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Petition for certiorari to review the decision of the Court of "On the following morning, at about 9:00 o'clock barrio
First Instance of Pangasinan, Branch IX, in Civil Case No. U- captain Luciano Bueno of San Pedro Ili who was passing by
2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus saw the broken electric wire and so he warned the people in
Teodoro C. Umali, defendant-appellant", which found the the place not to go near the wire for they might get hurt. He
death by electrocution of Manuel Saynes, a boy of 3 years also saw Cipriano Baldomero, a laborer of the Alcala Electric
and 8 months, as "due to the fault and negligence of the Plant near the place and notified him right then and there of
defendant (Umali) as owner and manager of the Alcala the broken line and asked him to fix it, but the latter told the
Electric Plant", although the liability of defendant is mitigated barrio captain that he could not do it but that he was going to
by contributory negligence of the parents of the boy "in not look for the lineman to fix it.
providing for the proper and adequate supervision and
"Sometime after the barrio captain and Cipriano Baldomero
control over their son". The dispositive part of the decision
had left the place, a small boy of 3 years and 8 months old
reads as follows: by the name of Manuel P. Saynes, whose house is just on
the opposite side of the road went to the place where the
"Wherefore, the Court hereby renders judgment in favor of broken line wire was and got contact with it. The boy was
the plaintiff by ordering the defendant to pay the plaintiff the electrocuted and he subsequently died. It was only after the
sum of Five Thousand Pesos (P5,000.00) for the death of electrocution of Manuel Saynes that the broken line was
his son, Manuel Saynes; the sum of One Thousand Two fixed at about 10:00 o'clock on the same morning by the
Hundred Pesos (P1,200.00) for actual expenses for and in lineman of the electric plant."
connection with the burial of said deceased child, and the
further sum of Three Thousand Pesos (P3,000.00) for moral Petitioner claims that he could not be liable under the
damages and Five Hundred (P500.00) Pesos as reasonable concept of quasi-delict or tort as owner and manager of the
attorney's fee, or a total of Nine Thousand Seven Hundred Alcala Electric Plant because the proximate cause of the
(P9,700.00) Pesos, and to pay the costs of this suit. It Is So boy's death by electrocution could not be due to any
Ordered." negligence on his part, but rather to a fortuitous event – the
storm that caused the banana plants to fall and cut the
Undisputed facts appearing of record are: electric line – pointing out the absence of negligence on the
part of his employee Cipriano Baldomero who tried to have
the line repaired and the presence of negligence of the resulting in a live wire lying on the premises without any
parents of the child in allowing him to leave his house during visible warning of its lethal character, anybody, even a
that time. responsible grown up or not necessarily an innocent child,
could have met the same fate that befell the victim. It may be
A careful examination of the record convinces Us that a true, as the lower Court found out, that the contributory
series of negligence on the part of defendant's employees in negligence of the victim's parents in not properly taking care
the Alcala Electric Plant resulted in the death of the victim by of the child, which enabled him to leave the house alone on
electrocution. First, by the very evidence of the defendant, the morning of the incident and go to a nearby place (cut
there were big and tall banana plants at the place of the wire was very near the house where victim was living) where
incident standing on an elevated ground which were about the fatal fallen wire electrocuted him, might mitigate
30 feet high and which were higher than the electric post respondent's liability, but We cannot agree with petitioner's
supporting the electric line, and yet the employees of the theory that the parents' negligence constituted the proximate
defendant who, with ordinary foresight, could have easily cause of the victim's death because the real proximate
seen that even in case of moderate winds the electric line cause was the fallen live wire which posed a threat to life
would be endangered by banana plants being blown down, and property on that morning due to the series of negligence
did not even take the necessary precaution to eliminate the adverted to above committed by defendants' employees and
source of danger to the electric line. Second, even after the which could have killed any other person who might by
employees of the Alcala Electric Plant were already aware of accident get into contact with it. Stated otherwise, even if the
the possible damage the storm of May 14, 1972, could have child was allowed to leave the house unattended due to the
caused their electric lines, thus becoming a possible threat parents' negligence, he would not have died that morning
to life and property, they did not cut off from the plant the where it not for the cut live wire he accidentally touched.
flow of electricity along the lines, an act they could have
easily done pending inspection of the wires to see if they had Art. 2179 of the Civil Code provides that if the negligence of
been cut. Third, employee Cipriano Baldomero was the plaintiff (parents of the victim in this case) was only
negligent on the morning of the incident because even if he contributory, the immediate and proximate cause of the
was already made aware of the live cut wire, he did not have injury being the defendants' lack of due care, the plaintiff
the foresight to realize that the same posed a danger to life may recover damages, but the courts shall mitigate the
and property, and that he should have taken the necessary damages to be awarded. This law may be availed of by the
precaution to prevent anybody from approaching the live petitioner but does not exempt him from liability.
wire; instead Baldomero left the premises because what was
foremost in his mind was the repair of the line, obviously Petitioner's liability for injury caused by his employees'
forgetting that if left unattended to it could endanger life and negligence is well defined in par. 4, of Article 2180 of the
property. Civil Code, which states:
On defendant's argument that the proximate cause of the "The owner and manager of the establishment or enterprise
victim's death could be attributed to the parents' negligence are likewise responsible for damages caused by their
in allowing a child of tender age to go out of the house alone, employees in the service of the branches in which the latter
We could readily see that because of the aforementioned are employed or on the occasion of their functions."
series of negligence on the part of defendant's employees
The negligence of the employee is presumed to be the This action was instituted in the Court of First Instance of
negligence of the employer because the employer is Manila by the Culion Ice, Fish & Electric Co., Inc., for the
supposed to exercise supervision over the work of the purpose of recovering from the Philippine Motors
employees. This liability of the employer is primary and Corporation the sum of P11,350, with interest and costs.
direct (Standard Vacuum Oil Co. vs. Tan and Court of Upon hearing the cause the trial court gave judgment in
Appeals, 107 Phil. 109). In fact the proper defense for the favor of the plaintiff to recover of the defendant the sum of
employer to raise so that he may escape liability is to prove P9,850, with interest at 6 per centum per annum from March
that he exercised the diligence of the good father of the 24, 1927, the date of the filing of the complaint, until
family to prevent damage not only in the selection of his satisfaction of the judgment, with costs. From this judgment
employees but also in adequately supervising them over the defendant appealed.
their work. This defense was not adequately proven as found
by the trial Court, and We do not find any sufficient reason to The plaintiff and defendant are domestic corporations; and at
deviate from its finding. the time of the incident with which we are here concerned,
H, D. Cranston was the representative of the plaintiff in the
Notwithstanding diligent efforts, We fail to find any reversible City of Manila. At the same time the plaintiff was the
error committed by the trial Court in this case, either in its registered owner of the motor schooner Gwendoline, which
appreciation of the evidence on questions of facts or on the was used in the fishing trade in the Philippine Islands. In
interpretation and application of laws governing quasi-delicts January, 1925, Cranston decided, if practicable, to have the
and liabilities emanating therefrom. The inevitable engine on the Gwendoline changed from a gasoline
conclusion is that no error amounting to grave abuse of consumer to a crude oil burner, expecting thereby to effect
discretion was committed and the decision must be left economy in the cost of running: the boat. He therefore made
untouched. known his desire to McLeod & Co., a firm dealing in tractors,
and was told by McKellar, of said company, that he might
Wherefore, the decision of respondent Court dated June 27, make enquiries of the Philippine Motors Corporation, which
1974 is affirmed. had its office on Ongpin Street, in the City of Manila.
Cranston accordingly repaired to the office of the Philippine
Cost against petitioner. So ordered. Motors Corporation and had a conference with C. E. Quest,
its manager, who agreed to do the job, with the
understanding that payment should be made upon
[ G.R. No. 32611, November 03, 1930 ] completion of the work.
CULION ICE, FISH & ELECTRIC CO., INC., PLAINTIFF
The Philippine Motors Corporation was at this time engaged
AND APPELLEE, VS. PHILIPPINE MOTORS
in business as an automobile agency, but, under its charter,
CORPORATION, DEFENDANT AND APPELLANT. it had authority to deal in all sorts of machinery engines and
motors, as well as to build, operate, buy and sell the same
DECISION and the equipment thereof. Quest, as general manager, had
full charge of the corporation in all its branches.
STREET, J.:
As a result of the aforesaid interview, Quest, in company lightly of the matter and said that, when the engine had
with Cranston, visited the Gwendoline while it lay at anchor gotten to running well, the flooding would disappear.
in the Pasig River, and the work of effecting the change in
the engine was begun and conducted under the supervision After preliminary experiments and adjustments had been
of Quest, chiefly by a mechanic whom Quest took with him made, the boat was taken out into the bay for a trial run at
to the boat. In this work Quest had the assistance of the about 5 p. m., or a little later, on the evening of January 30,
members of the crew of the Gwendoline, who had been 1925. The first part of the course was covered without any
directed by Cranston to place themselves under Quest's untoward development, other than the fact that the engine
directions. stopped a few times, owing no doubt to the use of an
improper mixture of fuel. In the course of the trial Quest
Upon preliminary inspection of the engine, Quest came to remained outside of the engine compartment and occupied
the conclusion that the principal thing necessary to himself with making experiments in the matter of mixing the
accomplish the end in view was to install a new carburetor, crude oil with distillate, with a view to ascertaining what
and a Zenith carburetor was chosen as the one most proportion of the two elements would give best results in the
adapted to the purpose. After this appliance had been engine.
installed, the engine was tried with gasoline as a fuel,
supplied from the tank already in use. The result of this As the boat was coming in from this run, at about 7.30 p. m.,
experiment was satisfactory. The next problem was to and when passing near Cavite, the engine stopped, and
introduce into the carburetor the baser fuel, consisting1 of a connection again had to be made with the gasoline line to
low grade of oil mixed with distillate. For this purpose a get a new start. After this had been done the mechanic, or
temporary tank to contain the mixture was placed on deck engineer, switched to the tube connecting with the new
above and at a short distance from the compartment mixture. A moment later a back fire occurred in the cylinder
covering the engine. This tank was connected with the chamber. This caused a flame to shoot back into the
carburetor by a piece of tubing, which was apparently not carburetor, and instantly the carburetor and adjacent parts
well fitted at the point where it was connected with the tank. were covered with a mass of flames, which the members of
Owing to this fact the fuel mixture leaked from the tank and the crew were unable to subdue. They were therefore
dripped down into the engine compartment. The new fuel compelled, as the lire spread, to take to a boat, and their
line and that already in use between the gasoline tank and escape was safely effected, but the Gwendoline was
the carburetor were so fixed that it was possible to change reduced to a mere hulk. The salvage from the wreck, when
from the gasoline fuel to the mixed fuel. The purpose of this sold, brought only the sum of P150. The value of the boat,
arrangement was to enable the operator to start the engine before the accident occurred, as the court found, was
on gasoline and then, after the engine had been operating P10,000.
for a few moments, to switch to the new fuel supply.
A study of the testimony leads us to the conclusion that the
In the course of the preliminary work upon the carburetor loss of this boat was chargeable to the negligence and lack
and its connections, it was observed that the carburetor was of skill of Quest. The temporary tank in which the mixture
flooding, and that the gasoline, or other fuel, was trickling was prepared was apparently at too great an elevation from
freely from the lower part of the carburetor to the floor. This the carburetor, with the result that when the fuel line was
fact was called to Quest's attention, but he appeared to think opened, the hydrostatic pressure in the carburetor was
greater than the delicate parts of the carburetor could whether the injury was accidental in a sense, but whether
sustain. This was no doubt the cause of the flooding of the Quest was free from blame. We therefore see no escape
carburetor; and the result was that, when the back fire from the conclusion that this accident is chargeable to lack of
occurred, the external parts of the carburetor, already skill or negligence in effecting the changes which Quest
saturated with gasoline, burst into flames, whence the fire undertook to accomplish; and even supposing that our
was quickly communicated to the highly inflammable theory as to the exact manner in which the accident occurred
material near-by. Ordinarily a back fire from an engine would might appear to be in some respects incorrect, yet the origin
not be followed by any disaster, but in this case the leak of the fire is not so inscrutable as to enable us to say that it
along the pipe line and the flooding of the carburetor had was eastis fortuitus.
created a dangerous situation, which a prudent mechanic,
versed in repairs of this nature, would have taken The trial judge seems to have proceeded on the idea that,
precautions to avoid. The back fire may have been due inasmuch as Quest had control of the Gwendoline during the
either to the fact that the spark was too advanced or the fuel experimental run, the defendant corporation was in the
improperly mixed. position of a bailee and that, as a consequence, the burden
of proof was on the defendant to exculpate itself from
In this connection it must be remembered that when a responsibility by proving that the accident was not due to the
person holds himself out as being competent to do things fault of Quest. We are unable to accede to this point of view.
requiring professional skill, he will be held liable for Certainly, Quest was not in charge of the navigation of the
negligence if he fails to exhibit the care and skill of one boat on this trial run. His employment contemplated the
ordinarily skilled in the particular work which he-attempts to installation of new parts in the engine only, and it seems
do. The proof shows that Quest had had ample experience rather strained to hold that the defendant corporation had
in fixing the engines of automobiles and tractors, but it does thereby become bailee of the boat. As a rule workmen who
not appear that he was experienced in the doing of similar make repairs on a ship in its owner's yard, or a mechanic
work on boats. For this reason, possibly, the dripping of the who repairs a coach without taking it to his shop, are not
mixture from the tank on deck and the flooding of the bailees, and their rights and liabilities are determined by the
carburetor did not convey to his mind an adequate general rules of law, under their contract. The true bailee
impression of the danger of fire. But a person skilled in that acquires possession and what is usually spoken of as
particular sort of work would, we think, have been sufficiently special property in the chattel bailed. As a consequence of
warned from those circumstances to cause him to take such possession and special property, the bailee is given a
greater and adequate precautions against the danger. In lien for his compensation. These ideas seem to be
other words Quest did not use the skill that would have been incompatible with the situation now under consideration. But
exhibited by one ordinarily expert in repairing gasoline though defendant cannot be held liable on the supposition
engines on boats. There was here, in our opinion, on the that the burden of proof has not been sustained by it in
part of Quest, a blameworthy antecedent inadvertence to disproving the negligence of its manager, we are
possible harm, and this constitutes negligence. The burning nevertheless of the opinion that the proof shows by a clear
of the Gwendoline may be said to have resulted from preponderance that the accident to the Gwendoline and the
accident, but this accident was in no sense an unavoidable damages resulting therefrom are chargeable to the
accident. It would not have occurred but for Quest's negligence or lack of skill of Quest.
carelessness or lack of skills The test of liability is not
This action was instituted about two years after the accident This is a petition for review under Rule 45 of the Revised
in question had occurred, and after Quest had ceased to be Rules of Civil Procedure of the Decision1 of the Court of
manager of the defendant corporation and had gone back to Appeals in CA-G.R. CV No. 19836 affirming in toto the
the United States. Upon these facts, the defendant bases Decision2 of the Regional Trial Court of Makati, Branch 138,
the contention that the action should be considered stale. It in Civil Case No. 1033 for collection of sum of money, and
is sufficient reply to say that the action was brought within the Resolution3 denying the motion for reconsideration of
the period limited by the statute of limitations and the the said decision.
situation is not one where the defense of laches can be
properly invoked. The Undisputed Facts
It results that the judgment appealed from, awarding The spouses Francisco and Demetria Culaba were the
damages to the plaintiff in the amount of P9,850, with owners and proprietors of the Culaba Store and were
interest, must be affirmed; and it is so ordered, with costs engaged in the sale and distribution of San Miguel
against the appellant. Corporation’s (SMC) beer products. SMC sold beer products
on credit to the Culaba spouses in the amount of
Avanceña, C. J., Malcolm, Villamor, Ostrand, P28,650.00, as evidenced by Temporary Credit Invoice No.
Romualdez and Villa-Real, JJ., concur. 42943.4 Thereafter, the Culaba spouses made a partial
payment of P3,740.00, leaving an unpaid balance of
P24,910.00. As they failed to pay despite repeated
demands, SMC filed an action for collection of a sum of
G.R. No. 125862 April 15, 2004 money against them before the RTC of Makati, Branch 138.
FRANCISCO CULABA and DEMETRIA CULABA, doing The defendant-spouses denied any liability, claiming that
business under the name and style "Culaba Store", they had already paid the plaintiff in full on four separate
petitioners, occasions. To substantiate this claim, the defendants
vs. presented four (4) Temporary Charge Sales (TCS)
COURT OF APPEALS and SAN MIGUEL CORPORATION, Liquidation Receipts, as follows:
respondents.
April 19, 1983 Receipt No. for P8,0005
27331
The appellants asserted that while the trial court’s The Court of Appeals affirmed the decision of the trial court,
observations were true, it was the usual business practice in thus:
previous transactions between them and SMC. The SMC
previously honored receipts not bearing the salesman’s In the face of the somewhat tenuous evidence
name. According to appellant Francisco Culaba, he even lost presented by the appellants, we cannot fault the lower
some of the receipts, but did not encounter any problems. court for giving more weight to appellee’s testimonial
and documentary evidence, all of which establish with
According to appellant Francisco, he could not be faulted for some degree of preponderance the existence of the
paying the SMC collector who came in a van and was in account sued upon.
uniform, and that any regular customer would, without any
apprehension, transact with such an SMC employee. ALL CONSIDERED, we cannot find any justification
Furthermore, the respective receipts issued to him at the to reject the factual findings of the lower court to
time he paid on the four occasions mentioned had not yet which we must accord respect, for which reason, the
then been declared lost. Thus, the subsequent publication in judgment appealed from is hereby AFFIRMED in all
a daily newspaper declaring the booklets lost did not affect respects.
the validity and legality of the payments made. Accordingly,
by its actuations, the SMC was estopped from questioning SO ORDERED.15
the legality of the payments and had no cause of action
against the appellants. Hence, the instant petition.
Anent the issue of attorney’s fees, the order of the trial court The petitioners pose the following issues for the Court’s
for payment thereof is without basis. According to the resolution:
appellant, the provision for attorney’s fees is a contingent
fee, already provided for in the SMC’s contract with the law I. WHETHER OR NOT THE RESPONDENT HAD
firm. To further order them to pay 20% of the amount due as PROVEN BY PREPONDERANT EVIDENCE THAT IT
attorney’s fees is double payment, tantamount to undue HAD PROPERLY AND TIMELY NOTIFIED
enrichment and therefore improper.13 PETITIONER OF LOST BOOKLET OF RECEIPTS
The appellee, for its part, contended that the primary issue in II. WHETHER OR NOT RESPONDENT HAD
the case at bar revolved around the basic and fundamental PROVEN BY PREPONDERANT EVIDENCE THAT
PETITIONER WAS REMISS IN THE PAYMENT OF The private respondent, for its part, avers that the burden of
HIS ACCOUNTS TO ITS AGENT.16 proving payment is with the debtor, in consonance with the
express provision of Article 1233 of the New Civil Code. The
According to the petitioners, receiving receipts from the petitioners miserably failed to prove the self-serving
private respondent’s agents instead of its salesmen was a allegation that they already paid their liability to the private
usual occurrence, as they had been operating the store respondent. Furthermore, under normal circumstances, an
since 1979. Thus, on four occasions in April 1983, when an obligor would not just pay a substantial amount to someone
agent of the respondent came to the store wearing an SMC whom he saw for the first time, without even asking for the
uniform and driving an SMC van, petitioner Francisco latter’s name.
Culaba, without question, paid his accounts. He received the
receipts without fear, as they were similar to what he used to The Ruling of the Court
receive before. Furthermore, the petitioners assert that,
common experience will attest that unless the attention of The petition is dismissed.
the customers is called for, they would not take note of the
serial number of the receipts. The petitioners question the findings of the Court of Appeals
as to whether the payment of the petitioners’ obligation to
The petitioners contend that the private respondent the private respondent was properly made, thus,
advertised its warning to the public only after the damage extinguishing the same. This is clearly a factual issue, and
was done, or on July 9, 1993. Its belated notice showed its beyond the purview of the Court to delve into. This is in
glaring lack of interest or concern for its customers’ welfare, consonance with the well-settled rule that findings of fact of
and, in sum, its negligence. the trial court, especially when affirmed by the Court of
Appeals, are accorded the highest degree of respect, and
Anent the second issue, petitioner Francisco Culaba avers generally will not be disturbed on appeal. Such findings are
that the agent to whom the accounts were paid had all the binding and conclusive on the Court.17 Furthermore, it is not
physical and material attributes or indications of a the Court’s function under Rule 45 of the Rules of Court, as
representative of the private respondent, leaving no doubt amended, to review, examine and evaluate or weigh the
that he was duly authorized by the latter. Petitioner probative value of the evidence presented.18
Francisco Culaba’s testimony that "he does not necessarily
check the contents of the receipts issued to him except for To reiterate, the issue being raised by the petitioners does
the amount indicated if [the] same accurately reflects his not involve a question of law, but a question of fact, not
actual payment" is a common attitude of customers. He cognizable by this Court in a petition for review under Rule
could, thus, not be faulted for paying the private 45. The jurisdiction of the Court in such a case is limited to
respondent’s agent on four occasions. Petitioner Francisco reviewing only errors of law, unless the factual findings being
Culaba asserts that he made the payment in good faith, to assailed are not supported by evidence on record or the
an agent who issued SMC receipts which appeared to be impugned judgment is based on a misapprehension of
genuine. Thus, according to the petitioners, they had duly facts.19
paid their obligation in accordance with Articles 1240 and
1242 of the New Civil Code.
A careful study of the records of the case reveal that the SMC liquidation receipts which looked genuine.
appellate court affirmed the trial court’s factual findings as Unfortunately for petitioner Francisco Culaba, he did not
follows: ascertain the identity and authority of the said supervisor,
nor did he ask to be shown any identification to prove that
First. Receipts Nos. 27331, 27318, 27339 and 27346 were the latter was, indeed, an SMC supervisor. The petitioners
included in the private respondent’s lost booklet, which loss relied solely on the man’s representation that he was
was duly advertised in a newspaper of general circulation; collecting payments for SMC. Thus, the payments the
thus, the private respondent could not have officially issued petitioners claimed they made were not the payments that
them to the petitioners to cover the alleged payments on the discharged their obligation to the private respondent.
dates appearing thereon.
The basis of agency is representation.22 A person dealing
Second. There was something amiss in the way the receipts with an agent is put upon inquiry and must discover upon his
were issued to the petitioners, as one receipt bearing a peril the authority of the agent.23 In the instant case, the
higher serial number was issued ahead of another receipt petitioners’ loss could have been avoided if they had simply
bearing a lower serial number, supposedly covering a later exercised due diligence in ascertaining the identity of the
payment. The petitioners failed to explain the apparent mix- person to whom they allegedly made the payments. The fact
up in these receipts, and no attempt was made in this that they were parting with valuable consideration should
regard. have made them more circumspect in handling their
business transactions. Persons dealing with an assumed
Third. The fact that the salesman’s name was invariably left agent are bound at their peril to ascertain not only the fact of
blank in the four receipts and that the petitioners could not agency but also the nature and extent of authority, and in
even remember the name of the supposed impostor who case either is controverted, the burden of proof is upon them
received the said payments strongly argue against the to establish it.24 The petitioners in this case failed to
veracity of the petitioners’ claim. discharge this burden, considering that the private
respondent vehemently denied that the payments were
We find no cogent reason to reverse the said findings. accepted by it and were made to its authorized
representative.
The dismissal of the petition is inevitable even upon close
perusal of the merits of the case. Negligence is the omission to do something which a
reasonable man, guided by those considerations which
Payment is a mode of extinguishing an obligation.20 Article ordinarily regulate the conduct of human affairs, would do, or
1240 of the Civil Code provides that payment shall be made the doing of something, which a prudent and reasonable
to the person in whose favor the obligation has been man would not do.25 In the case at bar, the most prudent
constituted, or his successor-in-interest, or any person thing the petitioners should have done was to ascertain the
authorized to receive it.21 In this case, the payments were identity and authority of the person who collected their
purportedly made to a "supervisor" of the private respondent, payments. Failing this, the petitioners cannot claim that they
who was clad in an SMC uniform and drove an SMC van. He acted in good faith when they made such payments. Their
appeared to be authorized to accept payments as he claim therefor is negated by their negligence, and they are
showed a list of customers’ accountabilities and even issued bound by its consequences. Being negligent in this regard,
the petitioners cannot seek relief on the basis of a supposed The antecedent facts, as gathered by the respondent Court,
agency.26 are as follows:
WHEREFORE, the instant petition is hereby DENIED. The On March 5, 1979, Juan, Corazon, Carlota and
assailed Decision dated April 16, 1996, and the Resolution Anthony all surnamed Syquia, plaintiff-
dated July 19, 1996 of the Court of Appeals are AFFIRMED. appellants herein, filed a complaint for
Costs against the petitioners. damages against defendant-appellee, Manila
Memorial Park Cemetery, Inc.
SO ORDERED.
The complaint alleged among others, that
G.R. No. 98695 January 27, 1993 pursuant to a Deed of Sale (Contract No. 6885)
dated August 27, 1969 and Interment Order
JUAN J. SYQUIA, CORAZON C. SYQUIA, CARLOTA C. No. 7106 dated July 21, 1978 executed
SYQUIA, CARLOS C. SYQUIA and ANTHONY C. SYQUIA, between plaintiff-appellant Juan J. Syquia and
petitioners, defendant-appellee, the former, father of
vs. deceased Vicente Juan J. Syquia authorized
THE HONORABLE COURT OF APPEALS, and THE and instructed defendant-appellee to inter the
MANILA MEMORIAL PARK CEMETERY, INC., remains of deceased in the Manila Memorial
respondents. Park Cemetery in the morning of July 25, 1978
conformably and in accordance with
Pacis& Reyes Law Offices for petitioners. defendant-appellant's (sic) interment
procedures; that on September 4, 1978,
Augusto S. San Pedro & Ari-Ben C. Sebastian for private preparatory to transferring the said remains to
respondents. a newly purchased family plot also at the
Manila Memorial Park Cemetery, the concrete
vault encasing the coffin of the deceased was
removed from its niche underground with the
CAMPOS, JR., J.: assistance of certain employees of defendant-
appellant (sic); that as the concrete vault was
Herein petitioners, Juan J. Syquia and Corazon C. Syquia, being raised to the surface, plaintiffs-appellants
Carlota C. Syquia, Carlos C. Syquia, and Anthony Syquia, discovered that the concrete vault had a hole
were the parents and siblings, respectively, of the deceased approximately three (3) inches in diameter near
Vicente Juan Syquia. On March 5, 1979, they filed a the bottom of one of the walls closing out the
complaint1 in the then Court of First Instance against herein width of the vault on one end and that for a
private respondent, Manila Memorial Park Cemetery, Inc. for certain length of time (one hour, more or less),
recovery of damages arising from breach of contract and/or water drained out of the hole; that because of
quasi-delict. The trial court dismissed the complaint. the aforesaid discovery, plaintiffs-appellants
became agitated and upset with concern that
the water which had collected inside the vault
might have risen as it in fact did rise, to the court, 20% of defendant-appellee's total liability
level of the coffin and flooded the same as well as attorney's fees, and expenses of litigation
as the remains of the deceased with ill effects and costs of suit.2
thereto; that pursuant to an authority granted
by the Municipal Court of Parañaque, Metro In dismissing the complaint, the trial court held that the
Manila on September 14, 1978, plaintiffs- contract between the parties did not guarantee that the
appellants with the assistance of licensed cement vault would be waterproof; that there could be no
morticians and certain personnel of defendant- quasi-delict because the defendant was not guilty of any
appellant (sic) caused the opening of the fault or negligence, and because there was a pre-existing
concrete vault on September 15, 1978; that contractual relation between the Syquias and defendant
upon opening the vault, the following became Manila Memorial Park Cemetery, Inc.. The trial court also
apparent to the plaintiffs-appellants: (a) the noted that the father himself, Juan Syquia, chose the
interior walls of the concrete vault showed gravesite despite knowing that said area had to be
evidence of total flooding; (b) the coffin was constantly sprinkled with water to keep the grass green and
entirely damaged by water, filth and silt that water would eventually seep through the vault. The trial
causing the wooden parts to warp and court also accepted the explanation given by defendant for
separate and to crack the viewing glass panel boring a hole at the bottom side of the vault: "The hole had
located directly above the head and torso of to be bored through the concrete vault because if it has no
the deceased; (c) the entire lining of the coffin, hole the vault will (sic) float and the grave would be filled
the clothing of the deceased, and the exposed with water and the digging would caved (sic) in the earth, the
parts of the deceased's remains were earth would caved (sic) in the (sic) fill up the grave."3
damaged and soiled by the action of the water
and silt and were also coated with filth. From this judgment, the Syquias appealed. They alleged that
the trial court erred in holding that the contract allowed the
Due to the alleged unlawful and malicious flooding of the vault; that there was no desecration; that the
breach by the defendant-appellee of its boring of the hole was justifiable; and in not awarding
obligation to deliver a defect-free concrete damages.
vault designed to protect the remains of the
deceased and the coffin against the elements The Court of Appeals in the Decision4 dated December 7,
which resulted in the desecration of deceased's 1990 however, affirmed the judgment of dismissal.
grave and in the alternative, because of Petitioner's motion for reconsideration was denied in a
defendant-appellee's gross negligence Resolution dated April 25, 1991.5
conformably to Article 2176 of the New Civil
Code in failing to seal the concrete vault, the Unsatisfied with the respondent Court's decision, the
complaint prayed that judgment be rendered Syquias filed the instant petition. They allege herein that the
ordering defendant-appellee to pay plaintiffs- Court of Appeals committed the following errors when it:
appellants P30,000.00 for actual damages,
P500,000.00 for moral damages, exemplary 1. held that the contract and the Rules and
damages in the amount determined by the Resolutions of private respondent allowed the
flooding of the vault and the entrance thereto of We understand the feelings of petitioners and empathize
filth and silt; with them. Unfortunately, however, We are more inclined to
answer the foregoing questions in the negative. There is not
2. held that the act of boring a hole was enough ground, both in fact and in law, to justify a reversal of
justifiable and corollarily, when it held that no the decision of the respondent Court and to uphold the pleas
act of desecration was committed; of the petitioners.
