Article 2176
have crossed the track safely, as he had done a hundred times
E. M. WRIGHT, plaintiff-appellant,
vs.
MANILA ELECTRIC R.R. & LIGHT CO., defendant-
appellant.
MORELAND, J.:
This is an action brought to recover damages for injuries
sustained in an accident which occurred in Caloocan on the
night of August 8, 1909.
The defendant is a corporation engaged in operating an
electric street railway in the city of Manila and its suburbs,
including the municipality of Caloocan. The plaintiff's
residence in Caloocan fronts on the street along which
defendant's tracks run, so that to enter his premises from the
street plaintiff is obliged to cross defendant's tracks. On the
night mentioned plaintiff drove home in a calesa and in
crossing the tracks to enter his premises the horse stumbled,
leaped forward, and fell, causing the vehicle with the rails,
resulting in a sudden stop, threw plaintiff from the vehicle and
caused the injuries complained of.
It is undisputed that at the point where plaintiff crossed the
tracks on the night in question not only the rails were above-
ground, but that the ties upon which the rails rested projected
from one-third to one-half of their depth out of the ground,
thus making the tops of the rails some 5 or 6 inches or more
above the level of the street.
It is admitted that the defendant was negligent in maintaining
its tracks as described, but it is contended that the plaintiff was
also negligent in that he was intoxicated to such an extent at
the time of the accident that he was unable to take care of
himself properly and that such intoxication was the primary
cause of the accident.
The trial court held that both parties were negligent, but that
the plaintiff's negligence was not as great as defendant's and
under the authority of the case of Rakes vs. A. G. & P. Co. (7
Phil. Rep., 359) apportioned the damages and awarded
plaintiff a judgment of P1,000.
The question before us is stated by the defendant thus:
"Accepting the findings of the trial court that both plaintiff and
defendant were guilty of negligence, the only question to be
considered is whether the negligence of plaintiff contributed t
the 'principal occurrence' or 'only to his own injury.' If the
former, he cannot recover; if the latter, the trial court was
correct in apportioning the damages."
The questioned as stated by plaintiff is as follows: "The main
question at issue is whether or not the plaintiff was negligent,
and, if so, to what extent. If the negligence of the plaintiff was
the primary cause of the accident then, of course, he cannot
recover; if his negligence had nothing to do with the accident
but contributed to his injury, then the court was right in
apportioning the damages, but if there was no negligence on
the part of the plaintiff, then he should be awarded damages
adequates to the injury sustained."
In support of the defendant's contention counsel says:
"Defendant's negligence was its failure properly to maintain
the track; plaintiff's negligence was his intoxication; the
'principal occurrence' was plaintiff's fall from his calesa. It
seems clear that plaintiff's intoxication contributed to the fall;
1
if he had been sober, it can hardly be doubted that he would
before."
While both parties appealed from the decision, the defendant
on the ground that it was not liable and the plaintiff on the
ground that the damages were insufficient according to the
evidence, and while the plaintiff made a motion for a new trial
upon the statutory grounds and took proper exception to the
denial thereof, thus conferring upon this court jurisdiction to
determine the question of fact, nevertheless, not all of the
testimony taken on the trial, so far as can be gathered from the
record, has been brought to this court. There seems to have
been two hearings, one on the 31st of August and the other on
the 28th of September. The evidence taken on the first hearing
is here; that taken on the second is not. Not all the evidence
taken on the hearings being before the court, we must refuse,
under our rules, to consider even that evidence which is here;
and, in the decision of this case, we are, therefore, relegated to
the facts stated in the opinion of the court and the pleadings
filed.
A careful reading of the decision of the trial court leads us to
the conclusion that there is nothing in the opinion which
sustains the conclusion of the court that the plaintiff was
negligent with reference to the accident which is the basis of
this action. Mere intoxication establish a want of ordinary
care. It is but a circumstance to be considered with the other
evidence tending to prove negligence. It is the general rule that
it is immaterial whether a man is drunk or sober if no want of
ordinary care or prudence can be imputed to him, and no
greater degree of care is required than by a sober one. If one's
conduct is characterized by a proper degree of care and
prudence, it is immaterial whether he is drunk or sober.
(Ward vs. Chicago etc., R. R. Co., 85 Wis., 601; H & T. C. R.
Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell, 3 Allen,
Mass., 402; Central R. R. Co. vs. Phinazee, 93 Ga., 488;
Maguire vs. Middlesex R. R. Co., 115 Mass., 239; Meyer vs.
Pacific R. R. Co., 40 Mo., 151., Chicago & N. W. R. R.
Co. vs. Drake, 33 Ill. App., 114.)
If intoxication is not in itself negligence, what are the facts
found by the trial court and stated in its opinion upon which
may be predicated the finding that the plaintiff did not use
ordinary care and prudence and that the intoxication
contributed to the injury complained of? After showing clearly
and forcibly the negligence of the defendant in leaving its
tracks in the condition in which they were on the night of the
injury, the court has the following to say, and it is all that can
be found in its opinion, with reference to the negligence of the
plaintiff: "With respect to the condition in which Mr. Wright
was on returning to his house on the night in question, the
testimony of Doctor Kneedler, who was the physician who
attended him an hour after the accident, demonstrates that he
was intoxicated. . . . .
If the defendant or its employees were negligent by
reason of having left the rails and a part of the ties
uncovered in a street where there is a large amount of
travel, the plaintiff was no less negligent, he not
having abstained from his custom of taking more
wine than he could carry without disturbing his
judgment and his self-control, he knowing that he had
to drive a horse and wagon and to cross railroad
tracks which were to a certain extent dangerous by
reason of the rails being elevated above the level of
the street.
If the plaintiff had been prudent on the night in
question and had not attempted to drive his
 conveyance while in a drunken condition, he would
certainly have avoided the damages which he
received, although the company, on its part, was
negligent in maintaining its tracks in a bad condition
for travel.
Both parties, therefore, were negligent and both
contributed to the damages resulting to the plaintiff,
although the plaintiff, in the judgment of the court,
contributed in greater proportion to the damages that
did the defendant.
As is clear from reading the opinion, no facts are stated therein
which warrant the conclusion that the plaintiff was negligent.
The conclusion that if he had been sober he would not have
been injured is not warranted by the facts as found. It is
impossible to say that a sober man would not have fallen from
the vehicle under the conditions described. A horse crossing
the railroad tracks with not only the rails but a portion of the
ties themselves aboveground, stumbling by reason of the
unsure footing and falling, the vehicle crashing against the
rails with such force as to break a wheel, this might be
sufficient to throw a person from the vehicle no matter what
his condition; and to conclude that, under such circumstances,
a sober man would not have fallen while a drunken man did, is
to draw a conclusion which enters the realm of speculation and
guesswork.
It having been found that the plaintiff was not negligent, it is
unnecessary to discuss the question presented by the appellant
company with reference to the applicability of the case
of Rakes vs. A. G. & P. Co., above; and we do not find facts in
the opinion of the court below which justify a larger verdict
than the one found.
DY TEBAN TRADING, INC., G.R. No. 161803
Petitioner Vs.
JOSE CHING AND/OR LIBERTY
FOREST, INC. and CRESILITO  of the approaching Nissan van. Ortiz saw two bright and
M. LIMBAGA, Respondents
 
REYES, R.T., J.:
 
THE vehicular collision resulting in damages and injuries in
this case could have been avoided if the stalled prime mover
with trailer were parked properly and equipped with an early
warning device. It is high time We sounded the call for strict
enforcement of the law and regulation on traffic and vehicle
registration. Panahon na para mahigpit na ipatupad ang
batas at regulasyon sa trapiko at pagpapatala ng sasakyan.
 
Before Us is a petition for review on certiorari of the
Decision[1] of the Court of Appeals (CA) modifying that[2] of
the Regional Trial Court (RTC) in
Butuan City finding private respondents Liberty Forest, Inc.
and Cresilito Limbaga liable to petitioner Dy Teban Trading,
Inc. for damages.
2
Facts
 
On July 4, 1995, at around 4:45 a.m., Rogelio Ortiz, with
helper Romeo Catamora, was driving a Nissan van owned by
petitioner Dy Teban Trading, Inc. along the National
Highway in Barangay Sumilihon, Butuan City, going
to Surigao City. They were delivering commercial ice to
nearby barangays and municipalities. A Joana Paula passenger
bus was cruising on the opposite lane towards the van. In
between the two vehicles was a parked prime mover with a
trailer, owned by private respondent Liberty Forest, Inc.[3]
 
The night before, at around 10:00 p.m., the prime mover with
trailer suffered a tire blowout. The driver, private respondent
Cresilito Limbaga, parked the prime mover askew occupying a
substantial portion of the national highway, on the lane of the
passenger bus. He parked the prime mover with trailer at the
shoulder of the road with the left wheels still on the cemented
highway and the right wheels on the sand and gravel shoulder
of the highway.[4] The prime mover was not equipped with
triangular, collapsible reflectorized plates, the early warning
device required under Letter of Instruction No. 229. As
substitute, Limbaga placed a banana trunk with leaves on the
front and the rear portion of the prime mover to warn
incoming motorists. It is alleged that Limbaga likewise placed
kerosene lighted tin cans on the front and rear of the trailer.[5]
 
To avoid hitting the parked prime mover occupying its lane,
the incoming passenger bus swerved to the right, onto the lane
glaring headlights and the approaching passenger bus. He
pumped his break slowly, swerved to the left to avoid the
oncoming bus but the van hit the front of the stationary prime
mover. The passenger bus hit the rear of the prime mover.[6]
 
Ortiz and Catamora only suffered minor injuries. The Nissan
van, however, became inoperable as a result of the
incident. After the collision, SPO4 Teofilo Pame conducted an
investigation and submitted a police traffic incident
[7]
investigation report.
 
On October 31, 1995, petitioner Nissan van owner filed a
complaint for damages[8] against private respondents prime
mover owner and driver with the RTC in Butuan City. The
Joana Paula passenger bus was not impleaded as defendant in
the complaint.
 
RTC Disposition
.On August 7, 2001, the RTC rendered a decision in favor of
petitioner Dy Teban Trading, Inc. with a fallo reading:
 
WHEREFORE, judgment is hereby rendered
directing, ordaining and ordering:
 
a) That defendants Liberty Forest,
Inc. and Cresilito M. Limbaga
pay, jointly and solidarily,
plaintiff Dy Teban Trading, Inc.
the amounts of P279,832.00 as
actual and compensatory
damages, P30,000.00 as
attorneys fees and P5,000.00 as
expenses of litigation;
b) That all money claims of plaintiff
Rogelio C. Ortiz are dismissed;
c) That defendant Jose Ching is
absolved from any civil liability
or the case against him
dismissed;
d) That the counterclaim of all the
defendants is dismissed; and
e) That defendants Liberty Forest,
Inc. and Cresilito M. Limbaga
to pay, jointly and solidarily, the
costs.
 
SO ORDERED
 
The RTC held that the proximate cause of the three-way
vehicular collision was improper parking of the prime mover
on the national highway and the absence of an early warning
device on the vehicle, thus:
The court finds that the proximate cause of
the incidents is the negligence and
carelessness attributable to the defendants.
When the trailer being pulled by the prime
mover suffered two (2) flat tires at
Sumilihon, the prime mover and trailer were
parked haphazardly, as the right tires of the
prime mover were the only ones on the sand
and gravel shoulder of the highway while
the left tires and all the tires of the trailer
were on the cemented pavement of the
highway, occupying almost the whole of the
right lane on the direction the prime mover
and trailer were traveling. The statement of
Limbaga that he could not park the prime
mover and trailer deeper into the sand and
gravel shoulder of the highway to his right
because there were banana plants is
contradicted by the picture marked Exhibit
F. The picture shows that there was ample
space on the shoulder. If defendant Limbaga
was careful and prudent enough, he should
have the prime mover and trailer traveled
more distance forward so that the bodies of
the prime mover and trailer would be far
more on the shoulder rather than on the
cemented highway when they were
parked. x x x The court has some doubts on
the statement of witness-driver Limbaga that
there were banana trunks with leaves and
lighted tin cans with crude oil placed 3
strides in front of the prime mover and
3
behind the trailer because the testimonies of
witnesses Rogelio C. Ortiz, driver of the ice
van, Romeo D. Catamora, helper of the ice
van, and Police Traffic Investigator SPO3
Teofilo M. Pame show that there were no
banana trunks with leaves and lighted tin
cans at the scene of the incident. But even
assuming that there were banana trunks with
leaves but they were placed close to the
prime mover and trailer as they were placed
3 strides away which to the mind of the
court is equivalent approximately to 3
meters and with this distance, approaching
vehicles would have no sufficient time and
space to make a complete stop, especially if
the vehicles are heavy and loaded. If there
were lighted tin cans, it was not explained
by the defendants why the driver, especially
driver witness Ortiz, did not see them.
 
xxxx
 
Defendant Liberty Forest, Inc. did not
exercise the diligence of a good father of a
family in managing and running its
business. The evidence on record shows
that it failed to provide its prime mover and
trailer with the required early warning
devices with reflectors and it did not keep
proper maintenance and condition of the
prime mover and the trailer. The
circumstances show that the trailer were
provided with wornout tires and with only
one (1) piece of spare tire. The pictures
marked Exhibit 3 and 4 show that two (2)
flat tires suffered by the trailer and these two
(2) tires were attached to one of the two (2)
I-beams or axles attached to the rear of the
trailer which axle is very near but behind the
other axle and with the location of the 2 I-
beams, it would have the other I-beam that
would have suffered the flat tires as it has to
bear the brunt of weight of the D-8
bulldozer. The bulldozer was not loaded
directly above the two (2) I-beams as 2 I-
beams, as a pair, were attached at the far rear
end of the trailer.
xxxx
 However, defendant Jose Ching should be
absolved of any liability as there is no
showing that he is the manager or CEO of
defendant Liberty Forest, Inc. Although in
the answer, it is admitted that he is an officer
of the defendant corporation, but it is not
clarified what kind of position he is holding,
as he could be an officer as one of the
members of the Board of Directors or a
cashier and treasurer of the
corporation. Witness Limbaga in his
testimony mentioned a certain Boy Ching as
the Manager but it was never clarified
whether or not Boy Ching and defendant
Jose Ching is one and the same person.
Private respondents appealed to the CA.
 
CA Disposition
 
On August 28, 2003, the CA reversed the RTC decision,
disposing as follows:
 
WHEREFORE, premises considered, the decision
dated August 7, 2001 of the Regional Trial Court, Branch
2, Butuan City in Civil Case No. 4360 is hereby PARTLY
MODIFIED by absolving the defendants-appellants/appellees
of any liability to plaintiffs-appellants/appellees by reason of
the incident on July 4, 1995.
The dismissal of the case against Jose Ching, the counterclaim
of defendants-appellants/appellees and the money claim of
Rogelio Ortiz STANDS.
 
SO ORDERED.
 
In partly reversing or partly modifying the RTC decision, the
CA held that the proximate cause of the vehicular collision
was the failure of the Nissan van to give way or yield to the
right of way of the passenger bus, thus:
 
It was stated that the Joana Paula bus in
trying to avoid a head-on collision with the
truck, sideswept the parked trailer loaded
with bulldozer.
 
Evidently, the driver of the Joana Paula bus
was aware of the presence on its lane of the
parked trailer with bulldozer. For this
reason, it proceeded to occupy what was left
of its lane and part of the opposite lane. The
truck occupying the opposite lane failed to
give way or yield the right of way to the
oncoming bus by proceeding with the same
speed. The two vehicles were, in effect,
trying to beat each other in occupying a
single lane. The bus was the first to occupy
the said lane but upon realizing that the
truck refused to give way or yield the right
of way, the bus, as a precaution, geared to its
right where the trailer was
parked. Unfortunately, the bus miscalculated
its distance from the parked trailer and its
rear right side hit the protruding blade of the
bulldozer then on the top of the parked
trailer. The impact of the collision on its
right rear side with the blade of the
bulldozer threw the bus further to the
opposite lane, landing its rear portion on the
shoulder of the opposite lane.
 
xxxx
 
.Facts of the case reveal that when Ortiz, the
driver of the truck, failed to give the Joana
Paula bus the space on the road it needed,
the latter vehicle scraped its rear right side
on the protruded bulldozer blade and the
impact threw the bus directly on the path of
the oncoming truck. This made plaintiffs-
appellants/appellees conclude that the Joana
Paula bus occupied its lane which forced
4
Ortiz, the driver of the truck, to swerve to its
left and ram the front of the parked trailer.
 
xxxx
.The trailer was parked because its two (2)
rear-left tires were blown out. With a
bulldozer on top of the trailer and two (2)
busted tires, it would be dangerous and quite
impossible for the trailer to further park on
the graveled shoulder of the road. To do so
will cause the flat car to tilt and may cause
the bulldozer to fall from where it was
mounted. In fact, it appeared that the driver
of the trailer tried its best to park on the
graveled shoulder since the right-front tires
were on the graveled shoulder of the road.
.The lower court erred in stating that the
Joana Paula bus swerved to the left of the
truck because it did not see the parked trailer
due to lack of warning sign of danger of any
kind that can be seen from a distance. The
damage suffered by the Joana Paula bus
belied this assessment. As stated before, the
Joana Paula bus, with the intention of
passing first which it did, first approached
the space beside the parked trailer, veered
too close to the parked trailer thereby hitting
its rear right side on the protruding bulldozer
blade. Since the damage was on the rear
right most of the bus, it was clearly on the
space which was wide enough for a single
passing vehicle but not sufficient for two (2)
passing vehicles. The bus was thrown right
to the path of the truck by the impact of the
collision of its rear right side with the
bulldozer blade.[12]
 
 
The CA disagreed with the RTC that the prime mover did not
have an early warning device. The appellate court accepted the
claim of private respondent that Limbaga placed kerosene
lighted tin cans on the front and rear of the trailer which,
in Baliwag Transit, Inc. v. Court of Appeals,[13] may act as
substitute early warning device. The CA stated:
 
Likewise, it was incorrect for the lower
court to state that there was no warning sign
of danger of any kind, most probably
referring to the absence of the triangular
reflectorized plates. The police sketch
clearly indicated the stack of banana leaves
placed at the rear of the parked trailer. The
trailers driver testified that they placed
kerosene lighted tin can at the back of the
parked trailer.
 
