IV.

VICARIOUS LIABILITY (Art 2180)

A. PARENTS AND GUARDIANS

G.R. No. L-10134 June 29, 1957

SABINA EXCONDE, plaintiff-appellant,

vs.

DELFIN CAPUNO and DANTE CAPUNO, defendants-appellees.

Dante Capuno, son of Delfin Capuno, was accused of double homicide through reckless imprudence for the death of
Isidoro Caperina and Amado Ticzon on March 31, 1949 in the Court of First Instance of Laguna (Criminal Case No.
15001). During the trial, Sabina Exconde, as mother of the deceased Isidoro Caperina, reserved her right to bring a
separate civil action for damages against the accused. After trial, Dante Capuno was found guilty of the crime charged
and, on appeal, the Court Appeals affirmed the decision. Dante Capuno was only (15) years old when he committed the
crime.

In line with her reservation, Sabina Exconde filed the present action against Delfin Capuno and his son Dante Capuno
asking for damages in the aggregate amount of P2,959.00 for the death of her son Isidoro Caperiña. Defendants set up
the defense that if any one should be held liable for the death of Isidoro Caperina, he is Dante Capuno and not his father
Delfin because at the time of the accident, the former was not under the control, supervision and custody, of the latter.
This defense was sustained by the lower court and, as a consequence it only convicted Dante Capuno to pay the
damages claimed in the complaint. From decision, plaintiff appealed to the Court of Appeals but the case was certified
to us on the ground that the appeal only involves questions of law.

It appears that Dante Capuno was a member of the Boy Scouts Organization and a student of the Bilintawak Elementary
School situated in a barrio in the City of San Pablo and on March 31, 1949 he attended a parade in honor of Dr. Jose Rizal
in said city upon instruction of the city school's supervisor. From the school Dante, with other students, boarded a jeep
and when the same started to run, he took hold of the wheel and drove it while the driver sat on his left side. They have
not gone far when the jeep turned turtle and two of its passengers, Amado Ticzon and Isidore Caperiña, died as a
consequence. It further appears that Delfin Capuno, father of Dante, was not with his son at the time of the accident,
nor did he know that his son was going to attend a parade. He only came to know it when his son told him after the
accident that he attended the parade upon instruction of his teacher.

The only issue involved in this appeal is whether defendant Delfin Capuno can be held civilly liable, jointly and severally
with his son Dante, for damages resulting from the death of Isidoro Caperiña caused by the negligent act of minor Dante
Capuno.

The case comes under Article 1903 of the Spanish Civil Code, paragraph 1 and 5, which provides:

ART. 1903. The obligation impossed by the next preceding articles is enforceable not only for personal acts and
omissions, but also for those of persons for whom another is responsible.

The father, and, in case of his death or incapacity, the mother, are liable for any damages caused by the minor children
who live with them.

Finally, teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while
they are under their custody.

Plaintiff contends that defendant Delfin Capuno is liable for the damages in question jointly and severally with his son
Dante because at the time the latter committed the negligent act which resulted in the death of the victim, he was a
minor and was then living with his father, and inasmuch as these facts are not disputed, the civil liability of the father is
evident. And so, plaintiff contends, the lower court erred in relieving the father from liability.

We find merit in this claim. It is true that under the law above quoted, "teachers or directors of arts and trades are liable
for any damages caused by their pupils or apprentices while they are under their custody", but this provision only
applies to an institution of arts and trades and not to any academic educational institution (Padilla, Civil Law, 1953, Ed.,
Vol. IV, p. 841; See 12 Manresa, 4th Ed., p. 557). Here Dante capuno was then a student of the Balintawak Elementary
School and as part of his extra-curricular activity, he attended the parade in honor of Dr. Jose Rizal upon instruction of
the city school's supervisor. And it was in connection with that parade that Dante boarded a jeep with some companions
and while driving it, the accident occurred. In the circumstances, it is clear that neither the head of that school, nor the
city school's supervisor, could be held liable for the negligent act of Dante because he was not then a student of an
institute of arts and trades as provided by law.

The civil liability which the law impose upon the father, and, in case of his death or incapacity, the mother, for any
damages that may be caused by the minor children who live with them, is obvious. This is necessary consequence of the
parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them
in their company, educating them and instructing them in proportion to their means", while, on the other hand, gives
them the "right to correct and punish them in moderation" (Articles 154 and 155, Spanish Civil Code). The only way by
which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of
a family to prevent the damage(Article 1903, last paragraph, Spanish Civil Code). This defendants failed to prove.

WHEREFORE, the decision appealed from is modified in the sense that defendants Delfin Capuno and Dante Capuno
shall pay to plaintiff, jointly and severally, the sum of P2,959.00 as damages, and the costs of action.

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito Elcano, deceased, plaintiffs-appellants,

vs.

REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said minor, defendants-appellees.

BARREDO, J.:

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

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

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

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

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

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

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

Considering the motion for reconsideration filed by the defendants on January 14, 1965 and after thoroughly examining
the arguments therein contained, the Court finds the same to be meritorious and well-founded.
WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by ordering the dismissal of the above
entitled case.

SO ORDERED.

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

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

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

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

II

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

III

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

IV

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

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

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

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

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

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

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

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

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

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

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

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

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

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

According to the Code Commission: "The foregoing provision (Article 2177) through at first sight startling, is not so novel
or extraordinary when we consider the exact nature of criminal and civil negligence. The former is a violation of the
criminal law, while the latter is a "culpa aquiliana" or quasi-delict, of ancient origin, having always had its own
foundation and individuality, separate from criminal negligence. Such distinction between criminal negligence and
"culpa extracontractual" or "cuasi-delito" has been sustained by decision of the Supreme Court of Spain and maintained
as clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the proposed Article
2177, acquittal from an accusation of criminal negligence, whether on reasonable doubt or not, shall not be a bar to a
subsequent civil action, not for civil liability arising from criminal negligence, but for damages due to a quasi-delict or
'culpa aquiliana'. But said article forestalls a double recovery.", (Report of the Code) Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same argument of Justice
Bacobo about construction that upholds "the spirit that giveth lift- rather than that which is literal that killeth the intent
of the lawmaker should be observed in applying the same. And considering that the preliminary chapter on human
relations of the new Civil Code definitely establishes the separability and independence of liability in a civil action for
acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of
the Revised Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111, contemplate also the
same separability, it is "more congruent with the spirit of law, equity and justice, and more in harmony with modern
progress"- to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as
We do hold, that Article 2176, where it refers to "fault or negligencia covers not only acts "not punishable by law" but
also acts criminal in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies
against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided
that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and
would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases
vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil
liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a
quasi-delict only and not as a crime is not estinguished even by a declaration in the criminal case that the criminal act
charged has not happened or has not been committed by the accused. Briefly stated, We here hold, in reiteration of
Garcia, that culpa aquiliana includes voluntary and negligent acts which may be punishable by law.4

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

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

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

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

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

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

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

March 31, 1915 G.R. No. L-9734

JUAN BAHIA, plaintiff-appellant,

vs.

FAUSTA LITONJUA, defendant-appellee. and MARIANO LEYNES, defendant-appellant.

This is an appeal by the defendant Leynes from a judgment of the Court of First Instance of Manila against him for the
sum of P1,000, with costs; and by the plaintiff from Fausta Litonjua.

This is an action to recover damages from the defendants for the death of plaintiff's daughter alleged to have been
caused by the negligence of defendant's servant in driving an automobile over the child and causing her death.

It appears from the evidence that one Ramon Ramirez was the owner and manager of a garage in the city of Manila
known as the International Garage. His mother, the defendant Fausta Litonjua, sometime before the accident from
which this action springs, purchased an automobile and turned it over to the garage to assist her son in the business in
which he was engaged. On the 14th of May, 1911, Ramirez rented the automobile so purchased and donated by his
mother to the defendant Mariano Leynes, together with a chauffeur and a machinist, to be used by him for a short time
between Balayan and Tuy, Province of Batangas, to carry persons living in Balayan to and from the fiesta which was
about to take place in Tuy. According to the arrangement between them, Ramires was to furnish the automobile,
chauffeur, and machinist, and the defendant Leynes was to pay him therefor P20 a day.

On the 16th of May, 1911, while passing from Balayan to Tuy, the automobile, by reason of a defect in the steering gear,
refused to obey the direction of the driver in turning a corner in the streets of Balayan, and, as a consequence, ran
across the street and into the wall of a house against which the daughter of plaintiff was leaning at the time. The font of
the machine struck the child in the center of the body and crushed her to death.

The action was brought against the mother of Ramirez, who bought the automobile, and Leynes, under whose direction
and control the automobile was being operated at the time of the accident. Ramirez was not made a party. The plaintiff
and the defendant Leynes appealed from the judgment, the former on the ground that the court erred in dismissing the
action as to the mother of Ramirez and the latter from that portion of the judgment requiring him to pay to plaintiff
P1,000.

We are of the opinion that the action was properly dismissed as to Fuasta Litonjua. It is a fact proved in the action and
undisputed that, although the mother purchased the automobile, she turned it over to the garage of her son for use
therein. The establishment belonged to the son, Ramon Ramirez, and he had the full management and control of it and
received all the profits therefrom. So far as appears, the contract with Leynes was made without her knowledge or
consent by Ramirez as the owner and manager of the International Garage. While she may have been in one sense the
owner of the machine, that fact does not, under the other facts of the case, make her responsible for the results of the
accident.

We are of the opinion that the judgment against Leynes must be reversed and the complaint dismissed as to him. While
it may be said that, at the time of the accident, the chauffeur who was driving the machine was a servant of Leynes, in as
much as the profits derived from the trips of the automobile belonged to him and the automobile was operated under
his direction, nevertheless, this fact is not conclusive in making him responsible for the negligence of the chauffeur or for
defects in the automobile itself. Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also
provides when that liability shall cease. It says:

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

From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee
there instantly arises a presumption of a law that there was negligence on the part of the master or employer either in
the selection of the servant or employee, or in supervision over him after the selection, or both; and (2) that
presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows necessarily that if the
employees shows to the satisfaction of the court that in selection and supervision he has exercised the care and
diligence of a good father of a family, the presumption is overcome and he is relieved from liability.

This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. This is
the notable peculiarly of the Spanish law negligence. It is, of course, in striking contrast to the American doctrine that, in
relations with strangers, the negligence of the servant is conclusively the negligence of the master.

In the case before us the death of the child caused by a defect in the steering gear of the automobile immediately raised
the presumption that Leynes was negligent in selecting a defective automobile or in his failure to maintain it in good
condition after selection, and the burden of proof was on him to show that he had exercised the care of a good father of
a family. As to selection, the defendant has clearly shown that he exercised the care and diligence of a good father of a
family. He obtained the machine from a reputable garage and it was, so far as appeared, in good condition. The
workmen were likewise selected from a standard garage, were duly licensed by the Government in their particular
calling, and apparently thoroughly competent. The machine had been used but a few hours when the accident occurred
and it is clear from the evidence that the defendant had no notice, either actual or constructive, of the defective
condition of the steering gear. From the commencement of the use of the machine until the accident occurred sufficient
time had not elapsed to require an examination of the machine by the defendant as a part of his duty of inspection and
supervision. While it does not appear that the defendant formulated rules and regulations for the guidance of the
drivers and gave them proper instructions, designed for the protection of the public and the passengers, the evidence
shows, as we have seen, that the death of the child was not caused by a failure to promulgate rules and regulations. It
was caused by a defect in the machine as to which the defendant has shown himself free from responsibility.

The defendant Leynes having shown to the satisfaction of the court that he exercised the care and diligence of a good
father of a family is relieved of responsibility with respect to the death of plaintiff's child.

The judgment, in so far as it dismisses the complaint against Fausta Litonjua, is affirmed with costs, and, in so far as to
finds against Mariano Leynes, is reversed and the complaint as to his dismissed, without special finding as to costs in this
instance. So ordered.

G.R. No. 85044 June 3, 1992

MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners,

vs.

HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, Ilocos Sur; VICTOR BUNDOC; and
CLARA BUNDOC, respondents.

On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an air rifle causing
injuries which resulted in her death. Accordingly, a civil complaint for damages was filed with the Regional Trial Court,
Branch 20, Vigan, Ilocos Sur, docketed as Civil Case No. 3457-V, by petitioner Macario Tamargo, Jennifer's adopting
parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural parents against respondent spouses Victor
and Clara Bundoc, Adelberto's natural parents with whom he was living at the time of the tragic incident. In addition to
this case for damages, a criminal information or Homicide through Reckless Imprudence was filed [Criminal Case No.
1722-V] against Adelberto Bundoc. Adelberto, however, was acquitted and exempted from criminal liability on the
ground that he bad acted without discernment.

Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura had filed a petition to adopt the
minor Adelberto Bundoc in Special Proceedings No. 0373-T before the then Court of First Instance of Ilocos Sur. This
petition for adoption was grunted on, 18 November 1982, that is, after Adelberto had shot and killed Jennifer.

In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the result of the foregoing petition for
adoption, claimed that not they, but rather the adopting parents, namely the spouses Sabas and Felisa Rapisura, were
indispensable parties to the action since parental authority had shifted to the adopting parents from the moment the
successful petition for adoption was filed.

Petitioners in their Reply contended that since Adelberto Bundoc was then actually living with his natural parents,
parental authority had not ceased nor been relinquished by the mere filing and granting of a petition for adoption.

The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that respondent natural parents of
Adelberto indeed were not indispensable parties to the action.

Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the 15-day reglementary period, or
on 14 December 1987, petitioners filed a motion for reconsideration followed by a supplemental motion for
reconsideration on 15 January 1988. It appearing, however, that the motions failed to comply with Sections 4 and 5 of
Rule 15 of the Revised Rules of Court — that notice of the motion shall be given to all parties concerned at least three
(3) days before the hearing of said motion; and that said notice shall state the time and place of hearing — both motions
were denied by the trial court in an Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice of appeal. In
its Order dated 6 June 1988, the trial court dismissed the notice at appeal, this time ruling that the notice had been filed
beyond the 15-day reglementary period ending 22 December 1987.

Petitioners went to the Court of Appeals on a petition for mandamus and certiorari questioning the trial court's Decision
dated 3 December 1987 and the Orders dated 18 April 1988 and 6 June 1988, The Court of Appeals dismissed the
petition, ruling that petitioners had lost their right to appeal.

In the present Petition for Review, petitioners once again contend that respondent spouses Bundoc are the
indispensable parties to the action for damages caused by the acts of their minor child, Adelberto Bundoc. Resolution of
this Petition hinges on the following issues: (1) whether or not petitioners, notwithstanding loss of their right to appeal,
may still file the instant Petition; conversely, whether the Court may still take cognizance of the case even through
petitioners' appeal had been filed out of time; and (2) whether or not the effects of adoption, insofar as parental
authority is concerned may be given retroactive effect so as to make the adopting parents the indispensable parties in a
damage case filed against their adopted child, for acts committed by the latter, when actual custody was yet lodged with
the biological parents.

1. It will be recalled that, petitioners' motion (and supplemental motion) for reconsideration filed before the trial court,
not having complied with the requirements of Section 13, Rule 41, and Section 4, Rule 15, of the Revised Rules of Court,
were considered pro forma and hence did not interrupt and suspend the reglementary period to appeal: the trial court
held that the motions, not having contained a notice of time and place of hearing, had become useless pieces of paper
which did not interrupt the reglementary period. 1 As in fact repeatedly held by this Court, what is mandatory is the
service of the motion on the opposing counsel indicating the time and place of hearing. 2
In view, however, of the nature of the issue raised in the instant. Petition, and in order that substantial justice may be
served, the Court, invoking its right to suspend the application of technical rules to prevent manifest injustice, elects to
treat the notice of appeal as having been seasonably filed before the trial court, and the motion (and supplemental
motion) for reconsideration filed by petitioner in the trial court as having interrupted the reglementary period for
appeal. As the Court held in Gregorio v. Court of Appeals: 3

Dismissal of appeal; purely on technical grounds is frowned upon where the policy of the courts is to encourage hearings
of appeal on their merits. The rules of procedure ought not be applied in a very rigid technical sense, rules of procedure
are used only to help secure not override, substantial justice. if d technical and rigid enforcement of the rules is made
their aim would be defeated. 4

2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air rifle gave rise to a
cause of action on quasi-delict against him. As Article 2176 of the Civil Code provides:

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

Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity, the mother,
for any damages that may be caused by a minor child who lives with them. Article 2180 of the Civil Code reads:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of
persons for whom one is responsible.

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

The responsibility treated of in this Article shall cease when the person herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damage. (Emphasis supplied)

This principle of parental liability is a species of what is frequently designated as vicarious liability, or the doctrine of
"imputed negligence" under Anglo-American tort law, where a person is not only liable for torts committed by himself,
but also for torts committed by others with whom he has a certain relationship and for whom he is responsible. Thus,
parental liability is made a natural or logical consequence of the duties and responsibilities of parents — their parental
authority — which includes the instructing, controlling and disciplining of the child. 5 The basis for the doctrine of
vicarious liability was explained by the Court in Cangco v. Manila Railroad Co. 6 in the following terms:

With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the
legislature to elect — and our Legislature has so elected — to limit such liability to cases in which the person upon whom
such an obligation is imposed is morally culpable or, on the contrary, for reasons of public policy. to extend that liability,
without regard to the lack of moral culpability, so as to include responsibility for the negligence of those persons whose
acts or omissions are imputable, by a legal fiction, to others who are in a position to exercise an absolute or limited
control over them. The legislature which adopted our Civil Code has elected to limit extra-contractual liability — with
certain well-defined exceptions — to cases in which moral culpability can be directly imputed to the persons to be
charged. This moral responsibility may consist in having failed to exercise due care in one's own acts, or in having failed
to exercise due care in the selection and control of one's agent or servants, or in the control of persons who, by reasons
of their status, occupy a position of dependency with respect to the person made liable for their conduct. 7 (Emphasis
Supplied)

The civil liability imposed upon parents for the torts of their minor children living with them, may be seen to be based
upon the parental authority vested by the Civil Code upon such parents. The civil law assumes that when an
unemancipated child living with its parents commits a tortious acts, the parents were negligent in the performance of
their legal and natural duty closely to supervise the child who is in their custody and control. Parental liability is, in other
words, anchored upon parental authority coupled with presumed parental dereliction in the discharge of the duties
accompanying such authority. The parental dereliction is, of course, only presumed and the presumption can be
overtuned under Article 2180 of the Civil Code by proof that the parents had exercised all the diligence of a good father
of a family to prevent the damage.
In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when parental authority was still
lodged in respondent Bundoc spouses, the natural parents of the minor Adelberto. It would thus follow that the natural
parents who had then actual custody of the minor Adelberto, are the indispensable parties to the suit for damages.

The natural parents of Adelberto, however, stoutly maintain that because a decree of adoption was issued by the
adoption court in favor of the Rapisura spouses, parental authority was vested in the latter as adopting parents as of the
time of the filing of the petition for adoption that is, before Adelberto had shot Jennifer which an air rifle. The Bundoc
spouses contend that they were therefore free of any parental responsibility for Adelberto's allegedly tortious conduct.

Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code 8 which reads as follows:

Art. 36. Decree of Adoption. — If, after considering the report of the Department of Social Welfare or duly licensed child
placement agency and the evidence submitted before it, the court is satisfied that the petitioner is qualified to maintain,
care for, and educate the child, that the trial custody period has been completed, and that the best interests of the child
will be promoted by the adoption, a decree of adoption shall be entered, which shall be effective he date the original
petition was filed. The decree shall state the name by which the child is thenceforth to be known. (Emphasis supplied)

The Bundoc spouses further argue that the above Article 36 should be read in relation to Article 39 of the same Code:

Art. 39. Effect of Adoption. — The adoption shall:

(2) Dissolve the authority vested in the natural parents, except where the adopter is the spouse of the surviving natural
parent;

(Emphasis supplied)

and urge that their Parental authority must be deemed to have been dissolved as of the time the Petition for adoption
was filed.

The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for the torts of a minor
child is the relationship existing between the parents and the minor child living with them and over whom, the law
presumes, the parents exercise supervision and control. Article 58 of the Child and Youth Welfare Code, re-enacted this
rule:

Article 58 Torts — Parents and guardians are responsible for the damage caused by the child under their parental
authority in accordance with the civil Code. (Emphasis supplied)

Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the requisite that the child, doer of the
tortious act, shall have beer in the actual custody of the parents sought to be held liable for the ensuing damage:

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated children living in their company and under their parental
authority subject to the appropriate defenses provided by law. (Emphasis supplied)

We do not believe that parental authority is properly regarded as having been retroactively transferred to and vested in
the adopting parents, the Rapisura spouses, at the time the air rifle shooting happened. We do not consider that
retroactive effect may be giver to the decree of adoption so as to impose a liability upon the adopting parents accruing
at a time when adopting parents had no actual or physically custody over the adopted child. Retroactive affect may
perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some
benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had
been retroactively lodged in the Rapisura spouses so as to burden them with liability for a tortious act that they could
not have foreseen and which they could not have prevented (since they were at the time in the United States and had
no physical custody over the child Adelberto) would be unfair and unconscionable. Such a result, moreover, would be
inconsistent with the philosophical and policy basis underlying the doctrine of vicarious liability. Put a little differently,
no presumption of parental dereliction on the part of the adopting parents, the Rapisura spouses, could have arisen
since Adelberto was not in fact subject to their control at the time the tort was committed.

Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above. Article 35 provides as follows:

Art. 35. Trial Custody. — No petition for adoption shall be finally granted unless and until the adopting parents are given
by the courts a supervised trial custody period of at least six months to assess their adjustment and emotional readiness
for the legal union. During the period of trial custody, parental authority shall be vested in the adopting parents.
(Emphasis supplied)

Under the above Article 35, parental authority is provisionally vested in the adopting parents during the period of trial
custody, i.e., before the issuance of a decree of adoption, precisely because the adopting parents are given actual
custody of the child during such trial period. In the instant case, the trial custody period either had not yet begun or bad
already been completed at the time of the air rifle shooting; in any case, actual custody of Adelberto was then with his
natural parents, not the adopting parents.

Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were indispensable parties to
the suit for damages brought by petitioners, and that the dismissal by the trial court of petitioners' complaint, the
indispensable parties being already before the court, constituted grave abuse of discretion amounting to lack or excess
of jurisdiction.

WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE COURSE and the Decision of the
Court of Appeals dated 6 September 1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED and SET ASIDE. Petitioners'
complaint filed before the trial court is hereby REINSTATED and this case is REMANDED to that court for further
proceedings consistent with this Decision. Costs against respondent Bundoc spouses. This Decision is immediately
executory.

SO ORDERED.

EN BANC

[G.R. No. 70890. September 18, 1992.]

CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON. INTERMEDIATE APPELLATE COURT, FELIPE GOTIONG and
SHIRLEY GOTIONG, Respondents.

SYLLABUS

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

DECISION

One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A tragic illustration is
provided by the instant case, wherein two lovers died while still in the prime of their years, a bitter episode for those
whose lives they have touched. While we cannot expect to award complete assuagement to their families through
seemingly prosaic legal verbiage, this disposition should at least terminate the acrimony and rancor of an extended
judicial contest resulting from the unfortunate occurrence.
In this final denouement of the judicial recourse the stages whereof were alternately initiated by the parties, petitioners
are now before us seeking the reversal of the judgment of respondent court promulgated on January 2, 1985 in AC-G.R.
CV No. 69060 with the following decretal portion:jgc:chanrobles.com.ph

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

1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;

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

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

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

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

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted with the same firearm, a
Smith and Wesson revolver licensed in the name of petitioner Cresencio Libi, which was recovered from the scene of the
crime inside the residence of private respondents at the corner of General Maxilom and D. Jakosalem streets of the
same city.

Due to the absence of an eyewitness account of the circumstances surrounding the death of both minors, their parents,
who are the contending parties herein, posited their respective theories drawn from their interpretation of
circumstantial evidence, available reports, documents and evidence of physical facts.

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

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

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

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

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

2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent court to make petitioners liable
for vicarious liability. 3
In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of Cebu, submitted his findings
and opinions on some postulates for determining whether or not the gunshot wound was inflicted on Wendell Libi by his
own suicidal act. However, undue emphasis was placed by the lower court on the absence of gunpowder or tattooing
around the wound at the point of entry of the bullet. It should be emphasized, however, that this is not the only
circumstance to be taken into account in the determination of whether it was suicide or not.

It is true that said witness declared that he found no evidence of contact or close-contact of an explosive discharge in
the entrance wound. However, as pointed out by private respondents, the body of deceased Wendell Libi must have
been washed at the funeral parlor, considering the hasty interment thereof a little after eight (8) hours from the
occurrence wherein he died. Dr. Cerna himself could not categorically state that the body of Wendell Libi was left
untouched at the funeral parlor before he was able to conduct his autopsy. It will also be noted that Dr. Cerna was
negligent in not conducting a paraffin test on Wendell Libi, hence possible evidence of gunpowder residue on Wendell’s
hands was forever lost when Wendell was hastily buried.cralawnad

More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell Libi about eight (8) hours
after the incident or, to be exact, eight (8) hours and twenty (20) minutes based on the record of death; that when he
arrived at the Cosmopolitan Funeral Homes, the body of the deceased was already on the autopsy table and in the stage
of rigor mortis; and that said body was not washed, but it was dried. 4 However, on redirect examination, he admitted
that during the 8-hour interval, he never saw the body nor did he see whether said body was wiped or washed in the
area of the wound on the head which he examined because the deceased was inside the morgue. 5 In fact, on cross-
examination, he had earlier admitted that as far as the entrance of the wound, the trajectory of the bullet and the exit of
the wound are concerned, it is possible that Wendell Libi shot himself. 6

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

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

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

ATTY. ORTIZ:chanrob1es virtual 1aw library

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

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

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

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

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

"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest inferiorly by 0.2 cm., edges inverted,
oriented upward, located at the head, temporal region, right, 2.8 cms. behind and 5.5 cms. above right external auditory
meatus, directed slightly forward, upward and to the left, involving skin and soft tissues, making a punch-in fracture on
the temporal bone, right, penetrating cranial cavity, lacerating extensively along its course the brain tissues, fracturing
parietal bone, left, and finally making an EXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted, parietal region, left, 2.0
cms. behind and 12.9 cms. above left external auditory meatus
"Evidence of contact or close-contact fire, such as burning around the gunshot wound of entrance, gunpowder tatooing
(sic), smudging, singeing of hair, extensive laceration or bursting of the gunshot wound of entrance, or separation of the
skin from the underlying tissue, are absent." 10

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

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

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

ATTY. SENINING:chanrob1es virtual 1aw library

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

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

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

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

"ATTY. ORTIZ: (TO WITNESS).

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

WITNESS:chanrob1es virtual 1aw library

A It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

WITNESS:chanrob1es virtual 1aw library

A From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q From Your living room window, is that correct?

WITNESS:chanrob1es virtual 1aw library

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

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

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

Petitioners’ defense that they had exercised the due diligence of a good father of a family, hence they should not be
civilly liable for the crime committed by their minor son, is not borne out by the evidence on record either.

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

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

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

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

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

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

‘The subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of the New Civil
Code covers obligations arising from both quasi-delicts and criminal offenses.’

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

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

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

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

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

Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the categorization of their
liability as being subsidiary, and not primary, in nature requires a hard second look considering previous decisions of this
court on the matter which warrant comparative analyses. Our concern stems from our readings that if the liability of the
parents for crimes or quasi-delicts of their minor children is subsidiary, then the parents can neither invoke nor be
absolved of civil liability on the defense that they acted with the diligence of a good father of a family to prevent
damages. On the other hand, if such liability imputed to the parents is considered direct and primary, that diligence
would constitute a valid and substantial defense.

We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in Article 2180 of
the Civil Code, is primary and not subsidiary. In fact, if we apply Article 2194 of said code which provides for solidary
liability of joint tortfeasors, the persons responsible for the act or omission, in this case the minor and the father and, in
case of his death of incapacity, the mother, are solidarily liable. Accordingly, such parental liability is primary and not
subsidiary, hence the last paragraph of Article 2180 provides that" (t)he responsibility treated of in this article shall
cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to
prevent damages."cralaw virtua1aw library

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

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

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

Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision the civil liability of the
parents for crimes committed by their minor children is likewise direct and primary, and also subject to the defense of
lack of fault or negligence on their part, that is, the exercise of the diligence of a good father of a family.
That in both quasi-delicts and crimes the parents primarily respond for such damages is buttressed by the corresponding
provisions in both codes that the minor transgressor shall be answerable or shall respond with his own property only in
the absence or in case of insolvency of the former. Thus, for civil liability ex quasi delicto of minors, Article 2182 of the
Civil Code states that" (i)f the minor causing damage has no parents or guardian, the minor . . . shall be answerable with
his own property in an action against him where a guardian ad litem shall be appointed." For civil liability ex delicto of
minors, an equivalent provision is found in the third paragraph of Article 101 of the Revised Penal Code, to
wit:jgc:chanrobles.com.ph

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED.

B. OWNERS AND MANAGERS OF ESTABLISHMENTS

EN BANC

G.R. No. L-12191 October 14, 1918

JOSE CANGCO, plaintiff-appellant,

vs.

MANILA RAILROAD CO., defendant-appellee.

At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the employment of
Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He lived in the pueblo of San Mateo, in
the province of Rizal, which is located upon the line of the defendant railroad company; and in coming daily by train to
the company's office in the city of Manila where he worked, he used a pass, supplied by the company, which entitled
him to ride upon the company's trains free of charge. Upon the occasion in question, January 20, 1915, the plaintiff
arose from his seat in the second class-car where he was riding and, making, his exit through the door, took his position
upon the steps of the coach, seizing the upright guardrail with his right hand for support.

On the side of the train where passengers alight at the San Mateo station there is a cement platform which begins to
rise with a moderate gradient some distance away from the company's office and extends along in front of said office for
a distance sufficient to cover the length of several coaches. As the train slowed down another passenger, named Emilio
Zuñiga, also an employee of the railroad company, got off the same car, alighting safely at the point where the platform
begins to rise from the level of the ground. When the train had proceeded a little farther the plaintiff Jose Cangco
stepped off also, but one or both of his feet came in contact with a sack of watermelons with the result that his feet
slipped from under him and he fell violently on the platform. His body at once rolled from the platform and was drawn
under the moving car, where his right arm was badly crushed and lacerated. It appears that after the plaintiff alighted
from the train the car moved forward possibly six meters before it came to a full stop.

The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted dimly by a single
light located some distance away, objects on the platform where the accident occurred were difficult to discern
especially to a person emerging from a lighted car.

The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the fact that
it was the customary season for harvesting these melons and a large lot had been brought to the station for the
shipment to the market. They were contained in numerous sacks which has been piled on the platform in a row one
upon another. The testimony shows that this row of sacks was so placed of melons and the edge of platform; and it is
clear that the fall of the plaintiff was due to the fact that his foot alighted upon one of these melons at the moment he
stepped upon the platform. His statement that he failed to see these objects in the darkness is readily to be credited.

The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the injuries which he had
received were very serious. He was therefore brought at once to a certain hospital in the city of Manila where an
examination was made and his arm was amputated. The result of this operation was unsatisfactory, and the plaintiff was
then carried to another hospital where a second operation was performed and the member was again amputated higher
up near the shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the form of medical and
surgical fees and for other expenses in connection with the process of his curation.

Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to recover
damages of the defendant company, founding his action upon the negligence of the servants and employees of the
defendant in placing the sacks of melons upon the platform and leaving them so placed as to be a menace to the
security of passenger alighting from the company's trains. At the hearing in the Court of First Instance, his Honor, the
trial judge, found the facts substantially as above stated, and drew therefrom his conclusion to the effect that, although
negligence was attributable to the defendant by reason of the fact that the sacks of melons were so placed as to
obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself had failed to use due caution in
alighting from the coach and was therefore precluded form recovering. Judgment was accordingly entered in favor of
the defendant company, and the plaintiff appealed.

It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks on the
platform in the manner above stated; that their presence caused the plaintiff to fall as he alighted from the train; and
that they therefore constituted an effective legal cause of the injuries sustained by the plaintiff. It necessarily follows
that the defendant company is liable for the damage thereby occasioned unless recovery is barred by the plaintiff's own
contributory negligence. In resolving this problem it is necessary that each of these conceptions of liability, to-wit, the
primary responsibility of the defendant company and the contributory negligence of the plaintiff should be separately
examined.

It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that the
obligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that contract by
reason of the failure of defendant to exercise due care in its performance. That is to say, its liability is direct and
immediate, differing essentially, in legal viewpoint from that presumptive responsibility for the negligence of its
servants, imposed by article 1903 of the Civil Code, which can be rebutted by proof of the exercise of due care in their
selection and supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu, but only to
extra-contractual obligations — or to use the technical form of expression, that article relates only to culpa aquiliana and
not to culpa contractual.

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points out this
distinction, which was also recognized by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7
Phil. rep., 359). In commenting upon article 1093 Manresa clearly points out the difference between "culpa, substantive
and independent, which of itself constitutes the source of an obligation between persons not formerly connected by any
legal tie" and culpa considered as an accident in the performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article 1903 of
the Civil Code is not applicable to acts of negligence which constitute the breach of a contract.

Upon this point the Court said:

The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be those not growing
out of pre-existing duties of the parties to one another. But where relations already formed give rise to duties, whether
springing from contract or quasi-contract, then breaches of those duties are subject to article 1101, 1103, and 1104 of
the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)

This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain cases imposed upon
employers with respect to damages occasioned by the negligence of their employees to persons to whom they are not
bound by contract, is not based, as in the English Common Law, upon the principle of respondeat superior — if it were,
the master would be liable in every case and unconditionally — but upon the principle announced in article 1902 of the
Civil Code, which imposes upon all persons who by their fault or negligence, do injury to another, the obligation of
making good the damage caused. One who places a powerful automobile in the hands of a servant whom he knows to
be ignorant of the method of managing such a vehicle, is himself guilty of an act of negligence which makes him liable
for all the consequences of his imprudence. The obligation to make good the damage arises at the very instant that the
unskillful servant, while acting within the scope of his employment causes the injury. The liability of the master is
personal and direct. But, if the master has not been guilty of any negligence whatever in the selection and direction of
the servant, he is not liable for the acts of the latter, whatever done within the scope of his employment or not, if the
damage done by the servant does not amount to a breach of the contract between the master and the person injured.

It is not accurate to say that proof of diligence and care in the selection and control of the servant relieves the master
from liability for the latter's acts — on the contrary, that proof shows that the responsibility has never existed. As
Manresa says (vol. 8, p. 68) the liability arising from extra-contractual culpa is always based upon a voluntary act or
omission which, without willful intent, but by mere negligence or inattention, has caused damage to another. A master
who exercises all possible care in the selection of his servant, taking into consideration the qualifications they should
possess for the discharge of the duties which it is his purpose to confide to them, and directs them with equal diligence,
thereby performs his duty to third persons to whom he is bound by no contractual ties, and he incurs no liability
whatever if, by reason of the negligence of his servants, even within the scope of their employment, such third person
suffer damage. True it is that under article 1903 of the Civil Code the law creates a presumption that he has been
negligent in the selection or direction of his servant, but the presumption is rebuttable and yield to proof of due care
and diligence in this respect.

The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code, has held that
these articles are applicable to cases of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports,
215.)

This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua and Leynes, (30 Phil.
rep., 624), which was an action brought upon the theory of the extra-contractual liability of the defendant to respond
for the damage caused by the carelessness of his employee while acting within the scope of his employment. The Court,
after citing the last paragraph of article 1903 of the Civil Code, said:

From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee
there instantly arises a presumption of law that there was negligence on the part of the master or employer either in
selection of the servant or employee, or in supervision over him after the selection, or both; and (2) that that
presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence
of a good father of a family, the presumption is overcome and he is relieved from liability.

This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. This is
the notable peculiarity of the Spanish law of negligence. It is, of course, in striking contrast to the American doctrine
that, in relations with strangers, the negligence of the servant in conclusively the negligence of the master.

The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based upon negligence, it
is necessary that there shall have been some fault attributable to the defendant personally, and that the last paragraph
of article 1903 merely establishes a rebuttable presumption, is in complete accord with the authoritative opinion of
Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposed by reason of the breach of the
duties inherent in the special relations of authority or superiority existing between the person called upon to repair the
damage and the one who, by his act or omission, was the cause of it.

On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or agents,
when such acts or omissions cause damages which amount to the breach of a contact, is not based upon a mere
presumption of the master's negligence in their selection or control, and proof of exercise of the utmost diligence and
care in this regard does not relieve the master of his liability for the breach of his contract.

Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its source in
the breach or omission of those mutual duties which civilized society imposes upon it members, or which arise from
these relations, other than contractual, of certain members of society to others, generally embraced in the concept of
status. The legal rights of each member of society constitute the measure of the corresponding legal duties, mainly
negative in character, which the existence of those rights imposes upon all other members of society. The breach of
these general duties whether due to willful intent or to mere inattention, if productive of injury, give rise to an
obligation to indemnify the injured party. The fundamental distinction between obligations of this character and those
which arise from contract, rests upon the fact that in cases of non-contractual obligation it is the wrongful or negligent
act or omission itself which creates the vinculum juris, whereas in contractual relations the vinculum exists
independently of the breach of the voluntary duty assumed by the parties when entering into the contractual relation.

With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the
legislature to elect — and our Legislature has so elected — whom such an obligation is imposed is morally culpable, or,
on the contrary, for reasons of public policy, to extend that liability, without regard to the lack of moral culpability, so as
to include responsibility for the negligence of those person who acts or mission are imputable, by a legal fiction, to
others who are in a position to exercise an absolute or limited control over them. The legislature which adopted our Civil
Code has elected to limit extra-contractual liability — with certain well-defined exceptions — to cases in which moral
culpability can be directly imputed to the persons to be charged. This moral responsibility may consist in having failed to
exercise due care in the selection and control of one's agents or servants, or in the control of persons who, by reason of
their status, occupy a position of dependency with respect to the person made liable for their conduct.

The position of a natural or juridical person who has undertaken by contract to render service to another, is wholly
different from that to which article 1903 relates. When the sources of the obligation upon which plaintiff's cause of
action depends is a negligent act or omission, the burden of proof rests upon plaintiff to prove the negligence — if he
does not his action fails. But when the facts averred show a contractual undertaking by defendant for the benefit of
plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to
specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on the part of the
defendant, or of his servants or agents. Proof of the contract and of its nonperformance is sufficient prima facie to
warrant a recovery.

As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor should assume the burden of
proof of its existence, as the only fact upon which his action is based; while on the contrary, in a case of negligence
which presupposes the existence of a contractual obligation, if the creditor shows that it exists and that it has been
broken, it is not necessary for him to prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).

