DEFENSES IN NEGLIGENCE CASES

DAVID TAYLOR vs. THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY

SYLLABUS

1. LIABILITY FOR DAMAGES; CONTRIBUTORY NEGLIGENCE. — When the immediate cause of an

accident resulting in an injury is the plaintiff's own act, which contributed to the principal occurrence as one of its
determining factors, he can not recover damages for the injury.

DECISION

CARSON, J  p:

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

The defendant is a foreign corporation engaged in the operation of a street railway and an electric light
system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig River within
the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat or by crossing a
footbridge, impassable for vehicles, at the westerly end of the island.

The plaintiff, David Taylor, was at the same time when he received the injuries complained of, 15 years of
age, the son of a mechanical engineer, more mature than the average boy of his age, and having considerable
aptitude and training in mechanics.

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

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

The evidence does not definitely and conclusively disclose how the caps came to be on the defendant's
premises, not how long they had been there when the boys found them. It appeared, however, that some months
before the accident, during the construction of the defendant's plant, detonating caps of the same kind as those
found by the boys were used in sinking a well at the power plant near the place where the caps were found; and it
also appears that at or about the time when these caps were found, similar caps were in use in the construction of an
extension of defendant's street car line to Fort William McKinley. The caps when found appeared to the boys who
picked them up to have been lying there for a considerable time, and from the place where they were found would
seem to have been discarded as defective or worthless and fir only to be thrown upon the rubbish heap.

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

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland
transports. later he took upon work in his father's office learning mechanical drawing and mechanical engineering.
About a month after his accident he obtained employment as a mechanical draftsman and continued in the
employment for six months at a salary of P2.50 a day; and it appears that he was a boy of more than average
intelligence, taller and more mature both mentally and physically than most boys of fifteen.
 The facts set our in the foregoing statement are to our mind fully and conclusively established by the
evidence of record, and are substantially admitted by counsel. The only questions of fact which are seriously disputed
are plaintiff's allegations that the caps which were found by plaintiff on defendant company's premises were the
property of the defendant, or that they had come from its possession and control, and that the company or some
of  its employees left them exposed on its premises at the point where they were found.

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

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

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

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

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

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

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

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

xxx xxx xxx

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

xxx xxx xxx

"The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage."
 "ART. 1908. The owners shall be also be liable for the damages caused —

"1. By the explosion of machines which may not have been cared for with due diligence, and
for kindling of explosive substance which may not have been placed in a safe and proper place."

Counsel for defendant and appellant rests his appeal strictly upon his contention that the facts proven at the
trial do not establish the liability of the defendant company under the provisions of these articles, and since we agree
with this view of the case, it is not necessary for us to consider the various questions as to the form and the right of
action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf & Pacific Co., 7 Phil. Rep., 359), which would
perhaps, be involved in a decision affirming the judgment of the court below.

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

(1) Damages to the plaintiff.

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

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

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

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

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

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

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

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

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

The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply criticized in
severally state courts, and the supreme court of Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally
repudiated and disapproved the doctrine of the Turntable cased, especially that laid down in Railroad Company vs.
Stout, in a very able decision wherein it held, in the language of the syllabus: (1) That the owner of land is not liable
to trespassers thereon for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to
this rule exists in favor of children who are injured by dangerous machinery naturally calculated to attract them to the
premises; (3) that an invitation of license to cross the premises of another can not be predicated on the mere fact
that no steps have been taken to interfere with such practice; (4) that there is no difference between children and
adults of an invitation or a license to enter upon another's premises.
 Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the courts in
Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been
questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and approving the
doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q.B., 29, 35, 36), lay down the rule in these
cases in accord with that announced in Railroad Company vs. Stout ( supra), and the Supreme Court of the United
States, in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonald (152
U.S, 262) on the 5th of March, 1894, reexamined and reconsidered the doctrine laid down in Railroad Co. vs. Stout,
and after an exhaustive and critical analysis and review of may of the adjudged cases, both English and America,
formally declared that it adhered "to the principles announced in the case of Railroad Co. vs. Stout."

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

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

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

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

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs. Marlow
(53 Mich., 507), said that (p. 515):

"Children, wherever they go, must be expected to act upon childlike instincts and impulses;
and others who are chargeable with a duty of care and caution toward them must calculate upon this,
and take precautions accordingly. If they leave exposed to the observation of children anything which
would be tempting to them, and which they in their immature judgment might naturally suppose they
were at liberty to handle or play with, they should expect that liberty to be taken."

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

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

This conclusion is founded on reason, justice, and necessary, and neither the contention that a man has a
right to do what he will with his own property of that children should be kept under the care of the parents or
guardian, so as to prevent their entering  on the premises of others is of sufficient weight to put it in doubt. In this
jurisdiction as well as in the United States all private property is acquired and held under the tacit condition that it
shall not be so used as to injure the equal rights of others or greatly impair the public rights and interests of the
community (see U.S. vs. Toribio, 1 No. 5060, decided January 26, 1910), and except as to infants of very tender
years it would be absurd and unreasonable in community organized as is that in which we live to hold that parents or
guardians are guilty of negligence or imprudence in every case wherein they permit growing boys and girls to leave
the parental roof unattended, even if in the event of accident to the child the negligence of the parents could in any
event be imputed to the child so as to deprive it of a right to recover in such cases — a point which we neither
discuss not decide.

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

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

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

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

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

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

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

The partidas contain the following provisions:

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

"And they even said that when a man received an injury through his own negligence he should
blame himself for it." (Rule 22, tit. 34 Partida  7.)

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

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

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

"According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a
source of obligation when between such negligence and the injury there   exists, the relation of cause
and effect: but if the injury produced should not be the result of acts or omissions of a third party, the
latter has no obligation to repair the same, although such acts or omissions were imprudent or
unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of
the injured party himself."
 The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or negligence is
not sufficient without proof that it, and no other cause, gave rise to the damage."

See also judgment of October 21, 1903.

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

And again —

"In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is the duty of him who shall claim damages to establish their existence.
The decisions of April 9, 1896, and March 18, July 6, and September 27, 1898, have especially
supported the principle, the first setting forth in detail the necessary points of the proof, which are
two: An act or omission on the part of the person who is to be charged with the liability, and the
production of the damage by said act or omission.

"This includes, by inference, the establishment of a relation of cause or effect between the act
or the omission and the damage; the latter must be direct result of one of the first two. As the decision
of March 22, 1881, said, it is necessary that damages result immediately and directly from an act
performed culpably and wrongfully' 'necessarily presupposing a legal ground for imputability.'"
(Decision of October 29, 1877.)

"Negligence is not presumed, but be proven by him who alleges it." ( Scaevola, Jurisprudencia
del Codigo Civil, vol. 6, pp. 551, 552.)
(Cf. decisions of supreme court of Spain of June 12, 1900. and June 23, 1900.)

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

The doctrine as laid down in that case as follows: 

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

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

We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon defendant's
premises the detonating caps, the property of the defendant, and carrying them sway to the home of his friend, as
interrupting the relation of cause and effect between the negligent act or omission of the defendant in leaving the
caps exposed on its premises and the  injuries inflicted upon the plaintiff by the explosion of one of these caps. Under
the doctrine of the Torpedo cases, such action on the part of an infant of very tender years would have no effect in
relieving defendant of responsibility, but whether in view of the well known facts admitted in defendant's brief that
"boys are snappers-up of unconsidered trifles," a youth of the age and maturity of plaintiff should be deemed without
fault in picking up the caps in question under all the circumstances of this case, we neither discuss not decide.
 Twenty days after the date of this decision let judgment be entered reversing the judgment of the court
below, without costs to either party in this instance, and ten days thereafter let the record be returned to the court
wherein it originated, where judgment will be entered in favor of the defendant for the costs in first instance and the
complaint dismissed without day. So ordered.

(Taylor v. Manila Electric Railroad and Light Co., G.R. No. 4977, [March 22, 1910], 16 PHIL 8-30)

CAGAYAN II ELECTRIC COOPERATIVE, INC. vs. ALLAN RAPANAN and MARY GINE TANGONAN

DECISION

VILLARAMA, JR., J  p:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended,
assailing the December 8, 2011 Decision of the Court of Appeals (CA) in C.A. G.R. CV No. 77659. The appellate court
granted the appeal of respondents Allan Rapanan and Mary Gine Tangonan and held petitioner Cagayan II Electric
Cooperative, Inc. liable for quasi-delict resulting in the death of Camilo Tangonan and physical injuries of Rapanan, and
ordering it to pay respondents damages and attorney's fees.

The antecedents of the case follow:

On October 31, 1998, around 9:00 p.m., a motorcycle with three passengers figured in a mishap along the
National Highway of Maddalero, Buguey, Cagayan. It was driven by its owner Camilo Tangonan who died from the
accident, while his companions respondent Rapanan and one Erwin Coloma suffered injuries. IcHSCT

On March 29, 2000, Rapanan and Camilo's common law wife, respondent Mary Gine Tangonan, filed before the
Regional Trial Court (RTC) of Aparri, Cagayan a complaint for damages against petitioner. They alleged that while the
victims were traversing the national highway, they were struck and electrocuted by a live tension wire from one of the
electric posts owned by petitioner. They contended that the mishap was due to petitioner's negligence when it failed to fix
and change said live tension wire despite being immediately informed by residents in the area that it might pose an
immediate danger to persons, animals and vehicles passing along the national highway.

Mary Gine prayed that she be awarded P50,000 civil indemnity, P25,000 burial expenses, P1,584,000 indemnity
for loss of earning capacity and P100,000 moral and exemplary damages. Rapanan, on the other hand, prayed for
P10,000 for his medical treatment and P50,000 moral and exemplary damages. Both Mary Gine and Rapanan prayed for
30% of the total award representing attorney's fees.

In its Answer, petitioner alleged that the typhoons that struck its areas of responsibility caused some of its
electric poles to fall and high tension wires to snap or cut-off which caused brownouts in said areas. It claimed that they
cannot be faulted for negligence if there were electric wires dangling along the national road since they were caused by
typhoons which are fortuitous events. It also alleged that it was able to clear the said areas of fallen electric poles and
dangling or hanging high tension wires immediately after the typhoons, to secure the safety of persons and vehicles
traveling in said areas. It likewise contended that the proximate cause of the mishap was the victims' negligence and
imprudence in operating and driving the motorcycle they were riding on.

During the trial, respondents testified and also presented Dr. Triffany C. Hasim as witness.

Mary Gine testified that she is not married to Camilo but they are living together and that they have one child.
She also testified that she spent P20,776 for the funeral expenses of Camilo. She herself prepared an itemized list and
computation of said expenses. She also claimed that Camilo worked as a jeepney driver earning P150 per day and that as
a result of Camilo's death, she suffered sleepless nights and lost weight.

Rapanan testified that he, Camilo and one Erwin Coloma were riding a motorcycle along the National Highway of
Maddalero, Buguey, Cagayan on October 31, 1998, around 9:00 in the evening. He claimed that they saw a wire dangling
from an electric post and because of a strong wind that blew, they got wound by said dangling wire. He suffered physical
injuries and electric burns and was hospitalized for seven days. He claimed to have spent around P10,000 for his
medicines, and also complained of sleepless nights because of the mishap. CEaDAc

Dr. Triffany C. Hasim, the physician who attended to the victims when they were rushed to the Alfonso Ponce
Enrile Memorial District Hospital, also testified for the respondents. According to Dr. Hasim, the abrasions of Rapanan
were caused by pressure when the body was hit by a hard object or by friction but she is uncertain as to whether a live
electric wire could have caused them. She further said that she did not find any electrical burns on Rapanan. As with
Camilo, she found abrasions and hematoma on his body and that the cause of death was due to "cardio respiratory arrest
secondary to strangulation." She also opined that the strangulation could have been caused by an electric wire entangled
around Camilo's neck.

Petitioner, for its part, presented four witnesses among whom were SPO2 Pedro Tactac, Tranquilino Rasos and
Rodolfo Adviento.

SPO2 Tactac, who investigated the incident, testified that there was a skid mark on the cemented portion of the
road caused by the motorycle's foot rest which was about 30 meters long. According to him, it appears that the
motorcycle was overspeeding because of said skid mark.

Rasos and Adviento, employees of petitioner, both testified that as a result of the onslaught of typhoons Iliang
and Loleng in Buguey and Sta. Ana, Cagayan, the power lines were cut off because the electric wires snapped and the
electric poles were destroyed. After the said typhoons, petitioner's employees inspected the affected areas. The dangling
wires were then removed from the electric poles and were placed at the foot of the poles which were located four to five
meters from the road.

On December 9, 2002, the RTC rendered a decision in favor of petitioner and dismissed the complaint for
damages of respondents. It held that the proximate cause of the incident is the negligence and imprudence of Camilo in
driving the motorcycle. It further held that respondent Mary Gine has no legal personality to institute the action since
such right is only given to the legal heir of the deceased. Mary Gine is not a legal heir of Camilo since she is only his
common law wife.

On appeal, the CA reversed the RTC and held petitioner liable for quasi-delict. The   fallo  reads:

WHEREFORE, premises considered, the present appeal is GRANTED. The assailed decision
dated December 9, 2002 of the Regional Trial Court of Appari, Cagayan, Branch 10 in  Civil Case No.
10-305 is hereby REVERSED and SET ASIDE and a NEW ONE ENTERED holding the defendant-
appellee CAGEL[C]O II liable for quasi-delict which resulted in the death of Camilo Tangonan and the
physical injuries of Allan Rapanan, and ordering the payment of 50% of the following damages, except
the attorney's fees which should be borne by the defendant-appellant:

To the plaintiff-appellant Allan Rapanan:

1. temperate damages in the amount of P10,000.00; and

2. moral damages in the amount of P50,000.00;

To the legal heirs of the deceased Camilo Tangonan:

1. indemnity for death in the amount of P50,000.00;

2. indemnity for loss of earning capacity in the amount of P1,062,000.00;

3. temperate damages in the amount of P20,000.00; and

[4.] moral damages in the amount of P50,000.00.

To both the plaintiff-appellant Allan Rapanan and the legal heirs of the deceased Camilo Tangonan:

1. exemplary damages in the amount [of] P50,000.00; and

2. attorney's fees amounting to 20% of the total amount adjudged.

SO ORDERED.

In ruling against petitioner, the CA found that despite the different versions of how the incident occurred, one
fact was consistent — the protruding or dangling CAGELCO wire to which the victims were strangled or trapped. It
likewise ruled that the police blotter and medical certificates together with the testimony of one of the passengers of the
motorcycle, respondent Rapanan, was able to establish the truth of the allegations of respondents — all of which were
not controverted by petitioner. The appellate court held that clearly, the cause of the mishap which claimed the life of
Camilo and injured Rapanan was the dangling wire which struck them. Without the dangling wire which struck the
victims, the CA held that they would not have fallen down and sustained injuries. The CA found that if petitioner had not
been negligent in maintaining its facilities, and making sure that every facility needing repairs had been repaired, the
mishap could have been prevented.

The appellate court nevertheless ruled that the victims were partly responsible for the injuries they sustained. At
the time of the mishap, they were over-speeding and were not wearing protective helmets. Moreover, the single
motorcycle being driven carried three persons. While said circumstances were not the proximate cause of Camilo's death
and Rapanan's injuries, they contributed to the occurrence of the unfortunate event.

Hence this petition raising the following arguments for this Court's consideration:

1. THE CONCLUSION OF THE COURT OF APPEALS THAT PETITIONER WAS NEGLIGENT IN THE
MAINTENANCE OF ITS POWER LINES IS MANIFESTLY ABSURD AND PREMISED ON A SERIOUS
MISAPPREHENSION OF FACTS. cIACaT

2. THE COURT OF APPEALS DISREGARDED THE EVIDENCE ON RECORD AND COMMITTED SERIOUS
MISAPPREHENSION OF FACTS AND GRAVE ABUSE OF DISCRETION WHEN IT CONCLUDED
THAT THE CAUSE OF THE MISHAP WAS A DANGLING ELECTRIC WIRE THAT STRUCK AND
WOUND UPON THE VICTIMS.

3. THE COURT OF APPEALS SERIOUSLY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN
AWARDING DAMAGES TO THE HEIRS OF CAMILO TANGONAN NOTWITHSTANDING THE FACT
THAT THEY WERE NEVER IMPLEADED AS PARTIES TO THE ACTION.

4. ASSUMING, FOR ARGUMENT'S SAKE, THAT THE PETITIONER CAN BE HELD LIABLE FOR THE
MISHAP, DAMAGES AND ATTORNEY'S FEES COULD NOT BE AWARDED TO THE HEIRS OF
CAMILO TANGONAN; AND THE AWARD OF MORAL, TEMPERATE AND EXEMPLARY DAMAGES,
AS WELL AS ATTORNEY'S FEES, TO ALLAN RAPANAN IS WITHOUT BASIS.

Thus, there are two main issues that need to be resolved by this Court: (1) Was petitioner's negligence in
maintenance of its facilities the proximate cause of the death of Camilo and the injuries of Rapanan? and (2) In the event
that petitioner's negligence is found to be the proximate cause of the accident, should damages be awarded in favor of
Camilo's heirs even if they were not impleaded?

Petitioner contends that it cannot be accused of negligence as its crew cleared the roads of fallen electric poles
and snapped wires to ensure the safety of motorists and pedestrians. They rolled the snapped wires and placed them
behind nearby electric poles away from the roads as temporary remedy considering that the snapped wires could not be
collected all at once. It cites the report of SPO2 Pedro Tactac and testimony of Tranquilino Rasos stating that the electric
wire was placed at the shoulder of the road. The photograph of the wire also shows that it was placed among banana
plants which petitioner submits to be a clear indication that it was safely tucked away from the road. Petitioner contends
that the trial court correctly observed that Camilo drove the motorcycle at a high speed causing it to careen to the
shoulder of the road where the electric wire was and had Camilo driven the motorcycle at an average speed, that would
not have happened. Thus, petitioner submits, as found by the trial court, the proximate cause of the mishap was due to
recklessness and imprudence of Camilo and not of petitioner.

Respondents, for their part, insist that the appellate court erred in ruling that it was petitioner's negligence that
caused the mishap resulting to the death of Camilo and injuries of Rapanan. They argued that had petitioner properly
maintained its facilities by making sure that every facility needing restoration is repaired, the mishap could have been
prevented.

The petition is meritorious.

Negligence is defined as the failure to observe for the protection of the interest of another person that degree of
care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. Article
2176 of the Civil Code provides that "[w]hoever 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 a quasi-delict." Under this provision, the elements necessary to establish a quasi-delict case are:
(1) damages to the plaintiff; (2) negligence, by act or omission, of the defendant or by some person for whose acts the
defendant must respond, was guilty; and (3) the connection of cause and effect between such negligence and the
damages. TEAcCD

The presence of the first element is undisputed because the unfortunate incident brought about the death of
Camilo and physical injuries to Rapanan. This Court, however, finds that the second and third elements are lacking thus
precluding the award of damages in favor of respondents.

Adviento, petitioner's employee testified that their electric poles along the highways, including the one where the
mishap took place, were erected about four to five meters from the shoulder of the road. Another employee of petitioner,
Rasos, testified that after the typhoons hit Cagayan, he together with his co-employees, after checking the damage to the
electric lines, rolled the fallen electric wires and placed them at the foot of the electric poles so as to prevent mishaps to
pedestrians and vehicles passing by. Their testimonies were corroborated by what was recorded in the Police Blotter of
the Buguey Police Station, Buguey, Cagayan after SPO2 Tactac investigated on the incident. The pertinent excerpt from
the blotter is quoted verbatim:

xxx xxx xxx

TEAM LED BY SPO2 PEDRO R TACTAC JUMPED OFF AND PROCEEDED TO BRGY MADDALERO,
BUGUEY, CAGAYAN TO CONDUCT INVEST AT THE SAID VEHICULAR ACCIDENT AT THE SAME PLACE
AND RET STN WITH THE REPT THAT ON OR ABOUT 8:45 PM 31 OCTOBER 98 ONE MOTORCYCLE
SUZUKI X4 WITH TEMPORARY PLATE NUMBER 14592 DRIVEN BY ONE CAMILO TANGONAN y ROSETE
21 years old, MARRIED, DRIVER AND A RESIDENT OF BRGY MASI, STA TERESITA, CAGAYAN (DEAD
ON THE SPOT) AND TWO COMPANIONS EDWIN COLOMA y MABANAG, 23 YEARS OLD, MARRIED,
DRIVER AND A RESIDENT OF MASI AND ALLAN RAFANAN y GUILLERMO, 19 YEARS OLD, SINGLE,
CONDUCTOR AND A RESIDENT OF BRGY BUYUN STA TERESITA CAGAYAN WAS ACCIDENTALLY
TRAPPED BY A PROTRUDING CAGELCO WIRE AT THE SHOULDER OF THE ROAD WHILE
THEY WERE BOUND TO STA TERESITA FROM APARRI THIS PROVINCE DUE TO THE OVER
SPEED OF MOTOR VEHICLE THE WIRE STRANGLED THE NECK OF THE VICTIMS WHICH CAUSED THE
INSTANTANEOUS DEATH OF THE DRIVER, CAMILO TANGONAN AND ABRASIONS ON DIFFERENT
PARTS OF THE BODY OF THE TWO OTHER VICTIMS THE SAID TWO OTHER VICTIMS WERE BROUGHT
TO ALFONSO ENRILE HOSPITAL, GONZAGA, CAGAYAN FOR MEDICAL TREATMENT. (Emphasis and
underscoring supplied)

Thus, there is no negligence on the part of petitioner that was allegedly the proximate cause of Camilo's death
and Rapanan's injuries. From the testimonies of petitioner's employees and the excerpt from the police blotter, this Court
can reasonably conclude that, at the time of that fatal mishap, said wires were quietly sitting on the shoulder of the road,
far enough from the concrete portion so as not to pose any threat to passing motor vehicles and even pedestrians.
Hence, if the victims of the mishap were strangled by said wires, it can only mean that either the motorcycle careened
towards the shoulder or even more likely, since the police found the motorcycle not on the shoulder but still on the road,
that the three passengers were thrown off from the motorcycle to the shoulder of the road and caught up with the wires.
As to how that happened cannot be blamed on petitioner but should be attributed to Camilo's over speeding as concluded
by the police after it investigated the mishap. SPO2 Tactac, in his testimony, explained how they made such conclusion:

ATTY. TUMARU:

Q: . . . My question is, you said that the motor vehicle was overspeeding, when you went to the place,
what made you conclude that the motor vehicle where the three rode which caused the death
of Camilo Tangonan, was overspeeding? Please explain that before this court[.]
 ATTY. RAPANAN:

 Incompetent, you honor.

COURT:

 Answer.

A: I stated in the police blotter over speeding when we went to investigate. We reflected in the
report/police blotter that there was over speeding because of the skid mark that lasted up to
30 meters from the start to the place where the motorcycle fell, sir.

Q: In this skid mark that you have seen, at the point of the start of the skid mark to the place where
you found the motor vehicle, where was the motor vehicle that time?

A: It was at the road, sir.

Q: What road?

A: At the edge of the cemented pavement, sir.

Q: Where was the victim found?

ATTY. RAPANAN:

 Immaterial, your honor.

COURT:

 Sustained.

ATTY. TUMARU:

Q: And did you try to investigate what was the cause [of death] of the victim?

ATTY. RAPANAN:

 Incompetent, your honor.

ATTY. TUMARU:

Q: Per your investigation, did you find out the cause of death of the victim and the others  (sic)?

A: There was abrasion at the neck of the victim, sir.

COURT:

Q: Who among the victims?

A: The driver Camilo Tangonan, sir.

Q: What about the two others?

