipment
Destination
1 25,000 cases Pale Pilsen
Estancia, Iloilo
350 cases Cerveza
Negra Estancia, Iloilo
2 15,000 cases Pale Pilsen
San Jose, Antique
200 cases Cerveza
Negra San Jose,
Antique
The consignee for the cargoes covered by Bill of
Lading No. 1 was SMC’s Beer Marketing Division (BMD)-
Estancia Beer Sales Office, Estancia, Iloilo, while the
consignee for the cargoes covered by Bill of Lading No. 2
was SMC’s BMD-San Jose Beer Sales Office, San Jose,
Antique.
The D/B Lucio was towed by the M/T ANCO all the
way from Mandaue City to San Jose, Antique. The
vessels arrived at San Jose, Antique, at about one
o’clock in the afternoon of 30 September 1979. The
tugboat M/T ANCO left the barge immediately after
reaching San Jose, Antique.
When the barge and tugboat arrived at San Jose,
Antique, in the afternoon of 30 September 1979, the
clouds over the area were dark and the waves were
already big. The arrastre workers unloading the cargoes
of SMC on board the D/B Lucio began to complain about
their difficulty in unloading the cargoes. SMC’s District
Sales Supervisor, Fernando Macabuag, requested
ANCO’s representative to transfer the barge to a safer
place because the vessel might not be able to withstand
the big waves.
ANCO’s representative did not heed the request
because he was confident that the barge could withstand
the waves. This, notwithstanding the fact that at that
time, only the M/T ANCO was left at the wharf of San
Jose, Antique, as all other vessels already left the wharf
to seek shelter. With the waves growing bigger and
bigger, only Ten Thousand Seven Hundred Ninety
(10,790) cases of beer were discharged into the custody
of the arrastre operator.
At about ten to eleven o’clock in the evening of
01 October 1979, the crew of D/B Lucio abandoned the
vessel because the barge’s rope attached to the wharf
was cut off by the big waves. At around midnight, the
barge run aground and was broken and the cargoes of
beer in the barge were swept away.
As a result, ANCO failed to deliver to SMC’s
consignee Twenty-Nine Thousand Two Hundred Ten
(29,210) cases of Pale Pilsen and Five Hundred Fifty (550)
cases of Cerveza Negra. The value per case of Pale
Pilsen was Forty-Five Pesos and Twenty Centavos
(P45.20). The value of a case of Cerveza Negra was
Forty-Seven Pesos and Ten Centavos (P47.10), hence,
SMC’s claim against ANCO amounted to One Million
Three Hundred Forty-Six Thousand One Hundred Ninety-
Seven Pesos (P1,346,197.00).
As a consequence of the incident, SMC filed a
complaint for Breach of Contract of Carriage and
Damages against ANCO for the amount of One Million
Three Hundred Forty-Six Thousand One Hundred Ninety-
Seven Pesos (P1,346,197.00) plus interest, litigation
expenses and Twenty-Five Percent (25%) of the total
claim as attorney’s fees.
Upon Ang Gui’s death, ANCO, as a partnership,
was dissolved hence, on 26 January 1993, SMC filed a
second amended complaint which was admitted by the
Court impleading the surviving partner, Co To and the
Estate of Ang Gui represented by Lucio, Julian and
Jaime, all surnamed Ang. The substituted defendants
adopted the original answer with counterclaim of ANCO
“since the substantial allegations of the original
complaint and the amended complaint are practically the
same.”
ANCO admitted that the cases of beer Pale Pilsen
and Cerveza Negra mentioned in the complaint were
indeed loaded on the vessel belonging to ANCO. It
claimed however that it had an agreement with SMC that
ANCO would not be liable for any losses or damages
resulting to the cargoes by reason of fortuitous event.
Since the cases of beer Pale Pilsen and Cerveza Negra
were lost by reason of a storm, a fortuitous event which
battered and sunk the vessel in which they were loaded,
they should not be held liable. ANCO further asserted
that there was an agreement between them and SMC to
insure the cargoes in order to recover indemnity in case
of loss. Pursuant to that agreement, the cargoes to the
extent of Twenty Thousand (20,000) cases was insured
with FGU Insurance Corporation (FGU) for the total
amount of Eight Hundred Fifty-Eight Thousand Five
Hundred Pesos (P858,500.00) per Marine Insurance
Policy No. 29591.