As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due to the
negligent conduct of defendant or of his servants, even though such be in fact the actual cause of the breach, it is
obvious that proof on the part of defendant that the negligence or omission of his servants or agents caused the breach
of the contract would not constitute a defense to the action. If the negligence of servants or agents could be invoked as
a means of discharging the liability arising from contract, the anomalous result would be that person acting through the
medium of agents or servants in the performance of their contracts, would be in a better position than those acting in
person. If one delivers a valuable watch to watchmaker who contract to repair it, and the bailee, by a personal negligent
act causes its destruction, he is unquestionably liable. Would it be logical to free him from his liability for the breach of
his contract, which involves the duty to exercise due care in the preservation of the watch, if he shows that it was his
servant whose negligence caused the injury? If such a theory could be accepted, juridical persons would enjoy practically
complete immunity from damages arising from the breach of their contracts if caused by negligent acts as such juridical
persons can of necessity only act through agents or servants, and it would no doubt be true in most instances that
reasonable care had been taken in selection and direction of such servants. If one delivers securities to a banking
corporation as collateral, and they are lost by reason of the negligence of some clerk employed by the bank, would it be
just and reasonable to permit the bank to relieve itself of liability for the breach of its contract to return the collateral
upon the payment of the debt by proving that due care had been exercised in the selection and direction of the clerk?

This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a mere incident to the
performance of a contract has frequently been recognized by the supreme court of Spain. (Sentencias of June 27, 1894;
November 20, 1896; and December 13, 1896.) In the decisions of November 20, 1896, it appeared that plaintiff's action
arose ex contractu, but that defendant sought to avail himself of the provisions of article 1902 of the Civil Code as a
defense. The Spanish Supreme Court rejected defendant's contention, saying:

These are not cases of injury caused, without any pre-existing obligation, by fault or negligence, such as those to which
article 1902 of the Civil Code relates, but of damages caused by the defendant's failure to carry out the undertakings
imposed by the contracts . . . .

A brief review of the earlier decision of this court involving the liability of employers for damage done by the negligent
acts of their servants will show that in no case has the court ever decided that the negligence of the defendant's
servants has been held to constitute a defense to an action for damages for breach of contract.

In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was not liable for the
damages caused by the negligence of his driver. In that case the court commented on the fact that no evidence had
been adduced in the trial court that the defendant had been negligent in the employment of the driver, or that he had
any knowledge of his lack of skill or carefulness.

In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff sued the defendant
for damages caused by the loss of a barge belonging to plaintiff which was allowed to get adrift by the negligence of
defendant's servants in the course of the performance of a contract of towage. The court held, citing Manresa (vol. 8,
pp. 29, 69) that if the "obligation of the defendant grew out of a contract made between it and the plaintiff . . . we do
not think that the provisions of articles 1902 and 1903 are applicable to the case."

In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover damages for the
personal injuries caused by the negligence of defendant's chauffeur while driving defendant's automobile in which
defendant was riding at the time. The court found that the damages were caused by the negligence of the driver of the
automobile, but held that the master was not liable, although he was present at the time, saying:

. . . unless the negligent acts of the driver are continued for a length of time as to give the owner a reasonable
opportunity to observe them and to direct the driver to desist therefrom. . . . The act complained of must be continued
in the presence of the owner for such length of time that the owner by his acquiescence, makes the driver's acts his
own.

In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is true that the
court rested its conclusion as to the liability of the defendant upon article 1903, although the facts disclosed that the
injury complaint of by plaintiff constituted a breach of the duty to him arising out of the contract of transportation. The
express ground of the decision in this case was that article 1903, in dealing with the liability of a master for the negligent
acts of his servants "makes the distinction between private individuals and public enterprise;" that as to the latter the
law creates a rebuttable presumption of negligence in the selection or direction of servants; and that in the particular
case the presumption of negligence had not been overcome.

It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though founded in tort
rather than as based upon the breach of the contract of carriage, and an examination of the pleadings and of the briefs
shows that the questions of law were in fact discussed upon this theory. Viewed from the standpoint of the defendant
the practical result must have been the same in any event. The proof disclosed beyond doubt that the defendant's
servant was grossly negligent and that his negligence was the proximate cause of plaintiff's injury. It also affirmatively
appeared that defendant had been guilty of negligence in its failure to exercise proper discretion in the direction of the
servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether the breach of the duty were to be
regarded as constituting culpa aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 and 69) whether
negligence occurs an incident in the course of the performance of a contractual undertaking or its itself the source of an
extra-contractual undertaking obligation, its essential characteristics are identical. There is always an act or omission
productive of damage due to carelessness or inattention on the part of the defendant. Consequently, when the court
holds that a defendant is liable in damages for having failed to exercise due care, either directly, or in failing to exercise
proper care in the selection and direction of his servants, the practical result is identical in either case. Therefore, it
follows that it is not to be inferred, because the court held in the Yamada case that defendant was liable for the
damages negligently caused by its servants to a person to whom it was bound by contract, and made reference to the
fact that the defendant was negligent in the selection and control of its servants, that in such a case the court would
have held that it would have been a good defense to the action, if presented squarely upon the theory of the breach of
the contract, for defendant to have proved that it did in fact exercise care in the selection and control of the servant.

The true explanation of such cases is to be found by directing the attention to the relative spheres of contractual and
extra-contractual obligations. The field of non- contractual obligation is much more broader than that of contractual
obligations, comprising, as it does, the whole extent of juridical human relations. These two fields, figuratively speaking,
concentric; that is to say, the mere fact that a person is bound to another by contract does not relieve him from extra-
contractual liability to such person. When such a contractual relation exists the obligor may break the contract under
such conditions that the same act which constitutes the source of an extra-contractual obligation had no contract
existed between the parties.

The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in safety and to
provide safe means of entering and leaving its trains (civil code, article 1258). That duty, being contractual, was direct
and immediate, and its non-performance could not be excused by proof that the fault was morally imputable to
defendant's servants.

The railroad company's defense involves the assumption that even granting that the negligent conduct of its servants in
placing an obstruction upon the platform was a breach of its contractual obligation to maintain safe means of
approaching and leaving its trains, the direct and proximate cause of the injury suffered by plaintiff was his own
contributory negligence in failing to wait until the train had come to a complete stop before alighting. Under the
doctrine of comparative negligence announced in the Rakes case (supra), if the accident was caused by plaintiff's own
negligence, no liability is imposed upon defendant's negligence and plaintiff's negligence merely contributed to his
injury, the damages should be apportioned. It is, therefore, important to ascertain if defendant was in fact guilty of
negligence.

It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the particular injury
suffered by him could not have occurred. Defendant contends, and cites many authorities in support of the contention,
that it is negligence per se for a passenger to alight from a moving train. We are not disposed to subscribe to this
doctrine in its absolute form. We are of the opinion that this proposition is too badly stated and is at variance with the
experience of every-day life. In this particular instance, that the train was barely moving when plaintiff alighted is shown
conclusively by the fact that it came to stop within six meters from the place where he stepped from it. Thousands of
person alight from trains under these conditions every day of the year, and sustain no injury where the company has
kept its platform free from dangerous obstructions. There is no reason to believe that plaintiff would have suffered any
injury whatever in alighting as he did had it not been for defendant's negligent failure to perform its duty to provide a
safe alighting place.

We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work on
Negligence (vol. 3, sec. 3010) as follows:

The test by which to determine whether the passenger has been guilty of negligence in attempting to alight from a
moving railway train, is that of ordinary or reasonable care. It is to be considered whether an ordinarily prudent person,
of the age, sex and condition of the passenger, would have acted as the passenger acted under the circumstances
disclosed by the evidence. This care has been defined to be, not the care which may or should be used by the prudent
man generally, but the care which a man of ordinary prudence would use under similar circumstances, to avoid injury."
(Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)

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

As the case now before us presents itself, the only fact from which a conclusion can be drawn to the effect that plaintiff
was guilty of contributory negligence is that he stepped off the car without being able to discern clearly the condition of
the platform and while the train was yet slowly moving. In considering the situation thus presented, it should not be
overlooked that the plaintiff was, as we find, ignorant of the fact that the obstruction which was caused by the sacks of
melons piled on the platform existed; and as the defendant was bound by reason of its duty as a public carrier to afford
to its passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the absence of some
circumstance to warn him to the contrary, that the platform was clear. The place, as we have already stated, was dark,
or dimly lighted, and this also is proof of a failure upon the part of the defendant in the performance of a duty owing by
it to the plaintiff; for if it were by any possibility concede that it had right to pile these sacks in the path of alighting
passengers, the placing of them adequately so that their presence would be revealed.

As pertinent to the question of contributory negligence on the part of the plaintiff in this case the following
circumstances are to be noted: The company's platform was constructed upon a level higher than that of the roadbed
and the surrounding ground. The distance from the steps of the car to the spot where the alighting passenger would
place his feet on the platform was thus reduced, thereby decreasing the risk incident to stepping off. The nature of the
platform, constructed as it was of cement material, also assured to the passenger a stable and even surface on which to
alight. Furthermore, the plaintiff was possessed of the vigor and agility of young manhood, and it was by no means so
risky for him to get off while the train was yet moving as the same act would have been in an aged or feeble person. In
determining the question of contributory negligence in performing such act — that is to say, whether the passenger
acted prudently or recklessly — the age, sex, and physical condition of the passenger are circumstances necessarily
affecting the safety of the passenger, and should be considered. Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such conditions, as the nature of their wearing apparel obstructs the
free movement of the limbs. Again, it may be noted that the place was perfectly familiar to the plaintiff as it was his
daily custom to get on and of the train at this station. There could, therefore, be no uncertainty in his mind with regard
either to the length of the step which he was required to take or the character of the platform where he was alighting.
Our conclusion is that the conduct of the plaintiff in undertaking to alight while the train was yet slightly under way was
not characterized by imprudence and that therefore he was not guilty of contributory negligence.

The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist clerk, and that
the injuries he has suffered have permanently disabled him from continuing that employment. Defendant has not shown
that any other gainful occupation is open to plaintiff. His expectancy of life, according to the standard mortality tables, is
approximately thirty-three years. We are of the opinion that a fair compensation for the damage suffered by him for his
permanent disability is the sum of P2,500, and that he is also entitled to recover of defendant the additional sum of
P790.25 for medical attention, hospital services, and other incidental expenditures connected with the treatment of his
injuries.

The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of P3,290.25, and for the
costs of both instances. So ordered.
G.R. No. L-25142 March 25, 1975

PHILIPPINE RABBIT BUS LINES, INC. and FELIX PANGALANGAN, plaintiffs-appellants,

vs.

PHIL-AMERICAN FORWARDERS, INC., ARCHIMEDES J. BALINGIT and FERNANDO PINEDA, defendants-appellees.

AQUINO, J

Philippine Rabbit Bus Lines, Inc. and Felix Pangalangan appealed on pure questions of law from the order of the Court of
First Instance of Tarlac, dismissing their complaint against Archimedes J. Balingit.

The dismissal was based on the ground that Balingit as the manager of Phil-American Forwarders, Inc., which together
with Fernando Pineda and Balingit, was sued for damages in an action based on quasi-delict or culpa aquiliana, is not the
manager of an establishment contemplated in article 2180 of the Civil Code (Civil Case No. 3865).

In the complaint for damages filed by the bus company and Pangalangan against Phil-American Forwarders, Inc., Balingit
and Pineda, it was alleged that on November 24, 1962, Pineda drove recklessly a freight truck, owned by Phil-American
Forwarders, Inc., along the national highway at Sto. Tomas, Pampanga. The truck bumped the bus driven by
Pangalangan, which was owned by Philippine Rabbit Bus Lines, Inc. As a result of the bumping, Pangalangan suffered
injuries and the bus was damaged and could not be used for seventy-nine days, thus depriving the company of earnings
amounting to P8,665.51. Balingit was the manager of Phil-American Forwarders, Inc.

Among the defenses interposed by the defendants in their answer was that Balingit was not Pineda's employer.

Balingit moved that the complaint against him be dismissed on the ground that the bus company and the bus driver had
no cause of action against him. As already stated, the lower court dismissed the action as to Balingit. The bus company
and its driver appealed.

The Civil Code provides:têñ.£îhqwâ£

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

ART. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for
those of persons for whom one is responsible.

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

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in any business or industry.

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damage. (1903a)

The novel and unprecedented legal issue in this appeal is whether the terms "employers" and "owners and managers of
an establishment or enterprise" (dueños o directores de un establicimiento o empresa) used in article 2180 of the Civil
Code, formerly article 1903 of the old Code, embrace the manager of a corporation owning a truck, the reckless
operation of which allegedly resulted in the vehicular accident from which the damage arose.

We are of the opinion that those terms do not include the manager of a corporation. It may be gathered from the
context of article 2180 that the term "manager" ("director" in the Spanish version) is used in the sense of "employer".

Hence, under the allegations of the complaint, no tortious or quasi-delictual liability can be fastened on Balingit as
manager of Phil-American Forwarders, Inc., in connection with the vehicular accident already mentioned because he
himself may be regarded as an employee or dependiente of his employer, Phil-American Forwarders, Inc.

Thus, it was held "que es dependiente, a los efectos de la responsabilidad subsidiaria establecida en el num 3.0 del (art.)
1903, el director de un periodico explotado por una sociedad, porque cualquiera que sea su jerarquia y aunque Ileve la
direccion de determinadas convicciones politicas no por eso deja de estar subordinado a la superior autoridad de la
Empresa" (Decision of Spanish Supreme Court dated December 6, 1912 cited in 12 Manresa, Codigo Civil Español 5th Ed.
662; 1913 Enciclopedia Juridica Española 992).

The bus company and its driver, in their appellants' brief, injected a new factual issue which was not alleged in their
complaint. They argue that Phil- American Forwarders, Inc. is merely a business conduit of Balingit because out of its
capital stock with a par value of P41,200, Balingit and his wife had subscribed P40,000 and they paid P10,000 on their
subscription, while the other incorporators, namely, Rodolfo Limjuco, Ponciano Caparas and Rafael Suntay paid P250.25
and P25, respectively.

That argument implies that the veil of corporate fiction should be pierced and that Phil-American Forwarders, Inc. and
Balingit and his wife should be treated as one and the same civil personality.

We cannot countenance that argument in this appeal. It was not raised in the lower court. The case has to be decided on
the basis of the pleadings filed in the trial court where it was assumed that Phil-American Forwarders, Inc. has a
personality separate and distinct from that of the Balingit spouses.

The legal issue, which the plaintiffs-appellants can ventilate in this appeal, is one which was raised in the lower court and
which is within the issues framed by the parties (Sec. 18, Rule 46, Rules of Court).

When a party deliberately adopts a certain theory and the case is decided upon that theory in the court below, he will
not be permitted to change his theory on appeal because, to permit him to do so, could be unfair to the adverse party (2
Moran's Comments on the Rules of Court, 1970 Ed. p. 505).

WHEREFORE, the lower court's order of dismissal is affirmed. Costs against the plaintiffs-appellants.

SO ORDERED.

[G.R. No. 141994. January 17, 2005]

FILIPINAS BROADCASTING NETWORK, INC., petitioner, vs. AGO MEDICAL AND EDUCATIONAL CENTER-BICOL CHRISTIAN
COLLEGE OF MEDICINE, (AMEC-BCCM) and ANGELITA F. AGO, respondents.

The Case

This petition for review[1] assails the 4 January 1999 Decision[2] and 26 January 2000 Resolution of the Court of Appeals
in CA-G.R. CV No. 40151. The Court of Appeals affirmed with modification the 14 December 1992 Decision[3] of the
Regional Trial Court of Legazpi City, Branch 10, in Civil Case No. 8236. The Court of Appeals held Filipinas Broadcasting
Network, Inc. and its broadcasters Hermogenes Alegre and Carmelo Rima liable for libel and ordered them to solidarily
pay Ago Medical and Educational Center-Bicol Christian College of Medicine moral damages, attorney’s fees and costs of
suit.

The Antecedents

“Exposé” is a radio documentary*4+ program hosted by Carmelo ‘Mel’ Rima (“Rima”) and Hermogenes ‘Jun’ Alegre
(“Alegre”).*5+ Exposé is aired every morning over DZRC-AM which is owned by Filipinas Broadcasting Network, Inc.
(“FBNI”). “Exposé” is heard over Legazpi City, the Albay municipalities and other Bicol areas.*6+

In the morning of 14 and 15 December 1989, Rima and Alegre exposed various alleged complaints from students,
teachers and parents against Ago Medical and Educational Center-Bicol Christian College of Medicine (“AMEC”) and its
administrators. Claiming that the broadcasts were defamatory, AMEC and Angelita Ago (“Ago”), as Dean of AMEC’s
College of Medicine, filed a complaint for damages[7] against FBNI, Rima and Alegre on 27 February 1990. Quoted are
portions of the allegedly libelous broadcasts:

JUN ALEGRE:

Let us begin with the less burdensome: if you have children taking medical course at AMEC-BCCM, advise them to pass
all subjects because if they fail in any subject they will repeat their year level, taking up all subjects including those they
have passed already. Several students had approached me stating that they had consulted with the DECS which told
them that there is no such regulation. If [there] is no such regulation why is AMEC doing the same?

Second: Earlier AMEC students in Physical Therapy had complained that the course is not recognized by DECS. xxx
Third: Students are required to take and pay for the subject even if the subject does not have an instructor - such greed
for money on the part of AMEC’s administration. Take the subject Anatomy: students would pay for the subject upon
enrolment because it is offered by the school. However there would be no instructor for such subject. Students would
be informed that course would be moved to a later date because the school is still searching for the appropriate
instructor.

It is a public knowledge that the Ago Medical and Educational Center has survived and has been surviving for the past
few years since its inception because of funds support from foreign foundations. If you will take a look at the AMEC
premises you’ll find out that the names of the buildings there are foreign soundings. There is a McDonald Hall. Why not
Jose Rizal or Bonifacio Hall? That is a very concrete and undeniable evidence that the support of foreign foundations for
AMEC is substantial, isn’t it? With the report which is the basis of the expose in DZRC today, it would be very easy for
detractors and enemies of the Ago family to stop the flow of support of foreign foundations who assist the medical
school on the basis of the latter’s purpose. But if the purpose of the institution (AMEC) is to deceive students at cross
purpose with its reason for being it is possible for these foreign foundations to lift or suspend their donations
temporarily.[8]

On the other hand, the administrators of AMEC-BCCM, AMEC Science High School and the AMEC-Institute of Mass
Communication in their effort to minimize expenses in terms of salary are absorbing or continues to accept “rejects”.
For example how many teachers in AMEC are former teachers of Aquinas University but were removed because of
immorality? Does it mean that the present administration of AMEC have the total definite moral foundation from
catholic administrator of Aquinas University. I will prove to you my friends, that AMEC is a dumping ground, garbage,
not merely of moral and physical misfits. Probably they only qualify in terms of intellect. The Dean of Student Affairs of
AMEC is Justita Lola, as the family name implies. She is too old to work, being an old woman. Is the AMEC
administration exploiting the very [e]nterprising or compromising and undemanding Lola? Could it be that AMEC is just
patiently making use of Dean Justita Lola were if she is very old. As in atmospheric situation – zero visibility – the plane
cannot land, meaning she is very old, low pay follows. By the way, Dean Justita Lola is also the chairman of the
committee on scholarship in AMEC. She had retired from Bicol University a long time ago but AMEC has patiently made
use of her.

MEL RIMA:

xxx My friends based on the expose, AMEC is a dumping ground for moral and physically misfit people. What does this
mean? Immoral and physically misfits as teachers.

May I say I’m sorry to Dean Justita Lola. But this is the truth. The truth is this, that your are no longer fit to teach. You
are too old. As an aviation, your case is zero visibility. Don’t insist.

xxx Why did AMEC still absorb her as a teacher, a dean, and chairman of the scholarship committee at that. The reason
is practical cost saving in salaries, because an old person is not fastidious, so long as she has money to buy the ingredient
of beetle juice. The elderly can get by – that’s why she (Lola) was taken in as Dean.

xxx On our end our task is to attend to the interests of students. It is likely that the students would be influenced by evil.
When they become members of society outside of campus will be liabilities rather than assets. What do you expect
from a doctor who while studying at AMEC is so much burdened with unreasonable imposition? What do you expect
from a student who aside from peculiar problems – because not all students are rich – in their struggle to improve their
social status are even more burdened with false regulations. xxx[9] (Emphasis supplied)

The complaint further alleged that AMEC is a reputable learning institution. With the supposed exposés, FBNI, Rima and
Alegre “transmitted malicious imputations, and as such, destroyed plaintiffs’ (AMEC and Ago) reputation.” AMEC and
Ago included FBNI as defendant for allegedly failing to exercise due diligence in the selection and supervision of its
employees, particularly Rima and Alegre.

On 18 June 1990, FBNI, Rima and Alegre, through Atty. Rozil Lozares, filed an Answer[10] alleging that the broadcasts
against AMEC were fair and true. FBNI, Rima and Alegre claimed that they were plainly impelled by a sense of public
duty to report the “goings-on in AMEC, *which is+ an institution imbued with public interest.”

Thereafter, trial ensued. During the presentation of the evidence for the defense, Atty. Edmundo Cea, collaborating
counsel of Atty. Lozares, filed a Motion to Dismiss*11+ on FBNI’s behalf. The trial court denied the motion to dismiss.
Consequently, FBNI filed a separate Answer claiming that it exercised due diligence in the selection and supervision of
Rima and Alegre. FBNI claimed that before hiring a broadcaster, the broadcaster should (1) file an application; (2) be
interviewed; and (3) undergo an apprenticeship and training program after passing the interview. FBNI likewise claimed
that it always reminds its broadcasters to “observe truth, fairness and objectivity in their broadcasts and to refrain from
using libelous and indecent language.” Moreover, FBNI requires all broadcasters to pass the Kapisanan ng mga
Brodkaster sa Pilipinas (“KBP”) accreditation test and to secure a KBP permit.

On 14 December 1992, the trial court rendered a Decision[12] finding FBNI and Alegre liable for libel except Rima. The
trial court held that the broadcasts are libelous per se. The trial court rejected the broadcasters’ claim that their
utterances were the result of straight reporting because it had no factual basis. The broadcasters did not even verify
their reports before airing them to show good faith. In holding FBNI liable for libel, the trial court found that FBNI failed
to exercise diligence in the selection and supervision of its employees.

In absolving Rima from the charge, the trial court ruled that Rima’s only participation was when he agreed with Alegre’s
exposé. The trial court found Rima’s statement within the “bounds of freedom of speech, expression, and of the press.”
The dispositive portion of the decision reads:

WHEREFORE, premises considered, this court finds for the plaintiff. Considering the degree of damages caused by the
controversial utterances, which are not found by this court to be really very serious and damaging, and there being no
showing that indeed the enrollment of plaintiff school dropped, defendants Hermogenes “Jun” Alegre, Jr. and Filipinas
Broadcasting Network (owner of the radio station DZRC), are hereby jointly and severally ordered to pay plaintiff Ago
Medical and Educational Center-Bicol Christian College of Medicine (AMEC-BCCM) the amount of P300,000.00 moral
damages, plus P30,000.00 reimbursement of attorney’s fees, and to pay the costs of suit.

SO ORDERED. [13] (Emphasis supplied)

Both parties, namely, FBNI, Rima and Alegre, on one hand, and AMEC and Ago, on the other, appealed the decision to
the Court of Appeals. The Court of Appeals affirmed the trial court’s judgment with modification. The appellate court
made Rima solidarily liable with FBNI and Alegre. The appellate court denied Ago’s claim for damages and attorney’s
fees because the broadcasts were directed against AMEC, and not against her. The dispositive portion of the Court of
Appeals’ decision reads:

WHEREFORE, the decision appealed from is hereby AFFIRMED, subject to the modification that broadcaster Mel Rima is
SOLIDARILY ADJUDGED liable with FBN[I] and Hermo[g]enes Alegre.

SO ORDERED.[14]

FBNI, Rima and Alegre filed a motion for reconsideration which the Court of Appeals denied in its 26 January 2000
Resolution.

Hence, FBNI filed this petition.[15]

The Ruling of the Court of Appeals

The Court of Appeals upheld the trial court’s ruling that the questioned broadcasts are libelous per se and that FBNI,
Rima and Alegre failed to overcome the legal presumption of malice. The Court of Appeals found Rima and Alegre’s
claim that they were actuated by their moral and social duty to inform the public of the students’ gripes as insufficient to
justify the utterance of the defamatory remarks.

Finding no factual basis for the imputations against AMEC’s administrators, the Court of Appeals ruled that the
broadcasts were made “with reckless disregard as to whether they were true or false.” The appellate court pointed out
that FBNI, Rima and Alegre failed to present in court any of the students who allegedly complained against AMEC. Rima
and Alegre merely gave a single name when asked to identify the students. According to the Court of Appeals, these
circumstances cast doubt on the veracity of the broadcasters’ claim that they were “impelled by their moral and social
duty to inform the public about the students’ gripes.”

The Court of Appeals found Rima also liable for libel since he remarked that “(1) AMEC-BCCM is a dumping ground for
morally and physically misfit teachers; (2) AMEC obtained the services of Dean Justita Lola to minimize expenses on its
employees’ salaries; and (3) AMEC burdened the students with unreasonable imposition and false regulations.”*16+

The Court of Appeals held that FBNI failed to exercise due diligence in the selection and supervision of its employees for
allowing Rima and Alegre to make the radio broadcasts without the proper KBP accreditation. The Court of Appeals
denied Ago’s claim for damages and attorney’s fees because the libelous remarks were directed against AMEC, and not
against her. The Court of Appeals adjudged FBNI, Rima and Alegre solidarily liable to pay AMEC moral damages,
attorney’s fees and costs of suit.

Issues

FBNI raises the following issues for resolution:

I. WHETHER THE BROADCASTS ARE LIBELOUS;

II. WHETHER AMEC IS ENTITLED TO MORAL DAMAGES;

III. WHETHER THE AWARD OF ATTORNEY’S FEES IS PROPER; and

IV. WHETHER FBNI IS SOLIDARILY LIABLE WITH RIMA AND ALEGRE FOR PAYMENT OF MORAL DAMAGES, ATTORNEY’S
FEES AND COSTS OF SUIT.

The Court’s Ruling

We deny the petition.

This is a civil action for damages as a result of the allegedly defamatory remarks of Rima and Alegre against AMEC.[17]
While AMEC did not point out clearly the legal basis for its complaint, a reading of the complaint reveals that AMEC’s
cause of action is based on Articles 30 and 33 of the Civil Code. Article 30[18] authorizes a separate civil action to
recover civil liability arising from a criminal offense. On the other hand, Article 33[19] particularly provides that the
injured party may bring a separate civil action for damages in cases of defamation, fraud, and physical injuries. AMEC
also invokes Article 19[20] of the Civil Code to justify its claim for damages. AMEC cites Articles 2176[21] and 2180[22]
of the Civil Code to hold FBNI solidarily liable with Rima and Alegre.

I.

Whether the broadcasts are libelous

A libel[23] is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act or
omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.[24]

There is no question that the broadcasts were made public and imputed to AMEC defects or circumstances tending to
cause it dishonor, discredit and contempt. Rima and Alegre’s remarks such as “greed for money on the part of AMEC’s
administrators”; “AMEC is a dumping ground, garbage of xxx moral and physical misfits”; and AMEC students who
graduate “will be liabilities rather than assets” of the society are libelous per se. Taken as a whole, the broadcasts
suggest that AMEC is a money-making institution where physically and morally unfit teachers abound.

However, FBNI contends that the broadcasts are not malicious. FBNI claims that Rima and Alegre were plainly impelled
by their civic duty to air the students’ gripes. FBNI alleges that there is no evidence that ill will or spite motivated Rima
and Alegre in making the broadcasts. FBNI further points out that Rima and Alegre exerted efforts to obtain AMEC’s side
and gave Ago the opportunity to defend AMEC and its administrators. FBNI concludes that since there is no malice,
there is no libel.

FBNI’s contentions are untenable.

Every defamatory imputation is presumed malicious.[25] Rima and Alegre failed to show adequately their good intention
and justifiable motive in airing the supposed gripes of the students. As hosts of a documentary or public affairs program,
Rima and Alegre should have presented the public issues “free from inaccurate and misleading information.”*26+
Hearing the students’ alleged complaints a month before the exposé,[27] they had sufficient time to verify their sources
and information. However, Rima and Alegre hardly made a thorough investigation of the students’ alleged gripes.
Neither did they inquire about nor confirm the purported irregularities in AMEC from the Department of Education,
Culture and Sports. Alegre testified that he merely went to AMEC to verify his report from an alleged AMEC official who
refused to disclose any information. Alegre simply relied on the words of the students “because they were many and
not because there is proof that what they are saying is true.”*28+ This plainly shows Rima and Alegre’s reckless disregard
of whether their report was true or not.
Contrary to FBNI’s claim, the broadcasts were not “the result of straight reporting.” Significantly, some courts in the
United States apply the privilege of “neutral reportage” in libel cases involving matters of public interest or public
figures. Under this privilege, a republisher who accurately and disinterestedly reports certain defamatory statements
made against public figures is shielded from liability, regardless of the republisher’s subjective awareness of the truth or
falsity of the accusation.[29] Rima and Alegre cannot invoke the privilege of neutral reportage because unfounded
comments abound in the broadcasts. Moreover, there is no existing controversy involving AMEC when the broadcasts
were made. The privilege of neutral reportage applies where the defamed person is a public figure who is involved in an
existing controversy, and a party to that controversy makes the defamatory statement.[30]

However, FBNI argues vigorously that malice in law does not apply to this case. Citing Borjal v. Court of Appeals,[31]
FBNI contends that the broadcasts “fall within the coverage of qualifiedly privileged communications” for being
commentaries on matters of public interest. Such being the case, AMEC should prove malice in fact or actual malice.
Since AMEC allegedly failed to prove actual malice, there is no libel.

FBNI’s reliance on Borjal is misplaced. In Borjal, the Court elucidated on the “doctrine of fair comment,” thus:

[F]air commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or
slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is
deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is
deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an
expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long
as it might reasonably be inferred from the facts.[32] (Emphasis supplied)

True, AMEC is a private learning institution whose business of educating students is “genuinely imbued with public
interest.” The welfare of the youth in general and AMEC’s students in particular is a matter which the public has the
right to know. Thus, similar to the newspaper articles in Borjal, the subject broadcasts dealt with matters of public
interest. However, unlike in Borjal, the questioned broadcasts are not based on established facts. The record supports
the following findings of the trial court:

xxx Although defendants claim that they were motivated by consistent reports of students and parents against plaintiff,
yet, defendants have not presented in court, nor even gave name of a single student who made the complaint to them,
much less present written complaint or petition to that effect. To accept this defense of defendants is too dangerous
because it could easily give license to the media to malign people and establishments based on flimsy excuses that there
were reports to them although they could not satisfactorily establish it. Such laxity would encourage careless and
irresponsible broadcasting which is inimical to public interests.

Secondly, there is reason to believe that defendant radio broadcasters, contrary to the mandates of their duties, did not
verify and analyze the truth of the reports before they aired it, in order to prove that they are in good faith.

Alegre contended that plaintiff school had no permit and is not accredited to offer Physical Therapy courses. Yet,
plaintiff produced a certificate coming from DECS that as of Sept. 22, 1987 or more than 2 years before the controversial
broadcast, accreditation to offer Physical Therapy course had already been given the plaintiff, which certificate is signed
by no less than the Secretary of Education and Culture herself, Lourdes R. Quisumbing (Exh. C-rebuttal). Defendants
could have easily known this were they careful enough to verify. And yet, defendants were very categorical and
sounded too positive when they made the erroneous report that plaintiff had no permit to offer Physical Therapy
courses which they were offering.

The allegation that plaintiff was getting tremendous aids from foreign foundations like Mcdonald Foundation prove not
to be true also. The truth is there is no Mcdonald Foundation existing. Although a big building of plaintiff school was
given the name Mcdonald building, that was only in order to honor the first missionary in Bicol of plaintiffs’ religion, as
explained by Dr. Lita Ago. Contrary to the claim of defendants over the air, not a single centavo appears to be received
by plaintiff school from the aforementioned McDonald Foundation which does not exist.

Defendants did not even also bother to prove their claim, though denied by Dra. Ago, that when medical students fail in
one subject, they are made to repeat all the other subject[s], even those they have already passed, nor their claim that
the school charges laboratory fees even if there are no laboratories in the school. No evidence was presented to prove
the bases for these claims, at least in order to give semblance of good faith.
As for the allegation that plaintiff is the dumping ground for misfits, and immoral teachers, defendant[s] singled out
Dean Justita Lola who is said to be so old, with zero visibility already. Dean Lola testified in court last Jan. 21, 1991, and
was found to be 75 years old. xxx Even older people prove to be effective teachers like Supreme Court Justices who are
still very much in demand as law professors in their late years. Counsel for defendants is past 75 but is found by this
court to be still very sharp and effective. So is plaintiffs’ counsel.

Dr. Lola was observed by this court not to be physically decrepit yet, nor mentally infirmed, but is still alert and docile.

The contention that plaintiffs’ graduates become liabilities rather than assets of our society is a mere conclusion. Being
from the place himself, this court is aware that majority of the medical graduates of plaintiffs pass the board
examination easily and become prosperous and responsible professionals.[33]

Had the comments been an expression of opinion based on established facts, it is immaterial that the opinion happens
to be mistaken, as long as it might reasonably be inferred from the facts.[34] However, the comments of Rima and
Alegre were not backed up by facts. Therefore, the broadcasts are not privileged and remain libelous per se.

The broadcasts also violate the Radio Code*35+ of the Kapisanan ng mga Brodkaster sa Pilipinas, Ink. (“Radio Code”).
Item I(B) of the Radio Code provides:

B. PUBLIC AFFAIRS, PUBLIC ISSUES AND COMMENTARIES

1. xxx

4. Public affairs program shall present public issues free from personal bias, prejudice and inaccurate and misleading
information. x x x Furthermore, the station shall strive to present balanced discussion of issues. x x x.

7. The station shall be responsible at all times in the supervision of public affairs, public issues and commentary
programs so that they conform to the provisions and standards of this code.

8. It shall be the responsibility of the newscaster, commentator, host and announcer to protect public interest,
general welfare and good order in the presentation of public affairs and public issues.[36] (Emphasis supplied)

The broadcasts fail to meet the standards prescribed in the Radio Code, which lays down the code of ethical conduct
governing practitioners in the radio broadcast industry. The Radio Code is a voluntary code of conduct imposed by the
radio broadcast industry on its own members. The Radio Code is a public warranty by the radio broadcast industry that
radio broadcast practitioners are subject to a code by which their conduct are measured for lapses, liability and
sanctions.

The public has a right to expect and demand that radio broadcast practitioners live up to the code of conduct of their
profession, just like other professionals. A professional code of conduct provides the standards for determining whether
a person has acted justly, honestly and with good faith in the exercise of his rights and performance of his duties as
required by Article 19[37] of the Civil Code. A professional code of conduct also provides the standards for determining
whether a person who willfully causes loss or injury to another has acted in a manner contrary to morals or good
customs under Article 21[38] of the Civil Code.

II.

Whether AMEC is entitled to moral damages

FBNI contends that AMEC is not entitled to moral damages because it is a corporation.[39]

A juridical person is generally not entitled to moral damages because, unlike a natural person, it cannot experience
physical suffering or such sentiments as wounded feelings, serious anxiety, mental anguish or moral shock.[40] The
Court of Appeals cites Mambulao Lumber Co. v. PNB, et al.[41] to justify the award of moral damages. However, the
Court’s statement in Mambulao that “a corporation may have a good reputation which, if besmirched, may also be a
ground for the award of moral damages” is an obiter dictum.*42+

Nevertheless, AMEC’s claim for moral damages falls under item 7 of Article 2219[43] of the Civil Code. This provision
expressly authorizes the recovery of moral damages in cases of libel, slander or any other form of defamation. Article
2219(7) does not qualify whether the plaintiff is a natural or juridical person. Therefore, a juridical person such as a
corporation can validly complain for libel or any other form of defamation and claim for moral damages.[44]
Moreover, where the broadcast is libelous per se, the law implies damages.[45] In such a case, evidence of an honest
mistake or the want of character or reputation of the party libeled goes only in mitigation of damages.[46] Neither in
such a case is the plaintiff required to introduce evidence of actual damages as a condition precedent to the recovery of
some damages.[47] In this case, the broadcasts are libelous per se. Thus, AMEC is entitled to moral damages.

However, we find the award of P300,000 moral damages unreasonable. The record shows that even though the
broadcasts were libelous per se, AMEC has not suffered any substantial or material damage to its reputation. Therefore,
we reduce the award of moral damages from P300,000 to P150,000.

III.

Whether the award of attorney’s fees is proper

FBNI contends that since AMEC is not entitled to moral damages, there is no basis for the award of attorney’s fees. FBNI
adds that the instant case does not fall under the enumeration in Article 2208[48] of the Civil Code.

The award of attorney’s fees is not proper because AMEC failed to justify satisfactorily its claim for attorney’s fees.
AMEC did not adduce evidence to warrant the award of attorney’s fees. Moreover, both the trial and appellate courts
failed to explicitly state in their respective decisions the rationale for the award of attorney’s fees.*49+ In Inter-Asia
Investment Industries, Inc. v. Court of Appeals,[50] we held that:

[I]t is an accepted doctrine that the award thereof as an item of damages is the exception rather than the rule, and
counsel’s fees are not to be awarded every time a party wins a suit. The power of the court to award attorney’s fees
under Article 2208 of the Civil Code demands factual, legal and equitable justification, without which the award is a
conclusion without a premise, its basis being improperly left to speculation and conjecture. In all events, the court must
explicitly state in the text of the decision, and not only in the decretal portion thereof, the legal reason for the award of
attorney’s fees.*51+ (Emphasis supplied)

While it mentioned about the award of attorney’s fees by stating that it “lies within the discretion of the court and
depends upon the circumstances of each case,” the Court of Appeals failed to point out any circumstance to justify the
award.

IV.

Whether FBNI is solidarily liable with Rima and Alegre

for moral damages, attorney’s fees

and costs of suit

FBNI contends that it is not solidarily liable with Rima and Alegre for the payment of damages and attorney’s fees
because it exercised due diligence in the selection and supervision of its employees, particularly Rima and Alegre. FBNI
maintains that its broadcasters, including Rima and Alegre, undergo a “very regimented process” before they are
allowed to go on air. “Those who apply for broadcaster are subjected to interviews, examinations and an apprenticeship
program.”

FBNI further argues that Alegre’s age and lack of training are irrelevant to his competence as a broadcaster. FBNI points
out that the “minor deficiencies in the KBP accreditation of Rima and Alegre do not in any way prove that FBNI did not
exercise the diligence of a good father of a family in selecting and supervising them.” Rima’s accreditation lapsed due to
his non-payment of the KBP annual fees while Alegre’s accreditation card was delayed allegedly for reasons attributable
to the KBP Manila Office. FBNI claims that membership in the KBP is merely voluntary and not required by any law or
government regulation.