3. overlooked and refused to consider relevant, With respect to herein petitioners' averment that private
undisputed facts, such as those which have respondent has committed culpa aquiliana, the Court of
been stipulated upon by the parties, testified to Appeals found no negligent act on the part of private
by private respondent's witnesses, and respondent to justify an award of damages against it.
admitted in the answer, which could have Although a pre-existing contractual relation between the
justified a different conclusion; parties does not preclude the existence of a culpa aquiliana,
We find no reason to disregard the respondent's Court
4. held that there was no tort because of a pre- finding that there was no negligence.
existing contract and the absence of
fault/negligence; and Art. 2176. Whoever by act or omission causes
damage to another, there being fault or
5. did not award the P25,000.00 actual negligence, is obliged to pay for the damage
damages which was agreed upon by the done. Such fault or negligence, if there is no
parties, moral and exemplary damages, and pre-existing contractual relation between the
attorney's fees. parties, is called a quasi-delict . . . . (Emphasis
supplied).
At the bottom of the entire proceedings is the act of boring a
hole by private respondent on the vault of the deceased kin In this case, it has been established that the Syquias
of the bereaved petitioners. The latter allege that such act and the Manila Memorial Park Cemetery, Inc.,
was either a breach of private respondent's contractual entered into a contract entitled "Deed of Sale and
obligation to provide a sealed vault, or, in the alternative, a Certificate of Perpetual Care"6 on August 27, 1969.
negligent act which constituted a quasi-delict. Nonetheless, That agreement governed the relations of the parties
petitioners claim that whatever kind of negligence private and defined their respective rights and obligations.
respondent has committed, the latter is liable for desecrating Hence, had there been actual negligence on the part
the grave of petitioners' dead. of the Manila Memorial Park Cemetery, Inc., it would
be held liable not for a quasi-delict or culpa aquiliana,
In the instant case, We are called upon to determine whether but for culpacontractual as provided by Article 1170 of
the Manila Memorial Park Cemetery, Inc., breached its the Civil Code, to wit:
contract with petitioners; or, alternatively, whether private
respondent was guilty of a tort. Those who in the performance of their
obligations are guilty of fraud, negligence, or
delay, and those who in any manner
contravene the tenor thereof, are liable for word conforms with the cited dictionary definition. Moreover,
damages. it is also quite clear that "sealed" cannot be equated with
"waterproof". Well settled is the rule that when the terms of
The Manila Memorial Park Cemetery, Inc. bound itself to the contract are clear and leave no doubt as to the intention
provide the concrete box to be send in the interment. Rule of the contracting parties, then the literal meaning of the
17 of the Rules and Regulations of private respondent stipulation shall control. 11 Contracts should be interpreted
provides that: according to their literal meaning and should not be
interpreted beyond their obvious intendment. 12 As ruled by
Rule 17. Every earth interment shall be made the respondent Court:
enclosed in a concrete box, or in an outer wall
of stone, brick or concrete, the actual When plaintiff-appellant Juan J. Syquia affixed
installment of which shall be made by the his signature to the Deed of Sale (Exhibit "A")
employees of the Association.7 and the attached Rules and Regulations
(Exhibit "1"), it can be assumed that he has
Pursuant to this above-mentioned Rule, a concrete vault was accepted defendant-appellee's undertaking to
provided on July 27, 1978, the day before the interment, and merely provide a concrete vault. He can not
was, on the same day, installed by private respondent's now claim that said concrete vault must in
employees in the grave which was dug earlier. After the addition, also be waterproofed (sic). It is basic
burial, the vault was covered by a cement lid. that the parties are bound by the terms of their
contract, which is the law between them (Rizal
Petitioners however claim that private respondent breached Commercial Banking Corporation vs. Court of
its contract with them as the latter held out in the brochure it Appeals, et al. 178 SCRA 739). Where there is
distributed that the . . . lot may hold single or double nothing in the contract which is contrary to law,
internment (sic) underground in sealed concrete vault."8 morals, good customs, public order, or public
Petitioners claim that the vault provided by private policy, the validity of the contract must be
respondent was not sealed, that is, not waterproof. sustained (Phil. American Insurance Co. vs.
Consequently, water seeped through the cement enclosure Judge Pineda, 175 SCRA 416). Consonant
and damaged everything inside it. with this ruling, a contracting party cannot incur
a liability more than what is expressly specified
We do not agree. There was no stipulation in the Deed of in his undertaking. It cannot be extended by
Sale and Certificate of Perpetual Care and in the Rules and implication, beyond the terms of the contract
Regulations of the Manila Memorial Park Cemetery, Inc. that (Rizal Commercial Banking Corporation vs.
the vault would be waterproof. Private respondent's witness, Court of Appeals, supra). And as a rule of
Mr. Dexter Heuschkel, explained that the term "sealed" evidence, where the terms of an agreement
meant "closed."9 On the other hand, the word "seal" is are reduced to writing, the document itself,
defined as . . . any of various closures or fastenings . . . that being constituted by the parties as the
cannot be opened without rupture and that serve as a check expositor of their intentions, is the only
against tampering or unauthorized opening." 10 The instrument of evidence in respect of that
meaning that has been given by private respondent to the agreement which the law will recognize, so
long as its (sic) exists for the purpose of Inc., will you please tell the Hon.
evidence (Starkie, Ev., pp. 648, 655, Court what or whether you have
Kasheenath vs. Chundy, 5 W.R. 68 cited in participation in connection with
Francisco, Revised Rules of Court in the Phil. said internment (sic)?
p. 153, 1973 Ed.). And if the terms of the
contract are clear and leave no doubt upon the A A day before Juan (sic) Syquia
intention of the contracting parties, the literal was buried our personnel dug a
meaning of its stipulations shall control (Santos grave. After digging the next
vs. CA, et al., G. R. No. 83664, Nov. 13, 1989; morning a vault was taken and
Prudential Bank & Trust Co. vs. Community placed in the grave and when the
Builders Co., Inc., 165 SCRA 285; Balatero vs. vault was placed on the grave a
IAC, 154 SCRA 530). 13 hole was placed on the vault so
that water could come into the
We hold, therefore, that private respondent did not breach vault because it was raining
the tenor of its obligation to the Syquias. While this may be heavily then because the vault
so, can private respondent be liable for culpa aquilianafor has no hole the vault will float
boring the hole on the vault? It cannot be denied that the and the grave would be filled with
hole made possible the entry of more water and soil than water and the digging would
was natural had there been no hole. caved (sic) in and the earth, the
earth would (sic) caved in and fill
The law defines negligence as the "omission of that diligence up the grave. 15 (Emphasis ours)
which is required by the nature of the obligation and
corresponds with the circumstances of the persons, of the Except for the foreman's opinion that the concrete vault may
time and of the place." 14 In the absence of stipulation or float should there be a heavy rainfall, from the above-
legal provision providing the contrary, the diligence to be mentioned explanation, private respondent has exercised
observed in the performance of the obligation is that which is the diligence of a good father of a family in preventing the
expected of a good father of a family. accumulation of water inside the vault which would have
resulted in the caving in of earth around the grave filling the
The circumstances surrounding the commission of the same with earth.
assailed act — boring of the hole — negate the allegation of
negligence. The reason for the act was explained by Henry Thus, finding no evidence of negligence on the part of
Flores, Interment Foreman, who said that: private respondent, We find no reason to award damages in
favor of petitioners.
Q It has been established in this
particular case that a certain In the light of the foregoing facts, and construed in the
Vicente Juan Syquia was interred language of the applicable laws and jurisprudence, We are
on July 25, 1978 at the constrained to AFFIRM in toto the decision of the respondent
Parañaque Cemetery of the Court of Appeals dated December 7, 1990. No costs.
Manila Memorial Park Cemetery,
SO ORDERED. had exercised due care in the premises and with respect to
the supervision of their employees.
G.R. No. L-12986 March 31, 1966
The first question before Us refers to the admissibility of
THE SPOUSES BERNABE AFRICA and SOLEDAD C. certain reports on the fire prepared by the Manila Police and
AFRICA, and the HEIRS OF DOMINGA ONG, petitioners- Fire Departments and by a certain Captain Tinio of the
appellants, Armed Forces of the Philippines. Portions of the first two
vs. reports are as follows:
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE
COURT OF APPEALS, respondents-appellees. 1. Police Department report: —
Ross, Selph, Carrascoso and Janda for the respondents. Investigation disclosed that at about 4:00 P.M.
Bernabe Africa, etc. for the petitioners. March 18, 1948, while Leandro Flores was
transferring gasoline from a tank truck, plate
MAKALINTAL., J.: No. T-5292 into the underground tank of the
Caltex Gasoline Station located at the corner of
This case is before us on a petition for review of the decision Rizal Avenue and Antipolo Street, this City, an
of the Court of Appeals, which affirmed that of the Court of unknown Filipino lighted a cigarette and threw
First Instance of Manila dismissing petitioners' second the burning match stick near the main valve of
amended complaint against respondents. the said underground tank. Due to the gasoline
fumes, fire suddenly blazed. Quick action of
The action is for damages under Articles 1902 and 1903 of Leandro Flores in pulling off the gasoline hose
the old Civil Code. It appears that in the afternoon of March connecting the truck with the underground tank
18, 1948 a fire broke out at the Caltex service station at the prevented a terrific explosion. However, the
corner of Antipolo street and Rizal Avenue, Manila. It started flames scattered due to the hose from which
while gasoline was being hosed from a tank truck into the the gasoline was spouting. It burned the truck
underground storage, right at the opening of the receiving and the following accessorias and residences.
tank where the nozzle of the hose was inserted. The fire
spread to and burned several neighboring houses, including 2. The Fire Department report: —
the personal properties and effects inside them. Their
owners, among them petitioners here, sued respondents In connection with their allegation that the premises
Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged was (sic) subleased for the installation of a coca-cola
owner of the station and the second as its agent in charge of and cigarette stand, the complainants furnished this
operation. Negligence on the part of both of them was Office a copy of a photograph taken during the fire
attributed as the cause of the fire. and which is submitted herewith. it appears in this
picture that there are in the premises a coca-cola
The trial court and the Court of Appeals found that cooler and a rack which according to information
petitioners failed to prove negligence and that respondents gathered in the neighborhood contained cigarettes
and matches, installed between the gasoline pumps report, as to which he did not testify, did not thereby become
and the underground tanks. competent evidence. And even if he had testified, his
testimony would still have been objectionable as far as
The report of Captain Tinio reproduced information given by information gathered by him from third persons was
a certain Benito Morales regarding the history of the gasoline concerned.
station and what the chief of the fire department had told him
on the same subject. Petitioners maintain, however, that the reports in
themselves, that is, without further testimonial evidence on
The foregoing reports were ruled out as "double hearsay" by their contents, fall within the scope of section 35, Rule 123,
the Court of Appeals and hence inadmissible. This ruling is which provides that "entries in official records made in the
now assigned as error. It is contended: first, that said reports performance of his duty by a public officer of the Philippines,
were admitted by the trial court without objection on the part or by a person in the performance of a duty specially
of respondents; secondly, that with respect to the police enjoined by law, are prima facie evidence of the facts therein
report (Exhibit V-Africa) which appears signed by a Detective stated."
Zapanta allegedly "for Salvador Capacillo," the latter was
presented as witness but respondents waived their right to There are three requisites for admissibility under the rule just
cross-examine him although they had the opportunity to do mentioned: (a) that the entry was made by a public officer, or
so; and thirdly, that in any event the said reports are by another person specially enjoined by law to do so; (b) that
admissible as an exception to the hearsay rule under section it was made by the public officer in the performance of his
35 of Rule 123, now Rule 130. duties, or by such other person in the performance of a duty
specially enjoined by law; and (c) that the public officer or
The first contention is not borne out by the record. The other person had sufficient knowledge of the facts by him
transcript of the hearing of September 17, 1953 (pp. 167- stated, which must have been acquired by him personally or
170) shows that the reports in question, when offered as through official information (Moran, Comments on the Rules
evidence, were objected to by counsel for each of of Court, Vol. 3 [1957] p. 398).
respondents on the ground that they were hearsay and that
they were "irrelevant, immaterial and impertinent." Indeed, in Of the three requisites just stated, only the last need be
the court's resolution only Exhibits J, K, K-5 and X-6 were considered here. Obviously the material facts recited in the
admitted without objection; the admission of the others, reports as to the cause and circumstances of the fire were
including the disputed ones, carried no such explanation. not within the personal knowledge of the officers who
conducted the investigation. Was knowledge of such facts,
On the second point, although Detective Capacillo did take however, acquired by them through official information? As
the witness stand, he was not examined and he did not to some facts the sources thereof are not even identified.
testify as to the facts mentioned in his alleged report (signed Others are attributed to Leopoldo Medina, referred to as an
by Detective Zapanta). All he said was that he was one of employee at the gas station were the fire occurred; to
those who investigated "the location of the fire and, if Leandro Flores, driver of the tank truck from which gasoline
possible, gather witnesses as to the occurrence, and that he was being transferred at the time to the underground tank of
brought the report with him. There was nothing, therefore, on the station; and to respondent Mateo Boquiren, who could
which he need be cross-examined; and the contents of the not, according to Exhibit V-Africa, give any reason as to the
origin of the fire. To qualify their statements as "official 4,400 volts carried by the wire and was knocked
information" acquired by the officers who prepared the unconscious to the ground. The electric charge
reports, the persons who made the statements not only must coursed through his body and caused extensive and
have personal knowledge of the facts stated but must have serious multiple burns from skull to legs, leaving the
the duty to give such statements for record.1 bone exposed in some parts and causing intense pain
and wounds that were not completely healed when
The reports in question do not constitute an exception to the the case was tried on June 18, 1947, over one year
hearsay rule; the facts stated therein were not acquired by after the mishap.
the reporting officers through official information, not having
been given by the informants pursuant to any duty to do so. The defendant therein disclaimed liability on the ground that
the plaintiff had failed to show any specific act of negligence,
The next question is whether or not, without proof as to the but the appellate court overruled the defense under the
cause and origin of the fire, the doctrine of res ipsa loquitur doctrine of res ipsa loquitur. The court said:
should apply so as to presume negligence on the part of
appellees. Both the trial court and the appellate court The first point is directed against the sufficiency of
refused to apply the doctrine in the instant case on the plaintiff's evidence to place appellant on its defense.
grounds that "as to (its) applicability ... in the Philippines, While it is the rule, as contended by the appellant,
there seems to he nothing definite," and that while the rules that in case of noncontractual negligence, or culpa
do not prohibit its adoption in appropriate cases, "in the case aquiliana, the burden of proof is on the plaintiff to
at bar, however, we find no practical use for such doctrine." establish that the proximate cause of his injury was
The question deserves more than such summary dismissal. the negligence of the defendant, it is also a
The doctrine has actually been applied in this jurisdiction, in recognized principal that "where the thing which
the case of Espiritu vs. Philippine Power and Development caused injury, without fault of the injured person, is
Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein under the exclusive control of the defendant and the
the decision of the Court of Appeals was penned by Mr. injury is such as in the ordinary course of things does
Justice J.B.L. Reyes now a member of the Supreme Court. not occur if he having such control use proper care, it
affords reasonable evidence, in the absence of the
The facts of that case are stated in the decision as follows: explanation, that the injury arose from defendant's
want of care."
In the afternoon of May 5, 1946, while the plaintiff-
appellee and other companions were loading grass And the burden of evidence is shifted to him to
between the municipalities of Bay and Calauan, in the establish that he has observed due care and
province of Laguna, with clear weather and without diligence. (San Juan Light & Transit Co. v. Requena,
any wind blowing, an electric transmission wire, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the
installed and maintained by the defendant Philippine name of res ipsa loquitur (the transaction speaks for
Power and Development Co., Inc. alongside the road, itself), and is peculiarly applicable to the case at bar,
suddenly parted, and one of the broken ends hit the where it is unquestioned that the plaintiff had every
head of the plaintiff as he was about to board the right to be on the highway, and the electric wire was
truck. As a result, plaintiff received the full shock of under the sole control of defendant company. In the
ordinary course of events, electric wires do not part amount. The judge of the district court, after hearing
suddenly in fair weather and injure people, unless the testimony, concluded that plaintiff was entitled to a
they are subjected to unusual strain and stress or recovery and rendered judgment in his favor for
there are defects in their installation, maintenance $427.82. The Court of Appeals for the First Circuit
and supervision; just as barrels do not ordinarily roll reversed this judgment, on the ground the testimony
out of the warehouse windows to injure passersby, failed to show with reasonable certainty any
unless some one was negligent. (Byrne v. Boadle, 2 negligence on the part of the Shell Petroleum
H & Co. 722; 159 Eng. Reprint 299, the leading case Corporation or any of its agents or employees.
that established that rule). Consequently, in the Plaintiff applied to this Court for a Writ of Review
absence of contributory negligence (which is which was granted, and the case is now before us for
admittedly not present), the fact that the wire snapped decision.1äwphï1.ñët
suffices to raise a reasonable presumption of
negligence in its installation, care and maintenance. In resolving the issue of negligence, the Supreme Court of
Thereafter, as observed by Chief Baron Pollock, "if Louisiana held:
there are any facts inconsistent with negligence, it is
for the defendant to prove." Plaintiff's petition contains two distinct charges of
negligence — one relating to the cause of the fire and
It is true of course that decisions of the Court of Appeals do the other relating to the spreading of the gasoline
not lay down doctrines binding on the Supreme Court, but about the filling station.
we do not consider this a reason for not applying the
particular doctrine of res ipsa loquitur in the case at bar. Other than an expert to assess the damages caused
Gasoline is a highly combustible material, in the storage and plaintiff's building by the fire, no witnesses were
sale of which extreme care must be taken. On the other placed on the stand by the defendant.
hand, fire is not considered a fortuitous event, as it arises
almost invariably from some act of man. A case strikingly Taking up plaintiff's charge of negligence relating to
similar to the one before Us is Jones vs. Shell Petroleum the cause of the fire, we find it established by the
Corporation, et al., 171 So. 447: record that the filling station and the tank truck were
under the control of the defendant and operated by its
Arthur O. Jones is the owner of a building in the city of agents or employees. We further find from the
Hammon which in the year 1934 was leased to the uncontradicted testimony of plaintiff's witnesses that
Shell Petroleum Corporation for a gasoline filling fire started in the underground tank attached to the
station. On October 8, 1934, during the term of the filling station while it was being filled from the tank
lease, while gasoline was being transferred from the truck and while both the tank and the truck were in
tank wagon, also operated by the Shell Petroleum charge of and being operated by the agents or
Corporation, to the underground tank of the station, a employees of the defendant, extended to the hose
fire started with resulting damages to the building and tank truck, and was communicated from the
owned by Jones. Alleging that the damages to his burning hose, tank truck, and escaping gasoline to the
building amounted to $516.95, Jones sued the Shell building owned by the plaintiff.
Petroleum Corporation for the recovery of that
Predicated on these circumstances and the further In the report submitted by Captain Leoncio Mariano of the
circumstance of defendant's failure to explain the Manila Police Department (Exh. X-1 Africa) the following
cause of the fire or to show its lack of knowledge of appears:
the cause, plaintiff has evoked the doctrine of res ipsa
loquitur. There are many cases in which the doctrine Investigation of the basic complaint disclosed that the
may be successfully invoked and this, we think, is one Caltex Gasoline Station complained of occupies a lot
of them. approximately 10 m x 10 m at the southwest corner of
Rizal Avenue and Antipolo. The location is within a
Where the thing which caused the injury complained very busy business district near the Obrero Market, a
of is shown to be under the management of defendant railroad crossing and very thickly populated
or his servants and the accident is such as in the neighborhood where a great number of people mill
ordinary course of things does not happen if those around t
who have its management or control use proper care,
it affords reasonable evidence, in absence of until
explanation by defendant, that the accident arose
from want of care. (45 C.J. #768, p. 1193). gasoline
This statement of the rule of res ipsa loquitur has tever be theWactjvities of these peopleor lighting a
been widely approved and adopted by the courts of cigarette cannot be excluded and this constitute a
last resort. Some of the cases in this jurisdiction in secondary hazard to its operation which in turn
which the doctrine has been applied are the following, endangers the entire neighborhood to conflagration.
viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977;
Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 Furthermore, aside from precautions already taken by
So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis its operator the concrete walls south and west
v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; adjoining the neighborhood are only 2-1/2 meters high
Bents v. Page, 115 La. 560, 39 So. 599. at most and cannot avoid the flames from leaping
over it in case of fire.
The principle enunciated in the aforequoted case applies
with equal force here. The gasoline station, with all its Records show that there have been two cases of fire
appliances, equipment and employees, was under the which caused not only material damages but
control of appellees. A fire occurred therein and spread to desperation and also panic in the neighborhood.
and burned the neighboring houses. The persons who knew
or could have known how the fire started were appellees and Although the soft drinks stand had been eliminated,
their employees, but they gave no explanation thereof this gasoline service station is also used by its
whatsoever. It is a fair and reasonable inference that the operator as a garage and repair shop for his fleet of
incident happened because of want of care. taxicabs numbering ten or more, adding another risk
to the possible outbreak of fire at this already small
but crowded gasoline station.
The foregoing report, having been submitted by a police authority, or permission of answering defendant, passed
officer in the performance of his duties on the basis of his through the gasoline station and negligently threw a lighted
own personal observation of the facts reported, may properly match in the premises." No evidence on this point was
be considered as an exception to the hearsay rule. These adduced, but assuming the allegation to be true — certainly
facts, descriptive of the location and objective circumstances any unfavorable inference from the admission may be taken
surrounding the operation of the gasoline station in question, against Boquiren — it does not extenuate his negligence. A
strengthen the presumption of negligence under the doctrine decision of the Supreme Court of Texas, upon facts
of res ipsa loquitur, since on their face they called for more analogous to those of the present case, states the rule which
stringent measures of caution than those which would satisfy we find acceptable here. "It is the rule that those who
the standard of due diligence under ordinary circumstances. distribute a dangerous article or agent, owe a degree of
There is no more eloquent demonstration of this than the protection to the public proportionate to and commensurate
statement of Leandro Flores before the police investigator. with a danger involved ... we think it is the generally
Flores was the driver of the gasoline tank wagon who, alone accepted rule as applied to torts that 'if the effects of the
and without assistance, was transferring the contents thereof actor's negligent conduct actively and continuously operate
into the underground storage when the fire broke out. He to bring about harm to another, the fact that the active and
said: "Before loading the underground tank there were no substantially simultaneous operation of the effects of a third
people, but while the loading was going on, there were person's innocent, tortious or criminal act is also a
people who went to drink coca-cola (at the coca-cola stand) substantial factor in bringing about the harm, does not
which is about a meter from the hole leading to the protect the actor from liability.' (Restatement of the Law of
underground tank." He added that when the tank was almost Torts, vol. 2, p. 1184, #439). Stated in another way, "The
filled he went to the tank truck to close the valve, and while intention of an unforeseen and unexpected cause, is not
he had his back turned to the "manhole" he, heard someone sufficient to relieve a wrongdoer from consequences of
shout "fire." negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting
Even then the fire possibly would not have spread to the injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153
neighboring houses were it not for another negligent S.W. 2nd 442.)
omission on the part of defendants, namely, their failure to
provide a concrete wall high enough to prevent the flames The next issue is whether Caltex should be held liable for the
from leaping over it. As it was the concrete wall was only 2- damages caused to appellants. This issue depends on
1/2 meters high, and beyond that height it consisted merely whether Boquiren was an independent contractor, as held by
of galvanized iron sheets, which would predictably crumple the Court of Appeals, or an agent of Caltex. This question, in
and melt when subjected to intense heat. Defendants' the light of the facts not controverted, is one of law and
negligence, therefore, was not only with respect to the cause hence may be passed upon by this Court. These facts are:
of the fire but also with respect to the spread thereof to the (1) Boquiren made an admission that he was an agent of
neighboring houses. Caltex; (2) at the time of the fire Caltex owned the gasoline
station and all the equipment therein; (3) Caltex exercised
There is an admission on the part of Boquiren in his control over Boquiren in the management of the state; (4)
amended answer to the second amended complaint that "the the delivery truck used in delivering gasoline to the station
fire was caused through the acts of a stranger who, without had the name of CALTEX painted on it; and (5) the license
to store gasoline at the station was in the name of Caltex, property herein licensed, it being understood and agreed
which paid the license fees. (Exhibit T-Africa; Exhibit U- that LICENSEE (Boquiren) is not an employee,
Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y- representative or agent of LICENSOR (Caltex)."
Africa).
But even if the license agreement were to govern, Boquiren
In Boquiren's amended answer to the second amended can hardly be considered an independent contractor. Under
complaint, he denied that he directed one of his drivers to that agreement Boquiren would pay Caltex the purely
remove gasoline from the truck into the tank and alleged that nominal sum of P1.00 for the use of the premises and all the
the "alleged driver, if one there was, was not in his employ, equipment therein. He could sell only Caltex Products.
the driver being an employee of the Caltex (Phil.) Inc. and/or Maintenance of the station and its equipment was subject to
the owners of the gasoline station." It is true that Boquiren the approval, in other words control, of Caltex. Boquiren
later on amended his answer, and that among the changes could not assign or transfer his rights as licensee without the
was one to the effect that he was not acting as agent of consent of Caltex. The license agreement was supposed to
Caltex. But then again, in his motion to dismiss appellants' be from January 1, 1948 to December 31, 1948, and
second amended complaint the ground alleged was that it thereafter until terminated by Caltex upon two days prior
stated no cause of action since under the allegations thereof written notice. Caltex could at any time cancel and terminate
he was merely acting as agent of Caltex, such that he could the agreement in case Boquiren ceased to sell Caltex
not have incurred personal liability. A motion to dismiss on products, or did not conduct the business with due diligence,
this ground is deemed to be an admission of the facts in the judgment of Caltex. Termination of the contract was
alleged in the complaint. therefore a right granted only to Caltex but not to Boquiren.