Subsequently, ANCO, with leave of court, filed a
Third-Party Complaint against FGU, alleging that before
the vessel of ANCO left for San Jose, Antique with the
cargoes owned by SMC, the cargoes, to the extent of
Twenty Thousand (20,000) cases, were insured with FGU
for a total amount of Eight Hundred Fifty-Eight Thousand
Five Hundred Pesos (P858,500.00) under Marine
Insurance Policy No. 29591. ANCO further alleged that
on or about 02 October 1979, by reason of very strong
winds and heavy waves brought about by a passing
typhoon, the vessel run aground near the vicinity of San
Jose, Antique, as a result of which, the vessel was totally
wrecked and its cargoes owned by SMC were lost and/or
destroyed. According to ANCO, the loss of said cargoes
occurred as a result of risks insured against in the
insurance policy and during the existence and lifetime of
said insurance policy. ANCO went on to assert that in
the remote possibility that the court will order ANCO to
pay SMC’s claim, the third-party defendant corporation
should be held liable to indemnify or reimburse ANCO
whatever amounts, or damages, it may be required to pay
to SMC.
In its answer to the Third-Party complaint, third-
party defendant FGU admitted the existence of the
Insurance Policy under Marine Cover Note No. 29591 but
maintained that the alleged loss of the cargoes covered
by the said insurance policy cannot be attributed directly
or indirectly to any of the risks insured against in the
said insurance policy. According to FGU, it is only liable
under the policy to Third-party Plaintiff ANCO and/or
Plaintiff SMC in case of any of the following:
a) total loss of the entire shipment;
b) loss of any case as a result of the
sinking of the vessel; or
c) loss as a result of the vessel being
on fire.
Furthermore, FGU alleged that the Third-Party
Plaintiff ANCO and Plaintiff SMC failed to exercise
ordinary diligence or the diligence of a good father of the
family in the care and supervision of the cargoes insured
to prevent its loss and/or destruction.
Third-Party defendant FGU prayed for the
dismissal of the Third-Party Complaint and asked for
actual, moral, and exemplary damages and attorney’s
fees.[1]
The trial court found that while the cargoes were
indeed lost due to fortuitous event, there was failure on
ANCO’s part, through their representatives, to observe
the degree of diligence required that would exonerate
them from liability. The trial court thus held the Estate of
Ang Gui and Co To liable to SMC for the amount of the
lost shipment. With respect to the Third-Party complaint,
the court a quo found FGU liable to bear Fifty-Three
Percent (53%) of the amount of the lost cargoes.
According to the trial court:
. . . Evidence is to the effect that the D/B Lucio, on which
the cargo insured, run-aground and was broken and the
beer cargoes on the said barge were swept away. It is
the sense of this Court that the risk insured against was
the cause of the loss.
. . .
Since the total cargo was 40,550 cases which had
a total amount of P1,833,905.00 and the amount of the
policy was only for P858,500.00, defendants as assured,
therefore, were considered co-insurers of third-party
defendant FGU Insurance Corporation to the extent of
975,405.00 value of the cargo. Consequently, inasmuch
as there was partial loss of only P1,346,197.00, the
assured shall bear 53% of the loss…[4] [Emphasis ours]
The appellate court affirmed in toto the decision
of the lower court and denied the motion for
reconsideration and the supplemental motion for
reconsideration.
Hence, the petitions.
The Issues
In G.R. No. 137775, the grounds for review raised
by petitioner FGU can be summarized into two: 1)
Whether or not respondent Court of Appeals committed
grave abuse of discretion in holding FGU liable under the
insurance contract considering the circumstances
surrounding the loss of the cargoes; and 2) Whether or
not the Court of Appeals committed an error of law in
holding that the doctrine of res judicata applies in the
instant case.