A pair of triangular reflectorized plates is
not the only early warning device allowed
by law. The Supreme Court (in Baliwag
Transit, Inc. v. Court of Appeals) held that:
 
x x x Col. Dela Cruz and
Romano testified that they
did not see any early
warning device at the
 scene of the accident. WARNING DEVICES IN THE PUBLIC
They were referring to the INTEREST.
triangular reflectorized
plates in red and yellow  
issued by the Land Our Ruling
Transportation
Office. However, the  
evidence shows that The petition is meritorious.
Recontique and Ecala
placed a kerosene lamp or  
torch at the edge of the The meat of the petition is whether or not the prime mover is
road, near the rear portion
liable for the damages suffered by the Nissan
of the truck to serve as an
early warning device. This van. The RTC ruled in the affirmative holding that the
substantially complies proximate cause of the vehicular collision was the negligence
with Section 34(g) of the
Land Transportation and of Limbaga in parking the prime mover on the national
Traffic Code x x x highway without an early warning device on the vehicle. The
 
.Baliwags argument that CA reversed the RTC decision, holding that the proximate
the kerosene lamp or torch cause of the collision was the negligence of Ortiz in not
does not substantially
yielding to the right of way of the passenger bus.
comply with the law is
untenable. The  
aforequoted law clearly Article 2176 of the Civil Code provides that whoever by act or
allows the use not only of
an early warning device of omission causes damage to another, there being fault or
the triangular reflectorized negligence, is obliged to pay for the damage done. Such fault
plates variety but also
parking lights or flares or negligence, if there is no pre-existing contractual relation
visible one hundred meters between the parties, is called a quasi-delict. To sustain a claim
away. x x x.
based on quasi-delict, the following requisites must concur:
 This Court holds that the defendants-
appellants/appellees were not negligent in (a) damage suffered by plaintiff; (b) fault or negligence of
parking the trailer on the scene of the defendant; and (c) connection of cause and effect between the
accident. It would have been different if
there was only one flat tire and defendant- fault or negligence of defendant and the damage incurred by
appellant/appellee Limbaga failed to change plaintiff.[16]
the same and left immediately.
   
As such, defendants-appellants/appellees are There is no dispute that the Nissan van suffered damage. That
not liable for the damages suffered by
is borne by the records and conceded by the parties. The
plaintiffs-appellants/appellees. Whatever
damage plaintiffs-appellants/appellees outstanding issues are negligence and proximate cause.
suffered, they alone must bear them.[14] Tersely put, the twin issues are: (a) whether or not prime
  mover driver Limbaga was negligent in parking the vehicle;
and (b) whether or not his negligence was the proximate cause
Issues of the damage to the Nissan van.
   
[15]
Petitioner raises two issues  for Our consideration, to wit: Limbaga was negligent in parking the
prime mover on the national highway; he
 
failed to prevent or minimize the risk to
I.
oncoming motorists.
THE HONORABLE COURT OF
APPEALS, WITHOUT ANY AVAILABLE  
CONCRETE EVIDENCE, Negligence is defined as the failure to observe for the
ERRONEOUSLY DETERMINED THAT
THERE WERE EARLY WARNING protection of the interests of another person that degree of
DEVICES PLACED IN FRONT OF THE care, precaution, and vigilance which the circumstances justly
DEFENDANT-
APPELLANTS/APPELLEES demand, whereby such other person suffers injury.[17] The
TRUCK AND FLAT CAR TO WARN Supreme Court stated the test of negligence in the landmark
PLAINTIFF-APPELLANT/APPELLEE
case Picart v. Smith as follows:
ROGELIO ORTIZ OF THEIR PRESENCE.
   
II. The test by which to determine the existence
WITH DUE RESPECT, IT IS HIGH TIME or negligence in a particular case may be
TO ENFORCE THE LAW ON EARLY stated as follows: Did the defendant in doing
the alleged negligent act use that reasonable

5
 care and caution which an ordinary person
would have used in the same situation? If
not, then he is guilty of negligence. The law
here in effect adopts the standard supposed
to be supplied by the imaginary conduct of
the discreet paterfamilias of the Roman
law. The existence of negligence in a given
case is not determined by reference to the
personal judgment of the actor in the
situation before him. The law considers what
would be reckless, blameworthy, or
negligent in the man of ordinary intelligence
and prudence and determines liability by
that. (Underscoring supplied)
 
The test of negligence is objective. We measure the act or
omission of the tortfeasor with that of an ordinary reasonable
person in the same situation. The test, as applied to this case,
is whether Limbaga, in parking the prime mover, used that
reasonable care and caution which an ordinary reasonable
person would have used in the same situation.
 
We find that Limbaga was utterly negligent in parking the
prime mover askew on the right side of the national
highway. The vehicle occupied a substantial portion of the
national road on the lane of the passenger bus. It was parked at
the shoulder of the road with its left wheels still on the
cemented highway and the right wheels on the sand and gravel
shoulder of the highway. It is common sense that the skewed
parking of the prime mover on the national road posed a
serious risk to oncoming motorists. It was incumbent upon
Limbaga to take some measures to prevent that risk, or at least
minimize it.
 
We are unable to agree with the CA conclusion it would have
been dangerous and quite impossible to further park the prime
mover on the graveled shoulder of the road because the prime
mover may tilt and the bulldozer may fall off. The
photographs taken after the incident show that it could have
been possible for Limbaga to park the prime mover
completely on the shoulder of the national road without risk to
oncoming motorists. We agree with the RTC observation on
this point, thus:
 
.x x x The statement of Limbaga that he
could not park the prime mover and trailer
deeper into the sand and gravel shoulder of
the highway to his right because there were
banana plants is contradicted by the picture
marked Exhibit F. The picture shows that
there was ample space on the shoulder. If
defendant Limbaga was careful and prudent
enough, he should have the prime mover and
trailer traveled more distance forward so that
the bodies of the prime mover and trailer
would be far more on the shoulder rather
than on the cemented highway when they
were parked. Although at the time of the
6
incident, it was about 4:45 in the morning
and it was drizzling but there is showing that
it was pitch dark that whoever travels along
the highway must be extra careful. If the
Joana Paula bus swerved to the lane on
which the Nissan ice van was properly
traveling, as prescribed by Traffic Rules and
Regulations, it is because the driver of the
bus did not see at a distance the parked
prime mover and trailer on the bus proper
lane because there was no warning signs of
danger of any kind that can be seen from a
distance.[19]
 Limbaga also failed to take proper steps to minimize the risk
posed by the improperly parked prime mover. He did not
immediately inform his employer, private respondent Liberty
Forest, Inc., that the prime mover suffered two tire blowouts
and that he could not have them fixed because he had only one
spare tire. Instead of calling for help, Limbaga took it upon
himself to simply place banana leaves on the front and rear of
the prime mover to serve as warning to oncoming
motorists. Worse, Limbaga slept on the prime mover instead
of standing guard beside the vehicle. By his own account,
Limbaga was sleeping on the prime mover at the time of the
collision and that he was only awakened by the impact of the
Nissan van and the passenger bus on the prime mover.[20]
 
Limbaga also admitted on cross-examination that it was his
first time to drive the prime mover with trailer loaded with a
D-8 caterpillar bulldozer.[21] We find that private respondent
Liberty Forest, Inc. was utterly negligent in allowing a novice
driver, like Limbaga, to operate a vehicle, such as a truck
loaded with a bulldozer, which required highly specialized
driving skills. Respondent employer clearly failed to properly
supervise Limbaga in driving the prime mover.
 
The RTC noted that private respondent Liberty Forest, Inc.
also failed to keep the prime mover in proper condition at the
time of the collision. The prime mover had worn out tires. It
was only equipped with one spare tire. It was for this reason
that Limbaga was unable to change the two blown out tires
because he had only one spare. The bulldozer was not even
loaded properly on the prime mover, which caused the tire
blowouts.
 
All told, We agree with the RTC that private respondent
Limbaga was negligent in parking the prime mover on the
national highway. Private respondent Liberty Forest, Inc. was
also negligent in failing to supervise Limbaga and in ensuring
that the prime mover was in proper condition.
 
The case of Baliwag Transit, Inc. v. Court of
Appeals is inapplicable; Limbaga did not put
lighted kerosene tin cans on the front and rear of
the prime mover.
 
Anent the absence of an early warning device on the prime
mover, the CA erred in accepting the bare testimony of
Limbaga that he placed kerosene lighted tin cans on the front
and rear of the prime mover. The evidence on records belies
such claim. The CA reliance on Baliwag Transit, Inc. v. Court
of Appeals[22] as authority for the proposition that kerosene
lighted tin cans may act as substitute early warning device is
misplaced.
 
First, the traffic incident report did not mention any lighted tin
cans on the prime mover or within the immediate vicinity of
the accident. Only banana leaves were placed on the prime
mover. The report reads:
 
VIII RESULT OF INVESTIGATION: A
Joana Paula Bus, with Body No. 7788, with
Plate No. LVA-137, driven by
one Temestocles Relova v. Antero, of legal
age, married and a resident of San Roque,
Kitcharao, Agusan del Norte, while traveling
along the National Highway, coming from
the east going to the west direction, as it
moves along the way and upon reaching
Brgy. Sumilihon, Butuan City to evade
bumping to the approaching Nissan Ice Van
with Plate No. PNT-247, driven by one
Rogelio Cortez y Ceneza. As the result, the
Joana Paula Bus accidentally busideswept
(sic) to the parked Prime Mover with Trailer
loaded with Bulldozer without early
warning device, instead placing only dry
banana leaves three (3) meters at the rear
portion of the Trailer, while failure to place
at the front portion, and the said vehicle
occupied the whole lane. As the result, the
Joana Paula Bus hit to the left edge blade of
the Bulldozer. Thus, causing the said bus
swept to the narrow shouldering, removing
the rear four (4) wheels including the
differential and injuring the above-stated
twelve (12) passengers and damaged to the
right side fender above the rear wheel. Thus,
causing damage on it. While the Nissan Ice
Van in evading, accidentally swerved to the
left lane and accidentally bumped to the
front bumper of the parked Prime Mover
with Trailer loaded with Bulldozer. Thus,
causing heavy damage to said Nissan Ice
Van including the cargoes of the said van.[23]
Second, SPO4 Pame, who investigated the collision,
testified[24] that only banana leaves were placed on the front
and rear of the prime mover. He did not see any lighted tin
cans in the immediate vicinity of the collision.
 
Third, the claim of Limbaga that he placed lighted tin cans on
the front and rear of the prime mover belatedly surfaced only
during his direct examination. No allegation to this effect was
made by private respondents in their Answer to the complaint
7
for damages. Petitioners counsel promptly objected to the
testimony of Limbaga, thus:
 
ATTY. ROSALES:
Q..Now you mentioned about placing
some word signs in front and at the
rear of the prime mover with trailer,
will you please describe to us what this
word signs are?
A..We placed a piece of cloth on tin
cans and filled them with crude
oil. And these tin cans were lighted and
they are like torches. These two lights
or torches were placed in front and at
the rear side of the prime mover with
trailer. After each torch, we
placed banana trunk. The banana
trunk is placed between the two (2)
torches and the prime mover, both on
the rear and on the front portion of the
prime mover.
 
Q..How far was the lighted tin cans with
wick placed in front of the prime
mover.
 
ATTY. ASIS:
.At this point, we will be objecting to
questions particularly referring to the
alleged tin cans as some of the
warning-sign devices, considering that
there is no allegation to that effect in
the answer of the defendants. The
answer was just limited to the numbers
4 & 5 of the answer. And, therefore, if
we follow the rule of the binding effect
of an allegation in the complaint, then
the party will not be allowed to
introduce evidence to attack jointly or
rather the same, paragraph 5 states,
warning device consisting of 3 banana
trunks, banana items and leaves were
filed. He can be cross-examined in the
point, Your Honor.
 
COURT:
Q..Put that on record that as far as this tin
cans are concerned, the plaintiffs are
interposing continuing objections. But
the Court will allow the question.[25]
 
 
We thus agree with the RTC that Limbaga did not place
lighted tin cans on the front and rear of the prime mover. We
give more credence to the traffic incident report and the
testimony of SPO4 Pame that only banana leaves were placed
on the vehicle. Baliwag Transit, Inc. v. Court of Appeals thus
finds no application to the case at bar.
The skewed parking of the prime mover
was the proximate cause of the collision.
 
Proximate cause is defined as that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would
not have occurred. More comprehensively, proximate cause is
that cause acting first and producing the injury, either
immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each
having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting
the injury as natural and probable result of the cause which
first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent
and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person
might probably result therefrom.[27]
 
There is no exact mathematical formula to determine
proximate cause. It is based upon mixed considerations of
[28]
logic, common sense, policy and precedent.  Plaintiff must,
however, establish a sufficient link between the act or
omission and the damage or injury. That link must not be
remote or far-fetched; otherwise, no liability will attach. The
damage or injury must be a natural and probable result of the
act or omission. In the precedent-setting Vda. de Bataclan v.
Medina,[29] this Court discussed the necessary link that must be
established between the act or omission and the damage or
injury, viz.:
 
 
It may be that ordinarily, when a passenger
bus overturns, and pins down a passenger,
merely causing him physical injuries, if
through some event, unexpected and
extraordinary, the overturned bus is set on
fire, say, by lightning, or if some
highwaymen after looting the vehicle sets it
on fire, and the passenger is burned to death,
one might still contend that the proximate
cause of his death was the fire and not the
overturning of the vehicle. But in the present
case and under the circumstances obtaining
in the same, we do not hesitate to hold that
the proximate cause of the death of Bataclan
was the overturning of the bus, this for the
reason that when the vehicle turned not only
on its side but completely on its back, the
leaking of the gasoline from the tank was
not unnatural or unexpected; that the coming
of the men with a lighted torch was in
response to the call for help, made not only
by the passengers, but most probably, by the
driver and the conductor themselves, and
that because it was very dark (about 2:30 in
the morning), the rescuers had to carry a
light with them; and coming as they did
from a rural area where lanterns and
flashlights were not available, they had to
use a torch, the most handy and available;
and what was more natural than that said
rescuers should innocently approach the
overturned vehicle to extend the aid and
8
effect the rescue requested from them. In
other words, the coming of the men with the
torch was to be expected and was natural
sequence of the overturning of the bus, the
trapping of some of its passengers bus, the
trapping of some of its passengers and the
call for outside help.
 
The ruling in Bataclan has been repeatedly cited in subsequent
cases as authority for the proposition that the damage or injury
must be a natural or probable result of the act or
omission. Here, We agree with the RTC that the damage
caused to the Nissan van was a natural and probable result of
the improper parking of the prime mover with trailer. As
discussed, the skewed parking of the prime mover posed a
serious risk to oncoming motorists. Limbaga failed to prevent
or minimize that risk. The skewed parking of the prime mover
triggered the series of events that led to the collision,
particularly the swerving of the passenger bus and the Nissan
van.
 
Private respondents Liberty Forest, Inc. and Limbaga are
liable for all damages that resulted from the skewed parking of
the prime mover. Their liability includes those damages
resulting from precautionary measures taken by other motorist
in trying to avoid collision with the parked prime mover. As
We see it, the passenger bus swerved to the right, onto the lane
of the Nissan van, to avoid colliding with the improperly
parked prime mover. The driver of the Nissan van, Ortiz,
reacted swiftly by swerving to the left, onto the lane of the
passenger bus, hitting the parked prime mover. Ortiz
obviously would not have swerved if not for the passenger bus
abruptly occupying his vans lane. The passenger bus, in turn,
would not have swerved to the lane of the Nissan van if not for
the prime mover improperly parked on its lane. The skewed
parking is the proximate cause of the damage to the Nissan
van.
 
In Phoenix Construction, Inc. v. Intermediate Appellate Court,
[30]
 this Court held that a similar vehicular collision was caused
by the skewed parking of a dump truck on the national road,
thus:
 
The conclusion we draw from the factual
circumstances outlined above is that private
respondent Dionisio was negligent the night
of the accident. He was hurrying home that
night and driving faster than he should have
been. Worse, he extinguished his headlights
at or near the intersection of General Lacuna
and General Santos Streets and thus did not
see the dump truck that was parked askew
and sticking out onto the road lane.
 
 Nonetheless, we agree with the Court of
First Instance and the Intermediate Appellate
Court that the legal and proximate cause of
the accident and of Dionisios injuries was
the wrongful or negligent manner in which
the dump truck was parked in other words,
the negligence of petitioner Carbonel. That
there was a reasonable relationship between
petitioner Carbonels negligence on the one
hand and the accident and respondents
injuries on the other hand, is quite clear. Put
in a slightly different manner, the collision
of Dionisios car with the dump truck was a
natural and foreseeable consequence of the
truck drivers negligence.
 
xxxx
We believe, secondly, that the truck drivers
negligence far from being a passive and
static condition was rather an indispensable
and efficient cause. The collision between
the dump truck and the private respondents
car would in all probability not have
occurred had the dump truck not been
parked askew without any warning lights or
reflector devices. The improper parking of
the dump truck created an unreasonable risk
of injury for anyone driving down General
Lacuna Street and for having so created this
risk, the truck driver must be held
responsible. In our view, Dionisios
negligence, although later in point of time
than the truck drivers negligence and,
therefore, closer to the accident, was not an
efficient intervening or independent
cause. What the Petitioner describes as an
intervening cause was no more than a
foreseeable consequence of the risk created
by the negligent manner in which the truck
driver had parked the dump truck. In other
words, the petitioner truck driver owed a
duty to private respondent Dionisio and
others similarly situated not to impose upon
them the very risk the truck driver had
created. Dionisios negligence was not of an
independent and overpowering nature as to
cut, as it were, the chain of causation in fact
between the improper parking of the dump
truck and the accident, nor to sever the juris
vinculum of liability. x x x (Underscoring
supplied)
We cannot rule on the proportionate or contributory
liability of the passenger bus, if any, because it was
not a party to the case; joint tortfeasors are solidarily
liable.
 
The CA also faults the passenger bus for the vehicular
collision. The appellate court noted that the passenger bus was
aware of the presence of the prime mover on its lane, but it
still proceeded to occupy the lane of the Nissan van. The
passenger bus also miscalculated its distance from the prime
mover when it hit the vehicle.
 
9
We cannot definitively rule on the proportionate or
contributory liability of the Joana Paula passenger bus vis--
vis the prime mover because it was not a party to the
complaint for damages. Due process dictates that the
passenger bus must be given an opportunity to present its own
version of events before it can be held liable. Any contributory
or proportionate liability of the passenger bus must be litigated
in a separate action, barring any defense of prescription or
laches. Insofar as petitioner is concerned, the proximate cause
of the collision was the improper parking of the prime
mover. It was the improper parking of the prime mover which
set in motion the series of events that led to the vehicular
collision.
 