A: When we arrived at the scene, the two companions of the victim were brought to the Gonzaga
Alfonso Ponce Enrile hospital by the PNP of Sta. Teresita police station, sir.

xxx xxx xxx

ATTY. RAPANAN:

Q: Do you know that a motorcycle is provided with the speedometer?

A: Yes, sir.

Q: When you arrived at the scene, you no longer bother yourself to see the speedometer of the
motorcycle, is that correct?

ATTY. TUMARU:

 Incompetent, your honor.

COURT:

 Answer.

A: I did not bother to see the speedometer, sir.

Q: You only conclude in saying that the driver of the motorcycle was running his motorcycle in a very
speed[y] manner because of the skid mark measuring 30 meters, you did not include that in
your report?

ATTY. TUMARU:

 The document is the best evidence, your honor.

 ATTY. RAPANAN:

 This is a new matter, your honor.

COURT:

 Answer.

A: We saw the skid mark so we concluded that there was an over speeding due to the skid mark, sir.

Q: Do you know that a skid on the surface of a cemented road shows that something happened to the
motorcycle o[r] its [d]river?

ATTY. TUMARU:

 That calls for an opinion, your honor.

COURT:

 Answer.

A: There was an accident, sir.

Q: Do you know that when a vehicle even if running with slow speed if a driver suddenly applied a
break, there was always a skid mark on the road?

A: It is the footrest of the motorcycle that caused the skid mark, sir.

COURT:

Q: Which is which now, you found a skid mark of the tire and footrest or only the skid mark of the
footrest?

A: The footrest, sir.

Q: How do you know that the skid mark was caused by the footrest?

A: Because the skid mark was caused by the footrest because the place where the motorcycle fell   (sic),
the footrest was still pointing [to] the skid mark [on] the cemented road, sir.

The foregoing shows that the motorcycle was probably running too fast that it lost control and started tilting and
sliding eventually which made its foot rest cause the skid mark on the road. Therefore, the mishap already occurred even
while they were on the road and away from petitioner's electric wires and was not caused by the latter as alleged by
respondents. It just so happened that after the motorcycle tilted and slid, the passengers were thrown off to the shoulder
where the electric wires were. This Court hence agrees with the trial court that the proximate cause of the mishap was
the negligence of Camilo. Had Camilo driven the motorcycle at an average speed, the three passengers would not have
been thrown off from the vehicle towards the shoulder and eventually strangulated by the electric wires sitting thereon.
Moreover, it was also negligent of Camilo to have allowed two persons to ride with him and for Rapanan to ride with
them when the maximum number of passengers of a motorcycle is two including the driver. This most likely even
aggravated the situation because the motorcycle was overloaded which made it harder to drive and control. When the
plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. 

As to the second issue, assuming  arguendo  that petitioner was indeed negligent, the appellate court erred in
awarding damages in favor of Camilo's legal heirs since they were not impleaded in the case. It should be noted that it
was Mary Gine, the common law wife of Camilo, who is the complainant in the case. As a mere common law wife of
Camilo, she is not considered a legal heir of the latter, and hence, has no legal personality to institute the action for
damages due to Camilo's death.

WHEREFORE, the petition is hereby GRANTED. The December 8, 2011 Decision of the Court of Appeals in C.A.
G.R. CV No. 77659 is hereby REVERSED and SET ASIDE. The December 9, 2002 Decision of the Regional Trial Court of
Aparri, Cagayan, Branch 10 in Civil Case No. 10-305 dismissing the complaint for damages of respondents Allan Rapanan
and Mary Gine Tangonan is REINSTATED.

No pronouncement as to costs.

SO ORDERED.

(Cagayan II Electric Cooperative, Inc. v. Rapanan, G.R. No. 199886, [December 3, 2014], 749 PHIL 338-353)

DR. FILOTEO A. ALANO vs. ZENAIDA MAGUD-LOGMAO

DECISION

PERALTA, J  p:

This deals with the Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the
Decision of the Court of Appeals (CA), dated March 31, 2006, adjudging petitioner liable for damages, and the
Resolution dated November 22, 2006, denying petitioner's motion for reconsideration thereof, be reversed and set aside.
The CA's narration of facts is accurate, to wit:

Plaintiff-appellee Zenaida Magud-Logmao is the mother of deceased Arnelito Logmao.

Defendant-appellant Dr. Filoteo Alano is the Executive Director of the National Kidney Institute (NKI).

At around 9:50 in the evening of March 1, 1988, Arnelito Logmao, then eighteen (18) years
old, was brought to the East Avenue Medical Center (EAMC) in Quezon City by two sidewalk vendors,
who allegedly saw the former fall from the overpass near the Farmers' Market in Cubao, Quezon City.
The patient's data sheet identified the patient as Angelito Lugmoso of Boni Avenue, Mandaluyong.
However, the clinical abstract prepared by Dr. Paterno F. Cabrera, the surgical resident on-duty at the
Emergency Room of EAMC, stated that the patient is Angelito [Logmao]. Dr. Cabrera reported that
[Logmao] was drowsy with alcoholic breath, was conscious and coherent; that the skull x-ray showed
no fracture; that at around 4:00 o'clock in the morning of March 2, 1988, [Logmao] developed
generalized seizures and was managed by the neuro-surgery resident on-duty; that the condition of
[Logmao] progressively deteriorated and he was intubated and ambu-bagging support was provided;
that admission to the Intensive Care Unit (ICU) and mechanical ventilator support became necessary,
but there was no vacancy at the ICU and all the ventilator units were being used by other patients; that
a resident physician of NKI, who was rotating at EAMC, suggested that [Logmao] be transferred to
NKI; and that after arrangements were made, [Logmao] was transferred to NKI at 10:10 in the
morning.

At the NKI, the name Angelito [Logmao] was recorded as Angelito Lugmoso. Lugmoso was
immediately attended to and given the necessary medical treatment. As Lugmoso had no relatives
around, Jennifer B. Misa, Transplant Coordinator, was asked to locate his family by enlisting police and
media assistance. Dr. Enrique T. Ona, Chairman of the Department of Surgery, observed that the
severity of the brain injury of Lugmoso manifested symptoms of brain death. He requested the
Laboratory Section to conduct a tissue typing and tissue cross-matching examination, so that should
Lugmoso expire despite the necessary medical care and management and he would be found to be a
suitable organ donor and his family would consent to organ donation, the organs thus donated could
be detached and transplanted promptly to any compatible beneficiary. HACaSc

Jennifer Misa verified on the same day, March 2, 1988, from EAMC the identity of Lugmoso
and, upon her request, she was furnished by EAMC a copy of the patient's date sheet which bears the
name Angelito Lugmoso, with address at Boni Avenue, Mandaluyong. She then contacted several radio
and television stations to request for air time for the purpose of locating the family of Angelito Lugmoso
of Boni Avenue, Mandaluyong, who was confined at NKI for severe head injury after allegedly falling
from the Cubao overpass, as well as Police Station No. 5, Eastern Police District, whose area of
jurisdiction includes Boni Avenue, Mandaluyong, for assistance in locating the relatives of Angelito
Lugmoso. Certifications were issued by Channel 4, ABS-CBN and GMA attesting that the request made
by the NKI on March 2, 1988 to air its appeal to locate the family and relatives of Angelito Lugmoso of
Boni Avenue, Mandaluyong was accommodated. A Certification was likewise issued by Police Station
No. 5, Eastern Police District, Mandaluyong attesting to the fact that on March 2, 1988, at about 6:00
p.m., Jennifer Misa requested for assistance to immediately locate the family and relatives of Angelito
Lugmoso and that she followed up her request until March 9, 1988.

On March 3, 1988, at about 7:00 o'clock in the morning, Dr. Ona was informed that Lugmoso
had been pronounced brain dead by Dr. Abdias V. Aquino, a neurologist, and by Dr. Antonio Rafael, a
neurosurgeon and attending physician of Lugmoso, and that a repeat electroencephalogram (EEG) was
in progress to confirm the diagnosis of brain death. Two hours later, Dr. Ona was informed that the
EEG recording exhibited a flat tracing, thereby confirming that Lugmoso was brain dead. Upon learning
that Lugmoso was a suitable organ donor and that some NKI patients awaiting organ donation had
blood and tissue types compatible with Lugmoso, Dr. Ona inquired from Jennifer Misa whether the
relatives of Lugmoso had been located so that the necessary consent for organ donation could be
obtained. As the extensive search for the relatives of Lugmoso yielded no positive result and time being
of the essence in the success of organ transplantation, Dr. Ona requested Dr. Filoteo A. Alano,
Executive Director of NKI, to authorize the removal of specific organs from the body of Lugmoso for
transplantation purposes. Dr. Ona likewise instructed Dr. Rose Marie Rosete-Liquete to secure
permission for the planned organ retrieval and transplantation from the Medico-Legal Office of the
National Bureau of Investigation (NBI), on the assumption that the incident which lead to the brain
injury and death of Lugmoso was a medico legal case.

On March 3, 1988, Dr. Alano issued to Dr. Ona a Memorandum, which reads as follows:

This is in connection with the use of the human organs or any portion or portions of
the human body of the deceased patient, identified as a certain Mr. Angelito Lugmoso who was
brought to the National Kidney Institute on March 2, 1988 from the East Avenue Medical
Center.

As shown by the medical records, the said patient died on March 3, 1988 at 9:10 in the
morning due to craniocerebral injury. Please make certain that your Department has exerted all
reasonable efforts to locate the relatives or next of kin of the said deceased patient such as
appeal through the radios and television as well as through police and other government
agencies and that the NBI [Medico-Legal] Section has been notified and is aware of the case.
 If all the above has been complied with, in accordance with the provisions of Republic
Act No. 349 as amended and P.D. 856, permission and/or authority is hereby given to the
Department of Surgery to retrieve and remove the kidneys, pancreas, liver and heart of the
said deceased patient and to transplant the said organs to any compatible patient who maybe
in need of said organs to live and survive.

A Certification dated March 10, 1988 was issued by Dr. Maximo Reyes, Medico-Legal Officer of
the NBI, stating that he received a telephone call from Dr. Liquete on March 3, 1988 at 9:15 a.m.
regarding the case of Lugmoso, who was declared brain dead; that despite efforts to locate the latter's
relatives, no one responded; the Dr. Liquete sought from him a second opinion for organ retrieval for
donation purposes even in the absence of consent from the family of the deceased; and that he
verbally agreed to organ retrieval.

At 3:45 in the afternoon of March 3, 1988, a medical team, composed of Dr. Enrique Ona, as
principal surgeon, Drs. Manuel Chua-Chiaco, Jr., Rose Marie Rosete-Liquete, Aurea Ambrosio, Ludivino
de Guzman, Mary Litonjua, Jaime Velasquez, Ricardo Fernando, and Myrna Mendoza, removed the
heart, kidneys, pancreas, liver and spleen of Lugmoso. The medical team then transplanted a kidney
and the pancreas of Lugmoso to Lee Tan Hoc and the other kidney of Lugmoso to Alexis Ambustan.
The transplant operation was completed at around 11:00 o'clock in the evening of March 3, 1988.

On March 4, 1988, Dr. Antonio R. Paraiso, Head of the Cadaver Organ Retrieval Effort (CORE)
program of NKI, made arrangements with La Funeraria Oro for the embalmment of the cadaver of
Lugmoso good for a period of fifteen (15) days to afford NKI more time to continue searching for the
relatives of the latter. On the same day, Roberto Ortega, Funeral Consultant of La Funeraria Oro, sent a
request for autopsy to the NBI. The Autopsy Report and Certification of Post-Mortem Examination
issued by the NBI stated that the cause of death of Lugmoso was intracranial hemorrhage secondary to
skull fracture.

On March 11, 1988, the NKI issued a press release announcing its successful double organ
transplantation. Aida Doromal, a cousin of plaintiff, heard the news aired on television that the donor
was an eighteen (18) year old boy whose remains were at La Funeraria Oro in Quezon City. As the
name of the donor sounded like Arnelito Logmao, Aida informed plaintiff of the news report.

It appears that on March 3, 1988, Arlen Logmao, a brother of Arnelito, who was then a
resident of 17-C San Pedro Street, Mandaluyong, reported to Police Station No. 5, Eastern Police
District, Mandaluyong that the latter did not return home after seeing a movie in Cubao, Quezon City,
as evidenced by a Certification issued by said Station; and that the relatives of Arnelito were likewise
informed that the latter was missing. Upon receiving the news from Aida, plaintiff and her other
children went to La Funeraria Oro, where they saw Arnelito inside a cheap casket.

On April 29, 1988, plaintiff filed with the court a quo a complaint for damages against Dr.
Emmanuel Lenon, Taurean Protectors Agency, represented by its Proprietor, Celso Santiago, National
Kidney Institute, represented by its Director, Dr. Filoteo A. Alano, Jennifer Misa, Dr. Maximo Reyes, Dr.
Enrique T. Ona, Dr. Manuel Chua-Chiaco, Jr., Dr. Rose Marie O. Rosete-Liquete, Dr. Aurea Z. Ambrosio,
Dr. Ludivino de Guzman, Dr. Mary Litonjua, Dr. Jaime Velasquez, Dr. Ricardo Fernando, Dr. Myrna
Mendoza, Lee Tan Koc, Alexis Ambustan, Dr. Antonio R. Paraiso, La Funeraria Oro, Inc., represented by
its President, German E. Ortega, Roberto Ortega alias Bobby Ortega, Dr. Mariano B. Cueva, Jr., John
Doe, Peter Doe, and Alex Doe in connection with the death of her son Arnelito. Plaintiff alleged that
defendants conspired to remove the organs of Arnelito while the latter was still alive and that they
concealed his true identity.

On January 17, 2000, the court a quo rendered judgment finding only Dr. Filoteo Alano liable
for damages to plaintiff and dismissing the complaint against the other defendants for lack of legal
basis.

After finding petitioner liable for a quasi-delict, the Regional Trial Court of Quezon City (RTC) ordered petitioner
to pay respondent P188,740.90 as actual damages; P500,000.00 as moral damages; P500,000.00 as exemplary damages;
P300,000.00 as attorney's fees; and costs of suit. Petitioner appealed to the CA.

On March 31, 2006, the CA issued its Decision, the dispositive portion of which reads as follows:

WHEREFORE, the Decision appealed from is AFFIRMED,

with MODIFICATION by DELETING the award of P188,740.90 as actual damages
and REDUCING the award of moral damages to P250,000.00, the award of exemplary damages to
P200,000.00 and the award of attorney's fees to P100,000.00.

SO ORDERED. 

Petitioner then elevated the matter to this Court via a petition for review on certiorari, where the following issues
are presented for resolution:

A. WHETHER THE COURT OF APPEALS DISREGARDED EXISTING JURISPRUDENCE PRONOUNCED

BY THIS HONORABLE SUPREME COURT IN HOLDING PETITIONER DR. FILOTEO ALANO LIABLE
FOR MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES DESPITE THE FACT THAT THE
ACT OF THE PETITIONER IS NOT THE PROXIMATE CAUSE NOR IS THERE ANY FINDING THAT
 THE ACT OF THE PETITIONER WAS THE PROXIMATE CAUSE OF THE INJURY OR DAMAGE
ALLEGEDLY SUSTAINED BY RESPONDENT ZENAIDA MAGUD-LOGMAO.

B. WHETHER THE COURT OF APPEALS GRAVELY ERRED IN REFUSING AND/OR FAILING TO

DECLARE THAT PETITIONER DR. ALANO ACTED IN GOOD FAITH AND PURSUANT TO LAW
WHEN HE ISSUED THE AUTHORIZATION TO REMOVE AND RETRIEVE THE ORGANS OF
ANGELITO LUGMOSO (LATER IDENTIFIED TO BE IN FACT ARNELITO LOGMAO) CONSIDERING
THAT NO NEGLIGENCE CAN BE ATTRIBUTED OR IMPUTED ON HIM IN HIS PERFORMANCE OF
AN ACT MANDATED BY LAW.

C. WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AWARDING RESPONDENT ZENAIDA

MAGUD-LOGMAO MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES THAT ARE NOT IN
ACCORDANCE WITH AND ARE CONTRARY TO ESTABLISHED JURISPRUDENCE. 

The first two issues boil down to the question of whether respondent's sufferings were brought about by
petitioner's alleged negligence in granting authorization for the removal or retrieval of the internal organs of respondent's
son who had been declared brain dead.

Petitioner maintains that when he gave authorization for the removal of some of the internal organs to be
transplanted to other patients, he did so in accordance with the letter of the law,  Republic Act (R.A.) No. 349, as
amended by Presidential Decree (P.D.) 856, i.e., giving his subordinates instructions to exert all reasonable efforts to
locate the relatives or next of kin of respondent's son. In fact, announcements were made through radio and television,
the assistance of police authorities was sought, and the NBI Medico-Legal Section was notified. Thus, petitioner insists
that he should not be held responsible for any damage allegedly suffered by respondent due to the death of her son and
the removal of her son's internal organs for transplant purposes.

The appellate court affirmed the trial court's finding that there was negligence on petitioner's part when he failed
to ensure that reasonable time had elapsed to locate the relatives of the deceased before giving the authorization to
remove said deceased's internal organs for transplant purposes. However, a close examination of the records of this case
would reveal that this case falls under one of the exceptions to the general rule that factual findings of the trial court,
when affirmed by the appellate court, are binding on this Court. There are some important circumstances that the lower
courts failed to consider in ascertaining whether it was the actions of petitioner that brought about the sufferings of
respondent.

The Memorandum dated March 3, 1988 issued by petitioner, stated thus:

As shown by the medical records, the said patient died on March 3, 1988 at 9:10 in the
morning due to craniocerebral injury. Please make certain that your Department has exerted all
reasonable efforts to locate the relatives or next-of-kin of the said deceased patient, such
as appeal through the radios and television, as well as through police and other government agencies
and that the NBI [Medico-Legal] Section has been notified and is aware of the case.

If all the above has been complied with, in accordance with the provisions
of Republic Act No. 349 as amended and P.D. 856, permission and/or authority is hereby
given to the Department of Surgery to retrieve and remove the kidneys, pancreas, liver and heart of
the said deceased patient and to transplant the said organs to any compatible patient who maybe in
need of said organs to live and survive.

A careful reading of the above shows that petitioner instructed his subordinates to "make certain" that "all
reasonable efforts" are exerted to locate the patient's next of kin, even enumerating ways in which to ensure that notices
of the death of the patient would reach said relatives. It also clearly stated that permission or authorization to retrieve
and remove the internal organs of the deceased was being given ONLY IF the provisions of the applicable law had been
complied with. Such instructions reveal that petitioner acted prudently by directing his subordinates to exhaust all
reasonable means of locating the relatives of the deceased. He could not have made his directives any clearer. He even
specifically mentioned that permission is only being granted IF the Department of Surgery has complied with all the
requirements of the law. Verily, petitioner could not have been faulted for having full confidence in the ability of the
doctors in the Department of Surgery to comprehend the instructions, obeying all his directives, and acting only in
accordance with the requirements of the law.

Furthermore, as found by the lower courts from the records of the case, the doctors and personnel of NKI
disseminated notices of the death of respondent's son to the media and sought the assistance of the appropriate police
authorities as early as March 2, 1988, even before petitioner issued the Memorandum. Prior to performing the procedure
for retrieval of the deceased's internal organs, the doctors concerned also the sought the opinion and approval of the
Medico-Legal Officer of the NBI.

Thus, there can be no cavil that petitioner employed reasonable means to disseminate notifications intended to
reach the relatives of the deceased. The only question that remains pertains to the sufficiency of time allowed for notices
to reach the relatives of the deceased.

If respondent failed to immediately receive notice of her son's death because the notices did not properly state
the name or identity of the deceased, fault cannot be laid at petitioner's door. The trial and appellate courts found that it
was the EAMC, who had the opportunity to ascertain the name of the deceased, who recorded the wrong information
regarding the deceased's identity to NKI. The NKI could not have obtained the information about his name from the
patient, because as found by the lower courts, the deceased was already unconscious by the time he was brought to the
NKI.

Ultimately, it is respondent's failure to adduce adequate evidence that doomed this case. As stated in Otero v.
Tan, "[i]n civil cases, it is a basic rule that the party making allegations has the burden of proving them by a
preponderance of evidence. The parties must rely on the strength of their own evidence and not upon the weakness of
the defense offered by their opponent." Here, there is to proof that, indeed, the period of around 24 hours from the time
notices were disseminated, cannot be considered as reasonable under the circumstances. They failed to present any
expert witness to prove that given the medical technology and knowledge at that time in the 1980's, the doctors could or
should have waited longer before harvesting the internal organs for transplantation.

Verily, the Court cannot, in conscience, agree with the lower court. Finding petitioner liable for damages is
improper. It should be emphasized that the internal organs of the deceased were removed only after he had been
declared brain dead; thus, the emotional pain suffered by respondent due to the death of her son cannot in any way be
attributed to petitioner. Neither can the Court find evidence on record to show that respondent's emotional suffering at
the sight of the pitiful state in which she found her son's lifeless body be categorically attributed to petitioner's conduct.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated March 31, 2006,
is REVERSED and SET ASIDE. The complaint against petitioner is hereby DISMISSED.

SO ORDERED.

(Alano v. Magud-Logmao, G.R. No. 175540, [April 7, 2014])

THE ORCHARD GOLF & COUNTRY CLUB, INC vs. ERNESTO V. YU and MANUEL C. YUHICO

DECISION

PERALTA, J  :

This petition for review on certiorari under Rule 45 of the Rules of Court (Rules) seeks to reverse the Resolutions
dated September 16, 2009 and January 21, 2010 of the Court of Appeals (CA) in CA-G.R. SP No. 106918, which
reconsidered and set aside its Resolution dated January 15, 2009 granting petitioners a 15-day period within which to
file a petition for review under Rule 43 of the Rules.

The present case is a continuation of Yu v. The Orchard Golf & Country Club, Inc.  decided by this Court on March 1,
2007. For brevity, the relevant facts narrated therein are quoted as follows:

On May 28, 2000, a Sunday, [respondents] Ernesto Yu and Manuel Yuhico went to the Orchard
Golf & Country Club to play a round of golf with another member of the club. At the last minute,
however, that other member informed them that he could not play with them. Due to the "no
twosome" policy of the Orchard contained in the membership handbook prohibiting groups of less than
three players from teeing off on weekends and public holidays before 1:00 p.m., [respondents]
requested management to look for another player to join them.

Because [Orchard] were unable to find their third player, [respondent] Yu tried to convince
Francis Montallana, Orchard's assistant golf director, to allow them to play twosome, even if they had
to tee off from hole no. 10 of the Palmer golf course. Montallana refused, stating that the flights which
started from the first nine holes might be disrupted. [Respondent] Yu then shouted invectives at
Montallana, at which point he told [respondent] Yuhico that they should just tee off anyway, regardless
of what management's reaction would be. [Respondents] then teed off, without permission from
Montallana. They were thus able to play, although they did so without securing a tee time control slip
before teeing off, again in disregard of a rule in the handbook. As a result of [respondents'] actions,
Montallana filed a report on the same day with the board of directors (the board). CAIHTE

In separate letters dated May 31, 2000, the board, through [petitioner] Clemente, requested
[respondents] to submit their written comments on Montallana's incident report dated May 28, 2000.
The report was submitted for the consideration of the board.

Subsequently, on June 29, 2000, the board resolved to suspend [respondents] from July 16 to
October 15, 2000, and served notice thereof on them.

On July 11, 2000, [respondents] filed separate petitions for injunction with application or
temporary restraining order (TRO) and/or preliminary injunction with the Securities Investigation and
Clearing Department (SICD) of the Securities and Exchange Commission (SEC), at that time the
tribunal vested by law with jurisdiction to hear and decide intra-corporate controversies. The cases, in
which [respondents] assailed the validity of their suspension, were docketed as SEC Case Nos. 07-00-
6680 and 07-00-6681. They were eventually consolidated.