In G.R. No. 140704, petitioner Estate of Ang Gui
and Co To assail the decision of the appellate court
based on the following assignments of error: 1) The
Court of Appeals committed grave abuse of discretion in
affirming the findings of the lower court that the
negligence of the crewmembers of the D/B Lucio was the
proximate cause of the loss of the cargoes; and 2) The
respondent court acted with grave abuse of discretion
when it ruled that the appeal was without merit despite
the fact that said court had accepted the decision in Civil
Case No. R-19341, as affirmed by the Court of Appeals
and the Supreme Court, as res judicata.
Ruling of the Court
First, we shall endeavor to dispose of the
common issue raised by both petitioners in their
respective petitions for review, that is, whether or not the
doctrine of res judicata applies in the instant case.
It is ANCO’s contention that the decision in Civil
Case No. R-19341,[5] which was decided in its favor,
constitutes res judicata with respect to the issues raised
in the case at bar.
The contention is without merit. There can be no
res judicata as between Civil Case No. R-19341 and the
case at bar. In order for res judicata to be made
applicable in a case, the following essential requisites
must be present: 1) the former judgment must be final; 2)
the former judgment must have been rendered by a court
having jurisdiction over the subject matter and the
parties; 3) the former judgment must be a judgment or
order on the merits; and 4) there must be between the
first and second action identity of parties, identity of
subject matter, and identity of causes of action.[6]
There is no question that the first three elements
of res judicata as enumerated above are indeed satisfied
by the decision in Civil Case No. R-19341. However, the
doctrine is still inapplicable due to the absence of the
last essential requisite of identity of parties, subject
matter and causes of action.
The parties in Civil Case No. R-19341 were ANCO
as plaintiff and FGU as defendant while in the instant
case, SMC is the plaintiff and the Estate of Ang Gui
represented by Lucio, Julian and Jaime, all surnamed
Ang and Co To as defendants, with the latter merely
impleading FGU as third-party defendant.
The subject matter of Civil Case No. R-19341 was
the insurance contract entered into by ANCO, the owner
of the vessel, with FGU covering the vessel D/B Lucio,
while in the instant case, the subject matter of litigation
is the loss of the cargoes of SMC, as shipper, loaded in
the D/B Lucio and the resulting failure of ANCO to deliver
to SMC’s consignees the lost cargo. Otherwise stated,
the controversy in the first case involved the rights and
liabilities of the shipowner vis-à-vis that of the insurer,
while the present case involves the rights and liabilities
of the shipper vis-à-vis that of the shipowner.
Specifically, Civil Case No. R-19341 was an action for
Specific Performance and Damages based on FGU
Marine Hull Insurance Policy No. VMF-MH-13519 covering
the vessel D/B Lucio, while the instant case is an action
for Breach of Contract of Carriage and Damages filed by
SMC against ANCO based on Bill of Lading No. 1 and No.
2, with defendant ANCO seeking reimbursement from
FGU under Insurance Policy No. MA-58486, should the
former be held liable to pay SMC.
Moreover, the subject matter of the third-party
complaint against FGU in this case is different from that
in Civil Case No. R-19341. In the latter, ANCO was suing
FGU for the insurance contract over the vessel while in
the former, the third-party complaint arose from the
insurance contract covering the cargoes on board the
D/B Lucio.
The doctrine of res judicata precludes the re-
litigation of a particular fact or issue already passed
upon by a court of competent jurisdiction in a former
judgment, in another action between the same parties
based on a different claim or cause of action. The
judgment in the prior action operates as estoppel only as
to those matters in issue or points controverted, upon
the determination of which the finding or judgment was
rendered.[7] If a particular point or question is in issue in
the second action, and the judgment will depend on the
determination of that particular point or question, a
former judgment between the same parties or their
privies will be final and conclusive in the second if that
same point or question was in issue and adjudicated in
the first suit.[8]
Since the case at bar arose from the same
incident as that involved in Civil Case No. R-19341, only
findings with respect to matters passed upon by the
court in the former judgment are conclusive in the
disposition of the instant case. A careful perusal of the
decision in Civil Case No. R-19341 will reveal that the
pivotal issues resolved by the lower court, as affirmed by
both the Court of Appeals and the Supreme Court, can be
summarized into three legal conclusions: 1) that the D/B
Lucio before and during the voyage was seaworthy; 2)
that there was proper notice of loss made by ANCO
within the reglementary period; and 3) that the vessel D/B
Lucio was a constructive total loss.