FBNI’s arguments do not persuade us.

The basis of the present action is a tort. Joint tort feasors are jointly and severally liable for the tort which they
commit.[52] Joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance,
cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit.[53]
Thus, AMEC correctly anchored its cause of action against FBNI on Articles 2176 and 2180 of the Civil Code.
As operator of DZRC-AM and employer of Rima and Alegre, FBNI is solidarily liable to pay for damages arising from the
libelous broadcasts. As stated by the Court of Appeals, “recovery for defamatory statements published by radio or
television may be had from the owner of the station, a licensee, the operator of the station, or a person who procures,
or participates in, the making of the defamatory statements.”*54+ An employer and employee are solidarily liable for a
defamatory statement by the employee within the course and scope of his or her employment, at least when the
employer authorizes or ratifies the defamation.[55] In this case, Rima and Alegre were clearly performing their official
duties as hosts of FBNI’s radio program Exposé when they aired the broadcasts. FBNI neither alleged nor proved that
Rima and Alegre went beyond the scope of their work at that time. There was likewise no showing that FBNI did not
authorize and ratify the defamatory broadcasts.

Moreover, there is insufficient evidence on record that FBNI exercised due diligence in the selection and supervision of
its employees, particularly Rima and Alegre. FBNI merely showed that it exercised diligence in the selection of its
broadcasters without introducing any evidence to prove that it observed the same diligence in the supervision of Rima
and Alegre. FBNI did not show how it exercised diligence in supervising its broadcasters. FBNI’s alleged constant
reminder to its broadcasters to “observe truth, fairness and objectivity and to refrain from using libelous and indecent
language” is not enough to prove due diligence in the supervision of its broadcasters. Adequate training of the
broadcasters on the industry’s code of conduct, sufficient information on libel laws, and continuous evaluation of the
broadcasters’ performance are but a few of the many ways of showing diligence in the supervision of broadcasters.

FBNI claims that it “has taken all the precaution in the selection of Rima and Alegre as broadcasters, bearing in mind
their qualifications.” However, no clear and convincing evidence shows that Rima and Alegre underwent FBNI’s
“regimented process” of application. Furthermore, FBNI admits that Rima and Alegre had deficiencies in their KBP
accreditation,*56+ which is one of FBNI’s requirements before it hires a broadcaster. Significantly, membership in the
KBP, while voluntary, indicates the broadcaster’s strong commitment to observe the broadcast industry’s rules and
regulations. Clearly, these circumstances show FBNI’s lack of diligence in selecting and supervising Rima and Alegre.
Hence, FBNI is solidarily liable to pay damages together with Rima and Alegre.

WHEREFORE, we DENY the instant petition. We AFFIRM the Decision of 4 January 1999 and Resolution of 26 January
2000 of the Court of Appeals in CA-G.R. CV No. 40151 with the MODIFICATION that the award of moral damages is
reduced from P300,000 to P150,000 and the award of attorney’s fees is deleted. Costs against petitioner.

SO ORDERED.

G.R. No. 75112 August 17, 1992

FILAMER CHRISTIAN INSTITUTE, petitioner,

vs.

HON. INTERMEDIATE APPELLATE COURT, HON. ENRIQUE P. SUPLICO, in his capacity as Judge of the Regional Trial Court,
Branch XIV, Roxas City and POTENCIANO KAPUNAN, SR., respondents.

The private respondents, heirs of the late Potenciano Kapunan, seek reconsideration of the decision rendered by this
Court on October 16, 1990 (Filamer Christian Institute v. Court of Appeals, 190 SCRA 477) reviewing the appellate court's
conclusion that there exists an employer-employee relationship between the petitioner and its co-defendant Funtecha.
The Court ruled that the petitioner is not liable for the injuries caused by Funtecha on the grounds that the latter was
not an authorized driver for whose acts the petitioner shall be directly and primarily answerable, and that Funtecha was
merely a working scholar who, under Section 14, Rule X, Book III of the Rules and Regulations Implementing the Labor
Code is not considered an employee of the petitioner.

The private respondents assert that the circumstances obtaining in the present case call for the application of Article
2180 of the Civil Code since Funtecha is no doubt an employee of the petitioner. The private respondents maintain that
under Article 2180 an injured party shall have recourse against the servant as well as the petitioner for whom, at the
time of the incident, the servant was performing an act in furtherance of the interest and for the benefit of the
petitioner. Funtecha allegedly did not steal the school jeep nor use it for a joy ride without the knowledge of the school
authorities.
After a re-examination of the laws relevant to the facts found by the trial court and the appellate court, the Court
reconsiders its decision. We reinstate the Court of Appeals' decision penned by the late Justice Desiderio Jurado and
concurred in by Justices Jose C. Campos, Jr. and Serafin E. Camilon. Applying Civil Code provisions, the appellate court
affirmed the trial court decision which ordered the payment of the P20,000.00 liability in the Zenith Insurance
Corporation policy, P10,000.00 moral damages, P4,000.00 litigation and actual expenses, and P3,000.00 attorney's fees.

It is undisputed that Funtecha was a working student, being a part-time janitor and a scholar of petitioner Filamer. He
was, in relation to the school, an employee even if he was assigned to clean the school premises for only two (2) hours in
the morning of each school day.

Having a student driver's license, Funtecha requested the driver, Allan Masa, and was allowed, to take over the vehicle
while the latter was on his way home one late afternoon. It is significant to note that the place where Allan lives is also
the house of his father, the school president, Agustin Masa. Moreover, it is also the house where Funtecha was allowed
free board while he was a student of Filamer Christian Institute.

Allan Masa turned over the vehicle to Funtecha only after driving down a road, negotiating a sharp dangerous curb, and
viewing that the road was clear. (TSN, April 4, 1983, pp. 78-79) According to Allan's testimony, a fast moving truck with
glaring lights nearly hit them so that they had to swerve to the right to avoid a collision. Upon swerving, they heard a
sound as if something had bumped against the vehicle, but they did not stop to check. Actually, the Pinoy jeep swerved
towards the pedestrian, Potenciano Kapunan who was walking in his lane in the direction against vehicular traffic, and
hit him. Allan affirmed that Funtecha followed his advise to swerve to the right. (Ibid., p. 79) At the time of the incident
(6:30 P.M.) in Roxas City, the jeep had only one functioning headlight.

Allan testified that he was the driver and at the same time a security guard of the petitioner-school. He further said that
there was no specific time for him to be off-duty and that after driving the students home at 5:00 in the afternoon, he
still had to go back to school and then drive home using the same vehicle.

Driving the vehicle to and from the house of the school president where both Allan and Funtecha reside is an act in
furtherance of the interest of the petitioner-school. Allan's job demands that he drive home the school jeep so he can
use it to fetch students in the morning of the next school day.

It is indubitable under the circumstances that the school president had knowledge that the jeep was routinely driven
home for the said purpose. Moreover, it is not improbable that the school president also had knowledge of Funtecha's
possession of a student driver's license and his desire to undergo driving lessons during the time that he was not in his
classrooms.

In learning how to drive while taking the vehicle home in the direction of Allan's house, Funtecha definitely was not
having a joy ride. Funtecha was not driving for the purpose of his enjoyment or for a "frolic of his own" but ultimately,
for the service for which the jeep was intended by the petitioner school. (See L. Battistoni v. Thomas, Can SC 144, 1
D.L.R. 577, 80 ALR 722 [1932]; See also Association of Baptists for World Evangelism, Inc. v. Fieldmen's Insurance Co.,
Inc. 124 SCRA 618 [1983]). Therefore, the Court is constrained to conclude that the act of Funtecha in taking over the
steering wheel was one done for and in behalf of his employer for which act the petitioner-school cannot deny any
responsibility by arguing that it was done beyond the scope of his janitorial duties. The clause "within the scope of their
assigned tasks" for purposes of raising the presumption of liability of an employer, includes any act done by an
employee, in furtherance of the interests of the employer or for the account of the employer at the time of the infliction
of the injury or damage. (Manuel Casada, 190 Va 906, 59 SE 2d 47 [1950]) Even if somehow, the employee driving the
vehicle derived some benefit from the act, the existence of a presumptive liability of the employer is determined by
answering the question of whether or not the servant was at the time of the accident performing any act in furtherance
of his master's business. (Kohlman v. Hyland, 210 NW 643, 50 ALR 1437 [1926]; Jameson v. Gavett, 71 P 2d 937 [1937])

Section 14, Rule X, Book III of the Rules implementing the Labor Code, on which the petitioner anchors its defense, was
promulgated by the Secretary of Labor and Employment only for the purpose of administering and enforcing the
provisions of the Labor Code on conditions of employment. Particularly, Rule X of Book III provides guidelines on the
manner by which the powers of the Labor Secretary shall be exercised; on what records should be kept; maintained and
preserved; on payroll; and on the exclusion of working scholars from, and inclusion of resident physicians in the
employment coverage as far as compliance with the substantive labor provisions on working conditions, rest periods,
and wages, is concerned.
In other words, Rule X is merely a guide to the enforcement of the substantive law on labor. The Court, thus, makes the
distinction and so holds that Section 14, Rule X, Book III of the Rules is not the decisive law in a civil suit for damages
instituted by an injured person during a vehicular accident against a working student of a school and against the school
itself.

The present case does not deal with a labor dispute on conditions of employment between an alleged employee and an
alleged employer. It invokes a claim brought by one for damages for injury caused by the patently negligent acts of a
person, against both doer-employee and his employer. Hence, the reliance on the implementing rule on labor to
disregard the primary liability of an employer under Article 2180 of the Civil Code is misplaced. An implementing rule on
labor cannot be used by an employer as a shield to avoid liability under the substantive provisions of the Civil Code.

There is evidence to show that there exists in the present case an extra-contractual obligation arising from the
negligence or reckless imprudence of a person "whose acts or omissions are imputable, by a legal fiction, to other(s)
who are in a position to exercise an absolute or limited control over (him)." (Bahia v. Litonjua and Leynes, 30 Phil. 624
[1915])

Funtecha is an employee of petitioner Filamer. He need not have an official appointment for a driver's position in order
that the petitioner may be held responsible for his grossly negligent act, it being sufficient that the act of driving at the
time of the incident was for the benefit of the petitioner. Hence, the fact that Funtecha was not the school driver or was
not acting within the scope of his janitorial duties does not relieve the petitioner of the burden of rebutting the
presumption juris tantum that there was negligence on its part either in the selection of a servant or employee, or in the
supervision over him. The petitioner has failed to show proof of its having exercised the required diligence of a good
father of a family over its employees Funtecha and Allan.

The Court reiterates that supervision includes the formulation of suitable rules and regulations for the guidance of its
employees and the issuance of proper instructions intended for the protection of the public and persons with whom the
employer has relations through his employees. (Bahia v. Litonjua and Leynes, supra, at p. 628; Phoenix Construction, v.
Intermediate Appellate Court, 148 SCRA 353 [1987])

An employer is expected to impose upon its employees the necessary discipline called for in the performance of any act
indispensable to the business and beneficial to their employer.

In the present case, the petitioner has not shown that it has set forth such rules and guidelines as would prohibit any
one of its employees from taking control over its vehicles if one is not the official driver or prohibiting the driver and son
of the Filamer president from authorizing another employee to drive the school vehicle. Furthermore, the petitioner has
failed to prove that it had imposed sanctions or warned its employees against the use of its vehicles by persons other
than the driver.

The petitioner, thus, has an obligation to pay damages for injury arising from the unskilled manner by which Funtecha
drove the vehicle. (Cangco v. Manila Railroad Co., 38 Phil. 768, 772 [1918]). In the absence of evidence that the
petitioner had exercised the diligence of a good father of a family in the supervision of its employees, the law imposes
upon it the vicarious liability for acts or omissions of its employees. (Umali v. Bacani, 69 SCRA 263 [1976]; Poblete v.
Fabros, 93 SCRA 200 [1979]; Kapalaran Bus Liner v. Coronado, 176 SCRA 792 [1989]; Franco v. Intermediate Appellate
Court, 178 SCRA 331 [1989]; Pantranco North Express, Inc. v. Baesa, 179 SCRA 384 [1989]) The liability of the employer
is, under Article 2180, primary and solidary. However, the employer shall have recourse against the negligent employee
for whatever damages are paid to the heirs of the plaintiff.

It is an admitted fact that the actual driver of the school jeep, Allan Masa, was not made a party defendant in the civil
case for damages. This is quite understandable considering that as far as the injured pedestrian, plaintiff Potenciano
Kapunan, was concerned, it was Funtecha who was the one driving the vehicle and presumably was one authorized by
the school to drive. The plaintiff and his heirs should not now be left to suffer without simultaneous recourse against the
petitioner for the consequent injury caused by a janitor doing a driving chore for the petitioner even for a short while.
For the purpose of recovering damages under the prevailing circumstances, it is enough that the plaintiff and the private
respondent heirs were able to establish the existence of employer-employee relationship between Funtecha and
petitioner Filamer and the fact that Funtecha was engaged in an act not for an independent purpose of his own but in
furtherance of the business of his employer. A position of responsibility on the part of the petitioner has thus been
satisfactorily demonstrated.
WHEREFORE, the motion for reconsideration of the decision dated October 16, 1990 is hereby GRANTED. The decision of
the respondent appellate court affirming the trial court decision is REINSTATED.

SO ORDERED.

THIRD DIVISION

G.R. No. 163609 November 27, 2008

SPS. BUENAVENTURA JAYME AND ROSARIO JAYME, petitioners,

vs.

RODRIGO APOSTOL, FIDEL LOZANO, ERNESTO SIMBULAN, MAYOR FERNANDO Q. MIGUEL, MUNICIPALITY OF
KORONADAL (NOW CITY OF KORONADAL), PROVINCE OF SOUTH COTABATO, represented by the MUNICIPAL
TREASURER and/or MUNICIPAL MAYOR FERNANDO Q. MIGUEL, and THE FIRST INTEGRATED BONDING AND INSURANCE
COMPANY, INC., respondents.

MAY a municipal mayor be held solidarily liable for the negligent acts of the driver assigned to him, which resulted in the
death of a minor pedestrian?

Challenged in this petition for review on certiorari is the Decision1 of the Court of Appeals (CA) which reversed and set
aside the decision of the Regional Trial Court (RTC), Polomolok, Cotabato City, Branch 39, insofar as defendant Mayor
Fernando Q. Miguel is concerned. The CA absolved Mayor Miguel from any liability since it was not he, but the
Municipality of Koronadal, that was the employer of the negligent driver.

The Facts

On February 5, 1989, Mayor Miguel of Koronadal, South Cotabato was on board the Isuzu pick-up truck driven by Fidel
Lozano, an employee of the Municipality of Koronadal.2 The pick-up truck was registered under the name of Rodrigo
Apostol, but it was then in the possession of Ernesto Simbulan.3 Lozano borrowed the pick-up truck from Simbulan to
bring Miguel to Buayan Airport at General Santos City to catch his Manila flight.4

The pick-up truck accidentally hit Marvin C. Jayme, a minor, who was then crossing the National Highway in Poblacion,
Polomolok, South Cotabato.5 The intensity of the collision sent Marvin some fifty (50) meters away from the point of
impact, a clear indication that Lozano was driving at a very high speed at the time of the accident.6

Marvin sustained severe head injuries with subdural hematoma and diffused cerebral contusion.7 He was initially
treated at the Howard Hubbard Memorial Hospital.8 Due to the seriousness of his injuries, he was airlifted to the
Ricardo Limso Medical Center in Davao City for more intensive treatment.9 Despite medical attention, Marvin expired
six (6) days after the accident.10

Petitioners spouses Buenaventura and Rosario Jayme, the parents of Marvin, filed a complaint for damages with the RTC
against respondents.11 In their complaint, they prayed that all respondents be held solidarily liable for their loss. They
pointed out that that proximate cause of Marvin's death was Lozano's negligent and reckless operation of the vehicle.
They prayed for actual, moral, and exemplary damages, attorney's fees, and litigation expenses.

In their respective Answers, all respondents denied liability for Marvin's death. Apostol and Simbulan averred that
Lozano took the pick-up truck without their consent. Likewise, Miguel and Lozano pointed out that Marvin's sudden
sprint across the highway made it impossible to avoid the accident. Yet, Miguel denied being on board the vehicle when
it hit Marvin. The Municipality of Koronadal adopted the answer of Lozano and Miguel. As for First Integrated Bonding
and Insurance Company, Inc., the vehicle insurer, it insisted that its liability is contributory and is only conditioned on the
right of the insured. Since the insured did not file a claim within the prescribed period, any cause of action against it had
prescribed.

RTC Disposition

On January 25, 1999, the RTC rendered judgment in favor of spouses Jayme, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the defendant Municipality of Koronadal cannot be held liable for the damages
incurred by other defendant (sic) being an agency of the State performing a (sic) governmental functions. The same with
defendant Hermogenes Simbulan, not being the owner of the subject vehicle, he is absolved of any liability. The
complaint against defendant First Integrated Bonding Insurance Company, Inc. is hereby ordered dismissed there being
no cause of action against said insurance company.

However, defendants Fidel Lozano, Rodrigo Apostol, and Mayor Fernando Miguel of Koronadal, South Cotabato, are
hereby ordered jointly and severally to pay the plaintiff (sic) the following sums:

1. One Hundred Seventy Three Thousand One Hundred One and Forty Centavos (P173,101.40) Pesos as actual damages
with legal interest of 12% per annum computed from February 11, 1989 until fully paid;

2. Fifty Thousand (P50,000.00) Pesos as moral damages;

3. Twenty Thousand (P20,000.00) Pesos as exemplary damages;

4. Twenty Thousand (P20,000.00) Pesos as Attorney's fees;

5. Fifty Thousand (P50,000.00) Pesos for the death of Marvin Jayme;

6. Three Thousand (P3,000.00) as litigation expenses; and

7. To pay the cost of this suit.

SO ORDERED.12

Dissatisfied with the RTC ruling, Mayor Miguel interposed an appeal to the CA.

CA Disposition

In his appeal, Mayor Miguel contended that the RTC erred in ruling that he was Lozano's employer and, hence, solidarily
liable for the latter's negligent act. Records showed that the Municipality of Koronadal was the driver's true and lawful
employer. Mayor Miguel also denied that he did not exercise due care and diligence in the supervision of Lozano. The
incident, although unfortunate, was unexpected and cannot be attributed to him.

On October 22, 2003, the CA granted the appeal, disposing as follows:

WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE, insofar as defendant-appellant Mayor Fernando
Q. Miguel is concerned, and the complaint against him is DISMISSED.

IT IS SO ORDERED.13

The CA held that Mayor Miguel should not be held liable for damages for the death of Marvin Jayme. Said the appellate
court:

Moreover, plaintiffs-appellees admitted that Mayor Miguel was not the employer of Lozano. Thus, paragraph 9 of the
complaint alleged that the Municipality of Koronadal was the employer of both Mayor Miguel and Lozano. Not being the
employer of Lozano, Mayor Miguel could not thus be held liable for the damages caused by the former. Mayor Miguel
was a mere passenger in the Isuzu pick-up at the time of the accident.14 (Emphasis supplied)

The CA also reiterated the settled rule that it is the registered owner of a vehicle who is jointly and severally liable with
the driver for damages incurred by passengers or third persons as a consequence of injuries or death sustained in the
operation of the vehicle.

Issues

The spouses Jayme have resorted to the present recourse and assign to the CA the following errors:

I.

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT MAYOR FERNANDO MIGUEL CANNOT BE HELD LIABLE
FOR THE DEATH OF MARVIN JAYME WHICH CONCLUSION IS CONTRARY TO LAW AND THE SETTLED PRONOUNCEMENTS
OF THIS HONORABLE TRIBUNAL;

II.
THE FINDINGS OF FACTS OF THE HONORABLE COURT OF APPEALS ARE CONTRARY TO THE FINDINGS OF THE TRIAL
COURT AND ARE CONTRADICTED BY THE EVIDENCE ON RECORD; MOREOVER, THE CONCLUSIONS DRAWN BY THE
HONORABLE COURT OF APPEALS ARE ALL BASED ON CONJECTURES AND SURMISES AND AGAINST ACCEPTED COURSE OF
JUDICIAL PROCEEDINGS WHICH URGENTLY CALL FOR AN EXERCISE OF THIS HONORABLE COURT'S SUPERVISION.15

Our Ruling

The doctrine of vicarious liability or imputed liability finds no application in the present case.

Spouses Jayme contend, inter alia, that vicarious liability attaches to Mayor Miguel. He was not a mere passenger, but
instead one who had direct control and supervision over Lozano during the time of the accident. According to
petitioners, the element of direct control is not negated by the fact that Lozano's employer was the Municipality of
Koronadal. Mayor Miguel, being Lozano's superior, still had control over the manner the vehicle was operated.

Article 218016 of the Civil Code provides that a person is not only liable for one's own quasi-delictual acts, but also for
those persons for whom one is responsible for. This liability is popularly known as vicarious or imputed liability. To
sustain claims against employers for the acts of their employees, the following requisites must be established: (1) That
the employee was chosen by the employer personally or through another; (2) That the service to be rendered in
accordance with orders which the employer has the authority to give at all times; and (3) That the illicit act of the
employee was on the occasion or by reason of the functions entrusted to him.17

Significantly, to make the employee liable under paragraphs 5 and 6 of Article 2180, it must be established that the
injurious or tortuous act was committed at the time the employee was performing his functions.18

Furthermore, the employer-employee relationship cannot be assumed. It is incumbent upon the plaintiff to prove the
relationship by preponderant evidence. In Belen v. Belen,19 this Court ruled that it was enough for defendant to deny an
alleged employment relationship. The defendant is under no obligation to prove the negative averment. This Court said:

It is an old and well-settled rule of the courts that the burden of proving the action is upon the plaintiff, and that if he
fails satisfactorily to show the facts upon which he bases his claim, the defendant is under no obligation to prove his
exceptions. This rue is in harmony with the provisions of Section 297 of the Code of Civil Procedure holding that each
party must prove his own affirmative allegations, etc.20

In resolving the present controversy, it is imperative to find out if Mayor Miguel is, indeed, the employer of Lozano and
therefore liable for the negligent acts of the latter. To determine the existence of an employment relationship, We rely
on the four-fold test. This involves: (1) the employer's power of selection; (2) payment of wages or other remuneration;
(3) the employer's right to control the method of doing the work; and (4) the employer's right of suspension or
dismissal.21

Applying the foregoing test, the CA correctly held that it was the Municipality of Koronadal which was the lawful
employer of Lozano at the time of the accident. It is uncontested that Lozano was employed as a driver by the
municipality. That he was subsequently assigned to Mayor Miguel during the time of the accident is of no moment. This
Court has, on several occasions, held that an employer-employee relationship still exists even if the employee was
loaned by the employer to another person or entity because control over the employee subsists.22 In the case under
review, the Municipality of Koronadal remains to be Lozano's employer notwithstanding Lozano's assignment to Mayor
Miguel.

Spouses Jayme argued that Mayor Miguel had at least supervision and control over Lozano and how the latter operated
or drove the Isuzu pick-up during the time of the accident. They, however, failed to buttress this claim.

Even assuming arguendo that Mayor Miguel had authority to give instructions or directions to Lozano, he still can not be
held liable. In Benson v. Sorrell,23 the New England Supreme Court ruled that mere giving of directions to the driver
does not establish that the passenger has control over the vehicle. Neither does it render one the employer of the
driver. This Court, in Soliman, Jr. v. Tuazon,24 ruled in a similar vein, to wit:

x x x The fact that a client company may give instructions or directions to the security guards assigned to it, does not, by
itself, render the client responsible as an employer of the security guards concerned and liable for their wrongful acts
and omissions. Those instructions or directions are ordinarily no more than requests commonly envisaged in the
contract for services entered into with the security agency. x x x25 (Emphasis supplied)
Significantly, no negligence may be imputed against a fellow employee although the person may have the right to
control the manner of the vehicle's operation.26 In the absence of an employer-employee relationship establishing
vicarious liability, the driver's negligence should not be attributed to a fellow employee who only happens to be an
occupant of the vehicle.27 Whatever right of control the occupant may have over the driver is not sufficient by itself to
justify an application of the doctrine of vicarious liability. Handley v. Lombardi28 is instructive on this exception to the
rule on vicarious liability:

Plaintiff was not the master or principal of the driver of the truck, but only an intermediate and superior employee or
agent. This being so, the doctrine of respondeat superior or qui facit per alium is not properly applicable to him. His
power to direct and control the driver was not as master, but only by virtue of the fact that they were both employed by
Kruse, and the further fact that as Kruse's agent he was delegated Kruse's authority over the driver. x x x

In the case of actionable negligence, the rule is well settled both in this state and elsewhere that the negligence of a
subordinate employee or subagent is not to be imputed to a superior employee or agent, but only to the master or
principal. (Hilton v. Oliver, 204 Cal. 535 [61 A. L. R. 297, 269 Pac. 425; Guild v. Brown, 115 Cal. App. 374 [1 Pac. (2d) 528;
Ellis v. Southern Ry. Co., 72 S. C. 464 [2 L. R. A. (N. S.) 378, 52 S. E. 228; Thurman v. Pittsburg & M. Copper Co., 41 Mont.
141 [108 Pac. 588]; 2 Cor. Jur., p. 829; and see the elaborate note in 61 A. L. R. 277, and particularly that part
commencing at p. 290.) We can see no logical reason for drawing any distinction in this regard between actionable
negligence and contributory negligence. x x x29

The rule was reiterated in Bryant v. Pacific Elec. Ry. Co.[30 and again in Sichterman v. Hollingshead Co.31

In Swanson v. McQuown,32 a case involving a military officer who happened to be riding in a car driven by a subordinate
later involved in an accident, the Colorado Supreme Court adhered to the general rule that a public official is not liable
for the wrongful acts of his subordinates on a vicarious basis since the relationship is not a true master-servant
situation.33 The court went on to rule that the only exception is when they cooperate in the act complained of, or direct
or encourage it.34

In the case at bar, Mayor Miguel was neither Lozano's employer nor the vehicle's registered owner. There existed no
causal relationship between him and Lozano or the vehicle used that will make him accountable for Marvin's death.
Mayor Miguel was a mere passenger at the time of the accident.

Parenthetically, it has been held that the failure of a passenger to assist the driver, by providing him warnings or by
serving as lookout does not make the passenger liable for the latter's negligent acts.35 The driver's duty is not one that
may be delegated to others.36

As correctly held by the trial court, the true and lawful employer of Lozano is the Municipality of Koronadal.
Unfortunately for Spouses Jayme, the municipality may not be sued because it is an agency of the State engaged in
governmental functions and, hence, immune from suit. This immunity is illustrated in Municipality of San Fernando, La
Union v. Firme,37 where this Court held:

It has already been remarked that municipal corporations are suable because their charters grant them the competence
to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge of
governmental functions and can only be held answerable only if it can be shown that they were acting in proprietary
capacity. In permitting such entities to be sued, the State merely gives the claimant the right to show that the defendant
was not acting in governmental capacity when the injury was committed or that the case comes under the exceptions
recognized by law. Failing this, the claimant cannot recover.38

Verily, liability attaches to the registered owner, the negligent driver and his direct employer. The CA observation along
this line are worth restating:

Settled is the rule that the registered owner of a vehicle is jointly and severally liable with the driver for damages
incurred by passengers and third persons as a consequence of injuries or death sustained in the operation of said
vehicles. Regardless of who the actual owner of the vehicle is, the operator of record continues to be the operator of the
vehicle as regards the public and third persons, and as such is directly and primarily responsible for the consequences
incident (sic) to its operation x x x.39

The accidental death of Marvin Jayme is a tragic loss for his parents. However, justice demands that only those liable
under our laws be held accountable for Marvin's demise. Justice can not sway in favor of petitioners simply to assuage
their pain and loss. The law on the matter is clear: only the negligent driver, the driver's employer, and the registered
owner of the vehicle are liable for the death of a third person resulting from the negligent operation of the vehicle.

WHEREFORE, the petition is DENIED and the appealed Decision AFFIRMED.

SO ORDERED.

FIRST DIVISION

MERCURY DRUG CORPORATION and ROLANDO J. DEL ROSARIO,

Petitioners,

- versus -

SPOUSES RICHARD HUANG and CARMEN HUANG, and STEPHEN HUANG,

Promulgated:

June 22, 2007

On appeal are the Decision [1] and Resolution [2] of the Court of Appeals in CA-G.R. CV No. 83981, dated February 16,
2006 and March 30, 2006, respectively which affirmed with modification the Decision [3] of the Regional Trial Court
(RTC) of Makati City, dated September 29, 2004. The trial court found petitioners jointly and severally liable to pay
respondents damages for the injuries sustained by respondent Stephen Huang, son of respondent spouses Richard and
Carmen Huang.

First, the facts:

Petitioner Mercury Drug Corporation (Mercury Drug) is the registered owner of a six-wheeler 1990 Mitsubishi Truck with
plate number PRE 641 (truck). It has in its employ petitioner Rolando J. del Rosario as driver. Respondent spouses
Richard and Carmen Huang are the parents of respondent Stephen Huang and own the red 1991 Toyota Corolla GLI
Sedan with plate number PTT 775 (car).

These two vehicles figured in a road accident on December 20, 1996 at around 10:30 p.m. within the municipality of
Taguig, Metro Manila. Respondent Stephen Huang was driving the car, weighing 1,450 kg., while petitioner Del Rosario
was driving the truck, weighing 14,058 kg. Both were traversing the C-5 Highway, north bound, coming from the general
direction of Alabang going to Pasig City. The car was on the left innermost lane while the truck was on the next lane to
its right, when the truck suddenly swerved to its left and slammed into the front right side of the car. The collision
hurled the car over the island where it hit a lamppost, spun around and landed on the opposite lane. The truck also hit a
lamppost, ran over the car and zigzagged towards, and finally stopped in front of Buellah Land Church.

At the time of the accident, petitioner Del Rosario only had a Traffic Violation Receipt (TVR). His driver’s license had
been confiscated because he had been previously apprehended for reckless driving.

The car, valued at P300,000.00, was a total wreck. Respondent Stephen Huang sustained massive injuries to his spinal
cord, head, face, and lung. Despite a series of operations, respondent Stephen Huang is paralyzed for life from his chest
down and requires continuous medical and rehabilitation treatment.

Respondents fault petitioner Del Rosario for committing gross negligence and reckless imprudence while driving, and
petitioner Mercury Drug for failing to exercise the diligence of a good father of a family in the selection and supervision
of its driver.

In contrast, petitioners allege that the immediate and proximate cause of the accident was respondent Stephen Huang’s
recklessness. According to petitioner Del Rosario, he was driving on the left innermost lane when the car bumped the
truck’s front right tire. The truck then swerved to the left, smashed into an electric post, crossed the center island, and
stopped on the other side of the highway. The car likewise crossed over the center island and landed on the same
portion of C-5. Further, petitioner Mercury Drug claims that it exercised due diligence of a good father of a family in the
selection and supervision of all its employees.
The trial court, in its Decision dated September 29, 2004, found petitioners Mercury Drug and Del Rosario jointly and
severally liable to pay respondents actual, compensatory, moral and exemplary damages, attorney’s fees, and litigation
expenses. The dispositive portion reads:

WHEREFORE, judgment is rendered finding defendants Mercury Drug Corporation, Inc. and Rolando del Rosario, jointly
and severally liable to pay plaintiffs Spouses Richard Y. Huang and Carmen G. Huang, and Stephen Huang the following
amounts:

1. Two Million Nine Hundred Seventy Three Thousand Pesos (P2,973,000.00) actual damages;

2. As compensatory damages:

a. Twenty Three Million Four Hundred Sixty One Thousand, and Sixty-Two Pesos (P23,461,062.00) for life care cost of
Stephen;

b. Ten Million Pesos (P10,000,000.00) as and for lost or impaired earning capacity of Stephen;

3. Four Million Pesos (P4,000,000.00) as moral damages;

4. Two Million Pesos (P2,000,000.00) as exemplary damages; and

5. One Million Pesos (P1,000,000.00) as attorneys fees and litigation expense. [4]

On February 16, 2006, the Court of Appeals affirmed the decision of the trial court but reduced the award of moral
damages to P1,000,000.00. The appellate court also denied the motion for reconsideration filed by petitioners.

Hence, this appeal.

Petitioners cite the following grounds for their appeal:

1. That the subject Decision which dismissed the appeal of petitioners herein but AFFIRMED WITH MODIFICATION the
decision of the Regional Trial Court, Branch 64, Makati City, in that the award of moral damages was reduced to
P1,000,000.00 and its Resolution dated March 30, 2006, which dismissed outright the Motion for Reconsideration must
be set aside because the Honorable Court of Appeals committed reversible error:

A. IN DENYING OUTRIGHTLY THE MOTION FOR RECONSIDERATION ON ALLEGEDLY BEING FILED OUT OF TIME FOR
ONE DAY;

B. IN ACCORDING GREATER WEIGHT TO THE EVIDENCE ADDUCED BY THE RESPONDENTS HEREIN AND COMPLETELY
DISREGARDING THE DEFENSE INTERPOSED BY THE PETITIONERS HEREIN;

C. IN DISREGARDING COMPLETELY ALL EVIDENCES PRESENTED BY THE PETITIONERS HEREIN AND PROCEEDED TO
RENDER ITS DECISION BASED ON PRESUMPTIONS AND PERSONAL OPINIONS OF PEOPLE WHO ARE NOT WITNESSES TO
THE ACCIDENT;

D. IN AWARDING DAMAGES IN FAVOR OF RESPONDENTS HEREIN;

E. IN FINDING THAT MERCURY DRUG CORPORATION FAILED TO EXERCISE THE DILIGENCE REQUIRED IN
SUPERVISING ITS EMPLOYEES DESPITE OVERWHELMING EVIDENCE PRESENTED BY PETITIONER COMPANY;

F. IN FINDING THAT PETITIONER ROLANDO DEL ROSARIO WAS NEGLIGENT IN DRIVING THE TRUCK AT THE TIME OF
ACCIDENT AND TOTALLY DISREGARDING THE EVIDENCES PRESENTED DURING THE TRIAL OF THE CASE.

G. IN PRESENTING ONLY IN THE DECISION TESTIMONIES FAVORABLE TO THE RESPONDENTS HEREIN AND
COMPLETELY DISREGARDING THE EVIDENCES PRESENTED BY THE PETITIONERS HEREIN WHICH CONTRADICTED SUCH
TESTIMONIES NOT ONLY THROUGH ORAL TESTIMONIES BUT AS WELL AS DOCUMENTARY EVIDENCES. [5]

We affirm the findings of the trial court and the appellate court that petitioner Del Rosario was negligent. The evidence
does not support petitioners’ claim that at the time of the accident, the truck was at the left inner lane and that it was
respondent Stephen Huang’s car, at its right, which bumped the right front side of the truck. Firstly, petitioner Del
Rosario could not precisely tell which part of the truck was hit by the car, [6] despite the fact that the truck was snub-
nosed and a lot higher than the car. Petitioner Del Rosario could not also explain why the car landed on the opposite
lane of C-5 which was on its left side. He said that “the car did not pass in front of him after it hit him or under him or
over him or behind him.” *7+ If the truck were really at the left lane and the car were at its right, and the car hit the
truck at its front right side, the car would not have landed on the opposite side, but would have been thrown to the right
side of the C-5 Highway. Noteworthy on this issue is the testimony of Dr. Marlon Rosendo H. Daza, an expert in the field
of physics. He conducted a study based on the following assumptions provided by respondents:

1. Two vehicles collided;

2. One vehicle is ten times heavier, more massive than the other;

3. Both vehicles were moving in the same direction and at the same speed of about 85 to 90 kilometers per hour;

4. The heavier vehicle was driving at the innermost left lane, while the lighter vehicle was at its right.

Dr. Daza testified that given the foregoing assumptions, if the lighter vehicle hits the right front portion of the heavier
vehicle, the general direction of the light vehicle after the impact would be to the right side of the heavy vehicle, not the
other way around. The truck, he opined, is more difficult to move as it is heavier. It is the car, the lighter vehicle, which
would move to the right of, and away from the truck. Thus, there is very little chance that the car will move towards the
opposite side, i.e., to the left of the truck.

Dr. Daza also gave a further study on the basis of the same assumptions except that the car is on the left side of the
truck, in accordance with the testimony of respondent Stephen Huang. Dr. Daza concluded that the general direction of
the car after impact would be to the left of the truck. In this situation, the middle island against which the car was
pinned would slow down the car, and enable the truck to catch up and hit the car again, before running over it. [8]

To support their thesis, petitioners tried to show the damages that the truck sustained at its front right side. The
attempt does not impress. The photographs presented were taken a month after the accident, and Rogelio Pantua, the
automechanic who repaired the truck and authenticated the photographs, admitted that there were damages also on
the left side of the truck. [9]

Worse still, petitioner Del Rosario further admitted that after the impact, he lost control of the truck and failed to apply
his brakes. Considering that the car was smaller and lighter than the six-wheeler truck, the impact allegedly caused by
the car when it hit the truck could not possibly be so great to cause petitioner to lose all control that he failed to even
step on the brakes. He testified, as follows:

ATTY. DIAZ:

May I proceed, Your Honor. You were able to apply the brakes, were you sir?

WITNESS:

No more, sir, because I went over the island.

ATTY. DIAZ:

Because as you said you lost control, correct sir?

WITNESS:

Yes, sir.

ATTY. DIAZ:

In other words, sir from the time your truck was hit according to you up to the time you rested on the shoulder, you
traveled fifty meters?

WITNESS:

Yes, sir, about that distance.

ATTY. DIAZ:
And this was despite the fact that you were only traveling at the speed of seventy five kilometers per hour, jumped over
the island, hit the lamppost, and traveled the three lanes of the opposite lane of C-5 highway, is that what you want to
impress upon this court?

WITNESS:

Yes, sir. [10]

We therefore find no cogent reason to disturb the findings of the RTC and the Court of Appeals. The evidence proves
petitioner Del Rosario’s negligence as the direct and proximate cause of the injuries suffered by respondent Stephen
Huang. Petitioner Del Rosario failed to do what a reasonable and prudent man would have done under the
circumstances.

We now come to the liability of petitioner Mercury Drug as employer of Del Rosario. Articles 2176 and 2180 of the Civil
Code provide:

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

Art. 2180. The obligation imposed by article 2176 is demandable not only for one’s own acts or omissions, but also for
those of persons for whom one is responsible.