These provisions of the contract show the extent of the
Caltex admits that it owned the gasoline station as well as control of Caltex over Boquiren. The control was such that
the equipment therein, but claims that the business the latter was virtually an employee of the former.
conducted at the service station in question was owned and
operated by Boquiren. But Caltex did not present any Taking into consideration the fact that the operator
contract with Boquiren that would reveal the nature of their owed his position to the company and the latter could
relationship at the time of the fire. There must have been remove him or terminate his services at will; that the
one in existence at that time. Instead, what was presented service station belonged to the company and bore its
was a license agreement manifestly tailored for purposes of tradename and the operator sold only the products of
this case, since it was entered into shortly before the the company; that the equipment used by the
expiration of the one-year period it was intended to operate. operator belonged to the company and were just
This so-called license agreement (Exhibit 5-Caltex) was loaned to the operator and the company took charge
executed on November 29, 1948, but made effective as of of their repair and maintenance; that an employee of
January 1, 1948 so as to cover the date of the fire, namely, the company supervised the operator and conducted
March 18, 1948. This retroactivity provision is quite periodic inspection of the company's gasoline and
significant, and gives rise to the conclusion that it was service station; that the price of the products sold by
designed precisely to free Caltex from any responsibility with the operator was fixed by the company and not by the
respect to the fire, as shown by the clause that Caltex "shall operator; and that the receipts signed by the operator
not be liable for any injury to person or property while in the indicated that he was a mere agent, the finding of the
Court of Appeals that the operator was an agent of As found by the trial court the Africas sustained a loss of
the company and not an independent contractor P9,005.80, after deducting the amount of P2,000.00
should not be disturbed. collected by them on the insurance of the house. The
deduction is now challenged as erroneous on the ground
To determine the nature of a contract courts do not that Article 2207 of the New Civil Code, which provides for
have or are not bound to rely upon the name or title the subrogation of the insurer to the rights of the insured,
given it by the contracting parties, should thereby a was not yet in effect when the loss took place. However,
controversy as to what they really had intended to regardless of the silence of the law on this point at that time,
enter into, but the way the contracting parties do or the amount that should be recovered be measured by the
perform their respective obligations stipulated or damages actually suffered, otherwise the principle
agreed upon may be shown and inquired into, and prohibiting unjust enrichment would be violated. With respect
should such performance conflict with the name or to the claim of the heirs of Ong P7,500.00 was adjudged by
title given the contract by the parties, the former must the lower court on the basis of the assessed value of the
prevail over the latter. (Shell Company of the property destroyed, namely, P1,500.00, disregarding the
Philippines, Ltd. vs. Firemens' Insurance Company of testimony of one of the Ong children that said property was
Newark, New Jersey, 100 Phil. 757). worth P4,000.00. We agree that the court erred, since it is of
common knowledge that the assessment for taxation
The written contract was apparently drawn for the purposes is not an accurate gauge of fair market value, and
purpose of creating the apparent relationship of in this case should not prevail over positive evidence of such
employer and independent contractor, and of avoiding value. The heirs of Ong are therefore entitled to P10,000.00.
liability for the negligence of the employees about the
station; but the company was not satisfied to allow Wherefore, the decision appealed from is reversed and
such relationship to exist. The evidence shows that it respondents-appellees are held liable solidarily to
immediately assumed control, and proceeded to appellants, and ordered to pay them the aforesaid sum of
direct the method by which the work contracted for P9,005.80 and P10,000.00, respectively, with interest from
should be performed. By reserving the right to the filing of the complaint, and costs.
terminate the contract at will, it retained the means of
compelling submission to its orders. Having elected to G.R. No. 130547 October 3, 2000
assume control and to direct the means and methods
by which the work has to be performed, it must be LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and
held liable for the negligence of those performing minors LLOYD and KRISTINE, all surnamed REYES,
service under its direction. We think the evidence was represented by their mother, LEAH ALESNA REYES,
sufficient to sustain the verdict of the jury. (Gulf petitioners,
Refining Company v. Rogers, 57 S.W. 2d, 183). vs.
SISTERS OF MERCY HOSPITAL, SISTER ROSE
Caltex further argues that the gasoline stored in the station PALACIO, DR. MARVIE BLANES, and DR. MARLYN
belonged to Boquiren. But no cash invoices were presented RICO, respondents.
to show that Boquiren had bought said gasoline from Caltex.
Neither was there a sales contract to prove the same. DECISION
MENDOZA, J.: physical examination. Like Dr. Rico, her impression was that
Jorge had typhoid fever. Antibiotics being the accepted
This is a petition for review of the decision1 of the Court of treatment for typhoid fever, she ordered that a compatibility
Appeals in CA-G.R. CV No. 36551 affirming the decision of test with the antibiotic chloromycetin be done on Jorge. Said
the Regional Trial Court, Branch IX, Cebu City which test was administered by nurse Josephine Pagente who also
dismissed a complaint for damages filed by petitioners gave the patient a dose of triglobe. As she did not observe
against respondents. any adverse reaction by the patient to chloromycetin, Dr.
Blanes ordered the first five hundred milligrams of said
The facts are as follows: antibiotic to be administered on Jorge at around 9:00 p.m. A
second dose was administered on Jorge about three hours
Petitioner Leah Alesna Reyes is the wife of the late Jorge later just before midnight.
Reyes. The other petitioners, namely, Rose Nahdja, Johnny,
Lloyd, and Kristine, all surnamed Reyes, were their children. At around 1:00 a.m. of January 9, 1987, Dr. Blanes was
Five days before his death on January 8, 1987, Jorge had called as Jorge’s temperature rose to 41°C. The patient also
been suffering from a recurring fever with chills. After he experienced chills and exhibited respiratory distress,
failed to get relief from some home medication he was nausea, vomiting, and convulsions. Dr. Blanes put him under
taking, which consisted of analgesic, antipyretic, and oxygen, used a suction machine, and administered
antibiotics, he decided to see the doctor. hydrocortisone, temporarily easing the patient’s convulsions.
When he regained consciousness, the patient was asked by
On January 8, 1987, he was taken to the Mercy Community Dr. Blanes whether he had a previous heart ailment or had
Clinic by his wife. He was attended to by respondent Dr. suffered from chest pains in the past. Jorge replied he did
Marlyn Rico, resident physician and admitting physician on not.5 After about 15 minutes, however, Jorge again started
duty, who gave Jorge a physical examination and took his to vomit, showed restlessness, and his convulsions returned.
medical history. She noted that at the time of his admission, Dr. Blanes re-applied the emergency measures taken before
Jorge was conscious, ambulatory, oriented, coherent, and and, in addition, valium was administered. Jorge, however,
with respiratory distress.2 Typhoid fever was then prevalent did not respond to the treatment and slipped into cyanosis, a
in the locality, as the clinic had been getting from 15 to 20 bluish or purplish discoloration of the skin or mucous
cases of typhoid per month.3 Suspecting that Jorge could be membrane due to deficient oxygenation of the blood. At
suffering from this disease, Dr. Rico ordered a Widal Test, a around 2:00 a.m., Jorge died. He was forty years old. The
standard test for typhoid fever, to be performed on Jorge. cause of his death was "Ventricular Arrythemia Secondary to
Blood count, routine urinalysis, stool examination, and Hyperpyrexia and typhoid fever."
malarial smear were also made.4 After about an hour, the
medical technician submitted the results of the test from On June 3, 1987, petitioners filed before the Regional Trial
which Dr. Rico concluded that Jorge was positive for typhoid Court of Cebu City a complaint6 for damages against
fever. As her shift was only up to 5:00 p.m., Dr. Rico respondents Sisters of Mercy, Sister Rose Palacio, Dr.
indorsed Jorge to respondent Dr. Marvie Blanes. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine
Pagente. On September 24, 1987, petitioners amended their
Dr. Marvie Blanes attended to Jorge at around six in the complaint to implead respondent Mercy Community Clinic as
evening. She also took Jorge’s history and gave him a additional defendant and to drop the name of Josephine
Pagente as defendant since she was no longer connected For their part, respondents offered the testimonies of Dr.
with respondent hospital. Their principal contention was that Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a
Jorge did not die of typhoid fever.7 Instead, his death was diplomate in internal medicine whose expertise is
due to the wrongful administration of chloromycetin. They microbiology and infectious diseases. He is also a consultant
contended that had respondent doctors exercised due care at the Cebu City Medical Center and an associate professor
and diligence, they would not have recommended and of medicine at the South Western University College of
rushed the performance of the Widal Test, hastily concluded Medicine in Cebu City. He had treated over a thousand
that Jorge was suffering from typhoid fever, and cases of typhoid patients. According to Dr. Gotiong, the
administered chloromycetin without first conducting sufficient patient’s history and positive Widal Test results ratio of 1:320
tests on the patient’s compatibility with said drug. They would make him suspect that the patient had typhoid fever.
charged respondent clinic and its directress, Sister Rose As to Dr. Vacalares’ observation regarding the absence of
Palacio, with negligence in failing to provide adequate ulceration in Jorge’s gastro-intestinal tract, Dr. Gotiong said
facilities and in hiring negligent doctors and nurses.8 that such hyperplasia in the intestines of a typhoid victim
may be microscopic. He noted that since the toxic effect of
Respondents denied the charges. During the pre-trial typhoid fever may lead to meningitis, Dr. Vacalares’ autopsy
conference, the parties agreed to limit the issues on the should have included an examination of the brain.10
following: (1) whether the death of Jorge Reyes was due to
or caused by the negligence, carelessness, imprudence, and The other doctor presented was Dr. Ibarra Panopio, a
lack of skill or foresight on the part of defendants; (2) member of the American Board of Pathology, examiner of
whether respondent Mercy Community Clinic was negligent the Philippine Board of Pathology from 1978 to 1991, fellow
in the hiring of its employees; and (3) whether either party of the Philippine Society of Pathologist, associate professor
was entitled to damages. The case was then heard by the of the Cebu Institute of Medicine, and chief pathologist of the
trial court during which, in addition to the testimonies of the Andres Soriano Jr. Memorial Hospital in Toledo City. Dr.
parties, the testimonies of doctors as expert witnesses were Panopio stated that although he was partial to the use of the
presented. culture test for its greater reliability in the diagnosis of
typhoid fever, the Widal Test may also be used. Like Dr.
Petitioners offered the testimony of Dr. ApolinarVacalares, Gotiong, he agreed that the 1:320 ratio in Jorge’s case was
Chief Pathologist at the Northern Mindanao Training already the maximum by which a conclusion of typhoid fever
Hospital, Cagayan de Oro City. On January 9, 1987, Dr. may be made. No additional information may be deduced
Vacalares performed an autopsy on Jorge Reyes to from a higher dilution.11 He said that Dr. Vacalares’ autopsy
determine the cause of his death. However, he did not open on Jorge was incomplete and thus inconclusive.
the skull to examine the brain. His findings9 showed that the
gastro-intestinal tract was normal and without any ulceration On September 12, 1991, the trial court rendered its decision
or enlargement of the nodules. Dr. Vacalares testified that absolving respondents from the charges of negligence and
Jorge did not die of typhoid fever. He also stated that he had dismissing petitioners’ action for damages. The trial court
not seen a patient die of typhoid fever within five days from likewise dismissed respondents’ counterclaim, holding that,
the onset of the disease. in seeking damages from respondents, petitioners were
impelled by the honest belief that Jorge’s death was due to
the latter’s negligence.
Petitioners brought the matter to the Court of Appeals. On caused injury to the patient.13 There are thus four elements
July 31, 1997, the Court of Appeals affirmed the decision of involved in medical negligence cases, namely: duty, breach,
the trial court. injury, and proximate causation.
Hence this petition. In the present case, there is no doubt that a physician-
patient relationship existed between respondent doctors and
Petitioners raise the following assignment of errors: Jorge Reyes. Respondents were thus duty-bound to use at
least the same level of care that any reasonably competent
I. THE HONORABLE COURT OF APPEALS doctor would use to treat a condition under the same
COMMITTED A REVERSIBLE ERROR WHEN IT circumstances. It is breach of this duty which constitutes
RULED THAT THE DOCTRINE OF RES IPSA actionable malpractice.14 As to this aspect of medical
LOQUITUR IS NOT APPLICABLE IN THE INSTANT malpractice, the determination of the reasonable level of
CASE. care and the breach thereof, expert testimony is essential.
Inasmuch as the causes of the injuries involved in
II. THE HONORABLE COURT OF APPEALS malpractice actions are determinable only in the light of
COMMITTED REVERSIBLE ERROR WHEN IT scientific knowledge, it has been recognized that expert
MADE AN UNFOUNDED ASSUMPTION THAT THE testimony is usually necessary to support the conclusion as
LEVEL OF MEDICAL PRACTICE IS LOWER IN to causation.15
ILIGAN CITY.
Res Ipsa Loquitur
III. THE HONORABLE COURT OF APPEALS
GRAVELY ERRED WHEN IT RULED FOR A There is a case when expert testimony may be dispensed
LESSER STANDARD OF CARE AND DEGREE OF with, and that is under the doctrine of res ipsa loquitur. As
DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN held in Ramos v. Court of Appeals:16
CITY WHEN IT APPRECIATE[D] NO DOCTOR’S
NEGLIGENCE IN THE TREATMENT OF JORGE Although generally, expert medical testimony is relied upon
REYES. in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard
Petitioner’s action is for medical malpractice. This is a medical procedure, when the doctrine of res ipsa loquitor is
particular form of negligence which consists in the failure of availed by the plaintiff, the need for expert medical testimony
a physician or surgeon to apply to his practice of medicine is dispensed with because the injury itself provides the proof
that degree of care and skill which is ordinarily employed by of negligence. The reason is that the general rule on the
the profession generally, under similar conditions, and in like necessity of expert testimony applies only to such matters
surrounding circumstances.12 In order to successfully clearly within the domain of medical science, and not to
pursue such a claim, a patient must prove that the physician matters that are within the common knowledge of mankind
or surgeon either failed to do something which a reasonably which may be testified to by anyone familiar with the facts.
prudent physician or surgeon would have done, or that he or Ordinarily, only physicians and surgeons of skill and
she did something that a reasonably prudent physician or experience are competent to testify as to whether a patient
surgeon would not have done, and that the failure or action has been treated or operated upon with a reasonable degree
of skill and care. However, testimony as to the statements five days and was fully conscious, coherent, and ambulant
and acts of physicians and surgeons, external appearances, when he went to the hospital. Yet, he died after only ten
and manifest conditions which are observable by any one hours from the time of his admission.
may be given by non-expert witnesses. Hence, in cases
where the res ipsa loquitur is applicable, the court is This contention was rejected by the appellate court.
permitted to find a physician negligent upon proper proof of
injury to the patient, without the aid of expert testimony, Petitioners now contend that all requisites for the application
where the court from its fund of common knowledge can of res ipsa loquitur were present, namely: (1) the accident
determine the proper standard of care. Where common was of a kind which does not ordinarily occur unless
knowledge and experience teach that a resulting injury someone is negligent; (2) the instrumentality or agency
would not have occurred to the patient if due care had been which caused the injury was under the exclusive control of
exercised, an inference of negligence may be drawn giving the person in charge; and (3) the injury suffered must not
rise to an application of the doctrine of res ipsa loquitur have been due to any voluntary action or contribution of the
without medical evidence, which is ordinarily required to person injured.18
show not only what occurred but how and why it occurred.
When the doctrine is appropriate, all that the patient must do The contention is without merit. We agree with the ruling of
is prove a nexus between the particular act or omission the Court of Appeals. In the Ramos case, the question was
complained of and the injury sustained while under the whether a surgeon, an anesthesiologist, and a hospital
custody and management of the defendant without need to should be made liable for the comatose condition of a patient
produce expert medical testimony to establish the standard scheduled for cholecystectomy.19 In that case, the patient
of care. Resort to res ipsa loquitor is allowed because there was given anesthesia prior to her operation. Noting that the
is no other way, under usual and ordinary conditions, by patient was neurologically sound at the time of her operation,
which the patient can obtain redress for injury suffered by the Court applied the doctrine of res ipsa loquitur as mental
him. brain damage does not normally occur in a gallblader
operation in the absence of negligence of the
Thus, courts of other jurisdictions have applied the doctrine anesthesiologist. Taking judicial notice that anesthesia
in the following situations: leaving of a foreign object in the procedures had become so common that even an ordinary
body of the patient after an operation, injuries sustained on a person could tell if it was administered properly, we allowed
healthy part of the body which was not under, or in the area, the testimony of a witness who was not an expert. In this
of treatment, removal of the wrong part of the body when case, while it is true that the patient died just a few hours
another part was intended, knocking out a tooth while a after professional medical assistance was rendered, there is
patient’s jaw was under anesthetic for the removal of his really nothing unusual or extraordinary about his death. Prior
tonsils, and loss of an eye while the patient was under the to his admission, the patient already had recurring fevers
influence of anesthetic, during or following an operation for and chills for five days unrelieved by the analgesic,
appendicitis, among others.17 antipyretic, and antibiotics given him by his wife. This shows
that he had been suffering from a serious illness and
Petitioners asserted in the Court of Appeals that the doctrine professional medical help came too late for him.
of res ipsa loquitur applies to the present case because
Jorge Reyes was merely experiencing fever and chills for
Respondents alleged failure to observe due care was not Marvie Blanes erred in ordering the administration of the
immediately apparent to a layman so as to justify application second dose of 500 milligrams of chloromycetin barely three
of res ipsa loquitur. The question required expert opinion on hours after the first was given.22 Petitioners presented the
the alleged breach by respondents of the standard of care testimony of Dr. ApolinarVacalares, Chief Pathologist of the
required by the circumstances. Furthermore, on the issue of Northern Mindanao Training Hospital, Cagayan de Oro City,
the correctness of her diagnosis, no presumption of who performed an autopsy on the body of Jorge Reyes. Dr.
negligence can be applied to Dr. MarlynRico.As held in Vacalares testified that, based on his findings during the
Ramos: autopsy, Jorge Reyes did not die of typhoid fever but of
shock undetermined, which could be due to allergic reaction
. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be or chloromycetin overdose. We are not persuaded.
perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is First. While petitioners presented Dr. ApolinarVacalares as
generally restricted to situations in malpractice cases where an expert witness, we do not find him to be so as he is not a
a layman is able to say, as a matter of common knowledge specialist on infectious diseases like typhoid fever.
and observation, that the consequences of professional care Furthermore, although he may have had extensive
were not as such as would ordinarily have followed if due experience in performing autopsies, he admitted that he had
care had been exercised. A distinction must be made yet to do one on the body of a typhoid victim at the time he
between the failure to secure results, and the occurrence of conducted the postmortem on Jorge Reyes. It is also plain
something more unusual and not ordinarily found if the from his testimony that he has treated only about three
service or treatment rendered followed the usual procedure cases of typhoid fever. Thus, he testified that:23
of those skilled in that particular practice. It must be
conceded that the doctrine of res ipsa loquitur can have no ATTY. PASCUAL:
application in a suit against a physician or a surgeon which
involves the merits of a diagnosis or of a scientific treatment. Q Why? Have you not testified earlier that you have never
The physician or surgeon is not required at his peril to seen a patient who died of typhoid fever?
explain why any particular diagnosis was not correct, or why
any particular scientific treatment did not produce the A In autopsy. But, that was when I was a resident physician
desired result.20 yet.
Specific Acts of Negligence Q But you have not performed an autopsy of a patient who
died of typhoid fever?
We turn to the question whether petitioners have established
specific acts of negligence allegedly committed by A I have not seen one.
respondent doctors.
Q And you testified that you have never seen a patient who
Petitioners contend that: (1) Dr. Marlyn Rico hastily and died of typhoid fever within five days?
erroneously relied upon the Widal test, diagnosed Jorge’s
illness as typhoid fever, and immediately prescribed the A I have not seen one.
administration of the antibiotic chloromycetin;21 and (2) Dr.
Q How many typhoid fever cases had you seen while you toxic effects of the drug allegedly responsible for the
were in the general practice of medicine? bronchospasms.
A In our case we had no widal test that time so we cannot Second. On the other hand, the two doctors presented by
consider that the typhoid fever is like this and like that. And respondents clearly were experts on the subject. They
the widal test does not specify the time of the typhoid fever. vouched for the correctness of Dr. Marlyn Rico’s diagnosis.
Dr. Peter Gotiong, a diplomate whose specialization is
Q The question is: how many typhoid fever cases had you infectious diseases and microbiology and an associate
seen in your general practice regardless of the cases now professor at the Southwestern University College of
you practice? Medicine and the Gullas College of Medicine, testified that
he has already treated over a thousand cases of typhoid
A I had only seen three cases. fever.26 According to him, when a case of typhoid fever is
suspected, the Widal test is normally used,27 and if the
Q And that was way back in 1964? 1:320 results of the Widal test on Jorge Reyes had been
presented to him along with the patient’s history, his
A Way back after my training in UP. impression would also be that the patient was suffering from
typhoid fever.28 As to the treatment of the disease, he
Q Clinically? stated that chloromycetin was the drug of choice.29 He also
explained that despite the measures taken by respondent
A Way back before my training. doctors and the intravenous administration of two doses of
chloromycetin, complications of the disease could not be
He is thus not qualified to prove that Dr. Marlyn Rico erred in discounted. His testimony is as follows:30
her diagnosis. Both lower courts were therefore correct in
discarding his testimony, which is really inadmissible. ATTY. PASCUAL:
In Ramos, the defendants presented the testimony of a Q If with that count with the test of positive for 1 is to 320,
pulmonologist to prove that brain injury was due to oxygen what treatment if any would be given?
deprivation after the patient had bronchospasms24 triggered
by her allergic response to a drug,25 and not due to faulty A If those are the findings that would be presented to me,
intubation by the anesthesiologist. As the issue was whether the first thing I would consider would be typhoid fever.
the intubation was properly performed by an
anesthesiologist, we rejected the opinion of the Q And presently what are the treatments commonly used?
pulmonologist on the ground that he was not: (1) an
anesthesiologist who could enlighten the court about A Drug of choice of chloramphenical.
anesthesia practice, procedure, and their complications; nor
(2) an allergologist who could properly advance expert Q Doctor, if given the same patient and after you have
opinion on allergic mediated processes; nor (3) a administered chloramphenical about 3 1/2 hours later, the
pharmacologist who could explain the pharmacologic and patient associated with chills, temperature - 41oC, what could
possibly come to your mind?
A Well, when it is change in the clinical finding, you have to Q And in order to see those changes would it require
think of complication. opening the skull?
A One must first understand that typhoid fever is toximia. As regards Dr. Vacalares’ finding during the autopsy that the
The problem is complications are caused by toxins produced deceased’s gastro-intestinal tract was normal, Dr. Rico
by the bacteria . . . whether you have suffered complications explained that, while hyperplasia31 in the payer’s patches or
to think of -- heart toxic myocardities; then you can consider layers of the small intestines is present in typhoid fever, the
a toxic meningitis and other complications and perforations same may not always be grossly visible and a microscope
and bleeding in the ilium. was needed to see the texture of the cells.32
Q Even that 40-year old married patient who received Respondents also presented the testimony of Dr. Ibarra T.
medication of chloromycetin of 500 milligrams intravenous, Panopio who is a member of the Philippine and American
after the skin test, and received a second dose of Board of Pathology, an examiner of the Philippine Board of
chloromycetin of 500 miligrams, 3 hours later, the patient Pathology, and chief pathologist at the MetroCebu
developed chills . . . rise in temperature to 41oC, and then Community Hospital, Perpetual Succor Hospital, and the
about 40 minutes later the temperature rose to 100oF, Andres Soriano Jr. Memorial Medical Center. He stated that,
cardiac rate of 150 per minute who appeared to be coherent, as a clinical pathologist, he recognized that the Widal test is
restless, nauseating, with seizures: what significance could used for typhoid patients, although he did not encourage its
you attach to these clinical changes? use because a single test would only give a presumption
necessitating that the test be repeated, becoming more
A I would then think of toxemia, which was toxic meningitis conclusive at the second and third weeks of the disease.33
and probably a toxic meningitis because of the high cardiac He corroborated Dr. Gotiong’s testimony that the danger with
rate. typhoid fever is really the possible complications which could
develop like perforation, hemorrhage, as well as liver and
Q Even if the same patient who, after having given cerebral complications.34 As regards the 1:320 results of the
intramuscular valium, became conscious and coherent about Widal test on Jorge Reyes, Dr. Panopio stated that no
20 minutes later, have seizure and cyanosis and rolling of additional information could be obtained from a higher
eyeballs and vomitting . . . and death: what significance ratio.35 He also agreed with Dr. Gotiong that hyperplasia in
would you attach to this development? the payer’s patches may be microscopic.36
A We are probably dealing with typhoid to meningitis. Indeed, the standard contemplated is not what is actually the
average merit among all known practitioners from the best to
Q In such case, Doctor, what finding if any could you expect the worst and from the most to the least experienced, but the
on the post-mortem examination? reasonable average merit among the ordinarily good
physicians.37 Here, Dr. Marlyn Rico did not depart from the
A No, the finding would be more on the meninges or reasonable standard recommended by the experts as she in
covering of the brain. fact observed the due care required under the
circumstances. Though the Widal test is not conclusive, it hundred milligrams (500 mg.) at around nine o’clock in the
remains a standard diagnostic test for typhoid fever and, in evening and the second dose at around 11:30 the same
the present case, greater accuracy through repeated testing night was still within medically acceptable limits, sincethe
was rendered unobtainable by the early death of the patient. recommended dose of chloromycetin is one (1) gram every
The results of the Widal test and the patient’s history of fever six (6) hours. (cf. Pediatric Drug Handbook, 1st Ed.,
with chills for five days, taken with the fact that typhoid fever Philippine Pediatric Society, Committee on Therapeutics and
was then prevalent as indicated by the fact that the clinic had Toxicology, 1996). The intravenous route is likewise correct.
been getting about 15 to 20 typhoid cases a month, were (Mansser, O’Nick, Pharmacology and Therapeutics) Even if
sufficient to give upon any doctor of reasonable skill the the test was not administered by the physician-on-duty, the
impression that Jorge Reyes had typhoid fever. evidence introduced that it was Dra. Blanes who interpreted
the results remain uncontroverted. (Decision, pp. 16-17)
Dr. Rico was also justified in recommending the Once more, this Court rejects any claim of professional
administration of the drug chloromycetin, the drug of choice negligence in this regard.
for typhoid fever. The burden of proving that Jorge Reyes
was suffering from any other illness rested with the ....
petitioners. As they failed to present expert opinion on this,
preponderant evidence to support their contention is clearly As regards anaphylactic shock, the usual way of guarding
absent. against it prior to the administration of a drug, is the skin test
of which, however, it has been observed: "Skin testing with
Third. Petitioners contend that respondent Dr. Marvie haptenic drugs is generally not reliable. Certain drugs cause
Blanes, who took over from Dr. Rico, was negligent in nonspecific histamine release, producing a weal-and-flare
ordering the intravenous administration of two doses of 500 reaction in normal individuals. Immunologic activation of
milligrams of chloromycetin at an interval of less than three mast cells requires a polyvalent allergen, so a negative skin
hours. Petitioners claim that Jorge Reyes died of test to a univalent haptenic drug does not rule out
anaphylactic shock38 or possibly from overdose as the anaphylactic sensitivity to that drug." (Terr, "Anaphylaxis and
second dose should have been administered five to six Urticaria" in Basic and Clinical Immunology, p. 349) What all
hours after the first, per instruction of Dr. Marlyn Rico. As this means legally is that even if the deceased suffered from
held by the Court of Appeals, however: an anaphylactic shock, this, of itself, would not yet establish
the negligence of the appellee-physicians for all that the law
That chloromycetin was likewise a proper prescription is best requires of them is that they perform the standard tests and
established by medical authority. Wilson, et. al., in Harrison’s perform standard procedures. The law cannot require them
Principle of Internal Medicine, 12th ed. write that to predict every possible reaction to all drugs administered.
chlorampenicol (which is the generic of chloromycetin) is the The onus probandi was on the appellants to establish,
drug of choice for typhoid fever and that no drug has yet before the trial court, that the appellee-physicians ignored
proven better in promoting a favorable clinical response. standard medical procedure, prescribed and administered
"Chlorampenicol (Chloromycetin) is specifically indicated for medication with recklessness and exhibited an absence of
bacterial meningitis, typhoid fever, rickettsial infections, the competence and skills expected of general practitioners
bacteriodes infections, etc." (PIMS Annual, 1994, p. 211) similarly situated.39
The dosage likewise including the first administration of five
Fourth. Petitioners correctly observe that the medical Appeals called it, the reasonable "skill and competence . . .
profession is one which, like the business of a common that a physician in the same or similar locality . . . should
carrier, is affected with public interest. Moreover, they assert apply."
that since the law imposes upon common carriers the duty of
observing extraordinary diligence in the vigilance over the WHEREFORE, the instant petition is DENIED and the
goods and for the safety of the passengers,40 physicians decision of the Court of Appeals is AFFIRMED.
and surgeons should have the same duty toward their
patients.41 They also contend that the Court of Appeals SO ORDERED.
erred when it allegedly assumed that the level of medical
practice is lower in Iligan City, thereby reducing the standard G.R. No. 83589 March 13, 1991
of care and degree of diligence required from physicians and
surgeons in Iligan City. RAMON FAROLAN as ACTING COMMISSIONER OF
CUSTOMS, and GUILLERMO PARAYNO, as CHIEF OF
The standard of extraordinary diligence is peculiar to CUSTOM INTELLIGENCE and INVESTIGATION
common carriers. The Civil Code provides: DIVISION, petitioners,
vs.
Art. 1733. Common carriers, from the nature of their SOLMAC MARKETING CORPORATION and COURT OF
business and for reasons of public policy, are bound to APPEALS, respondents.
observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by Dakila F. Castro & Associates for private respondent.
them, according to the circumstances of each case. . . .