After a joint summary hearing on the aforesaid petitions, the SEC-SICD, on July 14, 2000,
issued a TRO effective for 20 days from issuance, restraining and enjoining [petitioners], their agents
or representatives from implementing or executing the suspension of [respondents].
 On August 1, 2000, the SEC en banc issued its "Guidelines on Intra-Corporate Cases Pending
Before the SICD and the Commission En Banc of the Securities and Exchange Commission"
(guidelines). Sections 1 and 2 of these guidelines provided:

Section 1. Intra-corporate and suspension of payments or rehabilitation cases may still

be filed with the Securities and Exchange Commission on or before August 8, 2000.
However, the parties-litigants or their counsels or representatives shall be advised that
the jurisdiction of the Commission over these cases shall be eventually transferred to
the Regional Trial Courts upon effectivity of The Securities Regulation  Code by August
9, 2000.

Section 2. Prayers for temporary restraining order or injunction or suspension of

payment order contained in cases filed under the preceding section may be acted upon
favorably provided that the effectivity of the corresponding order shall only be up to
August 8, 2000. Prayers for other provisional remedies shall no longer be acted upon
by the Commission. In all these cases, the parties-litigants or their counsels or
representatives shall be advised that the said cases will eventually be transferred to the
regular courts by August 9, 2000. (Emphasis ours)

After hearing [respondents'] applications for preliminary injunction, the SEC-SICD issued an
order dated August 2, 2000 directing the issuance of a writ of preliminary injunction enjoining the
individual [petitioners], their agents and representatives from suspending [respondents], upon the
latter's posting of separate bonds of P40,000. This [respondents] did on August 4, 2000.

On August 7, 2000, the SEC-SICD issued a writ of preliminary injunction against [petitioners]
directing them to strictly observe the order dated August 2, 2000.

On October 31, 2000, the board held a special meeting in which it resolved to implement the
June 29, 2000 order for the suspension of [respondents] in view of the fact that the writs of injunction
issued by the SICD in their respective cases had already [elapsed] on August 8, 2000 under the SEC
guidelines.

In separate letters dated December 4, 2000 addressed to each [respondent], [petitioner]

Clemente informed them that the board was implementing their suspensions.

On December 12, 2000, [respondents] filed a petition for indirect contempt against
[petitioners] in the Regional Trial Court (RTC) of Dasmariñas, Cavite, docketed as Civil Case No. 2228-
00.

In an order dated December 13, 2000, the Dasmariñas, Cavite RTC, Branch 90, through Judge
Dolores [L.] Español, directed the parties to maintain the "last, actual, peaceable and uncontested state
of things," effectively restoring the writ of preliminary injunction, and also ordered [petitioners] to file
their answer to the petition. [Petitioners] did not file a motion for reconsideration but filed a petition
for certiorari and prohibition with the CA, docketed as CA-G.R. SP No. 62309, contesting the propriety
of the December 13, 2000 order of Judge Español. They also prayed for the issuance of a TRO and writ
of preliminary injunction.

The CA reversed the Dasmariñas, Cavite RTC in the . . . decision dated August 27, 2001.

In view of the CA's decision in CA-G.R. SP No. 62309, [petitioners] finally implemented
[respondents'] suspension.

In the meantime, [respondents] filed a motion ad cautelam dated August 30, 2001 in the RTC
of Imus, Cavite, Branch 21, praying for the issuance of a TRO and/or writ of injunction to enjoin
[petitioners] from implementing the suspension orders. They alleged that neither the CA nor this Court
could afford them speedy and adequate relief, hence[,] the case in the RTC of Imus, Cavite. The case
was docketed as SEC Case Nos. 001-01 and 002-01. DETACa

On September 7, 2001, the Imus, Cavite RTC issued a TRO. [Petitioners] filed a motion for
reconsideration on September [11,] 2001.

It was after the issuance of this TRO that [respondents] filed, on September 12, 2001, a
motion for reconsideration of the CA's decision in CA-G.R. SP No. 62309. In a resolution dated October
10, 2001, the CA denied [respondents'] motion, prompting them to elevate the matter to this Court via
petition for review on certiorari, docketed as G.R. No. 150335.

In an order dated September 21, 2001, the Imus, Cavite RTC denied [petitioners'] motion for
reconsideration and directed the issuance of a writ of preliminary injunction. This prompted
[petitioners] to file another petition for certiorari in the Court of Appeals [docketed as CA-G.R. SP No.
67664] which . . . issued [on March 26, 2002] a TRO against the Imus, Cavite RTC, enjoining it from
implementing the writ of preliminary injunction.

At this point, [respondents] filed their second petition in this Court, this time a special civil
action for certiorari, docketed as G.R. No. 152687, which included a prayer for the issuance of a TRO
and/or the issuance of a writ of preliminary injunction to restrain the enforcement of the CA-issued
TRO.
 On May 6, 2002, the Court issued a resolution consolidating G.R. No. 152687 and G.R. No.
150335.

In G.R. No. 150335, the issue for consideration [was] whether Sections 1 and 2 of the SEC
guidelines dated August 1, 2000 shortened the life span of the writs of preliminary injunction issued on
August 7, 2000 by the SEC-SICD in SEC Case Nos. 07-00-6680 and 07-00-6681, thereby making them
effective only until August 8, 2000.

At issue in G.R. No. 152687, on the other hand, [was] whether or not the CA committed grave
abuse of discretion amounting to lack of jurisdiction by issuing a TRO against the Imus, Cavite RTC and
enjoining the implementation of its writ of preliminary injunction against [petitioners].

On March 1, 2007, the Court denied the petitions in G.R. Nos. 150335 and 152687. In G.R. No. 150335, it was
held that the parties were allowed to file their cases before August 8, 2000 but any provisional remedies the SEC
granted them were to be effective only until that date. Given that the SEC Order and Writ of Injunction were issued on
August 2 and 7, 2000, respectively, both were covered by the guidelines and the stated cut-off date. As to G.R. No.
152687, We ruled that the petition became moot and academic because the TRO issued by the CA on March 26, 2002
already expired, its lifetime under Rule 58 of the Rules being only 60 days, and petitioners themselves admitted that
the CA allowed its TRO to elapse.

Meanwhile, per Order dated September 24, 2002 of the Imus RTC, SEC Case Nos. 001-01 and 002-01 were set
for pre-trial conference. Trial on the merits thereafter ensued.

On December 4, 2008, the Imus RTC ruled in favor of respondents. The dispositive portion of the
Decision ordered:

WHEREFORE, premises considered, the decision of the Club's Board of Directors suspending
[respondents] Ernesto V. Yu and Manuel C. Yuhico is hereby declared void and of no effect, and
its' (sic) enforcement permanently enjoined. The writ of preliminary injunction is hereby declared permanent.

[Petitioners] are hereby directed to jointly and severally pay each of the [respondents] the
following amounts:

(a) P2,000,000.00 as moral damages;

(b) P2,000,000.00 as exemplary damages;

(c) P500,000.00 as attorney's fees[;] and

(d) P100,000.00 as costs of litigation.

SO ORDERED.

Upon receiving a copy of the Imus RTC Decision on December 22, 2008, petitioners filed a Notice of Appeal
accompanied by the payment of docket fees on January 5, 2009. Respondents then filed an Opposition to Notice of
Appeal with Motion for Issuance of Writ of Execution, arguing that the December 4, 2008 Decision already became final
and executory since no petition for review under Rule 43 of the Rules was filed before the CA pursuant to
Administrative Matter No. 04-9-07-SC.

Realizing the mistake, petitioners filed on January 13, 2009 an Urgent Motion for Extension of Time to File a
Petition. Before the Imus RTC, they also filed a Motion to Withdraw the Notice of Appeal.

On January 15, 2009, the CA resolved to give petitioners a 15-day period within which to file the petition,
but "[s]ubject to the timeliness of the filing of petitioners' Urgent Motion for Extension of Time to File 'Petition for
Review' Under Rule 43 of the  Rules of Court dated January 13, 2009." Afterwards, on January 21, 2009, petitioners
filed a Petition for Review.

In the meantime, respondents filed an Opposition to Petitioners' Urgent Motion. Subsequently, they also filed a
motion for reconsideration of the CA's Resolution dated January 15, 2009.

Before the Imus RTC, respondents' motion for execution was granted on February 17, 2009. The trial court
opined that the proper appellate mode of review was not filed within the period prescribed by the Rules and that the CA
issued no restraining order. On March 2, 2009, the Writ of Execution was issued. Eventually, on March 30, 2009, the
Sheriff received the total amount of P9,200,000.00, as evidenced by two manager's check payable to respondents in
the amount of P4,600,000.00 each, which were turned over to respondents' counsel.

On September 16, 2009, the CA granted respondents' motion for reconsideration, setting aside its January 15,
2009 Resolution. It relied on Atty. Abrenica v. Law Firm of Abrenica, Tungol & Tibayan (Atty. Abrenica)  and Land Bank
of the Philippines v. Ascot Holdings and Equities, Inc., (LBP), which respondents cited in their Opposition to the Urgent
Motion and Motion for Reconsideration. Petitioners moved to reconsider, but it was denied on January 21, 2010; hence,
this petition.

The Court initially denied the petition, but reinstated the same on October 6, 2010.

We grant the petition.

The cases of LBP and Atty. Abrenica are inapplicable. In LBP, the Court affirmed the CA's denial of the bank's
motion for extension of time to file a petition for review. Examination of said case revealed that the bank filed a motion
for reconsideration of the trial court's adverse judgment dated March 15, 2006, in violation of Section 8 (3), Rule 1 of
the Interim Rules of Procedure Governing Intra-Corporate Controversies under Republic Act No. 8799. It was held that
the filing of such prohibited pleading did not toll the reglementary period to appeal the judgment via a petition for
review under Rule 43 of the Rules. Thus, the CA already lacked jurisdiction to entertain the petition which the bank
intended to file, much less to grant the motion for extension of time that was belatedly filed on July 25, 2006.

Also, in Atty. Abrenica, We found no compelling reasons to relax the stringent application of the rules on the
grounds as follows:

First, when petitioner received the trial court's consolidated decision on December 16, 2004,
A.M. No. 04-9-07-SC was already in effect for more than two months.

Second, petitioner had known about the new rules on the second week of January, 2005
when he received a copy of respondents' Opposition (To Defendant's Notice of Appeal) dated January
6, 2005. In their opposition, respondents specifically pointed to the applicability of A.M. No. 04-9-07-
SC to the instant case.

Third, petitioner originally insisted in his Reply with Manifestation (To the Opposition to
Defendant's Notice of Appeal) that the correct mode of appeal was a "notice of appeal."

Petitioner reiterated in his Opposition to respondents' motion for execution dated January 14,
2005 that a notice of appeal was the correct remedy.

Finally, petitioner filed his Motion to Admit Attached Petition for Review only on  June 10,
2005, or almost eight months from the effectivity of A.M. No. 04-9-07-SC on October 15, 2004,
after he received the trial court's Order of May 11, 2005.

Unlike LBP and Atty. Abrenica, petitioners in this case committed an excusable delay of merely seven (7) days.
When they received a copy of the Imus RTC Decision on December 22, 2008, they filed before the CA an Urgent
Motion for Extension of Time to File a Petition on January 13, 2009. Meantime, they exhibited their desire to appeal
the case by filing a Notice of Appeal before the Imus RTC. Upon realizing their procedural faux pax, petitioners exerted
honest and earnest effort to file the proper pleading despite the expiration of the reglementary period. In their urgent
motion, they candidly admitted that a petition for review under Rule 43 and not a notice of appeal under Rule 41 ought
to have been filed. The material dates were also indicated. Hence, the CA was fully aware that the 15-day reglementary
period already elapsed when it granted the time to file the petition.

In general, procedural rules setting the period for perfecting an appeal or filing a petition for review are
inviolable considering that appeal is not a constitutional right but merely a statutory privilege and that perfection of an
appeal in the manner and within the period permitted by law is not only mandatory but jurisdictional.  However,
procedural rules may be waived or dispensed with in order to serve and achieve substantial justice. Relaxation of the
rules may be had when the appeal, on its face, appears to be absolutely meritorious or when there are persuasive or
compelling reasons to relieve a litigant of an injustice not commensurate with the degree of thoughtlessness in not
complying with the prescribed procedure.

Notably, under A.M. No. 04-9-07-SC (Re: Mode of Appeal in Cases Formerly Cognizable by the Securities and
Exchange Commission ), while the petition for review under Rule 43 of the Rules should be filed within fifteen (15) days
from notice of the decision or final order of the RTC, the CA may actually grant an additional period of fifteen (15) days
within which to file the petition and a further extension of time not exceeding fifteen (15) days for the most compelling
reasons. This implies that the reglementary period is neither an impregnable nor an unyielding rule.

Here, there is also no material prejudice to respondents had the CA allowed the filing of a petition for review.
When the Imus RTC declared as permanent the writ of preliminary injunction, the injunction became immediately
executory. Respondents' suspension as Club members was effectively lifted; in effect, it restored their rights and
privileges unless curtailed by a temporary restraining order or preliminary injunction.

More importantly, the substantive merits of the case deserve Our utmost consideration.

In the present case, Yu acknowledged that there was an offense committed. Similarly, Yuhico admitted that he
was aware or had prior knowledge of the Club's "no twosome" policy as contained in the Club's Membership Handbook
and that they teed off without the required tee time slip. Also, while Yu recognized telling Montallana "kamote
ka," Yuhico heard him also say that he (Montallana) is "gago." 
Respondents assert that the "no twosome" policy was relaxed by the management when a member or player
would not be prejudiced or, in the words of Yu, allowed when "maluwag."  Yet a thorough reading of the transcript of
stenographic records (TSN) disclosed that such claim is based not on concrete examples. No specific instance as to
when and under what circumstance the supposed relaxation took place was cited. Yuhico roughly recollected two
incidents but, assuming them to be true, these happened only after May 28, 2000. Further, the tee pass or control slip
and the Club's Palmer Course Card, which was identified by respondents' witness, Pepito Dimabuyo, to prove that he
and another member were allowed to play twosome on June 13, 2004, a Sunday, indicated that they were allowed to
tee off only at 1:45 p.m. Lastly, granting, for the sake of argument, that the "no twosome" policy had been relaxed in
the past, Montallana cannot be faulted in exercising his prerogative to disallow respondents from playing since they
made no prior reservation and that there were standing flights waiting for tee time. Per Cipriano Santos' Report, May
28, 2000 was a relatively busy day as it had 200 registered players to accommodate as of 8:00 a.m.

It was averred that respondents teed off without the required tee time slip based on the thinking that it was no
longer necessary since Santos, the Club's Manager, allowed them by waving his hands when Yuhico's caddie tried to
pick up the slip in the registration office. Such excuse is flimsy because it ignored the reality that Santos, a mere
subordinate of Montallana who already earned the ire of Yu, was practically more helpless to contain the stubborn
insistence of respondents.

Definitely, the contentions that respondents were not stopped by the management when they teed off and that
they did not cause harm to other members playing golf at the time for absence of any complaints are completely
immaterial to the fact that transgressions to existing Club rules and regulations were committed. It is highly probable
that they were tolerated so as to restore the peace and avoid further confrontation and inconvenience to the parties
involved as well as to the Club members in general.

With regard to the purported damages they incurred, respondents testified during the trial to support their
respective allegations. Yuhico stated that he distanced himself from his usual group (the "Alabang Boys") and that he
became the butt of jokes of fellow golfers. On the other hand, Yu represented that some of his friends in the business
like Freddy Lim, a certain Atty. Benjie, and Jun Ramos started to evade or refuse to have dealings with him after his
suspension. Apart from these self-serving declarations, respondents presented neither testimonial nor documentary
evidence to bolster their claims. Worse, Yu even admitted that Freddy Lim and Atty. Benjie did not tell him that his
suspension was the reason why they did not want to transact with him.

Records reveal that respondents were given due notice and opportunity to be heard before the Board of
Directors imposed the penalty of suspension as Club members. Respondent Yu was served with the May 31, 2000
letter signed by then Acting General Manager Tomas B. Clemente III informing that he violated the "no twosome"
policy, teed off without the required tee time slip, and uttered derogatory remarks to Montallana in front of another
member and the caddies. In response, Yu's counsel asked for a copy of Montallana's report and a formal hearing to
confront the complainant and all the witnesses. Subsequently, on June 13, 2000, Yu, through counsel, submitted his
explanation that included an admission of the "no twosome" policy. Finally, on September 15, 2000, Yu was advised of
the Board resolution to give him another opportunity to present his side in a meeting supposed to be held on
September 20, 2000. It appears, however, that Yu refused to attend.

Likewise, respondent Yuhico was given by Clemente a letter dated May 31, 2000 informing him of violating the
"no twosome" policy and teeing off without the required tee time slip. After receiving the same, Yuhico called up
Clemente to hear his side. Like Yu, however, Yuhico later refused to attend a meeting with the Board.

Respondents were suspended in accordance with the procedure set forth in the Club's By-laws. There is no
merit on their insistence that their suspension is invalid on the ground that the affirmative vote of eight (8) members is
required to support a decision suspending or expelling a Club member. Both the provisions of Articles of
Incorporation and By-Laws of the Club expressly limit the number of directors to seven (7); hence, the provision on
suspension and expulsion of a member which requires the affirmative vote of eight (8) members is obviously a result of
an oversight. Former Senator Helena Z. Benitez, the Honorary Chairperson named in the Membership Handbook, could
not be included as a regular Board member since there was no evidence adduced by respondents that she was elected
as such pursuant to the Corporation Code and the By-laws of the Club or that she had the right and authority to attend
and vote in Board meetings. In addition, at the time the Board resolved to suspend respondents, the affirmative votes
of only six (6) Board members already sufficed. The testimony of Jesus A. Liganor, who served as Assistant Corporate
Secretary, that Rodrigo Francisco had not attended a single Board meeting since 1997 remains uncontroverted.  The
Court agrees with petitioners that the Club should not be powerless to discipline its members and be helpless against
acts inimical to its interest just because one director had been suspended and refused to take part in the management
affairs.

Lastly, contrary to respondents' position, the recommendation of the House Committee to suspend a Club
member is not a pre-requisite. Section 1, Article XIV, not Section 2 (b), Article XI, of the By-Laws governs as it outlines
the procedure for the suspension of a member. Even assuming that the recommendation of the House Committee is
mandatory, respondents failed to prove, as a matter of fact, that petitioners acted in bad faith in relying on the subject
provision, which employs the permissive word "may" in reference to the power of the House Committee to recommend
anytime the suspension of a Club member.

Way different from the trial court's findings, there is, therefore, no factual and legal basis to grant moral and
exemplary damages, attorney's fees and costs of suit in favor of respondents. The damages suffered, if there are any,
partake of the nature of a damnum absque injuria. As elaborated in Spouses Custodio v. CA:

. . . [T]he mere fact that the plaintiff suffered losses does not give rise to a right to recover
damages. To warrant the recovery of damages, there must be both a right of action for a legal wrong
inflicted by the defendant, and damage resulting to the plaintiff therefrom. Wrong without damage,
or damage without wrong, does not constitute a cause of action, since damages are merely part of
the remedy allowed for the injury caused by a breach or wrong.

There is a material distinction between damages and injury. Injury is the illegal invasion of a
legal right, damage is the loss, hurt, or harm which results from the injury; and damages are the
recompense or compensation awarded for the damage suffered. Thus, there can be damage without
injury in those instances in which the loss or harm was not the result of a violation of a legal duty.
These situations are often called damnum absque injuria.

In order that a plaintiff may maintain an action for the injuries of which he complains, he
must establish that such injuries resulted from a breach of duty which the defendant owed to the
plaintiff — a concurrence of injury to the plaintiff and legal responsibility by the person causing it.
The underlying basis for the award of tort damages is the premise that an individual was injured in
 contemplation of law. Thus, there must first be the breach of some duty and the imposition of liability
for that breach before damages may be awarded; it is not sufficient to state that there should be tort
liability merely because the plaintiff suffered some pain and suffering.

Many accidents occur and many injuries are inflicted by acts or omissions which cause
damage or loss to another but which violate no legal duty to such other person, and consequently
create no cause of action in his favor. In such cases, the consequences must be borne by the injured
person alone. The law affords no remedy for damages resulting from an act which does not amount
to a legal injury or wrong.

In other words, in order that the law will give redress for an act causing damage, that act
must be not only hurtful, but wrongful. There must be damnum et injuria. If, as may happen in many
cases, a person sustains actual damage, that is, harm or loss to his person or property, without
sustaining any legal injury, that is, an act or omission which the law does not deem an injury, the
damage is regarded as damnum absque injuria. AIDSTE

xxx xxx xxx

The proper exercise of a lawful right cannot constitute a legal wrong for which an action will
lie, although the act may result in damage to another, for no legal right has been invaded. One may
use any lawful means to accomplish a lawful purpose and though the means adopted may cause
damage to another, no cause of action arises in the latter's favor. Any injury or damage occasioned
thereby is damnum absque injuria.  The courts can give no redress for hardship to an individual
resulting from action reasonably calculated to achieve a lawful end by lawful means.

One who makes use of his own legal right does no injury. Qui jure suo utitur nullum damnum facit.  If
damage results from a person's exercising his legal rights, it is damnum absque injuria." In this case,
respondents failed to prove by preponderance of evidence that there is fault or negligence on the part of
petitioners in order to oblige them to pay for the alleged damage sustained as a result of their suspension as
Club members. Certainly, membership in the Club is a privilege. Regular members are entitled to use all the
facilities and privileges of the Club, subject to its rules and regulations. As correctly pointed out by petitioners,
the mental anguish respondents experienced, assuming to be true, was brought upon them by themselves for
deliberately and consciously violating the rules and regulations of the Club. Considering that respondents were
validly suspended, there is no reason for the Club to compensate them. Indeed, the penalty of suspension
provided for in Section 1, Article XIV of the By-Laws is a means to protect and preserve the interest and
purposes of the Club. This being so, the suspension of respondents does not fall under any of the provisions of
the Civil Code pertaining to the grant of moral and exemplary damages, attorney's fees, and litigation costs.

WHEREFORE, premises considered, the petition is GRANTED. The Resolutions dated September 16, 2009
and January 21, 2010 of the Court of Appeals in CA-G.R. SP No. 106918, which reconsidered and set aside its
Resolution dated January 15, 2009, granting petitioners a fifteen-day period within which to file a petition for review
under Rule 43 of the Rules, is ANNULLED AND SET ASIDE. SEC Case Nos. 001-01 and 002-01 filed and raffled
before the Regional Trial Court, Branch 21 of Imus, Cavite are hereby DISMISSED for lack of merit. Respondents
are ORDERED TO RETURN to petitioners the total amount of P9,200,000.00 or P4,600,000.00 each, within THIRTY
(30) DAYS from the time this decision becomes final and executory. Thereafter, said amount shall earn legal interest
of six percent (6%) per annum until fully paid.

SO ORDERED.