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

The liability of the employer under Art. 2180 of the Civil Code is direct or immediate. It is not conditioned on a prior
recourse against the negligent employee, or a prior showing of insolvency of such employee. It is also joint and solidary
with the employee. [11]

To be relieved of liability, petitioner Mercury Drug should show that it exercised the diligence of a good father of a
family, both in the selection of the employee and in the supervision of the performance of his duties. Thus, in the
selection of its prospective employees, the employer is required to examine them as to their qualifications, experience,
and service records. [12] With respect to the supervision of its employees, the employer should formulate standard
operating procedures, monitor their implementation, and impose disciplinary measures for their breach. To establish
compliance with these requirements, employers must submit concrete proof, including documentary evidence. [13]

In the instant case, petitioner Mercury Drug presented testimonial evidence on its hiring procedure. According to Mrs.
Merlie Caamic, the Recruitment and Training Manager of petitioner Mercury Drug, applicants are required to take
theoretical and actual driving tests, and psychological examination. In the case of petitioner Del Rosario, however, Mrs.
Caamic admitted that he took the driving tests and psychological examination when he applied for the position of
Delivery Man, but not when he applied for the position of Truck Man. Mrs. Caamic also admitted that petitioner Del
Rosario used a Galant which is a light vehicle, instead of a truck during the driving tests. Further, no tests were
conducted on the motor skills development, perceptual speed, visual attention, depth visualization, eye and hand
coordination and steadiness of petitioner Del Rosario. No NBI and police clearances were also presented. Lastly,
petitioner Del Rosario attended only three driving seminars – on June 30, 2001, February 5, 2000 and July 7, 1984. In
effect, the only seminar he attended before the accident which occurred in 1996 was held twelve years ago in 1984.

It also appears that petitioner Mercury Drug does not provide for a back-up driver for long trips. At the time of the
accident, petitioner Del Rosario has been out on the road for more than thirteen hours, without any alternate. Mrs.
Caamic testified that she does not know of any company policy requiring back-up drivers for long trips. [14]

Petitioner Mercury Drug likewise failed to show that it exercised due diligence on the supervision and discipline over its
employees. In fact, on the day of the accident, petitioner Del Rosario was driving without a license. He was holding a
TVR for reckless driving. He testified that he reported the incident to his superior, but nothing was done about it. He
was not suspended or reprimanded. [15] No disciplinary action whatsoever was taken against petitioner Del Rosario.
We therefore affirm the finding that petitioner Mercury Drug has failed to discharge its burden of proving that it
exercised due diligence in the selection and supervision of its employee, petitioner Del Rosario.

We now consider the damages which respondents should recover from the petitioners.
The trial court awarded the following amounts:

1. Two Million Nine Hundred Seventy-Three Thousand Pesos (P2,973,000.00) actual damages;

2. As compensatory damages:

a. Twenty-Three Million Four Hundred Sixty One Thousand, and Sixty-Two Pesos (P23,461,062.00) for life care cost of
Stephen;

b. Ten Million Pesos (P10,000,000.00) as and for lost or impaired earning capacity of Stephen;

3. Four Million Pesos (P4,000,000.00) as moral damages;

4. Two Million Pesos (P2,000,000.00) as exemplary damages; and

5. One Million Pesos (P1,000,000.00) as attorney’s fees and litigation expense.

The Court of Appeals affirmed the decision of the trial court but reduced the award of moral damages to P1,000,000.00.

With regard to actual damages, Art. 2199 of the Civil Code provides that “*E+xcept as provided by law or by stipulation
one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved x x x.”
In the instant case, we uphold the finding that the actual damages claimed by respondents were supported by receipts.
The amount of P2,973,000.00 represented cost of hospital expenses, medicines, medical services and supplies, and
nursing care services provided respondent Stephen from December 20, 1996, the day of the accident, until December
1998.

Petitioners are also liable for all damages which are the natural and probable consequences of the act or omission
complained of. [16] The doctors who attended to respondent Stephen are one in their prognosis that his chances of
walking again and performing basic body functions are nil. For the rest of his life, he will need continuous rehabilitation
and therapy to prevent further complications such as pneumonia, bladder and rectum

infection, renal failure, sepsis and severe bed sores, osteoporosis and fractures, and other spinal cord injury-related
conditions. He will be completely dependent on the care and support of his family. We thus affirm the award of
P23,461,062.00 for the life care cost of respondent Stephen Huang, based on his average monthly expense and the
actuarial computation of the remaining years that he is expected to live; and the conservative amount of
P10,000,000.00, as reduced by the trial court, for the loss or impairment of his earning capacity, [17] considering his age,
probable life expectancy, the state of his health, and his mental and physical condition before the accident. He was only
seventeen years old, nearly six feet tall and weighed 175 pounds. He was in fourth year high school, and a member of
the school varsity basketball team. He was also class president and editor-in-chief of the school annual. He had shown
very good leadership qualities. He was looking forward to his college life, having just passed the entrance examinations
of the University of the Philippines, De La Salle University, and the University of Asia and the Pacific. The University of
Sto. Tomas even offered him a chance to obtain an athletic scholarship, but the accident prevented him from attending
the basketball try-outs. Without doubt, he was an exceptional student. He excelled both in his academics and
extracurricular undertakings. He is intelligent and motivated, a go-getter, as testified by Francisco Lopez, respondent
Stephen Huang’s godfather and a bank executive. *18+ Had the accident not happened, he had a rosy future ahead of
him. He wanted to embark on a banking career, get married and raise children. Taking into account his outstanding
abilities, he would have enjoyed a successful professional career in banking. But, as Mr. Lopez stated, it is highly unlikely
for someone like respondent to ever secure a job in a bank. To his knowledge, no bank has ever hired a person suffering
with

the kind of disability as Stephen Huang’s. *19+

We likewise uphold the award of moral and exemplary damages and attorney’s fees.

“The award of moral damages is aimed at a restoration, within the limits of the possible, of the spiritual status quo
ante.” *20+ Moral damages are designed to compensate 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. Although incapable of pecuniary computation, they must be proportionate to the
suffering inflicted. [21] The amount of the award bears no relation whatsoever with the wealth or means of the
offender.
In the instant case, respondent Stephen Huang and respondent spouses Richard and Carmen Huang testified to the
intense suffering they continue to experience as a result of the accident. Stephen recounted the nightmares and
traumas he suffers almost every night when he relives the accident. He also gets depression when he thinks of his bleak
future. He feels frustration and embarrassment in needing to be helped with almost everything and in his inability to do
simple things he used to do. Similarly, respondent spouses and the rest of the family undergo their own private
suffering. They live with the day-to-day uncertainty of respondent Stephen Huang’s condition. They know that the
chance of full recovery is nil. Moreover, respondent Stephen Huang’s paralysis has made him prone to many other
illnesses. His family, especially respondent spouses, have to make themselves available for Stephen twenty-four hours a
day. They have patterned their daily life around taking care of him, ministering to his daily needs, altering the lifestyle to
which they had been accustomed.

Respondent Carmen Huang’s brother testified on the insensitivity of petitioner Mercury Drug towards the plight of
respondent. Stephen, viz.:

Maybe words cannot describe the anger that we feel towards the defendants. All the time that we were going through
the crisis, there was none (sic) a single sign of nor offer of help, any consolation or anything whatsoever. It is funny
because, you know, I have many colleagues, business associates, people even as far as United States, Japan, that I
probably met only once, when they found out, they make a call, they sent card, they write small notes, but from the
defendant, absolute silence. They didn’t care, and worst, you know, this is a company that have (sic) all the resources to
help us. They were (sic) on our part, it was doubly painful because we have no choice but to go back to them and buy
the medicines that we need for Stephen. So, I don’t know how someone will really have no sense of decency at all to at
least find out what happened to my son, what is his condition, or if there is anything that they can do to help us. [22]

On the matter of exemplary damages, Art. 2231 of the Civil Code provides that in cases of quasi-delicts, exemplary
damages may be granted if the defendant acted with gross negligence. The records show that at the time of the
accident, petitioner Del Rosario was driving without a license because he was previously ticketed for reckless driving.
The evidence also shows that he failed to step on his brakes immediately after the impact. Had petitioner Del Rosario
done so, the injuries which respondent Stephen sustained could have been greatly reduced. Wanton acts such as that
committed by petitioner Del Rosario need be suppressed; and employers like petitioner Mercury Drug should be more
circumspect in the observance of due diligence in the selection and supervision of their employees. The award of
exemplary damages in favor of the respondents is therefore justified.

With the award of exemplary damages, we also affirm the grant of attorney’s fees to respondents. [23] In addition,
attorney’s fees may be granted when a party is compelled to litigate or incur expenses to protect his interest by reason
of an unjustified act of the other party. [24]

Cost against petitioners.

IN VIEW THEREOF, the petition is DENIED. The Decision and Resolution of the Court of Appeals dated February 16, 2006
and March 30, 2006, respectively, in CA-G.R. CV No. 83981, are AFFIRMED.

SO ORDERED. REYNATO S. PUNO

Chief Justice

C. STATE

Manila

EN BANC

G.R. No. L-11154 March 21, 1916

E. MERRITT, plaintiff-appellant,

vs.

GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant.

Crossfield and O'Brien for plaintiff.

Attorney-General Avanceña for defendant..

TRENT, J.:

This is an appeal by both parties from a judgment of the Court of First Instance of the city of Manila in favor of the
plaintiff for the sum of P14,741, together with the costs of the cause.

Counsel for the plaintiff insist that the trial court erred (1) "in limiting the general damages which the plaintiff suffered
to P5,000, instead of P25,000 as claimed in the complaint," and (2) "in limiting the time when plaintiff was entirely
disabled to two months and twenty-one days and fixing the damage accordingly in the sum of P2,666, instead of P6,000
as claimed by plaintiff in his complaint."

The Attorney-General on behalf of the defendant urges that the trial court erred: (a) in finding that the collision between
the plaintiff's motorcycle and the ambulance of the General Hospital was due to the negligence of the chauffeur; (b) in
holding that the Government of the Philippine Islands is liable for the damages sustained by the plaintiff as a result of
the collision, even if it be true that the collision was due to the negligence of the chauffeur; and (c) in rendering
judgment against the defendant for the sum of P14,741.

The trial court's findings of fact, which are fully supported by the record, are as follows:

It is a fact not disputed by counsel for the defendant that when the plaintiff, riding on a motorcycle, was going toward
the western part of Calle Padre Faura, passing along the west side thereof at a speed of ten to twelve miles an hour,
upon crossing Taft Avenue and when he was ten feet from the southwestern intersection of said streets, the General
Hospital ambulance, upon reaching said avenue, instead of turning toward the south, after passing the center thereof,
so that it would be on the left side of said avenue, as is prescribed by the ordinance and the Motor Vehicle Act, turned
suddenly and unexpectedly and long before reaching the center of the street, into the right side of Taft Avenue, without
having sounded any whistle or horn, by which movement it struck the plaintiff, who was already six feet from the
southwestern point or from the post place there.

By reason of the resulting collision, the plaintiff was so severely injured that, according to Dr. Saleeby, who examined
him on the very same day that he was taken to the General Hospital, he was suffering from a depression in the left
parietal region, a would in the same place and in the back part of his head, while blood issued from his nose and he was
entirely unconscious.

The marks revealed that he had one or more fractures of the skull and that the grey matter and brain was had suffered
material injury. At ten o'clock of the night in question, which was the time set for performing the operation, his pulse
was so weak and so irregular that, in his opinion, there was little hope that he would live. His right leg was broken in
such a way that the fracture extended to the outer skin in such manner that it might be regarded as double and the
would be exposed to infection, for which reason it was of the most serious nature.

At another examination six days before the day of the trial, Dr. Saleeby noticed that the plaintiff's leg showed a
contraction of an inch and a half and a curvature that made his leg very weak and painful at the point of the fracture.
Examination of his head revealed a notable readjustment of the functions of the brain and nerves. The patient
apparently was slightly deaf, had a light weakness in his eyes and in his mental condition. This latter weakness was
always noticed when the plaintiff had to do any difficult mental labor, especially when he attempted to use his money
for mathematical calculations.

According to the various merchants who testified as witnesses, the plaintiff's mental and physical condition prior to the
accident was excellent, and that after having received the injuries that have been discussed, his physical condition had
undergone a noticeable depreciation, for he had lost the agility, energy, and ability that he had constantly displayed
before the accident as one of the best constructors of wooden buildings and he could not now earn even a half of the
income that he had secured for his work because he had lost 50 per cent of his efficiency. As a contractor, he could no
longer, as he had before done, climb up ladders and scaffoldings to reach the highest parts of the building.

As a consequence of the loss the plaintiff suffered in the efficiency of his work as a contractor, he had to dissolved the
partnership he had formed with the engineer. Wilson, because he was incapacitated from making mathematical
calculations on account of the condition of his leg and of his mental faculties, and he had to give up a contract he had for
the construction of the Uy Chaco building."

We may say at the outset that we are in full accord with the trial court to the effect that the collision between the
plaintiff's motorcycle and the ambulance of the General Hospital was due solely to the negligence of the chauffeur.
The two items which constitute a part of the P14,741 and which are drawn in question by the plaintiff are (a) P5,000, the
award awarded for permanent injuries, and (b) the P2,666, the amount allowed for the loss of wages during the time the
plaintiff was incapacitated from pursuing his occupation. We find nothing in the record which would justify us in
increasing the amount of the first. As to the second, the record shows, and the trial court so found, that the plaintiff's
services as a contractor were worth P1,000 per month. The court, however, limited the time to two months and twenty-
one days, which the plaintiff was actually confined in the hospital. In this we think there was error, because it was clearly
established that the plaintiff was wholly incapacitated for a period of six months. The mere fact that he remained in the
hospital only two months and twenty-one days while the remainder of the six months was spent in his home, would not
prevent recovery for the whole time. We, therefore, find that the amount of damages sustained by the plaintiff, without
any fault on his part, is P18,075.

As the negligence which caused the collision is a tort committed by an agent or employee of the Government, the
inquiry at once arises whether the Government is legally-liable for the damages resulting therefrom.

Act No. 2457, effective February 3, 1915, reads:

An Act authorizing E. Merritt to bring suit against the Government of the Philippine Islands and authorizing the Attorney-
General of said Islands to appear in said suit.

Whereas a claim has been filed against the Government of the Philippine Islands by Mr. E. Merritt, of Manila, for
damages resulting from a collision between his motorcycle and the ambulance of the General Hospital on March twenty-
fifth, nineteen hundred and thirteen;

Whereas it is not known who is responsible for the accident nor is it possible to determine the amount of damages, if
any, to which the claimant is entitled; and

Whereas the Director of Public Works and the Attorney-General recommended that an Act be passed by the Legislature
authorizing Mr. E. Merritt to bring suit in the courts against the Government, in order that said questions may be
decided: Now, therefore,

By authority of the United States, be it enacted by the Philippine Legislature, that:

SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First Instance of the city of Manila against the
Government of the Philippine Islands in order to fix the responsibility for the collision between his motorcycle and the
ambulance of the General Hospital, and to determine the amount of the damages, if any, to which Mr. E. Merritt is
entitled on account of said collision, and the Attorney-General of the Philippine Islands is hereby authorized and
directed to appear at the trial on the behalf of the Government of said Islands, to defendant said Government at the
same.

SEC. 2. This Act shall take effect on its passage.

Enacted, February 3, 1915.

Did the defendant, in enacting the above quoted Act, simply waive its immunity from suit or did it also concede its
liability to the plaintiff? If only the former, then it cannot be held that the Act created any new cause of action in favor of
the plaintiff or extended the defendant's liability to any case not previously recognized.

All admit that the Insular Government (the defendant) cannot be sued by an individual without its consent. It is also
admitted that the instant case is one against the Government. As the consent of the Government to be sued by the
plaintiff was entirely voluntary on its part, it is our duty to look carefully into the terms of the consent, and render
judgment accordingly.

The plaintiff was authorized to bring this action against the Government "in order to fix the responsibility for the
collision between his motorcycle and the ambulance of the General Hospital and to determine the amount of the
damages, if any, to which Mr. E. Merritt is entitled on account of said collision, . . . ." These were the two questions
submitted to the court for determination. The Act was passed "in order that said questions may be decided." We have
"decided" that the accident was due solely to the negligence of the chauffeur, who was at the time an employee of the
defendant, and we have also fixed the amount of damages sustained by the plaintiff as a result of the collision. Does the
Act authorize us to hold that the Government is legally liable for that amount? If not, we must look elsewhere for such
authority, if it exists.

The Government of the Philippine Islands having been "modeled after the Federal and State Governments in the United
States," we may look to the decisions of the high courts of that country for aid in determining the purpose and scope of
Act No. 2457.

In the United States the rule that the state is not liable for the torts committed by its officers or agents whom it employs,
except when expressly made so by legislative enactment, is well settled. "The Government," says Justice Story, "does not
undertake to guarantee to any person the fidelity of the officers or agents whom it employs, since that would involve it
in all its operations in endless embarrassments, difficulties and losses, which would be subversive of the public interest."
(Claussen vs. City of Luverne, 103 Minn., 491, citing U. S. vs. Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and Beers vs. States,
20 How., 527; 15 L. Ed., 991.)

In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover damages from the state for personal injuries
received on account of the negligence of the state officers at the state fair, a state institution created by the legislature
for the purpose of improving agricultural and kindred industries; to disseminate information calculated to educate and
benefit the industrial classes; and to advance by such means the material interests of the state, being objects similar to
those sought by the public school system. In passing upon the question of the state's liability for the negligent acts of its
officers or agents, the court said:

No claim arises against any government is favor of an individual, by reason of the misfeasance, laches, or unauthorized
exercise of powers by its officers or agents. (Citing Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs. State, 86 N. C., 51, 53; 41
Am. Rep., 440; Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Green vs. State, 73 Cal., 29; Bourn vs. Hart, 93
Cal., 321; 27 Am. St. Rep., 203; Story on Agency, sec. 319.)

As to the scope of legislative enactments permitting individuals to sue the state where the cause of action arises out of
either fort or contract, the rule is stated in 36 Cyc., 915, thus:

By consenting to be sued a state simply waives its immunity from suit. It does not thereby concede its liability to
plaintiff, or create any cause of action in his favor, or extend its liability to any cause not previously recognized. It merely
gives a remedy to enforce a preexisting liability and submits itself to the jurisdiction of the court, subject to its right to
interpose any lawful defense.

In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16, 1915, the Act of 1913, which authorized the
bringing of this suit, read:

SECTION 1. Authority is hereby given to George Apfelbacher, of the town of Summit, Waukesha County, Wisconsin, to
bring suit in such court or courts and in such form or forms as he may be advised for the purpose of settling and
determining all controversies which he may now have with the State of Wisconsin, or its duly authorized officers and
agents, relative to the mill property of said George Apfelbacher, the fish hatchery of the State of Wisconsin on the Bark
River, and the mill property of Evan Humphrey at the lower end of Nagawicka Lake, and relative to the use of the waters
of said Bark River and Nagawicka Lake, all in the county of Waukesha, Wisconsin.

In determining the scope of this act, the court said:

Plaintiff claims that by the enactment of this law the legislature admitted liability on the part of the state for the acts of
its officers, and that the suit now stands just as it would stand between private parties. It is difficult to see how the act
does, or was intended to do, more than remove the state's immunity from suit. It simply gives authority to commence
suit for the purpose of settling plaintiff's controversies with the estate. Nowhere in the act is there a whisper or
suggestion that the court or courts in the disposition of the suit shall depart from well established principles of law, or
that the amount of damages is the only question to be settled. The act opened the door of the court to the plaintiff. It
did not pass upon the question of liability, but left the suit just where it would be in the absence of the state's immunity
from suit. If the Legislature had intended to change the rule that obtained in this state so long and to declare liability on
the part of the state, it would not have left so important a matter to mere inference, but would have done so in express
terms. (Murdock Grate Co. vs. Commonwealth, 152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)

In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, relied upon and considered, are as follows:
All persons who have, or shall hereafter have, claims on contract or for negligence against the state not allowed by the
state board of examiners, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon
against the state in any of the courts of this state of competent jurisdiction, and prosecute the same to final judgment.
The rules of practice in civil cases shall apply to such suits, except as herein otherwise provided.

And the court said:

This statute has been considered by this court in at least two cases, arising under different facts, and in both it was held
that said statute did not create any liability or cause of action against the state where none existed before, but merely
gave an additional remedy to enforce such liability as would have existed if the statute had not been enacted. (Chapman
vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Melvin vs. State, 121 Cal., 16.)

A statute of Massachusetts enacted in 1887 gave to the superior court "jurisdiction of all claims against the
commonwealth, whether at law or in equity," with an exception not necessary to be here mentioned. In construing this
statute the court, in Murdock Grate Co. vs. Commonwealth (152 Mass., 28), said:

The statute we are discussing disclose no intention to create against the state a new and heretofore unrecognized class
of liabilities, but only an intention to provide a judicial tribunal where well recognized existing liabilities can be
adjudicated.

In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had, by the terms of the statute of New York,
jurisdiction of claims for damages for injuries in the management of the canals such as the plaintiff had sustained, Chief
Justice Ruger remarks: "It must be conceded that the state can be made liable for injuries arising from the negligence of
its agents or servants, only by force of some positive statute assuming such liability."

It being quite clear that Act No. 2457 does not operate to extend the Government's liability to any cause not previously
recognized, we will now examine the substantive law touching the defendant's liability for the negligent acts of its
officers, agents, and employees. Paragraph 5 of article 1903 of the Civil Code reads:

The state is liable in this sense when it acts through a special agent, but not when the damage should have been caused
by the official to whom properly it pertained to do the act performed, in which case the provisions of the preceding
article shall be applicable.

The supreme court of Spain in defining the scope of this paragraph said:

That the obligation to indemnify for damages which a third person causes to another by his fault or negligence is based,
as is evidenced by the same Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or negligence, takes
part in the act or omission of the third party who caused the damage. It follows therefrom that the state, by virtue of
such provisions of law, is not responsible for the damages suffered by private individuals in consequence of acts
performed by its employees in the discharge of the functions pertaining to their office, because neither fault nor even
negligence can be presumed on the part of the state in the organization of branches of public service and in the
appointment of its agents; on the contrary, we must presuppose all foresight humanly possible on its part in order that
each branch of service serves the general weal an that of private persons interested in its operation. Between these
latter and the state, therefore, no relations of a private nature governed by the civil law can arise except in a case where
the state acts as a judicial person capable of acquiring rights and contracting obligations. (Supreme Court of Spain,
January 7, 1898; 83 Jur. Civ., 24.)

That the Civil Code in chapter 2, title 16, book 4, regulates the obligations which arise out of fault or negligence; and
whereas in the first article thereof. No. 1902, where the general principle is laid down that where a person who by an
act or omission causes damage to another through fault or negligence, shall be obliged to repair the damage so done,
reference is made to acts or omissions of the persons who directly or indirectly cause the damage, the following articles
refers to this persons and imposes an identical obligation upon those who maintain fixed relations of authority and
superiority over the authors of the damage, because the law presumes that in consequence of such relations the evil
caused by their own fault or negligence is imputable to them. This legal presumption gives way to proof, however,
because, as held in the last paragraph of article 1903, responsibility for acts of third persons ceases when the persons
mentioned in said article prove that they employed all the diligence of a good father of a family to avoid the damage,
and among these persons, called upon to answer in a direct and not a subsidiary manner, are found, in addition to the
mother or the father in a proper case, guardians and owners or directors of an establishment or enterprise, the state,
but not always, except when it acts through the agency of a special agent, doubtless because and only in this case, the
fault or negligence, which is the original basis of this kind of objections, must be presumed to lie with the state.

That although in some cases the state might by virtue of the general principle set forth in article 1902 respond for all the
damage that is occasioned to private parties by orders or resolutions which by fault or negligence are made by branches
of the central administration acting in the name and representation of the state itself and as an external expression of its
sovereignty in the exercise of its executive powers, yet said article is not applicable in the case of damages said to have
been occasioned to the petitioners by an executive official, acting in the exercise of his powers, in proceedings to
enforce the collections of certain property taxes owing by the owner of the property which they hold in sublease.

That the responsibility of the state is limited by article 1903 to the case wherein it acts through a special agent (and a
special agent, in the sense in which these words are employed, is one who receives a definite and fixed order or
commission, foreign to the exercise of the duties of his office if he is a special official) so that in representation of the
state and being bound to act as an agent thereof, he executes the trust confided to him. This concept does not apply to
any executive agent who is an employee of the acting administration and who on his own responsibility performs the
functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations."
(Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.)

That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in a decision, among others,
of the 18th of May, 1904, in a damage case, the responsibility of the state is limited to that which it contracts through a
special agent, duly empowered by a definite order or commission to perform some act or charged with some definite
purpose which gives rise to the claim, and not where the claim is based on acts or omissions imputable to a public
official charged with some administrative or technical office who can be held to the proper responsibility in the manner
laid down by the law of civil responsibility. Consequently, the trial court in not so deciding and in sentencing the said
entity to the payment of damages, caused by an official of the second class referred to, has by erroneous interpretation
infringed the provisions of articles 1902 and 1903 of the Civil Code. (Supreme Court of Spain, July 30, 1911; 122 Jur. Civ.,
146.)

It is, therefore, evidence that the State (the Government of the Philippine Islands) is only liable, according to the above
quoted decisions of the Supreme Court of Spain, for the acts of its agents, officers and employees when they act as
special agents within the meaning of paragraph 5 of article 1903, supra, and that the chauffeur of the ambulance of the
General Hospital was not such an agent.

For the foregoing reasons, the judgment appealed from must be reversed, without costs in this instance. Whether the
Government intends to make itself legally liable for the amount of damages above set forth, which the plaintiff has
sustained by reason of the negligent acts of one of its employees, by legislative enactment and by appropriating
sufficient funds therefor, we are not called upon to determine. This matter rests solely with the Legislature and not with
the courts.

Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.

G.R. No. L-1120 August 31, 1948

INOCENCIO ROSETE, petitioner,

vs.

THE AUDITOR GENERAL, respondent.

This is an appeal from the decision of the Insular Auditor denying the claim of Inocencio Rosete and others against the
Government in the amount of P35,376, for damages caused to buildings belonging to the claimant, which according to
the appellant's claim were destroyed by fire that came from the contiguous warehouse of the Emergency Control
Administration, ECA, located at No. 2262 Azcarraga, due to the negligence of a certain Jose Frayno y Panlilio in igniting
recklessly his cigarette-lighter near a five gallon drum into which gasoline was being drained, and of the officers of the
said ECA, which is an office or agency of the Government, in storing gasoline in said warehouse contrary to the
provisions of Ordinances of the City of Manila.

It is not necessary for us to pass upon the facts alleged by the appellant, but only on the question whether, assuming
them to be true, the Insular Auditor erred in denying or dismissing the appellant's claim.

The claimant contends that the Auditor General erred in not finding that the government agency or instrumentality
known as the Emergency Control Administration of the officers thereof, were guilty of negligence in storing a highly
combustible and inflammable substance in its warehouse on bodega in Manila in violation of City Ordinances, and
therefore the government is liable for the damages sustained by the claimant under article 1903 of the Civil Code, which
in its pertinent part reads as follows:

ART. 1903. The obligation imposed by the preceding article is enforceable not only for personal acts and omissions but
also for those persons for whom another is responsible.

The state is liable in the scene when it acts through a special agent, but not when the damage should have been caused
by the official to whom it properly pertained to do the act performed, in which case the provisions of the preceding
article shall be applicable.

In the case of Merritt vs. Government of the Philippine Islands (34 Phil., 311), this Court held the following:

. . . Paragraph 5 of article 1903 of the Civil Code reads:

"The state is liable in this sense when it acts through a special agent, but not when the damage should have been caused
by the official to whom properly it pertained to do the act performed, in which cast the provisions of the preceding
article shall be applicable."

The supreme court of Spain in defining the scope of this paragraph said:

"That the obligation to indemnify for damages which a third person causes to another by his fault or negligence is based,
as is evidenced by the same Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or negligence, takes
part in the act or omission of the third party who caused the damage. It follows therefrom that the state, by virtue of
such provisions of law, is not responsible for the damage suffered by private individuals in consequence of acts
performed by its employees in the discharge of the functions pertaining to their office, because neither fault nor even
negligence can be presumed on the part of the state in the organization of branches of the public service and the
appointment of its agents; on the contrary, we must presuppose all foresight humanly possible on its part in order that
each branch of service serves the general weal and that of private persons interested in its operation. Between these
latter and the state, therefore, no relations of a private nature governed by the civil law can arise except in a case where
the state acts as a judicial person capable of acquiring rights and contracting obligations." (Supreme Court of Spain,
January 7, 1898; 83 Jur. Civ., 24.).

"That the responsibility of the state is limited by article 1903 to the case wherein it acts through a special agent (and a
special agent, in the sense in which these words are employed, is one who receives a definite and fixed order or
commission, foreign to the exercise of the duties of his office if he is a special official) so that in representation of the
state and being bound to act as an agent thereof, he executes the trust confided to him. This concept does not apply to
any executive agent who is an employee of the active administration and who on his own responsibility performs the
functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations."
(Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.).

"That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in a decision, among others,
of the 18th of May, 1904, in a damage case, the responsibility of the state is limited to that which it contracts through a
special agent, duly empowered by a definite order or commission to perform some act or charged with some definite
purpose which gives rise to the claim, and not where the claim is based on acts or omissions imputable to a public
official charged with some administrative or technical office who can be held to the proper responsibility. Consequently,
the trial court in not so deciding and in sentencing the said entity to the payment of damages, caused by an official of
the second class referred to, has by erroneous interpretation infringed the provisions of article 1902 and 1903 of the
Civil Code.' (Supreme Court of Spain, July 30, 1911; 122 Jur. Civ., 146.)"

There being no showing that whatever negligence may be imputed to the Emergency Control Administration or its
officers, was done by an special agent, because the officers of the Emergency Control Administration did not act as
special agents of the government within the above defined meaning of that word in article 1903 of the Civil Code in
storing gasoline in warehouse of the ECA, the government is not responsible for the damages caused through such
negligence.

The case of Marine Trading vs. Government, 39 Phil., 29, cited by the appellant, is inapplicable, because the plaintiff in
that case recovered under the special provisions of articles 862, 827, 828 and 830 of the Code of Commerce and the
Philippine Marine Regulations of the Collector of Customs, regarding collision of vessels, and not on the ground of tort in
general provided for in article 1903 of the Civil Code.

Act No. 327, in authorizing the filing of claims against the Government with the Insular Auditor, and appeal by the
private persons or entities from the latter's decision to the Supreme Court, does not make any and all claims against the
Government allowable, and the latter responsible for all claims which may be filed with the Insular Auditor under the
provisions of said Act.

In view of the foregoing, the decision appealed from is affirmed.

G.R. No. L-55963 December 1, 1989

SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA, petitioners,

vs.

HONORABLE INOCENCIO D. MALIAMAN and NATIONAL IRRIGATION ADMINISTRATION, respondents.

G.R. No. L-61045 December 1, 1989

NATIONAL IRRIGATION ADMINISTRATION, appellant,

vs.

SPOUSES JOSE FONTANILLA and VIRGINIA FONTANILLA, appellees.

PARAS, J.:

In G.R. No. L-55963, the petition for review on certiorari seeks the affirmance of the decision dated March 20, 1980 of
the then Court of First Instance of Nueva Ecija, Branch VIII, at San Jose City and its modification with respect to the
denial of petitioner's claim for moral and exemplary damages and attorneys fees.

In G.R. No. 61045, respondent National Irrigation Administration seeks the reversal of the aforesaid decision of the
lower court. The original appeal of this case before the Court of Appeals was certified to this Court and in the resolution
of July 7, 1982, it was docketed with the aforecited number. And in the resolution of April 3, this case was consolidated
with G.R. No. 55963.

It appears that on August 21, 1976 at about 6:30 P.M., a pickup owned and operated by respondent National Irrigation
Administration, a government agency bearing Plate No. IN-651, then driven officially by Hugo Garcia, an employee of
said agency as its regular driver, bumped a bicycle ridden by Francisco Fontanilla, son of herein petitioners, and
Restituto Deligo, at Maasin, San Jose City along the Maharlika Highway. As a result of the impact, Francisco Fontanilla
and Restituto Deligo were injured and brought to the San Jose City Emergency Hospital for treatment. Fontanilla was
later transferred to the Cabanatuan Provincial Hospital where he died.

Garcia was then a regular driver of respondent National Irrigation Administration who, at the time of the accident, was a
licensed professional driver and who qualified for employment as such regular driver of respondent after having passed
the written and oral examinations on traffic rules and maintenance of vehicles given by National Irrigation
Administration authorities.

The within petition is thus an off-shot of the action (Civil Case No. SJC-56) instituted by petitioners-spouses on April 17,
1978 against respondent NIA before the then Court of First Instance of Nueva Ecija, Branch VIII at San Jose City, for
damages in connection with the death of their son resulting from the aforestated accident.

After trial, the trial court rendered judgment on March 20, 1980 which directed respondent National Irrigation
Administration to pay damages (death benefits) and actual expenses to petitioners. The dispositive portion of the
decision reads thus:

. . . . . Judgment is here rendered ordering the defendant National Irrigation Administration to pay to the heirs of the
deceased P12,000.00 for the death of Francisco Fontanilla; P3,389.00 which the parents of the deceased had spent for
the hospitalization and burial of the deceased Francisco Fontanilla; and to pay the costs. (Brief for the petitioners
spouses Fontanilla, p. 4; Rollo, p. 132)

Respondent National Irrigation Administration filed on April 21, 1980, its motion for reconsideration of the aforesaid
decision which respondent trial court denied in its Order of June 13, 1980. Respondent National Irrigation
Administration thus appealed said decision to the Court of Appeals (C.A.-G.R. No. 67237- R) where it filed its brief for
appellant in support of its position.

Instead of filing the required brief in the aforecited Court of Appeals case, petitioners filed the instant petition with this
Court.

The sole issue for the resolution of the Court is: Whether or not the award of moral damages, exemplary damages and
attorney's fees is legally proper in a complaint for damages based on quasi-delict which resulted in the death of the son
of herein petitioners.

Petitioners allege:

1. The award of moral damages is specifically allowable. under paragraph 3 of Article 2206 of the New Civil Code which
provides that the spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased. Should moral damages be granted, the award
should be made to each of petitioners-spouses individually and in varying amounts depending upon proof of mental and
depth of intensity of the same, which should not be less than P50,000.00 for each of them.

2. The decision of the trial court had made an impression that respondent National Irrigation Administration acted with
gross negligence because of the accident and the subsequent failure of the National Irrigation Administration personnel
including the driver to stop in order to give assistance to the, victims. Thus, by reason of the gross negligence of
respondent, petitioners become entitled to exemplary damages under Arts. 2231 and 2229 of the New Civil Code.

3. Petitioners are entitled to an award of attorney's fees, the amount of which (20%) had been sufficiently established in
the hearing of May 23, 1979.

4. This petition has been filed only for the purpose of reviewing the findings of the lower court upon which the
disallowance of moral damages, exemplary damages and attorney's fees was based and not for the purpose of
disturbing the other findings of fact and conclusions of law.

The Solicitor General, taking up the cudgels for public respondent National Irrigation Administration, contends thus:

1. The filing of the instant petition is rot proper in view of the appeal taken by respondent National Irrigation
Administration to the Court of Appeals against the judgment sought to be reviewed. The focal issue raised in
respondent's appeal to the Court of Appeals involves the question as to whether or not the driver of the vehicle that
bumped the victims was negligent in his operation of said vehicle. It thus becomes necessary that before petitioners'
claim for moral and exemplary damages could be resolved, there should first be a finding of negligence on the part of
respondent's employee-driver. In this regard, the Solicitor General alleges that the trial court decision does not
categorically contain such finding.

2. The filing of the "Appearance and Urgent Motion For Leave to File Plaintiff-Appellee's Brief" dated December 28, 1981
by petitioners in the appeal (CA-G.R. No. 67237-R; and G. R. No.61045) of the respondent National Irrigation
Administration before the Court of Appeals, is an explicit admission of said petitioners that the herein petition, is not
proper. Inconsistent procedures are manifest because while petitioners question the findings of fact in the Court of
Appeals, they present only the questions of law before this Court which posture confirms their admission of the facts.

3. The fact that the parties failed to agree on whether or not negligence caused the vehicular accident involves a
question of fact which petitioners should have brought to the Court of Appeals within the reglementary period. Hence,
the decision of the trial court has become final as to the petitioners and for this reason alone, the petition should be
dismissed.

4. Respondent Judge acted within his jurisdiction, sound discretion and in conformity with the law.

5. Respondents do not assail petitioners' claim to moral and exemplary damages by reason of the shock and subsequent
illness they suffered because of the death of their son. Respondent National Irrigation Administration, however, avers
that it cannot be held liable for the damages because it is an agency of the State performing governmental functions and
driver Hugo Garcia was a regular driver of the vehicle, not a special agent who was performing a job or act foreign to his
usual duties. Hence, the liability for the tortious act should. not be borne by respondent government agency but by
driver Garcia who should answer for the consequences of his act.

6. Even as the trial court touched on the failure or laxity of respondent National Irrigation Administration in exercising
due diligence in the selection and supervision of its employee, the matter of due diligence is not an issue in this case
since driver Garcia was not its special agent but a regular driver of the vehicle.

The sole legal question on whether or not petitioners may be entitled to an award of moral and exemplary damages and
attorney's fees can very well be answered with the application of Arts. 2176 and 2180 of theNew Civil Code.

Art. 2176 thus provides:

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

Paragraphs 5 and 6 of Art. 21 80 read as follows:

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of
their assigned tasks, even the though the former are not engaged in any business or industry.

The State is responsible in like manner when it acts through a special agent.; but not when the damage has been caused
by the official to whom the task done properly pertains, in which case what is provided in Art. 2176 shall be applicable.

The liability of the State has two aspects. namely:

1. Its public or governmental aspects where it is liable for the tortious acts of special agents only.

2. Its private or business aspects (as when it engages in private enterprises) where it becomes liable as an ordinary
employer. (p. 961, Civil Code of the Philippines; Annotated, Paras; 1986 Ed. ).

In this jurisdiction, the State assumes a limited liability for the damage caused by the tortious acts or conduct of its
special agent.

Under the aforequoted paragrah 6 of Art. 2180, the State has voluntarily assumed liability for acts done through special
agents. The State's agent, if a public official, must not only be specially commissioned to do a particular task but that
such task must be foreign to said official's usual governmental functions. If the State's agent is not a public official, and is
commissioned to perform non-governmental functions, then the State assumes the role of an ordinary employer and
will be held liable as such for its agent's tort. Where the government commissions a private individual for a special
governmental task, it is acting through a special agent within the meaning of the provision. (Torts and Damages, Sangco,
p. 347, 1984 Ed.)
Certain functions and activities, which can be performed only by the government, are more or less generally agreed to
be "governmental" in character, and so the State is immune from tort liability. On the other hand, a service which might
as well be provided by a private corporation, and particularly when it collects revenues from it, the function is
considered a "proprietary" one, as to which there may be liability for the torts of agents within the scope of their
employment.