SARMIENTO, J.:
The practice of medicine is a profession engaged in only by
qualified individuals.1âwphi1 It is a right earned through This petition for review on certiorari, instituted by the Solicitor
years of education, training, and by first obtaining a license General on behalf of the public officers-petitioners, seek the
from the state through professional board examinations. nullification and setting aside of the Resolution1 dated May
Such license may, at any time and for cause, be revoked by 25, 1988 of the Court of Appeals in CA-G.R. No. SP-10509,
the government. In addition to state regulation, the conduct entitled "Solmac Marketing Corporation vs. Ramon Farolan,
of doctors is also strictly governed by the Hippocratic Oath, Acting Commissioner of Customs, and Guillermo Parayno,
an ancient code of discipline and ethical rules which doctors Chief of Customs Intelligence and Investigation Division,"
have imposed upon themselves in recognition and which adjudged these public officers to pay solidarily and in
acceptance of their great responsibility to society. Given their private personal capacities respondent Solmac
these safeguards, there is no need to expressly require of Marketing Corporation temperate damages in the sum of
doctors the observance of "extraordinary" diligence. As it is P100,000.00, exemplary damages in the sum of P50,000.00,
now, the practice of medicine is already conditioned upon and P25,000.00, as attorney's fees and expenses of
the highest degree of diligence. And, as we have already litigation. This challenged resolution of the respondent court
noted, the standard contemplated for doctors is simply the modified its decision2 of July 27, 1987 by reducing into
reasonable average merit among ordinarily good physicians. halves the original awards of P100,000.00 and P50,000.00
That is reasonable diligence for doctors or, as the Court of for exemplary damages and attorney's fees and litigation
expenses, respectively, keeping intact the original grant of kilograms of what is technically known as polypropylene film,
P100,000.00 in the concept of temperate damages. valued at US$69,250.05.
(Strangely, the first name of petitioner Farolan stated in the
assailed resolution, as well as in the decision, of the Polypropylene is a substance resembling polyethelyne which
respondent court is "Damian" when it should be "Ramon", is one of a group of partially crystalline lightweight
his correct given name. Strictly speaking, petitioner Ramon thermoplastics used chiefly in making fibers, films, and
Farolan could not be held liable under these decision and molded and extruded products.4
resolution for he is not the one adjudged to pay the huge
damages but a different person. Nonetheless, that is of no Without defect, polypropylene film is sold at a much higher
moment now considering the disposition of thisponencia.) price as prime quality film. Once rejected as defective due to
blemishes, discoloration, defective winding, holes, etc.,
The relevant facts, as culled from the records, are as follows: polypropylene film is sold at a relatively cheap price without
guarantee or return, and the buyer takes the risk as to
At the time of the commission of the acts complained of by whether he can recover an average 30% to 50% usable
the private respondent, which was the subject of the latter's matter.5 This latter kind of polypropylene is known as OPP
petition for mandamus and injunction filed with the Regional film waste/scrap and this is what respondent SOLMAC
Trial Court (RTC) of Manila in Civil Case No. 84-23537, claimed the Clojus shipment to be.
petitioner Ramon Farolan was then the Acting Commissioner
of Customs while petitioner Guillermo Parayno was then the The subject importation, consisting of seventeen (17)
Acting Chief, Customs Intelligence and Investigation containers, arrived in December, 1981. Upon application for
Division. They were thus sued in their official capacities as entry, the Bureau of Customs asked respondent SOLMAC
officers in the government as clearly indicated in the title of for its authority from any government agency to import the
the case in the lower courts and even here in this Court. goods described in the bill of lading. Respondent SOLMAC
Nevertheless, they were both held personally liable for the presented a Board of Investment (BOI) authority for
awarded damages "(s)ince the detention of the goods by the polypropylene film scrap. However, upon examination of the
defendants (petitioners herein) was irregular and devoid of shipment by the National Institute of Science and
legal basis, hence, not done in the regular performance of Technology (NIST), it turned out that the fibers of the
official duty . . . ."3 importation were oriented in such a way that the materials
were stronger than OPP film scrap.6 In other words, the
However, as adverted to at the outset, in the dispositive Clojus shipment was not OPP film scrap, as declared by the
portion of the challenged resolution, the one held personally assignee respondent SOLMAC to the Bureau of Customs
liable is a "Damian Farolan" and not the petitioner, Ramon and BOI Governor Lilia R. Bautista, but oriented
Farolan. Also as earlier mentioned, we will ignore that gross polypropylene the importation of which is restricted, if not
error. prohibited, under Letter of Instructions (LOI) No. 658-B.
Specifically, Sections 1 and 2 of LOI No. 658-B provide that:
Private respondent Solmac Marketing Corporation is a
corporation organized and existing under the laws of the x xx x xx x xx
Philippines. It was the assignee, transferee, and owner of an
importation of Clojus Recycling Plastic Products of 202,204
1. The importation of cellophane shall be allowed only 6. Atty. Dakila Castro then wrote a letter dated
for quantities and types of cellophane that cannot be October 6, 1983, to BOI Governor HermenigildoZayco
produced by Philippine Cellophane Film Corporation. stressing the reasons why the subject importation
The Board of Investments shall issue guidelines should be released without drilling of holes.
regulating such importations.
7. On November 8, 1983, BOI Governor H. Zayco
2. The Collector of Customs shall see to the wrote a letter to the Bureau of Customs stating that
apprehension of all illegal importations of cellophane the subject goods may be released without drilling of
and oriented polypropylene (OPP) and the dumping of holes inasmuch as the goods arrived prior to the
imported stock lots of cellophane and OPP. endorsement on August 17, 1982 to the drilling of
holes on all importations of waste/scrap films.
x xx x xx x xx
8. On February 1, 1984, petitioner Commissioner
Considering that the shipment was different from what had Farolan wrote the BOI requesting for definite
been authorized by the BOI and by law, petitioners Parayno guidelines regarding the disposition of importations of
and Farolan withheld the release of the subject importation. Oriented Polypropylene (OPP) and Polypropylene
(PP) then being held at the Bureau of Customs.
On June 7, 1982, petitioner Parayno, then Chief of Customs
Intelligence and Investigation Division, wrote the BOI asking 9. On March 12, 1984, Minister Roberto Ongpin of
for the latter's advice on whether or no t the subject Trade, the BOI Chairman, wrote his reply to petitioner
importation may be released7 A series of exchange of Farolan . . . .8 (This reply of Minister Ongpin is copied
correspondence between the BOI and the Bureau of in full infra.)
Customs, on one hand, and between the late Dakila Castro,
counsel for the private respondent, and the BOI and the On March 26, 1984, respondent Solmac filed the action for
Bureau of Customs, on the other, ensued, to wit: mandamus and injunction with the RTC as above
mentioned. It prayed for the unconditional release of the
x xx x xx x xx subject importation. It also prayed for actual damages,
exemplary damages, and attorney's fees. As prayed for, the
4. In a letter dated August 17, 1982, the BOI agreed trial court issued a writ of preliminary injunction.
that the subject imports may be released but that
holes may be drilled on them by the Bureau of After hearing on the merits, the RTC rendered a decision on
Customs prior to their release. February 5, 1985, the dispositive portion of which reads as
follows:
5. On January 20, 1983, (the late) Atty. Dakila Castro,
(then) counsel of private respondent wrote to Premises considered, judgment is hereby rendered
petitioner Commissioner Farolan of Customs asking ordering defendants to release the subject importation
for the release of the importation. The importation was immediately without drilling of holes, subject only to
not released, however, on the ground that holes had the normal requirements of the customs processing
to be drilled on them first. for such release to be done with utmost dispatch as
time is of the essence; and the preliminary injunction SO ORDERED.
hereto issued is hereby made permanent until actual
physical release of the merchandise and without On August 14, 1987, the petitioners filed a motion for
pronouncement as to costs. reconsideration of the decision of the Court of Appeals.
SO ORDERED.9 On May 25, 1988, the Court of Appeals issued its resolution
modifying the award of damages, to wit: temperate damages
From the decision of the trial court, Solmac, the plaintiff in the sum of P100,000,00, exemplary damages in the sum
below and the private respondent herein, appealed to the of P50,000.00, and P25,000.00 as attorney's fees and
Court of Appeals only insofar as to the denial of the award of expenses of litigation. The respondent court explained the
damages is concerned. On the other hand, the petitioners reduction of the awards for exemplary damages and
did not appeal from this decision. They did not see any need attorney's fees and expenses of litigation in this wise:
to appeal because as far as they were concerned, they had
already complied with their duty. They had already ordered 3. In our decision of July 27, 1987, We awarded to
the release of the importation "without drilling of holes," as in plaintiff-appellant Pl00,000 as temperate damages,
fact it was so released, in compliance with the advice to Pl00,000.00 as exemplary damages, and P50,000.00
effect such immediate release contained in a letter of BOI as attorney's fees and expenses of litigation. Under
dated October 9, 1984, to Commissioner Farolan. Thus, to Art. 2233 of the Civil Code, recovery of exemplary
stress, even before the RTC rendered its decision on damages is not a matter of right but depends upon
February 5, 1984, the Clojus shipment of OPP was the discretion of the court. Under Article 2208 of the
released10 to the private respondent in its capacity as Civil Code, attorney's fees and expenses of litigation
assignee of the same. Be that it may, the private respondent must always be reasonable. In view of these
filed its appeal demanding that the petitioners be held, in provisions of the law, and since the award of
their personal and private capacities, liable for damages temperate damages is only P100,000.00, the amount
despite the finding of lack of bad faith on the part of the of exemplary damages may not be at par as
public officers. temperate damages. An award of P50,000.00, as
exemplary damages may already serve the purpose,
After due proceeding, the Court of Appeals rendered a i.e., as an example for the public good. Likewise, the
decision11 on July 27, 1987, the dispositive portion which attorney's fees and expenses of litigation have to be
reads as follows: reduced to 25% of the amount of temperate damages,
or P25,000.00, if the same have to be reasonable.
WHEREFORE, the appealed judgment is modified by The reduction in the amount of exemplary damages,
ordering the defendants Ramon Farolan and and attorney's fees and expenses of litigation would
Guillermo Parayno solidarity, in their personal be in accord with justice and fairness.12
capacity, to pay the plaintiff temperate damages in the
sum of P100,000, exemplary damages in the sum of The petitioners now come to this Court, again by the Solicitor
P100,000 and P50,000 as attorney's fees and General, assigning the following errors allegedly committed
expenses of litigation. Costs against the defendants. by the respondent court:
I another. It is the opposite of fraud, and its absence should
be established by convincing evidence."
The Court of Appeals erred in disregarding the finding
of the trial court that the defense of good faith of We had reviewed the evidence on record carefully and we
petitioners (defendants) cannot be discredited. did not see any clear and convincing proof showing the
alleged bad faith of the petitioners. On the contrary, the
II record is replete with evidence bolstering the petitioners'
claim of good faith. First, there was the report of the National
The Court of Appeals erred in adjudging petitioners Institute of Science and Technology (NIST) dated January
liable to pay temperate damages, exemplary 25, 1982 that, contrary to what the respondent claimed, the
damages, attorney's fees and expenses of subject importation was not OPP film scraps but oriented
litigation.13 polypropylene, a plastic product of stronger material, whose
importation to the Philippines was restricted, if not prohibited,
These two issues boil down to a single question, i.e., under LOI
whether or not the petitioners acted in good faith in not 658-B.17 It was on the strength of this finding that the
immediately releasing the questioned importation, or, simply, petitioners withheld the release of the subject importation for
can they be held liable, in their personal and private being contrary to law. Second, the petitioners testified that,
capacities, for damages to the private respondent. on many occasions, the Bureau of Customs sought the
advice of the BOI on whether the subject importation might
We rule for the petitioners. be released.18 Third, petitioner Parayno also testified during
the trial that up to that time (of the trial) there was no clear-
The respondent court committed a reversible error in cut policy on the part of the BOI regarding the entry into the
overruling the trial court's finding that: Philippines of oriented polypropylene (OPP), as the letters of
BOI Governors Tordesillas and Zayco of November 8, 1983
. . . with reference to the claim of plaintiff to damages, and September 24, 1982, respectively, ordering the release
actual and exemplary, and attorney's fees, the Court of the subject importation did not clarify the BOI policy on the
finds it difficult to discredit or disregard totally the matter. He then testified on the letter of the BOI Chairman
defendants' defense of good faith premised on the Roberto Ongpin dated March 12, 1984, which states in full:
excuse that they were all the time awaiting
clarification of the Board of Investments on the Thank you for your letter of 1 February 1984, on the
matter.14 subject of various importations of Oriented
Polypropylene (OPP) and Polypropylene (PP)
We hold that this finding of the trial court is correct for good withheld by Customs and the confusion over the
faith is always presumed and it is upon him who alleges the disposition of such imports.
contrary that the burden of proof lies.15 In Abando v.
Lozada,16 we defined good faith as "refer[ring] to a state of I have discussed the matter with Vice-Chairman
the mind which is manifested by the acts of the individual Tordesillas and Governor Zayco of the Board of
concerned. It consists of the honest intention to abstain from Investments and the following is their explanation:
taking an unconscionable and unscrupulous advantage of
1. On 22 June 1982, the BOI ruled that importation of former with regard to its policy on these importations. This
OPP/PP film scraps intended for recycling or resulted in the inevitable delay in the release of the Clojus
repelletizing did not fall within the purview of LOI 658- shipment, one of the several of such importations. The
B. confusion over the disposition of this particular importation
obviates bad faith. Thus the trial court's finding that the
2. On 17 August l982, the BOI agreed that holes petitioners acted in good faith in not immediately releasing
could be drilled on subject film imports to prevent their the Clojus shipment pending a definitive policy of the BOI on
use for other purposes. this matter is correct. It is supported by substantial evidence
on record, independent of the presumption of good faith,
3. For importations authorized prior to 22 June 1982, which as stated earlier, was not successfully rebutted.
the drilling of holes should depend on purpose for
which the importations was approved by the BOI that When a public officer takes his oath of office, he binds
is, for direct packaging use or for himself to perform the duties of his office faithfully and to use
recycling/repelletizing into raw material. The reasonable skill and diligence, and to act primarily for the
exemption from drilling of holes on Solmac benefit of the public. Thus, in the discharge of his duties, he
Marketing's importation under Certificates of Authority is to use that prudence, caution, and attention which careful
issued on 1 April 1982 and 5 May 1982 and on Clojus' men use in the management of their affairs. In the case at
importation authorized in 1982 were endorsed by the bar, prudence dictated that petitioners first obtain from the
BOI on the premise that these were not intended for BOI the latter's definite guidelines regarding the disposition
recycling/repelletizing. of the various importations of oriented polypropylene (OPP)
and polypropylene (PP) then being withheld at the Bureau of
Should your office have any doubts as to the Customs. These cellophane/film products were competing
authorized intended use of any imported lots of with locally manufactured polypropylene and oriented
OPP/PP film scraps that you have confiscated, we polypropylene as raw materials which were then already
have no objection to the drilling of holes to ensure that sufficient to meet local demands, hence, their importation
these are indeed recycled. was restricted, if not prohibited under LOI 658-B.
Consequently, the petitioners can not be said to have acted
I have requested Governor Zayco to contact your in bad faith in not immediately releasing the import goods
office in order to offer any further assistance which without first obtaining the necessary clarificatory guidelines
you may require.19 from the BOI. As public officers, the petitioners had the duty
to see to it that the law they were tasked to implement, i.e.,
It can be seen from all the foregoing that even the highest LOI 658-B, was faithfully complied with.
officers (Chairman Ongpin, Vice-Chairman Tordesillas, and
Governor Zayco) of the BOI themselves were not in But even granting that the petitioners committed a mistake in
agreement as to what proper course to take on the subject of withholding the release of the subject importation because
the various importations of Oriented Polypropylene (OPP) indeed it was composed of OPP film scraps,20 contrary to
and Polypropylene (PP) withheld by the Bureau of Customs. the evidence submitted by the National Institute of Science
The conflicting recommendations of the BOI on this score and Technology that the same was pure oriented OPP,
prompted the petitioners to seek final clarification from the nonetheless, it is the duty of the Court to see to it that public
officers are not hampered in the performance of their duties Nature of the Petition
or in making decisions for fear of personal liability for
damages due to honest mistake.1âwphi1 Whatever damage Before this Court is a petition for review on certiorari under
they may have caused as a result of such an erroneous Rule 45 of the 1997 Rules of Civil Procedure, seeking to
interpretation, if any at all, is in the nature of a damnum annul and set aside the Decision1 dated July 21, 2009 of the
absque injuria. Mistakes concededly committed by public Court of Appeals (CA) in CA-G.R. CV No. 90021, which
officers are not actionable absent any clear showing that affirmed with modification the Decision2 dated March 20,
they were motivated by malice or gross negligence 2007 of the Regional Trial Court (RTC), Branch 40, Palayan
amounting to bad faith.21 After all, "even under the law of City, and Resolution3 dated October 26, 2009, which denied
public officers, the acts of the petitioners are protected by the petitioners’ motion for reconsideration.
the presumption of good faith.22
The Antecedent Facts
In the same vein, the presumption, disputable though it may
be, that an official duty has been regularly performed23 On May 14, 2004, at about three o’clock in the morning,
applies in favor of the petitioners. Omnia praesumuntur rite Reynaldo Vizcara (Reynaldo) was driving a passenger
et solemniteresse acta. (All things are presumed to be jeepney headed towards Bicol to deliver onion crops, with
correctly and solemnly done.) It was private respondent's his companions, namely, CresencioVizcara (Cresencio),
burden to overcome this juris tantum presumption. We are Crispin Natividad (Crispin), Samuel Natividad (Samuel),
not persuaded that it has been able to do so. Dominador Antonio (Dominador) and Joel Vizcara (Joel).
While crossing the railroad track in Tiaong, Quezon, a
WHEREFORE, the petition is hereby GRANTED, the Philippine National Railways (PNR) train, then being
assailed Resolution of the respondent court, in CA-G.R. SP operated by respondent Japhet Estranas (Estranas),
No. 10509, dated May 25, 1988, is SET ASIDE and suddenly turned up and rammed the passenger jeepney.
ANNULLED. No costs. The collision resulted to the instantaneous death of
Reynaldo, Cresencio, Crispin, and Samuel. On the other
SO ORDERED. hand, Dominador and Joel, sustained serious physical
injuries.4
G.R. No. 190022 February 15, 2012
At the time of the accident, there was no level crossing
PHILIPPINE NATIONAL RAILWAYS CORPORATION, installed at the railroad crossing. Additionally, the "Stop,
JAPHET ESTRANAS and BEN SAGA, Petitioners, Look and Listen" signage was poorly maintained. The "Stop"
vs. signage was already faded while the "Listen" signage was
PURIFICACION VIZCARA, MARIVIC VIZCARA, partly blocked by another signboard.5
CRESENCIA A. NATIVIDAD, HECTOR VIZCARA, JOEL
VIZCARA and DOMINADOR ANTONIO, Respondents. On September 15, 2004, the survivors of the mishap, Joel
and Dominador, together with the heirs of the deceased
DECISION victims, namely, PurificacionVizcara, Marivic Vizcara,
Cresencia Natividad and Hector Vizcara, filed an action for
REYES, J.: damages against PNR, Estranas and Ben Saga, the
alternate driver of the train, before the RTC of Palayan City. WHEREFORE, premises considered, judgment is hereby
The case was raffled to Branch 40 and was docketed as rendered ordering defendants Philippine National Railways
Civil Case No. 0365-P. In their complaint, the respondents Corporation (PNR), Japhet Estranas and Ben Saga to, jointly
alleged that the proximate cause of the fatalities and serious and severally pay the following amounts to:
physical injuries sustained by the victims of the accident was
the petitioners’ gross negligence in not providing adequate 1. a) PURIFICACION VIZCARA:
safety measures to prevent injury to persons and properties.
They pointed out that in the railroad track of Tiaong, Quezon 1) P50,000.00, as indemnity for the
where the accident happened, there was no level crossing death of Reynaldo Vizcara;
bar, lighting equipment or bell installed to warn motorists of
the existence of the track and of the approaching train. They 2) P35,000.00, for funeral expenses;
concluded their complaint with a prayer for actual, moral and
compensatory damages, as well as attorney’s fees.6 3) P5,000.00 for re-embalming
expenses;
For their part, the petitioners claimed that they exercised due
diligence in operating the train and monitoring its 4) P40,000.00 for wake/interment
roadworthiness. They asseverate that right before the expenses;
collision, Estranas was driving the train at a moderate speed.
Four hundred (400) meters away from the railroad crossing, 5) P300,000.00 as reimbursement for
he started blowing his horn to warn motorists of the the value of the jeepney with license
approaching train. When the train was only fifty (50) meters plate no. DTW-387;
away from the intersection, respondent Estranas noticed that
all vehicles on both sides of the track were already at a full 6) P200,000.00 as moral damages;
stop. Thus, he carefully proceeded at a speed of twenty-five
(25) kilometers per hour, still blowing the train’s horn. 7) P100,000.00 as exemplary damages;
However, when the train was already ten (10) meters away and
from the intersection, the passenger jeepney being driven by
Reynaldo suddenly crossed the tracks. Estranas 8) P20,000.00 for Attorney’s fees.
immediately stepped on the brakes to avoid hitting the
jeepney but due to the sheer weight of the train, it did not b) MARIVIC VIZCARA:
instantly come to a complete stop until the jeepney was
dragged 20 to 30 meters away from the point of collision.7 1) P50,000.00, as indemnity for the
death of CresencioVizcara;
The Ruling of the Trial Court
2) P200,000.00 as moral damages;
After trial on the merits, the RTC rendered its Decision8
dated March 20, 2007, ruling in favor of the respondents, the 3) P100,000.00 as exemplary damages;
dispositive portion of which reads: and
4) P20,000.00 for Attorney’s fees. f) DOMINADOR ANTONIO
4) P10,000.00 for Attorney’s fees. (2) The award of moral damages to PURIFICACION
VIZCARA, MARIVIC VIZCARA, HECTOR VIZCARA
and CRESENCIA NATIVIDAD is hereby reduced from THE CA ERRED IN FINDING THAT THE
P200,000.00 to P100,000.00 each while moral PROXIMATE CAUSE OF THE ACCIDENT WAS THE
damages awarded to JOEL VIZCARA and NEGLIGENCE OF THE PETITIONERS;
DOMINADOR ANTONIO are likewise reduced from
P50,000.00 to P25,000.00; II
(3) The award of exemplary damages to THE CA ERRED IN HOLDING THAT THE
PURIFICACION VIZCARA, MARIVIC VIZCARA, DOCTRINE OF LAST CLEAR CHANCE FINDS NO
HECTOR VIZCARA and CRESENCIA NATIVIDAD is APPLICATION IN THE INSTANT CASE;
hereby reduced from P100,000.00 to P50,000.00
each while exemplary damages awarded to JOEL III
VIZCARA and DOMINADOR ANTONIO are likewise
reduced from P25,000.00 to P12,500.00; and THE CA ERRED IN FINDING NEGLIGENCE ON
THE PART OF THE PETITIONERS OR ERRED IN
(4) The award for attorney’s fees in favor of the NOT FINDING AT THE LEAST, CONTRIBUTORY
Appellees as well as the award of P300,000.00 to NEGLIGENCE ON THE PART OF THE
Appellee PURIFICACION as reimbursement for the RESPONDENTS.13
value of the jeepney is DELETED.
The petitioners maintain that the proximate cause of the
SO ORDERED.10 collision was the negligence and recklessness of the driver
of the jeepney. They argue that as a professional driver,
In the assailed decision, the CA affirmed the RTC’s finding of Reynaldo is presumed to be familiar with traffic rules and
negligence on the part of the petitioners. It concurred with regulations, including the right of way accorded to trains at
the trial court's conclusion that petitioner PNR's failure to railroad crossing and the precautionary measures to observe
install sufficient safety devices in the area, such as flagbars in traversing the same. However, in utter disregard of the
or safety railroad bars and signage, was the proximate right of way enjoyed by PNR trains, he failed to bring his
cause of the accident. Nonetheless, in order to conform with jeepney to a full stop before crossing the railroad track and
established jurisprudence, it modified the monetary awards thoughtlessly followed the ten-wheeler truck ahead of them.
to the victims and the heirs of those who perished due to the His failure to maintain a safe distance between the jeepney
collision. he was driving and the truck ahead of the same prevented
him from seeing the PNR signage displayed along the
The petitioners filed a Motion for Reconsideration11 of the crossing.14
decision of the CA. However, in a Resolution12 dated
October 26, 2009, the CA denied the same. In their Comment,15 the respondents reiterate the findings of
the RTC and the CA that the petitioners' negligence in
Aggrieved, the petitioners filed the present petition for review maintaining adequate and necessary public safety devices in
on certiorari, raising the following grounds: the area of the accident was the proximate cause of the
mishap. They asseverate that if there was only a level
I crossing bar, warning light or sound, or flagman in the
intersection, the accident would not have happened. Thus, existence of negligence in a given case is not determined by
there is no other party to blame but the petitioners for their reference to the personal judgment of the actor in the
failure to ensure that adequate warning devices are installed situation before him. The law considers what would be
along the railroad crossing.16 reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.19
This Court’s Ruling
In the instant petition, this Court is called upon to determine
The petition lacks merit. whose negligence occasioned the ill-fated incident. The
records however reveal that this issue had been rigorously
The petitioners’ negligence was the proximate cause of the discussed by both the RTC and the CA. To emphasize, the
accident. RTC ruled that it was the petitioners’ failure to install
adequate safety devices at the railroad crossing which
Article 2176 of the New Civil Code prescribes a civil liability proximately caused the collision. This finding was affirmed
for damages caused by a person's act or omission by the CA in its July 21, 2009 Decision. It is a well-
constituting fault or negligence. It states: established rule that factual findings by the CA are
conclusive on the parties and are not reviewable by this
Article 2176. Whoever by act or omission causes damage to Court. They are entitled to great weight and respect, even
another, there being fault or negligence, is obliged to pay for finality, especially when, as in this case, the CA affirmed the
the damage done. Such fault or negligence, if there was no factual findings arrived at by the trial court.20
pre-existing contractual relation between the parties, is
called quasi-delict and is governed by the provisions of this Furthermore, in petitions for review on certiorari, only
chapter. questions of law may be put into issue. Questions of fact
cannot be entertained.21 To distinguish one from the other,
In Layugan v. Intermediate Appellate Court,17 negligence a question of lawexists when the doubt or difference centers
was defined as the omission to do something which a on what the law is on a certain state of facts. A question of
reasonable man, guided by considerations which ordinarily fact, on the other hand,exists if the doubt centers on the truth
regulate the conduct of human affairs, would do, or the doing or falsity of the alleged facts.22 Certainly, the finding of
of something which a prudent and reasonable man would negligence by the RTC, which was affirmed by the CA, is a
not do. It is the failure to observe for the protection of the question of fact which this Court cannot pass upon as this
interests of another person, that degree of care, precaution, would entail going into the factual matters on which the
and vigilance which the circumstances justly demand, negligence was based.23 Moreover, it was not shown that
whereby such other person suffers injury.18 To determine the present case falls under any of the recognized
the existence of negligence, the time-honored test was: Did exceptions24 to the oft repeated principle according great
the defendant in doing the alleged negligent act use that weight and respect to the factual findings of the trial court
reasonable care and caution which an ordinarily prudent and the CA.
person would have used in the same situation? If not, then
he is guilty of negligence. The law here in effect adopts the At any rate, the records bear out that the factual
standard supposed to be supplied by the imaginary conduct circumstances of the case were meticulously scrutinized by
of the discreet paterfamilias of the Roman law. The both the RTC and the CA before arriving at the same finding
of negligence on the part of the petitioners, and we found no the prevailing circumstances immediately before the collision
compelling reason to disturb the same. Both courts ruled that did not manifest even the slightest indication of an imminent
the petitioners fell short of the diligence expected of it, taking harm. To begin with, the truck they were trailing was able to
into consideration the nature of its business, to forestall any safely cross the track. Likewise, there was no crossing bar to
untoward incident. In particular, the petitioners failed to prevent them from proceeding or, at least, a stoplight or
install safety railroad bars to prevent motorists from crossing signage to forewarn them of the approaching peril. Thus,
the tracks in order to give way to an approaching train. Aside relying on his faculties of sight and hearing, Reynaldo had
from the absence of a crossing bar, the "Stop, Look and no reason to anticipate the impending danger.27 He
Listen" signage installed in the area was poorly maintained, proceeded to cross the track and, all of a sudden, his
hence, inadequate to alert the public of the impending jeepney was rammed by the train being operated by the
danger. A reliable signaling device in good condition, not just petitioners. Even then, the circumstances before the collision
a dilapidated "Stop, Look and Listen" signage, is needed to negate the imputation of contributory negligence on the part
give notice to the public. It is the responsibility of the railroad of the respondents. What clearly appears is that the accident
company to use reasonable care to keep the signal devices would not have happened had the petitioners installed
in working order. Failure to do so would be an indication of reliable and adequate safety devices along the crossing to
negligence.25 Having established the fact of negligence on ensure the safety of all those who may utilize the same.
the part of the petitioners, they were rightfully held liable for
damages. At this age of modern transportation, it behooves the PNR to
exert serious efforts to catch up with the trend, including the
There was no contributory negligence on the part of the contemporary standards in railroad safety. As an institution
respondents. established to alleviate public transportation, it is the duty of
the PNR to promote the safety and security of the general
As to whether there was contributory negligence on the part riding public and provide for their convenience, which to a
of the respondents, this court rule in the negative. considerable degree may be accomplished by the
Contributory negligence is conduct on the part of the injured installation of precautionary warning devices. Every railroad
party, contributing as a legal cause to the harm he has crossing must be installed with barriers on each side of the
suffered, which falls below the standard which he is required track to block the full width of the road until after the train
to conform for his own protection. It is an act or omission runs past the crossing. To even draw closer attention, the
amounting to want of ordinary care on the part of the person railroad crossing may be equipped with a device which rings
injured which, concurring with the defendant’s negligence, is a bell or turns on a signal light to signify the danger or risk of
the proximate cause of the injury.26 Here, we cannot see crossing. It is similarly beneficial to mount advance warning
how the respondents could have contributed to their injury signs at the railroad crossing, such as a reflectorized
when they were not even aware of the forthcoming danger. It crossbuck sign to inform motorists of the existence of the
was established during the trial that the jeepney carrying the track, and a stop, look and listen signage to prompt the
respondents was following a ten-wheeler truck which was public to take caution. These warning signs must be erected
only about three to five meters ahead. When the truck in a place where they will have ample lighting and
proceeded to traverse the railroad track, Reynaldo, the driver unobstructed visibility both day and night. If only these safety
of the jeepney, simply followed through. He did so under the devices were installed at the Tiaong railroad crossing and
impression that it was safe to proceed. It bears noting that
the accident nevertheless occurred, we could have reached condition and in working order, or to give notice that they are
a different disposition in the extent of the petitioner’s liability. not operating, since if such a signal is misunderstood it is a
menace. Thus, it has been held that if a railroad company
The exacting nature of the responsibility of railroad maintains a signalling device at a crossing to give warning of
companies to secure public safety by the installation of the approach of a train, the failure of the device to operate is
warning devices was emphasized in Philippine National generally held to be evidence of negligence, which maybe
Railways v. Court of Appeals,28 thus: considered with all the circumstances of the case in
determining whether the railroad company was negligent as
[I]t may broadly be stated that railroad companies owe to the a matter of fact.31
public a duty of exercising a reasonable degree of care to
avoid injury to persons and property at railroad crossings, The maintenance of safety equipment and warning signals at
which duties pertain both to the operation of trains and to the railroad crossings is equally important as their installation
maintenance of the crossings. Moreover, every corporation since poorly maintained safety warning devices court as
constructing or operating a railway shall make and construct much danger as when none was installed at all. The
at all points where such railway crosses any public road, presence of safety warning signals at railroad crossing
good, sufficient, and safe crossings, and erect at such carries with it the presumption that they are in good working
points, at sufficient elevation from such road as to admit a condition and that the public may depend on them for
free passage of vehicles of every kind, a sign with large and assistance. If they happen to be neglected and inoperative,
distinct letters placed thereon, to give notice of the proximity the public may be misled into relying on the impression of
of the railway, and warn persons of the necessity of looking safety they normally convey and eventually bring injury to
out for trains. The failure of the PNR to put a cross bar, or themselves in doing so.
signal light, flagman or switchman, or semaphore is
evidence of negligence and disregard of the safety of the The doctrine of last clear chance is not applicable.
public, even if there is no law or ordinance requiring it,
because public safety demands that said device or Finally, the CA correctly ruled that the doctrine of last clear
equipment be installed.29 chance is not applicable in the instant case. The doctrine of
last clear chance provides that where both parties are
The responsibility of the PNR to secure public safety does negligent but the negligent act of one is appreciably later in
not end with the installation of safety equipment and point of time than that of the other, or where it is impossible
signages but, with equal measure of accountability, with the to determine whose fault or negligence brought about the
upkeep and repair of the same. Thus, in Cusi v. Philippine occurrence of the incident, the one who had the last clear
National Railways,30 we held: opportunity to avoid the impending harm but failed to do so,
is chargeable with the consequences arising therefrom.