Even granting that the passenger bus was at fault, its fault will
not necessarily absolve private respondents from liability. If at
fault, the passenger bus will be a joint tortfeasor along with
private respondents. The liability of joint tortfeasors is joint
and solidary. This means that petitioner may hold either of
them liable for damages from the collision. In Philippine
National Construction Corporation v. Court of Appeals,[31] this
Court held:
 
According to the great weight of authority,
where the concurrent or successive negligent
acts or omission of two or more persons,
although acting independently of each other,
are, in combination, the direct and proximate
cause of a single injury to a third person and
it is impossible to determine in what
proportion each contributed to the injury,
either is responsible for the whole injury,
even though his act alone might not have
caused the entire injury, or the same damage
might have resulted from the acts of the
other tort-feasor x x x.
 
In Far Eastern Shipping Company v. Court of Appeals, the
Court declared that the liability of joint tortfeasors is joint and
solidary, to wit:
It may be said, as a general rule, that
negligence in order to render a person liable
need not be the sole cause of an injury. It is
sufficient that his negligence, concurring
with one or more efficient causes other than
plaintiffs, is the proximate cause of the
injury. Accordingly, where several causes
combine to produce injuries, a person is not
relieved from liability because he is
responsible for only one of them, it being
sufficient that the negligence of the person
charged with injury is an efficient cause
without which the injury would not have
resulted to as great an extent, and that such
cause is not attributable to the person
injured. It is no defense to one of the
concurrent tortfeasors that the injury would
not have resulted from his negligence alone,
 without the negligence or wrongful acts of applies even more to trucks and big vehicles, which are prone
the other concurrent tortfeasors. Where
several causes producing an injury are to mechanical breakdown on the national highway. The law,
concurrent and each is an efficient cause as crafted, requires vehicles to be equipped with triangular
without which the injury would not have
happened, the injury may be attributed to all reflectorized plates.[32] Vehicles without the required early
or any of the causes and recovery may be warning devices are ineligible for registration.[33] Vehicle
had against any or all of the responsible
owners may also be arrested and fined for non-compliance
persons although under the circumstances of
the case, it may appear that one of them was with the law.[34]
more culpable, and that the duty owed by  
them to the injured person was not the
same. No actors negligence ceases to be a The Land Transportation Office (LTO) owes a duty to the
proximate cause merely because it does not public to ensure that all vehicles on the road meet basic and
exceed the negligence of other actors. Each
wrongdoer is responsible for the entire result minimum safety features, including that of early warning
and is liable as though his acts were the sole devices. It is most unfortunate that We still see dilapidated and
cause of the injury.
rundown vehicles on the road with substandard safety
 
There is no contribution between joint features. These vehicles not only pose a hazard to the safety of
tortfeasors whose liability is solidary since their occupants but that of other motorists. The prime mover
both of them are liable for the total damage.
Where the concurrent or successive truck in this case should not have been granted registration
negligent acts or omissions of two or more because it failed to comply with the minimum safety features
persons, although acting independently, are
in combination with the direct and required for vehicles on the road.
proximate cause of a single injury to a third  
person, it is impossible to determine in what
It is, indeed, time for traffic enforcement agencies and the
proportion each contributed to the injury and
either of them is responsible for the whole LTO to strictly enforce all pertinent laws and regulations
injury. Where their concurring negligence within their mandate.
resulted in injury or damage to a third party,
they become joint tortfeasors and are  
solidarily liable for the resulting damage .WHEREFORE, the petition is GRANTED. The Court of
under Article 2194 of the Civil
Code. (Underscoring supplied) Appeals decision dated August 28, 2003 is hereby SET
  ASIDE. The RTC decision dated August 7,
All told, all the elements of quasi delict have been proven by 2001 is REINSTATED IN FULL.
clear and convincing evidence. The CA erred in absolving  
private respondents from liability for the vehicular collision.

  G.R. No. 129792 December 21, 1999

Final Note
 
It is lamentable that the vehicular collision in this case could
have been easily avoided by following basic traffic rules and
regulations and road safety standards. In hindsight, private
respondent Limbaga could have prevented the three-way
vehicular collision if he had properly parked the prime mover
on the shoulder of the national road. The improper parking of
vehicles, most especially along the national highways, poses a
serious and unnecessary risk to the lives and limbs of other
motorists and passengers. Drivers owe a duty of care to follow
basic traffic rules and regulations and to observe road safety
standards. They owe that duty not only for their own safety,
but also for that of other motorists. We can prevent most
vehicular accidents by simply following basic traffic rules and
regulations.
JARCO MARKETING CORPORATION, LEONARDO
KONG, JOSE TIOPE and ELISA PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C.
AGUILAR and CRISELDA R. AGUILAR, respondents.
 
DAVIDE, JR., J.:
In this petition for review on certiorari under Rule 45 of the
Rules of Court, petitioners seek the reversal of the 17 June
1996 decision 1 of the Court of Appeals in C.A. G.R. No. CV
37937 and the resolution 2 denying their motion for
reconsideration. The assailed decision set aside the 15 January
1992 judgment of the Regional Trial Court (RTC), Makati
City, Branch 60 in Civil Case No. 7119 and ordered
petitioners to pay damages and attorney's fees to private
respondents Conrado and Criselda (CRISELDA) Aguilar.

 
We also note a failure of implementation of basic safety
standards, particularly the law on early warning devices. This