The National Irrigation Administration is an agency of the government exercising proprietary functions, by express
provision of Rep. Act No. 3601. Section 1 of said Act provides:

Section 1. Name and domicile.-A body corporate is hereby created which shall be known as the National Irrigation
Administration, hereinafter called the NIA for short, which shall be organized immediately after the approval of this Act.
It shall have its principal seat of business in the City of Manila and shall have representatives in all provinces for the
proper conduct of its business.

Section 2 of said law spells out some of the NIA's proprietary functions. Thus-

Sec. 2. Powers and objectives.-The NIA shall have the following powers and objectives:

(c) To collect from the users of each irrigation system constructed by it such fees as may be necessary to finance the
continuous operation of the system and reimburse within a certain period not less than twenty-five years cost of
construction thereof; and

(d) To do all such other tthings and to transact all such business as are directly or indirectly necessary, incidental or
conducive to the attainment of the above objectives.

Indubitably, the NIA is a government corporation with juridical personality and not a mere agency of the government.
Since it is a corporate body performing non-governmental functions, it now becomes liable for the damage caused by
the accident resulting from the tortious act of its driver-employee. In this particular case, the NIA assumes the
responsibility of an ordinary employer and as such, it becomes answerable for damages.

This assumption of liability, however, is predicated upon the existence of negligence on the part of respondent NIA. The
negligence referred to here is the negligence of supervision.

At this juncture, the matter of due diligence on the part of respondent NIA becomes a crucial issue in determining its
liability since it has been established that respondent is a government agency performing proprietary functions and as
such, it assumes the posture of an ordinary employer which, under Par. 5 of Art. 2180, is responsible for the damages
caused by its employees provided that it has failed to observe or exercise due diligence in the selection and supervision
of the driver.

It will be noted from the assailed decision of the trial court that "as a result of the impact, Francisco Fontanilla was
thrown to a distance 50 meters away from the point of impact while Restituto Deligo was thrown a little bit further
away. The impact took place almost at the edge of the cemented portion of the road." (Emphasis supplied,) [page 26,
Rollo]

The lower court further declared that "a speeding vehicle coming in contact with a person causes force and impact upon
the vehicle that anyone in the vehicle cannot fail to notice. As a matter of fact, the impact was so strong as shown by the
fact that the vehicle suffered dents on the right side of the radiator guard, the hood, the fender and a crack on the
radiator as shown by the investigation report (Exhibit "E"). (Emphasis supplied) [page 29, Rollo]

It should be emphasized that the accident happened along the Maharlika National Road within the city limits of San Jose
City, an urban area. Considering the fact that the victim was thrown 50 meters away from the point of impact, there is a
strong indication that driver Garcia was driving at a high speed. This is confirmed by the fact that the pick-up suffered
substantial and heavy damage as above-described and the fact that the NIA group was then "in a hurry to reach the
campsite as early as possible", as shown by their not stopping to find out what they bumped as would have been their
normal and initial reaction.

Evidently, there was negligence in the supervision of the driver for the reason that they were travelling at a high speed
within the city limits and yet the supervisor of the group, Ely Salonga, failed to caution and make the driver observe the
proper and allowed speed limit within the city. Under the situation, such negligence is further aggravated by their desire
to reach their destination without even checking whether or not the vehicle suffered damage from the object it
bumped, thus showing imprudence and reckelessness on the part of both the driver and the supervisor in the group.

Significantly, this Court has ruled that even if the employer can prove the diligence in the selection and supervision (the
latter aspect has not been established herein) of the employee, still if he ratifies the wrongful acts, or take no step to
avert further damage, the employer would still be liable. (Maxion vs. Manila Railroad Co., 44 Phil. 597).

Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus Co. (L-26810, August 31, 1970, 34 SCRA 618), this Court held that
a driver should be especially watchful in anticipation of others who may be using the highway, and his failure to keep a
proper look out for reasons and objects in the line to be traversed constitutes negligence.

Considering the foregoing, respondent NIA is hereby directed to pay herein petitioners-spouses the amounts of
P12,000.00 for the death of Francisco Fontanilla; P3,389.00 for hospitalization and burial expenses of the aforenamed
deceased; P30,000.00 as moral damages; P8,000.00 as exemplary damages and attorney's fees of 20% of the total
award.

SO ORDERED.

Padilla, Sarmiento and Regalado, JJ., concur.

Melencio- Herrera (Chairperson,), J., is on leave.

D. TEACHERS AND HEADS OF ACADEMIC ESTABLISHMENTS

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-47745 April 15, 1988

JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA PANTALEON A. AMADORA, JOSE A.
AMADORA III, LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA, VICENTE
A. AMADORA and MARIA TISCALINA A. AMADORA, petitioners

vs.

HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH SERGIO P. DLMASO JR., CELESTINO
DICON, ANIANO ABELLANA, PABLITO DAFFON thru his parents and natural guardians, MR. and MRS. NICANOR GUMBAN,
and ROLANDO VALENCIA, thru his guardian, A. FRANCISCO ALONSO, respondents.

Jose S. Amadora & Associates for petitioners.

Padilla Law Office for respondents.

Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where he would
ascend the stage and in the presence of his relatives and friends receive his high school diploma. These ceremonies were
scheduled on April 16, 1972. As it turned out, though, fate would intervene and deny him that awaited experience. On
April 13, 1972, while they were in the auditorium of their school, the Colegio de San Jose-Recoletos, a classmate, Pablito
Damon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The victim was only
seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the victim's
parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos, its
rector the high school principal, the dean of boys, and the physics teacher, together with Daffon and two other students,
through their respective parents. The complaint against the students was later dropped. After trial, the Court of First
Instance of Cebu held the remaining defendants liable to the plaintiffs in the sum of P294,984.00, representing death
compensation, loss of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and
attorney's fees . 3 On appeal to the respondent court, however, the decision was reversed and all the defendants were
completely absolved . 4

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the respondent
court found that Article 2180 was not applicable as the Colegio de San Jose-Recoletos was not a school of arts and trades
but an academic institution of learning. It also held that the students were not in the custody of the school at the time of
the incident as the semester had already ended, that there was no clear identification of the fatal gun and that in any
event the defendant, had exercised the necessary diligence in preventing the injury. 5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and while in its
auditorium was shot to death by Pablito Daffon, a classmate. On the implications and consequences of these facts, the
parties sharply disagree.

The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his
graduation; hence, he was then under the custody of the private respondents. The private respondents submit that
Alfredo Amadora had gone to the school only for the purpose of submitting his physics report and that he was no longer
in their custody because the semester had already ended.

There is also the question of the identity of the gun used which the petitioners consider important because of an earlier
incident which they claim underscores the negligence of the school and at least one of the private respondents. It is not
denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys, confiscated from Jose Gumban an
unlicensed pistol but later returned it to him without making a report to the principal or taking any further action . 6 As
Gumban was one of the companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners contend
that this was the same pistol that had been confiscated from Gumban and that their son would not have been killed if it
had not been returned by Damaso. The respondents say, however, that there is no proof that the gun was the same
firearm that killed Alfredo.

Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is invoked
by both parties in support of their conflicting positions. The pertinent part of this article reads as follows:

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and
students or apprentices so long as they remain in their custody.

Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit: Exconde v.
Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed in this opinion for a
better resolution of the case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended a Rizal
Day parade on instructions of the city school supervisor. After the parade, the boy boarded a jeep, took over its wheel
and drove it so recklessly that it turned turtle, resulting in the death of two of its passengers. Dante was found guilty of
double homicide with reckless imprudence. In the separate civil action flied against them, his father was held solidarily
liable with him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year
old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter dictum
(as it was not a party to the case) on the ground that it was riot a school of arts and trades. Justice J.B.L. Reyes, with
whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school authorities who should
be held liable Liability under this rule, he said, was imposed on (1) teachers in general; and (2) heads of schools of arts
and trades in particular. The modifying clause "of establishments of arts and trades" should apply only to "heads" and
not "teachers."

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor blade
during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the culprits parents
for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself had also not been sued
that the school was not liable because it was not an establishment of arts and trades. Moreover, the custody
requirement had not been proved as this "contemplates a situation where the student lives and boards with the
teacher, such that the control, direction and influences on the pupil supersede those of the parents." Justice J.B.L. Reyes
did not take part but the other members of the court concurred in this decision promulgated on May 30, 1960.
In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with fist blows in
the laboratory of the Manila Technical Institute. Although the wrongdoer — who was already of age — was not boarding
in the school, the head thereof and the teacher in charge were held solidarily liable with him. The Court declared
through Justice Teehankee:

The phrase used in the cited article — "so long as (the students) remain in their custody" — means the protective and
supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they
are at attendance in the school, including recess time. There is nothing in the law that requires that for such liability to
attach, the pupil or student who commits the tortious act must live and board in the school, as erroneously held by the
lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set
aside by the present decision.

This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in answer to the
dissenting opinion, that even students already of age were covered by the provision since they were equally in the
custody of the school and subject to its discipline. Dissenting with three others, 11 Justice Makalintal was for retaining
the custody interpretation in Mercado and submitted that the rule should apply only to torts committed by students not
yet of age as the school would be acting only in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that "since
the school involved at bar is a non-academic school, the question as to the applicability of the cited codal provision to
academic institutions will have to await another case wherein it may properly be raised."

This is the case.

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is sought to be held
liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic institution of
learning. The parties herein have also directly raised the question of whether or not Article 2180 covers even
establishments which are technically not schools of arts and trades, and, if so, when the offending student is supposed
to be "in its custody."

After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question
should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or
vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such
student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades,
it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers
in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is
the head thereof who shall be answerable. Following the canon of reddendo singula singulis "teachers" should apply to
the words "pupils and students" and "heads of establishments of arts and trades" to the word "apprentices."

The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said in part:

I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades and not to academic
ones. What substantial difference is there between them insofar as concerns the proper supervision and vice over their
pupils? It cannot be seriously contended that an academic teacher is exempt from the duty of watching that his pupils
do not commit a tort to the detriment of third Persons, so long as they are in a position to exercise authority and
Supervision over the pupil. In my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in
Art. 1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of
establishments." The phrase is only an updated version of the equivalent terms "preceptores y artesanos" used in the
Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some culpa in vigilando
that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem clear that
where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be
the one answerable for the torts committed while under his custody, for the very reason/that the parent is not
supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the
child is under instruction. And if there is no authority, there can be no responsibility.

There is really no substantial distinction between the academic and the non-academic schools insofar as torts
committed by their students are concerned. The same vigilance is expected from the teacher over the students under
his control and supervision, whatever the nature of the school where he is teaching. The suggestion in the Exconde and
Mercado Cases is that the provision would make the teacher or even the head of the school of arts and trades liable for
an injury caused by any student in its custody but if that same tort were committed in an academic school, no liability
would attach to the teacher or the school head. All other circumstances being the same, the teacher or the head of the
academic school would be absolved whereas the teacher and the head of the non-academic school would be held liable,
and simply because the latter is a school of arts and trades.

The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the basis only
of the nature of their respective schools. There does not seem to be any plausible reason for relaxing that vigilance
simply because the school is academic in nature and for increasing such vigilance where the school is non-academic.
Notably, the injury subject of liability is caused by the student and not by the school itself nor is it a result of the
operations of the school or its equipment. The injury contemplated may be caused by any student regardless of the
school where he is registered. The teacher certainly should not be able to excuse himself by simply showing that he is
teaching in an academic school where, on the other hand, the head would be held liable if the school were non-
academic.

These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the torts
committed by his students, why is it the head of the school only who is held liable where the injury is caused in a school
of arts and trades? And in the case of the academic or non- technical school, why not apply the rule also to the head
thereof instead of imposing the liability only on the teacher?

The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades exercised
a closer tutelage over his pupils than the head of the academic school. The old schools of arts and trades were engaged
in the training of artisans apprenticed to their master who personally and directly instructed them on the technique and
secrets of their craft. The head of the school of arts and trades was such a master and so was personally involved in the
task of teaching his students, who usually even boarded with him and so came under his constant control, supervision
and influence. By contrast, the head of the academic school was not as involved with his students and exercised only
administrative duties over the teachers who were the persons directly dealing with the students. The head of the
academic school had then (as now) only a vicarious relationship with the students. Consequently, while he could not be
directly faulted for the acts of the students, the head of the school of arts and trades, because of his closer ties with
them, could be so blamed.

It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and trades,
the consequent increase in their enrollment, and the corresponding diminution of the direct and personal contract of
their heads with the students. Article 2180, however, remains unchanged. In its present state, the provision must be
interpreted by the Court according to its clear and original mandate until the legislature, taking into account the charges
in the situation subject to be regulated, sees fit to enact the necessary amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of arts and
trades over the students. Is such responsibility co-extensive with the period when the student is actually undergoing
studies during the school term, as contended by the respondents and impliedly admitted by the petitioners themselves?

From a reading of the provision under examination, it is clear that while the custody requirement, to repeat Palisoc v.
Brillantes, does not mean that the student must be boarding with the school authorities, it does signify that the student
should be within the control and under the influence of the school authorities at the time of the occurrence of the
injury. This does not necessarily mean that such, custody be co-terminous with the semester, beginning with the start of
classes and ending upon the close thereof, and excluding the time before or after such period, such as the period of
registration, and in the case of graduating students, the period before the commencement exercises. In the view of the
Court, the student is in the custody of the school authorities as long as he is under the control and influence of the
school and within its premises, whether the semester has not yet begun or has already ended.

It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes
notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither should
such discipline be deemed ended upon the last day of classes notwithstanding that there may still be certain requisites
to be satisfied for completion of the course, such as submission of reports, term papers, clearances and the like. During
such periods, the student is still subject to the disciplinary authority of the school and cannot consider himself released
altogether from observance of its rules.
As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in
the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the
enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues.
Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his classmates
and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and subject to the
discipline of the school authorities under the provisions of Article 2180.

During all these occasions, it is obviously the teacher-in-charge who must answer for his students' torts, in practically the
same way that the parents are responsible for the child when he is in their custody. The teacher-in-charge is the one
designated by the dean, principal, or other administrative superior to exercise supervision over the pupils in the specific
classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher be physically
present and in a position to prevent it. Custody does not connote immediate and actual physical control but refers more
to the influence exerted on the child and the discipline instilled in him as a result of such influence. Thus, for the injuries
caused by the student, the teacher and not the parent shag be held responsible if the tort was committed within the
premises of the school at any time when its authority could be validly exercised over him.

In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the teacher or the
head of the school of arts and trades and not on the school itself. If at all, the school, whatever its nature, may be held
to answer for the acts of its teachers or even of the head thereof under the general principle of respondeat superior, but
then it may exculpate itself from liability by proof that it had exercised the diligence of a bonus paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held to
answer for the tort committed by the student. As long as the defendant can show that he had taken the necessary
precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Article 2180,
which also states that:

The responsibility treated of in this article shall cease when the Persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damages.

In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco parentis
for the law does not require that the offending student be of minority age. Unlike the parent, who wig be liable only if
his child is still a minor, the teacher is held answerable by the law for the act of the student under him regardless of the
student's age. Thus, in the Palisoc Case, liability attached to the teacher and the head of the technical school although
the wrongdoer was already of age. In this sense, Article 2180 treats the parent more favorably than the teacher.

The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in Palisoc that
the school may be unduly exposed to liability under this article in view of the increasing activism among the students
that is likely to cause violence and resulting injuries in the school premises. That is a valid fear, to be sure. Nevertheless,
it should be repeated that, under the present ruling, it is not the school that will be held directly liable. Moreover, the
defense of due diligence is available to it in case it is sought to be held answerable as principal for the acts or omission of
its head or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate
supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the
maintenance of discipline among them. In almost all cases now, in fact, these measures are effected through the
assistance of an adequate security force to help the teacher physically enforce those rules upon the students. Ms should
bolster the claim of the school that it has taken adequate steps to prevent any injury that may be committed by its
students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly answerable
for the damage caused by his students as long as they are in the school premises and presumably under his influence. In
this respect, the Court is disposed not to expect from the teacher the same measure of responsibility imposed on the
parent for their influence over the child is not equal in degree. Obviously, the parent can expect more obedience from
the child because the latter's dependence on him is greater than on the teacher. It need not be stressed that such
dependence includes the child's support and sustenance whereas submission to the teacher's influence, besides being
coterminous with the period of custody is usually enforced only because of the students' desire to pass the course. The
parent can instill more las discipline on the child than the teacher and so should be held to a greater accountability than
the teacher for the tort committed by the child.
And if it is also considered that under the article in question, the teacher or the head of the school of arts and trades is
responsible for the damage caused by the student or apprentice even if he is already of age — and therefore less
tractable than the minor — then there should all the more be justification to require from the school authorities less
accountability as long as they can prove reasonable diligence in preventing the injury. After all, if the parent himself is no
longer liable for the student's acts because he has reached majority age and so is no longer under the former's control,
there is then all the more reason for leniency in assessing the teacher's responsibility for the acts of the student.

Applying the foregoing considerations, the Court has arrived at the following conclusions:

1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-
Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school
auditorium to finish his physics experiment or merely to submit his physics report for what is important is that he was
there for a legitimate purpose. As previously observed, even the mere savoring of the company of his friends in the
premises of the school is a legitimate purpose that would have also brought him in the custody of the school authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the
teacher-in-charge as previously defined. Each of them was exercising only a general authority over the student body and
not the direct control and influence exerted by the teacher placed in charge of particular classes or sections and thus
immediately involved in its discipline. The evidence of the parties does not disclose who the teacher-in-charge of the
offending student was. The mere fact that Alfredo Amadora had gone to school that day in connection with his physics
report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of Alfredo's
killer.

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent in enforcing
discipline upon Daffon or that he had waived observance of the rules and regulations of the school or condoned their
non-observance. His absence when the tragedy happened cannot be considered against him because he was not
supposed or required to report to school on that day. And while it is true that the offending student was still in the
custody of the teacher-in-charge even if the latter was physically absent when the tort was committed, it has not been
established that it was caused by his laxness in enforcing discipline upon the student. On the contrary, the private
respondents have proved that they had exercised due diligence, through the enforcement of the school regulations, in
maintaining that discipline.

4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable especially in view of
the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and returned the
same later to him without taking disciplinary action or reporting the matter to higher authorities. While this was clearly
negligence on his part, for which he deserves sanctions from the school, it does not necessarily link him to the shooting
of Amador as it has not been shown that he confiscated and returned pistol was the gun that killed the petitioners' son.

5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under the article
because only the teacher or the head of the school of arts and trades is made responsible for the damage caused by the
student or apprentice. Neither can it be held to answer for the tort committed by any of the other private respondents
for none of them has been found to have been charged with the custody of the offending student or has been remiss in
the discharge of his duties in connection with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced that
none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo Amadora that resulted in the
latter's death at the auditorium of the Colegio de San Jose-Recoletos on April 13, 1972. While we deeply sympathize
with the petitioners over the loss of their son under the tragic circumstances here related, we nevertheless are unable to
extend them the material relief they seek, as a balm to their grief, under the law they have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.

Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Fernan, Padilla and Teehankee, C.J., JJ, took no part.

G.R. No. L-29025 October 4, 1971

Spouses MOISES P. PALISOC and BRIGIDA P. PALISOC, plaintiffs-appellants,

vs.

ANTONIO C. BRILLANTES and TEODOSIO V. VALENTON, owner and President, respectively, of a school of arts and trades,
known under the name and style of "Manila Technical Institute" (M.I.T.), VIRGILIO L. DAFFON and SANTIAGO M.
QUIBULUE, defendants-appellees.

Leovillo C. Agustin for plaintiffs-appellants. .

TEEHANKEE, J.:

An appeal in forma pauperis on pure questions of law from a decision of the Court of First Instance of Manila. .

Plaintiffs-appellants as parents of their sixteen-year old son, Dominador Palisoc, and a student in automotive mechanics
at the Manila Technical Institute, Quezon Boulevard, Manila, had filed on May 19, 1966, the action below for damages
arising from the death on March 10, 1966 of their son at the hands of a fellow student, defendant Virgilio L. Daffon, at
the laboratory room of the said Institute. .

Defendants, per the trial court's decision, are: "(T)he defendant Antonio C. Brillantes, at the time when the incident
which gave rise to his action occurred was a member of the Board of Directors of the institute; 1 the defendant Teodosio
Valenton, the president thereof; the defendant Santiago M. Quibulue, instructor of the class to which the deceased
belonged; and the defendant Virgilio L. Daffon, a fellow student of the deceased. At the beginning the Manila Technical
Institute was a single proprietorship, but lately on August 2, 1962, it was duly incorporated."

The facts that led to the tragic death of plaintiffs' son were thus narrated by the trial court: "(T)he deceased Dominador
Palisoc and the defendant Virgilio L. Daffon were classmates, and on the afternoon of March 10, 1966, between two and
three o'clock, they, together with another classmate Desiderio Cruz were in the laboratory room located on the ground
floor. At that time the classes were in recess. Desiderio Cruz and Virgilio L. Daffon were working on a machine while
Dominador Palisoc was merely looking on at them. Daffon made a remark to the effect that Palisoc was acting like a
foreman. Because of this remark Palisoc slapped slightly Daffon on the face. Daffon, in retaliation, gave Palisoc a strong
flat blow on the face, which was followed by other fist blows on the stomach. Palisoc retreated apparently to avoid the
fist blows, but Daffon followed him and both exchanged blows until Palisoc stumbled on an engine block which caused
him to fall face downward. Palisoc became pale and fainted. First aid was administered to him but he was not revived, so
he was immediately taken to a hospital. He never regained consciousness; finally he died. The foregoing is the substance
of the testimony of Desiderio Cruz, the lone witness to the incident."

The trial court expressly gave credence to this version of the incident, as testified to by the lone eyewitness, Desiderio
Cruz, a classmate of the protagonists, as that of a disinterested witness who "has no motive or reason to testify one way
or another in favor of any party" and rejected the self-exculpatory version of defendant Daffon denying that he had
inflicted any fist blows on the deceased. .

With the postmortem findings of Dr. Angelo Singian of the Manila Police Department who performed the autopsy re
"Cause of death: shock due to traumatic fracture of theribs (6th and 7th, left, contusion of the pancreas and stomach
with intra-gastric hemorrhage and slight subarachnoid hemorrhage on the brain," and his testimony that these internal
injuries of the deceased were caused "probably by strong fist blows," the trial court found defendant Daffon liable for
the quasi delict under Article 2176 of the Civil Code. 3 It held that "(T)he act, therefore, of the accused Daffon in giving
the deceased strong fistblows in the stomach which ruptured his internal organs and caused his death falls within the
purview of this article of the Code." 4

The trial court, however, absolved from liability the three other defendants-officials of the Manila Technical Institute, in
this wise:

... Their liabilities are based on the provisions of Article 2180 of the New Civil Code which reads:

Art. 2180. ... .

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and
students and apprentices, so long as they remain in their custody.
In the opinion of the Court, this article of the Code is not applicable to the case at bar, since this contemplates the
situation where the control or influence of the teachers and heads of school establishments over the conduct and
actions by the pupil supersedes those of the parents.

CIVIL LAW: DAMAGES ART 2180. NEW CIVIL CODE CONSTRUED: — The clause "so long as they remain in their custody"
contained in Article 2180 of the new civil code contemplated a situation where the pupil lives and boards with the
teacher, such that the control or influence on the pupil supersedes those of the parents. In those circumstances the
control or influence over the conduct and actions of the pupil as well as the responsibilities for their sort would pass
from the father and mother to the teachers. (Ciriaco L. Mercado, Petitioner vs. the Court of Appeals, Manuel
Quisumbing, Jr., et al., respondents, G.R. No. L-14862, May 30, 1960). 5

There is no evidence that the accused Daffon lived and boarded with his teacher or the other defendant officials of the
school. These defendants cannot therefore be made responsible for the tort of the defendant Daffon.

Judgment was therefore rendered by the trial court as follows:

1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs of the deceased Dominador Palisoc (a)
P6,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for
moral damages; (d) P10,000.00 for loss of earning power, considering that the deceased was only between sixteen and
seventeen years, and in good health when he died, and (e) P2,000.00 for attorney's fee, plus the costs of this action. .

2. Absolving the other defendants. .

3. Dismissing the defendants' counterclaim for lack of merit.

Plaintiffs' appeal raises the principal legal question that under the factual findings of the trial court, which are now
beyond review, the trial court erred in absolving the defendants-school officials instead of holding them jointly and
severally liable as tortfeasors, with defendant Daffon, for the damages awarded them as a result of their son's death.
The Court finds the appeal, in the main, to be meritorious. .

1. The lower court absolved defendants-school officials on the ground that the provisions of Article 2180, Civil Code,
which expressly hold "teachers or heads of establishments of arts and trades ... liable for damages caused by their pupils
and students and apprentices, so long as they remain in their custody," are not applicable to to the case at bar, since
"there is no evidence that the accused Daffon [who inflicted the fatal fistblows] 6 lived and boarded with his teacher or
the other defendants-officials of the school. These defendants cannot therefore be made responsible for the tort of the
defendant Daffon."

The lower court based its legal conclusion expressly on the Court's dictum in Mercado vs. Court of Appeals, 7 that "(I)t
would seem that the clause "so long as they remain in their custody," contemplates a situation where the pupil lives and
boards with the teacher, such that the control, direction and influence on the pupil supersedes those of the parents. In
these circumstances the control or influence over the conduct and actions of the pupil would pass from the father and
mother to the teacher; and so would the responsibility for the torts of the pupil. Such a situation does not appear in the
case at bar; the pupils appear to go to school during school hours and go back to their homes with their parents after
school is over." This dictum had been made in rejecting therein petitioner father's contention that his minor son's
school, Lourdes Catholic School at Kanlaon, Quezon City [which was not a party to the case] should be held responsible,
rather than him as father, for the moral damages of P2,000.00 adjudged against him for the physical injury inflicted by
his son on a classmate. [A cut on the right cheek with a piece of razor which costs only P50.00 by way of medical
expenses to treat and cure, since the wound left no scar.] The moral damages award was after all set aside by the Court
on the ground that none of the specific cases provided in Article 2219, Civil Code, for awarding moral damages had been
established, petitioner's son being only nine years old and not having been shown to have "acted with discernment" in
inflicting the injuries on his classmate. .

The dictum in Mercado was based in turn on another dictum in the earlier case of Exconde vs. Capuno, 8 where the only
issue involved as expressly stated in the decision, was whether the therein defendant-father could be civilly liable for
damages resulting from a death caused in a motor vehicle accident driven unauthorizedly and negligently by his minor
son, (which issue was resolved adversely against the father). Nevertheless, the dictum in such earlier case that "It is true
that under the law abovequoted, teachers or directors of arts and trades are liable for any damage caused by their
pupils or apprentices while they are under their custody, but this provision only applies to an institution of arts and
trades and not to any academic educational institution" was expressly cited and quoted in Mercado. .
2. The case at bar was instituted directly against the school officials and squarely raises the issue of liability of teachers
and heads of schools under Article 2180, Civil Code, for damages caused by their pupils and students against fellow
students on the school premises. Here, the parents of the student at fault, defendant Daffon, are not involved, since
Daffon was already of age at the time of the tragic incident. There is no question, either, that the school involved is a
non-academic school, 9 the Manila Technical Institute being admittedly a technical vocational and industrial school. .

The Court holds that under the cited codal article, defendants head and teacher of the Manila Technical Institute
(defendants Valenton and Quibulue, respectively) are liable jointly and severally for damages to plaintiffs-appellants for
the death of the latter's minor son at the hands of defendant Daffon at the school's laboratory room. No liability
attaches to defendant Brillantes as a mere member of the school's board of directors. The school itself cannot be held
similarly liable, since it has not been properly impleaded as party defendant. While plaintiffs sought to so implead it, by
impleading improperly defendant Brillantes, its former single proprietor, the lower court found that it had been
incorporated since August 2, 1962, and therefore the school itself, as thus incorporated, should have been brought in as
party defendant. Plaintiffs failed to do so, notwithstanding that Brillantes and his co-defendants in their reply to
plaintiffs' request for admission had expressly manifested and made of record that "defendant Antonio C. Brillantes is
not the registered owner/head of the "Manila Technical Institute" which is now a corporation and is not owned by any
individual person." 10

3. The rationale of such liability of school heads and teachers for the tortious acts of their pupils and students, so long as
they remain in their custody, is that they stand, to a certain extent, as to their pupils and students, in loco parentis and
are called upon to "exercise reasonable supervision over the conduct of the child." 11 This is expressly provided for in
Articles 349, 350 and 352 of the Civil Code. 12 In the law of torts, the governing principle is that the protective custody
of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it becomes their
obligation as well as that of the school itself to provide proper supervision of the students' activities during the whole
time that they are at attendance in the school, including recess time, as well as to take the necessary precautions to
protect the students in their custody from dangers and hazards that would reasonably be anticipated, including injuries
that some student themselves may inflict willfully or through negligence on their fellow students. .

4. As tersely summarized by Mr. Justice J.B.L. Reyes in his dissenting opinion in Exconde, "the basis of the presumption
of negligence of Art. 1903 [now 2180] is some culpa in vigilando that the parents, teachers, etc. are supposed to have
incurred in the exercise of their authority" 13 and "where the parent places the child under the effective authority of the
teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody,
for the very reason that the parent is not supposed to interfere with the discipline of the school nor with the authority
and supervision of the teacher while the child is under instruction." The school itself, likewise, has to respond for the
fault or negligence of its school head and teachers under the same cited article. 14

5. The lower court therefore erred in law in absolving defendants-school officials on the ground that they could be held
liable under Article 2180, Civil Code, only if the student who inflicted the fatal fistblows on his classmate and victim
"lived and boarded with his teacher or the other defendants officials of the school." As stated above, the phrase used in
the cited article — "so long as (the students) remain in their custody" means the protective and supervisory custody that
the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the
school, including recess time. There is nothing in the law that requires that for such liability to attach the pupil or
student who commits the tortious act must live and board in the school, as erroneously held by the lower court, and the
dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by the present
decision. .

6. Defendants Valenton and Quibulue as president and teacher-in-charge of the school must therefore be held jointly
and severally liable for the quasi-delict of their co-defendant Daffon in the latter's having caused the death of his
classmate, the deceased Dominador Palisoc. The unfortunate death resulting from the fight between the protagonists-
students could have been avoided, had said defendants but complied with their duty of providing adequate supervision
over the activities of the students in the school premises to protect their students from harm, whether at the hands of
fellow students or other parties. At any rate, the law holds them liable unless they relieve themselves of such liability, in
compliance with the last paragraph of Article 2180, Civil Code, by "(proving) that they observed all the diligence of a
good father of a family to prevent damage." In the light of the factual findings of the lower court's decision, said
defendants failed to prove such exemption from liability. .

7. Plaintiffs-appellees' contention that the award of P6,000.00 as indemnity for the death of their son should be
increased to P12,000.00 as set by the Court in People vs. Pantoja, 15 and observed in all death indemnity cases
thereafter is well taken. The Court, in Pantoja, after noting the decline in the purchasing power of the Philippine peso,
had expressed its "considered opinion that the amount of award of compensatory damages for death caused by a crime
or quasi-delict should now be P12,000.00." The Court thereby adjusted the minimum amount of "compensatory
damages for death caused by a crime or quasi-delict" as per Article 2206, Civil Code, from the old stated minimum of
P3,000.00 to P12,000.00, which amount is to be awarded "even though there may have been mitigating circumstances"
pursuant to the express provisions of said codal article. .

8. Plaintiffs-appellees' other claims on appeal that the lower court should have awarded exemplary damages and
imposed legal interest on the total damages awarded, besides increasing the award of attorney's fees all concern
matters that are left by law to the discretion of the trial court and the Court has not been shown any error or abuse in
the exercise of such discretion on the part of the trial court. 16 Decisive here is the touchstone provision of Article 2231,
Civil Code, that "In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence." No
gross negligence on the part of defendants was found by the trial court to warrant the imposition of exemplary
damages, as well as of interest and increased attorney's fees, and the Court has not been shown in this appeal any
compelling reason to disturb such finding. .

ACCORDINGLY, the judgment appealed from is modified so as to provide as follows: .

1. Sentencing the defendants Virgilio L. Daffon, TeodosioV. Valenton and Santiago M. Quibulue jointly and severally to
pay plaintiffs as heirs of the deceased Dominador Palisoc (a) P12,000.00 for the death of Dominador Palisoc; (b)
P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for moral, damages; (d) P10,000.00 for loss of earning
power and (e) P2,000.00 for attorney's fee, plus the costs of this action in both instances; 2. absolving defendant
Antonio C. Brillantes from the complaint; and 3. dismissing defendants' counterclaims. .

Concepcion, C.J., Villamor and Makasiar, JJ., concur. .

Dizon, J., took no part. .

FIRST DIVISION

[G.R. No. 143363. February 6, 2002]

ST. MARY’S ACADEMY, petitioner, vs. WILLIAM CARPITANOS and LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL
II, JAMES DANIEL, SR., and VIVENCIO VILLANUEVA, respondents.

The Case

The case is an appeal via certiorari from the decision [1] of the Court of Appeals as well as the resolution denying
reconsideration, holding petitioner liable for damages arising from an accident that resulted in the death of a student
who had joined a campaign to visit the public schools in Dipolog City to solicit enrollment.

The Facts

The facts, as found by the Court of Appeals, are as follows:

“Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William Carpitanos and Lucia Carpitanos
filed on June 9, 1995 a case against James Daniel II and his parents, James Daniel Sr. and Guada Daniel, the vehicle
owner, Vivencio Villanueva and St. Mary’s Academy before the Regional Trial Court of Dipolog City.

“On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its decision the dispositive portion
of which reads as follows:

“‘WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the following manner:

1. Defendant St. Mary’s Academy of Dipolog City, is hereby ordered to pay plaintiffs William Carpitanos and Luisa
Carpitanos, the following sums of money:

a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of life of Sherwin S. Carpitanos;

b. FORTY THOUSAND PESOS (P40,000.00) actual damages incurred by plaintiffs for burial and related expenses;
c. TEN THOUSAND PESOS (P10,000.00) for attorney’s fees;

d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral damages; and to pay costs.

2. Their liability being only subsidiary, defendants James Daniel, Sr. and Guada Daniel are hereby ordered to pay
herein plaintiffs the amount of damages above-stated in the event of insolvency of principal obligor St. Mary’s Academy
of Dipolog City;

3. Defendant James Daniel II, being a minor at the time of the commission of the tort and who was under special
parental authority of defendant St. Mary’s Academy, is ABSOLVED from paying the above-stated damages, same being
adjudged against defendants St. Mary’s Academy, and subsidiarily, against his parents;

4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His counterclaim not being in order as earlier
discussed in this decision, is hereby DISMISSED.

IT IS SO ORDERED.”’ (Decision, pp. 32-33; Records, pp. 205-206).”

“From the records it appears that from 13 to 20 February 1995, defendant-appellant St. Mary’s Academy of Dipolog City
conducted an enrollment drive for the school year 1995-1996. A facet of the enrollment campaign was the visitation of
schools from where prospective enrollees were studying. As a student of St. Mary’s Academy, Sherwin Carpitanos was
part of the campaigning group. Accordingly, on the fateful day, Sherwin, along with other high school students were
riding in a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan Elementary School, Larayan,
Dapitan City. The jeep was driven by James Daniel II then 15 years old and a student of the same school. Allegedly, the
latter drove the jeep in a reckless manner and as a result the jeep turned turtle.

“Sherwin Carpitanos died as a result of the injuries he sustained from the accident.” *2+

In due time, petitioner St. Mary’s academy appealed the decision to the Court of Appeals. *3+

On February 29, 2000, the Court of Appeals promulgated a decision reducing the actual damages to P25,000.00 but
otherwise affirming the decision a quo, in toto. [4]

On February 29, 2000, petitioner St. Mary’s Academy filed a motion for reconsideration of the decision. However, on
May 22, 2000, the Court of Appeals denied the motion. [5]

Hence, this appeal. [6]

The Issues

1) Whether the Court of Appeals erred in holding the petitioner liable for damages for the death of Sherwin
Carpitanos.

2) Whether the Court of Appeals erred in affirming the award of moral damages against the petitioner.

The Court’s Ruling

We reverse the decision of the Court of Appeals.

The Court of Appeals held petitioner St. Mary’s Academy liable for the death of Sherwin Carpitanos under Articles 218
[7] and 219 [8] of the Family Code, pointing out that petitioner was negligent in allowing a minor to drive and in not
having a teacher accompany the minor students in the jeep.

Under Article 218 of the Family Code, the following shall have special parental authority over a minor child while under
their supervision, instruction or custody: (1) the school, its administrators and teachers; or (2) the individual, entity or
institution engaged in child care. This special parental authority and responsibility applies to all authorized activities,
whether inside or outside the premises of the school, entity or institution. Thus, such authority and responsibility
applies to field trips, excursions and other affairs of the pupils and students outside the school premises whenever
authorized by the school or its teachers. [9]

Under Article 219 of the Family Code, if the person under custody is a minor, those exercising special parental authority
are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor while under
their supervision, instruction, or custody. [10]
However, for petitioner to be liable, there must be a finding that the act or omission considered as negligent was the
proximate cause of the injury caused because the negligence must have a causal connection to the accident. [11]

“In order that there may be a recovery for an injury, however, it must be shown that the ‘injury for which recovery is
sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury
must be a direct and natural sequence of events, unbroken by intervening efficient causes.’ In other words, the
negligence must be the proximate cause of the injury. For, ‘negligence, no matter in what it consists, cannot create a
right of action unless it is the proximate cause of the injury complained of.’ And ‘the proximate cause of an injury is that
cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred.’” *12+

In this case, the respondents failed to show that the negligence of petitioner was the proximate cause of the death of
the victim.

Respondents Daniel spouses and Villanueva admitted that the immediate cause of the accident was not the negligence
of petitioner or the reckless driving of James Daniel II, but the detachment of the steering wheel guide of the jeep.

In their comment to the petition, respondents Daniel spouses and Villanueva admitted the documentary exhibits
establishing that the cause of the accident was the detachment of the steering wheel guide of the jeep. Hence, the
cause of the accident was not the recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio
Villanueva. Respondents, including the spouses Carpitanos, parents of the deceased Sherwin Carpitanos, did not dispute
the report and testimony of the traffic investigator who stated that the cause of the accident was the detachment of the
steering wheel guide that caused the jeep to turn turtle.

Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the
negligence of the school authorities, or the reckless driving of James Daniel II. Hence, the respondents’ reliance on
Article 219 of the Family Code that “those given the authority and responsibility under the preceding Article shall be
principally and solidarily liable for damages caused by acts or omissions of the unemancipated minor” was unfounded.

Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of respondent
Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had possession and
control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the jeep at the time of
the accident.

Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of the
steering wheel guide of the jeep, must be pinned on the minor’s parents primarily. The negligence of petitioner St.
Mary’s Academy was only a remote cause of the accident. Between the remote cause and the injury, there intervened
the negligence of the minor’s parents or the detachment of the steering wheel guide of the jeep.