Jurisprudence recognizes that if warning devices are Stated differently, the rule is that the antecedent negligence
installed in railroad crossings, the travelling public has the of a person does not preclude recovery of damages caused
right to rely on such warning devices to put them on their by the supervening negligence of the latter, who had the last
guard and take the necessary precautions before crossing fair chance to prevent the impending harm by the exercise of
the tracks. A need, therefore, exists for the railroad company due diligence.32 To reiterate, the proximate cause of the
to use reasonable care to keep such devices in good collision was the petitioners’ negligence in ensuring that
motorists and pedestrians alike may safely cross the railroad per hour. As the defendant neared the bridge he saw a
track. The unsuspecting driver and passengers of the horseman on it and blew his horn to give warning of his
jeepney did not have any participation in the occurrence of approach. He continued his course and after he had taken
the unfortunate incident which befell them. Likewise, they did the bridge he gave two more successive blasts, as it
not exhibit any overt act manifesting disregard for their own appeared to him that the man on horseback before him was
safety. Thus, absent preceding negligence on the part of the not observing the rule of the road.
respondents, the doctrine of last clear chance cannot be
applied. The plaintiff, it appears, saw the automobile coming and
heard the warning signals. However, being perturbed by the
WHEREFORE, premises considered, the petition is novelty of the apparition or the rapidity of the approach, he
DENIED. The Decision of the Court of Appeals dated July pulled the pony closely up against the railing on the right
21, 2009 in CA-G.R. CV No. 90021 is hereby AFFIRMED. 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
SO ORDERED. 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
[ G.R. No. 12219, March 15, 1918 ] 4.80 meters. As the automobile approached, the defendant
AMADO PICART, PLAINTIFF AND APPELLANT, VS. guided it toward his left, that being the proper side of the
FRANK SMITH, JR., DEFENDANT AND APPELLEE. 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
DECISION
sign for the automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to the
STREET, J.: right while yet some distance away or slowing down,
continued to approach directly toward the horse without
In this action the plaintiff, Amado Picart, seeks to recover of diminution of speed. When he had gotten quite near, there
being then no possibility of the horse getting across to the
the defendant, Frank Smith, jr., the sum of P31,100, as
other side, the defendant quickly turned his car sufficiently to
damages alleged to have been caused by an automobile
the right to escape hitting the horse alongside of the railing
driven by the defendant. From a judgment of the Court of where it was then standing; but in so doing the automobile
First Instance of the Province of La Union absolving the passed in such close proximity to the animal that it became
defendant from liability the plaintiff has appealed. frightened and turned its body across the bridge with its
head toward the railing. In so doing, it was struck on the
The occurrence which gave rise to the institution of this hock of the left hind leg by the flange of the car and the limb
action took place on December 12, 1912, on the Carlatan was broken. The horse fell and its rider was thrown off with
Bridge, at San Fernando, La Union. It appears that upon the some violence. From the evidence adduced in the case we
occasion in question the plaintiff was riding on his pony over believe that when the accident occurred the free space
said bridge. Before he had gotten half way across, the where the pony stood between the automobile and the
defendant approached from the opposite direction in an railing of the bridge was probably less than one and one half
automobile, going at the rate of about ten or twelve miles, meters. As a result of its injuries the horse died. The plaintiff
received contusions which caused temporary he is guilty of negligence. The law here in effect adopts the
unconsciousness and required medical attention for several standard suppose to be supplied by the imaginary conduct of
days. the discreet paterfamilias of the Roman law. The existence
of negligence in a given case is not determined by reference
The question presented for decision is whether or not the to the personal judgment of the actor in the situation before
defendant in maneuvering his car in the manner above him. The law considers what would be reckless,
described was guilty of negligence such as gives rise to a blameworthy, or negligent in the man of ordinary intelligence
civil obligation to repair the damage done; and we are of the and prudence and determines liability by that.
opinion that he is so liable. As the defendant started across
the bridge, he had the right to assume that the horse and The question as to what would constitute the conduct of a
rider would pass over to the proper side; but as he moved prudent man in a given situation must of course be always
toward the center of the bridge it was demonstrated to his determined in the light of human experience and in view of
eyes that this would not be done; and he must in a moment the facts involved in the particular case. Abstract speculation
have perceived that it was too late for the horse to cross with cannot here be of much value but this much can be
safety in front of the moving vehicle. In the nature of things profitably said: Reasonable men govern their conduct by the
this change of situation occurred while the automobile was circumstances which are before them or known to them.
yet some distance away; and from this moment it was not They are not, and are not supposed to be, omniscient of the
longer within the power of the plaintiff to escape being run future. Hence they can be expected to take care only when
down by going to a place of greater safety. The control of the there is something before them to suggest or warn of
situation had then passed entirely to the defendant; and it danger. Could a prudent man, in the case under
was his duty either to bring his car to an immediate stop or, consideration, foresee harm as a result of the course
seeing that there were no other persons on the bridge, to actually pursued? If so, it was the duty of the actor to take
take the other side and pass sufficiently far away from the precautions to guard against that harm. Reasonable
horse to avoid the danger of collision. Instead of doing this, foresight of harm, followed by the ignoring of the suggestion
the defendant ran straight on until he was almost upon the born of this prevision, is always necessary before negligence
horse. He was, we think, deceived into doing this by the fact can be held to exist. Stated in these terms, the proper
that the horse had not yet exhibited fright. But in view of the criterion for determining the existence of negligence in a
known nature of horses, there was an appreciable risk that, if given case is this: Conduct is said to be negligent when a
the animal in question was unacquainted with automobiles, prudent man in the position of the tortfeasor would have
he might get excited and jump under the conditions which foreseen that an effect harmful to another was sufficiently
here confronted him. When the defendant exposed the horse probable to warrant his foregoing the conduct or guarding
and rider to this danger he was, in our opinion, negligent in against its consequences.
the eye of the law.
Applying this test to the conduct of the defendant in the
The test by which to determine the existence of negligence present case we think that negligence is clearly established.
in a particular case may be stated as follows: Did the A prudent man, placed in the position of the defendant,
defendant in doing the alleged negligent act use that would, in our opinion, have recognized that the course which
reasonable care and caution which an ordinarily prudent he was pursuing was fraught with risk, and would therefore
person would have used in the same situation ? If not, then have foreseen harm to the horse and rider as a reasonable
consequence of that course. Under these circumstances the also that the plaintiff was, at the moment of the accident,
law imposed on the defendant the duty to guard against the guilty of contributory negligence in walking at the side of the
threatened harm. car instead of being in front or behind. It was held that while
the defendant was liable to the plaintiff by reason of its
It goes without saying that the plaintiff himself was not free negligence in having failed to keep the track in proper repair,
from fault, for he was guilty of antecedent negligence in nevertheless the amount of the damages should be reduced
planting himself on the wrong side of the road. But as we on account of the contributory negligence of the plaintiff. As
have already stated, the defendant was also negligent; and will be seen the defendant's negligence in that case
in such case the problem always is to discover which agent consisted in an omission only. The liability of the company
is immediately and directly responsible. It will be noted that arose from its responsibility for the dangerous condition of its
the negligent acts of the two parties were not track. In a case like the one now before us, where the
contemporaneous, since the negligence of the defendant defendant was actually present and operating the
succeeded the negligence of the plaintiff by an appreciable automobile which caused the damage, we do not feel
interval. Under these circumstances the law is that the constrained to attempt to weigh the negligence of the
person who has the last fair chance to avoid the impending respective parties in order to apportion the damage
harm and fails to do so is chargeable with the according to the degree of their, relative fault. It is enough to
consequences, without reference to the prior negligence of say that the negligence of the defendant was in this case the
the other party. immediate and determining cause of the accident and that
the antecedent negligence of the plaintiff was a more remote
The decision in the case of Rakes vs. Atlantic, Gulf and factor in the case.
Pacific Co. (7 Phil. Rep., 359) should perhaps be mentioned
in this connection. This Court there held that while A point of minor importance in the case is indicated in the
contributory negligence on the part of the person injured did special defense pleaded in the defendant's answer, to the
not constitute a bar to recovery, it could be received in effect that the subject matter of the action had been
evidence to reduce the damages which would otherwise previously adjudicated in the court of a justice of the peace.
have been assessed wholly against the other party. The In this connection it appears that soon after the accident in
defendant company had there employed the plaintiff, a question occurred, the plaintiff caused criminal proceedings
laborer, to assist in transporting iron rails from a barge in to be instituted before a justice of the peace charging the
Manila harbor to the company's yards located not far away. defendant with the infliction of serious injuries (lesiones
The rails were conveyed upon cars which were hauled along graves). At the preliminary investigation the defendant was
a narrow track. At a certain spot near the water's edge the discharged by the magistrate and the proceedings were
track gave way by reason of the combined effect of the dismissed. Conceding that the acquittal of the defendant at a
weight of the car and the insecurity of the road bed. The car trial upon the merits in a criminal prosecution for the offense
was in consequence upset; the rails slid off; and the mentioned would be res adjudicata, upon the question of his
plaintiff's leg was caught and broken. It appeared in civil liability arising from negligence—a point upon which it is
evidence that the accident was due to the effects of a unnecessary to express an opinion—the action of the justice
typhoon which had dislodged one of the supports of the of the peace in dismissing the criminal proceeding upon the
track. The court found that the defendant company was preliminary hearing can have no such effect. (See U. S. vs.
negligent in having failed to repair the bed of the track and Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the position becomes the condition and not the proximate cause
lower court must be reversed, and judgment is here of the injury and will not preclude a recovery. (Note
rendered that the plaintiff recover of the defendant the sum especially Aiken vs. Metcalf [1917], 102 Atl, 330.)
of two hundred pesos (P200), with costs of both instances.
The sum here awarded is estimated to include the value of [ G.R. Nos. 79050-51, November 14, 1989 ]
the horse, medical expenses of the plaintiff, the loss or PANTRANCO NORTH EXPRESS, INC., PETITIONER, VS.
damage occasioned to articles of his apparel, and lawful MARICAR BASCOS BAESA, THRU HER PERSONAL
interest on the whole to the date of this recovery. The other GUARDIAN FRANCISCA O. BASCOS, FE O. ICO, IN HER
damages claimed by the plaintiff are remote or otherwise of
BEHALF AND IN BEHALF OF HER MINOR CHILDREN,
such character as not to be recoverable. So ordered.
NAMELY ERWIN, OLIVE, EDMUNDO AND SHARON ICO,
Arellano, C. J., Torres, Carson, Araullo, Avanceña, RESPONDENTS.
and Fisher, JJ., concur.
DECISION
Johnson, J., reserves his vote.
CORTES, J.:
In its answer, PANTRANCO, aside from pointing to the late C) As compensatory damages for the death of
David Ico's alleged negligence as the proximate cause of the Harold Jim Baesa and MarcelinoBaesa -
accident, invoked the defense of due diligence in the P30,000.00;
selection and supervision of its driver, Ambrosio Ramirez.
D) For the loss of earnings of CeasarBaesa -
On July 3, 1984, the CFI of Pangasinan rendered a decision P630,000.00;
against PANTRANCO awarding the total amount of Two
Million Three Hundred Four Thousand Six Hundred Forty- E) For the loss of earnings of Marilyn
Seven Pesos (P2,304,647.00) as damages, plus 10% BascosBaesa - P375,000.00;
F) For the burial expenses of the deceased same for lack of merit. PANTRANCO then filed the instant
Ceasar and Marilyn Baesa - P 41,200.00 petition for review.
A) As compensatory damages for the death of David Ico - The doctrine of the last clear chance was defined by this
P30,000.00; Court in the case of Ongv.MetropolitanWaterDistrict, 104
Phil. 397 (1958), in this wise:
B) For loss of earning capacity of David Ico - P252,000.00
C) As moral damages for the death of David Ico and the The doctrine of the last clear chance simply means that the
injury of Fe Ico - P30,000.00; negligence of a claimant does not preclude a recovery for
the negligence of defendant where it appears that the latter,
D) As payment for the jeepney - P20,000.00; by exercising reasonable care and prudence, might have
E) For the hospitalization of Fe Ico - P12,000.00; avoided injurious consequences to claimant notwithstanding
his negligence.
F) And for attorney's fees - P10,000.00;
and to pay the costs in both cases. The doctrine applies only in a situation where the plaintiff
was guilty of prior or antecedent negligence but the
The amount of P25,000.00 paid to MaricarBascosBaesa, defendant, who had the last fair chance to avoid the
plaintiff in Civil Case No. 561-R, and the medical expenses impending harm and failed to do so, is made liable for all the
in the sum of P3,273.55, should be deducted from the award consequences of the accident notwithstanding the prior
in her favor. negligence of the plaintiff [Picart v. Smith, 37 Phil 809
(1918); Glan People's Lumber and Hardware, et al. v.
All the foregoing amounts herein awarded except the costs Intermediate Appellate Court, Cecilia AlferezVda. de Calibo,
shall earn interest at the legal rate from date of this decision et al., G.R. No. 70493, May 18, 1989.] The subsequent
until fully paid. [CA Decision, pp. 14-15; Rollo, pp. 57-58.] negligence of the defendant in failing to exercise ordinary
care to avoid injury to plaintiff becomes the immediate or
PANTRANCO filed a motion for reconsideration of the Court proximate cause of the accident which intervenes between
of Appeal's decision, but on June 26, 1987, it denied the the accident and the more remote negligence of the plaintiff,
thus making the defendant liable to the plaintiff [Picart v. properly proceeding on his own side of the highway is
Smith, supra.] generally entitled to assume that an approaching vehicle
coming towards him on the wrong side, will return to his
Generally, the last clear chance doctrine is invoked for the proper lane of traffic. There was nothing to indicate to David
purpose of making a defendant liable to a plaintiff who was Ico that the bus could not return to its own lane or was
guilty of prior or antecedent negligence, although it may also prevented from returning to the proper lane by anything
be raised as a defense to defeat claim for damages. beyond the control of its driver. Leo Marantan, an alternate
driver of the Pantranco bus who was seated beside the
To avoid liability for the negligence of its driver, petitioner driver Ramirez at the time of the accident, testified that
claims that the original negligence of its driver was not the Ramirez had no choice but to swerve the steering wheel to
proximate cause of the accident and that the sole proximate the left and encroach on the jeepney's lane because there
cause was the supervening negligence of the jeepney driver was a steep precipice on the right [CA Decision, p. 2; Rollo,
David Ico in failing to avoid the accident. It is petitioner's p. 45.] However, this is belied by the evidence on record
position that even assuming arguendo, that the bus which clearly shows that there was enough space to swerve
encroached into the lane of the jeepney, the driver of the the bus back to its own lane without any danger [CA
latter could have swerved the jeepney towards the spacious Decision, p. 7; Rollo, p. 50.]
dirt shoulder on his right without danger to himself or his
passengers. Moreover, both the trial court and the Court of Appeals found
that at the time of the accident the Pantranco bus was
The above contention of petitioner is manifestly devoid of speeding towards Manila [CA Decision, p. 2; Rollo, p. 45.] By
merit. the time David Ico must have realized that the bus was not
returning to its own lane, it was already too late to swerve
Contrary to the petitioner's contention, the doctrine of "last the jeepney to his right to prevent an accident. The speed at
clear chance" finds no application in this case. For the which the approaching bus was running prevented David Ico
doctrine to be applicable, it is necessary to show that the from swerving the jeepney to the right shoulder of the road in
person who allegedly had the last opportunity to avert the time to avoid the collision. Thus, even assuming that the
accident was aware of the existence of the peril or should, jeepney driver perceived the danger a few seconds before
with exercise of due care, have been aware of it. One the actual collision, he had no opportunity to avoid it. This
cannot be expected to avoid an accident or injury if he does Court has held that the last clear chance doctrine "can never
not know or could not have known the existence of the peril. apply where the party charged is required to act
In this case, there is nothing to show that the jeepney driver instantaneously, and if the injury cannot be avoided by the
David Ico knew of the impending danger. When he saw at a application of all means at hand after the peril is or should
distance that the approaching bus was encroaching on his have been discovered" [Ong v. Metropolitan Water District,
lane, he did not immediately swerve the jeepney to the dirt supra.]
shoulder on his right since he must have assumed that the
bus driver will return the bus to its own lane upon seeing the Petitioner likewise insists that David Ico was negligent in
jeepney approaching from the opposite direction. As held by failing to observe Section 43 (c), Article III Chapter IV of
this Court in the case of Vda.DeBonifaciov.BLTB, G.R. No.
L-26810, August 31, 1970, 34 SCRA 618, a motorist who is
Republic Act No. 4136* which provides that the driver of a to prevent damage, conformably to the last paragraph of
vehicle entering a through highway or a stop intersection Article 2180 of the Civil Code. Petitioner adduced evidence
shall yield the right of way to all vehicles approaching in to show that in hiring its drivers, the latter are required to
either direction on such through highway. have professional driver's license and police clearance. The
drivers must also pass written examinations, interviews and
Petitioner's misplaced reliance on the aforesaid law is readily practical driving tests, and are required to undergo a six-
apparent in this case. The cited law itself provides that it month training period. Rodrigo San Pedro, petitioner's
applies only to vehicles entering a through highway or a stop Training Coordinator, testified on petitioner's policy of
intersection. At the time of the accident, the jeepney had conducting regular and continuing training programs and
already crossed the intersection and was on its way to safety seminars for its drivers, conductors, inspectors and
Malalam River. Petitioner itself cited Fe Ico's testimony that supervisors at a frequency rate of at least two (2) seminars a
the accident occurred after the jeepney had travelled a month.
distance of about two (2) meters from the point of
intersection [Petition p. 10; Rollo, p. 27.] In fact, even the On this point, the Court quotes with approval the following
witness for the petitioner, Leo Marantan, testified that both findings of the trial court which was adopted by the Court of
vehicles were coming from opposite directions [CA Decision, Appeals in its challenged decision:
p. 7; Rollo, p. 50], clearly indicating that the jeepney had
already crossed the intersection. When an injury is caused by the negligence of an employee,
there instantly arises a presumption that the employer has
Considering the foregoing, the Court finds that the been negligent either in the selection of his employees or in
negligence of petitioner's driver in encroaching into the lane the supervision over their acts. Although this presumption is
of the incoming jeepney and in failing to return the bus to its only a disputable presumption which could be overcome by
own lane immediately upon seeing the jeepney coming from proof of diligence of a good father of a family, this Court
the opposite direction was the sole and proximate cause of
believes that the evidence submitted by the defendant to
the accident without which the collision would not have
show that it exercised the diligence of a good father of a
occurred. There was no supervening or intervening
negligence on the part of the jeepney driver which would family in the case of Ramirez, as a company driver is far
have made the prior negligence of petitioner's driver a mere from sufficient. No support evidence has been adduced.
remote cause of the accident. The professional driver's license of Ramirez has not been
produced. There is no proof that he is between 25 to 38
II years old. There is also no proof as to his educational
attainment, his age, his weight and the fact that he is married
On the issue of its liability as an employer, petitioner claims or not. Neither are the result of the written test,
that it had observed the diligence of a good father of a family psychological and physical test, among other tests, have
been submitted in evidence [sic]. His NBI or police
clearances and clearances from previous employment were
not marked in evidence. No evidence was presented that
Ramirez actually and really attended the seminars. Vital
evidence should have been the certificate of attendance or reason to disturb the finding of both the trial court and the
certificate of participation or evidence of such participation Court of Appeals that the evidence presented by the
like a logbook signed by the trainees when they attended the petitioner, which consists mainly of the uncorroborated
seminars. If such records are not available, the testimony of testimony of its Training Coordinator, is insufficient to
the classmates that Ramirez was their classmate in said overcome the presumption of negligence against petitioner.
seminar (should have been presented) [CA Decision, pp. 8-
III
9; Rollo, pp. 51-52.]
On the question of damages, petitioner claims that the Court
Petitioner contends that the fact that Ambrosio Ramirez was
of Appeals erred in fixing the damages for the loss of earning
employed and remained as its driver only means that he
capacity of the deceased victims. Petitioner assails
underwent the same rigid selection process and was
respondent court's findings because no documentary
subjected to the same strict supervision imposed by
evidence in support thereof, such as income tax returns,
petitioner on all applicants and employees. It is argued by
pay-rolls, pay slips or invoices obtained in the usual course
the petitioner that unless proven otherwise, it is presumed
of business, were presented [Petition, p. 22; Rollo, p. 39.]
that petitioner observed its usual recruitment procedure and
Petitioner argues that the "bare and self?serving testimonies
company policies on safety and efficiency [Petition, p. 20;
of the wife of the deceased David Ico and the mother of the
Rollo, p. 37.]
deceased Marilyn Baesa ... have no probative value to
sustain in law the Court of Appeals' conclusion on the
The Court finds the above contention unmeritorious.
respective earnings of the deceased victims." [Petition, pp.
21-22; Rollo, pp. 38-39.] It is petitioner's contention that the
The finding of negligence on the part of its driver Ambrosio evidence presented by the private respondent does not meet
Ramirez gave rise to the presumption of negligence on the the requirements of clear and satisfactory evidence to prove
part of petitioner and the burden of proving that it exercised actual and compensatory damages.
due diligence not only in the selection of its employees but
also in adequately supervising their work rests with the
The Court finds that the Court of Appeals committed no
petitioner (Lilius v. Manila Railroad Company, 59 Phil. 758
reversible error in fixing the amount of damages for the loss
(1934), Umali v. Bacani, G.R. No. L-40570, June 30, 1976,
of earning capacity of the deceased victims. While it is true
69 SCRA 623.] Contrary to petitioner's claim, there is no
that private respondents should have presented
presumption that the usual recruitment procedures and
documentary evidence to support their claim for damages for
safety standards were observed. The mere issuance of
loss of earning capacity of the deceased victims, the
rules and regulations and the formulation of various
absence thereof does not necessarily bar the recovery of the
company policies on safety, without showing that they are
damages in question. The testimony of Fe Ico and
being complied with, are not sufficient to exempt petitioner
Francisca Bascos as to the earning capacity of David Ico
from liability arising from the negligence of its employee. It is
and the spouses Baesa, respectively, are sufficient to
incumbent upon petitioner to show that in recruiting and
establish a basis from which the court can make a fair and
employing the erring driver, the recruitment procedures and
reasonable estimate of the damages for the loss of earning
company policies on efficiency and safety were followed.
capacity of the three deceased victims. Moreover, in fixing
Petitioner failed to do this. Hence, the Court finds no cogent
the damages for loss of earning capacity of a deceased
victim, the court can consider the nature of his occupation, The other items of damages awarded by respondent court
his educational attainment and the state of his health at the which were not challenged by the petitioner are hereby
time of death. affirmed.
In the instant case, David Ico was thirty eight (38) years old WHEREFORE, premises considered, the petition is
at the time of his death in 1981 and was driving his own DENIED, and the decision of respondent Court of Appeals is
passenger jeepney. The spouses Ceasar and Marilyn hereby AFFIRMED with the modification that the amount of
Baesa were both thirty (30) years old at the time of their compensatory damages for the death of Harold Jim Baesa
death. CeasarBaesa was a commerce degree holder and and MarcelinoBaesa are increased to Thirty Thousand
the proprietor of the Cauayan Press, printer of the Cauayan Pesos (P30,000.00) each.
Valley Newspaper and the Valley Times at Cauayan,
Isabela. Marilyn Baesa graduated as a nurse in 1976 and at SO ORDERED.
the time of her death, was the company nurse, personnel
manager, treasurer and cashier of the Ilagan Press at Ilagan,
Isabela. Respondent court duly considered these factors,
together with the uncontradicted testimonies of Fe Ico and G.R. No. L-21438 September 28, 1966
Francisca Bascos, in fixing the amount of damages for the
loss of earning capacity of David Ico and the spouses AIR FRANCE, petitioner,
Baesa. vs.
RAFAEL CARRASCOSO and the HONORABLE COURT
However, it should be pointed out that the Court of Appeals OF APPEALS, respondents.
committed error in fixing the compensatory damages for the
death of Harold Jim Baesa and MarcelinoBaesa. Lichauco, Picazo and Agcaoili for petitioner.
Respondent court awarded to plaintiff (private respondent) Bengzon Villegas and Zarraga for respondent R.
MaricarBaesa Thirty Thousand Pesos (P30,000.00) as Carrascoso.