Said decision, however, did not pass upon the
issues raised in the instant case. Absent therein was any
discussion regarding the liability of ANCO for the loss of
the cargoes. Neither did the lower court pass upon the
issue of the alleged negligence of the crewmembers of
the D/B Lucio being the cause of the loss of the cargoes
owned by SMC.
Therefore, based on the foregoing discussion, we are
reversing the findings of the Court of Appeals that there
is res judicata.
Anent ANCO’s first assignment of error, i.e., the
appellate court committed error in concluding that the
negligence of ANCO’s representatives was the proximate
cause of the loss, said issue is a question of fact
assailing the lower court’s appreciation of evidence on
the negligence or lack thereof of the crewmembers of the
D/B Lucio. As a rule, findings of fact of lower courts,
particularly when affirmed by the appellate court, are
deemed final and conclusive. The Supreme Court cannot
review such findings on appeal, especially when they are
borne out by the records or are based on substantial
evidence.[9] As held in the case of Donato v. Court of
Appeals,[10] in this jurisdiction, it is a fundamental and
settled rule that findings of fact by the trial court are
entitled to great weight on appeal and should not be
disturbed unless for strong and cogent reasons because
the trial court is in a better position to examine real
evidence, as well as to observe the demeanor of the
witnesses while testifying in the case.[11]
It is not the function of this Court to analyze or
weigh evidence all over again, unless there is a showing
that the findings of the lower court are totally devoid of
support or are glaringly erroneous as to constitute
palpable error or grave abuse of discretion.[12]
A careful study of the records shows no cogent
reason to fault the findings of the lower court, as
sustained by the appellate court, that ANCO’s
representatives failed to exercise the extraordinary
degree of diligence required by the law to exculpate them
from liability for the loss of the cargoes.
First, ANCO admitted that they failed to deliver to
the designated consignee the Twenty Nine Thousand
Two Hundred Ten (29,210) cases of Pale Pilsen and Five
Hundred Fifty (550) cases of Cerveza Negra.
Second, it is borne out in the testimony of the
witnesses on record that the barge D/B Lucio had no
engine of its own and could not maneuver by itself. Yet,
the patron of ANCO’s tugboat M/T ANCO left it to fend for
itself notwithstanding the fact that as the two vessels
arrived at the port of San Jose, Antique, signs of the
impending storm were already manifest. As stated by
the lower court, witness Mr. Anastacio Manilag testified
that the captain or patron of the tugboat M/T ANCO left
the barge D/B Lucio immediately after it reached San
Jose, Antique, despite the fact that there were already
big waves and the area was already dark. This is
corroborated by defendants’ own witness, Mr. Fernando
Macabueg.[13]
The trial court continued:
At that precise moment, since it is the duty of the
defendant to exercise and observe extraordinary
diligence in the vigilance over the cargo of the plaintiff,
the patron or captain of M/T ANCO, representing the
defendant could have placed D/B Lucio in a very safe
location before they left knowing or sensing at that time
the coming of a typhoon. The presence of big waves and
dark clouds could have warned the patron or captain of
M/T ANCO to insure the safety of D/B Lucio including its
cargo. D/B Lucio being a barge, without its engine, as
the patron or captain of M/T ANCO knew, could not
possibly maneuver by itself. Had the patron or captain of
M/T ANCO, the representative of the defendants
observed extraordinary diligence in placing the D/B
Lucio in a safe place, the loss to the cargo of the plaintiff
could not have occurred. In short, therefore, defendants
through their representatives, failed to observe the
degree of diligence required of them under the provision
of Art. 1733 of the Civil Code of the Philippines.[14]
Petitioners Estate of Ang Gui and Co To, in their
Memorandum, asserted that the contention of
respondents SMC and FGU that “the crewmembers of
D/B Lucio should have left port at the onset of the
typhoon is like advising the fish to jump from the frying
pan into the fire and an advice that borders on
madness.”[15]
The argument does not persuade. The records
show that the D/B Lucio was the only vessel left at San
Jose, Antique, during the time in question. The other
vessels were transferred and temporarily moved to
Malandong, 5 kilometers from wharf where the barge
remained.[16] Clearly, the transferred vessels were
definitely safer in Malandong than at the port of San
Jose, Antique, at that particular time, a fact which
petitioners failed to dispute
ANCO’s arguments boil down to the claim that
the loss of the cargoes was caused by the typhoon
Sisang, a fortuitous event (caso fortuito), and there was
no fault or negligence on their part. In fact, ANCO claims
that their crewmembers exercised due diligence to
prevent or minimize the loss of the cargoes but their
efforts proved no match to the forces unleashed by the
typhoon which, in petitioners’ own words was, by any
yardstick, a natural calamity, a fortuitous event, an act of
God, the consequences of which petitioners could not be
held liable for.[17]
The Civil Code provides:
Art. 1733. Common carriers, from the nature of their
business and for reasons of public policy are bound to
observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported
by them, according to all the circumstances of each
case.