10
Petitioner Jarco Marketing Corporation is the owner of Syvel's
Department Store, Makati City. Petitioners Leonardo Kong,
Jose Tiope and Elisa Panelo are the store's branch manager,
operations manager, and supervisor, respectively. Private
respondents are spouses and the parents of Zhieneth Aguilar
(ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH
were at the 2nd floor of Syvel's Department Store, Makati
City. CRISELDA was signing her credit card slip at the
payment and verification counter when she felt a sudden gust
of wind and heard a loud thud. She looked behind her. She
then beheld her daughter ZHIENETH on the floor, her young
body pinned by the bulk of the store's gift-wrapping
counter/structure. ZHIENETH was crying and screaming for
help. Although shocked, CRISELDA was quick to ask the
assistance of the people around in lifting the counter and
retrieving ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center
where she was operated on. The next day ZHIENETH lost her
speech and thereafter communicated with CRISELDA by
writing on a magic slate. The injuries she sustained took their
toil on her young body. She died fourteen (14) days after the
accident or on 22 May 1983, on the hospital bed. She was six
years old. 4
The cause of her death was attributed to the injuries she
sustained. The provisional medical certificate 5 issued by
ZHIENETH's attending doctor described the extent of her
injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to
blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration,
(L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents
demanded upon petitioners the reimbursement of the
hospitalization, medical bills and wake and funeral
expenses 6 which they had incurred. Petitioners refused to pay.
Consequently, private respondents filed a complaint for
damages, docketed as Civil Case No. 7119 wherein they
sought the payment of P157,522.86 for actual damages,
P300,000 for moral damages, P20,000 for attorney's fees and
an unspecified amount for loss of income and exemplary
damages.
In their answer with counterclaim, petitioners denied any
liability for the injuries and consequent death of ZHIENETH.
They claimed that CRISELDA was negligent in exercising
care and diligence over her daughter by allowing her to freely
roam around in a store filled with glassware and appliances.
ZHIENETH too, was guilty of contributory negligence since
she climbed the counter, triggering its eventual collapse on
11
her. Petitioners also emphasized that the counter was made of
sturdy wood with a strong support; it never fell nor collapsed
for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation
maintained that it observed the diligence of a good father of a
family in the selection, supervision and control of its
employees. The other petitioners likewise raised due care and
diligence in the performance of their duties and countered that
the complaint was malicious for which they suffered
besmirched reputation and mental anguish. They sought the
dismissal of the complaint and an award of moral and
exemplary damages and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and
counterclaim after finding that the preponderance of the
evidence favored petitioners. It ruled that the proximate cause
of the fall of the counter on ZHIENETH was her act of
clinging to it. It believed petitioners' witnesses who testified
that ZHIENETH clung to the counter, afterwhich the structure
and the girl fell with the structure falling on top of her, pinning
her stomach. In contrast, none of private respondents'
witnesses testified on how the counter fell. The trial court also
held that CRISELDA's negligence contributed to
ZHIENETH's accident.
In absolving petitioners from any liability, the trial court
reasoned that the counter was situated at the end or corner of
the 2nd floor as a precautionary measure hence, it could not be
considered as an attractive nuisance. 8 The counter was higher
than ZHIENETH. It has been in existence for fifteen years. Its
structure was safe and well-balanced. ZHIENETH, therefore,
had no business climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors
of the trial court its findings that: (1) the proximate cause of
the fall of the counter was ZHIENETH's misbehavior; (2)
CRISELDA was negligent in her care of ZHIENETH; (3)
petitioners were not negligent in the maintenance of the
counter; and (4) petitioners were not liable for the death of
ZHIENETH.
Further, private respondents asserted that ZHIENETH should
be entitled to the conclusive presumption that a child below
nine (9) years is incapable of contributory negligence. And
even if ZHIENETH, at six (6) years old, was already capable
of contributory negligence, still it was physically impossible
for her to have propped herself on the counter. She had a small
frame (four feet high and seventy pounds) and the counter was
much higher and heavier than she was. Also, the testimony of
one of the store's former employees, Gerardo Gonzales, who
accompanied ZHIENETH when she was brought to the
emergency room of the Makati Medical Center belied
petitioners' theory that ZHIENETH climbed the counter.
Gonzales claimed that when ZHIENETH was asked by the
doctor what she did, ZHIENETH replied, "[N]othing, I did not
come near the counter and the counter just fell on
me." 9 Accordingly, Gonzales' testimony on ZHIENETH's
spontaneous declaration should not only be considered as part
of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for
it was reasonable for her to have let go of ZHIENETH at the
precise moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the
proximate cause of ZHIENETH's death, was petitioners'
negligence in failing to institute measures to have the counter
permanently nailed.
On the other hand, petitioners argued that private respondents
raised purely factual issues which could no longer be
disturbed. They explained that ZHIENETH's death while
unfortunate and tragic, was an accident for which neither
CRISELDA nor even ZHIENETH could entirely be held
faultless and blameless. Further, petitioners adverted to the
trial court's rejection of Gonzales' testimony as unworthy of
credence.
As to private respondent's claim that the counter should have
been nailed to the ground, petitioners justified that it was not
necessary. The counter had been in existence for several years
without any prior accident and was deliberately placed at a
corner to avoid such accidents. Truth to tell, they acted
without fault or negligence for they had exercised due
diligence on the matter. In fact, the criminal case 10 for
homicide through simple negligence filed by private
respondents against the individual petitioners was dismissed; a
verdict of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private
respondents and reversed the appealed judgment. It found that
petitioners were negligent in maintaining a structurally
dangerous counter. The counter was shaped like an inverted
"L" 11 with a top wider than the base. It was top heavy and the
weight of the upper portion was neither evenly distributed nor
supported by its narrow base. Thus, the counter was defective,
unstable and dangerous; a downward pressure on the
overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had
already previously brought to the attention of the management
the danger the counter could cause. But the latter ignored their
concern. The Court of Appeals faulted the petitioners for this
omission, and concluded that the incident that befell
ZHIENETH could have been avoided had petitioners repaired
the defective counter. It was inconsequential that the counter
had been in use for some time without a prior incident.
The Court of Appeals declared that ZHIENETH, who was
below seven (7) years old at the time of the incident, was
absolutely incapable of negligence or other tort. It reasoned
that since a child under nine (9) years could not be held liable
even for an intentional wrong, then the six-year old
ZHIENETH could not be made to account for a mere mischief
or reckless act. It also absolved CRISELDA of any
negligence, finding nothing wrong or out of the ordinary in
momentarily allowing ZHIENETH to walk while she signed
the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the
witnesses of petitioners. It found them biased and prejudiced.
It instead gave credit to the testimony of disinterested witness
Gonzales. The Court of Appeals then awarded P99,420.86 as
actual damages, the amount representing the hospitalization
expenses incurred by private respondents as evidenced by the
hospital's statement of account. 12 It denied an award for
funeral expenses for lack of proof to substantiate the same.
Instead, a compensatory damage of P50,000 was awarded for
the death of ZHIENETH.
We quote the dispositive portion of the assailed
decision, 13 thus:
WHEREFORE, premises considered, the
judgment of the lower court is SET ASIDE
and another one is entered against
[petitioners], ordering them to pay jointly
and severally unto [private respondents] the
following:
12
1. P50,000.00 by way of compensatory damages for the
death of Zhieneth Aguilar, with legal interest (6% p.a.) from
27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses
incurred; with legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney's fees; and
5. Costs.
Private respondents sought a reconsideration of the decision
but the same was denied in the Court of Appeals'
resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals'
decision and the reinstatement of the judgment of the trial
court. Petitioners primarily argue that the Court of Appeals
erred in disregarding the factual findings and conclusions of
the trial court. They stress that since the action was based on
tort, any finding of negligence on the part of the private
respondents would necessarily negate their claim for damages,
where said negligence was the proximate cause of the injury
sustained. The injury in the instant case was the death of
ZHIENETH. The proximate cause was ZHIENETH's act of
clinging to the counter. This act in turn caused the counter to
fall on her. This and CRISELDA's contributory negligence,
through her failure to provide the proper care and attention to
her child while inside the store, nullified private respondents'
claim for damages. It is also for these reasons that parents are
made accountable for the damage or injury inflicted on others
by their minor children. Under these circumstances, petitioners
could not be held responsible for the accident that befell
ZHIENETH.
Petitioners also assail the credibility of Gonzales who was
already separated from Syvel's at the time he testified; hence,
his testimony might have been tarnished by ill-feelings against
them.
For their part, private respondents principally reiterated their
arguments that neither ZHIENETH nor CRISELDA was
negligent at any time while inside the store; the findings and
conclusions of the Court of Appeals are substantiated by the
evidence on record; the testimony of Gonzales, who heard
ZHIENETH comment on the incident while she was in the
hospital's emergency room should receive credence; and
finally, ZHIENETH's part of the res gestae declaration "that
she did nothing to cause the heavy structure to fall on her"
should be considered as the correct version of the gruesome
events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of
ZHIENETH was accidental or attributable to negligence; and
(2) in case of a finding of negligence, whether the same was
attributable to private respondents for maintaining a defective
counter or to CRISELDA and ZHIENETH for failing to
exercise due and reasonable care while inside the store
premises.
An accident pertains to an unforeseen event in which no fault
or negligence attaches to the defendant. 15 It is "a fortuitous
circumstance, event or happening; an event happening without
any human agency, or if happening wholly or partly through
human agency, an event which under the circumstances is
unusual or unexpected by the person to whom it happens." 16
On the other hand, negligence is the omission to do something
which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or
the doing of something which a prudent and reasonable man
would not do. 17 Negligence is "the failure to observe, for the
protection of the interest of another person, that degree of care,
precaution and vigilance which the circumstances justly
demand, whereby such other person suffers injury." 18
Accident and negligence are intrinsically contradictory; one
cannot exist with the other. Accident occurs when the person
concerned is exercising ordinary care, which is not caused by
fault of any person and which could not have been prevented
by any means suggested by common prudence. 19
The test in determining the existence of negligence is
enunciated in the landmark case of Plicart v. Smith, 20 thus:
Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent
person would have used in the same situation? If not, then he
is guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH was no
accident and that ZHIENETH's death could only be attributed
to negligence.
We quote the testimony of Gerardo Gonzales who was at the
scene of the incident and accompanied CRISELDA and
ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or
notice anything while the child was being treated?
A At the emergency room we were all surrounding the child.
And when the doctor asked the child "what did you do," the
child said "nothing, I did not come near the counter and the
counter just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon.
Basta bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's
statement formed (and should be admitted as) part of the res
gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a
person while a startling occurrence is taking
place or immediately prior or subsequent
thereto with respect to the circumstances
thereof, may be given in evidence as part of
the res gestae. So, also, statements
accompanying an equivocal act material to
the issue, and giving it a legal significance,
may be received as part of the res gestae.
13
It is axiomatic that matters relating to declarations of pain or
suffering and statements made to a physician are generally
considered declarations and admissions. 23 All that is required
for their admissibility as part of the res gestae is that they be
made or uttered under the influence of a startling event before
the declarant had the time to think and concoct a falsehood as
witnessed by the person who testified in court. Under the
circumstances thus described, it is unthinkable for
ZHIENETH, a child of such tender age and in extreme pain, to
have lied to a doctor whom she trusted with her life. We
therefore accord credence to Gonzales' testimony on the
matter, i.e., ZHIENETH performed no act that facilitated her
tragic death. Sadly, petitioners did, through their negligence or
omission to secure or make stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep
and maintain the structurally unstable gift-wrapping counter
proved their negligence, thus:
Q When you assumed the position as gift wrapper at the
second floor, will you please describe the gift wrapping
counter, were you able to examine?
A Because every morning before I start working I used to
clean that counter and since not nailed and it was only
standing on the floor, it was shaky.
x x x           x x x          x x x
Q Will you please describe the counter at 5:00 o'clock [sic]
in the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing
beside the verification counter. And since the top of it was
heavy and considering that it was not nailed, it can collapse
at anytime, since the top is heavy.
x x x           x x x          x x x
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic]
shaky and since Mr. Maat is fond of putting display
decorations on tables, he even told me that I would put some
decorations. But since I told him that it not [sic] nailed and it
is shaky he told me "better inform also the company about
it." And since the company did not do anything about the
counter, so I also did not do anything about the
counter. 24 [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the
testimony of Gonzales, thus:
Q Will you please described [sic] to the honorable Court the
counter where you were assigned in January 1983?
x x x           x x x          x x x
A That counter assigned to me was when my supervisor
ordered me to carry that counter to another place. I told him
that the counter needs nailing and it has to be nailed because
it might cause injury or accident to another since it was
shaky.
Q When that gift wrapping counter was transferred at the
second floor on February 12, 1983, will you please describe
that to the honorable Court?
 A I told her that the counter wrapper [sic] is really in good
[sic] condition; it was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told
her that the counter was shaky?
A She told me "Why do you have to teach me. You are only
my subordinate and you are to teach me?" And she even got
angry at me when I told her that.
x x x           x x x          x x x
Q From February 12, 1983 up to May 9, 1983, what if any,
did Ms. Panelo or any employee of the management do to
that (sic)
x x x           x x x          x x x
Witness:
None, sir. They never nailed the counter. They only nailed
the counter after the accident happened. 25 [Emphasis
supplied]
Without doubt, petitioner Panelo and another store supervisor
were personally informed of the danger posed by the unstable
counter. Yet, neither initiated any concrete action to remedy
the situation nor ensure the safety of the store's employees and
patrons as a reasonable and ordinary prudent man would have
done. Thus, as confronted by the situation petitioners
miserably failed to discharge the due diligence required of a
good father of a family.
On the issue of the credibility of Gonzales and Guevarra,
petitioners failed to establish that the former's testimonies
were biased and tainted with partiality. Therefore, the
allegation that Gonzales and Guevarra's testimonies were
blemished by "ill feelings" against petitioners — since they
(Gonzales and Guevarra) were already separated from the
company at the time their testimonies were offered in court —
was but mere speculation and deserved scant consideration.
It is settled that when the issue concerns the credibility of
witnesses, the appellate courts will not as a general rule
disturb the findings of the trial court, which is in a better
position to determine the same. The trial court has the distinct
advantage of actually hearing the testimony of and observing
the deportment of the witnesses. 26 However, the rule admits of
exceptions such as when its evaluation was reached arbitrarily
or it overlooked or failed to appreciate some facts or
circumstances of weight and substance which could affect the
result of the case. 27 In the instant case, petitioners failed to
bring their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the
conclusive presumption that favors children below nine (9)
years old in that they are incapable of contributory negligence.
In his book, 28 former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years
of age is conclusively presumed to have
acted without discernment, and is, on that
account, exempt from criminal liability. The
same presumption and a like exemption
14
from criminal liability obtains in a case of a
person over nine and under fifteen years of
age, unless it is shown that he has acted with
discernment. Since negligence may be a
felony and a quasi-delict and required
discernment as a condition of liability, either
criminal or civil, a child under nine years of
age is, by analogy, conclusively presumed to
be incapable of negligence; and that the
presumption of lack of discernment or
incapacity for negligence in the case of a
child over nine but under fifteen years of age
is a rebuttable one, under our law. The rule,
therefore, is that a child under nine years of
age must be conclusively presumed
incapable of contributory negligence as a
matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH
and assume that she climbed over the counter, no injury
should have occurred if we accept petitioners' theory that the
counter was stable and sturdy. For if that was the truth, a frail
six-year old could not have caused the counter to collapse. The
physical analysis of the counter by both the trial court and
Court of Appeals and a scrutiny of the evidence 29 on record
reveal otherwise, i.e., it was not durable after all. Shaped like
an inverted "L," the counter was heavy, huge, and its top laden
with formica. It protruded towards the customer waiting area
and its base was not secured. 30
CRISELDA too, should be absolved from any contributory
negligence. Initially, ZHIENETH held on to CRISELDA's
waist, later to the latter's hand. 31 CRISELDA momentarily
released the child's hand from her clutch when she signed her
credit card slip. At this precise moment, it was reasonable and
usual for CRISELDA to let go of her child. Further, at the time
ZHIENETH was pinned down by the counter, she was just a
foot away from her mother; and the gift-wrapping counter was
just four meters away from CRISELDA. 32 The time and
distance were both significant. ZHIENETH was near her
mother and did not loiter as petitioners would want to impress
upon us. She even admitted to the doctor who treated her at
the hospital that she did not do anything; the counter just fell
on her.
WHEREFORE, in view of all the foregoing, the instant
petition is DENIED and the challenged decision of the Court
of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is
hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
TOMAS BERNAL and FORTUNATA
ENVERSO, plaintiffs-appellants,
vs.
J. V. HOUSE and TACLOBAN ELECTRIC and ICE
PLANT, LTD., defendants-appellee.
MALCOLM, J.:
The parents of the five-year old child, Purificacion Bernal,
appeal from a judgment of the Court of First Instance of Leyte,
which denied them P15,000 damages from J.V. House and the
Tacloban Electric & Ice Plant, Ltd., for the death of the child
as a consequence of burns alleged to have been caused by the
fault and negligence of the defendants.
The salient facts as found by the trial judge are the following:
On the evening of April 10, 1925, the procession of Holy
Friday was held in Tacloban, Leyte. Fortunata Enverso with
her daughter Purificacion Bernal came from another
municipality to attend the religious celebration. After the
procession was over, the woman and her daughter,
accompanied by two other persons by the names of Fausto and
Elias, passed along a public street named Gran Capitan. The
little girl was allowed to get a short distance in advance of her
mother and her friends. When in front of the offices of the
Tacloban Electric & Ice Plant, Ltd., and automobile appeared
from the opposite direction which so frightened the child that
she turned to run, with the result that she fell into the street
gutter. At that time there was hot water in this gutter or ditch
coming from the Electric Ice Plant of J.V. House. When the
mother and her companions reached the child, they found her
face downward in the hot water. Her clothes were immediately
removed and, then covered with a garment, the girl was taken
to the provincial hospital. There she was attended by the
resident physician, Dr. Victoriano A. Benitez. Despite his
efforts, the child died that same night at 11:40 o'clock.
Dr. Benitez, who, of course, was in a better position than any
one to know the cause of the death, and who had no reason to
depart from the true facts, certified that the cause of death was
"Burns, 3rd Degree, whole Body", and that the contributory
causes were "Congestion of the Brain and visceras of the chest
& abdomen". The same physician in his general record in the
Leyte Hospital for this patient, under diagnosis in full, stated:
"Burned 3rd Degree, whole body". The treatment record of the
attending nurse was much to the same effect.
The defense was that the hot water was permitted to flow
down the side of the street Gran Captain with the knowledge
and consent of the authorities; that the cause of death was
other than the hot water; and that in the death the plaintiffs
contributed by their own fault and negligence. The trial judge,
however, after examination of the evidence presented by the
defendants, failed to sustain their theory of the case, except as
to the last mentioned special defense. We are shown no good
reason for the departing from the conclusion of the trial judge
to the effect that the sudden death of the child Purification
Bernal was due principally to the nervous shock and organic
calefaction produced by the extensive burns from the hot
water. "The danger from burns is proportional rather to the
extent of surface involved than to the depth of the burn".
(Wharton & Stille's Medical Jurisprudence, vol. 3, p. 263).
The same authority continues. "Burns of the first degree,
covering two-thirds of the body surface, are rarely recovered
from. . . . Children seem especially susceptible to the effect of
burns." (Pp. 263, 264).
Although the trial judge made the findings of fact hereinbefore
outlined, he nevertheless was led to order the dismissal of the
action because of the contributory negligence of the plaintiffs.
It is from this point that a majority of the court depart from the
stand taken by the trial judge. The mother and her child had a
perfect right to be on the principal street of Tacloban, Leyte,
on the evening when the religious procession was held. There
was nothing abnormal in allowing the child to run along a few
paces in advance of the mother. No one could foresee the
coincidence of an automobile appearing and of a frightened
child running and falling into a ditch filled with hot water. The
doctrines announced in the much debated case of
Rakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359),
still rule. Article 1902 of the Civil Code must again be
15
enforced. The contributory negligence of the child and her
mother, if any, does not operate as a bar to recovery, but in its
strictest sense could only result in reduction of the damages.
Having reached the conclusion that liability exists, we next
turn to discover who can recover damages for the obligation,
and against whom the action will lie. The plaintiffs are Tomas
Bernal and Fortunata Enverso. The latter was the mother of
Purificacion Bernal and the former was the natural father, who
had never legally recognized his child. The daughter lived
with the mother, and presumably was supported by her. Under
these facts, recovery should be permitted the mother but not
the father. As to the defendants, they are J.V. House and the
Tacloban Electric & Ice Plant, Ltd., J.V. House was granted a
franchise by Act No. 2700 of the Philippine Legislature
approved on March 9, 1917. He only transferred this franchise
formally to the Tacloban Electric & Ice Plant, Ltd. on March
30, 1926, that is, nearly a year after the death of the child
Purificacion Bernal. Under these facts, J.V. House is solely
responsible.
Counsel for appellees point out that there is no satisfactory
proof to establish the pecuniary loss. That is true. But in cases
of this character the law presumes a loss because of the
impossibility of exact computation. There is not enough
money in the entire world to compensate a mother for the
death of her child. In criminal cases, the rule has been to allow
as a matter of course P1,000 as indemnity to the heirs of the
deceased. In the case of Manzanares vs. Moreta ([1918], 38
Phil., 821), which in many respects is on all fours with the
case at bar, the same amount of P1,000 was allowed the
mother of the dead boy eight or nine years of age. The same
criterion will have to be followed in this instance.
The result will, therefore, be to accept the findings of fact
made by the trial judge; to set aside the legal deductions
flowing from those facts; to hold that the death of the child
Purificacion Bernal was the result of fault and negligence in
permitting hot water to flow through the public streets, there to
endanger the lives of passers-by who were unfortunately
enough to fall into it; to rule that the proper plaintiff is the
mother Fortunata Enverso and not the natural father Tomas
Bernal; to likewise rule that the person responsible to the
plaintiff is J.V. House and not the entity the Tacloban Electric
& Ice Plant, Ltd.; and finally to adjudge that the amount of
recovery, without the tendering of special proof, should be
fixed, as in other cases, at P1,000.
Concordant with the pronouncements just made, the judgment
appealed from shall in part be reversed and in the court of
origin another judgment shall issue in favor of Fortunata
Enverso and against J.V. House for the amount of P1,000, and
for the costs of both instances.
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of
the defendant, Frank Smith, jr., the sum of P31,000, as
damages alleged to have been caused by an automobile driven
by the defendant. From a judgment of the Court of First
Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action
took place on December 12, 1912, on the Carlatan Bridge, at
San Fernando, La Union. It appears that upon the occasion in
question the plaintiff was riding on his pony over said bridge.
Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile,
going at the rate of about ten or twelve miles per hour. As the
defendant neared the bridge he saw a horseman on it and blew
his horn to give warning of his approach. He continued his
course and after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on
horseback before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard
the warning signals. However, being perturbed by the novelty
of the apparition or the rapidity of the approach, he pulled the
pony closely up against the railing on the right side of the
bridge instead of going to the left. He says that the reason he
did this was that he thought he did not have sufficient time to
get over to the other side. The bridge is shown to have a length
of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his
left, that being the proper side of the road for the machine. In
so doing the defendant assumed that the horseman would
move to the other side. The pony had not as yet exhibited
fright, and the rider had made no sign for the automobile to
stop. Seeing that the pony was apparently quiet, the defendant,
instead of veering to the right while yet some distance away or
slowing down, continued to approach directly toward the
horse without diminution of speed. When he had gotten quite
near, there being then no possibility of the horse getting across
to the other side, the defendant quickly turned his car
sufficiently to the right to escape hitting the horse alongside of
the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it
became frightened and turned its body across the bridge with
its head toward the railing. In so doing, it as struck on the hock
of the left hind leg by the flange of the car and the limb was
broken. The horse fell and its rider was thrown off with some
violence. From the evidence adduced in the case we believe
that when the accident occurred the free space where the pony
stood between the automobile and the railing of the bridge was
probably less than one and one half meters. As a result of its
injuries the horse died. The plaintiff received contusions
which caused temporary unconsciousness and required
medical attention for several days.
The question presented for decision is whether or not the
defendant in maneuvering his car in the manner above
described was guilty of negligence such as gives rise to a civil
obligation to repair the damage done; and we are of the
opinion that he is so liable. As the defendant started across the
bridge, he had the right to assume that the horse and the rider
would pass over to the proper side; but as he moved toward
the center of the bridge it was demonstrated to his eyes that
this would not be done; and he must in a moment have
perceived that it was too late for the horse to cross with safety
in front of the moving vehicle. In the nature of things this
change of situation occurred while the automobile was yet
some distance away; and from this moment it was not longer
within the power of the plaintiff to escape being run down by
going to a place of greater safety. The control of the situation
had then passed entirely to the defendant; and it was his duty
either to bring his car to an immediate stop or, seeing that
there were no other persons on the bridge, to take the other
side and pass sufficiently far away from the horse to avoid the
danger of collision. Instead of doing this, the defendant ran
straight on until he was almost upon the horse. He was, we
think, deceived into doing this by the fact that the horse had
not yet exhibited fright. But in view of the known nature of
16
horses, there was an appreciable risk that, if the animal in
question was unacquainted with automobiles, he might get
exited and jump under the conditions which here confronted
him. When the defendant exposed the horse and rider to this
danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in
a particular case may be stated as follows: Did the defendant
in doing the alleged negligent act use that person would have
used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of
negligence in a given case is not determined by reference to
the personal judgment of the actor in the situation before him.
The law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and prudence and
determines liability by that.
The question as to what would constitute the conduct of a
prudent man in a given situation must of course be always
determined in the light of human experience and in view of the