"compensatory damages for the death of Harold Jim Baesa
and MarcelinoBaesa." [CA Decision, p.14; Rollo, 57.] In
other words, the Court of Appeals awarded only Fifteen
Thousand Pesos (P15,000.00) as indemnity for the death of SANCHEZ, J.:
Harold Jim Baesa and another Fifteen Thousand Pesos
(P15,000.00) for the death of MarcelinoBaesa. This is The Court of First Instance of Manila 1 sentenced petitioner
clearly erroneous. In the case of Peoplev.delaFuente, G.R. to pay respondent Rafael Carrascoso P25,000.00 by way of
Nos. 63251-52, December 29, 1983, 126 SCRA 518, the moral damages; P10,000.00 as exemplary damages;
indemnity for the death of a person was fixed by this Court at P393.20 representing the difference in fare between first
Thirty Thousand Pesos (P30,000.00). Plaintiff MaricarBaesa class and tourist class for the portion of the trip Bangkok-
should therefore be awarded Sixty Thousand Pesos Rome, these various amounts with interest at the legal rate,
(P60,000.00) as indemnity for the death of her brothers, from the date of the filing of the complaint until paid; plus
Harold Jim Baesa and MarcelinoBaesa or Thirty Thousand P3,000.00 for attorneys' fees; and the costs of suit.
Pesos (P30,000.00) for the death of each brother.
On appeal,2 the Court of Appeals slightly reduced the Petitioner charges that respondent court failed to make
amount of refund on Carrascoso's plane ticket from P393.20 complete findings of fact on all the issues properly laid
to P383.10, and voted to affirm the appealed decision "in all before it. We are asked to consider facts favorable to
other respects", with costs against petitioner. petitioner, and then, to overturn the appellate court's
decision.
The case is now before us for review on certiorari.
Coming into focus is the constitutional mandate that "No
The facts declared by the Court of Appeals as " fully decision shall be rendered by any court of record without
supported by the evidence of record", are: expressing therein clearly and distinctly the facts and the law
on which it is based". 5 This is echoed in the statutory
Plaintiff, a civil engineer, was a member of a group of demand that a judgment determining the merits of the case
48 Filipino pilgrims that left Manila for Lourdes on shall state "clearly and distinctly the facts and the law on
March 30, 1958. which it is based"; 6 and that "Every decision of the Court of
Appeals shall contain complete findings of fact on all issues
On March 28, 1958, the defendant, Air France, properly raised before it". 7
through its authorized agent, Philippine Air Lines, Inc.,
issued to plaintiff a "first class" round trip airplane A decision with absolutely nothing to support it is a nullity. It
ticket from Manila to Rome. From Manila to Bangkok, is open to direct attack. 8 The law, however, solely insists
plaintiff travelled in "first class", but at Bangkok, the that a decision state the "essential ultimate facts" upon
Manager of the defendant airline forced plaintiff to which the court's conclusion is drawn. 9 A court of justice is
vacate the "first class" seat that he was occupying not hidebound to write in its decision every bit and piece of
because, in the words of the witness Ernesto G. evidence 10 presented by one party and the other upon the
Cuento, there was a "white man", who, the Manager issues raised. Neither is it to be burdened with the obligation
alleged, had a "better right" to the seat. When asked "to specify in the sentence the facts" which a party
to vacate his "first class" seat, the plaintiff, as was to "considered as proved". 11 This is but a part of the mental
be expected, refused, and told defendant's Manager process from which the Court draws the essential ultimate
that his seat would be taken over his dead body; a facts. A decision is not to be so clogged with details such
commotion ensued, and, according to said Ernesto G. that prolixity, if not confusion, may result. So long as the
Cuento, "many of the Filipino passengers got nervous decision of the Court of Appeals contains the necessary
in the tourist class; when they found out that Mr. facts to warrant its conclusions, it is no error for said court to
Carrascoso was having a hot discussion with the withhold therefrom "any specific finding of facts with respect
white man [manager], they came all across to Mr. to the evidence for the defense". Because as this Court well
Carrascoso and pacified Mr. Carrascoso to give his observed, "There is no law that so requires". 12 Indeed, "the
seat to the white man" (Transcript, p. 12, Hearing of mere failure to specify (in the decision) the contentions of the
May 26, 1959); and plaintiff reluctantly gave his "first appellant and the reasons for refusing to believe them is not
class" seat in the plane.3 sufficient to hold the same contrary to the requirements of
the provisions of law and the Constitution". It is in this setting
1. The trust of the relief petitioner now seeks is that we that in Manigque, it was held that the mere fact that the
review "all the findings" 4 of respondent Court of Appeals. findings "were based entirely on the evidence for the
prosecution without taking into consideration or even reservations for first class on any specific flight, although he
mentioning the appellant's side in the controversy as shown had tourist class protection; that, accordingly, the issuance
by his own testimony", would not vitiate the judgment. 13 If of a first class ticket was no guarantee that he would have a
the court did not recite in the decision the testimony of each first class ride, but that such would depend upon the
witness for, or each item of evidence presented by, the availability of first class seats.
defeated party, it does not mean that the court has
overlooked such testimony or such item of evidence. 14 At These are matters which petitioner has thoroughly presented
any rate, the legal presumptions are that official duty has and discussed in its brief before the Court of Appeals under
been regularly performed, and that all the matters within an its third assignment of error, which reads: "The trial court
issue in a case were laid before the court and passed upon erred in finding that plaintiff had confirmed reservations for,
by it. 15 and a right to, first class seats on the "definite" segments of
his journey, particularly that from Saigon to Beirut". 21
Findings of fact, which the Court of Appeals is required to
make, maybe defined as "the written statement of the And, the Court of Appeals disposed of this contention thus:
ultimate facts as found by the court ... and essential to
support the decision and judgment rendered thereon". 16 Defendant seems to capitalize on the argument that
They consist of the court's "conclusions" with respect to the the issuance of a first-class ticket was no guarantee
determinative facts in issue". 17 A question of law, upon the that the passenger to whom the same had been
other hand, has been declared as "one which does not call issued, would be accommodated in the first-class
for an examination of the probative value of the evidence compartment, for as in the case of plaintiff he had yet
presented by the parties." 18 to make arrangements upon arrival at every station
for the necessary first-class reservation. We are not
2. By statute, "only questions of law may be raised" in an impressed by such a reasoning. We cannot
appeal by certiorari from a judgment of the Court of Appeals. understand how a reputable firm like defendant
19 That judgment is conclusive as to the facts. It is not
airplane company could have the indiscretion to give
appropriately the business of this Court to alter the facts or out tickets it never meant to honor at all. It received
to review the questions of fact. 20 the corresponding amount in payment of first-class
tickets and yet it allowed the passenger to be at the
With these guideposts, we now face the problem of whether mercy of its employees. It is more in keeping with the
the findings of fact of the Court of Appeals support its ordinary course of business that the company should
judgment. know whether or riot the tickets it issues are to be
honored or not.22
3. Was Carrascoso entitled to the first class seat he claims?
Not that the Court of Appeals is alone. The trial court
It is conceded in all quarters that on March 28, 1958 he paid similarly disposed of petitioner's contention, thus:
to and received from petitioner a first class ticket. But
petitioner asserts that said ticket did not represent the true On the fact that plaintiff paid for, and was issued a "First
and complete intent and agreement of the parties; that said class" ticket, there can be no question. Apart from his
respondent knew that he did not have confirmed testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2",
"C" and "C-1", and defendant's own witness, Rafael affirmance has merged the judgment of the lower court. 24
Altonaga, confirmed plaintiff's testimony and testified as Implicit in that affirmance is a determination by the Court of
follows: Appeals that the proceeding in the Court of First Instance
was free from prejudicial error and "all questions raised by
Q. In these tickets there are marks "O.K." From what the assignments of error and all questions that might have
you know, what does this OK mean? been raised are to be regarded as finally adjudicated against
the appellant". So also, the judgment affirmed "must be
A. That the space is confirmed. regarded as free from all error". 25 We reached this policy
construction because nothing in the decision of the Court of
Q. Confirmed for first class? 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
A. Yes, "first class". (Transcript, p. 169) said affirmance by the Court of Appeals upon a ground or
grounds different from those which were made the basis of
x xx x xx x xx the conclusions of the trial court. 26
Defendant tried to prove by the testimony of its witnesses If, as petitioner underscores, a first-class-ticket holder is not
Luis Zaldariaga and Rafael Altonaga that although plaintiff entitled to a first class seat, notwithstanding the fact that seat
paid for, and was issued a "first class" airplane ticket, the availability in specific flights is therein confirmed, then an air
ticket was subject to confirmation in Hongkong. The court passenger is placed in the hollow of the hands of an airline.
cannot give credit to the testimony of said witnesses. Oral What security then can a passenger have? It will always be
evidence cannot prevail over written evidence, and plaintiff's an easy matter for an airline aided by its employees, to strike
Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the out the very stipulations in the ticket, and say that there was
testimony of said witnesses, and clearly show that the a verbal agreement to the contrary. What if the passenger
plaintiff was issued, and paid for, a first class ticket without had a schedule to fulfill? We have long learned that, as a
any reservation whatever. rule, a written document speaks a uniform language; that
spoken word could be notoriously unreliable. If only to
Furthermore, as hereinabove shown, defendant's own achieve stability in the relations between passenger and air
witness Rafael Altonaga testified that the reservation for a carrier, adherence to the ticket so issued is desirable. Such
"first class" accommodation for the plaintiff was confirmed. is the case here. The lower courts refused to believe the oral
The court cannot believe that after such confirmation evidence intended to defeat the covenants in the ticket.
defendant had a verbal understanding with plaintiff that the
"first class" ticket issued to him by defendant would be The foregoing are the considerations which point to the
subject to confirmation in Hongkong. 23 conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent
We have heretofore adverted to the fact that except for a Carrascosohad a first class ticket and was entitled to a first
slight difference of a few pesos in the amount refunded on class seat at Bangkok, which is a stopover in the Saigon to
Carrascoso's ticket, the decision of the Court of First Beirut leg of the flight. 27 We perceive no "welter of
Instance was affirmed by the Court of Appeals in all other distortions by the Court of Appeals of petitioner's statement
respects. We hold the view that such a judgment of of its position", as charged by petitioner. 28 Nor do we
subscribe to petitioner's accusation that respondent First Class accommodation berths at Bangkok after
Carrascoso "surreptitiously took a first class seat to provoke he was already seated.
an issue". 29 And this because, as petitioner states,
Carrascoso went to see the Manager at his office in Bangkok 6. That consequently, the plaintiff, desiring no
"to confirm my seat and because from Saigon I was told repetition of the inconvenience and embarrassments
again to see the Manager". 30 Why, then, was he allowed to brought by defendant's breach of contract was forced
take a first class seat in the plane at Bangkok, if he had no to take a Pan American World Airways plane on his
seat? Or, if another had a better right to the seat? return trip from Madrid to Manila.32
"First-class passenger was forced to go to the "Q How does the person in the ticket-issuing
tourist class against his will, and that the office know what reservation the passenger
captain refused to intervene", has arranged with you?
and by the testimony of an eye-witness, Ernesto G. A They call us up by phone and ask for the
Cuento, who was a co-passenger. The captain of the confirmation." (t.s.n., p. 247, June 19, 1959)
plane who was asked by the manager of defendant
company at Bangkok to intervene even refused to do In this connection, we quote with approval what the
so. It is noteworthy that no one on behalf of defendant trial Judge has said on this point:
ever contradicted or denied this evidence for the
plaintiff. It could have been easy for defendant to Why did the, using the words of witness
present its manager at Bangkok to testify at the trial of Ernesto G. Cuento, "white man" have a "better
the case, or yet to secure his disposition; but right" to the seat occupied by Mr. Carrascoso?
defendant did neither. 37 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 And if the foregoing were not yet sufficient, there is
that the plaintiff was occupying and for which the express finding of bad faith in the judgment of the
he paid and was issued a corresponding "first Court of First Instance, thus:
class" ticket.
The evidence shows that the defendant
If there was a justified reason for the action of violated its contract of transportation with
the defendant's Manager in Bangkok, the plaintiff in bad faith, with the aggravating
defendant could have easily proven it by circumstances that defendant's Manager in
having taken the testimony of the said Bangkok went to the extent of threatening the
Manager by deposition, but defendant did not plaintiff in the presence of many passengers to
do so; the presumption is that evidence willfully have him thrown out of the airplane to give the
suppressed would be adverse if produced "first class" seat that he was occupying to,
[Sec. 69, par (e), Rules of Court]; and, under again using the words of the witness Ernesto
the circumstances, the Court is constrained to G. Cuento, a "white man" whom he
find, as it does find, that the Manager of the (defendant's Manager) wished to
defendant airline in Bangkok not merely asked accommodate, and the defendant has not
but threatened the plaintiff to throw him out of proven that this "white man" had any "better
the plane if he did not give up his "first class" right" to occupy the "first class" seat that the
seat because the said Manager wanted to plaintiff was occupying, duly paid for, and for
accommodate, using the words of the witness which the corresponding "first class" ticket was
Ernesto G. Cuento, the "white man".38 issued by the defendant to him.40
It is really correct to say that the Court of Appeals in 5. The responsibility of an employer for the tortious act of its
the quoted portion first transcribed did not use the employees need not be essayed. It is well settled in law. 41
term "bad faith". But can it be doubted that the recital For the willful malevolent act of petitioner's manager,
of facts therein points to bad faith? The manager not petitioner, his employer, must answer. Article 21 of the Civil
only prevented Carrascoso from enjoying his right to a Code says:
first class seat; worse, he imposed his arbitrary will;
he forcibly ejected him from his seat, made him suffer ART. 21. Any person who willfully causes loss or
the humiliation of having to go to the tourist class injury to another in a manner that is contrary to
compartment - just to give way to another passenger morals, good customs or public policy shall
whose right thereto has not been established. compensate the latter for the damage.
Certainly, this is bad faith. Unless, of course, bad faith
has assumed a meaning different from what is In parallel circumstances, we applied the foregoing legal
understood in law. For, "bad faith" contemplates a precept; and, we held that upon the provisions of Article
"state of mind affirmatively operating with furtive 2219 (10), Civil Code, moral damages are recoverable. 42
design or with some motive of self-interest or will or
for ulterior purpose." 39 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 said, is placed upon his wrongful expulsion. This is a
public. Its business is mainly with the travelling public. It violation of public duty by the petitioner air carrier — a case
invites people to avail of the comforts and advantages it of quasi-delict. Damages are proper.
offers. The contract of air carriage, therefore, generates a
relation attended with a public duty. Neglect or malfeasance 7. Petitioner draws our attention to respondent Carrascoso's
of the carrier's employees, naturally, could give ground for testimony, thus —
an action for damages.
Q You mentioned about an attendant. Who is that
Passengers do not contract merely for transportation. They attendant and purser?
have a right to be treated by the carrier's employees with
kindness, respect, courtesy and due consideration. They are A When we left already — that was already in the trip
entitled to be protected against personal misconduct, — I could not help it. So one of the flight attendants
injurious language, indignities and abuses from such approached me and requested from me my ticket and
employees. So it is, that any rule or discourteous conduct on I said, What for? and she said, "We will note that you
the part of employees towards a passenger gives the latter transferred to the tourist class". I said, "Nothing of that
an action for damages against the carrier. 44 kind. That is tantamount to accepting my transfer."
And I also said, "You are not going to note anything
Thus, "Where a steamship company 45 had accepted a there because I am protesting to this transfer".
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 Q Was she able to note it?
persons to falsely notify her that the check was worthless
and demand payment under threat of ejection, though the A No, because I did not give my ticket.
language used was not insulting and she was not ejected." 46
And this, because, although the relation of passenger and Q About that purser?
carrier is "contractual both in origin and nature" nevertheless
"the act that breaks the contract may be also a tort". 47 And A Well, the seats there are so close that you feel
in another case, "Where a passenger on a railroad train, uncomfortable and you don't have enough leg room, I
when the conductor came to collect his fare tendered him stood up and I went to the pantry that was next to me
the cash fare to a point where the train was scheduled not to and the purser was there. He told me, "I have
stop, and told him that as soon as the train reached such recorded the incident in my notebook." He read it and
point he would pay the cash fare from that point to translated it to me — because it was recorded in
destination, there was nothing in the conduct of the French — "First class passenger was forced to go to
passenger which justified the conductor in using insulting the tourist class against his will, and that the captain
language to him, as by calling him a lunatic," 48 and the refused to intervene."
Supreme Court of South Carolina there held the carrier liable
for the mental suffering of said passenger.1awphîl.nèt Mr. VALTE —
Article 2176 – Whoever by act or omission causes damage 3. To pay the costs.
to another, there being at fault or negligence, is obliged to
pay for the damage done. Such fault or negligence if there is SO ORDERED.18
no pre-existing contractual relation between the parties, is
On appeal, the Court of Appeals, by Decision of February interest," which is his interest in having the benefit of his
27, 2004,19 affirmed the trial court’s decision. bargain by being put in as good a position as he would have
been in had the contract been performed, or his "reliance
Hence, RCPI’s present petition for review on certiorari, it interest," which is his interest in being reimbursed for loss
raising the following questions: (1) "Is the award of moral caused by reliance on the contract by being put in as good a
damages proper even if the trial court found that there was position as he would have been in had the contract not been
no direct connection between the injury and the alleged made; or his "restitution interest," which is his interest in
negligent acts?"20 and (2) "Are the stipulations in the having restored to him any benefit that he has conferred on
‘Telegram Transmission Form,’ in the nature "contracts of the other party. Indeed, agreements can accomplish little,
adhesion" (sic)?21 either for their makers or for society, unless they are made
the basis for action. The effect of every infraction is to create
RCPI insists that respondents failed to prove any causal a new duty, that is, to make recompense to the one who has
connection between its delay in transmitting the telegram been injured by the failure of another to observe his
and Editha’s death.22 contractual obligation unless he can show extenuating
circumstances, like proof of his exercise of due diligencex
RCPI’s stand fails. It bears noting that its liability is anchored xx or of the attendance of fortuitous event, to excuse him
on culpa contractual or breach of contract with regard to from his ensuing liability.23 (Emphasis and underscoring
Grace, and on tort with regard to her co-plaintiffs-herein-co- supplied)
respondents.
In the case at bar, RCPI bound itself to deliver the telegram
Article 1170 of the Civil Code provides: within the shortest possible time. It took 25 days, however,
for RCPI to deliver it.
Those who in the performance of their obligations are guilty
of fraud, negligence, or delay, and those who in any manner RCPI invokes force majeure, specifically, the alleged radio
contravene the tenor thereof, are liable for damages. noise and interferences which adversely affected the
(Underscoring supplied) transmission and/or reception of the telegraphic message.
Additionally, its messenger claimed he could not locate the
Passing on this codal provision, this Court explained: address of Zenaida and it was only on the third attempt that
he was able to deliver the telegram.
In culpa contractual x xx the mere proof of the existence of
the contract and the failure of its compliance justify, prima For the defense of force majeure to prosper,
facie, a corresponding right of relief. The law, recognizing
the obligatory force of contracts, will not permit a party to be x xx it is necessary that one has committed no negligence or
set free from liability for any kind of misperformance of the misconduct that may have occasioned the loss. An act of
contractual undertaking or a contravention of the tenor God cannot be invoked to protect a person who has failed to
thereof. A breach upon the contract confers upon the injured take steps to forestall the possible adverse consequences of
party a valid cause for recovering that which may have been such a loss. One’s negligence may have concurred with an
lost or suffered. The remedy serves to preserve the interests act of God in producing damage and injury to another;
of the promissee that may include his "expectation nonetheless, showing that the immediate or proximate cause
of the damage or injury was a fortuitous event would not deaths of loved ones, births or marriages in a family,
exempt one from liability. When the effect is found to be important business transactions, and notices of conferences
partly the result of a person’s participation – whether by or meetings as in this case, are coursed through the
active intervention, neglect or failure to act – the whole petitioner and similar corporations, it is incumbent upon them
occurrence is humanized and removed from the rules to exercise a greater amount of care and concern than that
applicable to acts of God. shown in this case. Every reasonable effort to inform
senders of the non-delivery of messages should be
x xxx undertaken.26
Article 1174 of the Civil Code states that no person shall be (Emphasis and underscoring supplied)
responsible for a fortuitous event that could not be foreseen
or, though foreseen, was inevitable. In other words, there RCPI argues, however, against the presence of urgency in
must be an exclusion of human intervention from the the delivery of the telegram, as well as the basis for the
cause of injury or loss.24 (Emphasis and underscoring award of moral damages, thus:27
supplied)
The request to send check as written in the telegraphic text
Assuming arguendo that fortuitous circumstances prevented negates the existence of urgency that private respondents’
RCPI from delivering the telegram at the soonest possible allegations that ‘time was of the essence’ imports. A check
time, it should have at least informed Grace of the non- drawn against a Manila Bank and transmitted to Sorsogon,
transmission and the non-delivery so that she could have Sorsogon will have to be deposited in a bank in Sorsogon
taken steps to remedy the situation. But it did not. There lies and pass thru a minimum clearing period of 5 days before it
the fault or negligence. may be encashed or withdrawn. If the transmittal of the
requested check to Sorsogon took 1 day – private
In an earlier case also involving RCPI, this Court held: respondents could therefore still wait for 6 days before the
same may be withdrawn. Requesting a check that would
Considering the public utility of RCPI’s business and its take 6 days before it could be withdrawn therefore
contractual obligation to transmit messages, it should contradicts plaintiff’s claim of urgency or need.28
exercise due diligence to ascertain that messages are
delivered to the persons at the given address and should At any rate, any sense of urgency of the situation was met
provide a system whereby in cases of undelivered messages when Grace Verchez was able to communicate to Manila via
the sender is given notice of non-delivery. Messages sent by a letter that she sent to the same addressee in Manila thru
cable or wireless means are usually more important and JRS.29
urgent than those which can wait for the mail.25
x xxx
x xxx
As far as the respondent court’s award for moral damages is
People depend on telecommunications companies in concerned, the same has no basis whatsoever since private
times of deep emotional stress or pressing financial respondent Alfonso Verchez did not accompany his late wife
needs. Knowing that messages about the illnesses or when the latter went to Manila by bus. He stayed behind in
Sorsogon for almost 1 week before he proceeded to Manila. Whoever by act or omission causes damage to another,
30 there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-
When pressed on cross-examination, private respondent existing contractual relation between the parties, is called a
Alfonso Verchez could not give any plausible reason as to quasi-delict and is governed by the provisions of this
the reason why he did not accompany his ailing wife to Chapter. (Underscoring supplied)
Manila.31
RCPI’s liability as an employer could of course be avoided if
x xxx it could prove that it observed the diligence of a good father
of a family to prevent damage. Article 2180 of the Civil Code
It is also important to consider in resolving private so provides:
respondents’ claim for moral damages that private
respondent Grace Verchez did not accompany her ailing The obligation imposed by Article 2176 is demandable not
mother to Manila.32 only for one’s own acts or omissions, but also for those of
persons for whom one is responsible.
x xxx
x xxx
It is the common reaction of a husband to be at his ailing
wife’s side as much as possible. The fact that private The owners and managers of an establishment or enterprise
respondent Alfonso Verchez stayed behind in Sorsogon for are likewise responsible for damages caused by their
almost 1 week convincingly demonstrates that he himself employees in the service of the branches in which the latter
knew that his wife was not in critical condition.33 are employed or on the occasion of their functions.
(Emphasis and underscoring supplied) Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
RCPI’s arguments fail. For it is its breach of contract upon their assigned tasks, even though the former are not
which its liability is, it bears repeating, anchored. Since RCPI engaged in any business or industry.
breached its contract, the presumption is that it was at fault
or negligent. It, however, failed to rebut this presumption. x xxx
For breach of contract then, RCPI is liable to Grace for The responsibility treated of in this article shall cease when
damages. the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damage.
And for quasi-delict, RCPI is liable to Grace’s co- (Underscoring supplied)
respondents following Article 2176 of the Civil Code which
provides: RCPI failed, however, to prove that it observed all the
diligence of a good father of a family to prevent damage.
Respecting the assailed award of moral damages, a should know – that time is of the essence in the delivery of
determination of the presence of the following requisites to telegrams. When its second long-delayed attempt to deliver
justify the award is in order: the telegram again failed, it, again, waited for another 12
days before making a third attempt. Such nonchalance in
x xxfirstly, evidence of besmirched reputation or physical, performing its urgent obligation indicates gross negligence
mental or psychological suffering sustained by the claimant; amounting to bad faith. The fourth requisite is thus also
secondly, a culpable act or omission factually established; present.
thirdly, proof that the wrongful act or omission of the
defendant is the proximate cause of damages sustained by In applying the above-quoted Article 2220, this Court has
the claimant; and fourthly, that the case is predicated on any awarded moral damages in cases of breach of contract
of the instances expressed or envisioned by Article 2219 and where the defendant was guilty of gross negligence
Article 2220 of the Civil Code.34 amounting to bad faith, or in wanton disregard of his
contractual obligation.36
Respecting the first requisite, evidence of suffering by the
plaintiffs-herein respondents was correctly appreciated by As for RCPI’s tort-based liability, Article 2219 of the Civil
the CA in this wise: Code provides:
The failure of RCPI to deliver the telegram containing the Moral damages may be recovered in the following and
message of appellees on time, disturbed their filial analogous cases:
tranquillity. Family members blamed each other for failing to
respond swiftly to an emergency that involved the life of the x xxx
late Mrs. Verchez, who suffered from diabetes.35
(10) Acts and actions referred to in Articles 21, 26, 27, 28,
As reflected in the foregoing discussions, the second and 29, 30, 32, 34, and 35. (Emphasis supplied)
third requisites are present.
Article 26 of the Civil Code, in turn, provides:
On the fourth requisite, Article 2220 of the Civil Code
provides: Every person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons. The
Willful injury to property may be a legal ground for awarding following and similar acts, though they may not constitute a
moral damages if the court should find that, under the criminal offense, shall produce a cause of action for
circumstances, such damages are justly due. The same rule damages, prevention, and other relief:
applies to breaches of contract where the defendant
acted fraudulently or in bad faith. (Emphasis and x xxx
underscoring supplied)
(2) Meddling with or disturbing the private life or family
After RCPI’s first attempt to deliver the telegram failed, it did relations of another. (Emphasis supplied)
not inform Grace of the non-delivery thereof and waited for
12 days before trying to deliver it again, knowing – as it
RCPI’s negligence in not promptly performing its obligation A contract of adhesion is defined as one in which one of the
undoubtedly disturbed the peace of mind not only of Grace parties imposes a ready-made form of contract, which the
but also her co-respondents. As observed by the appellate other party may accept or reject, but which the latter cannot
court, it disrupted the "filial tranquillity" among them as they modify. One party prepares the stipulation in the contract,
blamed each other "for failing to respond swiftly to an while the other party merely affixes his signature or his
emergency." The tortious acts and/or omissions complained "adhesion" thereto, giving no room for negotiation and
of in this case are, therefore, analogous to acts mentioned depriving the latter of the opportunity to bargain on
under Article 26 of the Civil Code, which are among the equal footing.38 (Emphasis and underscoring supplied)
instances of quasi-delict when courts may award moral
damages under Article 2219 of the Civil Code. While a contract of adhesion is not necessarily void and
unenforceable, since it is construed strictly against the party
In fine, the award to the plaintiffs-herein respondents of who drafted it or gave rise to any ambiguity therein, it is
moral damages is in order, as is the award of attorney’s stricken down as void and unenforceable or subversive of
fees, respondents having been compelled to litigate to public policy when the weaker party is imposed upon in
protect their rights. dealing with the dominant bargaining party and is reduced to
the alternative of taking it or leaving it, completely deprived
Clutching at straws, RCPI insists that the limited liability of the opportunity to bargain on equal footing.39
clause in the "Telegram Transmission Form" is not a contract
of adhesion. Thus it argues: This Court holds that the Court of Appeals’ finding that the
parties’ contract is one of adhesion which is void is, given
Neither can the Telegram Transmission Form be considered the facts and circumstances of the case, thus well-taken.
a contract of adhesion as held by the respondent court. The
said stipulations were all written in bold letters right in front of WHEREFORE, the petition is DENIED, and the challenged
the Telegram Transmission Form. As a matter of fact they decision of the Court of Appeals is AFFIRMED.
were beside the space where the telegram senders write
their telegraphic messages. It would have been different if Costs against petitioner.
the stipulations were written at the back for surely there is no
way the sender will easily notice them. The fact that the SO ORDERED.
stipulations were located in a particular space where they
can easily be seen, is sufficient notice to any sender (like [ G.R. No. 143360, September 05, 2002 ]
Grace Verchez-Infante) where she could manifest her EQUITABLE LEASINGCORPORATION,
disapproval, leave the RCPI station and avail of the services PETITIONER, VS. LUCITA SUYOM, MARISSA ENANO,
of the other telegram operators.37 (Underscoring supplied) MYRNA TAMAYO AND FELIX OLEDAN, RESPONDENTS.
RCPI misunderstands the nature of a contract of adhesion.