Such extraordinary diligence in vigilance over the goods
is further expressed in Articles 1734, 1735, and 1745 Nos.
5, 6, and 7 . . .
Art. 1734. Common carriers are responsible for the loss,
destruction, or deterioration of the goods, unless the
same is due to any of the following causes only:
(1) Flood, storm, earthquake, lightning, or
other natural disaster or calamity;
. . .
Art. 1739. In order that the common carrier may be
exempted from responsibility, the natural disaster must
have been the proximate and only cause of the loss.
However, the common carrier must exercise due
diligence to prevent or minimize loss before, during and
after the occurrence of flood, storm, or other natural
disaster in order that the common carrier may be
exempted from liability for the loss, destruction, or
deterioration of the goods . . . (Emphasis supplied)
Caso fortuito or force majeure (which in law are identical
insofar as they exempt an obligor from liability)[18] by
definition, are extraordinary events not foreseeable or
avoidable, events that could not be foreseen, or which
though foreseen, were inevitable. It is therefore not
enough that the event should not have been foreseen or
anticipated, as is commonly believed but it must be one
impossible to foresee or to avoid.[19]
 In this case, the calamity which caused the loss
of the cargoes was not unforeseen nor was it
unavoidable. In fact, the other vessels in the port of San
Jose, Antique, managed to transfer to another place, a
circumstance which prompted SMC’s District Sales
Supervisor to request that the D/B Lucio be likewise
transferred, but to no avail. The D/B Lucio had no engine
and could not maneuver by itself. Even if ANCO’s
representatives wanted to transfer it, they no longer had
any means to do so as the tugboat M/T ANCO had
already departed, leaving the barge to its own devices.
The captain of the tugboat should have had the foresight
not to leave the barge alone considering the pending
storm.
While the loss of the cargoes was admittedly
caused by the typhoon Sisang, a natural disaster, ANCO
could not escape liability to respondent SMC. The
records clearly show the failure of petitioners’
representatives to exercise the extraordinary degree of
diligence mandated by law. To be exempted from
responsibility, the natural disaster should have been the
proximate and only cause of the loss.[20] There must
have been no contributory negligence on the part of the
common carrier. As held in the case of Limpangco Sons
v. Yangco Steamship Co.:[21]
. . . To be exempt from liability because of an act of God,
the tug must be free from any previous negligence or
misconduct by which that loss or damage may have been
occasioned. For, although the immediate or proximate
cause of the loss in any given instance may have been
what is termed an act of God, yet, if the tug
unnecessarily exposed the two to such accident by any
culpable act or omission of its own, it is not excused.[22]
Therefore, as correctly pointed out by the
appellate court, there was blatant negligence on the part
of M/T ANCO’s crewmembers, first in leaving the engine-
less barge D/B Lucio at the mercy of the storm without
the assistance of the tugboat, and again in failing to heed
the request of SMC’s representatives to have the barge
transferred to a safer place, as was done by the other
vessels in the port; thus, making said blatant negligence
the proximate cause of the loss of the cargoes.
We now come to the issue of whether or not FGU
can be held liable under the insurance policy to
reimburse ANCO for the loss of the cargoes despite the
findings of the respondent court that such loss was
occasioned by the blatant negligence of the latter’s
employees.