facts involved in the particular case. Abstract speculations
cannot here be of much value but this much can be profitably
said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They
are not, and are not supposed to be, omniscient of the future.
Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as
a result of the course actually pursued? If so, it was the duty of
the actor to take precautions to guard against that harm.
Reasonable foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary before
negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in
a given case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would have
foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing conduct or guarding against
its consequences.
Applying this test to the conduct of the defendant in the
present case we think that negligence is clearly established. A
prudent man, placed in the position of the defendant, would in
our opinion, have recognized that the course which he was
pursuing was fraught with risk, and would therefore have
foreseen harm to the horse and the rider as reasonable
consequence of that course. Under these circumstances the law
imposed on the defendant the duty to guard against the
threatened harm.
It goes without saying that the plaintiff himself was not free
from fault, for he was guilty of antecedent negligence in
planting himself on the wrong side of the road. But as we have
already stated, the defendant was also negligent; and in such
case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under
these circumstances the law is that the person who has the last
fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the
prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. Rep., 359) should perhaps be mentioned in this
connection. This Court there held that while contributory
negligence on the part of the person injured did not constitute
a bar to recovery, it could be received in evidence to reduce
the damages which would otherwise have been assessed
wholly against the other party. The defendant company had
there employed the plaintiff, as a laborer, to assist in
transporting iron rails from a barge in Manila harbor to the
company's yards located not far away. The rails were
conveyed upon cars which were hauled along a narrow track.
At certain spot near the water's edge the track gave way by
reason of the combined effect of the weight of the car and the
insecurity of the road bed. The car was in consequence upset;
the rails slid off; and the plaintiff's leg was caught and broken.
It appeared in evidence that the accident was due to the effects
of the typhoon which had dislodged one of the supports of the
track. The court found that the defendant company was
negligent in having failed to repair the bed of the track and
also that the plaintiff was, at the moment of the accident,
guilty of contributory negligence in walking at the side of the
car instead of being in front or behind. It was held that while
the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair
nevertheless the amount of the damages should be reduced on
account of the contributory negligence in the plaintiff. As will
be seen the defendant's negligence in that case consisted in an
omission only. The liability of the company arose from its
responsibility for the dangerous condition of its track. In a
case like the one now before us, where the defendant was
actually present and operating the automobile which caused
the damage, we do not feel constrained to attempt to weigh the
negligence of the respective parties in order to apportion the
damage according to the degree of their relative fault. It is
enough to say that the negligence of the defendant was in this
case the immediate and determining cause of the accident and
that the antecedent negligence of the plaintiff was a more
remote factor in the case.
A point of minor importance in the case is indicated in the
special defense pleaded in the defendant's answer, to the effect
that the subject matter of the action had been previously
adjudicated in the court of a justice of the peace. In this
connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be
instituted before a justice of the peace charging the defendant
with the infliction of serious injuries (lesiones graves). At the
preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding
that the acquittal of the defendant at the trial upon the merits in
a criminal prosecution for the offense mentioned would be res
adjudicata upon the question of his civil liability arising from
negligence -- a point upon which it is unnecessary to express
an opinion -- the action of the justice of the peace in
dismissing the criminal proceeding upon the preliminary
hearing can have no effect. (See U. S. vs. Banzuela and
Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the
lower court must be reversed, and judgment is her rendered
that the plaintiff recover of the defendant the sum of two
hundred pesos (P200), with costs of other instances. The sum
here awarded is estimated to include the value of the horse,
medical expenses of the plaintiff, the loss or damage
occasioned to articles of his apparel, and lawful interest on the
whole to the date of this recovery. The other damages claimed
by the plaintiff are remote or otherwise of such character as
not to be recoverable. So ordered.
FAR EAST BANK AND TRUST COMPANY, petitioner,
vs.
17
THE HONORABLE COURT OF APPEALS, LUIS A.
LUNA and CLARITA S. LUNA, respondents.
VITUG, J.:
Some time in October 1986, private respondent Luis A. Luna
applied for, and was accorded, a FAREASTCARD issued by
petitioner Far East Bank and Trust Company ("FEBTC") at its
Pasig Branch. Upon his request, the bank also issued a
supplemental card to private respondent Clarita S. Luna.
In August 1988, Clarita lost her credit card. FEBTC was
forthwith informed. In order to replace the lost card, Clarita
submitted an affidavit of loss. In cases of this nature, the
bank's internal security procedures and policy would appear to
be to meanwhile so record the lost card, along with the
principal card, as a "Hot Card" or "Cancelled Card" in its
master file.
On 06 October 1988, Luis tendered a despedida lunch for a
close friend, a Filipino-American, and another guest at the
Bahia Rooftop Restaurant of the Hotel Intercontinental
Manila. To pay for the lunch, Luis presented his
FAREASTCARD to the attending waiter who promptly had it
verified through a telephone call to the bank's Credit Card
Department. Since the card was not honored, Luis was forced
to pay in cash the bill amounting to P588.13. Naturally, Luis
felt embarrassed by this incident.
In a letter, dated 11 October 1988, private respondent Luis
Luna, through counsel, demanded from FEBTC the payment
of damages. Adrian V. Festejo, a vice-president of the bank,
expressed the bank's apologies to Luis. In his letter, dated 03
November 1988, Festejo, in part, said:
In cases when a card is reported to our office as lost,
FAREASTCARD undertakes the necessary action to
avert its unauthorized use (such as tagging the card as
hotlisted), as it is always our intention to protect our
cardholders.
An investigation of your case however, revealed that
FAREASTCARD failed to inform you about its
security policy. Furthermore, an overzealous
employee of the Bank's Credit Card Department did
not consider the possibility that it may have been you
who was presenting the card at that time (for which
reason, the unfortunate incident occurred). 1
Festejo also sent a letter to the Manager of the Bahia Rooftop
Restaurant to assure the latter that private respondents were
"very valued clients" of FEBTC. William Anthony King, Food
and Beverage Manager of the Intercontinental Hotel, wrote
back to say that the credibility of private respondent had never
been "in question." A copy of this reply was sent to Luis by
Festejo.
Still evidently feeling aggrieved, private respondents, on 05
December 1988, filed a complaint for damages with the
Regional Trial Court ("RTC") of Pasig against FEBTC.
On 30 March 1990, the RTC of Pasig, given the foregoing
factual settings, rendered a decision ordering FEBTC to pay
private respondents (a) P300,000.00 moral damages; (b)
P50,000.00 exemplary damages; and (c) P20,000.00 attorney's
fees.
On appeal to the Court of Appeals, the appellate court
affirmed the decision of the trial court.
Its motion for reconsideration having been denied by the
appellate court, FEBTC has come to this Court with this
petition for review.
There is merit in this appeal.
In culpa contractual, moral damages may be recovered where
the defendant is shown to have acted in bad faith or with
malice in the breach of the contract. 2 The Civil Code
provides:
Art. 2220. Willful injury to property may be a legal
ground for awarding moral damages if the court
should find that, under the circumstances, such
damages are justly due. The same rule applies to
breaches of contract where the defendant acted
fraudulently or in bad faith. (Emphasis supplied)
Bad faith, in this context, includes gross, but not simple,
negligence.3 Exceptionally, in a contract of carriage, moral
damages are also allowed in case of death of a passenger
attributable to the fault (which is presumed 4 ) of the common
carrier.5
Concededly, the bank was remiss in indeed neglecting to
personally inform Luis of his own card's cancellation. Nothing
in the findings of the trial court and the appellate court,
however, can sufficiently indicate any deliberate intent on the
part of FEBTC to cause harm to private respondents. Neither
could FEBTC's negligence in failing to give personal notice to
Luis be considered so gross as to amount to malice or bad
faith.
Malice or bad faith implies a conscious and intentional design
to do a wrongful act for a dishonest purpose or moral
obliquity; it is different from the negative idea of negligence in
that malice or bad faith contemplates a state of mind
affirmatively operating with furtive design or ill will.6
We are not unaware of the previous rulings of this Court, such
as in American Express International, Inc., vs. Intermediate
Appellate Court (167 SCRA 209) and Bank of Philippine
Islands vs. Intermediate Appellate Court (206 SCRA 408),
sanctioning the application of Article 21, in relation to Article
2217 and Article 22197 of the Civil Code to a contractual
breach similar to the case at bench. Article 21 states:
Art. 21. Any person who wilfully causes loss or
injury to another in a manner that is contrary to
morals, good customs or public policy shall
compensate the latter for the damage.
Article 21 of the Code, it should be observed, contemplates a
conscious act to cause harm. Thus, even if we are to assume
that the provision could properly relate to a breach of contract,
its application can be warranted only when the defendant's
disregard of his contractual obligation is so deliberate as to
approximate a degree of misconduct certainly no less worse
than fraud or bad faith. Most importantly, Article 21 is a mere
declaration of a general principle in human relations that
clearly must, in any case, give way to the specific provision of
Article 2220 of the Civil Code authorizing the grant of moral
damages in culpa contractual solely when the breach is due to
fraud or bad faith.
Mr. Justice Jose B.L. Reyes, in his ponencia in Fores
vs. Miranda8 explained with great clarity the predominance
that we should give to Article 2220 in contractual relations; we
quote:
18
Anent the moral damages ordered to be paid to the
respondent, the same must be discarded. We have
repeatedly ruled (Cachero vs. Manila Yellow Taxicab
Co. Inc., 101 Phil. 523; 54 Off. Gaz., [26], 6599;
Necesito, et al. vs. Paras, 104 Phil., 75; 56 Off. Gaz.,
[23] 4023), that moral damages are not recoverable in
damage actions predicated on a breach of the contract
of transportation, in view of Articles 2219 and 2220
of the new Civil Code, which provide as follows:
Art. 2219. Moral damages may be recovered in the
following and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
xxx xxx xxx
Art. 2220. Wilful injury to property may be a legal
ground for awarding moral damages if the court
should find that, under the circumstances, such
damages are justly due. The same rule applies to
breaches of contract where the defendant acted
fraudulently or in bad faith.
By contrasting the provisions of these two articles it
immediately becomes apparent that:
(a) In case of breach of contract (including one of
transportation) proof of bad faith or fraud
(dolus), i.e., wanton or deliberately injurious conduct,
is essential to justify an award of moral damages; and
(b) That a breach of contract can not be considered
included in the descriptive term "analogous cases"
used in Art. 2219; not only because Art. 2220
specifically provides for the damages that are caused
contractual breach, but because the definition of
quasi-delict in Art. 2176 of the Code expressly
excludes the cases where there is a "preexisitng
contractual relations between the parties."
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
The exception to the basic rule of damages now
under consideration is a mishap resulting in the death
of a passenger, in which case Article 1764 makes the
common carrier expressly subject to the rule of Art.
2206, that entitles the spouse, descendants and
ascendants of the deceased passenger to "demand
moral damages for mental anguish by reason of the
death of the deceased" (Necesito vs. Paras, 104 Phil.
84, Resolution on motion to reconsider, September
11, 1958). But the exceptional rule of Art. 1764
makes it all the more evident that where the injured
passenger does not die, moral damages are not
recoverable unless it is proved that the carrier was
guilty of malice or bad faith. We think it is clear that
the mere carelessness of the carrier's driver does
not per se constitute or justify an inference of malice
or bad faith on the part of the carrier; and in the case
at bar there is no other evidence of such malice to
support the award of moral damages by the Court of
 Appeals. To award moral damages for breach of
contract, therefore, without proof of bad faith or
malice on the part of the defendant, as required by
Art. 2220, would be to violate the clear provisions of
the law, and constitute unwarranted judicial
legislation.
xxx xxx xxx
The distinction between fraud, bad faith or malice in
the sense of deliberate or wanton wrong doing and
negligence (as mere carelessness) is too fundamental
in our law to be ignored (Arts. 1170-1172); their
consequences being clearly differentiated by the
Code.
Art. 2201. In contracts and quasi-contracts, the
damages for which the obligor who acted in good
faith is liable shall be those that are the natural
and probable consequences of the breach of the
obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the
obligation was constituted.
In case of fraud, bad faith, malice or wanton
attitude, the obligor shall be responsible for all
damages which may be reasonably attributed to
the non-performance of the obligation.
It is to be presumed, in the absence of statutory
provision to the contrary, that this difference was in
the mind of the lawmakers when in Art. 2220 they
limited recovery of moral damages to breaches of
contract in bad faith. It is true that negligence may be
occasionally so gross as to amount to malice; but the
fact must be shown in evidence, and a carrier's bad
faith is not to be lightly inferred from a mere finding
that the contract was breached through negligence of
the carrier's employees.
The Court has not in the process overlooked another rule that a
quasi-delict can be the cause for breaching a contract that
might thereby permit the application of applicable principles
on tort9 even where there is a pre-existing contract between the
plaintiff and the defendant (Phil. Airlines vs. Court of
Appeals, 106 SCRA 143; Singson vs. Bank of Phil. Islands, 23
SCRA 1117; and Air France vs. Carrascoso, 18 SCRA 155).
This doctrine, unfortunately, cannot improve private
respondents' case for it can aptly govern only where the act or
omission complained of would constitute an actionable tort
independently of the contract. The test (whether a quasi-delict
can be deemed to underlie the breach of a contract) can be
stated thusly: Where, without a pre-existing contract between
two parties, an act or omission can nonetheless amount to an
actionable tort by itself, the fact that the parties are
contractually bound is no bar to the application of quasi-delict
provisions to the case. Here, private respondents' damage
claim is predicated solely on their contractual relationship;
without such agreement, the act or omission complained of
cannot by itself be held to stand as a separate cause of action
or as an independent actionable tort.
The Court finds, therefore, the award of moral damages made
by the court a quo, affirmed by the appellate court, to be
inordinate and substantially devoid of legal basis.
Exemplary or corrective damages, in turn, are intended to
serve as an example or as correction for the public good in
addition to moral, temperate, liquidated or compensatory
19
damages (Art. 2229, Civil Code; see Prudenciado vs. Alliance
Transport System, 148 SCRA 440; Lopez vs. Pan American
World Airways, 16 SCRA 431). In criminal offenses,
exemplary damages are imposed when the crime is committed
with one or more aggravating circumstances (Art. 2230, Civil
Code). In quasi-delicts, such damages are granted if the
defendant is shown to have been so guilty of gross negligence
as to approximate malice (See Art. 2231, Civil Code; CLLC
E.G. Gochangco Workers Union vs. NLRC, 161 SCRA 655;
Globe Mackay Cable and Radio Corp. vs. CA, 176 SCRA
778). In contracts and quasi-contracts, the court may award
exemplary damages if the defendant is found to have acted in
a wanton, fraudulent, reckless, oppressive, or malevolent
manner (Art. 2232, Civil Code; PNB vs. Gen. Acceptance and
Finance Corp., 161 SCRA 449).
Given the above premises and the factual circumstances here
obtaining, it would also be just as arduous to sustain the
exemplary damages granted by the courts below (see De Leon
vs. Court of Appeals, 165 SCRA 166).
Nevertheless, the bank's failure, even perhaps inadvertent, to
honor its credit card issued to private respondent Luis should
entitle him to recover a measure of damages sanctioned under
Article 2221 of the Civil Code providing thusly:
Art. 2221. Nominal damages are adjudicated in order
that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying
the plaintiff for any loss suffered by him.
Reasonable attorney's fees may be recovered where the court
deems such recovery to be just and equitable (Art. 2208, Civil
Code). We see no issue of sound discretion on the part of the
appellate court in allowing the award thereof by the trial court.
WHEREFORE, the petition for review is given due course.
The appealed decision is MODIFIED by deleting the award of
moral and exemplary damages to private respondents; in its
stead, petitioner is ordered to pay private respondent Luis A.
Luna an amount of P5,000.00 by way of nominal damages. In
all other respects, the appealed decision is AFFIRMED. No
costs.
KHRISTINE REA M. REGINO, Assisted and Represented
by ARMANDO REGINO, petitioner,
vs.
PANGASINAN COLLEGES OF SCIENCE AND
TECHNOLOGY, RACHELLE A. GAMUROT and
ELISSA BALADAD, respondents.
PANGANIBAN, J.:
Upon enrolment, students and their school enter upon a
reciprocal contract. The students agree to abide by the
standards of academic performance and codes of conduct,
issued usually in the form of manuals that are distributed to
the enrollees at the start of the school term. Further, the school
informs them of the itemized fees they are expected to pay.
Consequently, it cannot, after the enrolment of a student, vary
the terms of the contract. It cannot require fees other than
those it specified upon enrolment.
The Case
Before the Court is a Petition for Review under Rule
45,1 seeking to nullify the July 12, 20022 and the November 22,
20023 Orders of the Regional Trial Court (RTC) of Urdaneta
City, Pangasinan (Branch 48) in Civil Case No. U-7541. The
decretal portion of the first assailed Order reads:
"WHEREFORE, the Court GRANTS the instant
motion to dismiss for lack of cause of action."4
The second challenged Order denied petitioner's Motion for
Reconsideration.
The Facts
Petitioner Khristine Rea M. Regino was a first year computer
science student at Respondent Pangasinan Colleges of Science
and Technology (PCST). Reared in a poor family, Regino
went to college mainly through the financial support of her
relatives. During the second semester of school year 2001-
2002, she enrolled in logic and statistics subjects under
Respondents Rachelle A. Gamurot and Elissa Baladad,
respectively, as teachers.
In February 2002, PCST held a fund raising campaign dubbed
the "Rave Party and Dance Revolution," the proceeds of which
were to go to the construction of the school's tennis and
volleyball courts. Each student was required to pay for two
tickets at the price of P100 each. The project was allegedly
implemented by recompensing students who purchased tickets
with additional points in their test scores; those who refused to
pay were denied the opportunity to take the final
examinations.
Financially strapped and prohibited by her religion from
attending dance parties and celebrations, Regino refused to
pay for the tickets. On March 14 and March 15, 2002, the
scheduled dates of the final examinations in logic and
statistics, her teachers -- Respondents Rachelle A. Gamurot
and Elissa Baladad -- allegedly disallowed her from taking the
tests. According to petitioner, Gamurot made her sit out her
logic class while her classmates were taking their
examinations. The next day, Baladad, after announcing to the
entire class that she was not permitting petitioner and another
student to take their statistics examinations for failing to pay
for their tickets, allegedly ejected them from the classroom.
Petitioner's pleas ostensibly went unheeded by Gamurot and
Baladad, who unrelentingly defended their positions as
compliance with PCST's policy.
On April 25, 2002, petitioner filed, as a pauper litigant, a
Complaint5 for damages against PCST, Gamurot and Baladad.
In her Complaint, she prayed for P500,000 as nominal
damages; P500,000 as moral damages; at least P1,000,000 as
exemplary damages; P250,000 as actual damages; plus the
costs of litigation and attorney's fees.
6 
On May 30, 2002, respondents filed a Motion to Dismiss on
the ground of petitioner's failure to exhaust administrative
remedies. According to respondents, the question raised
involved the determination of the wisdom of an administrative
policy of the PCST; hence, the case should have been initiated
before the proper administrative body, the Commission of
Higher Education (CHED).
In her Comment to respondents' Motion, petitioner argued that
prior exhaustion of administrative remedies was unnecessary,
because her action was not administrative in nature, but one
purely for damages arising from respondents' breach of the
laws on human relations. As such, jurisdiction lay with the
courts.
20
On July 12, 2002, the RTC dismissed the Complaint for lack
of cause of action.
Ruling of the Regional Trial Court
In granting respondents' Motion to Dismiss, the trial court
noted that the instant controversy involved a higher institution
of learning, two of its faculty members and one of its students.
It added that Section 54 of the Education Act of 1982 vested in
the Commission on Higher Education (CHED) the supervision
and regulation of tertiary schools. Thus, it ruled that the
CHED, not the courts, had jurisdiction over the controversy.7
In its dispositive portion, the assailed Order dismissed the
Complaint for "lack of cause of action" without, however,
explaining this ground.
Aggrieved, petitioner filed the present Petition on pure
questions of law.8
Issues
In her Memorandum, petitioner raises the following issues for
our consideration:
"Whether or not the principle of exhaustion of
administrative remedies applies in a civil action
exclusively for damages based on violation of the
human relation provisions of the Civil Code, filed by
a student against her former school.
"Whether or not there is a need for prior declaration
of invalidity of a certain school administrative policy
by the Commission on Higher Education (CHED)
before a former student can successfully maintain an
action exclusively for damages in regular courts.
"Whether or not the Commission on Higher
Education (CHED) has exclusive original jurisdiction
over actions for damages based upon violation of the
Civil Code provisions on human relations filed by a
student against the school."9
All of the foregoing point to one issue -- whether the doctrine
of exhaustion of administrative remedies is applicable. The
Court, however, sees a second issue which, though not
expressly raised by petitioner, was impliedly contained in her
Petition: whether the Complaint stated sufficient cause(s) of
action.
The Court's Ruling
The Petition is meritorious.
First Issue:
Exhaustion of Administrative Remedies
Respondents anchored their Motion to Dismiss on petitioner's
alleged failure to exhaust administrative remedies before
resorting to the RTC. According to them, the determination of
the controversy hinge on the validity, the wisdom and the
propriety of PCST's academic policy. Thus, the Complaint
should have been lodged in the CHED, the administrative
body tasked under Republic Act No. 7722 to implement the
state policy to "protect, foster and promote the right of all
citizens to affordable quality education at all levels and to take
appropriate steps to ensure that education is accessible to
all."10
Petitioner counters that the doctrine finds no relevance to the
present case since she is praying for damages, a remedy
beyond the domain of the CHED and well within the
jurisdiction of the courts.11
Petitioner is correct. First, the doctrine of exhaustion of
administrative remedies has no bearing on the present case. In
Factoran Jr. v. CA,12 the Court had occasion to elucidate on the
rationale behind this doctrine:
"The doctrine of exhaustion of administrative
remedies is basic. Courts, for reasons of law, comity,
and convenience, should not entertain suits unless the
available administrative remedies have first been
resorted to and the proper authorities have been given
the appropriate opportunity to act and correct their
alleged errors, if any, committed in the administrative
forum. x x x.13 "
Petitioner is not asking for the reversal of the policies of
PCST. Neither is she demanding it to allow her to take her
final examinations; she was already enrolled in another
educational institution. A reversal of the acts complained of
would not adequately redress her grievances; under the
circumstances, the consequences of respondents' acts could no
longer be undone or rectified.
Second, exhaustion of administrative remedies is applicable
when there is competence on the part of the administrative
body to act upon the matter complained of.14 Administrative
agencies are not courts; they are neither part of the judicial
system, nor are they deemed judicial tribunals.15 Specifically,
the CHED does not have the power to award
damages.16 Hence, petitioner could not have commenced her
case before the Commission.
Third, the exhaustion doctrine admits of exceptions, one of
which arises when the issue is purely legal and well within the
jurisdiction of the trial court.17 Petitioner's action for damages
inevitably calls for the application and the interpretation of the
Civil Code, a function that falls within the jurisdiction of the
courts.18
Second Issue:
Cause of Action
Sufficient Causes of Action Stated in the Allegations in the
Complaint
As a rule, every complaint must sufficiently allege a cause of
action; failure to do so warrants its dismissal.19 A complaint is
said to assert a sufficient cause of action if, admitting what
appears solely on its face to be correct, the plaintiff would be
entitled to the relief prayed for. Assuming the facts that are
alleged to be true, the court should be able to render a valid
judgment in accordance with the prayer in the complaint.20
A motion to dismiss based on lack of cause of action
hypothetically admits the truth of the alleged facts. In their
Motion to Dismiss, respondents did not dispute any of
petitioner's allegations, and they admitted that "x x x the crux
of plaintiff's cause of action is the determination of whether or
not the assessment of P100 per ticket is excessive or
oppressive."21 They thereby premised their prayer for dismissal
21
on the Complaint's alleged failure to state a cause of action.
Thus, a reexamination of the Complaint is in order.
The Complaint contains the following factual allegations:
"10. In the second week of February 2002, defendant
Rachelle A. Gamurot, in connivance with PCST,
forced plaintiff and her classmates to buy or take two
tickets each, x x x;
"11. Plaintiff and many of her classmates objected to
the forced distribution and selling of tickets to them
but the said defendant warned them that if they
refused [to] take or pay the price of the two tickets
they would not be allowed at all to take the final
examinations;
"12. As if to add insult to injury, defendant Rachelle
A. Gamurot bribed students with additional fifty
points or so in their test score in her subject just to
unjustly influence and compel them into taking the
tickets;
"13. Despite the students' refusal, they were forced to
take the tickets because [of] defendant Rachelle A.
Gamurot's coercion and act of intimidation, but still
many of them including the plaintiff did not attend
the dance party imposed upon them by defendants
PCST and Rachelle A. Gamurot;
"14. Plaintiff was not able to pay the price of her own
two tickets because aside form the fact that she could
not afford to pay them it is also against her religious
practice as a member of a certain religious
congregation to be attending dance parties and
celebrations;
"15. On March 14, 2002, before defendant Rachelle
A. Gamurot gave her class its final examination in the
subject 'Logic' she warned that students who had not
paid the tickets would not be allowed to participate in
the examination, for which threat and intimidation
many students were eventually forced to make
payments:
"16. Because plaintiff could not afford to pay,
defendant Rachelle A. Gamurot inhumanly made
plaintiff sit out the class but the defendant did not
allow her to take her final examination in 'Logic;'
"17. On March 15, 2002 just before the giving of the
final examination in the subject 'Statistics,' defendant
Elissa Baladad, in connivance with defendants
Rachelle A. Gamurot and PCST, announced in the
classroom that she was not allowing plaintiff and
another student to take the examination for their
failure and refusal to pay the price of the tickets, and
thenceforth she ejected plaintiff and the other student
from the classroom;
"18. Plaintiff pleaded for a chance to take the
examination but all defendants could say was that the
prohibition to give the examinations to non-paying
students was an administrative decision;
"19. Plaintiff has already paid her tuition fees and
other obligations in the school;
 "20. That the above-cited incident was not a first
since PCST also did another forced distribution of
tickets to its students in the first semester of school
year 2001-2002; x x x " 22
The foregoing allegations show two causes of action; first,
breach of contract; and second, liability for tort.
Reciprocity of the
School-Student Contract
In Alcuaz v. PSBA,23 the Court characterized the relationship
between the school and the student as a contract, in which "a
student, once admitted by the school is considered enrolled for
one semester."24 Two years later, in Non v. Dames II,25 the
Court modified the "termination of contract theory" in Alcuaz
by holding that the contractual relationship between the school
and the student is not only semestral in duration, but for the
entire period the latter are expected to complete it." 26 Except
for the variance in the period during which the contractual
relationship is considered to subsist, both Alcuaz and Non
were unanimous in characterizing the school-student
relationship as contractual in nature.
The school-student relationship is also reciprocal. Thus, it has
consequences appurtenant to and inherent in all contracts of
such kind -- it gives rise to bilateral or reciprocal rights and
obligations. The school undertakes to provide students with
education sufficient to enable them to pursue higher education
or a profession. On the other hand, the students agree to abide
by the academic requirements of the school and to observe its
rules and regulations.27
The terms of the school-student contract are defined at the
moment of its inception -- upon enrolment of the student.
Standards of academic performance and the code of behavior
and discipline are usually set forth in manuals distributed to
new students at the start of every school year. Further, schools
inform prospective enrollees the amount of fees and the terms
of payment.
In practice, students are normally required to make a down
payment upon enrollment, with the balance to be paid before
every preliminary, midterm and final examination. Their
failure to pay their financial obligation is regarded as a valid
ground for the school to deny them the opportunity to take
these examinations.
The foregoing practice does not merely ensure compliance
with financial obligations; it also underlines the importance of
major examinations. Failure to take a major examination is
usually fatal to the students' promotion to the next grade or to
graduation. Examination results form a significant basis for
their final grades. These tests are usually a primary and an