Neither the readability of the stipulations nor their physical DECISION
location in the contract determines whether it is one of
adhesion. PANGANIBAN, J.:
In an action based on quasi delict, the registered owner of a 1. the sum of P50,000.00 for the death of Reniel Tamayo;
motor vehicle is solidarily liable for the injuries and damages
caused by the negligence of the driver, in spite of the fact 2. P50,000.00 as moral damages; and
that the vehicle may have already been the subject of an
unregistered Deed of Sale in favor of another person. Unless 3. P56,000.00 for the damage to the store and its contents,
registered with the Land Transportation Office, the sale -- and funeral expenses.
while valid and binding between the parties -- does not affect
third parties, especially the victims of accidents involving the B. TO FELIX OLEDAN
said transport equipment. Thus, in the present case,
petitioner, which is the registered owner, is liable for the acts 1. the sum of P50,000.00 for the death of FelmarieOledan;
of the driver employed by its former lessee who has become
the owner of that vehicle by virtue of an unregistered Deed 2. P50,000.00 as moral damages; and
of Sale.
3. P30,000.00 for medical expenses, and funeral expenses.
Statement of the Case
C. TO MARISSA ENANO
Before us is a Petition for Review under Rule 45 of the Rules
of Court, assailing the May 12, 2000 Decision[1] of the Court 1. P7,000.00 as actual damages
of Appeals[2] (CA) in CA-GR CV No. 55474. The decretal
portion of the Decision reads as follows: D. TO LUCITA SUYOM
“WHEREFORE, premises considered, the instant appeal is 1. The sum of P5,000.00 for the medical treatment of her two
hereby DISMISSEDfor lack of merit. The assailed decision, sons.
dated May 5, 1997, of the Regional Trial Court of Manila,
Branch 14, in Civil Case No. 95-73522, is The sum of P120,000.00 as and for attorney’s fees.”[4]
hereby AFFIRMED with MODIFICATION that the award of
attorney’s fees is DELETED.”[3] The Facts
On the other hand, in Civil Case No. 95-73522, the Regional On July 17, 1994, a Fuso Road Tractor driven by Raul Tutor
Trial Court (RTC) of Manila (Branch 14) had earlier disposed rammed into the house cum store of Myrna Tamayo located
in this wise: at Pier 18, Vitas, Tondo, Manila. A portion of the house was
destroyed. Pinned to death under the engine of the tractor
“WHEREFORE, judgment is hereby rendered in favor of the were Respondent Myrna Tamayo’s son, Reniel Tamayo, and
plaintiffs and against the Respondent Felix Oledan’s daughter, FelmarieOledan.
defendant Equitable LeasingCorporation ordering said Injured were Respondent Oledan himself, Respondent
defendant to pay to the plaintiffs the following: Marissa Enano, and two sons of Respondent Lucita Suyom.
A. TO MYRNA TAMAYO
Tutor was charged with and later convicted of reckless of Ecatine on December 9, 1992. The reason cited by the
imprudence resulting in multiple homicide and multiple CA was that the Certificate of Registration on file with the
physical injuries in Criminal Case No. 296094-SA, LTO still remained in petitioner’s name.[13] In order that a
Metropolitan Trial Court of Manila, Branch 12.[5] transfer of ownership of a motor vehicle can bind third
persons, it must be duly recorded in the LTO.[14]
Upon verification with the Land Transportation Office,
respondents were furnished a copy of Official Receipt No. The CA likewise upheld respondents’ claim for moral
62204139[6] and Certificate of Registration No. damages against petitioner because the appellate court
08262797,[7] showing that the registered owner of the tractor considered Tutor, the driver of the tractor, to be an agent of
was “Equitable LeasingCorporation/leased to Edwin Lim.” the registered owner/operator.[15]
On April 15, 1995, respondents filed against Raul Tutor,
Ecatine Corporation (“Ecatine”) Hence, this Petition.[16]
and Equitable LeasingCorporation (“Equitable”) a
Complaint[8]for damages docketed as Civil Case No. 95- Issues
73522 in the RTC of Manila, Branch 14.
In its Memorandum, petitioner raises the following issues for
The trial court, upon motion of plaintiffs’ counsel, issued an the Court’s consideration:
Order dropping Raul Tutor, Ecatine and Edwin Lim from the
Complaint, because they could not be located and served I
with summonses.[9]On the other hand, in its Answer with
Counterclaim,[10] petitioner alleged that the vehicle had “Whether or not the Court of Appeals and the trial court
already been sold to Ecatine and that the former was no gravely erred when they decided and held that petitioner
longer in possession and control thereof at the time of the [was] liable for damages suffered by private respondents in
incident. It also claimed that Tutor was an employee, not an action based on quasi delict for the negligent acts of a
of Equitable, but of Ecatine. driver who [was] not the employee of the petitioner.
Furthermore, under Article 103 of the Revised Penal Code, Dated June 4, 1991, the Lease Agreement[32] between
employers may be held subsidiarily liable for felonies petitioner and Edwin Lim stipulated that “it is the intention of
committed by their employees in the discharge of the latter’s the parties to enter into a FINANCE LEASE
duties.[22] This liability attaches when the employees who are AGREEMENT.”[33] Under such scheme, ownership of the
convicted of crimes committed in the performance of their subject tractor was to be registered in the name of petitioner,
work are found to be insolvent and are thus unable to satisfy until the value of the vehicle has been fully paid by Edwin
the civil liability adjudged.[23] Lim.[34]Further, in the “Lease Schedule,”[35] the monthly rental
for the tractor was stipulated, and the term of the Lease was
On the other hand, under Article 2176 in relation to Article scheduled to expire on December 4, 1992. After a few
2180[24] of the Civil Code, an action predicated on quasi months, Lim completed the payments to cover the full price
delict may be instituted against the employer for an of the tractor.[36] Thus, on December 9, 1992, a Deed of
employee’s act or omission. The liability for the negligent Sale[37] over the tractor was executed by petitioner in favor of
conduct of the subordinate is direct and primary, but is Ecatine represented by Edwin Lim. However, the Deed was
subject to the defense of due diligence in the selection and not registered with the LTO.
supervision of the employee.[25] The enforcement of the
judgment against the employer for an action based on Article We hold petitioner liable for the deaths and the injuries
2176 does not require the employee to be insolvent, since complained of, because it was the registered owner of the
the liability of the former is solidary -- the latter being tractor at the time of the accident on July 17, 1994.[38] The
statutorily considered a joint tortfeasor.[26] To sustain a claim Court has consistently ruled that, regardless of sales made
based on quasi delict, the following requisites must be of a motor vehicle, the registered owner is the lawful
proven: (a) damage suffered by the plaintiff, (b) fault or operator insofar as the public and third persons are
negligence of the defendant, and (c) connection of cause concerned; consequently, it is directly and primarily
and effect between the fault or negligence of the defendant responsible for the consequences of its operation.[39] In
and the damage incurred by the plaintiff.[27] contemplation of law, the owner/operator of record is the
employer of the driver, the actual operator and employer was not applicable. We held that no vinculum juris as
being considered as merely its agent.[40] The same principle employer and employee existed between the owner and the
applies even if the registered owner of any vehicle does not driver.[46] In this case, the registered owner of the tractor is
use it for public service.[41] considered under the law to be the employer of the driver,
while the actual operator is deemed to be its
Since Equitable remained the registered owner of the tractor, agent.[47] Thus, Equitable, the registered owner of the tractor,
it could not escape primary liability for the deaths and the is -- for purposes of the law on quasi delict -- the employer of
injuries arising from the negligence of the driver.[42] Raul Tutor, the driver of the tractor. Ecatine, Tutor’s actual
employer, is deemed as merely an agent of Equitable.[48]
The finance-lease agreement between Equitable on the one
hand and Lim or Ecatine on the other has already been True, the LTO Certificate of Registration, dated “5/31/91,”
superseded by the sale. In any event, it does not bind third qualifies the name of the registered owner as
persons. The rationale for this rule has been aptly explained “EQUITABLELEASING CORPORATION/Leased to Edwin
in Erezo v. Jepte,[43] which we quote hereunder: Lim.” But the lease agreement between Equitable and Lim
has been overtaken by the Deed of Sale on December 9,
“x xx. The main aim of motor vehicle registration is to identify 1992, between petitioner and Ecatine. While this Deed does
the owner so that if any accident happens, or that any not affect respondents in this quasi delict suit, it definitely
damage or injury is caused by the vehicle on the public binds petitioner because, unlike them, it is a party to it.
highways, responsibility therefor can be fixed on a definite
individual, the registered owner. Instances are numerous We must stress that the failure of Equitable and/or Ecatine to
where vehicles running on public highways caused accidents register the sale with the LTO should not prejudice
or injuries to pedestrians or other vehicles without positive respondents, who have the legal right to rely on the legal
identification of the owner or drivers, or with very scant principle that the registered vehicle owner is liable for the
means of identification. It is to forestall these circumstances, damages caused by the negligence of the driver. Petitioner
so inconvenient or prejudicial to the public, that the motor cannot hide behind its allegation that Tutor was the
vehicle registration is primarily ordained, in the interest of the employee of Ecatine. This will effectively prevent
determination of persons responsible for damages or injuries respondents from recovering their losses on the basis of the
caused on public highways.”[44] inaction or fault of petitioner in failing to register the sale.
The non-registration is the fault of petitioner, which should
Further, petitioner’s insistence on FGU Insurance Corp. v. thus face the legal consequences thereof.
Court of Appeals is misplaced.[45] First, in FGU Insurance,
the registered vehicle owner, which was engaged in a rent-a- Second Issue:
car business, rented out the car. In this case, the registered
owner of the truck, which is engaged in the business of Moral Damages
financing motor vehicle acquisitions, has actually sold the
truck to Ecatine, which in turn employed Tutor. Second, Petitioner further claims that it is not liable for moral
in FGU Insurance, the registered owner of the vehicle was damages, because respondents failed to establish or show
not held responsible for the negligent acts of the person who the causal connection or relation between the factual basis
rented one of its cars, because Article 2180 of the Civil Code of their claim and their wrongful act or omission, if any. [49]
Moral damages are not punitive in nature, but are designed
to compensate[50] and alleviate in some way the physical
suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social
humiliation, and similar injury unjustly caused a
person.[51] Although incapable of pecuniary computation,
moral damages must nevertheless be somehow proportional
to and in approximation of the suffering inflicted.[52] This is so
because moral damages are in the category of an award
designed to compensate the claimant for actual injury
suffered, not to impose a penalty on the wrongdoer.[53]
"CELDURA" and "COBDURA".—That both marks With respect to the fifth assignment of error (first in
considered as a whole are similar in meaning and petitioner's brief), it must be remembered that the question of
appearance can not be doubted. When spoken as written similarity or dissimilarity, while it is a question of opinion, is
they sound very much alike. Similarity of sound alone, under to be determined by the court mainly on the basis of the
such circumstances, is sufficient to cause the marks to be facsimiles or labels or pictures submitted to the Director of
regarded as confusingly similar when applied to Patents. In the case at bar, innumerable exhibits were
merchandise of the same descriptive properties. (Celanes presented to show the similarity. Similarity or dissimilarity
Corporation of America vs. E. I. Du Pont de Nemours & Co. can be determined by the Director of Patents, or by this
(1946), 154 F. 2d 146 148.) Court on appeal, by a mere examination and comparison of
the competing trademarks. Failure on the part of the
"SKOAL" and "SKOL", "SKOAL" was held identical in sound oppositor to submit the testimony of witnesses, who are to
and meaning to "Skol". (Skol Co., Inc., vs. Olson, 151 F. 2d, give opinions on the alleged similarity or dissimilarity, can
200.) not, therefore, be a ground for a dismissal of an opposition.
We hold that the Director of Patents did not err in denying
In this jurisdiction we have held that the name "Lusolin" is an the motion for dismissal presented by the applicant upon the
infringement of the trademark "Sapolin," as the sound of the failure of the oppositor to submit witnesses to sustain his
two names is almost the same, and the labels of containers opposition.
[ G.R. No. L-8072, October 31, 1956 ] times, labels were used, in different colors but bearing the
LIM HOA, PETITIONER, VS. DIRECTOR OF PATENTS, representation of a hen and the words just mentioned." So
RESPONDENT. that the application to register applicant's brand, consisting
of two roosters is an attitude of combat, with the word
"Bantam" printed above them, came along after the use and
DECISION
registration of the mark or brand of the oppositor corporation
and its predecessor, the Advincula family.
MONTEMAYOR, J.:
After considering the application and the opposition thereto,
On April 26,1949, the petitioner, Lim Hoa, filed with the
and after comparing the two brands, the Director of Patents
Patent Office an application for the registration of a issued his order dated June 26, 1954, wherein he found and
trademark, consisting of a representation of two midget held that to allow the registration of the applicant's trademark
roosters in an attitude of combat with the word "Bantam" would likely cause confusion or "mistake or deceive
printed above them, he claiming that he had used said purchasers, and he refused registration of said trademark,
trademark on a food seasoning product since April 25 of that under Rule 178 of the Revised Rules of Practice in
year. The application was published in the Official Gazette in Trademark Cases, 1953. The petitioner is now appealling
its issue of February, 1953, released for circulation on April said order.
18, of the same year. On April 30, 1953, the Agricom
Development Co., Inc., a domestic corporation, opposed the After a careful examination of the facts above mentioned,
application on several grounds, among others, that the and after comparing the two brands, we do not hesitate to
trademark sought to be registered was confusingly similar to say and to hold that there is such similarity between the two
brands s& to cause confusion in the mind of the public that
its register mark, consisting of a pictorial representation of a
buys the food seasoning product on the strenght and on the
hen with the words "Hen Brand" and "Marca Manok", which indication of the trademark or brand identifying or
mark or brand was also used on a food seasoning product, distinguishing the same. In the case of Go Tiong Sa vs.
before the use of the trademark by the applicant Director of Patents, (95 Phil., 1), we had occasion to say the
following:
It is a fact that the family of C. Javier Advincula, since the
year 1946, had adopted and used as a trademark of said "* * * It has been consistently held that the question of
food seasoning product manufactured by it, the pictorial infringement of a trademark is to be determined by the test
representation of a hen. In 1947, the members of the of dominancy. Similarity in size, form, and color, while
Advincula family organized the Agricom Development Co., relevant, is not conclusive. If the competing trademark
Inc., the oppositor in this case, and said corporation took contains the main or essential or dominant features of
over the manufacture of the same food product of the another, and confusion and deception is likely to result,
Advincula family, including the use of the brand of the infringement takes place. Duplication or imitation is not
pictorial representation of a hen but adding to it the word necessary; nor it is necessary that the infringing-label should
"Hen". In the year 1948, an addition was made to the brand suggest an effort to imitate. (C. Neilman Brewing: Co. vs.
with the words "Ve-Tsin, Hen Brand" and "Marca Manok," Independent Brewing Co., 191 F. 489, 495, citing Eagle
and since then, on its food seasoning product at different White Lead Co. v. Pflugh (CC) 180 Fed. 579). The question
at issue in cases of infringement of trademarks is whether We do not see why applicant could not have streched his
the use of the marks involved would be likely to cause imagination even a little and' extended his choice to other
confusion or mistakes in ihe mind of the public or deceive members of the animal kingdom, as a brand to differentiate
purchasers. (Auburn Rubber Corporation vs. Honover his product from similar products in the market. In a similar
Rubber Co., 107 F 2d 588, 590, citing Procter and Gamble case decided by this Tribunal wherein, although one brand
Co. vs. J. L. Prescot Co., 49 F 2d 959, 18 CCPA, Patents, consisting of the representation of a rooster was already
1433; Pepsodent Co. vs. Comfort Manufacturing Co., 83 F being used by one party, another party wanted to register a
2d 906; 23 CCPA, Patents, 124)" similar brand, consisting of two roosters on a similar product,
namely, candy, this Court said:
The danger of confusion in trademarks and brands which are
similar may not be so great in the case of commodities or "Counsel for defendant insists that there is no real
articles of relatively great value, such as, radio and television resemblance between a picture of one rooster and a picture
sets, air conditioning units, machinery, etc., for the of two roosters; that no person could or would be deceived
prospective buyer, generally the head of the family or a by the use by the defendant of a trade-mark wholly distinct
businessman, before making the purchase, reads the from that of the plaintiff; that the fact that the defendant used
pamphlets and all literature available, describing the article two roosters as its trademark clearly discloses its innocence
he is planning to buy, and perhaps even makes comparisons of any intent to deceive, since a comparison of the trade-
with similar articles in the market. He is not likely to be mark of the plaintiff with that of the defendant makes
deceived by similarity in the trademarks because he makes apparent at once that was not intended to be an imitation of
a more or less thorough study of the same and may even the other.
consult his friends about the relative-merit and performance
of the article or machinery, as compared to others also for "We ask, however, why, with all the birds in the air, and all
sale. But in the sale of a food seasoning product, a kitchen the fishes in the sea, and all the animals on the face of the
article of everyday consumption, the circumstances are far earth to chose from, the defendant company selected two
different. Said product is generally purchased by cooks and roosters as its trade-mark, although its directors, and
household help, sometimes illiterate who are guided by managers must have been well aware of the long-continued
pictorial representations and the sound of the word use of a rooster by the plaintiff in connection with the sale
descriptive of said representation. The two roosters and advertisement of his goods?
appearing in the trademark of the applicant and the hen
appearing on the trademark of the oppositor, although of "There is nothing the picture of one or more roosters which
different sexes, belong to the same family of chicken, known in itself is discriptive of the goods sold by the plaintiff or by
as manok in all the principal dialects of the Philippines, and the defendant corporation, or suggestive of the quality of
when a cook or a household help or even a housewife buys these goods. A cat, or dog, a carabao, a shark, or an eagle
a food seasoning product for the kitchen the brand of stamped upon the container in which candies are sold would
"Manok" or "Marca Manok" would most likely be upper most serve as well as a rooster for purposes of identification as
in her mind and would influence her in selecting the product, the product of defendant's factory. Why did defendant select
regardless of whether the brand pictures a hen or a rooster two roosters as its trade-mark? We can not doubt that it was
or two roosters. To her, they are all manok. Therein lies the because the plaintiff's candies had acquired a certain
confusion, even deception. reputation under the trade-mark of a rooster, and the
defendant corporation hoped to profit unjustly by that referred to as the oppositor), on July 24, 1959 filed an
reputation. Defendant knew that the use of a single rooster opposition thereto, alleging that the registration of such
would be prohibited as a technical infringement of plaintiff's trademark would violate its right to and interest in the
trade-mark, but it hoped that it could avoid that danger by trademark "SALONPAS" used on another medicated plaster,
the use of two roosters; and at the same time get such which is registered in its name under Certificate of
advantage as it must have believed it could secure from the Registration 5466, issued by the Director of Patents on
use of a design on the containers of its goods, not absolutely September 29, 1956, and that both trademarks when used
identical with that used by the plaintiff, but so similar in the on medicated plaster would mislead the public as they are
dominant idea as to confuse or mislead the purchasers. * * *" confusingly similar.
(Clarke vs. Manila Candy Co., 100Phil. 36).
After due hearing, the Director of Patents in his decision of
In view of the foregoing, the order appealed from is hereby August 16, 1961 dismissed the opposition and gave due
affirmed, with costs. We do not deem it necessary to discuss course to the petition, stating in part that "confusion, mistake,
and rule upon the other questions raised in £he appeal. or deception among the purchasers will not likely and
reasonably occur" when both trademarks are applied to
Paras, C. J., Padilla, Bautista Angela, Labrador, medicated plaster. The oppositor moved to have the
Concepcion, Reyes, J. B. L, and Felix, JJ., concur. decision reconsidered. This motion was denied in a
resolution of November 27, 1961. The oppositor then
[ G.R. No. L-19297, December 22, 1966 ] interposed the present appeal.
MARVEX COMMERCIAL CO., INC., PETITIONER, VS.
PETRA HAWPIA& CO., AND THE DIRECTOR OF The issues stated by the Director of Patents in his decision
PATENTS, RESPONDENTS. are the same ones now tendered by the oppositor for
resolution, namely, (1) Is the applicant the owner of the
trademark "LI0NPAS"?; (2) Should the application be
DECISION rejected on the ground that the applicant made false
representations in placing the phrase "Reg. Phil. Pat. Off."
RUIZ CASTRO, J.: below the trademark "LIONPAS" on its cartons?; and (3) Is
the "trademark "LIONPAS" confusingly similar to the
trademark "SALONPAS"?
Petra Hawpia& Co., a partnership duly organised under the We do not consider the second issue of any importance; we
laws of the Philippines and doing business at 543 M. de will thus proceed to resolve the first and third issues.
Santos (BoticaDivisoria), Manila (hereinafter referred to as
the applicant), on October 14, 1958 filed a petition for the Is the applicant the owner of the trademark "LIONPAS"?
registration of the trademark "LIONPAS" used on medicated
plaster, with the Philippine Patent Office, asserting its Under sections 2 and 2-A of the Trade Mark Law, as
continuous use in the Philippines since June 9, 1958.[1] The amended, the right to register trademarks, tradeoames and
Marvex Commercial Co., Inc., a corporation also duly service marks by any person, corporation, partnership or
organized under the laws of the Philippines (hereinafter association domiciled in the Philippines or in any foreign
country, is based on ownership, and the burden is upon the paragraph 2 of section 31 of R.A. 166, as amended, which
applicant to prove such ownership (Operators, Inc. vs. The provide as follows:
Director of Patents, et al., L-17901, Oct. 29, 1965).
"The registration of a mark under the provisions of this
The Director of Patents found, on the strength of exhibits 5 section shall be independent ef the, registration in the
and 6 for the applicant, that the latter has "satisfactorily country of origin and the duration, validity or transfer in the
shown" its ownership of the trademark sought to be Philippines of such registration shall be governed by the
registered. Exhibit 5 is a letter dated June 20, 1958, sent by provisions of this Act." (Sec. 37, last par.) (Italics ours)
"OSAKA BOEKI KAISHA, LTD." to the applicant which tends
to show that the former, for a $1 consideration, has "The assignment must be in writing, acknowledged before, a
assigned, ceded, and conveyed all its "rights, interests and notary public or other officer authorised to administer oaths
goodwill in the tradename LIONPAS Medicated Plaster * * *" or perform other notarial acts and certified under the hand
in favor of the latter. Exhibit 6 is a joint "SWORN and official seal of the notary or other officer." (Sec. 31, par.
STATEMENT" which appears to have been executed by the 2)
presidents of "OSAKA BOEKI KAISHA, LTD." and
"ASUNARO PHARMACEUTICAL INDUSTRY CO.", and In this case, although a sheet of paper is attached to exh. 6,
tends to confirm the contents of exhibit 5. on which is typewritten a certification that the signatures of
the presidents of the two named companies (referring to the
A careful scrutiny of exh. 5 will reveal, however, that the signatures in exh. 6) "have been duly written by themselves",
sender of the letter, "OSAKA BOEKI KAISHA, LTD." and this sheet is unmarked, unpaged, unsigned, undated and
which appears to be the seller, is merely a representative of unsealed. We have thumbed the record in quest of any
the manufacturer "ASUNARO PHARMACEUTICAL definitive evidence that it is a correct translation of the
INDUSTRY CO." There is no proof that as such Japanese characters found on another unmarked and
representative, the former has been authorised by the latter unpaged sheet, and have found none.
to sell the trademark in question. Moreover, exh. 5 on its
face appears to have been signed only by someone whose It follows from the above disquisition that exhs. 5 and 6 are
position in the company's "Sundries Dept."is not described; legally insufficient to prove that the applicant is the owner of
the signature is net legible. It is even contradicted by exh. the trademark in question.
While exh. 5 shows that "OSAKA BOEKI KAISHA, LTD." is a
representative of "ASUNARO PHARMACEUTICAL As a matter of fact, the other evidence on record
INDUSTRY CO."; exh. 6 asserts that the former is not a conclusively belies the import of exh. 6. Thus exh. A states
representative of the latter, but that it is the owner of the that the applicant is merely the "exclusive distributor" in the
trademark "LIONPAS" (par. 2, exh. 6). At all events, neither Philippines of the "LIONPAS" penetrative plaster; exh. A-1
averment can be accorded the weight of an assignment of describes the applicant as the "Philippine sole distributor" of
ownership of the trademark in question under the Trade "LIONPAS"; exh. B simply states that "LIONPAS" is
Mark Law. Exh. 5 is not acknowledged. Exh. 6 does not bear "manufactured exclusively for Petra Hawpia& Co. for
the acknowledgment contemplated by the aforesaid law, distribution in the Philippines."
particularly by the last paragraph of section 37 and
Not being the owner of the trademark "LIONPAS" but being Two letters of "SALONPAS" are missing in "LIONPAS": the
merely an importer and/or distributor of the said penetrative first letter a and the letter s. Be that as it may, when the two
plaster, the applicant is not entitled under the law to register words are pronounced, the sound effects are confusingly
it in its name (Operators, Inc. vs. Director of Patents, supra). similar. And where goods are advertised over the radio,
similarity in sound is of especial significance (Co Tiong Sa
Upon the third issue, the applicant preliminarily asserts that vs. Director of Patents, 95 Phil. 1, citing Nims, The Law of
there is no justification for this Court to disturb any finding Unfair Competition and Trademarks, 4th ed., vol 2, pp. 676-
made by the Director of Patents on appeal. This assertion is 679). "The importance of this rule is emphasised by the
not tenable. Although the Director of Patents is the official increase of radio advertising in which we are deprived of the
vested by law with the power to administer the registration of help of our eyes and must depend entirely on the ear"
trademarks and tradenames, his opinion on the matter of (Operators, Inc. vs. Director of Patents, supra).
similarity or dissimilarity of trademarks and tradenames is
not conclusive upon this Court which may pass upon such The following random list of confusingly similar sounds in the
determination. matter of trademarks, culled from Nims, Unfair Competition
and Trade Marks, 1947, vol. 1, will reinforce our view that
The "SALONPAS" mark is not before this Court. Our "SALONPAS" and "LIONPAS" are confusingly similar in
meticulous examination of the entire record has failed to sound: "Gold Dust" and "Gold Drop"; "Jantsen" amd "Jass-
yield sample of such mark. We have therefore proceeded to Sea"; "Silver Flash" and "Supper-Flash"; "Cascarete" and
analyse the two marks, vis-a-vis each other, on the basis of "Celborite"; "Celluloid" and "Cellonite"; "Chartreuse" and
what we can derive from the record for a comparative study. "Charseurs"; "Cutex" and "Cuticlean"; "Hebe" and "Meje";
And our conclusion, in disagreement with that of the Director "Kotex" and "Femetex"; "Zuso" and "HooHoo". Leon Amdur,
of Patents, is not based on a comparison of the appearance, in his book "Trade-Mark Law and Practice", pp. 419-421,
form, style, shape, size or format of the trademarks, which cites, as earning within the purview of the idem sonans rule,
we can not make because, as we have already observed, "Yusea" and "U-C-A", "Steinway Pianos" and "Steinberg
the "SALONPAS" mark is not before us, but on a Pianos", and "Seven-Up" and "Lemon-Up". In Co Tiong vs.
comparison of the spelling, sound and pronunciation of the Director of Patents, this Court unequivocally said that
two words. "Celdura" and "Cordura" are confusingly similar in sound;
this Court held in Sapolin Co. vs. Balmaceda, 67 Phil. 795
It is our considered view that the trademarks "SALONPAS" that the name "Lusolin" is an infringement of the trademark
and "LIONPAS" are confusingly similar in sound. "Sapolin", as the sound of the two names is almost the
same.
Both these words have the same suffix, "PAS", which is
used to denote a plaster that adhered to the body with In the case at bar, "SALONPAS" and "LIONPAS", when
curative powers. "Pas, being merely descriptive, furnishes no spoken, sound very much alike. Similarity of sound is
indication of the origin of the article and therefore is open for sufficient ground for this Court to rule that the two marks are
appropriation by anyone (Ethepavs. Director of Patents, L- confusingly similar when applied to merchandise of the same
20635, March 31, 1966) and may properly become the descriptive properties (see Celanese Corporation of America
subject of a trademark by combination with another word or vs. E. I. Du Pont, 154 F. 2d. 146, 148). The registration of
phrase. "LIONPAS" cannot therefore be given due course.
ACCORDINGLY, the decision of the respondent Director of practically the same spelling, pronunciation and sound, and
Patents is set aside, and the petition below of the covering the same goods, as that of the opposer. Besides,
respondent Petra Hawpia& Co. is hereby dismissed, at the opposer contended that there has been no continuous use in
cost of the latter respondent. commerce of the applicant's mark.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, After due hearing, the Director of Patents rendered decision
Bengzon, J.P., Zaldivar and Sanchez, JJ., concur. holding the applicant's mark DYNAFLEX not to be similar to
the previously registered trademark, DURAFLEX.