“The proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have occurred.” *13+

Considering that the negligence of the minor driver or the detachment of the steering wheel guide of the jeep owned by
respondent Villanueva was an event over which petitioner St. Mary’s Academy had no control, and which was the
proximate cause of the accident, petitioner may not be held liable for the death resulting from such accident.

Consequently, we find that petitioner likewise cannot be held liable for moral damages in the amount of P500,000.00
awarded by the trial court and affirmed by the Court of Appeals.

Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the
defendant’s wrongful act or omission. *14+ In this case, the proximate cause of the accident was not attributable to
petitioner.

For the reason that petitioner was not directly liable for the accident, the decision of the Court of Appeals ordering
petitioner to pay death indemnity to respondent Carpitanos must be deleted. Moreover, the grant of attorney’s fees as
part of damages is the exception rather than the rule. [15] The power of the court to award attorney’s fees under Article
2208 of the Civil Code demands factual, legal and equitable justification. *16+ Thus, the grant of attorney’s fees against
the petitioner is likewise deleted.
Incidentally, there was no question that the registered owner of the vehicle was respondent Villanueva. He never
denied and in fact admitted this fact. We have held that the registered owner of any vehicle, even if not used for public
service, would primarily be responsible to the public or to third persons for injuries caused the latter while the vehicle
was being driven on the highways or streets.” *17+ Hence, with the overwhelming evidence presented by petitioner and
the respondent Daniel spouses that the accident occurred because of the detachment of the steering wheel guide of the
jeep, it is not the school, but the registered owner of the vehicle who shall be held responsible for damages for the
death of Sherwin Carpitanos.

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals [18] and that of the trial court.
[19] The Court remands the case to the trial court for determination of the liability of defendants, excluding petitioner
St. Mary’s Academy, Dipolog City.

No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.

Puno, J., in the result.

Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 82465 February 25, 1991

ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES AND ROSARIO LACANDULA, BENJAMIN ILUMIN,
TIRSO DE CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND PATRIA CADIZ, petitioners,

vs.

THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR. ROMULO CASTILLO and LILIA CADIZ, respondents.

This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which reads:

WHEREFORE, the decision under appeal is hereby affirmed, with the following modifications: (1) Exemplary damages in
the amount of P20,000.00 are hereby awarded to plaintiffs, in addition to the actual damages of P30,000.00, moral
damages of P20,000.00 and attorney's fees in the amount of P15,000.00 awarded to plaintiffs in the decision under
appeal; (2) St. Francis High School, represented by the Spouses Fernando Nantes and Rosario Lacandula, and Benjamin
Illumin, are hereby held jointly and severally liable with defendants Connie Arquio, Tirso de Chaves, Luisito Vinas and
Patria Cadis for the payment to plaintiffs of the abovementioned actual damages, moral damages, exemplary damages
and attorney's fees, and for costs; and (3) Defendants Yoly Jaro and Nida Aragones are hereby absolved from liability,
and the case against them, together with their respective counterclaims, is hereby ordered dismissed.

SO ORDERED. (p. 60, Rollo)

The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at the St. Francis High School,
wanted to join a school picnic undertaken by Class I-B and Class I-C at Talaan Beach, Sariaya, Quezon. Ferdinand's
parents, respondents spouses Dr. Romulo Castillo and Lilia Cadiz Castillo, because of short notice, did not allow their son
to join but merely allowed him to bring food to the teachers for the picnic, with the directive that he should go back
home after doing so. However, because of persuasion of the teachers, Ferdinand went on with them to the beach.

During the picnic and while the students, including Ferdinand, were in the water, one of the female teachers was
apparently drowning. Some of the students, including Ferdinand, came to her rescue, but in the process, it was
Ferdinand himself who drowned. His body was recovered but efforts to resuscitate him ashore failed. He was brought to
a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Cannel General Hospital where he was pronounced dead on
arrival.

Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in the Regional Trial Court, Branch
LVIII of Lucena City, against the St. Francis High School, represented by the spouses Fernando Nantes and Rosario
Lacandula, Benjamin Illumin (its principal), and the teachers: Tirso de Chaves, Luisito Vinas, Connie Arquio, Nida
Aragones, Yoly Jaro, and Patria Cadiz, for Damages which respondents allegedly incurred from the death of their 13-year
old son, Ferdinand Castillo. Contending that the death of their son was due to the failure of the petitioners to exercise
the proper diligence of a good father of the family in preventing their son's drowning, respondents prayed of actual,
moral and exemplary damages, attorney's fees and expenses for litigation.

The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves, Vinas, Aragones,
Jaro and Cadiz, ordering all of them jointly and severally to pay respondents the sum of P30,000.00 as actual damages,
P20,000.00 as moral damages, P15,000.00 as attorney's fees, and to pay the costs. The court a quo reasoned:

Taking into consideration the evidence presented, this Court believes that the defendant teachers namely: Connie
Arquio, Luisito Vinas, Tirso de Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had failed to exercise the diligence
required of them by law under the circumstances to guard against the harm they had foreseen. (pp. 2930, Rollo)

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning incident
had already occurred, such fact does not and cannot excuse them from their liability. In fact, it could be said that by
coming late, they were remiss in their duty to safeguard the students. (p. 30, Rollo)

The students, young as they were then (12 to 13 years old), were easily attracted to the sea without aforethought of the
dangers it offers. Yet, the precautions and reminders allegedly performed by the defendants-teachers definitely fell
short of the standard required by law under the circumstances. While the defendants-teachers admitted that some parts
of the sea where the picnic was held are deep, the supposed lifeguards of the children did not even actually go to the
water to test the depth of the particular area where the children would swim. And indeed the fears of the plaintiffs that
the picnic area was dangerous was confirmed by the fact that three persons during the picnic got drowned at the same
time. Had the defendant teachers made an actual and physical observation of the water before they allowed the
students to swim, they could have found out that the area where the children were swimming was indeed dangerous.
And not only that, the male teachers who according to the female teachers were there to supervise the children to
ensure their safety were not even at the area where the children were swimming. They were somewhere and as
testified to by plaintiffs' witness they were having a drinking spree. (pp. 55-56, Rollo)

On the other hand, the trial court dismissed the case against the St. Francis High School, Benjamin Illumin and Aurora
Cadorna. Said the court a quo:

As shown and adverted to above, this Court cannot find sufficient evidence showing that the picnic was a school
sanctioned one. Similarly no evidence has been shown to hold defendants Benjamin Illumin and Aurora Cadorna
responsible for the death of Ferdinand Castillo together with the other defendant teachers. It has been sufficiently
shown that Benjamin Illumin had himself not consented to the picnic and in fact he did not join it. On the other hand,
defendant Aurora Cadorna had then her own class to supervise and in fact she was not amongst those allegedly invited
by defendant Connie Arquio to supervise class I-C to which Ferdinand Castillo belongs. (p. 30, Rollo)

Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned the following errors
committed by the trial court:

1. The lower court erred in not declaring the defendant St. Francis High School and its administrator/principal Benjamin
Illumin as equally liable not only for its approved co-curricular activities but also for those which they unreasonably
failed to exercise control and supervision like the holding of picnic in the dangerous water of Talaan Beach, Sariaya,
Quezon.

2. The lower court erred in not declaring the St. Francis High School and principal Benjamin Illumin as jointly and
solidarily liable with their co-defendants-teachers Rosario Lacandula, et als., for the tragic death of Ferdinand Castillo in
a picnic at Talaan Beach, Sariaya, Quezon, last March 20, 1982.

3. The lower court erred in not declaring higher amount for actual and moral damages for the untimely and tragic death
of Ferdinand Castillo in favor of plaintiffs-appellants against all the defendants. (pp. 56-57, Rollo)
The Court of Appeals ruled:

We find plaintiffs-appellants' submission well-taken.

Even were We to find that the picnic in question was not a school-sponsored activity, nonetheless it cannot be gainsaid
that the same was held under the supervision of the teachers employed by the said school, particularly the teacher in
charge of Class I-C to whom the victim belonged, and those whom she invited to help her in supervising the class during
the picnic. Considering that the court a quo found negligence on the part of the six defendants-teachers who, as such,
were charged with the supervision of the children during the picnic, the St. Francis High School and the school principal,
Benjamin Illumin, are liable under Article 2176 taken together with the 1st, 4th and 5th paragraphs of Article 2180 of the
Civil Code. They cannot escape liability on the mere excuse that the picnic was not an "extra-curricular activity of the St.
Francis High School." We find from the evidence that, as claimed by plaintiffs-appellants, the school principal had
knowledge of the picnic even from its planning stage and had even been invited to attend the affair; and yet he did not
express any prohibition against undertaking the picnic, nor did he prescribe any precautionary measures to be adopted
during the picnic. At the least, We must find that the school and the responsible school officials, particularly the
principal, Benjamin Illumin, had acquiesced to the holding of the picnic.

Under Article 2180, supra, the defendant school and defendant school principal must be found jointly and severally
liable with the defendants-teachers for the damages incurred by the plaintiffs as a result of the death of their son. It is
the rule that in cases where the above-cited provisions find application, the negligence of the employees in causing the
injury or damage gives rise to a presumption of negligence on the part of the owner and/or manager of the
establishment (in the present case, St. Francis High School and its principal); and while this presumption is not
conclusive, it may be overthrown only by clear and convincing proof that the owner and/or manager exercised the care
and diligence of a good father of a family in the selection and/or supervision of the employee or employees causing the
injury or damage (in this case, the defendants-teachers). The record does not disclose such evidence as would serve to
overcome the aforesaid presumption and absolve the St. Francis High School and its principal from liability under the
above-cited provisions.

As to the third assigned error interposed by plaintiffs-appellants, while We cannot but commiserate with the plaintiffs
for the tragedy that befell them in the untimely death of their son Ferdinand Castillo and understand their suffering as
parents, especially the victim's mother who, according to appellants, suffered a nervous breakdown as a result of the
tragedy, We find that the amounts fixed by the court a quo as actual damages and moral damages (P30,000.00 and
P20,000.00, respectively) are reasonable and are those which are sustained by the evidence and the law.

However, We believe that exemplary or corrective damages in the amount of P20,000.00 may and should be, as it is
hereby, imposed in the present case by way of example of correction for the public good, pursuant to Article 2229 of the
Civil Code. (pp. 57-59, Rollo)

On the other hand, petitioners-teachers assigned the following errors committed by the trial court:

1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida Aragones, Yoly Jaro and Patria Cadiz
guilty of negligence and jointly and severally liable for damages such finding not being supported by facts and evidence.

2. ". . . in dismissing the counterclaim interposed by the defendants. (p. 59, Rollo)

On this score, respondent Court ruled:

The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim Ferdinand Castillo, were not
able to prove by their evidence that they did not give their son consent to join the picnic in question. However, We
agree with the trial court in its finding that whether or not the victim's parents had given such permission to their son
was immaterial to the determination of the existence of liability on the part of the defendants for the damage incurred
by the plaintiffs-appellants as a result of the death of their son. What is material to such a determination is whether or
not there was negligence on the part of defendants vis-a-vis the supervision of the victim's group during the picnic; and,
as correctly found by the trial court, an affirmative reply to this question has been satisfactorily established by the
evidence, as already pointed out.

However, We sustain defendants-appellants insofar as two of the defendants-teachers, Yoly Jaro and Nida Aragones, are
concerned. As to them, the trial court found:
While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning incident
had already occurred, such fact does not and cannot excuse them from their liability. In fact, it could be said that by
coming late, they were remiss in their duty to safeguard the students.

The evidence shows that these two defendants had satisfactorily explained why they were late in going to the picnic site,
namely, that they had to attend to the entrance examination being conducted by the school which is part of their duty
as teachers thereof. Since they were not at the picnic site during the occurrence in question, it cannot be said that they
had any participation in the negligence attributable to the other defendants-teachers who failed to exercise diligence in
the supervision of the children during the picnic and which failure resulted in the drowning of plaintiffs' son. Thus, We
may not attribute any act or omission to the two teachers, Yoly Jaro and Nida Aragones, as to make them liable for the
injury caused to the plaintiffs because of the death of their son resulting from his drowning at the picnic. Accordingly,
they must be absolved from any liability.

As to the second assigned error raised by defendants-appellants, We agree with the court a quo that the counterclaim
must be dismissed for lack of merit. (pp. 59-60, Rollo)

Hence, this petition.

The issues presented by petitioners are:

A) Whether or not there was negligence attributable to the defendants which will warrant the award of damages to the
plaintiffs;

B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the case at bar;

C) Whether or not the award of exemplary and moral damages is proper under the circumstances surrounding the case
at bar. (pp. 81-82, Rollo)

In the resolution of January 16, 1989, We gave due course to the petition and required the parties to submit their
respective memoranda.

The petition is impressed with merit.

If at all petitioners are liable for negligence, this is because of their own negligence or the negligence of people under
them. In the instant case however, as will be shown hereunder, petitioners are neither guilty of their own negligence or
guilty of the negligence of those under them.

Hence, it cannot be said that they are guilty at all of any negligence. Consequently they cannot be held liable for
damages of any kind.

At the outset, it should be noted that respondent spouses, parents of the victim Ferdinand, allowed their son to join the
excursion.

Testimony of Dr. Castillo on cross exam. by Atty. Flores

Q Now, when your son asked you for money to buy food, did you not ask him where he will bring this?

A I asked him where he was going, he answered, I am going to the picnic, and when I asked him where, he did not
answer, sir.

Q And after giving the money, you did not tell him anything more?

A No more, sir.

Q And after that you just learned that your son join the picnic?

A Yes, sir.

Q And you came to know of it after the news that your son was drowned in the picnic came to you, is that correct?

A Yes, sir.
Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982, you did not know that your son join the
picnic?

A No, sir, I did not know.

Q Did you not look for your son during that time?

A I am too busy with my profession, that is why I was not able, sir.

Q You did not ask your wife?

A I did not, sir.

Q And neither did your wife tell you that your son join the picnic?

A Later on after 12:00, sir.

Q And during that time you were too busy that you did not inquire whether your son have joined that picnic?

A Yes, sir.

(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo)

The fact that he gave money to his son to buy food for the picnic even without knowing where it will be held, is a sign of
consent for his son to join the same. Furthermore.

Testimony of Dr. Lazaro on cross examination:

Q How did you conduct this mental and physical examination?

A I have interviewed several persons and the patient herself She even felt guilty about the death of her son because she
cooked adobo for him so he could join the excursion where her son died of drowning.

Q Why were you able to say she was feeling guilty because she was the one who personally cooked the adobo for her
son?

A It was during the interview that I had gathered it from the patient herself. She was very sorry had she not allowed her
son to join the excursion her son would have not drowned. I don't know if she actually permitted her son although she
said she cooked adobo so he could join. (Emphasis Supplied) (TSN, p. 19, hearing of April 30, 1984, Dr. Lazaro —
witness).

Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in rendering petitioner school
liable for the death of respondent's son.

Article 2180, par. 4 states that:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of
persons for whom one is responsible.

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in any business or industry.

Under this paragraph, it is clear that before an employer may be held liable for the negligence of his employee, the act
or omission which caused damage or prejudice must have occurred while an employee was in the performance of his
assigned tasks.

In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks. The incident
happened not within the school premises, not on a school day and most importantly while the teachers and students
were holding a purely private affair, a picnic. It is clear from the beginning that the incident happened while some
members of the I-C class of St. Francis High School were having a picnic at Talaan Beach. This picnic had no permit from
the school head or its principal, Benjamin Illumin because this picnic is not a school sanctioned activity neither is it
considered as an extra-curricular activity.
As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning of the picnic by
the students and their teachers does not in any way or in any manner show acquiescence or consent to the holding of
the same. The application therefore of Article 2180 has no basis in law and neither is it supported by any jurisprudence.
If we were to affirm the findings of respondent Court on this score, employers wig forever be exposed to the risk and
danger of being hailed to Court to answer for the misdeeds or omissions of the employees even if such act or omission
he committed while they are not in the performance of their duties.

Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages to the
respondents-spouses.

Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand belonged, did her best and exercised
diligence of a good father of a family to prevent any untoward incident or damages to all the students who joined the
picnic.

In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors and scout masters
who have knowledge in First Aid application and swimming. Moreover, even respondents' witness, Segundo Vinas,
testified that "the defendants (petitioners herein) had life savers especially brought by the defendants in case of
emergency." (p. 85, Rollo) The records also show that both petitioners Chavez and Vinas did all what is humanly possible
to save the child.

Testimony of Luisito Vinas on cross examination,

Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim also having applied first aid on him?

A Yes, sir.

Q And while you were applying the so called first aid, the children were covering you up or were surrounding you?

A Yes, sir.

Q You were rattled at that time, is it not?

A No, sir.

Q You mean you were in calm and peaceful condition?

A Yes, sir.

Q Despite the fact that the boy was no longer responding to your application of first aid?

A Yes, sir.

Q You have never been disturbed, "nababahala" in the process of your application of the first aid on the body of
Ferdinand Castillo?

A No, sir, because we were attending to the application of first aid that we were doing, sir.

Q After you have applied back to back pressure and which you claimed the boy did not respond, were you not disturb
anyway?

A I was disturbed during that time, sir.

Q For how many minutes have you applied the back to back pressure?

A From 9 to 11 times, sir.

Q You mean 9 to 11 times of having applied the pressure of your body on the body of Ferdinand Castillo?

A Yes, sir.

Q Will you please describe how you applied a single act of back to back pressure?

A This has been done by placing the boy lay first downwards, then the face was a little bit facing right and doing it by
massaging the back of the child, sir." (TSN, pp. 32-35, hearing of July 30, 1984)
Testimony of Tirso de Chavez on direct examination

ATTY. FLORES:

Q Who actually applied the first aid or artificial respiration to the child?

A Myself, sir.

Q How did you apply the first aid to the guy?

A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back to back pressure and took notice of the
condition of the child. We placed the feet in a higher position, that of the head of the child, sir.

Q After you have placed the boy in that particular position, where the feet were on a higher level than that of the head,
what did you do next?

A The first thing that we did, particularly myself, was that after putting the child in that position, I applied the back to
back pressure and started to massage from the waistline up, but I noticed that the boy was not responding, sir.

Q For how long did you apply this back to back pressure on the boy?

A About 10 seconds, sir.

Q What about Mr. Vinas?

A Almost the same a little longer, for 15 seconds, sir.

Q After you noticed that the boy was not responding, what did you do?

A When we noticed that the boy was not responding, we changed the position of the boy by placing the child facing
upwards laying on the sand then we applied the mouth to mouth resuscitation, sir. (pp. 92-93, Rollo)

With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondents-spouses. The case
at bar does not fall under any of the grounds to grant moral damages.

Art. 2217. Moral Damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of the defendant's wrongful act or omission.

Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence, hence, no moral
damages can be assessed against them.

While it is true that respondents-spouses did give their consent to their son to join the picnic, this does not mean that
the petitioners were already relieved of their duty to observe the required diligence of a good father of a family in
ensuring the safety of the children. But in the case at bar, petitioners were able to prove that they had exercised the
required diligence. Hence, the claim for moral or exemplary damages becomes baseless.

PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners herein guilty of
negligence and liable for the death of Ferdinand Castillo and awarding the respondents damages, is hereby SET ASIDE
insofar as the petitioners herein are concerned, but the portion of the said decision dismissing their counterclaim, there
being no merit, is hereby AFFIRMED.

SO ORDERED.

Sarmiento and Regalado, JJ., concur.

G.R. No. 84698 February 4, 1992

PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM, BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS,
COL. PEDRO SACRO and LT. M. SORIANO, petitioners,

vs.

COURT OF APPEALS, HON. REGINA ORDOÑEZ-BENITEZ, in her capacity as Presiding Judge of Branch 47, Regional Trial
Court, Manila, SEGUNDA R. BAUTISTA and ARSENIA D. BAUTISTA, respondents.

A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the second-floor premises of
the Philippine School of Business Administration (PSBA) prompted the parents of the deceased to file suit in the Regional
Trial Court of Manila (Branch 47) presided over by Judge (now Court of Appeals justice) Regina Ordoñez-Benitez, for
damages against the said PSBA and its corporate officers. At the time of his death, Carlitos was enrolled in the third year
commerce course at the PSBA. It was established that his assailants were not members of the school's academic
community but were elements from outside the school.

Specifically, the suit impleaded the PSBA and the following school authorities: Juan D. Lim (President), Benjamin P.
Paulino (Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt. M.
Soriano (Assistant Chief of Security). Substantially, the plaintiffs (now private respondents) sought to adjudge them
liable for the victim's untimely demise due to their alleged negligence, recklessness and lack of security precautions,
means and methods before, during and after the attack on the victim. During the proceedings a quo, Lt. M. Soriano
terminated his relationship with the other petitioners by resigning from his position in the school.

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they are presumably sued
under Article 2180 of the Civil Code, the complaint states no cause of action against them, as jurisprudence on the
subject is to the effect that academic institutions, such as the PSBA, are beyond the ambit of the rule in the afore-stated
article.

The respondent trial court, however, overruled petitioners' contention and thru an order dated 8 December 1987,
denied their motion to dismiss. A subsequent motion for reconsideration was similarly dealt with by an order dated 25
January 1988. Petitioners then assailed the trial court's disposition before the respondent appellate court which, in a
decision * promulgated on 10 June 1988, affirmed the trial court's orders. On 22 August 1988, the respondent appellate
court resolved to deny the petitioners' motion for reconsideration. Hence, this petition.

At the outset, it is to be observed that the respondent appellate court primarily anchored its decision on the law of
quasi-delicts, as enunciated in Articles 2176 and 2180 of the Civil Code. 1 Pertinent portions of the appellate court's now
assailed ruling state:

Article 2180 (formerly Article 1903) of the Civil Code is an adoption from the old Spanish Civil Code. The comments of
Manresa and learned authorities on its meaning should give way to present day changes. The law is not fixed and
flexible (sic); it must be dynamic. In fact, the greatest value and significance of law as a rule of conduct in (sic) its
flexibility to adopt to changing social conditions and its capacity to meet the new challenges of progress.

Construed in the light of modern day educational system, Article 2180 cannot be construed in its narrow concept as held
in the old case of Exconde vs. Capuno 2 and Mercado vs. Court of Appeals; 3 hence, the ruling in the Palisoc 4 case that it
should apply to all kinds of educational institutions, academic or vocational.

At any rate, the law holds the teachers and heads of the school staff liable unless they relieve themselves of such liability
pursuant to the last paragraph of Article 2180 by "proving that they observed all the diligence to prevent damage." This
can only be done at a trial on the merits of the case. 5

While we agree with the respondent appellate court that the motion to dismiss the complaint was correctly denied and
the complaint should be tried on the merits, we do not however agree with the premises of the appellate court's ruling.

Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco parentis. This Court
discussed this doctrine in the afore-cited cases of Exconde, Mendoza, Palisoc and, more recently, in Amadora vs. Court
of Appeals. 6 In all such cases, it had been stressed that the law (Article 2180) plainly provides that the damage should
have been caused or inflicted by pupils or students of he educational institution sought to be held liable for the acts of
its pupils or students while in its custody. However, this material situation does not exist in the present case for, as
earlier indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the school could be made
liable.

However, does the appellate court's failure to consider such material facts mean the exculpation of the petitioners from
liability? It does not necessarily follow.

When an academic institution accepts students for enrollment, there is established a contract between them, resulting
in bilateral obligations which both parties are bound to comply with. 7 For its part, the school undertakes to provide the
student with an education that would presumably suffice to equip him with the necessary tools and skills to pursue
higher education or a profession. On the other hand, the student covenants to abide by the school's academic
requirements and observe its rules and regulations.

Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an
atmosphere that promotes or assists in attaining its primary undertaking of imparting knowledge. Certainly, no student
can absorb the intricacies of physics or higher mathematics or explore the realm of the arts and other sciences when
bullets are flying or grenades exploding in the air or where there looms around the school premises a constant threat to
life and limb. Necessarily, the school must ensure that adequate steps are taken to maintain peace and order within the
campus premises and to prevent the breakdown thereof.

Because the circumstances of the present case evince a contractual relation between the PSBA and Carlitos Bautista, the
rules on quasi-delict do not really govern. 8 A perusal of Article 2176 shows that obligations arising from quasi-delicts or
tort, also known as extra-contractual obligations, arise only between parties not otherwise bound by contract, whether
express or implied. However, this impression has not prevented this Court from determining the existence of a tort even
when there obtains a contract. In Air France vs. Carrascoso (124 Phil. 722), the private respondent was awarded
damages for his unwarranted expulsion from a first-class seat aboard the petitioner airline. It is noted, however, that the
Court referred to the petitioner-airline's liability as one arising from tort, not one arising from a contract of carriage. In
effect, Air France is authority for the view that liability from tort may exist even if there is a contract, for the act that
breaks the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed. 231).

This view was not all that revolutionary, for even as early as 1918, this Court was already of a similar mind. In Cangco vs.
Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated thus:

The field of non-contractual obligation is much broader than that of contractual obligation, comprising, as it does, the
whole extent of juridical human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact
that a person is bound to another by contract does not relieve him from extra-contractual liability to such person. When
such a contractual relation exists the obligor may break the contract under such conditions that the same act which
constitutes a breach of the contract would have constituted the source of an extra-contractual obligation had no
contract existed between the parties.

Immediately what comes to mind is the chapter of the Civil Code on Human Relations, particularly Article 21, which
provides:

Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good custom or public
policy shall compensate the latter for the damage. (emphasis supplied).

Air France penalized the racist policy of the airline which emboldened the petitioner's employee to forcibly oust the
private respondent to cater to the comfort of a white man who allegedly "had a better right to the seat." In Austro-
American, supra, the public embarrassment caused to the passenger was the justification for the Circuit Court of
Appeals, (Second Circuit), to award damages to the latter. From the foregoing, it can be concluded that should the act
which breaches a contract be done in bad faith and be violative of Article 21, then there is a cause to view the act as
constituting a quasi-delict.

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between the
school and Bautista had been breached thru the former's negligence in providing proper security measures. This would
be for the trial court to determine. And, even if there be a finding of negligence, the same could give rise generally to a
breach of contractual obligation only. Using the test of Cangco, supra, the negligence of the school would not be
relevant absent a contract. In fact, that negligence becomes material only because of the contractual relation between
PSBA and Bautista. In other words, a contractual relation is a condition sine qua non to the school's liability. The
negligence of the school cannot exist independently of the contract, unless the negligence occurs under the
circumstances set out in Article 21 of the Civil Code.

This Court is not unmindful of the attendant difficulties posed by the obligation of schools, above-mentioned, for
conceptually a school, like a common carrier, cannot be an insurer of its students against all risks. This is specially true in
the populous student communities of the so-called "university belt" in Manila where there have been reported several
incidents ranging from gang wars to other forms of hooliganism. It would not be equitable to expect of schools to
anticipate all types of violent trespass upon their premises, for notwithstanding the security measures installed, the
same may still fail against an individual or group determined to carry out a nefarious deed inside school premises and
environs. Should this be the case, the school may still avoid liability by proving that the breach of its contractual
obligation to the students was not due to its negligence, here statutorily defined to be the omission of that degree of
diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time and
place. 9

As the proceedings a quo have yet to commence on the substance of the private respondents' complaint, the record is
bereft of all the material facts. Obviously, at this stage, only the trial court can make such a determination from the
evidence still to unfold.

WHEREFORE, the foregoing premises considered, the petition is DENIED. The court of origin (RTC, Manila, Br. 47) is
hereby ordered to continue proceedings consistent with this ruling of the Court. Costs against the petitioners.

SO ORDERED.

V. PRIMARY/STRICT LIABILITY

A. POSSESSORS AND OWNERS OF ANIMALS (Art. 2183)

Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 74431 November 6, 1989

PURITA MIRANDA VESTIL and AGUSTIN VESTIL, petitioners,

vs.

INTERMEDIATE APPELLATE COURT, DAVID UY and TERESITA UY, respondents.

Pablo P. Garcia for petitioners.

Roberto R. Palmares for private respondents.

CRUZ, J.:

Little Theness Tan Uy was dead at the age of three. Her parents said she died because she was bitten by a dog of the
petitioners, but the latter denied this, claiming they had nothing to do with the dog. The Uys sued the Vestils, who were
sustained by the trial court. On appeal, the decision of the court a quo was reversed in favor of the Uys. The Vestils are
now before us. They ask us to set aside the judgment of the respondent court and to reinstate that of the trial court.

On July 29, 1915, Theness was bitten by a dog while she was playing with a child of the petitioners in the house of the
late Vicente Miranda, the father of Purita Vestil, at F. Ramos Street in Cebu City. She was rushed to the Cebu General
Hospital, where she was treated for "multiple lacerated wounds on the forehead" 1 and administered an anti-rabies
vaccine by Dr. Antonio Tautjo. She was discharged after nine days but was readmitted one week later due to "vomiting
of saliva." 2 The following day, on August 15, 1975, the child died. The cause of death was certified as broncho-
pneumonia. 3

Seven months later, the Uys sued for damages, alleging that the Vestils were liable to them as the possessors of
"Andoy," the dog that bit and eventually killed their daughter. The Vestils rejected the charge, insisting that the dog
belonged to the deceased Vicente Miranda, that it was a tame animal, and that in any case no one had witnessed it bite
Theness. After trial, Judge Jose R. Ramolete of the Court of First Instance of Cebu sustained the defendants and
dismissed the complaint. 4

The respondent court arrived at a different conclusion when the case was appealed. 5 It found that the Vestils were in
possession of the house and the dog and so should be responsible under Article 2183 of the Civil Code for the injuries
caused by the dog. It also held that the child had died as a result of the dog bites and not for causes independent thereof
as submitted by the appellees. Accordingly, the Vestils were ordered to pay the Uys damages in the amount of
P30,000.00 for the death of Theness, P12,000.00 for medical and hospitalization expenses, and P2,000.00 as attorney's
fees.

In the proceedings now before us, Purita Vestil insists that she is not the owner of the house or of the dog left by her
father as his estate has not yet been partitioned and there are other heirs to the property. Pursuing the logic of the Uys,
she claims, even her sister living in Canada would be held responsible for the acts of the dog simply because she is one
of Miranda's heirs. However, that is hardly the point. What must be determined is the possession of the dog that
admittedly was staying in the house in question, regardless of the ownership of the dog or of the house.

Article 2183 reads as follows:

The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause,
although it may escape or be lost. 'This responsibility shall cease only in case the damages should come from force
majeure from the fault of the person who has suffered damage.

Thus, in Afialda v. Hisole, 6 a person hired as caretaker of a carabao gored him to death and his heirs thereupon sued the
owner of the animal for damages. The complaint was dismissed on the ground that it was the caretaker's duty to
prevent the carabao from causing injury to any one, including himself.

Purita Vestil's testimony that she was not in possession of Miranda's house is hardly credible. She said that the
occupants of the house left by her father were related to him ("one way or the other") and maintained themselves out
of a common fund or by some kind of arrangement (on which, however, she did not elaborate ). 7 She mentioned as
many as ten of such relatives who had stayed in the house at one time or another although they did not appear to be
close kin. 8 She at least implied that they did not pay any rent, presumably because of their relation with Vicente
Miranda notwithstanding that she herself did not seem to know them very well.

There is contrary evidence that the occupants of the house, were boarders (or more of boarders than relatives) who
paid the petitioners for providing them with meals and accommodations. It also appears that Purita Vestil had hired a
maid, Dolores Jumao-as, who did the cooking and cleaning in the said house for its occupants. 9 Her mother, Pacita, who
was a nursemaid of Purita herself, categorically declared that the petitioners were maintaining boarders in the house
where Theness was bitten by a dog. 10 Another witness, Marcial Lao, testified that he was indeed a boarder and that the
Vestils were maintaining the house for business purposes. 11 And although Purita denied paying the water bills for the
house, the private respondents submitted documentary evidence of her application for water connection with the Cebu
Water District, which strongly suggested that she was administering the house in question. 12

While it is true that she is not really the owner of the house, which was still part of Vicente Miranda's estate, there is no
doubt that she and her husband were its possessors at the time of the incident in question. She was the only heir
residing in Cebu City and the most logical person to take care of the property, which was only six kilometers from her
own house. 13 Moreover, there is evidence showing that she and her family regularly went to the house, once or twice
weekly, according to at least one witness, 14 and used it virtually as a second house. Interestingly, her own daughter
was playing in the house with Theness when the little girl was bitten by the dog. 15 The dog itself remained in the house
even after the death of Vicente Miranda in 1973 and until 1975, when the incident in question occurred. It is also
noteworthy that the petitioners offered to assist the Uys with their hospitalization expenses although Purita said she
knew them only casually. 16
The petitioners also argue that even assuming that they were the possessors of the dog that bit Theness there was no
clear showing that she died as a result thereof. On the contrary, the death certificate 17 declared that she died of
broncho-pneumonia, which had nothing to do with the dog bites for which she had been previously hospitalized. The
Court need not involve itself in an extended scientific discussion of the causal connection between the dog bites and the
certified cause of death except to note that, first, Theness developed hydrophobia, a symptom of rabies, as a result of
the dog bites, and second, that asphyxia broncho-pneumonia, which ultimately caused her death, was a complication of
rabies. That Theness became afraid of water after she was bitten by the dog is established by the following testimony of
Dr. Tautjo:

COURT: I think there was mention of rabies in the report in the second admission?

A: Now, the child was continuously vomiting just before I referred to Dr. Co earlier in the morning and then the father,
because the child was asking for water, the father tried to give the child water and this child went under the bed, she did
not like to drink the water and there was fright in her eyeballs. For this reason, because I was in danger there was rabies,
I called Dr. Co.

Q: In other words, the child had hydrophobia?

A: Yes, sir. 18

As for the link between rabies and broncho-pneumonia, the doctor had the following to say under oath:

A: Now, as 1 said before, broncho-pneumonia can result from physical, chemical and bacterial means. ... It can be the
result of infection, now, so if you have any other disease which can lower your resistance you can also get pneumonia.

xxx xxx xxx

Q: Would you say that a person who has rabies may die of complication which is broncho-pneumonia?

A: Yes.

Q: For the record, I am manifesting that this book shown the witness is know as CURRENT DIANOSIS & TREATMENT,
1968 by Henry Brainerd, Sheldon Margen and Milton Chaton. Now, I invite your attention, doctor, to page 751 of this
book under the title "Rabies." There is on this page, "Prognosis" as a result of rabies and it says: Once the symptoms,
have appeared death inevitably occurs after 2-3 days as a result of cardiac or respiratory failure or generalized paralysis.
After a positive diagnosis of rabies or after a bite by a suspected animal if the animal cannot be observed or if the bite is
on the head, give rabies vaccine (duck embryo). Do you believe in this statement?

A: Yes.

Q: Would you say therefore that persons who have rabies may die of respiratory failure which leave in the form of
bronco-pneumonia?

A: Broncho-pneumonia can be a complication of rabies. 19

On the strength of the foregoing testimony, the Court finds that the link between the dog bites and the certified cause
of death has beep satisfactorily established. We also reiterate our ruling in Sison v. Sun Life Assurance Company of
Canada, 20 that the death certificate is not conclusive proof of the cause of death but only of the fact of death. Indeed,
the evidence of the child's hydrophobia is sufficient to convince us that she died because she was bitten by the dog even
if the death certificate stated a different cause of death. The petitioner's contention that they could not be expected to
exercise remote control of the dog is not acceptable. In fact, Article 2183 of the Civil Code holds the possessor liable
even if the animal should "escape or be lost" and so be removed from his control. And it does not matter either that, as
the petitioners also contend, the dog was tame and was merely provoked by the child into biting her. The law does not
speak only of vicious animals but covers even tame ones as long as they cause injury. As for the alleged provocation, the
petitioners forget that Theness was only three years old at the time she was attacked and can hardly be faulted for
whatever she might have done to the animal.

It is worth observing that the above defenses of the petitioners are an implied rejection of their original posture that
there was no proof that it was the dog in their father's house that bit Theness.
According to Manresa the obligation imposed by Article 2183 of the Civil Code is not based on the negligence or on the
presumed lack of vigilance of the possessor or user of the animal causing the damage. It is based on natural equity and
on the principle of social interest that he who possesses animals for his utility, pleasure or service must answer for the
damage which such animal may cause. 21

We sustain the findings of the Court of Appeals and approve the monetary awards except only as to the medical and
hospitalization expenses, which are reduced to P2,026.69, as prayed for in the complaint. While there is no recompense
that can bring back to the private respondents the child they have lost, their pain should at least be assuaged by the civil
damages to which they are entitled.

WHEREFORE, the challenged decision is AFFIRMED as above modified. The petition is DENIED, with costs against the
petitioners. It is so ordered.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

B. OWNERS OF MOTOR VEHICLES (ART 2184)

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-20392 December 18, 1968

MARCIAL T. CAEDO, JUANA SANGALANG CAEDO, and the Minors, EPHRAIM CAEDO, EILEEN CAEDO, ROSE ELAINE
CAEDO, suing through their father, MARCIAL T. CAEDO, as guardian ad litem, plaintiffs-appellants,

vs.

YU KHE THAI and RAFAEL BERNARDO, defendants-appellants.

Norberto J. Quisumbing for plaintiffs-appellants.

De Joya, Lopez, Dimaguila, Hermoso and Divino for defendants-appellants

MAKALINTAL, J.:

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

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

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

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

There are two principal questions posed for resolution: (1) who was responsible for the accident? and (2) if it was
defendant Rafael Bernardo, was his employer, defendant Yu Khe Thai, solidarily liable with him? On the first question
the trial court found Rafael Bernardo negligent; and on the second, held his employer solidarily liable with him.
The mishap occurred at about 5:30 in the morning of March 24, 1958 on Highway 54 (now E. de los Santos Avenue) in
the vicinity of San Lorenzo Village. Marcial was driving his Mercury car on his way from his home in Quezon City to the
airport, where his son Ephraim was scheduled to take a plane for Mindoro. With them in the car were Mrs. Caedo and
three daughters. Coming from the opposite direction was the Cadillac of Yu Khe Thai, with his driver Rafael Bernardo at
the wheel, taking the owner from his Parañaque home to Wack Wack for his regular round of golf. The two cars were
traveling at fairly moderate speeds, considering the condition of the road and the absence of traffic — the Mercury at 40
to 50 kilometers per hour, and the Cadillac at approximately 30 to 35 miles (48 to 56 kilometers). Their headlights were
mutually noticeable from a distance. Ahead of the Cadillac, going in the same direction, was a caretella owned by a
certain Pedro Bautista. The carretela was towing another horse by means of a short rope coiled around the rig's vertical
post on the right side and held at the other end by Pedro's son, Julian Bautista.