indispensable requisite to their elevation to the next
educational level and, ultimately, to their completion of a
course.
Education is not a measurable commodity. It is not possible to
determine who is "better educated" than another. Nevertheless,
a student's grades are an accepted approximation of what
would otherwise be an intangible product of countless hours of
study. The importance of grades cannot be discounted in a
setting where education is generally the gate pass to
employment opportunities and better life; such grades are
often the means by which a prospective employer measures
whether a job applicant has acquired the necessary tools or
skills for a particular profession or trade.
22
Thus, students expect that upon their payment of tuition fees,
satisfaction of the set academic standards, completion of
academic requirements and observance of school rules and
regulations, the school would reward them by recognizing
their "completion" of the course enrolled in.
The obligation on the part of the school has been established
in Magtibay v. Garcia,28 Licup v. University of San
Carlos29 and Ateneo de Manila University v. Garcia,30 in which
the Court held that, barring any violation of the rules on the
part of the students, an institution of higher learning has a
contractual obligation to afford its students a fair opportunity
to complete the course they seek to pursue.
We recognize the need of a school to fund its facilities and to
meet astronomical operating costs; this is a reality in running
it. Crystal v. Cebu International School31 upheld the imposition
by respondent school of a "land purchase deposit" in the
amount of P50,000 per student to be used for the "purchase of
a piece of land and for the construction of new buildings and
other facilities x x x which the school would transfer [to] and
occupy after the expiration of its lease contract over its present
site."
The amount was refundable after the student graduated or left
the school. After noting that the imposition of the fee was
made only after prior consultation and approval by the parents
of the students, the Court held that the school committed no
actionable wrong in refusing to admit the children of the
petitioners therein for their failure to pay the "land purchase
deposit" and the 2.5 percent monthly surcharge thereon.
In the present case, PCST imposed the assailed revenue-
raising measure belatedly, in the middle of the semester. It
exacted the dance party fee as a condition for the students'
taking the final examinations, and ultimately for its
recognition of their ability to finish a course. The fee,
however, was not part of the school-student contract entered
into at the start of the school year. Hence, it could not be
unilaterally imposed to the prejudice of the enrollees.
Such contract is by no means an ordinary one. In Non, we
stressed that the school-student contract "is imbued with
public interest, considering the high priority given by the
Constitution to education and the grant to the State of
supervisory and regulatory powers over all educational
institutions."32 Sections 5 (1) and (3) of Article XIV of the
1987 Constitution provide:
"The State shall protect and promote the right of all
citizens to quality education at all levels and shall
take appropriate steps to make such declaration
accessible to all.
"Every student has a right to select a profession or
course of study, subject to fair, reasonable and
equitable admission and academic requirements."
The same state policy resonates in Section 9(2) of BP 232,
otherwise known as the Education Act of 1982:
"Section 9. Rights of Students in School. – In
addition to other rights, and subject to the limitations
prescribed by law and regulations, students and
pupils in all schools shall enjoy the following rights:
xxx    xxx    xxx
 (2) The right to freely choose their field of
study subject to existing curricula and to
continue their course therein up to
graduation, except in cases of academic
deficiency, or violation of disciplinary
regulations."
Liability for Tort
In her Complaint, petitioner also charged that private
respondents "inhumanly punish students x x x by reason only
of their poverty, religious practice or lowly station in life,
which inculcated upon [petitioner] the feelings of guilt,
disgrace and unworthiness;"33 as a result of such punishment,
she was allegedly unable to finish any of her subjects for the
second semester of that school year and had to lag behind in
her studies by a full year. The acts of respondents supposedly
caused her extreme humiliation, mental agony and
"demoralization of unimaginable proportions" in violation of
Articles 19, 21 and 26 of the Civil Code. These provisions of
the law state thus:
"Article 19. Every person must, in the exercise of his
rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty
and good faith."
"Article 21. Any person who wilfully causes loss or
injury to another in a manner that is contrary to
morals, good customs or public policy shall
compensate the latter for the damage."
"Article 26. Every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons. The following and
similar acts, though they may not constitute a
criminal offense, shall produce a cause of action for
damages, prevention and other relief:
(1) Prying into the privacy of another's
residence;
(2) Meddling with or disturbing the private
life or family relations of another;
(3) Intriguing to cause another to be
alienated from his friends;
(4) Vexing or humiliating another on
account of his beliefs, lowly station in life,
place of birth, physical defect, or other
personal condition."
Generally, liability for tort arises only between parties not
otherwise bound by a contract. An academic institution,
however, may be held liable for tort even if it has an existing
contract with its students, since the act that violated the
contract may also be a tort. We ruled thus in PSBA vs.
CA,34 from which we quote:
"x x x A perusal of Article 2176 [of the Civil Code]
shows that obligations arising from quasi-delicts or
tort, also known as extra-contractual obligations,
arise only between parties not otherwise bound by
contract, whether express or implied. However, this
impression has not prevented this Court from
determining the existence of a tort even when there
obtains a contract. In Air France v. Carrascoso (124
Phil. 722), the private respondent was awarded
23
damages for his unwarranted expulsion from a first-
class seat aboard the petitioner airline. It is noted,
however, that the Court referred to the petitioner-
airline's liability as one arising from tort, not one
arising form a contract of carriage. In effect, Air
France is authority for the view that liability from tort
may exist even if there is a contract, for the act that
breaks the contract may be also a tort. x x x This
view was not all that revolutionary, for even as early
as 1918, this Court was already of a similar mind. In
Cangco v. Manila Railroad (38 Phil. 780), Mr. Justice
Fisher elucidated thus: 'x x x. When such a
contractual relation exists the obligor may break the
contract under such conditions that the same act
which constitutes a breach of the contract would have
constituted the source of an extra-contractual
obligation had no contract existed between the
parties.'
"Immediately what comes to mind is the chapter of
the Civil Code on Human Relations, particularly
Article 21 x x x."35
Academic Freedom
In their Memorandum, respondents harp on their right to
"academic freedom." We are not impressed. According to
present jurisprudence, academic freedom encompasses the
independence of an academic institution to determine for itself
(1) who may teach, (2) what may be taught, (3) how it shall
teach, and (4) who may be admitted to study.36 In Garcia v. the
Faculty Admission Committee, Loyola School of
Theology,37 the Court upheld the respondent therein when it
denied a female student's admission to theological studies in a
seminary for prospective priests. The Court defined the
freedom of an academic institution thus: "to decide for itself
aims and objectives and how best to attain them x x x free
from outside coercion or interference save possibly when
overriding public welfare calls for some restraint."38
In Tangonan v. Paño,39 the Court upheld, in the name of
academic freedom, the right of the school to refuse
readmission of a nursing student who had been enrolled on
probation, and who had failed her nursing subjects. These
instances notwithstanding, the Court has emphasized that once
a school has, in the name of academic freedom, set its
standards, these should be meticulously observed and should
not be used to discriminate against certain students.40 After
accepting them upon enrollment, the school cannot renege on
its contractual obligation on grounds other than those made
known to, and accepted by, students at the start of the school
year.
In sum, the Court holds that the Complaint alleges sufficient
causes of action against respondents, and that it should not
have been summarily dismissed. Needless to say, the Court is
not holding respondents liable for the acts complained of. That
will have to be ruled upon in due course by the court a quo.
WHEREFORE, the Petition is hereby GRANTED, and the
assailed Orders REVERSED. The trial court is DIRECTED to
reinstate the Complaint and, with all deliberate speed, to
continue the proceedings in Civil Case No. U-7541. No costs.
SUPREME TRANSLINER INC., FELIPE SIA and
NOVENCIO FLORES, petitioners,
vs.
HON. COURT OF APPEALS, GLORIA BRAZAL and
minor LOTIS BRAZAL, represented by her father, NOEL
BRAZAL, respondents.
QUISUMBING, J.:
This petition seeks to annul the decision1 dated September 21,
1995, of the Court of Appeals in CA G.R. No. 39784, and its
resolution2 dated June 18, 1996 denying petitioners' motion for
reconsideration.
Petitioners Supreme Transliner Inc. and Felipe Sia are the
registered owners of a bus driven by co-petitioner Novencio
Flores. On September 24, 1990, the bus collided with a
passenger jeepney carrying private respondents Gloria and
Lotis Brazal. At the time of the incident, the jeepney was
owned and registered in the name of Marcelino Villones and
driven by Reynaldo Decena.
As a result of the collision, private respondents suffered
injuries. They instituted Civil Case No. SP-3312 for damages
against petitioners based on quasi-delict and against Villones
and Decena for breach of contract. Petitioners, in turn, filed a
third-party complaint against Country Bankers Insurance
Company, insurer of the Supreme Transliner bus.
During the trial, Gloria Brazal testified that on September 24,
1990, she and her daughter Lotis were on board the passenger
jeepney when the Supreme Transliner bus hit it, causing them
injuries that required medical treatment.
Decena and Villones testified on their own behalf and
presented Luzviminda Malabanan and Sgt. Nicolas M. Roxas
as witnesses. Decena recounted that on September 24, 1990, at
about 2:00 P.M., he was driving a passenger jeepney bound
for Candelaria, Quezon. On board, the jeepney was about
fifteen passengers, including private respondents Gloria and
Lotis Brazal. Upon reaching Sampaloc, Sariaya, Quezon, a
Supreme Transliner bus coming from the opposite direction,
suddenly appeared on a curved portion of the road and
overtook another jeepney, which it was then following.
Thereafter, the bus collided with Decena's
Petitioners presented Novencio Flores and Moises Alvarez, the
Manager of Supreme Transliner. Both testified that the
passenger jeepney was running very fast when the accident
occurred. On the third-party complaint, petitioners showed
that they already submitted the required documents for
insurance claim and that Country Bankers Insurance Company
promised to settle the claim, but did not.
On October 28, 1992, the trial court rendered its judgment, the
dispositive portion of which reads:
WHEREFORE, finding that the plaintiffs [have]
established by preponderance of evidence the
allegations of the complaint, judgment is hereby
rendered:
ON THE COMPLAINT:
1. Ordering the defendants Felipe Sia, as registered
owner of the Supreme Bus, and Novencio Flores
primarily liable for the damages of the plaintiffs and
directing them to jointly and severally pay plaintiffs
the following:
24
a. The amount of TWENTY FIVE THOUSAND
PESOS (P25,000.00) by way of actual damages;
b. The amount of P10,000.00 by way of moral
damages;
c. The amount of P5,000.00 as attorney's fees.
On the third-party complaint, judgment is hereby
rendered ordering the third-party defendant to pay the
third-party plaintiffs any and all amounts that they
have paid to the plaintiffs by reason of this decision
provided it does not exceed P50,000.00.
Third-party defendant is also ordered to pay the costs.
SO ORDERED.3
The trial court declared that Flores was negligent in operating
the bus, while Sia failed to exercise the diligence of a good
father of a family in the choice, supervision and direction of
his employees.
On the third-party complaint, the trial court found that
Supreme Transliner had insured the bus with Country
Bankers, paid the premiums for the period covering the
accident, and made an insurance claim by notifying the insurer
and submitting the required documents. However, until the
filing of the complaint, Country Bankers had not acted upon
Supreme Transliner's claim. The trial court ordered Country
Bankers to pay third-party plaintiffs an amount not exceeding
P50,000.
Petitioners appealed to the Court of Appeals where they
maintained that the trial court erred in: (a) pronouncing them
liable to private respondents; (b) awarding the amount of
P25,000 as actual damages; and (c) finding Sia solidarily
liable with driver Flores. Country Bankers Insurance Company
filed on July 5, 1994, a manifestation and motion wherein it
stated that it had already settled its maximum liability under
the policy, and therefore prayed for its exclusion from the
case.
On September 21, 1995, the Court of Appeals promulgated its
decision, decreeing as follows:
WHEREFORE, the appealed judgment is
AFFIRMED subject to the Manifestation and Motion
filed by third-party defendant as discussed in the text
of herein decision.
Costs against defendant-third party appellant Felipe
Sia and defendant-appellant Novencio C. Flores.
SO ORDERED.4
The Court of Appeals found that there was competent and
preponderant evidence which showed that driver Novencio
Flores' negligence was the proximate cause of the mishap and
that Felipe Sia failed to perform the required degree of care in
the selection and supervision of the bus driver. It also found
that the actual damages representing the medical expenses
incurred by private respondents were properly supported by
receipts.
Petitioners filed a motion for reconsideration but this was
denied. Hence, this petition, where petitioners raise the
following issues:
I Decena, forms part of the totality of the evidence concerning
ARE EVIDENCES (SIC) IN THE RECORDS OF
THE CASE BUT NOT OFFERED BY A P ARTY
LITIGANT BE CONSIDERED IN THE LATTER'S
FAVOR?
II
ARE EVIDENCES (SIC) ADDUCED BY A CO-
DEFENDANT BE CONSIDERED AS EVIDENCES
(SIC) OF THE PLAINTIFF AS AGAINST THE
OTHER DEFENDANT?5
Petitioners aver that the Court of Appeals erred in affirming
the trial court's decision which was mainly based on the
evidence proffered by their co-defendants Decena and
Villones. Petitioners contend that this evidence, which proved
their liability for quasi-delict, could not be appreciated against
them because the same was not adopted, much less offered in
evidence by private respondents. Neither did Decena and
Villones file a cross-claim against them. Consequently, in
accordance with Section 1,6 Rule 131 and Sections 347 and
358, Rule 132 of the Rules of Court, said evidence was placed
beyond the court's consideration, hence they could not be held
liable on the basis thereof.
Private respondents contend that Philippine courts are not only
courts of law but of equity and justice as well. The Court of
Appeals, being a court of record, has to appreciate all the facts
and evidence before it in determining the parties' rights and
liabilities regardless of who among the litigants actually
presented the same. Further, they point out that the issue is
being raised for the first time, thus it is highly improper to
nullify or reverse the Court of Appeals' decision based solely
on a completely new and foreign ground.
For our resolution are the following issues: (a) Who has the
burden of proving herein petitioners' liability? (b) May the
evidence presented by Decena and Villones be considered in
determining preponderance of evidence against herein
petitioners?
Burden of proof is the duty of a party to present evidence to
establish his claim or defense by the amount of evidence
required by law, which is preponderance of evidence in civil
cases.9 The party, whether plaintiff or defendant, who asserts
the affirmative of the issue has the burden of proof to obtain a
favorable judgment. For the defendant, an affirmative defense
is one which is not a denial of an essential ingredient in the
plaintiffs cause of action, but one which, if established, will be
a good defense - i.e. an "avoidance" of the claim.10
In this case, both private respondents as well as the jeepney
driver Reynaldo Decena and its owner Marcelino Villones
claim that the bus driver, Novencio Flores, was liable for
negligently operating the bus. For private respondents, the
claim constitutes their cause of action against petitioners
which said private respondents must prove by preponderance
of evidence. At the same time, the same claim is a matter of
affirmative defense on the part of Decena and Villones who
are impleaded as co-defendants of petitioners. Therefore, both
private respondents as well as the said co-defendants had the
burden of proving petitioners' negligence by the quantum of
proof required to establish the latter's liability, i.e. by
preponderance of evidence.
On the second issue, we rule in the affirmative. The evidence
presented by the jeepney owner and its driver, Villones and
25
the negligence committed by petitioners as defendants
in quasi-delict case. Preponderance of evidence is determined
by considering all the facts and circumstances of the case,
culled from the evidence, regardless of who actually presented
it.11 Petitioners' liability were proved by the evidence
presented by Decena and Villones at the trial, taken together
with the evidence presented by the victims of the collision,
namely herein private respondents Gloria and Lotis Brazal.
We find petitioners' reliance on Sections 34 and 35 of Rule
132 of the Rules of Court misplaced. Petitioners cited these
rules to support their allegation that evidence by Decena and
Villones should not be considered in private respondents'
favor since the latter did not adopt much less offer them in
evidence. Nothing in Section 34 requires that the evidence be
offered or adopted by a specific party before it could be
considered in his favor. It is enough that the evidence is
offered for the court's consideration. We find, moreover, no
pertinence in petitioners' invocation of Rule 35, on when to
make an offer, except to indicate to us petitioners' reliance on
inapplicable technicalities that betray the lack of merit of their
petition.
WHEREFORE, the instant petition is DENIED. The
decision and resolution dated September 21, 1995 and June
18, 1996, respectively, of the Court of Appeals are
hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
DANGWA TRANSPORTATION CO., INC. and
THEODORE LARDIZABAL y MALECDAN, Petitioners,
v.
COURT OF APPEALS, INOCENCIA CUDIAMAT,
EMILIA CUDIAMAT BANDOY, FERNANDO
CUDIAMAT, MARRIETA CUDIAMAT, NORMA
CUDIAMAT, DANTE CUDIAMAT, SAMUEL
CUDIAMAT and LIGAYA CUDIAMAT, all Heirs of the
late Pedrito Cudiamat represented by Inocencia
Cudiamat, Respondents.
REGALADO, J.:
On May 13, 1985, private respondents filed a complaint 1 for
damages against petitioners for the death of Pedrito Cudiamat
as a result of a vehicular accident which occurred on March
25, 1985 at Marivic, Sapid, Mankayan, Benguet. Among
others, it was alleged that on said date, while petitioner
Theodore M. Lardizabal was driving a passenger bus
belonging to petitioner corporation in a reckless and imprudent
manner and without due regard to traffic rules and regulations
and safety to persons and property, it ran over its passenger,
Pedrito Cudiamat. However, instead of bringing Pedrito
immediately to the nearest hospital, the said driver, in utter
bad faith and without regard to the welfare of the victim, first
brought his other passengers and cargo to their respective
destinations before bringing said victim to the Lepanto
Hospital where he expired.
On the other hand, petitioners alleged that they had observed
and continued to observe the extraordinary diligence required
in the operation of the transportation company and the
supervision of the employees, even as they add that they are
not absolute insurers of the safety of the public at large.
Further, it was alleged that it was the victim’s own
carelessness and negligence which gave rise to the subject
incident, hence they prayed for the dismissal of the complaint
plus an award of damages in their favor by way of a
counterclaim.
On July 29, 1988, the trial court rendered a decision,
effectively in favor of petitioners, with this decretal portion:
"IN VIEW OF ALL THE FOREGOING, judgment is hereby
pronounced that Pedrito Cudiamat was negligent, which
negligence was the proximate cause of his death. Nonetheless,
defendants in equity, are hereby ordered to pay the heirs of
Pedrito Cudiamat the sum of P10,000.00 which approximates
the amount defendants initially offered said heirs for the
amicable settlement of the case. No costs.
"SO ORDERED." 2 witness when he declared that Pedrito Cudiamat was no longer
Not satisfied therewith, private respondents appealed to the
Court of Appeals which, in a decision 3 in CA-G.R CV No.
19504 promulgated on August 14, 1990, set aside the decision
of the lower court, and ordered petitioners to pay private
respondents:.
"1. The sum of Thirty Thousand (P30,000.00) Pesos by way of
indemnity for death of the victim Pedrito Cudiamat;
2. The sum of Twenty Thousand (P20,000.00) by way of
moral damages;
3. The sum of Two Hundred Eighty Eight Thousand
(P288,000.00) Pesos as actual and compensatory damages;
4. The costs of this suit." 4 by them according to the circumstances of each case (Article
Petitioners’ motion for reconsideration was denied by the
Court of Appeals in its resolution dated October 4, 1990, 5
hence this petition with the central issue herein being whether
respondent court erred in reversing the decision of the trial
court and in finding petitioners negligent and liable for the
damages claimed.
It is an established principle that the factual findings of the
Court of Appeals as a rule are final and may not be reviewed
by this Court on appeal. However, this is subject to settled
exceptions, one of which is when the findings of the appellate
court are contrary to those of the trial court, in which case a
reexamination of the facts and evidence may be undertaken. 6
In the case at bar, the trial court and the Court of Appeals have
discordant positions as to who between the petitioners and the
victim is guilty of negligence. Perforce, we have had to
conduct an evaluation of the evidence in this case for the
proper calibration of their conflicting factual findings and
legal conclusions.
The lower court, in declaring that the victim was negligent,
made the following findings:.
"This Court is satisfied that Pedrito Cudiamat was negligent in
trying to board a moving vehicle, especially with one of his
hands holding an umbrella. And, without having given the
driver or the conductor any indication that he wishes to board
the bus. But defendants can also be found wanting of the
necessary diligence. In this connection, it is safe to assume
that when the deceased Cudiamat attempted to board
defendants’ bus, the vehicle’s door was open instead of being
26
closed. This should be so, for it is hard to believe that one
would even attempt to board a vehicle (i)n motion if the door
of said vehicle is closed. Here lies the defendant’s lack of
diligence. Under such circumstances, equity demands that
there must be something given to the heirs of the victim to
assuage their feelings. This, also considering that initially,
defendant common carrier had made overtures to amicably
settle the case. It did offer a certain monetary consideration to
the victim’s heirs."
However, respondent court, in arriving at a different opinion,
declares that:.
"From the testimony of appellees’ own witness in the person
of Vitaliano Safarita, it is evident that the subject bus was at
full stop when the victim Pedrito Cudiamat boarded the same
as it was precisely on this instance where a certain Miss
Abenoja alighted from the bus. Moreover, contrary to the
assertion of the appellees, the victim did indicate his intention
to board the bus as can be seen from the testimony of the said
walking and made a sign to board the bus when the latter was
still at a distance from him. It was at the instance when Pedrito
Cudiamat was closing his umbrella at the platform of the bus
when the latter made a sudden jerk movement (as) the driver
commenced to accelerate the bus.chanrobles.com.ph : virtual
law library
"Evidently, the incident took place due to the gross negligence
of the appellee-driver in prematurely stepping on the
accelerator and in not waiting for the passenger to first secure
his seat especially so when we take into account that the
platform of the bus was at the time slippery and wet because
of a drizzle. The defendants-appellees utterly failed to observe
their duty and obligation as common carrier to the end that
they should observe extra-ordinary diligence in the vigilance
over the goods and for the safety of the passengers transported
1733, New Civil Code).
After a careful review of the evidence on record, we find no
reason to disturb the above holding of the Court of Appeals.
Its aforesaid findings are supported by the testimony of
petitioners own witnesses. One of them, Virginia Abalos,
testified on cross-examination as follows:.
"Q It is not a fact Madam witness, that at bunkhouse 54, that is
before the place of the incident, there is a crossing?
A The way going to the mines but it is not being pass(ed) by
the bus.
Q And the incident happened before bunkhouse 56, is that not
correct?
A It happened between 54 and 53 bunkhouses." 9
The bus conductor, Martin Anglog, also declared:.
"Q When you arrived at Lepanto on March 25, 1985, will you
please inform this Honorable Court if there was any unusual
incident that occurred?
A When we delivered a baggage at Marivic because a person
alighted there between Bunkhouse 53 and 54.
Q What happened when you delivered this passenger at this
particular place in Lepanto?
A When we reached the place, a passenger alighted and I
signalled my driver. When we stopped we went out because I
saw an umbrella about a split second and I signalled again the
driver, so the driver stopped and we went down and we saw
Pedrito Cudiamat asking for help because he was lying down.
Q How far away was this certain person, Pedrito Cudiamat,
when you saw him lying down — from the bus how far was
he?
A It is about two to three meters.
Q On what direction of the bus was he found about three
meters from the bus, was it at the front or at the back?
A At the back, sir." 10 (Emphasis supplied.)
The foregoing testimonies show that the place of the accident
and the place where one of the passengers alighted were both
between Bunkhouses 53 and 54, hence the finding of the Court
of Appeals that the bus was at full stop when the victim
boarded the same is correct. They further confirm the
conclusion that the victim fell from the platform of the bus
when it suddenly accelerated forward and was run over by the
rear right tires of the vehicle, as shown by the physical
evidence on where he was thereafter found in relation to the
bus when it stopped. Under such circumstances, it cannot be
said that the deceased was guilty of negligence.
The contention of petitioners that the driver and the conductor
had no knowledge that the victim would ride on the bus, since
the latter had supposedly not manifested his intention to board
the same, does not merit consideration. When the bus is not in
motion there is no necessity for a person who wants to ride the
same to signal his intention to board. A public utility bus, once
it stops, is in effect making a continuous offer to bus riders.
Hence, it becomes the duty of the driver and the conductor,
every time the bus stops, to do no act that would have the
effect of increasing the peril to a passenger while he was
attempting to board the same. The premature acceleration of
the bus in this case was a breach of such duty.
It is the duty of common carriers of passengers, including
common carriers by railroad train, streetcar, or motorbus, to
stop their conveyances a reasonable length of time in order to
afford passengers an opportunity to board and enter, and they
are liable for injuries suffered by boarding passengers
resulting from the sudden starting up or jerking of their
conveyances while they are doing so.
Further, even assuming that the bus was moving, the act of the
victim in boarding the same cannot be considered negligent
under the circumstances. As clearly explained in the testimony
of the aforestated witness for petitioners, Virginia Abalos, the
bus had "just started" and "was still in slow motion" at the
point where the victim had boarded and was on its platform.
It is not negligence per se, or as a matter of law, for one to
attempt to board a train or streetcar which is moving slowly.
14 An ordinarily prudent person would have made the attempt
to board the moving conveyance under the same or similar
circumstances. The fact that passengers board and alight from
a slowly moving vehicle is a matter of common experience
and both the driver and conductor in this case could not have
been unaware of such an ordinary practice.
The victim herein, by stepping and standing on the platform of
the bus, is already considered a passenger and is entitled to all
the rights and protection pertaining to such a contractual
relation. Hence, it has been held that the duty which the carrier
of passengers owes to its patrons extends to persons boarding
the cars as well as to those alighting therefrom.
27
Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary
diligence for the safety of the passengers transported by them,
according to all the circumstances of each case. 16 A common
carrier is bound to carry the passengers safely as far as human
care and foresight can provide, using the utmost diligence of
very cautious persons, with a due regard for all the
circumstances.
It has also been repeatedly held that in an action based on a
contract of carriage, the court need not make an express
finding of fault or negligence on the part of the carrier in order
to hold it responsible to pay the damages sought by the
passenger. By the contract of carriage, the carrier assumes the
express obligation to transport the passenger to his destination
safely and to observe extraordinary diligence with a due
regard for all the circumstances, and any injury that might be
suffered by the passenger is right away attributable to the fault
or negligence of the carrier. This is an exception to the general
rule that negligence must be proved, and it is therefore
incumbent upon the carrier to prove that it has exercised
extraordinary diligence as prescribed in Articles 1733 and
1755 of the Civil Code. 18
Moreover, the circumstances under which the driver and the
conductor failed to bring the gravely injured victim
immediately to the hospital for medical treatment is a patent
and incontrovertible proof of their negligence. It defies
understanding and can even be stigmatized as callous
indifference. The evidence shows that after the accident the
bus could have forthwith turned at Bunk 56 and thence to the
hospital, but its driver instead opted to first proceed to Bunk
70 to allow a passenger to alight and to deliver a refrigerator,
despite the serious condition of the victim. The vacuous reason
given by petitioners that it was the wife of the deceased who
caused the delay was tersely and correctly confuted by
respondent court.
". . . The pretension of the appellees that the delay was due to
the fact that they had to wait for about twenty minutes for
Inocencia Cudiamat to get dressed deserves scant
consideration. It is rather scandalous and deplorable for a wife
whose husband is at the verge of dying to have the luxury of
dressing herself up for about twenty minutes before attending
to help her distressed and helpless husband." 19
Further, it cannot be said that the main intention of petitioner
Lardizabal in going to Bunk 70 was to inform the victim’s
family of the mishap, since it was not said bus driver nor the
conductor but the companion of the victim who informed his
family thereof. 20 In fact, it was only after the refrigerator was
unloaded that one of the passengers thought of sending
somebody to the house of the victim, as shown by the
testimony of Virginia Abalos again, to wit:
"Q Why, what happened to your refrigerator at that particular
time?
A I asked them to bring it down because that is the nearest
place to our house and when I went down and asked
somebody to bring down the refrigerator, I also asked
somebody to call the family of Mr. Cudiamat.
COURT:
Q Why did you ask somebody to call the family of Mr.
Cudiamat?
A Because Mr. Cudiamat met an accident, so I ask somebody
to call for the family of Mr. Cudiamat.
Q But nobody ask(ed) you to call for the family of Mr.
Cudiamat?