(The Orchard Golf & Country Club, Inc. v. Yu, G.R. No. 191033, [January 11, 2016], 776 PHIL 352-372)

NATIONAL POWER CORPORATION, ET AL.. THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL

SYLLABUS

CIVIL LAW; OBLIGATION AND CONTRACTS; FORCE MAJEURE (ACT OF GOD); RULES APPLICABLE;

PETITIONERS CANNOT ESCAPE LIABILITY BY INVOKING FORCE MAJEURE BECAUSE OF THEIR
NEGLIGENCE. — We reiterate here Our pronouncement in the latter case that Juan F. Nakpil & Sons vs. Court of
Appeals  is still good law as far as the concurrent liability of an obligor in the case of force majeure is concerned. In
the Nakpil case, We held: "To exempt the obligor from liability under Article 1174 of the Civil Code, for a breach of an
obligation due to an 'act of God,' the following must concur: (a) the cause of the breach of the obligation must be
independent of the will of the debtor; (b) the event must be either unforeseeable or unavoidable; (c) the event must be
such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (d) the debtor must be free
from any participation in, or aggravation of the injury to the creditor. (Vasquez v. Court of Appeals, 138 SCRA 553;
Estrada v. Consolacion, 71 SCRA 423; Austria v. Court of Appeals, 39 SCRA 527; Republic of the Phil. v. Luzon
Stevedoring Corp. 21 SCRA 279; Lasam v. Smith, 45 Phil. 657). Thus, if upon the happening of a fortuitous event or an
act of God, there concurs a corresponding fraud, negligence, delay or violation or contravention in any manner of the
tenor of the obligation as provided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor
cannot escape liability. The principle embodied in the act of God doctrine strictly requires that the act must be one
occasioned exclusively by the violence of nature and all human agencies are to be excluded from creating or entering into
the cause of the mischief. When the effect, the cause of which is to be considered, is found to be in part the result of the
participation of man, whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby
humanized, as it were, and removed from the rules applicable to the acts of God.
 DECISION

DAVIDE, JR., J:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court urging this Court to set
aside the 19 August 1991 consolidated Decision of the Court of Appeals in CA-G.R. CV Nos. 27290-93 which reversed the
Decision of Branch 5 of the then Court of First Instance (now Regional Trial Court) of Bulacan, and held petitioners
National Power Corporation (NPC) and Benjamin Chavez jointly and severally liable to the private respondents for actual
and moral damages, litigation expenses and attorney's fees.

This present controversy traces its beginnings to four (4) separate complaints for damages filed against the NPC
and Benjamin Chavez before the trial court. The plaintiffs therein, now private respondents, sought to recover actual and
other damages for the loss of lives and the destruction to property caused by the inundation of the town of Norzagaray,
Bulacan on 26-27 October 1978. The flooding was purportedly caused by the negligent release by the defendants of
water through the spillways of the Angat Dam (Hydroelectric Plant). In said complaints, the plaintiffs alleged, inter alia,
that: 1) defendant NPC operated and maintained a multi-purpose hydroelectric plant in the Angat River at Hilltop,
Norzagaray, Bulacan; 2) defendant Benjamin Chavez was the plant supervisor at the time of the incident in question; 3)
despite the defendants' knowledge, as early as 24 October 1978, of the impending entry of typhoon "Kading," they failed
to exercise due diligence in monitoring the water level at the dam; 4) when the said water level went beyond the
maximum allowable limit at the height of the typhoon, the defendants suddenly, negligently and recklessly opened three
(3) of the dam's spillways, thereby releasing a large amount of water which inundated the banks of the Angat River; and
5) as a consequence, members of the household of the plaintiffs, together with their animals, drowned, and their
properties were washed away in the evening of 26 October and the early hours of 27 October 1978.

In their Answers, the defendants, now petitioners, alleged that: 1) the NPC exercised due care, diligence and
prudence in the operation and maintenance of the hydroelectric plant; 2) the NPC exercised the diligence of a good father
in the selection of its employees; 3) written notices were sent to the different municipalities of Bulacan warning the
residents therein about the impending release of a large volume of water with the onset of typhoon "Kading" and advising
them to take the necessary precautions; 4) the water released during the typhoon was needed to prevent the collapse of
the dam and avoid greater damage to people and property; 5) in spite of the precautions undertaken and the diligence
exercised, they could still not contain or control the flood that resulted and; 6) the damages incurred by the private
respondents were caused by a fortuitous event or force majeure and are in the nature and character of damnum absque
injuria. By way of a special affirmative defense, the defendants averred that the NPC cannot be sued because it performs
a purely governmental function. 

Upon motion of the defendants, a preliminary hearing on the special defense was conducted. As a result thereof,
the trial court dismissed the complaints as against the NPC on the ground that the provision of its charter allowing it to
sue and be sued does not contemplate actions based on tort. The parties do not, however, dispute the fact that this
Court overruled the trial court and ordered the reinstatement of the complaints as against the NPC. 

Being closely interrelated, the cases were consolidated and trial thereafter ensued.

The lower court rendered its decision on 30 April 1990 dismissing the complaints "for lack of sufficient and
credible evidence." Consequently, the private respondents seasonably appealed therefrom to the respondent Court which
then docketed the cases as CA-G.R. CV Nos. 27290-93.

In its joint decision promulgated on 19 August 1991, the Court of Appeals reversed the appealed decision and awarded
damages in favor of the private respondents. The dispositive portion of the decision reads:

"CONFORMABLY TO THE FOREGOING, the joint decision appealed from is hereby REVERSED and SET
ASIDE, and a new one is hereby rendered:

1. In Civil Case No. SM-950, ordering defendants-appellees to pay, jointly and
severally, plaintiffs-defendants, with legal interest from the date when this decision shall
become final and executory, the following:

A. Actual damages, to wit:

1) Gaudencio C. Rayo, Two Hundred Thirty One Thousand Two Hundred Sixty
Pesos (P231,260.00);

2) Bienvenido P. Pascual, Two Hundred Four Thousand Five Hundred Pesos

(P204,500.00);

3) Tomas Manuel, One Hundred Fifty Five Thousand Pesos (P155,000.00);

4) Pedro C. Bartolome, One Hundred Forty Seven Thousand Pesos

(P147,000.00);

5) Bernardino Cruz, One Hundred Forty Three Thousand Five Hundred Fifty
Two Pesos and Fifty Centavos (P143,552.50);

6) Jose Palad, Fifty Seven Thousand Five Hundred Pesos (P57,500.);

7) Mariano S. Cruz, Forty Thousand Pesos (P40,000.00);

8) Lucio Fajardo, Twenty Nine thousand Eighty Pesos (P29,080.00); and

 B. Litigation expenses of Ten Thousand Pesos (P10,000.00);

2. In Civil Case No. SM-951, ordering defendants-appellees to pay jointly and severally, plaintiff-
defendant, with legal interest from the date when this decision shall have become final and executory,
the following:

A. Actual damages of Five Hundred Twenty Thousand Pesos (P520,000.00);

B. Moral Damages of Five Hundred Thousand Pesos (P500,000.00); and

C. Litigation expenses of Ten Thousand Pesos (P10,000.00);

3. In Civil Case No. SM-953, ordering defendants-appellees to pay, jointly and severally, with legal
interest from the date when this decision shall have become final and executory;

A. Plaintiff-appellant Angel C. Torres:

1) Actual damages of One Hundred Ninety Nine Thousand One Hundred

Twenty Pesos (P199,120.00);

2) Moral Damages of One Hundred Fifty Thousand Pesos (P150,000.00);

B. Plaintiff-defendant Norberto Torres:

1) Actual damages of Fifty Thousand Pesos (P50,000.00);

2) Moral damages of Fifty Thousand Pesos (P50,000.00);

C. Plaintiff-appellant Rodelio Joaquin:

1) Actual damages of One Hundred Thousand Pesos (P100,000.00);

2) Moral damages of One Hundred Thousand Pesos (P100,000.00); and

D. Plaintiffs-appellants litigation expenses of Ten Thousand Pesos (P10,000.00);

4. In Civil Case No. SM-1247, ordering defendants-appellees to pay, jointly and severally, with legal
interest from the date when this decision shall have become final and executory:

A. Plaintiffs-appellants Presentacion Lorenzo and Clodualdo Lorenzo:

1) Actual damages of Two Hundred Fifty Six Thousand Six Hundred Pesos
(P256,600.00);

2) Moral damages of Fifty Thousand Pesos (P50,000.00);

B. Plaintiff-appellant Consolacion Guzman:

1) Actual damages of One Hundred Forty Hundred Pesos (P140,000.00);

2) Moral damages of Fifty Thousand Pesos (P50,000.00);

C. Plaintiff-appellant Virginia Guzman:

1) Actual damages of Two Hundred Five Thousand Five Hundred Twenty Pesos
(P205,520.00); and

2) Moral damages of Fifty Thousand Pesos (P50,000.00); and

D. Plaintiffs-appellants litigation expenses of Ten Thousand Pesos (P10,000.00).

In addition, in all the four (4) instant cases, ordering defendants-appellees to pay, jointly and severally,
plaintiffs-appellants, attorneys fees in an amount equivalent to 15% of the total amount awarded.

No pronouncement as to costs."

The foregoing judgment is based on the public respondent's conclusion that the petitioners were guilty of:

". . . a patent gross and evident lack of foresight, imprudence and negligence . . . in the management
and operation of Angat Dam. The unholiness of the hour, the extent of the opening of the spillways,
and the magnitude of the water released, are all but products of defendants-appellees' headlessness,
slovenliness, and carelessness. The resulting flash flood and inundation of even areas (sic) one (1)
kilometer away from the Angat River bank would have been avoided had defendants-appellees
prepared the Angat Dam by maintaining in the first place, a water elevation which would allow room
for the expected torrential rains."

This conclusion, in turn, is anchored on its findings of fact, to wit:

"As early as October 21, 1978, defendants-appellees knew of the impending onslaught of and imminent
danger posed by typhoon 'Kading.' For as alleged by defendants-appellees themselves, the coming of
 said super typhoon was bannered by Bulletin Today, a newspaper of national circulation, on October
25, 1978, as 'Super Howler to hit R.P.' The next day, October 26, 1978, said typhoon once again
merited a headline in said newspaper as 'Kading's Big Blow expected this afternoon' (Appellee's Brief,
p. 6). Apart from the newspapers, defendants-appellees learned of typhoon 'Kading' through radio
announcements (Civil Case No. SM-950, TSN, Benjamin Chavez, December 4, 1984, pp. 7-9).

Defendants-appellees doubly knew that the Angat Dam can safely hold a normal maximum headwater
elevation of 217 meters (Appellees' Brief, p. 12; Civil Case No. SM-951, Exhibit "I-6"; Civil Case No. SM-
953, Exhibit "J-6"; Civil Case No. SM-1247, Exhibit "G-6"). LLpr

Yet, despite such knowledge, defendants-appellees maintained a reservoir water elevation even beyond
its maximum and safe level, thereby giving no sufficient allowance for the reservoir to contain the rain
water that will inevitably be brought by the coming typhoon.

On October 24, 1978, before typhoon 'Kading' entered the Philippines area of responsibility, water
elevation ranged from 217.61 to 217.53, with very little opening of the spillways, ranging from 1/2 to 1
meter. On October 25, 1978, when typhoon 'Kading' entered the Philippine area of responsibility, and
public storm signal number one was hoisted over Bulacan at 10:45 a.m., later raised to number two at
4:45 p.m., and then to number three at 10:45 p.m., water elevation ranged from 217.47 to 217.57,
with very little opening of the spillways, ranging from 1/2 to 1 meter. On October 26, 1978, when
public storm signal number three remained hoisted over Bulacan, the water elevation still remained at
its maximum level of 217.00 to 218.00 with very little opening of the spillways ranging from 1/2 to 2
meters, until at or about midnight, the spillways were suddenly opened at 5 meters, then increasing
swiftly to 8, 10, 12, 12.5, 13, 13.5, 14, 14.5 in the early morning hours of October 27, 1978, releasing
water at the rate of 4,500 cubic meters per second, more or less. On October 27, 1978, water elevation
remained at a range of 218.30 to 217.05 (Civil Case No. SM-950, Exhibits "D" and series, "L", "M", "N",
and "O" and Exhibits "3" and "4"; Civil Case No. SM-951, Exhibits "H" and "H-1"; Civil Case No. SM-953,
Exhibits "I" and "I-1"; Civil Case No. SM-1247, Exhibits "F" and "F-1").

xxx xxx xxx

From the mass of evidence extant in the record, We are convinced, and so hold that the flash flood on
October 27, 1978, was caused not by rain waters (sic), but by stored waters (sic) suddenly and
simultaneously released from the Angat Dam by defendants-appellees, particularly from midnight of
October 26, 1978 up to the morning hours of October 27, 1978."

The appellate court rejected the petitioners' defense that they had sent "early warning written notices" to the
towns of Norzagaray, Angat, Bustos, Plaridel, Baliwag and Calumpit dated 24 October 1978 and which read:

"TO ALL CONCERN (sic):

'Please be informed that at the present our reservoir (dam) is full and that we have been releasing
water intermittently for the past several days.

'With the coming of typhoon 'Rita' (Kading) we expect to release greater (sic) volume of water, if it
pass (sic) over our place.

'In view of this kindly advise people residing along Angat River to keep alert and stay in safe places.

'BENJAMIN L. CHAVEZ
 'Power Plant Superintendent" 

because:

"Said notice was delivered to the 'towns of Bulacan' on October 26, 1978 by defendants-appellees'
driver, Leonardo Nepomuceno (Civil Case No. SM-950, TSN, Benjamin Chavez, December 4, 1984, pp.
7-11 and TSN, Leonardo Nepomuceno, March 7, 1985, pp. 10-12).

Said notice is ineffectual, insufficient and inadequate for purposes of the opening of the spillway gates
at midnight of October 26, 1978 and on October 27, 1978. It did not prepare or warn the persons so
served, for the volume of water to be released, which turned out to be of such magnitude, that
residents near or along the Angat River, even those one (1) kilometer away, should have been advised
to evacuate. Said notice, addressed `TO ALL CONCERN (sic),' was delivered to a policeman (Civil Case
No. SM-950, TSN, Leonardo Nepomuceno, March 7, 1985, pp. 10-12 and Exhibit "2-A") for the
municipality of Norzagaray. Said notice was not thus addressed and delivered to the proper and
responsible municipal officials who could have disseminated the warning to the residents directly
affected. As for the municipality of Sta. Maria, where plaintiffs-defendants in Civil Case No. SM-1246
reside, said notice does not appear to have been served."

Relying on Juan F. Nakpil & Sons vs. Court of Appeals , public respondent rejected the petitioners' plea that the
incident in question was caused by force majeure and that they are, therefore, not liable to the private respondents for
any kind of damage — such damage being in the nature of damnum absque injuria. cdrep

The motion for reconsideration filed by the petitioners, as well as the motion to modify judgment filed by the
private respondents, were denied by the public respondent in its Resolution of 27 December 1991.

Petitioners thus filed the instant petition on 21 February 1992.

 After the Comment to the petition was filed by the private respondents and the Reply thereto was filed by the
petitioners, We gave due course to the petition on 17 June 1992 and directed the parties to submit their respective
Memoranda, which they subsequently complied with.

The petitioners raise the following errors allegedly committed by the respondent Court:

"I. THE COURT OF APPEALS ERRED IN APPLYING THE RULING OF NAKPIL & SONS V. COURT OF
APPEALS AND HOLDING THAT PETITIONERS WERE GUILTY OF NEGLIGENCE.
II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE WRITTEN NOTICES OF WARNING ISSUED
BY PETITIONERS WERE INSUFFICIENT.

III. THE COURT OF APPEALS ERRED IN HOLDING THAT THE DAMAGE SUFFERED BY PRIVATE
RESPONDENTS WAS NOT DAMNUM ABSQUE INJURIA.

IV. THE COURT OF APPEALS ERRED IN NOT AWARDING THE COUNTERCLAIM OF PETITIONERS FOR
ATTORNEY'S FEES AND EXPENSES OF LITIGATION."

These same errors were raised by herein petitioners in G.R. No. 96410, entitled National Power Corporation, et
al. vs. Court of Appeals, et al., which this Court decided on 3 July 1992. The said case involved the very same incident
subject of the instant petition. In no uncertain terms, We declared therein that the proximate cause of the loss and
damage sustained by the plaintiffs therein — who were similarly situated as the private respondents herein — was the
negligence of the petitioners, and that the 24 October 1978 "early warning notice" supposedly sent to the affected
municipalities, the same notice involved in the case at bar, was insufficient. We thus cannot now rule otherwise not only
because such a decision binds this Court with respect to the cause of the inundation of the town of Norzagaray, Bulacan
on 26-27 October 1978 which resulted in the loss of lives and the destruction to property in both cases, but also because
of the fact that on the basis of its meticulous analysis and evaluation of the evidence adduced by the parties in the cases
subject of CA-G.R. CV Nos. 27290-93, public respondent found as conclusively established that indeed, the petitioners
were guilty of "patent gross and evident lack of foresight, imprudence and negligence in the management and operation
of Angat Dam," and that "the extent of the opening of the spillways, and the magnitude of the water released, are all but
products of defendants-appellees' headlessness, slovenliness, and carelessness." Its findings and conclusions are binding
upon Us, there being no showing of the existence of any of the exceptions to the general rule that findings of fact of the
Court of Appeals are conclusive upon this Court. Elsewise stated, the challenged decision can stand on its own merits
independently of Our decision in G.R. No. 96410. In any event, We reiterate here Our pronouncement in the latter case
that Juan F. Nakpil & Sons vs. Court of Appeals  is still good law as far as the concurrent liability of an obligor in the case
of force majeure is concerned. In the Nakpil case, We held:

"To exempt the obligor from liability under Article 1174 of the Civil Code, for a breach of an obligation
due to an 'act of God,' the following must concur: (a) the cause of the breach of the obligation must be
independent of the will of the debtor; (b) the event must be either unforeseeable or unavoidable; (c)
the event must be such as to render it impossible for the debtor to fulfill his obligation in a normal
manner; and (d) the debtor must be free from any participation in, or aggravation of the injury to the
creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; Estrada v. Consolacion, 71 SCRA 423; Austria v.
Court of Appeals, 39 SCRA 527; Republic of the Phil. v. Luzon Stevedoring Corp. 21 SCRA 279; Lasam
v. Smith, 45 Phil. 657).

Thus, if upon the happening of a fortuitous event or an act of God, there concurs a corresponding
fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation as
provided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor cannot
escape liability.

The principle embodied in the act of God doctrine strictly requires that the act must be one occasioned
exclusively by the violence of nature and all human agencies are to be excluded from creating or
entering into the cause of the mischief. When the effect, the cause of which is to be considered, is
found to be in part the result of the participation of man, whether it be from active intervention or
neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the
rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175). Cdpr

Thus it has been held that when the negligence of a person concurs with an act of God in producing a
loss, such person is not exempt from liability by showing that the immediate cause of the damage was
the act of God. To be exempt from liability for loss because of an act of God, he must be free from any
previous negligence or misconduct by which that loss or damage may have been occasioned. (Fish &
Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons v. Yangco
Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657)."

Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to escape liability for the loss
or damage sustained by the private respondents since they, the petitioners, were guilty of negligence. The event then
was not occasioned exclusively by an act of God or force majeure; a human factor — negligence or imprudence — had
intervened. The effect then of the force majeure in question may be deemed to have, even if only partly, resulted from
the participation of man. Thus, the whole occurrence was thereby humanized, as it were, and removed from the rules
applicable to acts of God.
 WHEREFORE, for want of merit, the instant petition is hereby DISMISSED and the Consolidated Decision of the
Court of Appeals in CA-G.R. CV Nos. 27290-93 is AFFIRMED, with costs against the petitioners.

SO ORDERED.

(National Power Corp. v. Court of Appeals, G.R. Nos. 103442-45, [May 21, 1993])

EMMA ADRIANO BUSTAMANTE vs. THE HONORABLE COURT OF APPEALS

DECISION

MEDIALDEA, J  p:

This is a petition for review on certiorari seeking the reversal of the decision of the respondent Court of Appeals
dated February 15, 1989 which reversed and set aside the decision of the Regional Trial Court of Cavite, Branch XV
ordering the defendants to pay jointly and severally the plaintiffs indemnity for death and damages; and in further
dismissing the complaint insofar as defendants-appellants Federico del Pilar and Edilberto Montesiano are concerned; and
its resolution dated August 17, 1989 denying the motion for reconsideration for lack of merit.

The facts giving rise to the controversy at bar are recounted by the trial court as follows:

"At about 6:30 in the morning of April 20, 1983, a collision occurred between a gravel and sand truck,
with Plate No. DAP 717, and a Mazda passenger bus with Motor No. Y2231 and Plate No. DVT 259
along the national road at Calibuyo, Tanza, Cavite. The front left side portion (barandilla) of the body of
the truck sideswiped the left side wall of the passenger bus, ripping off the said wall from the driver's
seat to the last rear seat.

"Due to the impact, several passengers of the bus were thrown out and died as a result of the injuries
they sustained, Among those killed were the following:

"1. Rogelio Bustamante, 40, husband of plaintiff Emma Adriano Bustamante and father of plaintiffs
Rossel, Gloria, Yolanda, Ericson, and Ederic, all surnamed Bustamante;

"2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses Salvador and Patria Jocson;

"3. Jolet C. Ramos, 16, daughter of plaintiffs spouses Jose and Enriqueta Ramos;

"4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and Adoracion Himaya; and

"5. Noel Bersamina, 17, son of plaintiffs spouses Jose and Ma. Commemoracion Bersamina." (Rollo, p.
48)

During the incident, the cargo truck was driven by defendant Montesiano and owned by defendant Del Pilar;
while the passenger bus was driven by defendant Susulin. The vehicle was registered in the name of defendant Novelo
but was owned and or operated as a passenger bus jointly by defendants Magtibay and Serrado, under a franchise, with
a line from Naic, Cavite, to Baclaran, Parañaque, Metro Manila, and vice versa, which Novelo sold to Magtibay on
November 8, 1981, and which the latter transferred to Serrado (Cerrado) on January 18, 1983. LLjur

Immediately before the collision, the cargo truck and the passenger bus were approaching each other, coming
from the opposite directions of the highway. While the truck was still about 30 meters away, Susulin, the bus driver, saw
the front wheels of the vehicle wiggling. He also observed that the truck was heading towards his lane. Not minding this
circumstance due to his belief that the driver of the truck was merely joking, Susulin shifted from fourth to third gear in
order to give more power and speed to the bus, which was ascending the inclined part of the road, in order to overtake
or pass a Kubota hand tractor being pushed by a person along the shoulder of the highway. While the bus was in the
process of overtaking or passing the hand tractor and the truck was approaching the bus, the two vehicles sideswiped
each other at each other's left side. After the impact, the truck skidded towards the other side of the road and landed on
a nearby residential lot, hitting a coconut tree and felling it." (Rollo, pp. 48-50)

After a careful perusal of the circumstances of the case, the trial court reached the conclusion "that the negligent
acts of both drivers contributed to or combined with each other in directly causing the accident which led to the death of
the aforementioned persons. It could not be determined from the evidence that it was only the negligent act of one of
them which was the proximate cause of the collision. In view of this, the liability of the two drivers for their negligence
must be solidary. (Rollo, pp. 50-51) Accordingly, the trial court rendered a decision on March 7, 1986, the dispositive
portion is hereunder quoted as follows:

"WHEREFORE, defendants Valeriano Magtibay, Simplicio Serrado, Ricardo Susulin, Efren Novelo,
Federico del Pilar and Edilberto Montesiano are hereby ordered to pay jointly and severally to the
plaintiffs, as follows:

"1. To plaintiffs Emma Adriano Bustamante and her minor children, the sum of P30,000.00 as
indemnity for the death of Rogelio Bustamante; U.S. $127,680.00 as indemnity for the loss of the
earning capacity of the said deceased, at its prevailing rate in pesos at the time this decision shall have
become final and executory; P10,000.00 as moral damages; and P5,000.00 as exemplary damages;
 "2. To plaintiffs Salvador and Patria Jocson, the sum of P30,000.00 as indemnity for the death of their
daughter, Maria Corazon Jocson; P10,000.00 as moral damages; and P5,000.00 as exemplary
damages;

"3. To plaintiffs Jose and Enriqueta Ramos, the sum of P30,000.00 as indemnity for the death of their
daughter, Jolet Ramos; P10,000.00 as moral damages; and P5,000.00 as exemplary damages; and

"4. To plaintiffs Narciso and Adoracion Himaya, the amount of P30,000.00 as indemnity for the death of
their son, Enrico Himaya, P10,000.00 as moral damages; and P5,000.00 as exemplary damages; and

"5. To plaintiffs Jose and Ma. Commemoracion Bersamina, the sum of P30,000.00 as indemnity for the
death of their son, Noel Bersamina, P10,000.00 as moral damages; and P5,000.00 as exemplary
damages.