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

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

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

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

Under the foregoing provision, if the causative factor was the driver's negligence, the owner of the vehicle who was
present is likewise held liable if he could have prevented the mishap by the exercise of due diligence. The rule is not
new, although formulated as law for the first time in the new Civil Code. It was expressed in Chapman vs. Underwood
(1914), 27 Phil. 374, where this Court held:

... The same rule applies where the owner is present, unless the negligent acts of the driver are continued for such a
length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist
therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the
law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that
the driver cease therefrom, becomes himself responsible for such acts. The owner of an automobile who permits his
chauffeur to drive up the Escolta, for example, at a speed of 60 miles an hour, without any effort to stop him, although
he has had a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results
produced by the acts of the chauffeur. On the other hand, if the driver, by a sudden act of negligence, and without the
owner having a reasonable opportunity to prevent the act or its continuance, injures a person or violates the criminal
law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either
civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of
time that the owner, by his acquiescence, makes his driver act his own.

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

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

The test of imputed negligence under Article 2184 of the Civil Code is, to a great degree, necessarily subjective. Car
owners are not held to a uniform and inflexible standard of diligence as are professional drivers. In many cases they
refrain from driving their own cars and instead hire other persons to drive for them precisely because they are not
trained or endowed with sufficient discernment to know the rules of traffic or to appreciate the relative dangers posed
by the different situations that are continually encountered on the road. What would be a negligent omission under
aforesaid Article on the part of a car owner who is in the prime of age and knows how to handle a motor vehicle is not
necessarily so on the part, say, of an old and infirm person who is not similarly equipped.

The law does not require that a person must possess a certain measure of skill or proficiency either in the mechanics of
driving or in the observance of traffic rules before he may own a motor vehicle. The test of his intelligence, within the
meaning of Article 2184, is his omission to do that which the evidence of his own senses tells him he should do in order
to avoid the accident. And as far as perception is concerned, absent a minimum level imposed by law, a maneuver that
appears to be fraught with danger to one passenger may appear to be entirely safe and commonplace to another. Were
the law to require a uniform standard of perceptiveness, employment of professional drivers by car owners who, by
their very inadequacies, have real need of drivers' services, would be effectively proscribed.

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

1. Marcial Caedo P 20,000.00

2. Juana S. Caedo 15,000.00

3. Ephraim Caedo 3,000.00

4. Eileen Caedo 4,000.00

5. Rose Elaine Caedo 3,000.00

6. Merilyn Caedo 3,000.00

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

The injuries sustained by plaintiffs are the following:

MARCIAL T. CAEDO:

A. Contusion, with hematoma, scalp, frontal left; abrasions, chest wall, anterior;

B. Multiple fractures, ribs, right, lst to 5th inclusive. Third rib has a double fracture; Subparieto-plaural hematoma; Basal
disc atelectasis, lung, right lower lobe, secondary;

C. Pseudotosis, left, secondary to probable basal fracture, skull.

JUANA SANGALANG CAEDO:

A. Abrasions, multiple:

(1)frontal region, left; (2) apex of nose; (3) upper eyelid, left; (4) knees.

B. Wound, lacerated, irregular, deep, frontal;

C. Fracture, simple, 2nd rib posterior, left with displacement.

D. Fracture, simple, base, proximal phalanx right, big toe.

E. Fracture, simple, base, metatarsals III and V right.

F. Concussion, cerebral.

EPHRAIM CAEDO:

A. Abrasions, multiple:

(1) left temporal area; (2) left frontal; (3) left supraorbital

EILEEN CAEDO:

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

B. Abrasions, multiple:

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

ROSE ELAINE CAEDO:

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

MARILYN CAEDO:

A. Abrasions, multiple: (1)shin, lower 1/3 right; (2) arm, lower third

C. Contusion with hematoma, shin, lower 1/3, anterior aspect, right. (See Exhibits D, D-1, D-2, D-3, D-4, and D- 5)

It is our opinion that, considering the nature and extent of the above-mentioned injuries, the amounts of moral damages
granted by the trial court are not excessive.

WHEREFORE, the judgment appealed from is modified in the sense of declaring defendant-appellant Yu Khe Thai free
from liability, and is otherwise affirmed with respect to defendant Rafael Bernardo, with costs against the latter.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro and Capistrano, JJ., concur.

Fernando, J., took no part.

THIRD DIVISION

[G.R. No. 138054. September 28, 2000]

ROSENDO C. CARTICIANO and ZACARIAS A. CARTICIANO, petitioners, vs. MARIO NUVAL, respondent.

DECISION

PANGANIBAN, J.:

To hold an employer liable for the negligent acts of the employee, it is enough to prove that the latter was hired to drive
the former’s motor vehicle. It is not necessary to show, in addition, that the employer’s children were aboard the jeep
when the accident happened. Once the driver is shown to be negligent, the burden of proof to free the employer from
liability shifts to the latter.

Statement of the Case

Before this Court is a Petition for Review on Certiorari [1] under Rule 45 of the Rules of Court, assailing the November
10, 1999 Decision [2] of the Court of Appeals (CA) [3] in CA-GR CV No. 52316, which disposed as follows:

“WHEREFORE, *the+ foregoing considered, the appealed decision is hereby AFFIRMED insofar as defendant Darwin is
concerned and REVERSED and SET-ASIDE as it pertains to defendant-appellant Nuval. Defendant-appellant Nuval is
hereby absolved of any civil liability and the complaint against him is hereby DISMISSED.” *4+

On the other hand, the trial court [5] ruled in this wise:

“ACCORDINGLY, judgment is hereby rendered in favor of plaintiffs and against defendants, ordering the latter to pay the
former jointly and severally the following:

1) The amount of P160,715.19 as actual damage for the medical treatment so far of plaintiff Zacarias Carticiano;

2) The amount of P100,000.00 to compensate the income and opportunities plaintiff Zacarias lost as a result of the
incident;

3) The amount of P173,788.00 for the damages sustained by the Ford Laser;

4) The amount of P200,000.00 as moral damages;

5) The amount of P100,000.00 as exemplary damages;

6) The amount of P100,000.00 as attorney’s fees and expenses of litigation.

With costs.

SO ORDERED.”

The Facts

The facts are summarized succinctly by the Court of Appeals as follows:

"On September 3, 1992 at about 9:30 in the evening, plaintiff Zacarias Carticiano was on his way home to Imus, Cavite.
Plaintiff Zacarias was driving his father’s (plaintiff Rosendo Carticiano) Ford Laser car, traversing the coastal roads of
Longos, Bacoor, Cavite.

“On the same date and time, defendant Nuval’s owner-type Jeep, then driven by defendant Darwin was traveling on the
opposite direction going to Parañaque.

“When the two cars were about to pass one another, defendant Darwin veered his vehicle to his left going to the center
island of the highway and occupied the lane which plaintiff Zacarias was traversing.

“As a result thereof, plaintiff Zacarias’ Ford Laser collided head-on with defendant Nuval’s Jeep. Defendant Darwin
immediately fled from the scene.
“Plaintiff Zacarias was taken out *of+ the car by residents of the area and was brought to the hospital by Eduard Tangan,
a Narcom agent who happened to pass by the place. Plaintiff Zacarias suffered multiple fracture on his left leg and other
injuries in his body. Plaintiff Zacarias underwent a leg operation and physical therapy to repair the damaged leg.

“Defendant Nuval offered P100,000.00 as compensation for the injuries caused. Plaintiffs refused to accept the amount.

“On this account, plaintiffs filed a criminal suit against defendant Darwin. Plaintiffs also filed this present civil suit against
defendants for damages.

“Plaintiffs alleged that the proximate cause of the accident is defendant’s Darwin recklessness in driving defendant
Nuval’s jeep; that on account of said recklessness of defendant Darwin, plaintiff suffered damages; that defendant
Darwin was an employee of defendant Nuval at the time of accident; that defendant Nuval did not exercise due
diligence in the supervision of his employee; that defendants should he held liable for damages.

“Defendant Nuval on the other hand insisted that he cannot be held answerable for the acts of defendant Darwin; that
defendant Darwin was not an employee of defendant Nuval at the time of the accident; that defendant Darwin was
hired only as casual and has worked with defendant Nuval’s company only for five days; that at the time of the accident,
defendant Darwin was no longer connected with defendant Nuval’s company; that defendant Darwin was not
authorized to drive the vehicle of defendant Nuval; that defendant Nuval tried to locate defendant Darwin but the latter
could no longer be found; that defendant Nuval cannot be held liable for damages.

“Defendant Darwin *h+as failed to file his answer within the reglementary period. Consequently, he was declared in
default. Trial of the case proceeded.” *6+

Ruling of the Court of Appeals

The Court of Appeals explained that in order to hold an employer liable for the negligent acts of an employee under
Article 2180 of the Civil Code, it must be shown that the employee was “acting within the scope of his assigned task
when the tort complained of was committed.” *7+

The employer in this case, Respondent Mario Nuval, cannot be held liable for the tort committed by Darwin. First,
appellants did not present evidence showing that the driver was indeed an employee of respondent at the time the
accident occurred. And second, even assuming arguendo that Darwin was in fact an employee of Nuval, it was not
shown that the former was acting within the scope of his assigned task when the incident happened. Thus, the requisites
for holding an employer liable for the tort committed by an employee were not satisfied.

Hence, this appeal. [8]

Issues

Petitioners present the following issues:

“A. Whether or not Defendant Darwin was in fact an employee of Defendant Nuval;

“B. Whether or not Defendant Nuval was negligent in the selection and supervision of his employees;

“C. Whether or not Defendant Nuval was grossly negligent in the safekeeping of the key to his owner-type jeep and
of said vehicle itself;

“D. Whether or not respondent must be held liable for the damages and injuries suffered by appellees; [and]

“E. Whether or not findings of facts of the Court of Appeals are subject to exceptions.” *9+

For brevity, Item A will be taken up as the first issue; while B, C, D and E will be discussed together as the second issue,
since they all directly pertain to respondent’s vicarious liability.

The Court’s Ruling

The Petition is meritorious.

First Issue: No Proof That Employment Was Terminated

Respondent maintains that on the date [10] the accident happened, Darwin was no longer his employee because the
latter’s services had already been terminated. Nuval adds that Darwin was hired for a period of only four to six days. To
substantiate this claim, the former presented payroll and employment records showing that the latter was no longer his
employee.

We disagree. The only proof proferred by Respondent Nuval to show that Darwin was no longer his employee was the
payroll in which the latter’s name was not included. However, as revealed by the testimonies of the witnesses presented
during trial, respondent had other employees working for him who were not listed in the payroll either. The trial court
explained as follows:

“It surfaced that the payroll and daily time records presented by defendant Nuval *were+ not reliable proofs of the
names and number of employees that defendant Nuval had at the time of the incident in view of the testimonies of
witnesses for defendant Nuval tending to show that there were more employees of defendant Nuval who were not in
the payroll.” *11+

The rather easy access which Darwin had to the keys to the vehicle of Nuval further weakened the latter’s cause. First,
nobody questioned the fact that the former had freely entered respondent’s house where the keys to the vehicle were
kept. The theory of Nuval that Darwin must have stolen the keys as well as the vehicle is rather farfetched and not
supported by any proof whatsoever. It is obviously an afterthought concocted to present some semblance of a defense.
Second, both respondent and his employees who testified did not act as if the vehicle had been stolen. He had not
reported the alleged theft of his vehicle. Neither did he search nor ask his employees to search for the supposedly stolen
vehicle. In fact, he testified that his employees had told him that the keys and the vehicle had merely “probably” been
stolen by Darwin.

“Atty. Bobadilia: Did you ask among your employees who gave the key to Darwin?

Mario Nuval: I asked them, sir.

Atty. Bobadilla: What was the reply of your employees?

M. Nuval: According to my employees he stole the key of the jeepney at home.

Atty. Abas: I disagree with the interpretation of the interpreter because the answer of the witness is ‘ninanak yata.”

Interpreter: I agree, your Honor.

Court: So, what is the correct interpretation?

A: According to my employees perhaps the key was stolen, or perhaps Darwin stole the key to the jeep.” *12+

From the totality of the evidence, we are convinced that Darwin was Nuval’s driver at the time of the accident.

Second to Fourth Issues: Employer’s Liability

The CA agreed with the theory of respondent that he could not be held liable for the negligent acts of his employee
because Darwin was not acting within the scope of his assigned tasks when the damage occurred. Respondent adds that
he observed the diligence of a good father of a family and was not negligent in safeguarding the keys to the said vehicle.

Article 2180 of the Civil Code provides that employers shall be liable for damages caused by their employees acting
within the scope of their assigned tasks. The said provision is reproduced below:

“ART. 2180. The obligation imposed by article 2176 is demandable not only for one’s own acts or omissions, but also for
those of persons for whom one is responsible.

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

“Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live
in their company.

“The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are employed or on the occasion of their functions.
“Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in any business or industry.

“The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused
by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be
applicable.

“Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and
students or apprentices, so long as they remain in their custody.

“The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damage.” *13+ (Italics supplied)

The facts established in the case at bar show that Darwin was acting within the scope of the authority given him when
the collision occurred. That he had been hired only to bring respondent’s children to and from school must be rejected.
True, this may have been one of his assigned tasks, but no convincing proof was presented showing that it was his only
task. His authority was to drive Nuval’s vehicle. Third parties are not bound by the allegation that the driver was
authorized to operate the jeep only when the employer’s children were on board the vehicle. Giving credence to this
outlandish theory would enable employers to escape their legal liabilities with impunity. Such loophole is easy to
concoct and is simply unacceptable.

The claim of respondent that he had exercised the diligence of a good father of a family is not borne out by the
evidence. Neither is it supported by logic. His main defense that at the time of the accident Darwin was no longer his
employee, having been merely hired for a few days, is inconsistent with his other argument of due diligence in the
selection of an employee.

Once a driver is proven negligent in causing damages, the law presumes the vehicle owner equally negligent and
imposes upon the latter the burden of proving proper selection of employee as a defense. [14] Respondent failed to
show that he had satisfactorily discharged this burden.

No Proof of Contributory Negligence

Respondent Nuval’s accusation that Petitioner Zacarias Carticiano is guilty of contributory negligence by failing to stop
his car or to evade the oncoming jeep is untenable. Both the trial and the appellate courts found that the accident was
caused by the fact that Darwin’s jeep suddenly veered towards Zacarias’ lane when the vehicles were about to pass each
other, thus making it difficult if not impossible for petitioner to avoid the head-on collission. Nuval utterly failed to
present sufficient evidence to show that Zacarias could have evaded the jeep. Given the distance between the vehicles
and the speed at which they were travelling, the former was not able to demonstrate convincingly that the latter could
have minimized the damage complained of.

Review of Factual Findings

Generally, the factual findings of lower courts are accorded great respect by this Court. However, the above rule is
subject to certain exceptions, one of which is when the two lower court’s findings oppose each other. *15+

In the present case, there is a clear conflict between the findings of the trial court and those of the CA. Such conflict
hinges on whether it was sufficiently proven that the employment of Darwin had indeed been terminated by
respondent, and whether the former was acting within the scope of his assigned tasks at the time the collision occurred.
The resolution of both of these pivotal factual issues is determinative of respondent’s vicarious liability for the injuries
caused by Darwin. It is thus necessary for this Court to pore over the evidence adduced, as it did already.

Damages

Article 2199 of the Civil Code allows the aggrieved party to recover the pecuniary loss that he has suffered.

“ART. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory
damages.”

Based on the above, Petitioner Zacarias is entitled to indemnification for actual damages caused by the negligence of
Darwin, for which the latter’s employer, Respondent Nuval, is solidarily liable. And as found by the trial court, petitioner
is entitled to P160,715.19 for his medical treatment, as testified to by Dr. Eduardo Arandia. In the same vein, both
petitioners are also entitled to P173,788, which represents the costs incurred for the repair of the damaged vehicle. [16]

The Civil Code allows indemnification for lost profit or income, [17] but petitioners failed to adduce sufficient proof of
such loss.

However, moral damages are in order, based on Articles 2217 and 2219 of the Civil Code which respectively provide:

“ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of the defendant’s wrongful act or omission.

“ART. 2219. Moral damages may be recovered in the following and analogous cases:

“(2) Quasi-delicts causing physical injuries x x x”

As a direct result of the collision, petitioner suffered physically. It is also true that he experienced and will continue to
experience social humiliation and ridicule for having his left leg shorter than the right which causes him to limp when
walking. For the above, we agree with the trial court that Petitioner Zacarias is entitled to an award of moral damages.

Exemplary damages and attorney’s fees are likewise authorized by the following provisions of the Civil Code:

“ART. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in
addition to the moral, temperate, liquidated or compensatory damages.”

“ART. 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled
to moral, temperate or compensatory damages before the court may consider the question of whether or not
exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is
necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the
question of granting exemplary in addition to the liquidated damages, the plaintiff must show that he would be entitled
to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages.”

“ART. 2208. In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be
recovered, except:

(1) When exemplary damages are awarded x x x.” *18+

As held by the trial court, respondent’s refusal to answer adequately for the damages forced petitioners to litigate and
incur expenses. And to serve as an example for the public good, exemplary damages are affirmed, since Petitioner
Zacarias has already shown that he is entitled to compensatory and moral damages in accordance with Article 2234 of
the Civil Code.

WHEREFORE, the Petition is hereby GRANTED. The assailed Decision is REVERSED and SET ASIDE and the trial court’s
Decision REINSTATED, except that the award of P100,000 for lost “income or opportunities” is DELETED.

SO ORDERED.

SECOND DIVISION

[G.R. No. 128607. January 31, 2000]

ALFREDO MALLARI SR. and ALFREDO MALLARI JR., petitioners, vs. COURT OF APPEALS and BULLETIN PUBLISHING
CORPORATION, respondents.

DECISION

BELLOSILLO, J.:

ALFREDO MALLARI SR. and ALFREDO MALLARI JR. in this petition for review on certiorari seek to set aside the Decision
of the Court of Appeals [1] which reversed the court a quo and adjudged petitioners to be liable for damages due to
negligence as a common carrier resulting in the death of a passenger.
On 14 October 1987, at about 5:00 o'clock in the morning, the passenger jeepney driven by petitioner Alfredo Mallari Jr.
and owned by his co-petitioner Alfredo Mallari Sr. collided with the delivery van of respondent Bulletin Publishing Corp.
(BULLETIN, for brevity) along the National Highway in Barangay San Pablo, Dinalupihan, Bataan. Petitioner Mallari Jr.
testified that he went to the left lane of the highway and overtook a Fiera which had stopped on the right lane. Before
he passed by the Fiera, he saw the van of respondent BULLETIN coming from the opposite direction. It was driven by one
Felix Angeles. The sketch of the accident showed that the collision occurred after Mallari Jr. overtook the Fiera while
negotiating a curve in the highway. The points of collision were the left rear portion of the passenger jeepney and the
left front side of the delivery van of BULLETIN. The two (2) right wheels of the delivery van were on the right shoulder of
the road and pieces of debris from the accident were found scattered along the shoulder of the road up to a certain
portion of the lane travelled by the passenger jeepney. The impact caused the jeepney to turn around and fall on its left
side resulting in injuries to its passengers one of whom was Israel Reyes who eventually died due to the gravity of his
injuries. Manikanä

On 16 December 1987 Claudia G. Reyes, the widow of Israel M. Reyes, filed a complaint for damages with the Regional
Trial Court of Olongapo City against Alfredo Mallari Sr. and Alfredo Mallari Jr., and also against BULLETIN, its driver Felix
Angeles, and the N.V. Netherlands Insurance Company. The complaint alleged that the collision which resulted in the
death of Israel Reyes was caused by the fault and negligence of both drivers of the passenger jeepney and the Bulletin
Isuzu delivery van. The complaint also prayed that the defendants be ordered jointly and severally to pay plaintiff
P1,006,777.40 in compensatory damages, P40,000.00 for hospital and medical expenses, P18,270.00 for burial expenses
plus such amounts as may be fixed by the trial court for exemplary damages and attorney’s fees.

The trial court found that the proximate cause of the collision was the negligence of Felix Angeles, driver of the Bulletin
delivery van, considering the fact that the left front portion of the delivery truck driven by Felix Angeles hit and bumped
the left rear portion of the passenger jeepney driven by Alfredo Mallari Jr. Hence, the trial court ordered BULLETIN and
Felix Angeles to pay jointly and severally Claudia G. Reyes, widow of the deceased victim, the sums of P42,106.93 for
medical expenses; P8,600.00 for funeral and burial expenses; P1,006,777.40 for loss of earning capacity; P5,000.00 for
moral damages and P10,000.00 for attorney’s fees. The trial court also ordered N.V. Netherlands Insurance Company to
indemnify Claudia G. Reyes P12,000.00 as death indemnity and P2,500.00 for funeral expenses which when paid should
be deducted from the liabilities of respondent BULLETIN and its driver Felix Angeles to the plaintiff. It also dismissed the
complaint against the other defendants Alfredo Mallari Sr. and Alfredo Mallari Jr.

On appeal the Court of Appeals modified the decision of the trial court and found no negligence on the part of Angeles
and consequently of his employer, respondent BULLETIN. Instead, the appellate court ruled that the collision was caused
by the sole negligence of petitioner Alfredo Mallari Jr. who admitted that immediately before the collision and after he
rounded a curve on the highway, he overtook a Fiera which had stopped on his lane and that he had seen the van driven
by Angeles before overtaking the Fiera. The Court of Appeals ordered petitioners Mallari Jr. and Mallari Sr. to
compensate Claudia G. Reyes P1,006,777.50 for loss of earning capacity, P50,000.00 as indemnity for death and
P10,000.00 for attorney’s fees. It absolved from any liability respondent BULLETIN, Felix Angeles and N.V. Netherlands
Insurance Company. Hence this petition. Oldmisâ o

Petitioners contend that there is no evidence to show that petitioner Mallari Jr. overtook a vehicle at a curve on the road
at the time of the accident and that the testimony of Angeles on the overtaking made by Mallari Jr. was not credible and
unreliable. Petitioner also submits that the trial court was in a better position than the Court of Appeals to assess the
evidence and observe the witnesses as well as determine their credibility; hence, its finding that the proximate cause of
the collision was the negligence of respondent Angeles, driver of the delivery van owned by respondent BULLETIN,
should be given more weight and consideration.

We cannot sustain petitioners. Contrary to their allegation that there was no evidence whatsoever that petitioner
Mallari Jr. overtook a vehicle at a curve on the road at the time of or before the accident, the same petitioner himself
testified that such fact indeed did occur -

Q:.......And what was that accident all about?

A:.......Well, what happened, sir, is that at about that time 5:00 o’clock in that morning of October 14 while I was
negotiating on the highway at San Pablo, Dinalupihan, Bataan, I was then following a blue Ford Fierra and my distance
behind was about twenty (20) feet and then I passed that blue Ford Fierra. I overtook and when I was almost on the
right lane of the highway towards Olongapo City there was an oncoming delivery van of the Bulletin Publishing
Corporation which bumped the left rear portion of the jeepney which I was driving and as a result of which the jeepney x
x x turned around and fell on its left side and as a result of which some of my passengers including me were injured, sir x
xxx

Q:.......Before you overtook the Ford Fierra jeepney did you look x x x whether there was any vehicle coming towards
you?

A:.......Yes, sir.

Q:.......Did you see the Bulletin van or the Press van coming towards you?

A:.......Yes, sir.

Q:.......At the moment the Ford Fierra xxx stop(ped) and in overtaking the Fierra, did you not have an option to stop and
not to overtake the Ford Fierra?

A:.......Well, at the time when the Ford Fierra stopped in front of me I slowed down with the intention of applying the
brake, however, when I saw the oncoming vehicle which is the Press van is very far x x x which is 100 feet distance, x x x
it is sufficient to overtake the Ford Fierra so I overt(ook) it x x x x

Q:.......You said that you took into consideration the speed of the oncoming Press van but you also could not estimate
the speed of the press van because it was dark at that time, which of these statements are true? Ncmâ

A:.......What I wanted to say, I took into consideration the speed of the oncoming vehicle, the Press van, although at the
moment I could not estimate the speed of the oncoming vehicle x x x x [2]

The Court of Appeals correctly found, based on the sketch and spot report of the police authorities which were not
disputed by petitioners, that the collision occurred immediately after petitioner Mallari Jr. overtook a vehicle in front of
it while traversing a curve on the highway. [3] This act of overtaking was in clear violation of Sec. 41, pars. (a) and (b), of
RA 4136 as amended, otherwise known as The Land Transportation and Traffic Code which provides:

Sec. 41. Restrictions on overtaking and passing. - (a) The driver of a vehicle shall not drive to the left side of the center
line of a highway in overtaking or passing another vehicle proceeding in the same direction, unless such left side is
clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking or passing to be
made in safety.

(b) The driver of a vehicle shall not overtake or pass another vehicle proceeding in the same direction when approaching
the crest of a grade, nor upon a curve in the highway, where the driver’s view along the highway is obstructed within a
distance of five hundred feet ahead except on a highway having two or more lanes for movement of traffic in one
direction where the driver of a vehicle may overtake or pass another vehicle:

Provided That on a highway, within a business or residential district, having two or more lanes for movement of traffic in
one direction, the driver of a vehicle may overtake or pass another vehicle on the right.

The rule is settled that a driver abandoning his proper lane for the purpose of overtaking another vehicle in an ordinary
situation has the duty to see to it that the road is clear and not to proceed if he cannot do so in safety. [4] When a motor
vehicle is approaching or rounding a curve, there is special necessity for keeping to the right side of the road and the
driver does not have the right to drive on the left hand side relying upon having time to turn to the right if a car
approaching from the opposite direction comes into view. [5] NcmmisÓ

In the instant case, by his own admission, petitioner Mallari Jr. already saw that the BULLETIN delivery van was coming
from the opposite direction and failing to consider the speed thereof since it was still dark at 5:00 o'clock in the morning
mindlessly occupied the left lane and overtook two (2) vehicles in front of it at a curve in the highway. Clearly, the
proximate cause of the collision resulting in the death of Israel Reyes, a passenger of the jeepney, was the sole
negligence of the driver of the passenger jeepney, petitioner Alfredo Mallari Jr., who recklessly operated and drove his
jeepney in a lane where overtaking was not allowed by traffic rules. Under Art. 2185 of the Civil Code, unless there is
proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the
mishap he was violating a traffic regulation. As found by the appellate court, petitioners failed to present satisfactory
evidence to overcome this legal presumption.

The negligence and recklessness of the driver of the passenger jeepney is binding against petitioner Mallari Sr., who
admittedly was the owner of the passenger jeepney engaged as a common carrier, considering the fact that in an action
based on contract of carriage, the court need not make an express finding of fault or negligence on the part of the
carrier in order to hold it responsible for the payment of damages sought by the passenger. Under Art. 1755 of the Civil
Code, a common carrier is bound to carry the passengers safely as far as human care and foresight can provide using the
utmost diligence of very cautious persons with due regard for all the circumstances. Moreover, under Art. 1756 of the
Civil Code, in case of death or injuries to passengers, a common carrier is presumed to have been at fault or to have
acted negligently, unless it proves that it observed extraordinary diligence. Further, pursuant to Art. 1759 of the same
Code, it is liable for the death of or injuries to passengers through the negligence or willful acts of the former’s
employees. This liability of the common carrier does not cease upon proof that it exercised all the diligence of a good
father of a family in the selection of its employees. Clearly, by the contract of carriage, the carrier jeepney owned by
Mallari Sr. assumed the express obligation to transport the passengers to their destination safely and to observe
extraordinary diligence with due regard for all the circumstances, and any injury or death that might be suffered by its
passengers is right away attributable to the fault or negligence of the carrier. Scncä m

The monetary award ordered by the appellate court to be paid by petitioners to the widow of the deceased passenger
Israel M. Reyes of P1,006,777.50 for loss of earning capacity, P50,000.00 as civil indemnity for death, and P10,000.00 for
attorney’s fees, all of which were not disputed by petitioners, is a factual matter binding and conclusive upon this Court.

WHEREFORE, the Petition is DENIED and the Decision of the Court of Appeals dated 20 September 1995 reversing the
decision of the trial court being in accord with law and evidence is AFFIRMED. Consequently, petitioners are ordered
jointly and severally to pay Claudia G. Reyes P1,006,777.50 for loss of earning capacity, P50,000.00 as civil indemnity for
death, and P10,000.00 for attorney’s fees. Costs against petitioners.

SO ORDERED.

Mendoza, Quisumbing, Buena and De Leon, Jr., concur.2/22/00 9:44 AM

C. MANUFACTURERS AND PROCESSORS (ART 2187)

D, MUNICIPAL CORPORATIONS (ART 2189) (SEC. 24, RA 7160)

SECOND DIVISION

G.R. No. 61516 March 21, 1989

FLORENTINA A. GUILATCO, petitioner,

vs.

CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents.

Nolan R. Evangelista for petitioner.

The City Legal Officer for respondents.

SARMIENTO, J.:

In a civil action 1 for recovery of damages filed by the petitioner Florentina A. Guilatco, the following judgment was
rendered against the respondent City of Dagupan:

(1) Ordering defendant City of Dagupan to pay plaintiff actual damages in the amount of P 15,924 (namely P8,054.00 as
hospital, medical and other expenses [Exhs. H to H-60], P 7,420.00 as lost income for one (1) year [Exh. F] and P 450.00
as bonus). P 150,000.00 as moral damages, P 50,000.00 as exemplary damages, and P 3,000.00 as attorney's fees, and
litigation expenses, plus costs and to appropriate through its Sangguniang Panglunsod (City Council) said amounts for
said purpose;

(2) Dismissing plaintiffs complaint as against defendant City Engr. Alfredo G. Tangco; and
(3) Dismissing the counterclaims of defendant City of Dagupan and defendant City Engr. Alfredo G. Tangco, for lack of
merit. 2

The facts found by the trial court are as follows: 3

It would appear from the evidences that on July 25, 1978, herein plaintiff, a Court Interpreter of Branch III, CFI--Dagupan
City, while she was about to board a motorized tricycle at a sidewalk located at Perez Blvd. (a National Road, under the
control and supervision of the City of Dagupan) accidentally fell into a manhole located on said sidewalk, thereby
causing her right leg to be fractured. As a result thereof, she had to be hospitalized, operated on, confined, at first at the
Pangasinan Provincial Hospital, from July 25 to August 3, 1978 (or for a period of 16 days). She also incurred
hospitalization, medication and other expenses to the tune of P 8,053.65 (Exh. H to H-60) or a total of P 10,000.00 in all,
as other receipts were either lost or misplaced; during the period of her confinement in said two hospitals, plaintiff
suffered severe or excruciating pain not only on her right leg which was fractured but also on all parts of her body; the
pain has persisted even after her discharge from the Medical City General Hospital on October 9, 1978, to the present.
Despite her discharge from the Hospital plaintiff is presently still wearing crutches and the Court has actually observed
that she has difficulty in locomotion. From the time of the mishap on July 25, 1978 up to the present, plaintiff has not
yet reported for duty as court interpreter, as she has difficulty of locomotion in going up the stairs of her office, located
near the city hall in Dagupan City. She earns at least P 720.00 a month consisting of her monthly salary and other means
of income, but since July 25, 1978 up to the present she has been deprived of said income as she has already consumed
her accrued leaves in the government service. She has lost several pounds as a result of the accident and she is no longer
her former jovial self, she has been unable to perform her religious, social, and other activities which she used to do
prior to the incident.

Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial Hospital, as well as Dr. Antonio Sison of the Medical City
General Hospital in Mandaluyong Rizal (Exh. I; see also Exhs. F, G, G-1 to G-19) have confirmed beyond shadow of any
doubt the extent of the fracture and injuries sustained by the plaintiff as a result of the mishap. On the other hand,
Patrolman Claveria, De Asis and Cerezo corroborated the testimony of the plaintiff regarding the mishap and they have
confirmed the existence of the manhole (Exhs. A, B, C and sub-exhibits) on the sidewalk along Perez Blvd., at the time of
the incident on July 25, 1978 which was partially covered by a concrete flower pot by leaving gaping hole about 2 ft. long
by 1 1/2 feet wide or 42 cms. wide by 75 cms. long by 150 cms. deep (see Exhs. D and D-1).

Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly ex-officio Highway Engineer, City Engineer of
the Public Works and Building Official for Dagupan City, admitted the existence of said manhole along the sidewalk in
Perez Blvd., admittedly a National Road in front of the Luzon Colleges. He also admitted that said manhole (there are at
least 11 in all in Perez Blvd.) is owned by the National Government and the sidewalk on which they are found along
Perez Blvd. are also owned by the National Government. But as City Engineer of Dagupan City, he supervises the
maintenance of said manholes or drainage system and sees to it that they are properly covered, and the job is
specifically done by his subordinates, Mr. Santiago de Vera (Maintenance Foreman) and Engr. Ernesto Solermo also a
maintenance Engineer. In his answer defendant Tangco expressly admitted in par. 7-1 thereof, that in his capacity as ex-
officio Highway Engineer for Dagupan City he exercises supervision and control over National roads, including the Perez
Blvd. where the incident happened.

On appeal by the respondent City of Dagupan, the appellate court 4 reversed the lower court findings on the ground
that no evidence was presented by the plaintiff- appellee to prove that the City of Dagupan had "control or supervision"
over Perez Boulevard. 5

The city contends that Perez Boulevard, where the fatal drainage hole is located, is a national road that is not under the
control or supervision of the City of Dagupan. Hence, no liability should attach to the city. It submits that it is actually the
Ministry of Public Highways that has control or supervision through the Highway Engineer which, by mere coincidence, is
held concurrently by the same person who is also the City Engineer of Dagupan.

After examination of the findings and conclusions of the trial court and those of the appellate court, as well as the
arguments presented by the parties, we agree with those of the trial court and of the petitioner. Hence, we grant the
petition.

In this review on certiorari, we have simplified the errors assigned by the petitioner to a single issue: whether or not
control or supervision over a national road by the City of Dagupan exists, in effect binding the city to answer for
damages in accordance with article 2189 of the Civil Code.
The liability of public corporations for damages arising from injuries suffered by pedestrians from the defective condition
of roads is expressed in the Civil Code as follows:

Article 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any
person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under
their control or supervision.

It is not even necessary for the defective road or street to belong to the province, city or municipality for liability to
attach. The article only requires that either control or supervision is exercised over the defective road or street. 6

In the case at bar, this control or supervision is provided for in the charter of Dagupan and is exercised through the City
Engineer who has the following duties:

Sec. 22. The City Engineer--His powers, duties and compensation-There shall be a city engineer, who shall be in charge of
the department of Engineering and Public Works. He shall receive a salary of not exceeding three thousand pesos per
annum. He shall have the following duties:

(j) He shall have the care and custody of the public system of waterworks and sewers, and all sources of water supply,
and shall control, maintain and regulate the use of the same, in accordance with the ordinance relating thereto; shall
inspect and regulate the use of all private systems for supplying water to the city and its inhabitants, and all private
sewers, and their connection with the public sewer system.

The same charter of Dagupan also provides that the laying out, construction and improvement of streets, avenues and
alleys and sidewalks, and regulation of the use thereof, may be legislated by the Municipal Board . 7 Thus the charter
clearly indicates that the city indeed has supervision and control over the sidewalk where the open drainage hole is
located.

The express provision in the charter holding the city not liable for damages or injuries sustained by persons or property
due to the failure of any city officer to enforce the provisions of the charter, can not be used to exempt the city, as in the
case at bar.8

The charter only lays down general rules regulating the liability of the city. On the other hand article 2189 applies in
particular to the liability arising from "defective streets, public buildings and other public works." 9

The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision over the said road. But the city
can not be excused from liability by the argument that the duty of the City Engineer to supervise or control the said
provincial road belongs more to his functions as an ex-officio Highway Engineer of the Ministry of Public Highway than as
a city officer. This is because while he is entitled to an honorarium from the Ministry of Public Highways, his salary from
the city government substantially exceeds the honorarium.

We do not agree.

Alfredo G. Tangco "(i)n his official capacity as City Engineer of Dagupan, as Ex- Officio Highway Engineer, as Ex-Officio
City Engineer of the Bureau of Public Works, and, last but not the least, as Building Official for Dagupan City, receives the
following monthly compensation: P 1,810.66 from Dagupan City; P 200.00 from the Ministry of Public Highways; P
100.00 from the Bureau of Public Works and P 500.00 by virtue of P.D. 1096, respectively." 10 This function of
supervision over streets, public buildings, and other public works pertaining to the City Engineer is coursed through a
Maintenance Foreman and a Maintenance Engineer.11 Although these last two officials are employees of the National
Government, they are detailed with the City of Dagupan and hence receive instruction and supervision from the city
through the City Engineer.

There is, therefore, no doubt that the City Engineer exercises control or supervision over the public works in question.
Hence, the liability of the city to the petitioner under article 2198 of the Civil Code is clear.

Be all that as it may, the actual damages awarded to the petitioner in the amount of P 10,000.00 should be reduced to
the proven expenses of P 8,053.65 only. The trial court should not have rounded off the amount. In determining actual
damages, the court can not rely on "speculation, conjecture or guess work" as to the amount. Without the actual proof
of loss, the award of actual damages becomes erroneous. 12

On the other hand, moral damages may be awarded even without proof of pecuniary loss, inasmuch as the
determination of the amount is discretionary on the court.13 Though incapable of pecuniary estimation, moral damages
are in the nature of an award to compensate the claimant for actual injury suffered but which for some reason can not
be proven. However, in awarding moral damages, the following should be taken into consideration:

(1) First, the proximate cause of the injury must be the claimee's acts.14

(2) Second, there must be compensatory or actual damages as satisfactory proof of the factual basis for damages.15

(3) Third, the award of moral damages must be predicated on any of the cases enumerated in the Civil Code. 16

In the case at bar, the physical suffering and mental anguish suffered by the petitioner were proven. Witnesses from the
petitioner's place of work testified to the degeneration in her disposition-from being jovial to depressed. She refrained
from attending social and civic activities.17

Nevertheless the award of moral damages at P 150,000.00 is excessive. Her handicap was not permanent and disabled
her only during her treatment which lasted for one year. Though evidence of moral loss and anguish existed to warrant
the award of damages,18 the moderating hand of the law is called for. The Court has time and again called attention to
the reprehensible propensity of trial judges to award damages without basis,19 resulting in exhorbitant amounts.20

Although the assessment of the amount is better left to the discretion of the trial court 21 under preceding
jurisprudence, the amount of moral damages should be reduced to P 20,000.00.

As for the award of exemplary damages, the trial court correctly pointed out the basis:

To serve as an example for the public good, it is high time that the Court, through this case, should serve warning to the
city or cities concerned to be more conscious of their duty and responsibility to their constituents, especially when they
are engaged in construction work or when there are manholes on their sidewalks or streets which are uncovered, to
immediately cover the same, in order to minimize or prevent accidents to the poor pedestrians.22

Too often in the zeal to put up "public impact" projects such as beautification drives, the end is more important than the
manner in which the work is carried out. Because of this obsession for showing off, such trivial details as misplaced
flower pots betray the careless execution of the projects, causing public inconvenience and inviting accidents.