A No sir."

With respect to the award of damages, an oversight was,

however, committed by respondent Court of Appeals in
computing the actual damages based on the gross income of
the victim. The rule is that the amount recoverable by the heirs
of a victim of a tort is not the loss of the entire earnings, but
rather the loss of that portion of the earnings which the
beneficiary would have received. In other words, only net
earnings, not gross earnings, are to be considered, that is, the
total of the earnings less expenses necessary in the creation of
such earnings or income and minus living and other incidental
expenses. 22

We are of the opinion that the deductible living and other

expense of the deceased may fairly and reasonably be fixed at
P500.00 a month or P6,000.00 a year. In adjudicating the
actual or compensatory damages, respondent court found that
the deceased was 48 years old, in good health with a
remaining productive life expectancy of 12 years, and then
earning P24,000.00 a year. Using the gross annual income as
the basis, and multiplying the same by 12 years, it accordingly
awarded P288,000. Applying the aforestated rule on
computation based on the net earnings, said award must be, as
it hereby is, rectified and reduced to P216,000.00. However, in
accordance with prevailing jurisprudence, the death indemnity
is hereby increased to P50,000.00. 23

WHEREFORE, subject to the above modifications, the

challenged judgment and resolution of respondent Court of
Appeals are hereby AFFIRMED in all other respects.