"The defendants are also required to pay the plaintiffs the sum of P10,000.00 as attorney's fees and to
pay the costs of the suit.

"The cross-claim of defendant Novelo is hereby allowed, and defendants Magtibay and Serrado, the
actual owners and or operators of the passenger bus concerned, are hereby ordered to indemnify
Novelo in such amount as he may be required to pay as damages to the plaintiffs.

"The cross-claims and counter-claims of the other defendants are hereby dismissed for lack of
merit. prLL

"SO ORDERED." (pp. 55-57, Rollo)

From said decision, only defendants Federico del Mar and Edilberto Montesiano, owner and driver, respectively, of
the sand and gravel truck have interposed an appeal before the respondent Court of Appeals. The Court of Appeals
decided the appeal on a different light. It rendered judgment on February 15, 1989, to wit:

"WHEREFORE, the appealed judgment is hereby REVERSED and SET ASIDE and the complaint
dismissed insofar as defendants-appellants Federico del Pilar and Edilberto Montesiano are concerned.
No costs in this instance."

"SO ORDERED." (p. 96, Rollo)

On March 9, 1989, the plaintiffs-appellees filed a motion for reconsideration of the aforementioned Court of
Appeals' decision. However, respondent Court of Appeals in a resolution dated August 17, 1989 denied the motion for
lack of merit. Hence, this petition.

Petitioners raised the following questions of law, namely:

"First. Whether the respondent Court can legally and validly absolve defendants-appellants from liability
despite its own finding, as well as that of the trial court that defendant-appellant Edilberto Montesiano,
the cargo truck driver, was driving an old vehicle very fast, with its wheels already wiggling, such that
he had no more control of his truck.

"Second. Whether the respondent court can validly and legally disregard the findings of fact made by
the trial court which was in a better position to observe the conduct and demeanor of the witnesses,
particularly appellant Edilberto Montesiano, cargo truck driver, and which conclusively found appellant
Montesiano as jointly and severally negligent in driving his truck very fast and had lost control of his
truck.

"Third. Whether the respondent court has properly and legally applied the doctrine of 'last clear chance'
in the present case despite its own finding that appellant cargo truck driver Edilberto Montesiano was
admittedly negligent in driving his cargo truck very fast on a descending road and in the presence of
the bus driver coming from the opposite direction.

"Fourth. Whether the respondent court has applied the correct law and the correct doctrine so as to
reverse and set aside the judgment with respect to defendants-appellants." (Rollo, pp. 133-134)

As a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on appeal,
provided, they are borne out by the record or are based on substantial evidence. However, this rule admits of certain
exceptions, as when the findings of facts are conclusions without citation of specific evidence on which they are based; or
the appellate court's findings are contrary to those of the trial court. ( Sese v. Intermediate Appellate Court , G.R. 66168,
31 July 1987, 152 SCRA 585).

Furthermore, only questions of law may be raised in a petition for review on certiorari under Rule 45 of the
Revised Rules of Court. The jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals is limited
to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive. It is not the function of the
Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being limited to reviewing errors of law
that might have been committed. Barring, therefore, a showing that the findings complained of are totally devoid of
support in the records, or that they are so glaringly erroneous as to constitute serious abuse of discretion, such findings
must stand for the Supreme Court is not expected or required to examine or contrast the oral and documentary evidence
submitted by the parties. (Andres v. Manufacturers Hanover and Trust Corp. , G.R. 82670, 15 September 1989, 177 SCRA
618).
 Bearing in mind these basic principles, We have opted to re-examine the findings of fact mainly because the
appellate court's findings are contrary to those of the trial court. cdphil

The trial court, in declaring that the negligent acts of both drivers directly caused the accident which led to the
death of the aforementioned persons, considered the following:

"It was negligent on the part of driver Montesiano to have driven his truck fast, considering that it was
an old vehicle, being a 1947 model as admitted by its owner, defendant Del Pilar; that its front wheels
were wiggling; that the road was descending; and that there was a passenger bus approaching it.
Likewise, driver Susulin was also guilty of negligence in not taking the necessary precaution to avoid
the collision, in the light of his admission that, at a distance of 30 meters, he already saw the front
wheels of the truck wiggling and that the vehicle was usurping his lane coming towards his direction.
Had he exercised ordinary prudence, he could have stopped his bus or swerved it to the side of the
road even down to its shoulder. And yet, Susulin shifted to third gear so as to, as claimed by him, give
more power and speed to his bus in overtaking or passing a hand tractor which was being pushed
along the shoulder of the road." (Rollo, p. 50)

The respondent Court of Appeals ruling on the contrary, opined that "the bus driver had the last clear chance to
avoid the collision and his reckless negligence in proceeding to overtake the hand tractor was the proximate cause of the
collision." (Rollo, p. 95). Said court also noted that "the record also discloses that the bus driver was not a competent and
responsible driver. His driver's license was confiscated for a traffic violation on April 17, 1983 and he was using a ticket
for said traffic violation on the day of the accident in question (pp. 16-18, TSN, July 23, 1984). He also admitted that he
was not a regular driver of the bus that figured in the mishap and was not given any practical examination. (pp. 11, 96,
TSN, supra)." (Rollo, p. 96)

The respondent Court quoting People v. Vender, CA-G.R. 11114-41-CR, August 28, 1975 held that "We are not
prepared to uphold the trial court's finding that the truck was running fast before the impact. The national road, from its
direction, was descending. Courts can take judicial notice of the fact that a motor vehicle going down or descending is
more liable to get out of control than one that is going up or ascending for the simple reason that the one which is going
down gains added momentum while that which is going up loses its initial speeding in so doing."

On the other hand, the trial court found and We are convinced that the cargo truck was running fast. It did not
overlook the fact that the road was descending as in fact it mentioned this circumstance as one of the factors disregarded
by the cargo truck driver along with the fact that he was driving an old 1947 cargo truck whose front wheels are already
wiggling and the fact that there is a passenger bus approaching it. In holding that the driver of the cargo truck was
negligent, the trial court certainly took into account all these factors so it was incorrect for the respondent court to disturb
the factual findings of the trial court, which is in a better position to decide the question, having heard the witnesses
themselves and observed their deportment. Cdpr

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

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

In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court, et al.  (G.R. Nos. 66102-04,
August 30, 1990), the Court citing the landmark decision held in the case of  Anuran, et al. v. Buno, et al.  (123 Phil. 1073)
ruled that the principle of "last clear chance" applies "in a suit between the owners and drivers of colliding vehicles. It
does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligations. For it
would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground that the other driver
was likewise guilty of negligence."

Furthermore, "as between defendants: The doctrine cannot be extended into the field of joint tortfeasors as a
test of whether only one of them should be held liable to the injured person by reason of his discovery of the latter's
peril, and it cannot be invoked as between defendants concurrently negligent. As against third persons, a negligent actor
cannot defend by pleading that another had negligently failed to take action which could have avoided the injury." (57
Am. Jur. 2d, pp. 806-807).

All premises considered, the Court is convinced that the respondent Court committed an error of law in applying
the doctrine of last clear chance as between the defendants, since the case at bar is not a suit between the owners and
drivers of the colliding vehicles but a suit brought by the heirs of the deceased passengers against both owners and
drivers of the colliding vehicles. Therefore, the respondent court erred in absolving the owner and driver of the cargo
truck from liability.

Pursuant to the new policy of this Court to grant an increased death indemnity to the heirs of the deceased, their
respective awards of P30,000.00 are hereby increased to P50,000.00.
 ACCORDINGLY, the petition is GRANTED; the appealed judgment and resolution of the Court of Appeals are
hereby REVERSED and SET ASIDE and the judgment of the lower court is REINSTATED with the modification on the
indemnity for death of each of the victims which is hereby increased to P50,000.00 each. No pronouncement as to costs.

SO ORDERED.

(Bustamante v. Court of Appeals, G.R. No. 89880, [February 6, 1991], 271 PHIL 633-643)

ROGELIO ENGADA,  petitioner, vs. HON. COURT OF APPEALS

SYNOPSIS

The trial court found petitioner guilty of simple imprudence resulting in physical injuries and damage to property,
and sentenced him to suffer one month and one day of arresto mayor  and pay damages. The Court of Appeals increased
the prison term imposed on petitioner to four months of arresto mayor. In this petition for review, he insisted that the
Supreme Court should relax the rule that only legal questions can be raised because the Court of Appeals
misapprehended the facts, and erred in its conclusion as to the proximate cause of the collision. He insisted that the CA
erred when it found him negligent for occupying the lane of the Tamaraw jeepney, and then failing to return to his
original lane at the safest and earliest opportunity. He insisted that had the driver of the Tamaraw not swerved to the
left, the collision would have been avoided, hence, it was he who was clearly negligent at the time of accident.

The Supreme Court found that the petitioner was negligent in several ways, and his negligence was the
proximate cause of the collision. In abandoning his lane, he did not see to it first that the opposite lane was free of
oncoming traffic and was available for safe passage. For failing to observe the duty of diligence and care imposed on
drivers of vehicles abandoning their lane, petitioner must be liable. The Court denied the petition and affirmed the
decision of the Court of Appeals.

SYLLABUS

1. CIVIL LAW; TRANSPORTATION; RESTRICTIONS ON OVERTAKING AND PASSING. — It is a settled

rule 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 he should not proceed if he cannot do so in safety. This rule is consistent
with Section 41, paragraph (a) of R.A. 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. THEDcS

2. ID.; ID.; DOCTRINE OF LAST CLEAR CHANCE; CONSTRUED, NOT APPLICABLE IN CASE AT BAR. —
The doctrine of last clear chance states that a person who has the last clear chance or opportunity of avoiding an
accident, notwithstanding the negligent acts of his opponent, is considered in law solely responsible for the consequences
of the accident. But as already stated on this point, no convincing evidence was adduced by petitioner to support his
invocation of the abovecited doctrine. Instead, what has been shown is the presence of an emergency and the proper
application of the emergency rule. Petitioner's act of swerving to the Tamaraw's lane at a distance of 30 meters from it
and driving the Isuzu pick-up at a fast speed as it approached the Tamaraw, denied Iran time and opportunity to ponder
the situation at all. There was no clear chance to speak of. 

DECISION

QUISUMBING,  J  :

This petition for review seeks the reversal of the decision dated May 31, 1999 of the Court of Appeals in CA-G.R.
CR No. 18358, which affirmed with modification the judgment dated August 25, 1994, of the Regional Trial Court of Iloilo
City, Branch 29, in Criminal Case No. 36223. The RTC found petitioner guilty beyond reasonable doubt of simple
imprudence resulting in physical injuries and damage to property, and sentenced him to (a) suffer imprisonment for one
month and one day of arresto mayor; (b) pay private complainant, Mrs. Sheila Seyan, the amount of fifty one thousand
pesos (P51,000) for the total destruction of the Toyota Tamaraw jeepney, and one hundred ten thousand pesos
(P110,000) for her hospital and medical expenses, and (c) pay the costs of suit. The CA increased the prison term
imposed on petitioner to four months of arresto mayor.

The facts culled from the records are as follows:

On November 29, 1989, at about 1:30 in the afternoon, Edwin Iran was driving a blue Toyota Tamaraw jeepney
bound for Iloilo City. On board was Sheila Seyan, the registered owner of the Tamaraw. While traversing the road along
Barangay Acquit, Barotac Nuevo, the Tamaraw passengers allegedly saw from the opposite direction a speeding Isuzu
pick-up, driven by petitioner Rogelio Engada. The pick-up had just negotiated a hilly gradient on the highway. When it
was just a few meters away from the Tamaraw, the Isuzu pick-up's right signal light flashed, at the same time, it swerved
to its left, encroaching upon the lane of the Tamaraw and headed towards a head-on collision course with it. Seyan
shouted at Iran to avoid the pick-up. Iran swerved to his left but the pick-up also swerved to its right. Thus, the pick-up
collided with the Tamaraw, hitting the latter at its right front passenger side. The impact caused the head and chassis of
the Tamaraw to separate from its body. Seyan was thrown out of the Tamaraw and landed on a ricefield. The pick-up
stopped diagonally astride the center of the road.
 Seyan and Iran were brought to Barotac Nuevo Medicare Hospital. Seyan was profusely bleeding from her nose
and was in a state of shock with her eyes closed. In the afternoon of the same day, November 29, 1989, she was
transferred to St. Paul's Hospital in Iloilo City where she was confined. Her medical certificate revealed that she suffered a
fracture on the right femur, lacerated wound on the right foot, multiple contusions, abrasions, blunt abdominal injury, and
lacerations of the upper-lower pole of the right kidney. She was discharged from the hospital only on January 15, 1990.

Seyan incurred P130,000 in medical expenses. The Toyota Tamaraw jeepney ended up in the junk heap. Its total
loss was computed at P80,000.

A criminal complaint for damage to property through reckless imprudence with serious physical injuries was filed
with the Municipal Trial Court of Barotac Nuevo against petitioner Rogelio Engada and Edwin Iran. Probable cause was
found against petitioner, while the complaint against Iran was dismissed. 

Consequently, an Information was filed against petitioner charging him with serious physical injuries and damage
to property through reckless imprudence, thus:

That on or about November 29, 1989, in the Municipality of Barotac Nuevo, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused Rogelio
Engada driving an Isuzu Pick-up with Plate No. SAR 117 owned by the Land Bank of the Philippines, did
then and there wilfully, unlawfully and with reckless imprudence drive said pick-up in a careless,
reckless and imprudent manner with disregard of traffic laws and regulations, and as a result of such
negligent and reckless driving the ISUZU Pick-up driven by the accused bumped a Toyota Tamaraw
jeep with Plate No. FBF 601 owned by Joelito and Sheila Seyan and driven by Edwin Iran thereby
causing damage to the Toyota Tamaraw in the amount of P80,000.00 and serious physical injuries to
Mrs. Sheila Seyan who was riding said vehicle, the injuries barring complications will heal in more than
30 days.

CONTRARY TO LAW. 

After trial, the court rendered on August 25, 1994 a decision, disposing as follows:

WHEREFORE, the Court, finding the accused guilty beyond reasonable doubt of Simple
Imprudence resulting [in] physical injuries and damage to property defined and penalized in Article
263, paragraph 4 and in relation with Article 365, paragraph 2 of the Revised Penal Code, hereby
sentences the accused Rogelio Engada to suffer imprisonment of ONE (1) MONTH and ONE (1) DAY
of arresto mayor.

Accused is further ordered to pay complainant Mrs. Sheila Seyan the amount of P51,000.00 for
the total destruction of the Toyota Tamaraw Jeepney and P110,000.00 for indemnification of hospital
and medical expenses, and to pay the cost of the suit.

SO ORDERED. 

Petitioner appealed to the Court of Appeals. On May 31, 1999, the CA dismissed the appeal and affirmed
with modification the trial court's decision, thus:

WHEREFORE, the instant appeal is hereby DISMISSED. Accordingly, the appealed decision is
hereby AFFIRMED with modification as to the penalty imposed upon the accused who is hereby
sentenced to suffer imprisonment of FOUR (4) MONTHS of arresto mayor.

SO ORDERED. 

Petitioner filed a motion for reconsideration, but it was denied. Hence, the instant petition, wherein petitioner
raises the issue of:

WHETHER OR NOT THE FINDINGS OF RESPONDENT COURT OF APPEALS ARE SUPPORTED BY THE
EVIDENCE OR BASED ON A MISAPPREHENSION OF FACTS RESULTING IN A MANIFESTLY MISTAKEN
INFERENCE SPECIFICALLY ON WHAT WAS THE PROXIMATE CAUSE OF THE ACCIDENT AND WHOSE
ACT WAS IT.

Petitioner claims innocence and seeks acquittal. He contends that in this case we should relax the rule that only
legal questions can be raised in a petition for review under Rule 45 of the  Rules of Court. According to him, the Court of
Appeals misapprehended the facts, and erred in its conclusion as to the proximate cause of the collision. He insists that
the Court of Appeals erred when it found him negligent for occupying the lane of the Tamaraw jeepney, and then failing
to return to his original lane at the safest and earliest opportunity.

Petitioner further contends that the CA failed to consider that he already relayed his intention to go back to his
lane by flashing the pick-up's right signal light. He submits that at that moment Iran, the driver of the Tamaraw, had no
more reason to swerve to his left. Had Iran not swerved to the left, according to petitioner, the collision would have been
avoided. It was Iran who was clearly negligent, says petitioner. Citing our ruling in  McKee v. Intermediate Appellate
Court, petitioner avers that although his act of occupying the Tamaraw's lane was the initial act in the chain of events,
Iran's swerving to the left after petitioner flashed his right turn signal, constituted a sufficient intervening event, which
proximately caused the eventual injuries and damages to private complainant.

Petitioner also claims that the Court of Appeals erred when it found that the pick-up approached the Tamaraw at
a fast speed. He maintains that this was not borne by the evidence on record.
 The Office of the Solicitor General, as counsel for the state, counters that the Court of Appeals did not err in
convicting the accused, now petitioner herein. Petitioner's negligence was the proximate cause of the accident, according
to the OSG, for the following reasons: First, petitioner for no justifiable reason occupied the opposite lane. Second, while
on the wrong lane, petitioner was driving the ISUZU pick-up fast, and he returned to his own lane only at the last minute.
This left Iran, the driver of the Tamaraw, with no opportunity to reflect on the safest way to avoid the accident. Iran's
swerving to the left was his reaction to petitioner's wrongful act, which appropriately calls for the application of the
emergency rule. The rationale of this rule is that a person who is confronted with a sudden emergency might have no
time for thought, and he must make a prompt decision based largely upon impulse or instinct. Thus, he cannot be held to
the same standard of conduct as one who had an opportunity to reflect, even though it later appears that he made the
wrong decision. Clearly, under the emergency rule petitioner cannot shift the blame to Iran, concludes the OSG.

As to petitioner's claim that there was no evidence showing that the pick-up was running very fast, the OSG avers
that this is rebutted by the testimony of Seyan and Iran who both testified that petitioner drove the pick-up at a fast
speed when it encroached on their lane immediately before the collision.

Did the Court of Appeals err in finding that the action of petitioner, Rogelio Engada, was the proximate cause of
the collision? This is the crux of the present petition.

In our view, petitioner's attempt to pin the blame on Edwin Iran, the driver of the Tamaraw, for the vehicular
collision is unfounded. Iran swerved to the left only to avoid petitioner's pick-up, which was already on a head to head
position going against Iran's Tamaraw jeepney immediately before the vehicles collided. This fact has been established by
the evidence on record. No convincing proof was adduced by petitioner that the driver of the Tamaraw, Iran, could have
avoided a head-on collision.

We note that petitioner admitted his Isuzu pick-up intruded into the lane of the Tamaraw jeepney. Prosecution
witness Nelson Alobin, one of those who went to the scene of the incident immediately, testified that when he arrived at
the place where the collision took place, he saw the pick-up positioned diagonally at the center of the road. Its head was
towards the direction of Barotac Nuevo and the rear tires were just a few inches beyond the center of the lane. Moving
backwards facing Barotac Nuevo, at two arms length away from the pick-up, Alobin also saw a tire mark, 12 inches long
and located at the left side of the center line going to the right side.

The above circumstance corroborates the testimony of both Seyan and Iran that, immediately before the
collision, the pick-up was not on its proper lane but on the other lane (the left lane rather than the right) directly on
collision course with the Tamaraw jeepney. The tire mark reveals the short distance between the two vehicles when the
ISUZU pick-up attempted to return to its proper lane.

It is a settled rule 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 he should not proceed if he cannot do so in
safety. This rule is consistent with Section 41, paragraph (a) of R.A. 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.

In the present case, there was only a distance of 30 meters from the Tamaraw jeepney when the Isuzu pick-up
abandoned its lane and swerved to the left of the center line. 16 In addition, petitioner was running at a fast clip while
traversing this lane. This was testified to by Seyan and Iran, unrebutted by petitioner. The resulting damage to the
Tamaraw jeepney, at the point where the head and chassis were separated from the body, bolsters this conclusion that
petitioner was speeding. In our view, petitioner was negligent in several ways, and his negligence was the proximate
cause of the collision. In abandoning his lane, he did not see to it first that the opposite lane was free of oncoming traffic
and was available for a safe passage. Further, after seeing the Tamaraw jeepney ahead, petitioner did not slow down,
contrary to the rule set in Batangas Laguna Tayabas Bus Co. v. IAC, thus:

. . . [O]r if, after attempting to pass, the driver of the overtaking vehicle finds that he cannot
make the passage in safety, the latter must slacken his speed so as to avoid the danger of a collision,
even bringing his car to a stop if necessary.

For failing to observe the duty of diligence and care imposed on drivers of vehicles abandoning their lane,
petitioner must be held liable.

Iran could not be faulted when in his attempt to avoid the pick-up, he swerved to his left. Petitioner's acts had
put Iran in an emergency situation which forced him to act quickly. An individual who suddenly finds himself in a situation
of danger and is required to act without much time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear
to be a better solution, unless the emergency was brought by his own negligence.

Petitioner tries to extricate himself from liability by invoking the doctrine of last clear chance. He avers that
between him and Iran, the latter had the last clear chance to avoid the collision, hence Iran must be held liable.

The doctrine of last clear chance states that a person who has the last clear chance or opportunity of avoiding an
accident, notwithstanding the negligent acts of his opponent, is considered in law solely responsible for the consequences
of the accident. But as already stated on this point, no convincing evidence was adduced by petitioner to support his
invocation of the abovecited doctrine. Instead, what has been shown is the presence of an emergency and the proper
application of the emergency rule. Petitioner's act of swerving to the Tamaraw's lane at a distance of 30 meters from it
and driving the Isuzu pick-up at a fast speed as it approached the Tamaraw, denied Iran time and opportunity to ponder
the situation at all. There was no clear chance to speak of. Accordingly, the Court of Appeals did not err in holding
petitioner responsible for the vehicular collision and the resulting damages, including the injuries suffered by Mrs. Sheila
Seyan and the total loss of the Tamaraw jeepney. It also did not err in imposing on petitioner the sentence of four (4)
months of arresto mayor.

WHEREFORE, the instant petition is DENIED for lack of merit. The assailed decision of the Court of Appeals in CA-
G.R. CR No. 18358 is AFFIRMED. Costs against petitioner. AcISTE

SO ORDERED.

(Engada v. Court of Appeals, G.R. No. 140698, [June 20, 2003], 452 PHIL 587-597)
LAPANDAY AGRICULTURAL and DEV CORPORATION (LADECO) vs. MICHAEL RAYMOND ANGALA

DECISION

CARPIO, J  p:

The Case

Before the Court is a petition for review 1 assailing the 25 July 2001 Decision 2 and 11 March 2002
Resolution 3 of the Court of Appeals in CA-G.R. CV No. 51134.

The Antecedent Facts

On 4 May 1993, at about 2:45 p.m.,a Datsun crewcab with plate no. PEC-903 driven by Apolonio Deocampo
(Deocampo) bumped into a 1958 Chevy pick-up with plate no. MAM-475 owned by Michael Raymond Angala (respondent)
and driven by Bernulfo Borres (Borres).Lapanday Agricultural and Development Corporation (LADECO) owned the
crewcab which was assigned to its manager Manuel Mendez (Mendez).Deocampo was the driver and bodyguard of
Mendez. Both vehicles were running along Rafael Castillo St.,Agdao, Davao City heading north towards Lanang, Davao
City. The left door, front left fender, and part of the front bumper of the pick-up were damaged.