One of the purposes for taking out insurance is to
protect the insured against the consequences of his own
negligence and that of his agents. Thus, it is a basic rule
in insurance that the carelessness and negligence of the
insured or his agents constitute no defense on the part
of the insurer.[23] This rule however presupposes that
the loss has occurred due to causes which could not
have been prevented by the insured, despite the exercise
of due diligence.
The question now is whether there is a certain
degree of negligence on the part of the insured or his
agents that will deprive him the right to recover under the
insurance contract. We say there is. However, to what
extent such negligence must go in order to exonerate the
insurer from liability must be evaluated in light of the
circumstances surrounding each case. When evidence
show that the insured’s negligence or recklessness is so
gross as to be sufficient to constitute a willful act, the
insurer must be exonerated.
In the case of Standard Marine Ins. Co. v. Nome
Beach L. & T. Co.,[24] the United States Supreme Court
held that:
The ordinary negligence of the insured and his agents
has long been held as a part of the risk which the insurer
takes upon himself, and the existence of which, where it
is the proximate cause of the loss, does not absolve the
insurer from liability. But willful exposure, gross
negligence, negligence amounting to misconduct, etc.,
have often been held to release the insurer from such
liability.[25] [Emphasis ours]
...
In the case of Williams v. New England Insurance
Co., 3 Cliff. 244, Fed. Cas. No. 17,731, the owners of an
insured vessel attempted to put her across the bar at
Hatteras Inlet. She struck on the bar and was wrecked.
The master knew that the depth of water on the bar was
such as to make the attempted passage dangerous.
Judge Clifford held that, under the circumstances, the
loss was not within the protection of the policy, saying:
Authorities to prove that persons insured cannot
recover for a loss occasioned by their own wrongful acts
are hardly necessary, as the proposition involves an
elementary principle of universal application. Losses
may be recovered by the insured, though remotely
occasioned by the negligence or misconduct of the
master or crew, if proximately caused by the perils
insured against, because such mistakes and negligence
are incident to navigation and constitute a part of the
perils which those who engage in such adventures are
obliged to incur; but it was never supposed that the
insured could recover indemnity for a loss occasioned
by his own wrongful act or by that of any agent for
whose conduct he was responsible.[26] [Emphasis ours]
From the above-mentioned decision, the United
States Supreme Court has made a distinction between
ordinary negligence and gross negligence or negligence
amounting to misconduct and its effect on the insured’s
right to recover under the insurance contract. According
to the Court, while mistake and negligence of the master
or crew are incident to navigation and constitute a part of
the perils that the insurer is obliged to incur, such
negligence or recklessness must not be of such gross
character as to amount to misconduct or wrongful acts;
otherwise, such negligence shall release the insurer from
liability under the insurance contract.
In the case at bar, both the trial court and the
appellate court had concluded from the evidence that the
crewmembers of both the D/B Lucio and the M/T ANCO
were blatantly negligent. To wit:
There was blatant negligence on the part of the
employees of defendants-appellants when the patron
(operator) of the tug boat immediately left the barge at
the San Jose, Antique wharf despite the looming bad
weather. Negligence was likewise exhibited by the
defendants-appellants’ representative who did not heed
Macabuag’s request that the barge be moved to a more
secure place. The prudent thing to do, as was done by
the other sea vessels at San Jose, Antique during the
time in question, was to transfer the vessel to a safer
wharf. The negligence of the defendants-appellants is
proved by the fact that on 01 October 1979, the only
simple vessel left at the wharf in San Jose was the D/B
Lucio.[27] [Emphasis ours]
As stated earlier, this Court does not find any
reason to deviate from the conclusion drawn by the
lower court, as sustained by the Court of Appeals, that
ANCO’s representatives had failed to exercise
extraordinary diligence required of common carriers in
the shipment of SMC’s cargoes. Such blatant negligence
being the proximate cause of the loss of the cargoes
amounting to One Million Three Hundred Forty-Six
Thousand One Hundred Ninety-Seven Pesos
(P1,346,197.00)
This Court, taking into account the
circumstances present in the instant case, concludes
that the blatant negligence of ANCO’s employees is of
such gross character that it amounts to a wrongful act
which must exonerate FGU from liability under the
insurance contract.