[ G.R. No. L-26557, February 18, 1970 ] Consequently, the application of Central Banahaw Industries
AMERICANWIRE& CABLE COMPANY, PETITIONER, VS. for registration of DYNAFLEX was given due course and the
DIRECTOR OF PATENTS AND CENTRAL BANAHAW opposition thereto by American Wire& Cable Company
INDUSTRIES, RESPONDENTS. dismissed. The latter interposed the present appeal.
The pertinent law, Republic Act 166, as amended, on "It has been consistently held that the question of
registrability of trademarks, prescribes: infringement of a trademark is to be determined by the test
of dominancy. Similarity in size, form, and color, while
"SEC. 4. - The owner of a trademark, trade-name or service-
relevant, is not conclusive. If the competing trademark
mark used to distinguish his goods, business or services
contains the main or essential or dominant features of
from the goods, business or services of others shall have the
another, and confusion and deception is likely to result,
right to register the same, unless it:
infringement takes place. Duplication or imitation is not
xxxxxxxxxx xxxxx necessary, nor is it necessary that the infringing label should
suggest an effort to imitate. (C. Neilman Brewing Co. vs.
"(d) Consists of or comprises a mark or trade name which so Independent Brewing Co., 191 F. 489, 495, citing Eagle
resembles a mark or trade-name registered in the White Lead Co. vs. Pflugh [CC] 180 Fed. 579). The question
Philippines by another and not abandoned, as to be likely, at issue in cases of infringement of trademarks is whether
when applied to or used in connection with the goods, the use of the marks involved would be likely to cause
business or services of the applicant, to cause confusion or confusion or mistakes in the mind of the public or deceive
mistake or to deceive purchasers." (Underlining supplied) purchasers." (Go Tiongvs. Director of Patents, 95 Phil. 1,
cited in Lim Hoavs. Director of Patents, 100 Phil. 214).[2]
It is clear from the above-quoted provision that the
determinative factor in a contest involving registration of
In fact, even their similarity in sound is taken into
trade mark is not whether the challenged mark would
consideration, where the marks refer to merchandise of the
actually cause confusion or deception of the purchasers but
same descriptive properties, for the reason that trade idem material, color, shape and size; that the dominant elements
sonans constitutes a violation of trade mark patents.[3] Thus, of the front designs are a red circle and a diagonal zigzag
in the case of Marvex Commercial Co. vs. Hawpia& Co.,[4] commonly related to a spark or flash of electricity; that the
the registration of the trademark "Lionpas" for medicated back of both boxes show similar circles of broken lines with
plaster was denied for being confusingly similar in sound arrows at the center pointing outward, with the identical
with "Salonpas", a registered mark also for medicated legend "Cut Out Ring" "Draw From Inside Circle", no
plaster, the Court saying: difficulty is experienced in reaching the conclusion that there
is a deceptive similarity that would lead the purchaser to
"Two letters of 'SALONPAS' are missing in 'LIONPAS', the confuse one product with the other.
first letter a and the letter s. Be that as it may, when the two
words are pronounced, the sound effects are confusingly The Director of Patents has predicated his decision mostly
similar. And where goods are advertised over the radio, on the semantic difference and connotation of the prefixes
similarity in sound is of especial significance (Co Tiong Sa "Dura" and "Dyna" of the competing trademarks,
vs. Director of Patents, 95 Phil. 1, citing Nims, The Law of unfortunately forgetting that the buyers are less concerned
with the etymology of the words as with their sound and the
Unfair Competition and Trademarks, 4th ed., vol. 2, pp. 678-
dominant features of the design.
679). 'The importance of this rule is emphasized by the
increase of radio advertising in which we are deprived of Of course, as pointed out in the decision now on appeal,
help of our eyes and must depend entirely on the ear' there are some differences in the mark on the front portion of
(Operators, Inc. vs. Director of Patents, supra.)" the box. But they pale into insignificance in view of the close
resemblance in the general appearance of the box and the
Along the same line are the rulings denying registration of a tradenames of the articles. Indeed, measured against the
mark containing the picture of a fish (Bangus), as label for dominant-feature standard, applicant's mark must be
soy sauce, for being similar to another registered brand of disallowed. For, undeniably, the dominant and essential
soy sauce that bears the picture of the fish carp;[5] or that of feature of the article is the trademark itself. Unlike in the
the mark bearing the picture of two roosters with the word case of commodities that are ordinarily picked up by the
"Bantam", as label for food seasoning (vetsin), which would purchaser himself from the grocery or market counters,
confuse the purchasers of the same article bearing the electric wires are purchased not by their appearance but by
registered mark "Hen Brand" that features the picture of a the size (voltage) and length and, most importantly, by
hen.[6] brand. It is even within layman's knowledge that different
brands of wire have different characteristics and properties;
The present case is governed by the principles laid down in and for an essential building item as electric wires and
the preceding cases. The similarity between the competing supplies, the owner of the building would not dare risk his
trademarks, DURAFLEX and DYNAFLEX, is apparent. Not property, perhaps his life, on an unknown or untested brand.
only are the initial letters and the last half of the appellations He would only demand for what is recognized to be the best.
identical, but the difference exists only in two out of the eight
literal elements of the designations. Coupled with the fact Relying on the doctrine enunciated in the Etepha case[7] and
that both marks cover insulated flexible wires under class 20; the earlier ruling in Lim Hoavs. Director of Patents,[8]
that both products are contained in boxes of the same applicant-appellee contends that the DYNAFLEX mark
would not confuse or deceive the buyers and subscribers of [ G.R. No. L-27906, January 08, 1987 ]
the DURAFLEX brand, because electrical wires are of great CONVERSE RUBBER CORPORATION, PETITIONER, VS.
value and the purchasers thereof are generally intelligent - UNIVERSAL RUBBER PRODUCTS, INC. AND TIBURCIO
the architects, engineers and building contractors. It must S. EVALLE, DIRECTOR OF PATENTS, RESPONDENTS.
be realized, however, that except perhaps in big
constructions, the designing architect or engineer, or the
RESOLUTION
contractor who will undertake the work of building, does not
himself purchase or place the order for the purchase of the
materials to be used therein. The task is oftentimes FERNAN, J.:
delegated to another. Nor are said technical men the ones
personally laying down the wiring system in the building that The undisputed facts of the case are as follows:
they could possibly check on whether or not the correct
wires are being used. So that even if the engineer or Respondent Universal Rubber Products, Inc. filed an
contractor will specify in the bill of materials the particular application with the Philippine Patent office for registration of
brand of wires needed, there is no certainty that the desired the trademark "UNIVERSAL CONVERSE AND DEVICE"
product will be acquired. For, unlike the pharmacists or used on rubber shoes and rubber slippers.
druggists, the dispensers of hardware or electrical supplies
are not generally known to pay as much concern to the Petitioner Converse Rubber Corporation filed its opposition
brand of articles asked for by the customer and of a person to the application for registration on grounds that:
who knows the name of the brand but is not acquainted with
its appearance, the likelihood of the DYNAFLEX product a) The trademark sought to be registered is confusingly
being mistaken for DURAFLEX is not remote. similar to the word "CONVERSE" which is part of petitioner's
corporate name "CONVERSE RUBBER CORPORATION"
Of course, as in all other cases of colorable imitations, the as to likely deceive purchasers of products on which it is to
unanswered riddle is why, of the millions of terms and be used to an extent that said products may be mistaken by
combinations of letters and designs available, the appellee the unwary public to be manufactured by the petitioner; and,
had to choose those so closely similar to another's
trademark if there was no intent to take advantage of the b) The registration of respondent's trademark will cause
goodwill generated by the other mark. great and irreparable injury to the business reputation and
goodwill of petitioner in the Philippines and would cause
FOR THE FOREGOING CONSIDERATIONS, the decision damage to said petitioner within the meaning of Section 8,
appealed from is hereby set aside, and the application for R.A. No. 166, as amended.
registration of the trademark DYNAFLEX for electric wires,
class 20, is ordered denied. No costs. Thereafter, respondent filed its answer and at the pre-trial,
the parties submitted the following partial stipulation of facts:
The sales of 12 to 20 pairs a month of petitioner's rubber The determinative factor in ascertaining whether or not
shoes cannot be considered insignificant, considering that marks are confusingly similar to each other "is not whether
they appear to be of high expensive quality, which not too the challenged mark would actually cause confusion or
many basketball players can afford to buy. Any sale made deception of the purchasers but whether the use of such
by a legitimate trader from his store is a commercial act mark would likely cause confusion or mistake on the part of
establishing trademark rights since such sales are made in the buying public. It would be sufficient, for purposes of the
due course of business to the general public, not only to law, that the similarity between the two labels is such that
limited individuals. It is a matter of public knowledge that all there is a possibility or likelihood of the purchaser of the
brands of goods filter into the market, indiscriminately sold older brand mistaking the new brand for it."[19] Even if not all
by jobbers, dealers and merchants not necessarily with the the details just mentioned were identical, with the general
knowledge or consent of the manufacturer. Such actual sale appearance alone of the two products, any ordinary, or even
of goods in the local market establishes trademark use
perhaps even [sic] a not too perceptive and discriminating "x xx a foreign corporation which has never done any
customer could be deceived x xx."[20] business in the Philippines and which is unlicensed and
unregistered to do business here, but is widely and favorably
When the law speaks of "purchaser", the reference is to known in the Philippines through the use therein of its
ordinary average purchasers.[21] "It is not necessary in either products bearing its corporate and tradename, has a legal
case that the resemblance be sufficient to deceive experts, right to maintain an action in the Philippines to restrain the
dealers, or other persons specially familiar with the
residents and inhabitants thereof from organizing a
trademark or goods involved."[22]
corporation therein bearing the same name as the foreign
The similarity in the general appearance of respondent's corporation, when it appears that they have personal
trademark and that of petitioner would evidently create a knowledge of the existence of such a foreign corporation,
likelihood of confusion among the purchasing public. But and it is apparent that the purpose of the proposed domestic
even assuming, arguendo, that the trademark sought to be corporation is to deal and trade in the same goods as those
registered by respondent is distinctively dissimilar from those of the foreign corporation.
of the petitioner, the likelihood of confusion would still
subsist, not on the purchaser's perception of the goods but "We further held:
on the origins thereof. By appropriating the word
"CONVERSE", respondent's products are likely to be xxx xxx xxx
mistaken as having been produced by petitioner. "The risk
of damage is not limited to a possible confusion of goods but xxx xxx xxx
also includes confusion of reputation if the public could
reasonably assume that the goods of the parties originated
from the same source.[23] " ' That company is not here seeking to enforce any legal on
control rights arising from, or growing out of, any business
It is unfortunate that respondent Director of Patents has which it has transacted in the Philippine lslands. The sole
concluded that since the petitioner is not licensed to do purpose of the action:
business in the country and is actually not doing business on
its own in the Philippines, it has no name to protect in the " 'Is to protect its reputation, its corporate name, its goodwill,
forum and thus, it is futile for it to establish that whenever that reputation, corporate name or goodwill have,
"CONVERSE" as part of its corporate name identifies its through the natural development of its trade, established
rubber shoes. That a foreign corporation has a right to themselves.' And it contends that its rights to the use of its
maintain an action in the forum even if it is not licensed to do corporate and trade name:
business and is not actually doing business on its own
therein has been enunciated many times by this Court. In La " 'Is a property right, a right in rem, which it may assert and
Chemise Lacoste, S.A. vs. Fernandez, 129 SCRA 373, this protect against all the world, in any of the courts of the world
Court, reiterating Western Equipment and Supply Co. vs. — even in jurisdictions where it does not transact business
Reyes, 51 Phil. 115, stated that: — just the same as it may protect its tangible property, real
or personal, against trespass, or conversion. Citing sec, 10,
Nims on Unfair Competition and Trademarks and cases
cited; secs. 21-22, Hopkins on Trademarks, Trade Names "Tradenames of persons described in the first paragraph of
and Unfair Competition and cases cited.' That point is this section shall be protected without the obligation of filing
sustained by the authorities, and is well stated in Hanover or registration whether or not they form parts of marks.
Star Mining Co. vs. Allen and Wheeler Co. [208 Fed., 513], "[underscoring supplied.]
in which the syllabus says:
WHEREFORE, the decision of the Director of Patents is
" 'Since it is the trade and not the mark that is to be hereby set aside and a new one entered denying
protected, a trademark acknowledges no territorial Respondent Universal Rubber Products, Inc.'s application for
boundaries of municipalities or states or nations, but extends registration of the trademark "UNIVERSAL CONVERSE
to every market where the trader's goods have become AND DEVICE" on its rubber shoes and slippers.
known and identified by the use of the mark.' "
SO ORDERED.
The ruling in the aforecited case is in consonance with the
Convention of the Union of Paris for the Protection of
Industrial Property to which the Philippines became a party
on September 27, 1965. Article 8 thereof provides that "a
trade name [corporate name] shall be protected in all the
countries of the Union without the obligation of filing or
registration, whetheror not it forms partof the trademark".
[underscoring supplied]
TRENDWORKS INTERNATIONAL CORPORATION, Two search warrants[5] were issued by the RTC and were
PETITIONER-INTERVENOR, VS. INTER PACIFIC served on the premises of respondents. As a result of the
INDUSTRIAL TRADING CORP. AND/OR INTER PACIFIC raid, more than 6,000 pairs of shoes bearing the "S" logo
TRADING CORP. AND/OR STRONG SPORTS GEAR CO., were seized.
LTD., AND/OR STRONGSHOES WAREHOUSE AND/OR
STRONG FASHION SHOES TRADING AND/OR TAN Later, respondents moved to quash the search warrants,
TUAN HONG AND/OR VIOLETA T. MAGAYAGA AND/OR arguing that there was no confusing similarity between
JEFFREY R. MORALES AND/OR ANY OF ITS OTHER petitioner's "Skechers" rubber shoes and its "Strong" rubber
PROPRIETOR/S, DIRECTORS, OFFICERS, EMPLOYEES shoes.
AND/OR OCCUPANTS OF ITS PREMISES LOCATED AT
S-7, ED & JOE'S COMMERCIAL ARCADE, NO. 153 On November 7, 2002, the RTC issued an Order[6] quashing
QUIRINO AVENUE, PARAÑAQUE CITY, RESPONDENTS. the search warrants and directing the NBI to return the
seized goods. The RTC agreed with respondent's view that
RESOLUTION Skechers rubber shoes and Strong rubber shoes have
glaring differences such that an ordinary prudent purchaser
PERALTA, J.: would not likely be misled or confused in purchasing the
wrong article.
For resolution are the twin Motions for Reconsideration[1]
filed by petitioner and petitioner-intervenor from the Decision Aggrieved, petitioner filed a petition for certiorari[7] with the
rendered in favor of respondents, dated November 30, 2006. Court of Appeals (CA) assailing the RTC Order. On
November 17, 2003, the CA issued a Decision[8] affirming
At the outset, a brief narration of the factual and procedural the ruling of the RTC.
for a reconsideration of the earlier decision on the following
Subsequently, petitioner filed the present petition[9]
before grounds:
this Court which puts forth the following assignment of
errors: (a) THIS HONORABLE COURT MUST RE-EXAMINE THE
FACTS OF THIS CASE DUE TO THE SIGNIFICANCE AND
A. WHETHER THE COURT OF APPEALS REPERCUSSIONS OF ITS DECISION.
COMMITTED GRAVE ABUSE OF DISCRETION IN
CONSIDERING MATTERS OF DEFENSE IN A (b) COMMERCIAL QUANTITIES OF THE SEIZED ITEMS
CRIMINAL TRIAL FOR TRADEMARK WITH THE UNAUTHORIZED REPRODUCTIONS OF THE
INFRINGEMENT IN PASSING UPON THE VALIDITY "S" TRADEMARK OWNED BY PETITIONER WERE
OF THE SEARCH WARRANT WHEN IT SHOULD INTENDED FOR DISTRIBUTION IN THE PHILIPPINE
HAVE LIMITED ITSELF TO A DETERMINATION OF MARKET TO THE DETRIMENT OF PETITIONER -
WHETHER THE TRIAL COURT COMMITTED RETURNING THE GOODS TO RESPONDENTS WILL
GRAVE ABUSE OF DISCRETION IN QUASHING
ADVERSELY AFFECT THE GOODWILL AND
THE SEARCH WARRANTS.
REPUTATION OF PETITIONER.
B. WHETHER THE COURT OF APPEALS
COMMITTED GRAVE ABUSE OF DISCRETION IN (c) THE SEARCH WARRANT COURT AND THE COURT
FINDING THAT RESPONDENTS ARE NOT GUILTY OF APPEALS BOTH ACTED WITH GRAVE ABUSE OF
OF TRADEMARK INFRINGEMENT IN THE CASE DISCRETION.
WHERE THE SOLE TRIABLE ISSUE IS THE
EXISTENCE OF PROBABLE CAUSE TO ISSUE A (d) THE SEARCH WARRANT COURT DID NOT
SEARCH WARRANT.[10] PROPERLY RE-EVALUATE THE EVIDENCE PRESENTED
DURING THE SEARCH WARRANT APPLICATION
In the meantime, petitioner-intervenor filed a Petition-in- PROCEEDINGS.
Intervention[11] with this Court claiming to be the sole
licensed distributor of Skechers products here in the (e) THE SOLID TRIANGLE CASE IS NOT APPLICABLE IN
Philippines. THIS CASE, AS IT IS BASED ON A DIFFERENT FACTUAL
MILIEU. PRELIMINARY FINDING OF GUILT (OR
On November 30, 2006, this Court rendered a Decision[12] ABSENCE THEREOF) MADE BY THE SEARCH
dismissing the petition. WARRANT COURT AND THE COURT OF APPEALS WAS
IMPROPER.
Both petitioner and petitioner-intervenor filed separate
motions for reconsideration. (f) THE SEARCH WARRANT COURT OVERSTEPPED ITS
DISCRETION. THE LAW IS CLEAR. THE DOMINANCY
In petitioner's motion for reconsideration, petitioner moved TEST SHOULD BE USED.
(g) THE COURT OF APPEALS COMMITTED ERRORS OF Remedies; Infringement. -- Any person who shall, without
JURISDICTION.[13] the consent of the owner of the registered mark:
On the other hand, petitioner-intervenor's motion for 155.1. Use in commerce any reproduction, counterfeit, copy,
reconsideration raises the following errors for this Court's or colorable imitation of a registered mark or the same
consideration, to wit: container or a dominant feature thereof in connection with
the sale, offering for sale, distribution, advertising of any
(a) THE COURT OF APPEALS AND THE SEARCH goods or services including other preparatory steps
WARRANT COURT ACTED CONTRARY TO LAW AND necessary to carry out the sale of any goods or services on
JURISPRUDENCE IN ADOPTING THE ALREADY- or in connection with which such use is likely to cause
REJECTED HOLISTIC TEST IN DETERMINING THE confusion, or to cause mistake, or to deceive; or
ISSUE OF CONFUSING SIMILARITY;
155.2. Reproduce, counterfeit, copy or colorably imitate a
(b) THE COURT OF APPEALS AND THE SEARCH registered mark or a dominant feature thereof and apply
WARRANT COURT ACTED CONTRARY TO LAW IN such reproduction, counterfeit, copy or colorable imitation to
HOLDING THAT THERE IS NO PROBABLE CAUSE FOR labels, signs, prints, packages, wrappers, receptacles or
TRADEMARK INFRINGEMENT; AND advertisements intended to be used in commerce upon or in
connection with the sale, offering for sale, distribution, or
(c) THE COURT OF APPEALS SANCTIONED THE TRIAL advertising of goods or services on or in connection with
COURT'S DEPARTURE FROM THE USUAL AND which such use is likely to cause confusion, or to cause
ACCEPTED COURSE OF JUDICIAL PROCEEDINGS mistake, or to deceive, shall be liable in a civil action for
WHEN IT UPHELD THE QUASHAL OF THE SEARCH infringement by the registrant for the remedies hereinafter
WARRANT ON THE BASIS SOLELY OF A FINDING THAT set forth: Provided, That the infringement takes place at the
THERE IS NO CONFUSING SIMILARITY.[14] moment any of the acts stated in Subsection 155.1 or this
subsection are committed regardless of whether there is
A perusal of the motions submitted by petitioner and actual sale of goods or services using the infringing
petitioner-intervenor would show that the primary issue material.[15]
posed by them dwells on the issue of whether or not
respondent is guilty of trademark infringement. The essential element of infringement under R.A. No. 8293
is that the infringing mark is likely to cause confusion. In
After a thorough review of the arguments raised herein, this determining similarity and likelihood of confusion,
Court reconsiders its earlier decision. jurisprudence has developed tests ? the Dominancy Test
and the Holistic or Totality Test. The Dominancy Test
The basic law on trademark, infringement, and unfair focuses on the similarity of the prevalent or dominant
competition is Republic Act (R.A.) No. 8293. Specifically, features of the competing trademarks that might cause
Section 155 of R.A. No. 8293 states: confusion, mistake, and deception in the mind of the
purchasing public. Duplication or imitation is not necessary; stylized "S," as it is precisely the stylized "S" which catches
neither is it required that the mark sought to be registered the eye of the purchaser. Thus, even if respondent did not
suggests an effort to imitate. Given more consideration are use an oval design, the mere fact that it used the same
the aural and visual impressions created by the marks on the stylized "S", the same being the dominant feature of
buyers of goods, giving little weight to factors like prices, petitioner's trademark, already constitutes infringement
quality, sales outlets, and market segments.[16] under the Dominancy Test.
In contrast, the Holistic or Totality Test necessitates a This Court cannot agree with the observation of the CA that
consideration of the entirety of the marks as applied to the the use of the letter "S" could hardly be considered as highly
products, including the labels and packaging, in determining identifiable to the products of petitioner alone. The CA even
confusing similarity. The discerning eye of the observer must supported its conclusion by stating that the letter "S" has
focus not only on the predominant words, but also on the been used in so many existing trademarks, the most popular
other features appearing on both labels so that the observer of which is the trademark "S" enclosed by an inverted
may draw conclusion on whether one is confusingly similar triangle, which the CA says is identifiable to Superman. Such
to the other.[17] reasoning, however, misses the entire point, which is that
respondent had used a stylized "S," which is the same
Relative to the question on confusion of marks and trade stylized "S" which petitioner has a registered trademark for.
names, jurisprudence has noted two (2) types of confusion, The letter "S" used in the Superman logo, on the other hand,
viz.: (1) confusion of goods (product confusion), where the has a block-like tip on the upper portion and a round
ordinarily prudent purchaser would be induced to purchase elongated tip on the lower portion. Accordingly, the
one product in the belief that he was purchasing the other; comparison made by the CA of the letter "S" used in the
and (2) confusion of business (source or origin confusion), Superman trademark with petitioner's stylized "S" is not
where, although the goods of the parties are different, the appropriate to the case at bar.
product, the mark of which registration is applied for by one
party, is such as might reasonably be assumed to originate Furthermore, respondent did not simply use the letter "S,"
with the registrant of an earlier product, and the public would but it appears to this Court that based on the font and the
then be deceived either into that belief or into the belief that size of the lettering, the stylized "S" utilized by respondent is
there is some connection between the two parties, though the very same stylized "S" used by petitioner; a stylized "S"
inexistent.[18] which is unique and distinguishes petitioner's trademark.
Indubitably, the likelihood of confusion is present as
Applying the Dominancy Test to the case at bar, this Court purchasers will associate the respondent's use of the
finds that the use of the stylized "S" by respondent in its stylized "S" as having been authorized by petitioner or that
Strong rubber shoes infringes on the mark already registered respondent's product is connected with petitioner's business.
by petitioner with the IPO. While it is undisputed that
petitioner's stylized "S" is within an oval design, to this Both the RTC and the CA applied the Holistic Test in ruling
Court's mind, the dominant feature of the trademark is the that respondent had not infringed petitioner's trademark. For
its part, the RTC noted the following supposed dissimilarities collar of petitioner's shoes are two grayish-white semi-
between the shoes, to wit: transparent circles. Not surprisingly, respondent's shoes also
have two grayish-white semi-transparent circles in the exact
1. The mark "S" found in Strong Shoes is not enclosed same location.
in an "oval design."
2. The word "Strong" is conspicuously placed at the Based on the foregoing, this Court is at a loss as to how the
backside and insoles. RTC and the CA,in applying the holistic test,ruled that there
3. The hang tags and labels attached to the shoes bears was no colorable imitation, when it cannot be any more clear
the word "Strong" for respondent and "Skechers
and apparent to this Court that there is colorable
U.S.A." for private complainant;
imitation.The dissimilarities between the shoes are too trifling
4. Strong shoes are modestly priced compared to the
costs of Skechers Shoes.[19] and frivolousthat it is indubitable that respondent's products
will cause confusion and mistake in the eyes of the public.
Respondent's shoes may not be an exact replica of
While there may be dissimilarities between the appearances petitioner's shoes, but the features andoverall design are so
of the shoes, to this Court's mind such dissimilarities do not similar and alike that confusion is highly likely.
outweigh the stark and blatant similarities in their general
features. As can be readily observed by simply comparing In Converse Rubber Corporation v. Jacinto Rubber & Plastic
petitioner's Energy[20] model and respondent's Strong[21] Co., Inc.,[22] this Court, in a case for unfair competition, had
rubber shoes, respondent also used the color scheme of opined that even if not all the details are identical, as long as
blue, white and gray utilized by petitioner. Even the design the general appearance of the two products are such that
and "wavelike" pattern of the midsole and outer sole of any ordinary purchaser would be deceived, the imitator
respondent's shoes are very similar to petitioner's shoes, if should be liable, to wit:
not exact patterns thereof. At the side of the midsole near
From said examination, We find the shoes manufactured by
the heel of both shoes are two elongated designs in
defendants to contain, as found by the trial court, practically
practically the same location. Even the outer soles of both
all the features of those of the plaintiff Converse Rubber
shoes have the same number of ridges, five at the back and
Corporation and manufactured, sold or marketed by plaintiff
six in front. On the side of respondent's shoes, near the
Edwardson Manufacturing Corporation, except for their
upper part, appears the stylized "S," placed in the exact
respective brands, of course. We fully agree with the trial
location as that of the stylized "S" on petitioner's shoes. On
court that "the respective designs, shapes, the colors of the
top of the "tongue" of both shoes appears the stylized "S" in
ankle patches, the bands, the toe patch and the soles of the
practically the same location and size. Moreover, at the back
two products are exactly the same ... (such that) at a
of petitioner's shoes, near the heelcounter, appears
distance of a few meters, it is impossible to distinguish
"Skechers Sport Trail" written in white lettering. However, on
"Custombuilt" from "Chuck Taylor." These elements are
respondent's shoes appears "Strong Sport Trail" noticeably
more than sufficient to serve as basis for a charge of unfair
written in the same white lettering, font size, direction and
competition. Even if not all the details just mentioned were
orientation as that of petitioner's shoes. On top of the heel
identical, with the general appearances alone of the two
products, any ordinary, or even perhaps even a not too Withal, the protection of trademarks as intellectual property
perceptive and discriminating customer could be deceived, is intended not only to preserve the goodwill and reputation
and, therefore, Custombuilt could easily be passed off for of the business established on the goods bearing the mark
Chuck Taylor. Jurisprudence supports the view that under through actual use over a period of time, but also to
such circumstances, the imitator must be held liable. x x x[23] safeguard the public as consumers against confusion on
these goods.[27] While respondent's shoes contain some
Neither can the difference in price be a complete defense in dissimilarities with petitioner's shoes, this Court cannot close
trademark infringement. In McDonald's Corporation v. L.C. its eye to the fact that for all intents and purpose, respondent
Big Mak Burger. Inc.,[24] this Court held: had deliberately attempted to copy petitioner's mark and
overall design and features of the shoes. Let it be
Modern law recognizes that the protection to which the remembered, that defendants in cases of infringement do
owner of a trademark is entitled is not limited to guarding his not normally copy but only make colorable changes.[28] The
goods or business from actual market competition with most successful form of copying is to employ enough points
identical or similar products of the parties, but extends to all of similarity to confuse the public, with enough points of
cases in which the use by a junior appropriator of a trade- difference to confuse the courts.[29]
mark or trade-name is likely to lead to a confusion of source,
as where prospective purchasers would be misled into WHEREFORE, premises considered, the Motion for
thinking that the complaining party has extended his Reconsideration is GRANTED. The Decision dated
business into the field (see 148 ALR 56 et seq; 53 Am. Jur. November 30, 2006 is RECONSIDERED and SET ASIDE.
576) or is in any way connected with the activities of the
infringer; or when it forestalls the normal potential expansion SO ORDERED.
of his business (v. 148 ALR 77, 84; 52 Am. Jur. 576, 577). x
x x[25]