Respondent filed an action for Quasi-Delict, Damages, and Attorney's Fees against LADECO, its administrative
officer Henry Berenguel 4 (Berenguel) and Deocampo. Respondent alleged that his pick-up was slowing down to about
five to ten kilometers per hour (kph) and was making a left turn preparatory to turning south when it was bumped from
behind by the crewcab which was running at around 60 to 70 kph. The crewcab stopped 21 meters from the point of
impact. Respondent alleged that he heard a screeching sound before the impact. Respondent was seated beside the
driver and was looking at the speedometer when the accident took place. Respondent testified that Borres made a signal
because he noticed a blinking light while looking at the speedometer. 5

Respondent sent a demand letter to LADECO for the payment of the damages he incurred because of the
accident but he did not receive any reply. Thus, respondent filed the case against LADECO, Berenguel, and
Deocampo. ISTCHE

Deocampo alleged that the pick-up and the crewcab he was driving were both running at about 40 kph. The pick-
up was running along the outer lane. The pick-up was about 10 meters away when it made a U-turn towards the left.
Deocampo testified that he did not see any signal from the pick-up. 6 Deocampo alleged that he tried to avoid the pick-
up but he was unable to avoid the collision. Deocampo stated that he did not apply the brakes because he knew the
collision was unavoidable. Deocampo admitted that he stepped on the brakes only after the collision.

The Ruling of the Trial Court

In its 3 March 1995 Decision, the Regional Trial Court of Davao City, Branch 15 (trial court) ruled:

WHEREFORE, judgment is hereby rendered ordering the defendants LADECO and Apolonio
Deocampo to solidarily pay the plaintiffs the following sums:

1. Twenty three thousand two hundred (P23,200.00) pesos as actual damages.

2. Ten thousand (P10,000.00) pesos as moral damages.

3. Ten thousand (P10,000.00) pesos as attorney's fees.

4. Costs of suit.

SO ORDERED.

The trial court found that the crewcab was running very fast while following the pick-up and that the crewcab's
speed was the proximate cause of the accident. The trial court observed that the crewcab stopped 21 meters away from
the point of impact despite Deocampo's claim that he stepped on the brakes moments after the collision. The trial court
ruled that Deocampo had the last opportunity to avoid the accident.

The trial court found that Berenguel was not liable because he was not the owner of the crewcab.

LADECO and Deocampo (petitioners) 9 filed a motion for reconsideration. The trial court denied petitioners'
motion in its 13 June 1995 Order.
 Petitioners filed an appeal before the Court of Appeals.

The Ruling of the Court of Appeals

The Court of Appeals affirmed in toto the trial court's decision.

The Court of Appeals sustained the finding of the trial court that Deocampo was negligent. The Court of Appeals
applied the doctrine of last clear chance and ruled that Deocampo had the responsibility of avoiding the pick-up.

The Court of Appeals also sustained the solidary liability of LADECO and Deocampo. The Court of Appeals ruled
that under Article 2180 of the Civil Code, the negligence of the driver is presumed to be the negligence of the owner of
the vehicle.

The dispositive portion of the Court of Appeals' Decision reads:

WHEREFORE, premises considered, the appeal is DISMISSED for lack of merit, and the assailed
Decision of the Court a quo in Civil Case No. 22067-93 is AFFIRMED in toto.Costs against defendants-
appellants.

SO ORDERED.

Petitioners filed a motion for reconsideration. In its 11 March 2002 Resolution, the Court of Appeals denied the
motion for lack of merit.

Hence, the petition before this Court.

The Issues

The issues before the Court are the following:

1. Whether the provisions of Section 45(b) of Republic Act No. 4136  (RA 4136) and Article 2185 of
the Civil Code apply to this case; and

2. Whether respondent is entitled to the damages awarded.

The Ruling of this Court

The petition is partly meritorious.

Both Drivers are Negligent

Both the trial court and the Court of Appeals found that Deocampo was at fault because he was driving very fast
prior to the collision. The Court of Appeals sustained the trial court's finding that Deocampo was running more than the
normal cruising speed. Both the trial court and the Court of Appeals noted that the crewcab stopped 21 meters away
from the point of impact. Deocampo admitted that he stepped on the brakes only after the collision.

Petitioners allege that Borres did not take the proper lane before executing the U-turn. Petitioners allege that
Borres violated Section 45 (b) of RA 4136 and it was his recklessness that was the proximate cause of the accident.

Section 45 (b) of RA 4136 states:

Sec. 45. Turning at intersections....

(b) The driver of a vehicle intending to turn to the left shall approach such intersection in the
lane for traffic to the right of and nearest to the center line of the highway, and, in turning, shall pass
to the left of the center of the intersection, except that, upon highways laned for traffic and upon one-
way highways, a left turn shall be made from the left lane of traffic in the direction in which the vehicle
is proceeding.

Petitioners further allege that since Borres was violating a traffic rule at the time of the accident, respondent and
Borres were the parties at fault. Petitioners cite Article 2185 of the Civil Code, thus:

Art. 2185. 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 any traffic regulation.

We rule that both parties were negligent in this case. Borres was at the outer lane when he executed a U-turn.
Following Section 45 (b) of RA 4136, Borres should have stayed at the inner lane which is the lane nearest to the center
of the highway. However, Deocampo was equally negligent. Borres slowed down the pick-up preparatory to executing the
U-turn. Deocampo should have also slowed down when the pick-up slowed down. Deocampo admitted that he noticed
the pick-up when it was still about 20 meters away from him. Vehicular traffic was light at the time of the incident. The
pick-up and the crewcab were the only vehicles on the road. Deocampo could have avoided the crewcab if he was not
driving very fast before the collision, as found by both the trial court and the Court of Appeals. We sustain this finding
since factual findings of the Court of Appeals affirming those of the trial court are conclusive and binding on this
Court. Further, the crewcab stopped 21 meters from the point of impact. It would not have happened if Deocampo was
not driving very fast.

Doctrine of Last Clear Chance Applies

Since both parties are at fault in this case, the doctrine of last clear chance applies.
 The doctrine of last clear chance states that where both parties are negligent but the negligent act of one is
appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss,
the one who had the last clear opportunity to avoid the loss but failed to do so is chargeable with the loss. In this case,
Deocampo had the last clear chance to avoid the collision. Since Deocampo was driving the rear vehicle, he had full
control of the situation since he was in a position to observe the vehicle in front of him.  Deocampo had the responsibility
of avoiding bumping the vehicle in front of him. A U-turn is done at a much slower speed to avoid skidding and
overturning, compared to running straight ahead. Deocampo could have avoided the vehicle if he was not driving very
fast while following the pick-up. Deocampo was not only driving fast, he also admitted that he did not step on the brakes
even upon seeing the pick-up. He only stepped on the brakes after the collision.

Petitioners are Solidarily Liable

LADECO alleges that it should not be held jointly and severally liable with Deocampo because it exercised due
diligence in the supervision and selection of its employees. Aside from this statement, LADECO did not proffer any proof
to show how it exercised due diligence in the supervision and selection of its employees. LADECO did not show its policy
in hiring its drivers, or the manner in which it supervised its drivers. LADECO failed to substantiate its allegation that it
exercised due diligence in the supervision and selection of its employees.

Hence, we hold LADECO solidarily liable with Deocampo.

Respondent is Entitled to Moral Damages

We sustain the award of moral damages. Moral damages are awarded to allow a plaintiff to obtain means,
diversion, or amusement that will serve to alleviate the moral suffering he has undergone due to the defendant's culpable
action. The trial court found that respondent, who was on board the pick-up when the collision took place, suffered
shock, serious anxiety, and fright when the crewcab bumped his pick-up. We sustain the trial court and the Court of
Appeals in ruling that respondent sufficiently showed that he suffered shock, serious anxiety, and fright which entitle him
to moral damages.

Both the trial court and the Court of Appeals failed to give any justification for the award of attorney's fees.
Awards of attorney's fees must be based on findings of fact and of law and stated in the decision of the trial
court. Further, no premium should be placed on the right to litigate. Hence, we delete the award of attorney's fees.

WHEREFORE, we AFFIRM the 25 July 2001 Decision and 11 March 2002 Resolution of the Court of Appeals in CA-
G.R. CV No. 51134 with MODIFICATION by deleting the award of attorney's fees.

SO ORDERED.

(Lapanday Agricultural and Development Corp. v. Angala, G.R. No. 153076, [June 21, 2007], 552 PHIL 308-317)

ERNESTO KRAMER, JR. and MARTA KRAMER vs. HON. COURT OF APPEALS and TRANS-ASIA
SHIPPING LINES, INC.

SYLLABUS

1. TORTS AND DAMAGES; ACTION BASED UPON A QUASI-DELICT PRESCRIBES IN FOUR (4)
YEARS. — Under Article 1146 of the Civil Code, an action based upon a quasi-delict must be instituted within four (4)
years. The prescriptive period begins from the day the quasi-delict is committed. In Paulan vs. Sarabia, 16 this Court
ruled that in an action for damages arising from the collision of two (2) trucks, the action being based on a  quasi-
delict, the four (4) year prescriptive period must be counted from the day of the collision.
2. ID.; QUASI-DELICT; CAUSE OF ACTION; ACCRUAL THEREOF TOLLED UPON OCCURRENCE OF
THE LAST ELEMENT OF CAUSE OF ACTION. — In Español vs. Chairman, Philippine Veterans Administration , his
Court held "The right of action accrues when there exists a cause of action, which consists of 3 elements, namely: a)
a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; b) an obligation on
the part of defendant to respect such right; and c) an act or omission on the part of such defendant violative of the
right of the plaintiff . . . It is only when the last element occurs or takes place that it can be said in law that a cause
of action has arisen . . ." It is clear that the prescriptive period must be counted when the last element occurs or
takes place, that is, the time of the commission of an act or omission violative of the right of the plaintiff, which is the
time when the cause of action arises.

3. ID.; ACTION FOR DAMAGES ARISING FROM COLLISION OF TWO VESSELS; PRESCRIPTIVE
PERIOD COUNTED FROM DAY OF COLLISION NOT FROM THE DATE OF DETERMINATION BY AN
ADMINISTRATIVE BODY. — In this action for damages arising from the collision of two (2) vessels the four (4)
year prescriptive period must be counted from the day of the collision. The aggrieved party need not wait for a
determination by an administrative body like a Board of Marine Inquiry, that the collision was caused by the fault or
negligence of the other party before he can file an action for damages. The ruling in Vasquez does not apply in this
case. Immediately after the collision the aggrieved party can seek relief from the courts by alleging such negligence
or fault of the owners, agents or personnel of the other vessel. Thus, the respondent court correctly found that the
action of petitioner has prescribed. The collision occurred on April 8, 1976. The complaint for damages was filed in
court only on May 30, 1985, was beyond the four (4) year prescriptive period.

DECISION

GANCAYCO, J  :
 The principal issue in this Petition for Review is whether or not a Complaint for damages instituted by the
petitioners against the private respondent arising from a marine collision is barred by the statute of limitations. LibLex

The record of the case discloses that in the early morning of April 8, 1976, the F/B Marjolea, a fishing boat
owned by the petitioners Ernesto Kramer, Jr. and Marta Kramer, was navigating its way from Marinduque to Manila.
Somewhere near Maricabon Island and Cape Santiago, the boat figured in a collision with an inter-island vessel, the
M/V Asia Philippines owned by the private respondent Trans-Asia Shipping Lines, Inc. As a consequence of the
collision, the F/B Marjolea sank, taking with it its fish catch.

After the mishap, the captains of both vessels filed their respective marine protests with the Board of Marine
Inquiry of the Philippine Coast Guard. The Board conducted an investigation for the purpose of determining the
proximate cause of the maritime collision.

On October 19, 1981, the Board concluded that the loss of the F/B Marjolea and its fish catch was
attributable to the negligence of the employees of the private respondent who were on board the M/V Asia Philippines
during the collision. The findings made by the Board served as the basis of a subsequent Decision of the
Commandant of the Philippine Coast Guard dated April 29, 1982 wherein the second mate of the M/V Asia Philippines
was suspended from pursuing his profession as a marine officer.

On May 30, 1985, the petitioners instituted a Complaint for damages against the private respondent before
Branch 117 of the Regional Trial Court in Pasay City. The suit was docketed as Civil Case No. 2907-P.

The private respondent filed a Motion seeking the dismissal of the Complaint on the ground of prescription.
He argued that under Article 1146 of the Civil Code, the prescriptive period for instituting a Complaint for damages
arising from a quasi-delict like a maritime collision is four years. He maintained that the petitioners should have filed
their Complaint within four years from the date when their cause of action accrued, i.e., from April 8, 1976 when the
maritime collision took place, and that accordingly, the Complaint filed on May 30, 1985 was instituted beyond the
four-year prescriptive period.

For their part, the petitioners contended that maritime collisions have peculiarities and characteristics which
only persons with special skill, training and experience like the members of the Board of Marine Inquiry can properly
analyze and resolve. The petitioners argued that the running of the prescriptive period was tolled by the filing of the
marine protest and that their cause of action accrued only on April 29, 1982, the date when the Decision ascertaining
the negligence of the crew of the M/V Asia Philippines had become final, and that the four-year prescriptive period
under Article 1146 of the Civil Code should be computed from the said date. The petitioners concluded that inasmuch
as the Complaint was filed on May 30, 1985, the same was seasonably filed.

In an Order dated September 25, 1986, the trial court denied the Motion filed by the private respondent. The
trial court observed that in ascertaining negligence relating to a maritime collision, there is a need to rely on highly
technical aspects attendant to such collision, and that the Board of Marine Inquiry was constituted pursuant to the
Philippine Merchant Marine Rules and Regulations, which took effect on January 1, 1975 by virtue of Letter of
Instruction No. 208 issued on August 12, 1974 by then President Ferdinand E. Marcos, precisely to answer the need.
The trial court went on to say that the four-year prescriptive period provided in Article 1146 of the Civil Code should
begin to run only from April 29, 1982, the date when the negligence of the crew of the M/V Asia Philippines had been
finally ascertained. The pertinent portions of the Order of the trial court are as follows —

"Considering that the action concerns an incident involving a collision at sea of two vehicles
and to determine negligence for that incident there is an absolute need to rely on highly technical
aspects attendant to such collisions. It is obviously to answer such a need that the Marine Board of
Inquiry (sic) was constituted pursuant to the Philippine Merchant Marine Rules and Regulations which
became effective January 1, 1975 under Letter of Instruction(s) No. 208 dated August 12, 1974. The
relevant section of that law (Art. XVI /b/ provided as follow(s):

'1. Board of Marine Inquiry (BMI). — Shall have the jurisdiction to investigate marine
accidents or casualties relative to the liability of shipowners and officers, exclusive jurisdiction
to investigate cases/complaints against the marine officers; and to review all proceedings or
investigation conducted by the Special Boards of Marine Inquiry.

'2.  Special Board of Marine Inquiry. — Shall have original jurisdiction to investigate

marine casualties and disasters which occur or are committed within the limits of the Coast
Guard District concerned or those referred by the Commandant.'

The Court finds reason in the argument of the plaintiff that marine incidents have those
'peculiarities which only persons of special skill, training and exposure can rightfully decipher and
resolve' on the matter of the negligence and liabilities of parties involved and inasmuch as the report of
the Board of Inquiry (sic) admittedly came out only on April 29, 1982, the prescriptive period provided .
. . under Art. 1146 of the Civil Code should begin to run only from that date. The complaint was filed
with this Court on May 10, 1985, hence the statute of limitations can not constitute a bar to the filing of
this case." 

The private respondent elevated the case the Court of Appeals by way of a special civil action
for certiorari and prohibition, alleging therein that the trial court committed a grave abuse of discretion in refusing to
dismiss the Complaint filed by the petitioners. The case was assigned to the Second Division of the appellate court
and was docketed as Case No. CA-G.R. SP No. 12032. 
 In a Decision dated November 27, 1987, and clarified in a Resolution dated January 12, 1988,  the Court of
Appeals granted the Petition filed by the private respondent and ordered the trial court to dismiss the Complaint. The
pertinent portions of the Decision of the appellate court are as follows —

"It is clear that the cause of action of private respondent (the herein petitioners Ernesto
Kramer, Jr. and Marta Kramer) accrued from the occurrence of the mishap because that is the precise
time when damages were inflicted upon and sustained by the aggrieved party and from which relief
from the court is presently sought. Private respondents should have immediately instituted a complaint
for damages based on a quasi-delict within four years from the said marine incident because its cause
of action had already definitely ripened at the onset of the collision. For this reason, he (sic) could cite
the negligence on the part of the personnel of the petitioner to exercise due care and lack of (sic)
diligence to prevent the collision that resulted in the total loss of their . . . boat.

"We can only extend scant consideration to respondent judge's reasoning that in view of the
nature of the marine collision that allegedly involves highly technical aspects, the running of the
prescriptive period should only commence from the finality of the investigation conducted by the
Marine Board of Inquiry (sic) and the decision of the Commandant, Philippine Coast Guard, who has
original jurisdiction over the mishap. For one, while it is true that the findings and recommendation of
the Board and the decision of the Commandant may be helpful to the court in ascertaining which of the
parties are at fault, still the former (court) is not bound by said findings and decision. Indeed, the same
findings and decision could be entirely or partially admitted, modified, amended, or disregarded by the
court according to its lights and judicial discretion. For another, if the accrual of a cause of action will
be made to depend on the action to be taken by certain government agencies, then necessarily, the
tolling of the prescriptive period world hinge upon the discretion of such agencies. Said alternative it is
easy to foresee would be fraught with hazards. Their investigations might be delayed and lag, and then
witnesses in the meantime might not be available or disappear, or certain documents may no longer be
available or might be mislaid. . . . 

The petitioners filed a Motion for the reconsideration of the said Decision but the same was denied by the
Court of Appeals in a Resolution dated May 27, 1988.

Hence, the instant Petition wherein the arguments raised by the petitioner before the trial court are
reiterated. In addition thereto, the petitioner contends that the Decision of the Court of Appeals runs against the
pronouncement of this Court in Vasquez v. Court of Appeals.

The private respondent filed its Comment on the Petition seeking therein the dismissal of the same.  13 It is
also contended by the private respondent that the ruling of the Court in Vasquez is not applicable to the case at bar
because the said case involves a maritime collision attributable to a fortuitous event. In a subsequent pleading, the
private respondent argues that the Philippine Merchant Marine Rules and Regulations cannot have the effect of
repealing the provisions of the Civil Code on prescription of actions.

On September 19, 1988, the Court resolved to give due course to the petition. After the parties filed their
respective memoranda, the case was deemed submitted for decision.

The petition is devoid of merit. Under Article 1146 of the Civil Code, an action based upon a  quasi-delict must
be instituted within four (4) years. The prescriptive period begins from the day the quasi-delict is committed. In
Paulan vs. Sarabia, this Court ruled that in an action for damages arising from the collision of two (2) trucks, the
action being based on a quasi-delict, the four (4) year prescriptive period must be counted from the day of the
collision.

In Español vs. Chairman, Philippine Veterans Administration , this Court held as follows —

"The right of action accrues when there exists a cause of action, which consists of 3 elements,
namely: a) a right in favor of the plaintiff by whatever means and under whatever law it arises or is
created; b) an obligation on the part of defendant to respect such right; and c) an act or omission on
the part of such defendant violative of the right of the plaintiff . . . It is only when the last element
occurs or takes place that it can be said in law that a cause of action has arisen . . ."

From the foregoing ruling, it is clear that the prescriptive period must be counted when the last element
occurs or takes place, that is, the time of the commission of an act or omission violative of the right of the plaintiff,
which is the time when the cause of action arises.

It is therefore clear that in this action for damages arising from the collision of two (2) vessels the four (4)
year prescriptive period must be counted from the day of the collision. The aggrieved party need not wait for a
determination by an administrative body like a Board of Marine Inquiry, that the collision was caused by the fault or
negligence of the other party before he can file an action for damages. The ruling in Vasquez does not apply in this
case. Immediately after the collision the aggrieved party can seek relief from the courts by alleging such negligence
or fault of the owners, agents or personnel of the other vessel.

Thus, the respondent court correctly found that the action of petitioner has prescribed. The collision occurred
on April 8, 1976. The complaint for damages was filed in court only on May 30, 1985, was beyond the four (4) year
prescriptive period.

WHEREFORE, the petition is dismissed. No costs.

SO ORDERED.
(Kramer, Jr. v. Court of Appeals, G.R. No. 83524, [October 13, 1989], 258-A PHIL 298-306)

MA. LOURDES VALENZUELA vs. COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL,
INC.

RICHARD LI vs. COURT OF APPEALS and MA. LOURDES VALENZUELA

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF THE COURT OF APPEALS; NOT NORMALLY
DISTURBED AS A GENERAL RULE; EXCEPTION. — As a general rule, findings of fact of the Court of Appeals are
binding and conclusive upon us, and this Court will not normally disturb such factual findings unless the findings of fact of
the said court are palpably unsupported by the evidence on record or unless the judgment itself is based on a
misapprehension of facts.

2. CIVIL LAW; QUASI-DELICT; CONTRIBUTORY NEGLIGENCE, DEFINED. — Contributory negligence is

conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the
standard to which he is required to conform for his own protection. (Keeton and Dobbs, et al., Prosser and Keaton On
Torts, 451 [1984] citing Second Restatement Of Torts, Sec. 463.) ELC

3. ID.; ID.; PRINCIPLE OF "EMERGENCY RULE," CONSTRUED; APPLICATION THEREOF DEPENDS ON

THE OVER-ALL NATURE OF THE CIRCUMSTANCES. — Courts have traditionally been compelled to recognize that an
actor who is confronted with an emergency is not to be held up to the standard of conduct normally applied to an
individual who is in no such situation. The law takes stock of impulses of humanity when placed in threatening or
dangerous situations and does not require the same standard of thoughtful and reflective care from persons confronted
by unusual and oftentimes threatening conditions. Under the "emergency rule" adopted by this Court in  Gan vs.  Court of
Appeals, 165 SCRA 378 (1988) cf. Siegl vs. Watson, 195 NW 867, an individual who suddenly finds himself in a situation
of danger and is required to act without much time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear
to be a better solution, unless the emergency was brought by his own negligence. While the emergency rule applies to
those cases in which reflective thought, or the opportunity to adequately weigh a threatening situation is absent, the
conduct which is required of an individual in such cases is dictated not exclusively by the suddenness of the event which
absolutely negates thoughtful care, but by the over-all nature of the circumstances. A woman driving a vehicle suddenly
crippled by a flat tire on a rainy night will not be faulted for stopping at a point which is both convenient for her to do so
and which is not a hazard to other motorists.

4. ID.; ID.; NEGLIGENCE, DEFINED. — "Negligence, as it is commonly understood is conduct which creates
an undue risk of harm to others." It is the failure to observe that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury. We stressed, in Corliss vs.  Manila Railroad
Company, 27 SCRA 674 (1969), that negligence is the want of care required by the circumstances.
5. ID.; ID.;  CAR OWNER IS JOINTLY AND SEVERALLY LIABLE BASED ON THE PRINCIPLE
OF "BONUS PATER FAMILIAS."  — In fine, Alexander Commercial, Inc. has not demonstrated, to our satisfaction, that
it exercised the care and diligence of a good father of the family in entrusting its company car to Li. No allegations were
made as to whether or not the company took the steps necessary to determine or ascertain the driving proficiency and
history of Li, to whom it gave full and unlimited use of a company car. Not having been able to overcome the burden of
demonstrating that it should be absolved of liability for entrusting its company car to Li, said company, based on the
principle of bonus pater familias, ought to be jointly and severally liable with the former for the injuries sustained by Ma.
Lourdes Valenzuela during the accident.