WHEREFORE, premises considered, the Decision
of the Court of Appeals dated 24 February 1999 is hereby
AFFIRMED with MODIFICATION dismissing the third-
party complaint.
SO ORDERED.
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT
OF APPEALS, respondents.
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.
G.R. No. 114791 May 29, 1997
NANCY GO AND ALEX GO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, HERMOGENES
ONG and JANE C. ONG, respondents.
ROMERO, J.:
No less than the Constitution commands us to
protect marriage as an inviolable social institution and
the foundation of the family. 1 In our society, the
importance of a wedding ceremony cannot be
underestimated as it is the matrix of the family and,
therefore, an occasion worth reliving in the succeeding
years.
It is in this light that we narrate the following
undisputed facts:
Private respondents spouses Hermogenes and
Jane Ong were married on June 7, 1981, in Dumaguete
City. The video coverage of the wedding was provided by
petitioners at a contract price of P1,650.00. Three times
thereafter, the newlyweds tried to claim the video tape of
their wedding, which they planned to show to their
relatives in the United States where they were to spend
their honeymoon, and thrice they failed because the tape
was apparently not yet processed. The parties then
agreed that the tape would be ready upon private
respondents' return.
When private respondents came home from their
honeymoon, however, they found out that the tape had
been erased by petitioners and therefore, could no
longer be delivered.
Furious at the loss of the tape which was
supposed to be the only record of their wedding, private
respondents filed on September 23, 1981 a complaint for
specific performance and damages against petitioners
before the Regional Trial Court, 7th Judicial District,
Branch 33, Dumaguete City. After a protracted trial, the
court a quo rendered a decision, to wit:
WHEREFORE, judgment is hereby
granted:
1. Ordering the rescission of the agreement entered into
between plaintiff Hermogenes Ong and defendant Nancy
Go;
2. Declaring defendants Alex Go and Nancy Go jointly
and severally liable to plaintiffs Hermogenes Ong and
Jane C. Ong for the following sums:
a) P450.00 , the down payment made at contract time;
b) P75,000.00, as moral damages;
c) P20,000.00, as exemplary damages;
d) P5,000.00, as attorney's fees; and
e) P2,000.00, as litigation expenses;
Defendants are also ordered to pay the costs.
Dissatisfied with the decision, petitioners
elevated the case to the Court of Appeals which, on
September 14, 1993, dismissed the appeal and affirmed
the trial court's decision.
Hence, this petition.
Petitioners contend that the Court of Appeals
erred in not appreciating the evidence they presented to
prove that they acted only as agents of a certain Pablo
Lim and, as such, should not have been held liable. In
addition, they aver that there is no evidence to show that
the erasure of the tape was done in bad faith so as to
justify the award of damages. 2
The petition is not meritorious.
Petitioners claim that for the video coverage, the
cameraman was employed by Pablo Lim who also owned
the video equipment used. They further assert that they
merely get a commission for all customers solicited for
their principal. 3
This contention is primarily premised on Article
1883 of the Civil Code which states thus:
Art. 1883. If an agent acts in his own
name, the principal has no right of action
against the persons with whom the agent
has contracted; neither have such
persons against the principal.
In such case the agent is the one directly
bound in favor of the person with whom
he has contracted, as if the transaction
were his own, except when the contract
involves things belonging to the principal.
xxx xxx xxx
Petitioners' argument that since the video
equipment used belonged to Lim and thus the contract
was actually entered into between private respondents
and Lim is not deserving of any serious consideration. In
the instant case, the contract entered into is one of
service, that is, for the video coverage of the wedding.
Consequently, it can hardly be said that the object of the
contract was the video equipment used. The use by
petitioners of the video equipment of another person is
of no consequence.
It must also be noted that in the course of the
protracted trial below, petitioners did not even present
Lim to corroborate their contention that they were mere
agents of the latter. It would not be unwarranted to
assume that their failure to present such a vital witness
would have had an adverse result on the case. 4
As regards the award of damages, petitioners
would impress upon this Court their lack of malice or
fraudulent intent in the erasure of the tape. They insist
that since private respondents did not claim the tape
after the lapse of thirty days, as agreed upon in their
contract, the erasure was done in consonance with
consistent business practice to minimize losses. 5
We are not persuaded.