Pending appeal by the respondent City of Dagupan from the trial court to the appellate court, the petitioner was able to
secure an order for garnishment of the funds of the City deposited with the Philippine National Bank, from the then
presiding judge, Hon. Willelmo Fortun. This order for garnishment was revoked subsequently by the succeeding
presiding judge, Hon. Romeo D. Magat, and became the basis for the petitioner's motion for reconsideration which was
also denied. 23

We rule that the execution of the judgment of the trial court pending appeal was premature. We do not find any good
reason to justify the issuance of an order of execution even before the expiration of the time to appeal .24

WHEREFORE, the petition is GRANTED. The assailed decision and resolution of the respondent Court of Appeals are
hereby REVERSED and SET ASIDE and the decision of the trial court, dated March 12, 1979 and amended on March 13,
1979, is hereby REINSTATED with the indicated modifications as regards the amounts awarded:

(1) Ordering the defendant City of Dagupan to pay the plaintiff actual damages in the amount of P 15,924 (namely P
8,054.00 as hospital, medical and other expenses; P 7,420.00 as lost income for one (1) year and P 450.00 as bonus); P
20,000.00 as moral damages and P 10,000.00 as exemplary damages.

The attorney's fees of P 3,000.00 remain the same.

SO ORDERED.

EN BANC

G.R. No. L-23052 January 29, 1968

CITY OF MANILA, petitioner,

vs.
GENARO N. TEOTICO and COURT OF APPEALS, respondents.

Appeal by certiorari from a decision of the Court of Appeals.

On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner of the Old Luneta and P. Burgos Avenue,
Manila, within a "loading and unloading" zone, waiting for a jeepney to take him down town. After waiting for about five
minutes, he managed to hail a jeepney that came along to a stop. As he stepped down from the curb to board the
jeepney, and took a few steps, he fell inside an uncovered and unlighted catch basin or manhole on P. Burgos Avenue.
Due to the fall, his head hit the rim of the manhole breaking his eyeglasses and causing broken pieces thereof to pierce
his left eyelid. As blood flowed therefrom, impairing his vision, several persons came to his assistance and pulled him out
of the manhole. One of them brought Teotico to the Philippine General Hospital, where his injuries were treated, after
which he was taken home. In addition to the lacerated wound in his left upper eyelid, Teotico suffered contusions on the
left thigh, the left upper arm, the right leg and the upper lip apart from an abrasion on the right infra-patella region.
These injuries and the allergic eruption caused by anti-tetanus injections administered to him in the hospital, required
further medical treatment by a private practitioner who charged therefor P1,400.00.

As a consequence of the foregoing occurrence, Teotico filed, with the Court of First Instance of Manila, a complaint —
which was, subsequently, amended — for damages against the City of Manila, its mayor, city engineer, city health
officer, city treasurer and chief of police. As stated in the decision of the trial court, and quoted with approval by the
Court of Appeals,

At the time of the incident, plaintiff was a practicing public accountant, a businessman and a professor at the University
of the East. He held responsible positions in various business firms like the Philippine Merchandising Co., the A.U.
Valencia and Co., the Silver Swan Manufacturing Company and the Sincere Packing Corporation. He was also associated
with several civic organizations such as the Wack Wack Golf Club, the Chamber of Commerce of the Philippines, Y's Men
Club of Manila and the Knights of Rizal. As a result of the incident, plaintiff was prevented from engaging in his
customary occupation for twenty days. Plaintiff has lost a daily income of about P50.00 during his incapacity to work.
Because of the incident, he was subjected to humiliation and ridicule by his business associates and friends. During the
period of his treatment, plaintiff was under constant fear and anxiety for the welfare of his minor children since he was
their only support. Due to the filing of this case, plaintiff has obligated himself to pay his counsel the sum of P2,000.00.

On the other hand, the defense presented evidence, oral and documentary, to prove that the Storm Drain Section,
Office of the City Engineer of Manila, received a report of the uncovered condition of a catchbasin at the corner of P.
Burgos and Old Luneta Streets, Manila, on January 24, 1958, but the same was covered on the same day (Exhibit 4); that
again the iron cover of the same catch basin was reported missing on January 30, 1958, but the said cover was replaced
the next day (Exhibit 5); that the Office of the City Engineer never received any report to the effect that the catchbasin in
question was not covered between January 25 and 29, 1968; that it has always been a policy of the said office, which is
charged with the duty of installation, repair and care of storm drains in the City of Manila, that whenever a report is
received from whatever source of the loss of a catchbasin cover, the matter is immediately attended to, either by
immediately replacing the missing cover or covering the catchbasin with steel matting that because of the lucrative
scrap iron business then prevailing, stealing of iron catchbasin covers was rampant; that the Office of the City Engineer
has filed complaints in court resulting from theft of said iron covers; that in order to prevent such thefts, the city
government has changed the position and layout of catchbasins in the City by constructing them under the sidewalks
with concrete cement covers and openings on the side of the gutter; and that these changes had been undertaken by
the city from time to time whenever funds were available.

After appropriate proceedings the Court of First Instance of Manila rendered the aforementioned decision sustaining the
theory of the defendants and dismissing the amended complaint, without costs.

On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except insofar as the City of Manila is
concerned, which was sentenced to pay damages in the aggregate sum of P6,750.00. 1 Hence, this appeal by the City of
Manila.

The first issue raised by the latter is whether the present case is governed by Section 4 of Republic Act No. 409 (Charter
of the City of Manila) reading:

The city shall not be liable or held for damages or injuries to persons or property arising from the failure of the Mayor,
the Municipal Board, or any other city officer, to enforce the provisions of this chapter, or any other law or ordinance, or
from negligence of said Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said
provisions.

or by Article 2189 of the Civil Code of the Philippines which provides:

Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by
reason of defective conditions of road, streets, bridges, public buildings, and other public works under their control or
supervision.

Manila maintains that the former provision should prevail over the latter, because Republic Act 409, is a special law,
intended exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire Philippines.

The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial
application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards the
subject-matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the
liability of the City of Manila for: "damages or injury to persons or property arising from the failure of" city officers "to
enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal
Board, or other officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of
the Civil Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for damages for
the death of, or injury suffered by any person by reason" — specifically — "of the defective condition of roads, streets,
bridges, public buildings, and other-public works under their control or supervision." In other words, said section 4 refers
to liability arising from negligence, in general, regardless of the object thereof, whereas Article 2189 governs liability due
to "defective streets," in particular. Since the present action is based upon the alleged defective condition of a road, said
Article 2189 is decisive thereon.

It is urged that the City of Manila cannot be held liable to Teotico for damages: 1) because the accident involving him
took place in a national highway; and 2) because the City of Manila has not been negligent in connection therewith.

As regards the first issue, we note that it is based upon an allegation of fact not made in the answer of the City.
Moreover, Teotico alleged in his complaint, as well as in his amended complaint, that his injuries were due to the
defective condition of a street which is "under the supervision and control" of the City. In its answer to the amended
complaint, the City, in turn, alleged that "the streets aforementioned were and have been constantly kept in good
condition and regularly inspected and the storm drains and manholes thereof covered by the defendant City and the
officers concerned" who "have been ever vigilant and zealous in the performance of their respective functions and
duties as imposed upon them by law." Thus, the City had, in effect, admitted that P. Burgos Avenue was and is under its
control and supervision.

Moreover, the assertion to the effect that said Avenue is a national highway was made, for the first time, in its motion
for reconsideration of the decision of the Court of Appeals. Such assertion raised, therefore, a question of fact, which
had not been put in issue in the trial court, and cannot be set up, for the first time, on appeal, much less after the
rendition of the decision of the appellate court, in a motion for the reconsideration thereof.

At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach that the
defective roads or streets belong to the province, city or municipality from which responsibility is exacted. What said
article requires is that the province, city or municipality have either "control or supervision" over said street or road.
Even if P. Burgos Avenue were, therefore, a national highway, this circumstance would not necessarily detract from its
"control or supervision" by the City of Manila, under Republic Act 409. In fact Section 18(x) thereof provides:

Sec. 18. Legislative powers. — The Municipal Board shall have the following legislative powers:

(x) Subject to the provisions of existing law to provide for the laying out, construction and improvement, and to regulate
the use of streets, avenues, alleys, sidewalks, wharves, piers, parks, cemeteries, and other public places; to provide for
lighting, cleaning, and sprinkling of streets and public places; . . . to provide for the inspection of, fix the license fees for
and regulate the openings in the same for the laying of gas, water, sewer and other pipes, the building and repair of
tunnels, sewers, and drains, and all structures in and under the same and the erecting of poles and the stringing of wires
therein; to provide for and regulate cross-works, curbs, and gutters therein, . . . to regulate traffic and sales upon the
streets and other public places; to provide for the abatement of nuisances in the same and punish the authors or owners
thereof; to provide for the construction and maintenance, and regulate the use, of bridges, viaducts and culverts; to
prohibit and regulate ball playing, kite-flying, hoop rolling, and other amusements which may annoy persons using the
streets and public places, or frighten horses or other animals; to regulate the speed of horses and other animals, motor
and other vehicles, cars, and locomotives within the limits of the city; to regulate the lights used on all vehicles, cars, and
locomotives; . . . to provide for and change the location, grade, and crossing of railroads, and compel any such railroad
to raise or lower its tracks to conform to such provisions or changes; and to require railroad companies to fence their
property, or any part thereof, to provide suitable protection against injury to persons or property, and to construct and
repair ditches, drains, sewers, and culverts along and under their tracks, so that the natural drainage of the streets and
adjacent property shall not be obstructed.

This authority has been neither withdrawn nor restricted by Republic Act No. 917 and Executive Order No. 113, dated
May 2, 1955, upon which the City relies. Said Act governs the disposition or appropriation of the highway funds and the
giving of aid to provinces, chartered cities and municipalities in the construction of roads and streets within their
respective boundaries, and Executive Order No. 113 merely implements the provisions of said Republic Act No. 917,
concerning the disposition and appropriation of the highway funds. Moreover, it provides that "the construction,
maintenance and improvement of national primary, national secondary and national aid provincial and city roads shall
be accomplished by the Highway District Engineers and Highway City Engineers under the supervision of the
Commissioner of Public Highways and shall be financed from such appropriations as may be authorized by the Republic
of the Philippines in annual or special appropriation Acts."

Then, again, the determination of whether or not P. Burgos Avenue is under the control or supervision of the City of
Manila and whether the latter is guilty of negligence, in connection with the maintenance of said road, which were
decided by the Court of Appeals in the affirmative, is one of fact, and the findings of said Court thereon are not subject
to our review.

WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs against the City of Manila. It is so
ordered.1äwphï1.ñët

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 71049 May 29, 1987

BERNARDINO JIMENEZ, petitioner,

vs.

CITY OF MANILA and INTERMEDIATE APPELLATE COURT, respondents.

This is a petition for review on certiorari of: (1) the decision * of the Intermediate Appellate Court in AC-G.R. No.
013887-CV Bernardino Jimenez v. Asiatic Integrated Corporation and City of Manila, reversing the decision ** of the
Court of First Instance of Manila, Branch XXII in Civil Case No. 96390 between the same parties, but only insofar as
holding Asiatic Integrated Corporation solely liable for damages and attorney's fees instead of making the City of Manila
jointly and solidarily liable with it as prayed for by the petitioner and (2) the resolution of the same Appellate Court
denying his Partial Motion for Reconsideration (Rollo, p. 2).

The dispositive portion of the Intermediate Appellate Court's decision is as follows:

WHEREFORE, the decision appealed from is hereby REVERSED. A new one is hereby entered ordering the defendant
Asiatic Integrated Corporation to pay the plaintiff P221.90 actual medical expenses, P900.00 for the amount paid for the
operation and management of a school bus, P20,000.00 as moral damages due to pains, sufferings and sleepless nights
and P l0,000.00 as attorney's fees.

SO ORDERED. (p. 20, Rollo)

The findings of respondent Appellate Court are as follows:

The evidence of the plaintiff (petitioner herein) shows that in the morning of August 15, 1974 he, together with his
neighbors, went to Sta. Ana public market to buy "bagoong" at the time when the public market was flooded with ankle
deep rainwater. After purchasing the "bagoong" he turned around to return home but he stepped on an uncovered
opening which could not be seen because of the dirty rainwater, causing a dirty and rusty four- inch nail, stuck inside the
uncovered opening, to pierce the left leg of plaintiff-petitioner penetrating to a depth of about one and a half inches.
After administering first aid treatment at a nearby drugstore, his companions helped him hobble home. He felt ill and
developed fever and he had to be carried to Dr. Juanita Mascardo. Despite the medicine administered to him by the
latter, his left leg swelled with great pain. He was then rushed to the Veterans Memorial Hospital where he had to be
confined for twenty (20) days due to high fever and severe pain.

Upon his discharge from the hospital, he had to walk around with crutches for fifteen (15) days. His injury prevented him
from attending to the school buses he is operating. As a result, he had to engage the services of one Bienvenido Valdez
to supervise his business for an aggregate compensation of nine hundred pesos (P900.00). (Decision, AC-G.R. CV No.
01387, Rollo, pp. 13-20).

Petitioner sued for damages the City of Manila and the Asiatic Integrated Corporation under whose administration the
Sta. Ana Public Market had been placed by virtue of a Management and Operating Contract (Rollo, p. 47).

The lower court decided in favor of respondents, the dispositive portion of the decision reading:

WHEREFORE, judgment is hereby rendered in favor of the defendants and against the plaintiff dismissing the complaint
with costs against the plaintiff. For lack of sufficient evidence, the counterclaims of the defendants are likewise
dismissed. (Decision, Civil Case No. 96390, Rollo, p. 42).

As above stated, on appeal, the Intermediate Appellate Court held the Asiatic Integrated Corporation liable for damages
but absolved respondent City of Manila.

Hence this petition.

The lone assignment of error raised in this petition is on whether or not the Intermediate Appellate Court erred in not
ruling that respondent City of Manila should be jointly and severally liable with Asiatic Integrated Corporation for the
injuries petitioner suffered.

In compliance with the resolution of July 1, 1985 of the First Division of this Court (Rollo, p. 29) respondent City of
Manila filed its comment on August 13, 1985 (Rollo, p. 34) while petitioner filed its reply on August 21, 1985 (Reno, p.
51).

Thereafter, the Court in the resolution of September 11, 1985 (Rollo, p. 62) gave due course to the petition and required
both parties to submit simultaneous memoranda

Petitioner filed his memorandum on October 1, 1985 (Rollo, p. 65) while respondent filed its memorandum on October
24, 1985 (Rollo, p. 82).

In the resolution of October 13, 1986, this case was transferred to the Second Division of this Court, the same having
been assigned to a member of said Division (Rollo, p. 92).

The petition is impressed with merit.

As correctly found by the Intermediate Appellate Court, there is no doubt that the plaintiff suffered injuries when he fell
into a drainage opening without any cover in the Sta. Ana Public Market. Defendants do not deny that plaintiff was in
fact injured although the Asiatic Integrated Corporation tries to minimize the extent of the injuries, claiming that it was
only a small puncture and that as a war veteran, plaintiff's hospitalization at the War Veteran's Hospital was free.
(Decision, AC-G.R. CV No. 01387, Rollo, p. 6).

Respondent City of Manila maintains that it cannot be held liable for the injuries sustained by the petitioner because
under the Management and Operating Contract, Asiatic Integrated Corporation assumed all responsibility for damages
which may be suffered by third persons for any cause attributable to it.

It has also been argued that the City of Manila cannot be held liable under Article 1, Section 4 of Republic Act No. 409 as
amended (Revised Charter of Manila) which provides:
The City shall not be liable or held for damages or injuries to persons or property arising from the failure of the Mayor,
the Municipal Board, or any other City Officer, to enforce the provisions of this chapter, or any other law or ordinance,
or from negligence of said Mayor, Municipal Board, or any other officers while enforcing or attempting to enforce said
provisions.

This issue has been laid to rest in the case of City of Manila v. Teotico (22 SCRA 269-272 [1968]) where the Supreme
Court squarely ruled that Republic Act No. 409 establishes a general rule regulating the liability of the City of Manila for
"damages or injury to persons or property arising from the failure of city officers" to enforce the provisions of said Act,
"or any other law or ordinance or from negligence" of the City "Mayor, Municipal Board, or other officers while
enforcing or attempting to enforce said provisions."

Upon the other hand, Article 2189 of the Civil Code of the Philippines which provides that:

Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by any person by
reason of defective conditions of roads, streets, bridges, public buildings and other public works under their control or
supervision.

constitutes a particular prescription making "provinces, cities and municipalities ... liable for damages for the death of,
or injury suffered by any person by reason" — specifically — "of the defective condition of roads, streets, bridges, public
buildings, and other public works under their control or supervision." In other words, Art. 1, sec. 4, R.A. No. 409 refers to
liability arising from negligence, in general, regardless of the object, thereof, while Article 2189 of the Civil Code governs
liability due to "defective streets, public buildings and other public works" in particular and is therefore decisive on this
specific case.

In the same suit, the Supreme Court clarified further that under Article 2189 of the Civil Code, it is not necessary for the
liability therein established to attach, that the defective public works belong to the province, city or municipality from
which responsibility is exacted. What said article requires is that the province, city or municipality has either "control or
supervision" over the public building in question.

In the case at bar, there is no question that the Sta. Ana Public Market, despite the Management and Operating Contract
between respondent City and Asiatic Integrated Corporation remained under the control of the former.

For one thing, said contract is explicit in this regard, when it provides:

II

That immediately after the execution of this contract, the SECOND PARTY shall start the painting, cleaning, sanitizing and
repair of the public markets and talipapas and within ninety (90) days thereof, the SECOND PARTY shall submit a
program of improvement, development, rehabilitation and reconstruction of the city public markets and talipapas
subject to prior approval of the FIRST PARTY. (Rollo, p. 44)

VI

That all present personnel of the City public markets and talipapas shall be retained by the SECOND PARTY as long as
their services remain satisfactory and they shall be extended the same rights and privileges as heretofore enjoyed by
them. Provided, however, that the SECOND PARTY shall have the right, subject to prior approval of the FIRST PARTY to
discharge any of the present employees for cause. (Rollo, p. 45).

VII

That the SECOND PARTY may from time to time be required by the FIRST PARTY, or his duly authorized representative or
representatives, to report, on the activities and operation of the City public markets and talipapas and the facilities and
conveniences installed therein, particularly as to their cost of construction, operation and maintenance in connection
with the stipulations contained in this Contract. (lbid)

The fact of supervision and control of the City over subject public market was admitted by Mayor Ramon Bagatsing in his
letter to Secretary of Finance Cesar Virata which reads:

These cases arose from the controversy over the Management and Operating Contract entered into on December 28,
1972 by and between the City of Manila and the Asiatic Integrated Corporation, whereby in consideration of a fixed
service fee, the City hired the services of the said corporation to undertake the physical management, maintenance,
rehabilitation and development of the City's public markets and' Talipapas' subject to the control and supervision of the
City.

It is believed that there is nothing incongruous in the exercise of these powers vis-a-vis the existence of the contract,
inasmuch as the City retains the power of supervision and control over its public markets and talipapas under the terms
of the contract. (Exhibit "7-A") (Emphasis supplied.) (Rollo, p. 75).

In fact, the City of Manila employed a market master for the Sta. Ana Public Market whose primary duty is to take direct
supervision and control of that particular market, more specifically, to check the safety of the place for the public.

Thus the Asst. Chief of the Market Division and Deputy Market Administrator of the City of Manila testified as follows:

Court This market master is an employee of the City of Manila?

Mr. Ymson Yes, Your Honor.

Q What are his functions?

A Direct supervision and control over the market area assigned to him."(T.s.n.,pp. 41-42, Hearing of May 20, 1977.)

Court As far as you know there is or is there any specific employee assigned with the task of seeing to it that the Sta. Ana
Market is safe for the public?

Mr. Ymson Actually, as I stated, Your Honor, that the Sta. Ana has its own market master. The primary duty of that
market master is to make the direct supervision and control of that particular market, the check or verifying whether the
place is safe for public safety is vested in the market master. (T.s.n., pp. 2425, Hearing of July 27, 1977.) (Emphasis
supplied.) (Rollo, p. 76).

Finally, Section 30 (g) of the Local Tax Code as amended, provides:

The treasurer shall exercise direct and immediate supervision administration and control over public markets and the
personnel thereof, including those whose duties concern the maintenance and upkeep of the market and ordinances
and other pertinent rules and regulations. (Emphasis supplied.) (Rollo, p. 76)

The contention of respondent City of Manila that petitioner should not have ventured to go to Sta. Ana Public Market
during a stormy weather is indeed untenable. As observed by respondent Court of Appeals, it is an error for the trial
court to attribute the negligence to herein petitioner. More specifically stated, the findings of appellate court are as
follows:

... The trial court even chastised the plaintiff for going to market on a rainy day just to buy bagoong. A customer in a
store has the right to assume that the owner will comply with his duty to keep the premises safe for customers. If he
ventures to the store on the basis of such assumption and is injured because the owner did not comply with his duty, no
negligence can be imputed to the customer. (Decision, AC-G. R. CV No. 01387, Rollo, p. 19).

As a defense against liability on the basis of a quasi-delict, one must have exercised the diligence of a good father of a
family. (Art. 1173 of the Civil Code).

There is no argument that it is the duty of the City of Manila to exercise reasonable care to keep the public market
reasonably safe for people frequenting the place for their marketing needs.

While it may be conceded that the fulfillment of such duties is extremely difficult during storms and floods, it must
however, be admitted that ordinary precautions could have been taken during good weather to minimize the dangers to
life and limb under those difficult circumstances.

For instance, the drainage hole could have been placed under the stalls instead of on the passage ways. Even more
important is the fact, that the City should have seen to it that the openings were covered. Sadly, the evidence indicates
that long before petitioner fell into the opening, it was already uncovered, and five (5) months after the incident
happened, the opening was still uncovered. (Rollo, pp. 57; 59). Moreover, while there are findings that during floods the
vendors remove the iron grills to hasten the flow of water (Decision, AC-G.R. CV No. 0 1387; Rollo, p. 17), there is no
showing that such practice has ever been prohibited, much less penalized by the City of Manila. Neither was it shown
that any sign had been placed thereabouts to warn passersby of the impending danger.
To recapitulate, it appears evident that the City of Manila is likewise liable for damages under Article 2189 of the Civil
Code, respondent City having retained control and supervision over the Sta. Ana Public Market and as tort-feasor under
Article 2176 of the Civil Code on quasi-delicts

Petitioner had the right to assume that there were no openings in the middle of the passageways and if any, that they
were adequately covered. Had the opening been covered, petitioner could not have fallen into it. Thus the negligence of
the City of Manila is the proximate cause of the injury suffered, the City is therefore liable for the injury suffered by the
peti- 4 petitioner.

Respondent City of Manila and Asiatic Integrated Corporation being joint tort-feasors are solidarily liable under Article
2194 of the Civil Code.

PREMISES CONSIDERED, the decision of the Court of Appeals is hereby MODIFIED, making the City of Manila and the
Asiatic Integrated Corporation solidarily liable to pay the plaintiff P221.90 actual medical expenses, P900.00 for the
amount paid for the operation and management of the school bus, P20,000.00 as moral damages due to pain, sufferings
and sleepless nights and P10,000.00 as attorney's fees.

SO ORDERED.

THE MUNICIPALITY OF SAN JUAN, METRO MANILA,

- versus -

THE HON. COURT OF APPEALS, LAURA BIGLANG-AWA, METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM
(MWSS), and KWOK CHEUNG,

G.R. No. 121920

In this appeal by way of a petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Municipality of
San Juan urges us to annul and set aside the decision dated 08 September 1995[1] of the Court of Appeals in CA-G.R. CV
No. 38906, affirming with modification an earlier decision of the Regional Trial Court at Pasig City in an action for
damages thereat commenced by private respondent Laura Biglang-awa against, among others, the herein petitioner.

The material facts are not at all disputed:

Under a “Contract For Water Service Connections”*2+ entered into by and between the Metropolitan Waterworks and
Sewerage System (MWSS) and Kwok Cheung as sole proprietor of K.C. Waterworks System Construction (KC, for short),
the former engaged the services of the latter to install water service connections. Article 11 (Scope of Work), paragraph
2.01 of the agreement provides:

2.01 The CONTRACTOR agrees to install water service connections, transfer location of tapping to the nearest
main, undertake separation of service connection, change rusted connections, within the service area of the MWSS
specified in each job order covered by this Contract, from the water main up to the installation of the verticals. Tapping
of the service pipe connection and mounting of water meter shall be undertaken exclusively or solely by the MWSS;

On 20 May 1988, KC was given a Job Order by the South Sector Office of MWSS to conduct and effect excavations at the
corner of M. Paterno and Santolan Road, San Juan, Metro Manila, a national road, for the laying of water pipes and
tapping of water to the respective houses of water concessionaires.

That same day, KC dispatched five (5) of its workers under Project Engineer Ernesto Battad, Jr. to conduct the digging
operations in the specified place. The workers installed four (4) barricades made up of two-inch thick GI pipes welded
together, 1.3 meters wide and 1.2 meters high, at the area where the digging is to take place. The digging operations
started at 9 o’clock in the morning and ended at about 3 o’clock in the afternoon. The workers dug a hole one (1) meter
wide and 1.5 meters deep, after which they refilled the excavated portion of the road with the same gravel and stone
excavated from the area. At that time, only ¾ of the job was finished in view of the fact that the workers were still
required to re-excavate that particular portion for the tapping of pipes for the water connections to the concessionaires.

Meanwhile, between 10 o’clock and 11 o’clock in the evening of 31 May 1988, Priscilla Chan was driving her Toyota
Crown car with Plate No. PDK 991 at a speed of thirty (30) kilometers per hour on the right side of Santolan Road
towards the direction of Pinaglabanan, San Juan, Metro Manila. With her on board the car and seated on the right front
seat was Assistant City Prosecutor Laura Biglang-awa. The road was flooded as it was then raining hard. Suddenly, the
left front wheel of the car fell on a manhole where the workers of KC had earlier made excavations. As a result, the
humerus on the right arm of Prosecutor Biglang-awa was fractured. Thereupon, Priscilla Chan contacted Biglang-awa’s
husband who immediately arrived at the scene and brought his wife to the Cardinal Santos Hospital.

Dispatched to the scene of the accident to conduct an investigation thereof, Pfc. Felix Ramos of the Traffic Division of
the San Juan Police Station, upon arriving thereat, saw Priscilla Chan’s car already extracted from the manhole and
placed beside the excavated portion of the road. According to this police officer, he did not see any barricades at the
scene when he arrived less than an hour later. A Traffic Accident Investigation Report[3] was thereafter prepared and
signed by Pfc. Ramos.

At the hospital, the attending physician, after having performed a close reduction and application of abduction splint on
Biglang-awa, placed a plastic cast on her right arm. Barring complications, the injury she suffered was expected to heal
in four (4) to six (6) weeks, although she must revisit her doctor from time to time for check-up and rehabilitation. After
some time, the plastic cast was removed. Biglang-awa sustained no deformity and no tenderness of the area of the
injury but she could not sleep on her right side because she still felt pain in that portion of her body. A Medical
Certificate[4] on her injuries was issued by Dr. Antonio Rivera.

Consequent to the foregoing incident, Biglang-awa filed before the Regional Trial Court at Pasig, Metro Manila a
complaint for damages against MWSS, the Municipality of San Juan and a number of San Juan municipal officials.

Later, Biglang-awa amended her complaint twice. In her second amended complaint, she included KC as one of the
defendants.

After due proceedings, the trial court rendered judgment in favor of Biglang-awa adjudging MWSS and the
Municipality of San Juan jointly and severally liable to her. Dated 29 February 1992, the decision[5] dispositively reads in
full, thus:

WHEREFORE, foregoing considered, judgment is hereby rendered declaring the Municipality of San Juan, Metro Manila
and the Metropolitan Waterworks and Sewerage System jointly and severally liable to the plaintiff [Biglang-awa]. Both
defendants are ordered to pay plaintiff the amounts of:

(a) P18,389.55, for actual damages suffered by the plaintiff;

(b) P15,000.00, for moral damages;

(c) P10,000.00, for exemplary damages;

(d) P5,000.00, for attorney’s fees; and

(e) to pay the costs.

SO ORDERED.

Unable to accept the judgment, both Biglang-awa and the Municipality of San Juan went to the Court of Appeals via
ordinary appeal under Rule 41 of the Rules of Court, which appeal was thereat docketed as CA-G.R. CV No. 38906.

As stated at the outset hereof, the appellate court, in a decision dated 08 September 1995, affirmed with modification
that of the trial court, to wit:

IN THE LIGHT OF ALL THE FOREGOING, the Decision appealed from is AFFIRMED but modified as follows:

1. The Appellees KC and MWSS and the Appellant San Juan are hereby ordered to pay, jointly and
severally, to [Biglang-awa] the amounts of P50,000.00 by way of moral damages, P50,000.00 by way of exemplary
damages and P5,000.00 by way of attorney’s fees, without prejudice to the right of the Appellee MWSS for
reimbursement from the Appellee KC under the Contract, Exhibit “3-MWSS”:

2. The counterclaims of the Appellees and Appellant San Juan and the cross-claim of the latter are
DISMISSED. Without pronouncement as to costs.

SO ORDERED. (Words in bracket supplied).

Therefrom, petitioner Municipality of San Juan came to this Court thru the present recourse, on its submissions that:

I.

THE RESPONDENT APPELLATE COURT HAS DECIDED A QUESTION OF SUBSTANCE NOT HEREFORE DECIDED BY THE
SUPREME COURT.

II.

THE RESPONDENT APPELLATE COURT HAS DECIDED A QUESTION PROBABLY NOT IN ACCORD WITH THE LAW AND
JURISPRUDENCE.

With no similar recourse having been taken by the other parties, the Court shall limit itself to the liability or non-liability
of petitioner municipality for the injury sustained by Biglang-awa.

In denying liability for the subject accident, petitioner essentially anchored its defense on two provisions of laws,
namely: (1) Section 149, [1][z] of Batas Pambansa Blg. 337, otherwise known as the Local Government Code of 1983; and
(2) Section 8, Ordinance 82-01, of the Metropolitan Manila Commission.

Petitioner maintains that under Section 149, [1][z] of the Local Government Code,[6] it is obliged to provide for the
construction, improvement, repair and maintenance of only municipal streets, avenues, alleys, sidewalks, bridges, parks
and other public places. Ergo, since Santolan Road is concededly a national and not a municipal road, it cannot be held
liable for the injuries suffered by Biglang-awa on account of the accident that occurred on said road.

Additionally, petitioner contends that under Section 8, Ordinance No. 82-01, of the Metropolitan Manila Commission,
which reads:

In the event of death, injury and/or damages caused by the non-completion of such works and/or failure of one
undertaking the work to adopt the required precautionary measures for the protection of the general public or violation
of any of the terms or conditions of the permit, the permittee/excavator shall assume fully all liabilities for such death,
injury or damage arising therefrom. For this purpose, the excavator/permittee shall purchase insurance coverage to
answer for third party liability, only the Project Engineer of KC and MWSS can be held liable for the same accident.

The petition must have to be denied.

Jurisprudence[7] teaches that for liability to arise under Article 2189[8] of the Civil Code, ownership of the roads, streets,
bridges, public buildings and other public works, is not a controlling factor, it being sufficient that a province, city or
municipality has control or supervision thereof. This, we made clear in City of Manila vs. Teotico, et al[9]:

At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach that the
defective roads or streets belong to the province, city or municipality from which responsibility is exacted. What said
article requires is that the province, city or municipality have either "control or supervision" over said street or road. x x

It is argued, however, that under Section 149, [1][z] of the Local Government Code, petitioner has control or supervision
only over municipal and not national roads, like Santolan Road.

Sadly, petitioner failed to take note of the other provisions of Section 149 of the same Code, more particularly the
following:

Section 149. Powers and Duties. – (1) The sangguniang bayan shall:

(bb) Regulate the drilling and excavation of the ground for the laying of gas, water, sewer, and other pipes; the building
and repair of tunnels, sewers, drains and other similar structures; erecting of poles and the use of crosswalks, curbs and
gutters therein, and adopt measures to ensure public safety against open canals, manholes, live wires and other similar
hazards to life and property, and provide just compensation or relief for persons suffering from them; (Underscoring
supplied)

Clear it is from the above that the Municipality of San Juan can “regulate” the drilling and excavation of the ground for
the laying of gas, water, sewer, and other pipes within its territorial jurisdiction.
Doubtless, the term “regulate” found in the aforequoted provision of Section 149 can only mean that petitioner
municipality exercises the power of control, or, at the very least, supervision over all excavations for the laying of gas,
water, sewer and other pipes within its territory.

We must emphasize that under paragraph [1][bb] of Section 149, supra, of the Local Government Code, the phrases
“regulate the drilling and excavation of the ground for the laying of gas, water, sewer, and other pipes”, and “adopt
measures to ensure public safety against open canals, manholes, live wires and other similar hazards to life and
property”, are not modified by the term “municipal road”. And neither can it be fairly inferred from the same provision
of Section 149 that petitioner’s power of regulation vis-à-vis the activities therein mentioned applies only in cases where
such activities are to be performed in municipal roads. To our mind, the municipality’s liability for injuries caused by its
failure to regulate the drilling and excavation of the ground for the laying of gas, water, sewer, and other pipes, attaches
regardless of whether the drilling or excavation is made on a national or municipal road, for as long as the same is within
its territorial jurisdiction.

We are thus in full accord with the following pronouncements of the appellate court in the decision under review:

While it may be true that the Department of Public Works and Highways may have issued the requisite permit to the
Appellee KC and/or concessionaires for the excavation on said road, the Appellant San Juan is not thereby relieved of its
liability to [Biglang-awa] for its own gross negligence. Indeed, Evangeline Alfonso, the witness for the Appellant San Juan
unabashedly [sic] admitted, when she testified in the Court a ¬ quo, that even if the Department of Public Works and
Highways failed to effect the requisite refilling, the Appellant San Juan was mandated to undertake the necessary
precautionary measures to avert accidents and insure the safety of pedestrians and commuters:

The [petitioner] cannot validly shirk from its obligation to maintain and insure the safe condition of the road merely
because the permit for the excavation may have been issued by a government entity or unit other than the Appellant
San Juan or that the excavation may have been done by a contractor under contract with a public entity like the
Appellee MWSS.

Neither is the [petitioner] relieved of liability based on its purported lack of knowledge of the excavation and the
condition of the road during the period from May 20, 1988 up to May 30, 1988 when the accident occurred. It must be
borne in mind that the obligation of the [petitioner] to maintain the safe condition of the road within its territory is a
continuing one which is not suspended while a street is being repaired (Corpus Juris Secundum, Municipal Corporations,
page 120). Knowledge of the condition of the road and the defects and/or obstructions on the road may be actual or
constructive. It is enough that the authorities should have known of the aforesaid circumstances in the exercise of
ordinary care (City of Louiseville versus Harris, 180 Southwestern Reporter. page 65). In the present recourse, Santolan
Road and the Greenhills area coming from Ortigas Avenue going to Pinaglabanan, San Juan, Metro Manila is a busy
thoroughfare. The gaping hole in the middle of the road of Santolan Road could not have been missed by the authorities
concerned. After all, the [petitioner] San Juan is mandated to effect a constant and unabated monitoring of the
conditions of the roads to insure the safety of motorists. Persuasive authority has it that:

It is the duty of the municipal authorities to exercise an active vigilance over the streets; to see that they are kept in a
reasonably safe condition for public travel. They cannot fold their arms and shut their eyes and say they have no notice.
(Todd versus City of Troy, 61 New York 506). (Words in bracket supplied).

Nor can petitioner seek shelter on Section 8 of Ordinance 82-01 of the Metropolitan Manila Commission.

Concededly, Section 8 of the Ordinance makes the permittee/excavator liable for death, injury and/or damages
caused by the non-completion of works and/or failure of the one undertaking the works to adopt the required
precautionary measures for the protection of the general public. Significantly, however, nowhere can it be found in said
Ordinance any provision exempting municipalities in Metro Manila from liabilities caused by their own negligent acts.
Afortiori, nothing prevents this Court from applying other relevant laws concerning petitioner’s liability for the injuries
sustained by Biglang-awa on that fateful rainy evening of 31 May 1988.

WHEREFORE, the instant petition is DENIED and the assailed decision of the appellate court AFFIRMED.

Costs against petitioner.

E. BUILDING PROPRIETORS (ART 2190-2193)

Republic of the Philippines

SUPREME COURT

Manila

THIRD DIVISION

G.R. No. 80718 January 29, 1988

FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,

vs.

COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely,
GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents.

This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the
Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first
resolution promulgated on 30 September 1987 denied petitioners' motion for extension of time to file a motion for
reconsideration and directed entry of judgment since the decision in said case had become final; and the second
Resolution dated 27 October 1987 denied petitioners' motion for reconsideration for having been filed out of time.

At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65 section 1 of
the Rules of Court. However, even if the instant petition did not suffer from this defect, this Court, on procedural and
substantive grounds, would still resolve to deny it.

The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and
destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents
and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in
view of its proximity to the weakened wall but the former failed to do so. On the basis of the foregoing facts, the
Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment
finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of
the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of
which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to
file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually
denied by the appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration
on September 24, 1987 but this was denied in the Resolution of October 27, 1987.

This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners' motion
for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for
reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August
5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be
extended. In its Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this
Court en banc restated and clarified the rule, to wit:

Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for
extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the
Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the
Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension
requested. (at p. 212)

Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-53, August 26, 1986,
143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal.

Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed the prospective
application of said rule, and explained the operation of the grace period, to wit:
In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the Court's Resolution in
the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file motions
for new trial or reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27, 1986, it is still within the grace period, which
expired on June 30, 1986, and may still be allowed.

This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145
SCRA 306].]

In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more than a year
after the expiration of the grace period on June 30, 1986. Hence, it is no longer within the coverage of the grace period.
Considering the length of time from the expiration of the grace period to the promulgation of the decision of the Court
of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for
their failure to file a motion for reconsideration within the reglementary period.

Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing
to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court
of Appeals was promulgated. Contrary to petitioners' view, there is no law requiring the publication of Supreme Court
decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the
bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly
where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court
decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court's
decision holding petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building
or structure is responsible for the damage resulting from its total or partial collapse, if it should be due to the lack of
necessary repairs.

Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to avoid the
accident if only they heeded the. warning to vacate the tailoring shop and , therefore, petitioners prior negligence
should be disregarded, since the doctrine of "last clear chance," which has been applied to vehicular accidents, is
inapplicable to this case.

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit.

Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

******NOTE: JOSE DINGCONG vs. HALIM KANAAN, NASRI KANAAN, y MICHAEL KANAAN G.R. No. L-47033 April 25,
1941, is in FULL SPANISH LANGUAGE nakalimot nako unsaon pag translate.

F. ARCHITECTS AND ENGINEERS (ART. 2192 AND 1723)