VITUG, J., concurring:

CIVIL CODE; QUASI-DELICT; LIABILITY OF A PERSON UNDER A RELATIONSHIP OF PATRIA

POTESTAS. — Pursuant to Article 2180 of the Civil Code that acknowledges responsibility under a relationship of patria
potestas, a person may be held accountable not only for his own direct culpable act or negligence but also for those of
others albeit predicated on his own supposed failure to exercise due care in his supervisory authority and functions. In
the case of an employer, that vicarious liability attaches only when the tortious conduct of the employee relates to, or is
in the course of, his employment. The question to ask should be whether, at the time of the damage or injury, the
employee is engaged in the affairs or concerns of the employer or, independently, in that of his own. While an employer
incurs no liability when an employee's conduct, act or omission is beyond the range of employment, a minor deviation
from the assigned task of an employee, however, does not affect the liability of an employer.

DECISION

KAPUNAN,  J:

These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem from an action to
recover damages by petitioner Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuries sustained by her
in a vehicular accident in the early morning of June 24, 1990. The facts found by the trial court are succinctly summarized
by the Court of Appeals below:

This is an action to recover damages based on quasi-delict, for serious physical injuries
sustained in a vehicular accident.
 Plaintiff's version of the accident is as follows: At around 2:00 in the morning of June 24, 1990,
plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542 from her
restaurant at Marcos highway to her home at Palanza Street, Araneta Avenue. She was travelling along
Aurora Blvd. with a companion, Cecilia Ramon, heading towards the direction of Manila. Before
reaching A. Lake Street, she noticed something wrong with her tires; she stopped at a lighted place
where there were people, to verify whether she had a flat tire and to solicit help if needed. Having
been told by the people present that her rear right tire was flat and that she cannot reach her home in
that car's condition, she parked along the sidewalk, about 1-1/2 feet away, put on her emergency
lights, alighted from the car, and went to the rear to open the trunk. She was standing at the left side
of the rear of her car pointing to the tools to a man who will help her fix the tire when she was
suddenly bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li and registered in the
name of defendant Alexander Commercial, Inc. Because of the impact plaintiff was thrown against the
windshield of the car of the defendant, which was destroyed, and then fell to the ground. She was
pulled out from under defendant's car. Plaintiff's left leg was severed up to the middle of her thigh,
with only some skin and sucle connected to the rest of the body. She was brought to the UERM Medical
Memorial Center where she was found to have a "traumatic amputation, leg, left up to distal thigh
(above knee)." She was confined in the hospital for twenty (20) days and was eventually fitted with an
artificial leg. The expenses for the hospital confinement (P120,000.00) and the cost of the artificial leg
(P27,000.00) were paid by defendants from the car insurance.

In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary
damages in the amount of P100,000.00 and other medical and related expenses amounting to a total
of P180,000.00, including loss of expected earnings. cdll

Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55
kph; considering that it was raining, visibility was affected and the road was wet. Traffic was light. He
testified that he was driving along the inner portion of the right lane of Aurora Blvd. towards the
direction of Araneta Avenue, when he was suddenly confronted, in the vicinity of A. Lake Street, San
Juan, with a car coming from the opposite direction, travelling at 80 kph, with "full bright lights."
Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming vehicle,
and bumped plaintiff's car, which he did not see because it was midnight blue in color, with no parking
lights or early warning device, and the area was poorly lighted. He alleged in his defense that the left
rear portion of plaintiff's car was protruding as it was then "at a standstill diagonally" on the outer
portion of the right lane towards Araneta Avenue (par. 18, Answer). He confirmed the testimony of
plaintiff's witness that after being bumped the car of the plaintiff swerved to the right and hit another
car parked on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was reckless
or negligent, as she was not a licensed driver.

The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the
sketch of the three cars involved in the accident, testified that the plaintiff's car was "near the
sidewalk"; this witness did not remember whether the hazard lights of plaintiff's car were on, and did
not notice if there was an early warning device; there was a street light at the corner of Aurora Blvd.
and F. Roman, about 100 meters away. It was not mostly dark, i.e. "things can be seen" (p. 16, tsn,
Oct. 28, 1991).

A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car
and opened the trunk compartment, defendant's car came approaching very fast ten meters from the
scene; the car was "zigzagging." The rear left side of plaintiff's car was bumped by the front right
portion of defendant's car; as a consequence, the plaintiff's car swerved to the right and hit the parked
car on the sidewalk. Plaintiff was thrown to the windshield of defendant's car, which was destroyed,
and landed under the car. He stated that defendant was under the influence of liquor as he could
"smell it very well" (pp. 43, 79, tsn, June 17, 1991).

After trial, the lower court sustained the plaintiff's submissions and found defendant Richard Li guilty of gross
negligence and liable for damages under Article 2176 of the Civil Code. The trial court likewise held Alexander
Commercial, Inc., Li's employer, jointly and severally liable for damages pursuant to Article 2180. It ordered the
defendants to jointly and severally pay the following amounts:

1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff as a

result of her severed left leg;

2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiff's
Bistro La Conga restaurant three (3) weeks after the accident on June 24, 1990; (b) P20,000.00, a
month, as unrealized profits of the plaintiff in her Bistro La Conga restaurant, from August, 1990 until
the date of this judgment; and (c) P30,000.00, a month, for unrealized profits in plaintiff's two (2)
beauty salons from July, 1990 until the date of this decision;

3. P1,000,000.00, in moral damages;

4. P50,000.00, as exemplary damages;

5. P60,000.00, as reasonable attorney's fees; and

6. Costs.
 As a result of the trial court's decision, defendants filed an Omnibus Motion for New Trial and for Reconsideration,
citing testimony in Criminal Case O.C. No. 804367 ( People vs. Richard Li), tending to show that the point of impact, as
depicted by the pieces of glass/debris from the parties' cars, appeared to be at the center of the right lane of Aurora Blvd.
The trial court denied the motion. Defendants forthwith filed an appeal with the respondent Court of Appeals. In a
Decision rendered March 30, 1994, the Court of Appeals found that there was "ample basis from the evidence of record
for the trial court's finding that the plaintiff's car was properly parked at the right, beside the sidewalk when it was
bumped by defendant's car." 1 Dismissing the defendants' argument that the plaintiff's car was improperly parked, almost
at the center of the road, the respondent court noted that evidence which was supposed to prove that the car was at or
near center of the right lane was never presented during the trial of the case.  The respondent court furthermore
observed that:

Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is self serving; it
was not corroborated. It was in fact contradicted by eyewitness Rodriguez who stated that he was
outside his beerhouse located at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of June
24, 1990 when his attention was caught by a beautiful lady (referring to the plaintiff) alighting from her
car and opening the trunk compartment; he noticed the car of Richard Li "approaching very fast ten
(10) meters away from the scene"; defendant's car was zigzagging, although there were no holes and
hazards on the street, and "bumped the leg of the plaintiff" who was thrown against the windshield of
defendant's car, causing its destruction. He came to the rescue of the plaintiff, who was pulled out
from under defendant's car and was able to say "hurting words" to Richard Li because he noticed that
the latter was under the influence of liquor, because he "could smell it very well" (p. 36, et. seq., tsn,
June 17, 1991). He knew that plaintiff owned a beerhouse in Sta. Mesa in the 1970's, but did not know
either plaintiff or defendant Li before the accident.

In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the plaintiff, the
Court of Appeals, in its decision, however, absolved the Li's employer, Alexander Commercial, Inc. from any liability
towards petitioner Lourdes Valenzuela and reduced the amount of moral damages to P500,000.00. Finding justification
for exemplary damages, the respondent court allowed an award of P50,000.00 for the same, in addition to costs,
attorney's fees and the other damages. The Court of Appeals, likewise, dismissed the defendants' counterclaims.

Consequently, both parties assail the respondent court's decision by filing two separate petitions before this
court. Richard Li, in G.R. No. 117944, contends that he should not be held liable for damages because the proximate
cause of the accident was Ma. Lourdes Valenzuela's own negligence. Alternatively, he argues that in the event that this
Court finds him negligent, such negligence ought to be mitigated by the contributory negligence of Valenzuela.

On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent court's decision insofar as
it absolves Alexander Commercial, Inc. from liability as the owner of the car driven by Richard Li and insofar as it reduces
the amount of the actual and moral damages awarded by the trial court.

As the issues are intimately related, both petitions are hereby consolidated.

It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial questions of law. What it,
in effect, attempts to have this Court review are factual findings of the trial court, as sustained by the Court of Appeals
finding Richard Li grossly negligent in driving the Mitsubishi Lancer provided by his company in the early morning hours of
June 24, 1990. This we will not do. As a general rule, findings of fact of the Court of Appeals are binding and conclusive
upon us, and this Court will not normally disturb such factual findings unless the findings of fact of the said court are
palpably unsupported by the evidence on record or unless the judgment itself is based on a misapprehension of facts.

In the first place, Valenzuela's version of the incident was fully corroborated by an uninterested witness, Rogelio
Rodriguez, the owner-operator of an establishment located just across the scene of the accident. On trial, he testified that
he observed a car being driven at a "very fast" speed, racing towards the general direction of Araneta Avenue. Rodriguez
further added that he was standing in front of his establishment, just ten to twenty feet away from the scene of the
accident, when he saw the car hit Valenzuela, hurtling her against the windshield of the defendant's Mitsubishi Lancer,
from where she eventually fell under the defendant's car. Spontaneously reacting to the incident, he crossed the street,
noting that a man reeking with the smell of liquor had alighted from the offending vehicle in order to survey the
incident. Equally important, Rodriguez declared that he observed Valenzuela's car parked parallel and very near the
sidewalk, contrary to Li's allegation that Valenzuela's car was close to the center of the right lane. We agree that as
between Li's "self-serving" asseverations and the observations of a witness who did not even know the accident victim
personally and who immediately gave a statement of the incident similar to his testimony to the investigator immediately
after the incident, the latter's testimony deserves greater weight. As the court emphasized:

The issue is one of credibility and from Our own examination of the transcript, We are not
prepared to set aside the trial court's reliance on the testimony of Rodriguez negating defendant's
assertion that he was driving at a safe speed. While Rodriguez drives only a motorcycle, his perception
of speed is not necessarily impaired. He was subjected to cross-examination and no attempt was made
to question his competence or the accuracy of his statement that defendant was driving "very fast."
This was the same statement he gave to the police investigator after the incident, as told to a
newspaper report (Exh. "P"). We see no compelling basis for disregarding his testimony.

The alleged inconsistencies in Rodriguez' testimony are not borne out by an examination of the
testimony. Rodriguez testified that the scene of the accident was across the street where his beerhouse
is located about ten to twenty feet away (pp. 35–36, tsn, June 17, 1991). He did not state that the
accident transpired immediately in front of his establishment. The ownership of the Lambingan sa
Kambingan is not material; the business is registered in the name of his mother, but he explained that
 he owns the establishment (p. 5, tsn, June 20, 1991). Moreover, the testimony that the streetlights on
his side of Aurora Boulevard were on the night the accident transpired (p. 8) is not necessarily
contradictory to the testimony of Pfc. Ramos that there was a streetlight at the corner of Aurora
Boulevard and F. Roman Street (p. 45, tsn, Oct. 20, 1991).

With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a
heavy rain and the rain has stopped and he was outside his establishment at the time the accident
transpired (pp. 64–65, tsn, June 17, 1991). This was consistent with plaintiff's testimony that it was no
longer raining when she left Bistro La Conga (pp. 10–11, tsn, April 29, 1991). It was defendant Li who
stated that it was raining all the way in an attempt to explain why he was travelling at only 50-55 kph.
(p. 11, tsn, Oct. 14, 1991). As to the testimony of Pfc. Ramos that it was raining, he arrived at the
scene only in response to a telephone call after the accident had transpired (pp. 9–10, tsn, Oct. 28,
1991). We find no substantial inconsistencies in Rodriguez's testimony that would impair the essential
integrity of his testimony or reflect on his honesty. We are compelled to affirm the trial court's
acceptance of the testimony of said eyewitness.

Against the unassailable testimony of witness Rodriguez we note that Li's testimony was peppered with so many
inconsistencies leading us to conclude that his version of the accident was merely adroitly crafted to provide a version,
obviously self-serving, which would exculpate him from any and all liability in the incident. Against Valenzuela's
corroborated claims, his allegations were neither backed up by other witnesses nor by the circumstances proven in the
course of trial. He claimed that he was driving merely at a speed of 55 kph. when "out of nowhere he saw a dark maroon
lancer right in front of him, which was (the) plaintiff's car." He alleged that upon seeing this sudden "apparition" he put
on his brakes to no avail as the road was slippery. 

One will have to suspend disbelief in order to give credence to Li's disingenuous and patently self-serving
asseverations. The average motorist alert to road conditions will have no difficulty applying the brakes to a car traveling
at the speed claimed by Li. Given a light rainfall, the visibility of the street, and the road conditions on a principal
metropolitan thoroughfare like Aurora Boulevard, Li would have had ample time to react to the changing conditions of the
road if he were alert — as every driver should be — to those conditions. Driving exacts a more than usual toll on the
senses. Physiological "fight or flight" mechanisms are at work, provided such mechanisms were not dulled by drugs,
alcohol, exhaustion, drowsiness, etc. Li's failure to react in a manner which would have avoided the accident could
therefore have been only due to either or both of the two factors: 1) that he was driving at a "very fast" speed as
testified by Rodriguez; and 2) that he was under the influence of alcohol. Either factor working independently would have
diminished his responsiveness to road conditions, since normally he would have slowed down prior to reaching
Valenzuela's car, rather than be in a situation forcing him to suddenly apply his brakes. As the trial court noted (quoted
with approval by respondent court):

Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the
incident, he said that while driving along Aurora Blvd., out of nowhere he saw a dark maroon lancer
right in front of him, which was plaintiff's car, indicating, again, thereby that, indeed, he was driving
very fast, oblivious of his surroundings and the road ahead of him, because if he was not, then he
could not have missed noticing at a still far distance the parked car of the plaintiff at the right side near
the sidewalk which had its emergency lights on, thereby avoiding forcefully bumping at the plaintiff
who was then standing at the left rear edge of her car.

Since, according to him, in his narration to the San Juan Police, he put on his brakes when he
saw the plaintiff's car in front of him, but that it failed as the road was wet and slippery, this goes to
show again, that, contrary to his claim, he was, indeed, running very fast. For, were it otherwise, he
could have easily completely stopped his car, thereby avoiding the bumping of the plaintiff,
notwithstanding that the road was wet and slippery. Verily, since, if, indeed, he was running slow, as
he claimed, at only about 55 kilometers per hour, then, inspite of the wet and slippery road, he could
have avoided hitting the plaintiff by the mere expedient or applying his brakes at the proper time and
distance.

It could not be true, therefore, as he now claims during his testimony, which is contrary to
what he told the police immediately after the accident and is, therefore, more believable, that he did
not actually step on his brakes, but simply swerved a little to the right when he saw the on-coming car
with glaring headlights, from the opposite direction, in order to avoid it.

For, had this been what he did, he would not have bumped the car of the plaintiff which was
properly parked at the right beside the sidewalk. And, it was not even necessary for him to swerve a
little to the right in order to safely avoid a collision with the on-coming car, considering that Aurora
Blvd. is a double lane avenue separated at the center by a dotted white paint, and there is plenty of
space for both cars, since her car was running at the right lane going towards Manila and the on-
coming car was also on its right lane going to Cubao." 

Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi Lancer, the next
question for us to determine is whether or not Valenzuela was likewise guilty of contributory negligence in parking her car
alongside Aurora Boulevard, which entire area Li points out, is a no parking zone.

We agree with the respondent court that Valenzuela was not guilty of contributory negligence.

Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he
has suffered, which falls below the standard to which he is required to conform for his own protection.  Based on the
foregoing definition, the standard or act to which, according to petitioner Li, Valenzuela ought to have conformed for her
own protection was not to park at all at any point of Aurora Boulevard, a no parking zone. We cannot agree.

Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not
to be held up to the standard of conduct normally applied to an individual who is in no such situation. The law takes stock
of impulses of humanity when placed in threatening or dangerous situations and does not require the same standard of
thoughtful and reflective care from persons confronted by unusual and oftentimes threatening conditions.  Under the
"emergency rule" adopted by this court in Gan vs. Court of Appeals, an individual who suddenly finds himself in a
situation of danger and is required to act without much time to consider the best means that may be adopted to avoid
the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may
appear to be a better solution, unless the emergency was brought by his own negligence.

Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to avoid
hitting two children suddenly darting into the street, we held, in Mc Kee vs. Intermediate Appellate Court , that the driver
therein, Jose Koh, "adopted the best means possible in the given situation" to avoid hitting the children. Using the
"emergency rule" the court concluded that Koh, in spite of the fact that he was in the wrong lane when the collision with
an oncoming truck occurred, was not guilty of negligence.

While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately
weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated not
exclusively by the suddenness of the event which absolutely negates thoughtful care, but by the over-all nature of the
circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faulted for stopping
at a point which is both convenient for her to do so and which is not a hazard to other motorists. She is not expected to
run the entire boulevard in search for a parking zone or turn on a dark street or alley where she would likely find no one
to help her. It would be hazardous for her not to stop and assess the emergency (simply because the entire length of
Aurora Boulevard is a no-parking zone) because the hobbling vehicle would be both a threat to her safety and to other
motorists. In the instant case, Valenzuela, upon reaching that portion of Aurora Boulevard close to A. Lake St., noticed
that she had a flat tire. To avoid putting herself and other motorists in danger, she did what was best under the situation.
As narrated by respondent court: "She stopped at a lighted place where there are people, to verify whether she had a flat
tire and to solicit help if needed. Having been told by the people present that her rear right tire was flat and that she
cannot reach her home she parked along the sidewalk, about 1 1/2 feet away, behind a Toyota Corona Car." In fact,
respondent court noted, Pfc. Felix Ramos, the investigator on the scene of the accident confirmed that Valenzuela's car
was parked very close to the sidewalk. The sketch which he prepared after the incident showed Valenzuela's car partly
straddling the sidewalk, clear and at a convenient distance from motorists passing the right lane of Aurora Boulevard.
This fact was itself corroborated by the testimony of witness Rodriguez.

Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by the emergency
and could not be considered to have contributed to the unfortunate circumstances which eventually led to the amputation
of one of her lower extremities. The emergency which led her to park her car on a sidewalk in Aurora Boulevard was not
of her own making, and it was evident that she had taken all reasonable precautions. RBR

Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the night of the
accident. "Negligence, as it is commonly understood is conduct which creates an undue risk of harm to others."  It is the
failure to observe that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such
other person suffers injury. We stressed, in Corliss vs. Manila Railroad Company , that negligence is the want of care
required by the circumstances.

The circumstances established by the evidence adduced in the court below plainly demonstrate that Li was
grossly negligent in driving his Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at about 2:00 A.M.
after a heavy downpour had settled into a drizzle rendering the street slippery. There is ample testimonial evidence on
record to show that he was under the influence of liquor. Under these conditions, his chances of effectively dealing with
changing conditions on the road were significantly lessened. As Prosser and Keaton emphasize:

[U]nder present day traffic conditions, any driver of an automobile must be prepared for the
sudden appearance of obstacles and persons on the highway, and of other vehicles at intersections,
such as one who sees a child on the curb may be required to anticipate its sudden dash into the street,
and his failure to act properly when they appear may be found to amount to negligence.

Li's obvious unpreparedness to cope with the situation confronting him on the night of the accident was clearly of
his own making.

We now come to the question of the liability of Alexander Commercial, Inc., Li's employer. In denying liability on
the part of Alexander Commercial, the respondent court held that:

There is no evidence, not even defendant Li's testimony, that the visit was in connection with
official matters. His functions as assistant manager sometimes required him to perform work outside
the office as he has to visit buyers and company clients, but he admitted that on the night of the
accident he came from BF Homes Parañaque he did not have 'business from the company' (pp. 25–26,
tsn, Sept. 23, 1991). The use of the company car was partly required by the nature of his work, but the
privilege of using it for non-official business is a 'benefit,' apparently referring to the fringe benefits
attaching to his position.

Under the civil law, an employer is liable for the negligence of his employees in the discharge
of their respective duties, the basis of which liability is not respondeat superior, but the relationship
of pater familias, which theory bases the liability of the master ultimately on his own negligence and
 not on that of his servant ( Cuison v. Norton and Harrison Co.,  55 Phil. 18). Before an employer may be
held liable for the negligence of his employee, the act or omission which caused damage must have
occurred while an employee was in the actual performance of his assigned tasks or duties ( St. Francis
High School vs. Court of Appeals,  194 SCRA 341). In defining an employer's liability for the acts done
within the scope of the employee's assigned tasks, the Supreme Court has held that this 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 ( Filamer Christian Institute vs.
Intermediate Appellate Court,  212 SCRA 637). 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' (at p. 645).

In light of the foregoing, We are unable to sustain the trial court's finding that since defendant
Li was authorized by the company to use the company car 'either officially or socially or even bring it
home,' he can be considered as using the company car in the service of his employer or on the
occasion of his functions. Driving the company car was not among his functions as assistant manager;
using it for non-official purposes would appear to be a fringe benefit, one of the perks attached to his
position. But to impose liability upon the employer under Article 2180 of the Civil Code, earlier quoted,
there must be a showing that the damage was caused by their employees in the service of the
employer or on the occasion of their functions. There is no evidence that Richard Li was at the time of
the accident performing any act in furtherance of the company's business or its interests, or at least for
its benefit. The imposition of solidary liability against defendant Alexander Commercial Corporation
must therefore fail.

We agree with the respondent court that the relationship in question is not based on the principle of  respondeat
superior, which holds the master liable for acts of the servant, but that of   pater familias, in which the liability ultimately
falls upon the employer, for his failure to exercise the diligence of a good father of the family in the selection and
supervision of his employees. It is up to this point, however, that our agreement with the respondent court ends. Utilizing
the bonus pater familias standard expressed in Article 2180 of the Civil Code, we are of the opinion that Li's employer,
Alexander Commercial, Inc. is jointly and solidarily liable for the damage caused by the accident of June 24, 1990.

First, the case of St. Francis High School vs. Court of Appeals  upon which respondent court has placed undue
reliance, dealt with the subject of a school and its teacher's supervision of students during an extracurricular activity.
These cases now fall under the provision on special parental authority found in Art. 218 of the Family Code which
generally encompasses all authorized school activities, whether inside or outside school premises.

Second, the employer's primary liability under the concept of pater familias embodied by Art. 2180 (in relation
to Art. 2176) of the Civil Code is quasi-delictual or tortious in character. His liability is relieved on a showing that he
exercised the diligence of a good father of the family in the selection and supervision of its employees. Once evidence is
introduced showing that the employer exercised the required amount of care in selecting its employees, half of the
employer's burden is overcome. The question of diligent supervision, however, depends on the circumstances of
employment.

Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee  during
the performance of the latter's assigned tasks would be enough to relieve him of the liability imposed by Article 2180 in
relation to Article 2176 of the Civil Code. The employer is not expected to exercise supervision over either the employee's
private activities or during the performance of tasks either unsanctioned by the former or unrelated to the employee's
tasks. The case at bench presents a situation of a different character, involving a practice utilized by large companies with
either their employees of managerial rank or their representatives. Llibris

It is customary for large companies to provide certain classes of their employees with courtesy vehicles. These
company cars are either wholly owned and maintained by the company itself or are subject to various plans through
which employees eventually acquire their vehicles after a given period of service, or after paying a token amount. Many
companies provide liberal "car plans" to enable their managerial or other employees of rank to purchase cars, which,
given the cost of vehicles these days, they would not otherwise be able to purchase on their own.