As correctly observed by the Court of Appeals, it
is contrary to human nature for any newlywed couple to
neglect to claim the video coverage of their wedding; the
fact that private respondents filed a case against
petitioners belies such assertion. Clearly, petitioners are
guilty of actionable delay for having failed to process the
video tape. Considering that private respondents were
about to leave for the United States, they took care to
inform petitioners that they would just claim the tape
upon their return two months later. Thus, the erasure of
the tape after the lapse of thirty days was unjustified.
In this regard, Article 1170 of the Civil Code
provides that "those who in the performance of their
obligations are guilty of fraud, negligence or delay, and
those who is any manner contravene the tenor thereof,
are liable for damages."
In the instant case, petitioners and private
respondents entered into a contract whereby, for a fee,
the former undertook to cover the latter's wedding and
deliver to them a video copy of said event. For whatever
reason, petitioners failed to provide private respondents
with their tape. Clearly, petitioners are guilty of
contravening their obligation to said private respondents
and are thus liable for damages.
The grant of actual or compensatory damages in
the amount of P450.00 is justified, as reimbursement of
the downpayment paid by private respondents to
petitioners. 6
Generally, moral damages cannot be recovered in an
action for breach of contract because this case is not
among those enumerated in Article 2219 of the Civil
Code. However, it is also accepted in this jurisdiction
that liability for a quasi-delict may still exist despite the
presence of contractual relations, that is, the act which
violates the contract may also constitute a quasi-delict. 7
Consequently, moral damages are recoverable for the
breach of contract
which was palpably wanton, reckless, malicious or in bad
faith, oppressive or abusive. 8
Petitioners' act or omission in recklessly erasing
the video coverage of private respondents' wedding was
precisely the cause of the suffering private respondents
had to undergo.
As the appellate court aptly observed:
Considering the sentimental value of the
tapes and the fact that the event therein
recorded — a wedding which in our
culture is a significant milestone to be
cherished and remembered — could no
longer be reenacted and was lost forever,
the trial court was correct in awarding the
appellees moral damages albeit in the
amount of P75,000.00, which was a great
reduction from plaintiffs' demand in the
complaint in compensation for the mental
anguish, tortured feelings, sleepless
nights and humiliation that the appellees
suffered and which under the
circumstances could be awarded as
allowed under Articles 2217 and 2218 of
the Civil Code. 9
Considering the attendant wanton negligence
committed by petitioners in the case at bar, the award of
exemplary damages by the trial court is justified 10 to
serve as a warning to all entities engaged in the same
business to observe due diligence in the conduct of their
affairs.
The award of attorney' s fees and litigation
expenses are likewise proper, consistent with Article
2208 11 of the Civil Code.
 Finally, petitioner Alex Go questions the finding
of the trial and appellate courts holding him jointly and
severally liable with his wife Nancy regarding the
pecuniary liabilities imposed. He argues that when his
wife entered into the contract with private respondent,
she was acting alone for her sole interest. 12
We find merit in this contention. Under Article 117
of the Civil Code (now Article 73 of the Family Code), the
wife may exercise any profession, occupation or engage
in business without the consent of the husband. In the
instant case, we are convinced that it was only petitioner
Nancy Go who entered into the contract with private
respondent. Consequently, we rule that she is solely
liable to private respondents for the damages awarded
below, pursuant to the principle that contracts produce
effect only as between the parties who execute them. 13
WHEREFORE, the assailed decision dated
September 14, 1993 is hereby AFFIRMED with the
MODIFICATION that petitioner Alex Go is absolved from
any liability to private respondents and that petitioner
Nancy Go is solely liable to said private respondents for
the judgment award. Costs against petitioners.
SO ORDERED.
JULIAN C. SINGSON and RAMONA DEL CASTILLO,
plaintiffs,
vs.
BANK OF THE PHILIPPINE ISLANDS and SANTIAGO
FREIXAS, in his capacity as President of the said Bank,
defendants.
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.