Under the first example, the company actually owns and maintains the car up to the point of turnover of
ownership to the employee; in the second example, the car is really owned and maintained by the employee himself. In
furnishing vehicles to such employees, are companies totally absolved of responsibility when an accident involving a
company-issued car occurs during private use after normal office hours?

Most pharmaceutical companies, for instance, which provide cars under the first plan, require rigorous tests of
road worthiness from their agents prior to turning over the car (subject of company maintenance) to their
representatives. In other words, like a good father of a family, they entrust the company vehicle only after they are
satisfied that the employee to whom the car has been given full use of the said company car for company or private
purposes will not be a threat or menace to himself, the company or to others. When a company gives full use and
enjoyment of a company car to its employee, it in effect guarantees that it is, like every good father, satisfied that its
employee will use the privilege reasonably and responsively.

In the ordinary course of business, not all company employees are given the privilege of using a company-issued
car. For large companies other than those cited in the example of the preceding paragraph, the privilege serves important
business purposes either related to the image of success an entity intends to present to its clients and to the public in
general, or — for practical and utilitarian reasons — to enable its managerial and other employees of rank or its sales
agents to reach clients conveniently. In most cases, providing a company car serves both purposes. Since important
business transactions and decisions may occur at all hours in all sorts of situations and under all kinds of guises, the
provision for the unlimited use of a company car therefore   principally serves the business and goodwill of a company
and only incidentally the private purposes of the individual who actually uses the car, the managerial employee or
company sales agent. As such, in providing for a company car for business use and/or for the purpose of furthering the
company's image, a company owes a responsibility to the public to see to it that the managerial or other employees to
whom it entrusts virtually unlimited use of a company issued car are able to use the company issue capably and
responsibly.

In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his testimony before the trial
court, he admitted that his functions as Assistant Manager did not require him to scrupulously keep normal office hours as
he was required quite often to perform work outside the office, visiting prospective buyers and contacting and meeting
with company clients. These meetings, clearly, were not strictly confined to routine hours because, as a managerial
employee tasked with the job of representing his company with its clients, meetings with clients were both social as well
as work-related functions. The service car assigned to Li by Alexander Commercial, Inc. therefore enabled both Li — as
well as the corporation — to put up the front of a highly successful entity, increasing the latter's goodwill before its
clientele. It also facilitated meeting between Li and its clients by providing the former with a convenient mode of travel.

Moreover, Li's claim that he happened to be on the road on the night of the accident because he was coming
from a social visit with an officemate in Parañaque was a bare allegation which was never corroborated in the court
below. It was obviously self-serving. Assuming he really came from his officemate's place, the same could give rise to
speculation that he and his officemate had just been from a work-related function, or they were together to discuss sales
and other work related strategies.

In fine, Alexander Commercial, Inc. has not demonstrated, to our satisfaction that it exercised the care and
diligence of a good father of the family in entrusting its company car to Li. No allegations were made as to whether or not
the company took the steps necessary to determine or ascertain the driving proficiency and history of Li, to whom it gave
full and unlimited use of a company car. Not having been able to overcome the burden of demonstrating that it should be
absolved of liability for entrusting its company car to Li, said company, based on the principle of  bonus pater familias,
ought to be jointly and severally liable with the former for the injuries sustained by Ma. Lourdes Valenzuela during the
accident.

Finally, we find no reason to overturn the amount of damages awarded by the respondent court, except as to the
amount of moral damages. In the case of moral damages, while the said damages are not intended to enrich the plaintiff
at the expense of a defendant, the award should nonetheless be commensurate to the suffering inflicted. In the instant
case we are of the opinion that the reduction in moral damages from an amount of P1,000,000.00 to P500,000.00 by the
Court of Appeals was not justified considering the nature of the resulting damage and the predictable sequelae of the
injury.

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity
at the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory
functions of her left extremity, even with the use of state of the art prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation
and therapy. During her lifetime, the prosthetic devise will have to be replaced and re-adjusted to changes in the size of
her lower limb effected by the biological changes of middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be adjusted to respond to the changes in bone resulting from a
precipitate decrease in calcium levels observed in the bones of all post-menopausal women. In other words, the damage
done to her would not only be permanent and lasting, it would also be permanently changing and adjusting to the
physiologic changes which her body would normally undergo through the years. The replacements, changes, and
adjustments will require corresponding adjustive physical and occupational therapy. All of these adjustments, it has been
documented, are painful.

The foregoing discussion does not even scratch the surface of the nature of the resulting damage because it
would be highly speculative to estimate the amount of psychological pain, damage and injury which goes with the sudden
severing of a vital portion of the human body. A prosthetic device, however technologically advanced, will only allow a
reasonable amount of functional restoration of the motor functions of the lower limb. The sensory functions are forever
lost. The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are inestimable.

As the amount of moral damages are subject to this Court's discretion, we are of the opinion that the amount of
P1,000,000.00 granted by the trial court is in greater accord with the extent and nature of the injury — physical and
psychological — suffered by Valenzuela as a result of Li's grossly negligent driving of his Mitsubishi Lancer in the early
morning hours of the accident.

WHEREFORE, PREMISES CONSIDERED, the decision of the court of Appeals is modified with the effect of
REINSTATING the judgment of the Regional Trial Court.

SO ORDERED.

(Valenzuela v. Court of Appeals, G.R. Nos. 115024 & 117944, [February 7, 1996], 323 PHIL 374-402)

SPS. FERNANDO VERGARA and HERMINIA VERGARA vs. ERLINDA TORRECAMPO SONKIN

DECISION

PERLAS-BERNABE, J  p:
 Assailed in this petition for review on certiorari  are the Decision dated February 24, 2010 and the
Resolution 3 dated September 2, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 89357, which reversed and set
aside the Decision 4 dated January 4, 2007 of the Regional Trial Court of Malolos City, Bulacan, Branch 19 (RTC) in
Civil Case No. 900-M-2002 and entered a new one in its stead.

The Facts

Petitioners-spouses Fernando Vergara and Herminia Vergara (Sps. Vergara) and Spouses Ronald Mark Sonkin
and Erlinda Torrecampo Sonkin (Sps. Sonkin) are adjoining landowners in Poblacion, Norzagaray, Bulacan. In view of
the geographical configuration of the adjoining properties, the property owned by Sps. Sonkin (Sonkin Property) is
slightly lower in elevation than that owned by Sps. Vergara (Vergara Property).

When Sps. Sonkin bought the Sonkin Property sometime in 1999, they raised the height of the partition wall
and caused the construction of their house thereon. The house itself was attached to the partition wall such that a
portion thereof became part of the wall of the master's bedroom and bathroom.

Sometime in 2001, Sps. Vergara levelled the uneven portion of the Vergara Property by filling it with gravel,
earth, and soil. As a result, the level of the Vergara Property became even higher than that of the Sonkin Property by a
third of a meter. Eventually, Sps. Sonkin began to complain that water coming from the Vergara Property was leaking
into their bedroom through the partition wall, causing cracks, as well as damage, to the paint and the wooden parquet
floor. Sps. Sonkin repeatedly demanded that Sps. Vergara build a retaining wall on their property in order to contain the
landfill that they had dumped thereon, but the same went unheeded. Hence, Sps. Sonkin filed the instant complaint for
damages and injunction with prayer for preliminary mandatory injunction and issuance of a temporary restraining order
against Sps. Vergara, as well as Sps. Rowena Santiago and Harold Santiago, Dolores Vergara-Orbistondo, and Rosario
Vergara-Payumo, the other possessors of the Vergara Property. 

In defense, Sps. Vergara, in their Answer with Compulsory Counterclaim, claimed that Sps. Sonkin's act of
raising the partition wall made the same susceptible to breakage, which therefore cannot be attributed to them (Sps.
Vergara). They likewise claimed that when they levelled their own property by filling it with gravel and soil, they left a
distance of one (1) meter from the partition wall such that the edge of the landfill did not breach it, asserting further
that there was no valid and legal reason why they should be enjoined from exercising their proprietary rights.

During the trial, Sps. Sonkin presented the testimony of Engineer Ma. Victoria Mendoza, considered an expert
witness, who categorically declared that in view of the sloping terrain and the Sonkin Property being lower in elevation
than that of the Vergara Property, the Sps. Vergara were then duty bound to provide a retaining wall because they
were the ones who caused the landfill, citing Section 1202 of Presidential Decree No. 1096, otherwise known as the
"National Building Code of the Philippines" (National Building Code). Likewise, citing Sections 3.2.1, 3.2.3, and 3.2.4 of
Section 3.2, Rule XV of the original Implementing Rules and Regulations of the National Building Code, she explained
that it was Sps. Vergara's duty to provide safety requirements for the landfill they made on their property to prevent
any danger to life or property. Moreover, Sps. Vergara failed to provide a sewerage line to divert the flow of the water
into the adjoining property, in violation of Section 901 of the National Building Code.

Finally, the Provincial Engineer of Bulacan, Romeo S. Castro, who was appointed as Commissioner by the RTC
to conduct his own investigation, likewise found, inter alia, that the introduction of filling materials on the Vergara
Property has "affected" the house of Sps. Sonkin.

The RTC Ruling

In a Decision dated January 4, 2007, the RTC found Sps. Vergara civilly liable to Sps. Sonkin for damages and
directed them: (a) to scrape the earth and other filling materials dumped in the adjacent perimeter wall of the Sonkin
Property and erect a retaining wall in accordance with the standards of the National Building Code; (b) to install and
provide an adequate drainage system in accordance with the same Code; and (c) to jointly and severally pay Sps.
Sonkin P300,000.00 as actual damages, P50,000.00 as moral damages, P50,000.00 as exemplary damages,
P100,000.00 as attorney's fees, and costs of suit. It dismissed all other claims of the Sps. Sonkin, as well as the
counterclaims of Sps. Vergara, for lack of merit.

The RTC found that the earth dumped on the Vergara Property pushed back the perimeter wall, causing cracks
on Sps. Sonkin's bedroom wall and water to seep through the floor of the house. Moreover, the water seepage could
only have come from the Vergara Property which was higher in elevation, as Sps. Vergara have failed to provide any
drainage to divert the flow of water. Given the foregoing, the RTC concluded that Sps. Vergara's act of dumping earth,
soil, and other materials in their property directly caused the damage to the house of Sps. Sonkin and, thus, they
should be held liable for damages in favor of the latter. Needless to state, Sps. Vergara's co-defendants were
exculpated from liability since they were not shown to have participated in the former's act.

Aggrieved, Sps. Vergara appealed the entire RTC Decision to the CA. They reiterated that they were merely
exercising their proprietary rights over their property, i.e., the Vergara Property, when they filled the area with soil and
gravel, and that it was Sps. Sonkin who transgressed the National Building Code when they failed to leave a setback of
two (2) meters between their house and the property line.

On the other hand, Sps. Sonkin filed only a partial appeal, assailing the amount of actual, moral, and exemplary
damages.

The CA Ruling

In a Decision dated February 24, 2010, the CA reversed and set aside the assailed RTC Decision and entered a
new one: (a) ordering the Sps. Vergara to install and provide an adequate drainage system on their property to prevent
the flow of water into the Sonkin Property, and to pay Sps. Sonkin the amounts of P50,000.00 as moral damages and
P100,000.00 as attorney's fees; (b) setting aside the directive to Sps. Vergara to remove the landfill and build a
retaining wall on their property; (c) deleting the award of actual damages, as well as exemplary damages;
and (d) dismissing the separate appeal of the Sps. Sonkin for lack of merit. 

While the CA concurred with the finding of the RTC that the cause of the water seepage into the Sonkin
Property was the act of Sps. Vergara in elevating their own property by filling it with gravel and soil, it ascribed error
upon the RTC in not finding that Sps. Sonkin were likewise guilty of contributory negligence in building their house
directly abutting the perimeter wall. The CA explained that despite the fact that under Article 637 of the Civil Code, the
Sonkin Property is legally obliged to receive any water from higher estates such as the Vergara Property, it being the
lower estate, the Sps. Sonkin still built their house with parts thereof directly abutting the perimeter wall and, in the
process, violated the two (2)-meter setback rule under Section 708 of the National Building Code. Thus, the CA
deduced that had Sps. Sonkin followed such rule, then their house would not have sustained any damage from water
coming from the Vergara property. Proceeding from such ratiocination, the CA deleted the award of actual damages in
the absence of evidence, i.e., actual receipts, showing the amount actually spent by Sps. Sonkin in the repairs or
renovation of their property. Similarly, it deleted the award of exemplary damages, as Sps. Vergara was not proven to
have acted with gross negligence in levelling their property with the landfill and in mitigation of their liability in light of
Sps. Sonkin's contributory negligence. The award of moral damages and attorney's fees, however, were affirmed. 

Finally, the CA found the order directing Sps. Vergara to remove the landfill on their property to be
unreasonable and an interference on their proprietary rights. It considered the order to provide an adequate drainage
system on their property to be sufficient under the circumstances. Neither did it find the need to build a retaining wall
on the Vergara Property for the purpose of containing the landfill thereon, opining that if it was Sps. Vergara's
obligation to prevent damage to Sps. Sonkin's house by erecting a retaining wall, then it was the latter's concomitant
obligation to detach their house from the perimeter wall in order to prevent any future damage or injury.

Only Sps. Vergara sought reconsideration from the CA Decision, which was denied in a Resolution dated
September 2, 2010. Hence, this petition impleading only respondent Erlinda Torrecampo Sonkin (Erlinda), essentially
arguing that Sps. Sonkin: (a) are not entitled to damages; and (b) should be ordered to demolish the parts of their
house directly abutting the perimeter wall in compliance with Section 708 (a) of the National Building Code. Records are
bereft of showing that Sps. Sonkin made a further appeal to the Court.

The Issue Before the Court

The issues for the Court's resolution are (a) whether or not the CA erred in upholding the award of moral
damages and attorney's fees; and (b) whether or not it should have ordered the demolition of the portion of the Sps.
Sonkin's house that adjoins the partition wall.

The Court's Ruling

The petition is meritorious.

Article 2179 of the Civil Code reads:

Art. 2179. When the plaintiff's own negligence was the immediate and proximate cause of his
injury, he cannot recover damages. But if his negligence was only contributory, the immediate and
proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded.

Verily, contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the
harm he has suffered, which falls below the standard to which he is required to conform for his own protection.

In the case at bar, it is undisputed that the Sonkin property is lower in elevation than the Vergara property, and
thus, it is legally obliged to receive the waters that flow from the latter, pursuant to Article 637 of the  Civil Code.This
provision refers to the legal easement pertaining to the natural drainage of lands, which obliges lower estates to receive
from the higher estates water which naturally and without the intervention of man descends from the latter,  i.e., not
those collected artificially in reservoirs, etc., and the stones and earth carried by the waters, viz.:

Art. 637. Lower estates are obliged to receive the waters which naturally and
without the intervention of man descend from the higher estates, as well as the stones
or earth which then carry with them.

The owner of the lower estate cannot construct works which will impede this easement;
neither can the owner of the higher estate make works which will increase the burden. (Emphasis
and underscoring supplied)

In this light, Sps. Sonkin should have been aware of such circumstance and, accordingly, made the necessary
adjustments to their property so as to minimize the burden created by such legal easement. Instead of doing so, they
disregarded the easement and constructed their house directly against the perimeter wall which adjoins the Vergara
property, thereby violating the National Building Code in the process, specifically Section 708 (a) thereof which reads:

Section 708. Minimum Requirements for Group A Dwellings.

(a) Dwelling Location and Lot Occupancy.

 The dwelling shall occupy not more than ninety percent of a corner lot and eighty percent of an
inside lot, and subject to the provisions on Easement on Light and View of the Civil Code of the
Philippines, shall be at least 2 meters from the property line.

. . . . (Emphasis and underscoring supplied)

Hence, the CA correctly held that while the proximate cause of the damage sustained by the house of Sps.
Sonkin was the act of Sps. Vergara in dumping gravel and soil onto their property, thus, pushing the perimeter wall
back and causing cracks thereon, as well as water seepage, the former is nevertheless guilty of contributory negligence
for not only failing to observe the two (2)-meter setback rule under the National Building Code, but also for
disregarding the legal easement constituted over their property. As such, Sps. Sonkin must necessarily and equally bear
their own loss.

In view of Sps. Sonkin's contributory negligence, the Court deems it appropriate to delete the award of moral
damages in their favor. While moral damages may be awarded whenever the defendant's wrongful act or omission is
the proximate cause of the plaintiff's physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation and similar injury in the cases specified or analogous to those
provided in Article 2219 of the Civil Code, they are only given to ease the defendant's grief and suffering and should,
therefore, reasonably approximate the extent of hurt caused and the gravity of the wrong done.

Anent the issue on attorney's fees, the general rule is that the same cannot be recovered as part of damages
because of the policy that no premium should be placed on the right to litigate. They 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. Even when a claimant is compelled to litigate with third persons or to incur
expenses to protect his rights, still attorney's fees may not be awarded where no sufficient showing of bad faith could
be reflected in a party's persistence in a case other than an erroneous conviction of the righteousness of his cause.  In
this case, the Court observes that neither Sps. Sonkin nor Sps. Vergara (thru their compulsory counterclaim) were
shown to have acted in bad faith in pursuing their respective claims against each other. The existence of bad faith is
negated by the fact that both parties have valid contentions against each other. Thus, absent cogent reason to hold
otherwise, the Court deems it inappropriate to award attorney's fees in favor of either party.

Finally, in view of Sps. Sonkin's undisputed failure to observe the two (2)-meter setback rule under the  National
Building Code, and in light of the order of the courts a quo directing Sps. Vergara to provide an adequate drainage
system within their property, the Court likewise deems it proper, equitable, and necessary to order Erlinda, who is
solely impleaded as respondent before the Court, to comply with the aforesaid rule by the removal of the portion of her
house directly abutting the partition wall. The underlying precept on contributory negligence is that a plaintiff who is
partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences
of his own negligence. The defendant must therefore be held liable only for the damages actually caused by his
negligence.

WHEREFORE, the petition is GRANTED. The Decision dated February 24, 2010 and the Resolution dated
September 2, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 89357 are
hereby AFFIRMED with MODIFICATIONS. The awards of moral damages and attorney's fees are DELETED and
respondent Erlinda Torrecampo Sonkin is DIRECTED to strictly comply with Section 708 (a) of the National Building
Code by removing or demolishing the portion of her house that occupies the two-meter easement from the property
line. The rest of the CA Decision stands.

SO ORDERED.

(Spouses Vergara v. Sonkin, G.R. No. 193659 , [June 15, 2015], 759 PHIL 402-416)

PERSONS VICARIOUSLY LIABLE

Parents; Guardians; other persons exercising parental authority

Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute
parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3) The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified.

Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of
preference shall be observed. (349a, 351a, 354a)

Art. 217. In case of foundlings, abandoned neglected or abused children and other children similarly situated,
parental authority shall be entrusted in summary judicial proceedings to heads of children’s homes, orphanages and
similar institutions duly accredited by the proper government agency. (314a)

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. (2180(2)a and (4)a)
 Article 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions,
but also for those of persons for whom one is responsible.

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. (1903a)

CRESENCIO LIBI vs. HON. INTERMEDIATE APPELLATE COURT (Lovers)

SYLLABUS

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

DECISION

REGALADO, J  :

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

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

"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:

1. Moral damages, P30,000.00;

2. Exemplary damages, P10,000.00;
3. Attorney's fees, P20,000.00, and costs.

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

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.

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:

"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." 

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:

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.

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. LexLib

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. 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.  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.

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:

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 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, 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:

xxx xxx xxx

"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. LLjur

xxx xxx xxx

"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." 

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

"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:

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

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. 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.

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: prcd

"ATTY. ORTIZ: (TO WITNESS).

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

WITNESS:

A It is about 8 feet.

 ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

WITNESS:

A From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q From Your living room window, is that correct?

WITNESS:

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

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 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.

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. 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, 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, 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:

". . . 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:

'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 vs. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held
that:
 '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 . . ."

xxx xxx xxx

"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.

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 vs.
Cadano, et al. 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."

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:

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

xxx xxx xxx

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 ." (Emphases supplied.) 
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:

"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."

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 vs. Capuno, et al., Araneta
vs. Arreglado, Salen, et al. vs. Balce, Paleyan, etc., et al. vs. Bangkili, et al., and Elcano, et al, vs. Hill, et
al. 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
age 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; innkeepers,
tavern-keepers and proprietors of establishments; employers, teachers, persons and corporations engaged in
industry; and principals, accomplices and accessories for the unpaid civil liability of their co-accused in the other
classes. 

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:

"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."

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. 
 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.

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.

(Libi v. Intermediate Appellate Court, G.R. No. 70890, [September 18, 1992], 288 PHIL 780-798)

MACARIO TAMARGOvs.  THE HON. COURT OF APPEALS (shooting)

SYLLABUS

1. REMEDIAL LAW; CIVIL ACTIONS; MOTION FOR RECONSIDERATION; CONSIDERED PRO FORMA WHERE

NOTICE OF TIME AND PLACE OF HEARING NOT CONTAINED THEREIN. — 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. 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. ID.; SUPREME COURT; SUSPENSION OF APPLICATION OF TECHNICAL RULES EXERCISED IN CASE AT

BAR. — 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. (Gregorio v. Court of Appeals, 72 SCRA 120 [1978])

3. CIVIL LAW; TORTS; DOCTRINE OF "IMPUTED NEGLIGENCE" OR VICARIOUS LIABILITY, CONSTRUED. —

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. (Article 2176 of the Civil Code) 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) 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.

4. ID.; ID.; ID.; BASIS. — 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 act, 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. (Cangco v. Manila Railroad Co., 36 Phil. 768 [1918])

5. ID.; ID.; ID.; ID.; PARENTAL DERELICTION, ONLY A PRESUMPTION. — The parental dereliction is, of course,
only presumed and the presumption can be overturned 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.

6. REMEDIAL LAW; CIVIL ACTIONS; PARTIES; PARENTS WHO HAD ACTUAL CUSTODY OF MINOR,
INDISPENSABLE PARTIES TO ACTION FOR DAMAGES BASED ON TORT. — In the instant case, the shooting of
Jennifer by Adelberto with an air rifle occurred 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.

7. CIVIL LAW; TORTS; DOCTRINE OF "IMPUTED NEGLIGENCE" OR VICARIOUS LIABILITY; EFFECT OF

ADOPTION THEREON; CASE AT BAR. — 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 given to the decree of adoption so as to impose a
liability upon the adopting parents accruing at a time when the adopting parents had no actual or physical custody over
the adopted child. Retroactive effect 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.

8. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; DISMISSAL OF COMPLAINT WHERE

INDISPENSABLE PARTIES ARE ALREADY BEFORE THE COURT CONSTITUTES GRAVE ABUSE OF
DISCRETION. — Under Article 35 of the Child and Youth Welfare Code, 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 had 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.

DECISION

FELICIANO, J  p:

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 for 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 had 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 granted 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 of 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 though
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.

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. 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.

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: 

"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
a technical and rigid enforcement of the rules is made, their aim would be defeated."

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 . cdll

xxx xxx xxx

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
agents 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 act, 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 overturned 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 occurred 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 the petition for adoption  that is, before Adelberto had shot Jennifer with 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: LLjur
 "Article 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 as of the 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:

xxx xxx xxx

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

xxx xxx xxx

(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 been 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 given to the decree of adoption so as to impose a liability upon the adopting parents
accruing at a time when the adopting parents had no actual or physical custody over the adopted child . Retroactive effect
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
had 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.

(Tamargo v. Court of Appeals, G.R. No. 85044, [June 3, 1992], 285 PHIL 72-83)