28
Article 2178
PETER PAUL PATRICK LUCAS, FATIMA GLADYS
LUCAS, ABBEYGAIL LUCAS AND GILLIAN
LUCAS, Petitioners,
vs.
DR. PROSPERO MA. C. TUAÑO, Respondent.
CHICO-NAZARIO, J.:
In this petition for review on certiorari 1 under Rule 45 of the
Revised Rules of Court, petitioners Peter Paul Patrick Lucas,
Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek
the reversal of the 27 September 2006 Decision 2 and 3 July
2007 Resolution,3 both of the Court of Appeals in CA-G.R.
CV No. 68666, entitled "Peter Paul Patrick Lucas, Fatima
Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero
Ma. C. Tuaño."
In the questioned decision and resolution, the Court of
Appeals affirmed the 14 July 2000 Decision of the Regional
Trial Court (RTC), Branch 150, Makati City, dismissing the
complaint filed by petitioners in a civil case entitled, "Peter
Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas
and Gillian Lucas v. Prospero Ma. C. Tuaño," docketed as
Civil Case No. 92-2482.
From the record of the case, the established factual
antecedents of the present petition are:
Sometime in August 1988, petitioner Peter Paul Patrick Lucas
(Peter) contracted "sore eyes" in his right eye.
On 2 September 1988, complaining of a red right eye and
swollen eyelid, Peter made use of his health care insurance
issued by Philamcare Health Systems, Inc. (Philamcare), for a
possible consult. The Philamcare Coordinator, Dr. Edwin Oca,
M.D., referred Peter to respondent, Dr. Prospero Ma. C.
Tuaño, M.D. (Dr. Tuaño), an ophthalmologist at St. Luke’s
Medical Center, for an eye consult.
Upon consultation with Dr. Tuaño, Peter narrated that it had
been nine (9) days since the problem with his right eye began;
and that he was already taking Maxitrol to address the problem
in his eye. According to Dr. Tuaño, he performed "ocular
routine examination" on Peter’s eyes, wherein: (1) a gross
examination of Peter’s eyes and their surrounding area was
made; (2) Peter’s visual acuity were taken; (3) Peter’s eyes
were palpated to check the intraocular pressure of each; (4) the
motility of Peter’s eyes was observed; and (5) the
ophthalmoscopy4 on Peter’s eyes was used. On that particular
consultation, Dr. Tuaño diagnosed that Peter was suffering
from conjunctivitis5 or "sore eyes." Dr. Tuaño then prescribed
Spersacet-C6 eye drops for Peter and told the latter to return
for follow-up after one week.
As instructed, Peter went back to Dr. Tuaño on 9 September
1988. Upon examination, Dr. Tuaño told Peter that the "sore
eyes" in the latter’s right eye had already cleared up and he
could discontinue the Spersacet-C. However, the same eye
developed Epidemic Kerato Conjunctivitis (EKC),7 a viral
infection. To address the new problem with Peter’s right eye,
Dr. Tuaño prescribed to the former a steroid-based eye drop
called Maxitrol,8 a dosage of six (6) drops per day.9 To recall,
Peter had already been using Maxitrol prior to his consult with
Dr. Tuaño.
29
On 21 September 1988, Peter saw Dr. Tuaño for a follow-up
consultation. After examining both of Peter’s eyes, Dr. Tuaño
instructed the former to taper down10 the dosage of Maxitrol,
because the EKC in his right eye had already resolved. Dr.
Tuaño specifically cautioned Peter that, being a steroid,
Maxitrol had to be withdrawn gradually; otherwise, the EKC
might recur.11
Complaining of feeling as if there was something in his eyes,
Peter returned to Dr. Tuaño for another check-up on 6 October
1988. Dr. Tuaño examined Peter’s eyes and found that the
right eye had once more developed EKC. So, Dr. Tuaño
instructed Peter to resume the use of Maxitrol at six (6) drops
per day.
On his way home, Peter was unable to get a hold of Maxitrol,
as it was out of stock. Consequently, Peter was told by Dr.
Tuano to take, instead, Blephamide12 another steroid-based
medication, but with a lower concentration, as substitute for
the unavailable Maxitrol, to be used three (3) times a day for
five (5) days; two (2) times a day for five (5) days; and then
just once a day.13
Several days later, on 18 October 1988, Peter went to see Dr.
Tuaño at his clinic, alleging severe eye pain, feeling as if his
eyes were about to "pop-out," a headache and blurred vision.
Dr. Tuaño examined Peter’s eyes and discovered that the EKC
was again present in his right eye. As a result, Dr. Tuaño told
Peter to resume the maximum dosage of Blephamide.
Dr. Tuaño saw Peter once more at the former’s clinic on 4
November 1988. Dr. Tuaño’s examination showed that only
the periphery of Peter’s right eye was positive for EKC; hence,
Dr. Tuaño prescribed a lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas (Fatima),
Peter’s spouse, read the accompanying literature of Maxitrol
and found therein the following warning against the prolonged
use of such steroids:
WARNING:
Prolonged use may result in glaucoma, with damage to the
optic nerve, defects in visual acuity and fields of vision, and
posterior, subcapsular cataract formation. Prolonged use may
suppress the host response and thus increase the hazard of
secondary ocular infractions, in those diseases causing
thinning of the cornea or sclera, perforations have been known
to occur with the use of topical steroids. In acute purulent
conditions of the eye, steroids may mask infection or enhance
existing infection. If these products are used for 10 days or
longer, intraocular pressure should be routinely monitored
even though it may be difficult in children and uncooperative
patients.
Employment of steroid medication in the treatment of herpes
simplex requires great caution.
xxxx
ADVERSE REACTIONS:
Adverse reactions have occurred with steroid/anti-infective
combination drugs which can be attributed to the steroid
component, the anti-infective component, or the combination.
Exact incidence figures are not available since no denominator
of treated patients is available.
Reactions occurring most often from the presence of the anti-
infective ingredients are allergic sensitizations. The reactions
due to the steroid component in decreasing order to frequency
are elevation of intra-ocular pressure (IOP) with possible
development of glaucoma, infrequent optic nerve damage;
posterior subcapsular cataract formation; and delayed wound
healing.
Secondary infection: The development of secondary has
occurred after use of combination containing steroids and
antimicrobials. Fungal infections of the correa are particularly
prone to develop coincidentally with long-term applications of
steroid. The possibility of fungal invasion must be considered
in any persistent corneal ulceration where steroid treatment
has been used.
Secondary bacterial ocular infection following suppression of
host responses also occurs.
On 26 November 1988, Peter returned to Dr. Tuaño’s clinic,
complaining of "feeling worse."14 It appeared that the EKC
had spread to the whole of Peter’s right eye yet again. Thus,
Dr. Tuaño instructed Peter to resume the use of Maxitrol.
Petitioners averred that Peter already made mention to Dr.
Tuaño during said visit of the above-quoted warning against
the prolonged use of steroids, but Dr. Tuaño supposedly
brushed aside Peter’s concern as mere paranoia, even assuring
him that the former was taking care of him (Peter).
Petitioners further alleged that after Peter’s 26 November 1988
visit to Dr. Tuaño, Peter continued to suffer pain in his right
eye, which seemed to "progress," with the ache intensifying
and becoming more frequent.
Upon waking in the morning of 13 December 1988, Peter had
no vision in his right eye. Fatima observed that Peter’s right
eye appeared to be bloody and swollen.15 Thus, spouses Peter
and Fatima rushed to the clinic of Dr. Tuaño. Peter reported to
Dr. Tuaño that he had been suffering from constant headache
in the afternoon and blurring of vision.
Upon examination, Dr. Tuaño noted the hardness of Peter’s
right eye. With the use of a tonometer 16 to verify the exact
intraocular pressure17 (IOP) of Peter’s eyes, Dr. Tuaño
discovered that the tension in Peter’s right eye was 39.0 Hg,
while that of his left was 17.0 Hg.18 Since the tension in
Peter’s right eye was way over the normal IOP, which merely
ranged from 10.0 Hg to 21.0 Hg,19 Dr. Tuaño ordered20 him to
immediately discontinue the use of Maxitrol and prescribed to
the latter Diamox21 and Normoglaucon, instead.22 Dr. Tuaño
also required Peter to go for daily check-up in order for the
former to closely monitor the pressure of the latter’s eyes.
On 15 December 1988, the tonometer reading of Peter’s right
eye yielded a high normal level, i.e., 21.0 Hg. Hence, Dr.
Tuaño told Peter to continue using Diamox and
Normoglaucon. But upon Peter’s complaint of "stomach pains
and tingling sensation in his fingers," 23 Dr. Tuaño discontinued
Peter’s use of Diamox.24
Peter went to see another ophthalmologist, Dr. Ramon T.
Batungbacal (Dr. Batungbacal), on 21 December 1988, who
allegedly conducted a complete ophthalmological examination
of Peter’s eyes. Dr. Batungbacal’s diagnosis was
Glaucoma25 O.D.26 He recommended Laser
Trabeculoplasty27 for Peter’s right eye.
When Peter returned to Dr. Tuaño on 23 December 1988,28 the
tonometer measured the IOP of Peter’s right eye to be 41.0
30
Hg,29 again, way above normal. Dr. Tuaño addressed the
problem by advising Peter to resume taking Diamox along
with Normoglaucon.
During the Christmas holidays, Peter supposedly stayed in bed
most of the time and was not able to celebrate the season with
his family because of the debilitating effects of Diamox.30
On 28 December 1988, during one of Peter’s regular follow-
ups with Dr. Tuaño, the doctor conducted another ocular
routine examination of Peter’s eyes. Dr. Tuaño noted the
recurrence of EKC in Peter’s right eye. Considering, however,
that the IOP of Peter’s right eye was still quite high at 41.0
Hg, Dr. Tuaño was at a loss as to how to balance the treatment
of Peter’s EKC vis-à-vis the presence of glaucoma in the same
eye. Dr. Tuaño, thus, referred Peter to Dr. Manuel B. Agulto,
M.D. (Dr. Agulto), another ophthalmologist specializing in the
treatment of glaucoma.31 Dr. Tuaño’s letter of referral to Dr.
Agulto stated that:
Referring to you Mr. Peter Lucas for evaluation & possible
management. I initially saw him Sept. 2, 1988 because of
conjunctivitis. The latter resolved and he developed EKC for
which I gave Maxitrol. The EKC was recurrent after stopping
steroid drops. Around 1 month of steroid treatment, he noted
blurring of vision & pain on the R. however, I continued the
steroids for the sake of the EKC. A month ago, I noted iris
atrophy, so I took the IOP and it was definitely elevated. I
stopped the steroids immediately and has (sic) been treating
him medically.
It seems that the IOP can be controlled only with oral Diamox,
and at the moment, the EKC has recurred and I’m in a fix
whether to resume the steroid or not considering that the IOP
is still uncontrolled.32
On 29 December 1988, Peter went to see Dr. Agulto at the
latter’s clinic. Several tests were conducted thereat to evaluate
the extent of Peter’s condition. Dr. Agulto wrote Dr. Tuaño a
letter containing the following findings and recommendations:
Thanks for sending Peter Lucas. On examination conducted
vision was 20/25 R and 20/20L. Tension curve 19 R and 15 L
at 1210 H while on Normoglaucon BID OD & Diamox ½ tab
every 6h po.
Slit lamp evaluation33 disclosed subepithelial corneal defect
outer OD. There was circumferential peripheral iris atrophy,
OD. The lenses were clear.
Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L
with temporal slope R>L.
Zeiss gonioscopy35 revealed basically open angles both eyes
with occasional PAS,36 OD.
Rolly, I feel that Peter Lucas has really sustained significant
glaucoma damage. I suggest that we do a baseline visual fields
and push medication to lowest possible levels. If I may
suggest further, I think we should prescribe
Timolol37 BID38 OD in lieu of Normoglaucon. If the IOP is
still inadequate, we may try D’epifrin39 BID OD (despite low
PAS). I’m in favor of retaining Diamox or similar CAI.40
If fields show further loss in say – 3 mos. then we should
consider trabeculoplasty.
I trust that this approach will prove reasonable for you and
Peter.41
Peter went to see Dr. Tuaño on 31 December 1988, bearing
Dr. Agulto’s aforementioned letter. Though Peter’s right and
left eyes then had normal IOP of 21.0 Hg and 17.0 Hg,
respectively, Dr. Tuaño still gave him a prescription for
Timolol B.I.D. so Peter could immediately start using said
medication. Regrettably, Timolol B.I.D. was out of stock, so
Dr. Tuaño instructed Peter to just continue using Diamox and
Normoglaucon in the meantime.
Just two days later, on 2 January 1989, the IOP of Peter’s right
eye remained elevated at 21.0 Hg,42 as he had been without
Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuaño conducted a visual field
study43 of Peter’s eyes, which revealed that the latter had
tubular vision44 in his right eye, while that of his left eye
remained normal. Dr. Tuaño directed Peter to religiously use
the Diamox and Normoglaucon, as the tension of the latter’s
right eye went up even further to 41.0 Hg in just a matter of
two (2) days, in the meantime that Timolol B.I.D. and
D’epifrin were still not available in the market. Again, Dr.
Tuaño advised Peter to come for regular check-up so his IOP
could be monitored.
Obediently, Peter went to see Dr. Tuaño on the 7th, 13th, 16th
and 20th of January 1989 for check-up and IOP monitoring.
In the interregnum, however, Peter was prodded by his friends
to seek a second medical opinion. On 13 January 1989, Peter
consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an
ophthalmologist, who, in turn, referred Peter to Dr. Mario V.
Aquino, M.D. (Dr. Aquino), another ophthalmologist who
specializes in the treatment of glaucoma and who could
undertake the long term care of Peter’s eyes.
According to petitioners, after Dr. Aquino conducted an
extensive evaluation of Peter’s eyes, the said doctor informed
Peter that his eyes were relatively normal, though the right one
sometimes manifested maximum borderline tension. Dr.
Aquino also confirmed Dr. Tuaño’s diagnosis of tubular vision
in Peter’s right eye. Petitioners claimed that Dr. Aquino
essentially told Peter that the latter’s condition would require
lifetime medication and follow-ups.
In May 1990 and June 1991, Peter underwent two (2)
procedures of laser trabeculoplasty to attempt to control the
high IOP of his right eye.
Claiming to have steroid-induced glaucoma45 and blaming Dr.
Tuaño for the same, Peter, joined by: (1) Fatima, his spouse46;
(2) Abbeygail, his natural child47; and (3) Gillian, his
legitimate child48 with Fatima, instituted on 1 September 1992,
a civil complaint for damages against Dr. Tuaño, before the
RTC, Branch 150, Quezon City. The case was docketed as
Civil Case No. 92-2482.
In their Complaint, petitioners specifically averred that as the
"direct consequence of [Peter’s] prolonged use of Maxitrol,
[he] suffered from steroid induced glaucoma which caused the
elevation of his intra-ocular pressure. The elevation of the
intra-ocular pressure of [Peter’s right eye] caused the
impairment of his vision which impairment is not curable and
may even lead to total blindness."49
Petitioners additionally alleged that the visual impairment of
Peter’s right eye caused him and his family so much grief.
31
Because of his present condition, Peter now needed close
medical supervision forever; he had already undergone two (2)
laser surgeries, with the possibility that more surgeries were
still needed in the future; his career in sports casting had
suffered and was continuing to suffer;50 his anticipated income
had been greatly reduced as a result of his "limited" capacity;
he continually suffered from "headaches, nausea, dizziness,
heart palpitations, rashes, chronic rhinitis, sinusitis,"51 etc.;
Peter’s relationships with his spouse and children continued to
be strained, as his condition made him highly irritable and
sensitive; his mobility and social life had suffered; his spouse,
Fatima, became the breadwinner in the family;52 and his two
children had been deprived of the opportunity for a better life
and educational prospects. Collectively, petitioners lived in
constant fear of Peter becoming completely blind.53
In the end, petitioners sought pecuniary award for their
supposed pain and suffering, which were ultimately brought
about by Dr. Tuaño’s grossly negligent conduct in prescribing
to Peter the medicine Maxitrol for a period of three (3)
months, without monitoring Peter’s IOP, as required in cases
of prolonged use of said medicine, and notwithstanding
Peter’s constant complaint of intense eye pain while using the
same. Petitioners particularly prayed that Dr. Tuaño be
adjudged liable for the following amounts:
1. The amount of ₱2,000,000.00 to plaintiff Peter
Lucas as and by way of compensation for his
impaired vision.
2. The amount of ₱300,000.00 to spouses Lucas as
and by way of actual damages plus such additional
amounts that may be proven during trial.
3. The amount of ₱1,000,000.00 as and by way of
moral damages.
4. The amount of ₱500,000.00 as and by way of
exemplary damages.
5. The amount of ₱200,000.00 as and by way of
attorney’s fees plus costs of suit.54
In rebutting petitioners’ complaint, Dr. Tuaño asserted that the
"treatment made by [him] more than three years ago has no
causal connection to [Peter’s] present glaucoma or
condition."55 Dr. Tuaño explained that "[d]rug-induced
glaucoma is temporary and curable, steroids have the side
effect of increasing intraocular pressure. Steroids are
prescribed to treat Epidemic Kerato Conjunctivitis or EKC
which is an infiltration of the cornea as a result of
conjunctivitis or sore eyes."56 Dr. Tuaño also clarified that (1)
"[c]ontrary to [petitioners’] fallacious claim, [he] did NOT
continually prescribe the drug Maxitrol which contained
steroids for any prolonged period"57 and "[t]he truth was the
Maxitrol was discontinued x x x as soon as EKC disappeared
and was resumed only when EKC reappeared"58; (2) the entire
time he was treating Peter, he "continually monitored the
intraocular pressure of [Peter’s eyes] by palpating the eyes and
by putting pressure on the eyeballs," and no hardening of the
same could be detected, which meant that there was no
increase in the tension or IOP, a possible side reaction to the
use of steroid medications; and (3) it was only on 13
December 1988 that Peter complained of a headache and
blurred vision in his right eye, and upon measuring the IOP of
said eye, it was determined for the first time that the IOP of
the right eye had an elevated value.
But granting for the sake of argument that the "steroid
treatment of [Peter’s] EKC caused the steroid induced
glaucoma,"59 Dr. Tuaño argued that:
[S]uch condition, i.e., elevated intraocular pressure, is
temporary. As soon as the intake of steroids is discontinued,
the intraocular pressure automatically is reduced. Thus,
[Peter’s] glaucoma can only be due to other causes not
attributable to steroids, certainly not attributable to [his]
treatment of more than three years ago x x x.
From a medical point of view, as revealed by more current
examination of [Peter], the latter’s glaucoma can only be long
standing glaucoma, open angle glaucoma, because of the large
C:D ratio. The steroids provoked the latest glaucoma to be
revealed earlier as [Peter] remained asymptomatic prior to
steroid application. Hence, the steroid treatment was in fact
beneficial to [Peter] as it revealed the incipient open angle
glaucoma of [Peter] to allow earlier treatment of the same.60
In a Decision dated 14 July 2000, the RTC dismissed Civil
Case No. 92-2482 "for insufficiency of evidence."61 The
decretal part of said Decision reads:
Wherefore, premises considered, the instant complaint is
dismissed for insufficiency of evidence. The counter claim
(sic) is likewise dismissed in the absence of bad faith or
malice on the part of plaintiff in filing the suit.62
The RTC opined that petitioners failed to prove by
preponderance of evidence that Dr. Tuaño was negligent in his
treatment of Peter’s condition. In particular, the record of the
case was bereft of any evidence to establish that the steroid
medication and its dosage, as prescribed by Dr. Tuaño, caused
Peter’s glaucoma. The trial court reasoned that the "recognized
standards of the medical community has not been established
in this case, much less has causation been established to render
[Tuaño] liable."63 According to the RTC:
[Petitioners] failed to establish the duty required of a medical
practitioner against which Peter Paul’s treatment by defendant
can be compared with. They did not present any medical
expert or even a medical doctor to convince and expertly
explain to the court the established norm or duty required of a
physician treating a patient, or whether the non taking (sic) by
Dr. Tuaño of Peter Paul’s pressure a deviation from the norm
or his non-discovery of the glaucoma in the course of
treatment constitutes negligence. It is important and
indispensable to establish such a standard because once it is
established, a medical practitioner who departed thereof
breaches his duty and commits negligence rendering him
liable. Without such testimony or enlightenment from an
expert, the court is at a loss as to what is then the established
norm of duty of a physician against which defendant’s conduct
can be compared with to determine negligence.64
The RTC added that in the absence of "any medical evidence
to the contrary, this court cannot accept [petitioners’] claim
that the use of steroid is the proximate cause of the damage
sustained by [Peter’s] eye."65
Correspondingly, the RTC accepted Dr. Tuaño’s medical
opinion that "Peter Paul must have been suffering from normal
tension glaucoma, meaning, optic nerve damage was
happening but no elevation of the eye pressure is manifested,
that the steroid treatment actually unmasked the condition that
resulted in the earlier treatment of the glaucoma. There is
nothing in the record to contradict such testimony. In fact,
plaintiff’s Exhibit ‘S’ even tends to support them."
32
Undaunted, petitioners appealed the foregoing RTC decision
to the Court of Appeals. Their appeal was docketed as CA-
G.R. CV No. 68666.
On 27 September 2006, the Court of Appeals rendered a
decision in CA-G.R. CV No. 68666 denying petitioners’
recourse and affirming the appealed RTC Decision. The fallo
of the judgment of the appellate court states:
WHEREFORE, the Decision appealed from is AFFIRMED.66
The Court of Appeals faulted petitioners because they –
[D]id not present any medical expert to testify that Dr.
Tuano’s prescription of Maxitrol and Blephamide for the
treatment of EKC on Peter’s right eye was not proper and that
his palpation of Peter’s right eye was not enough to detect
adverse reaction to steroid. Peter testified that Dr. Manuel
Agulto told him that he should not have used steroid for the
treatment of EKC or that he should have used it only for two
(2) weeks, as EKC is only a viral infection which will cure by
itself. However, Dr. Agulto was not presented by [petitioners]
as a witness to confirm what he allegedly told Peter and,
therefore, the latter’s testimony is hearsay. Under Rule 130,
Section 36 of the Rules of Court, a witness can testify only to
those facts which he knows of his own personal knowledge, x
x x. Familiar and fundamental is the rule that hearsay
testimony is inadmissible as evidence.67
Like the RTC, the Court of Appeals gave great weight to Dr.
Tuaño’s medical judgment, specifically the latter’s
explanation that:
[W]hen a doctor sees a patient, he cannot determine whether
or not the latter would react adversely to the use of steroids,
that it was only on December 13, 1989, when Peter
complained for the first time of headache and blurred vision
that he observed that the pressure of the eye of Peter was
elevated, and it was only then that he suspected that Peter
belongs to the 5% of the population who reacts adversely to
steroids.68
Petitioners’ Motion for Reconsideration was denied by the
Court of Appeals in a Resolution dated 3 July 2007.
Hence, this Petition for Review on Certiorari under Rule 45 of
the Revised Rules of Court premised on the following
assignment of errors:
I.
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN AFFIRMING THE DECISION
OF THE TRIAL COURT DISMISSING THE
PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST
THE RESPONDENT ON THE GROUND OF
INSUFFICIENCY OF EVIDENCE;
II.
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN DISMISSING THE
PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST
THE RESPONDENT ON THE GROUND THAT NO
MEDICAL EXPERT WAS PRESENTED BY THE
PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL
NEGLIGENCE AGAINST THE RESPONDENT; AND
 III.
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN NOT FINDING THE
RESPONDENT LIABLE TO THE PETITIONERS’ FOR
ACTUAL, MORAL AND EXEMPLARY DAMAGES,
ASIDE FROM ATTORNEY’S FEES, COSTS OF SUIT, AS
A RESULT OF HIS GROSS NEGLIGENCE.69
A reading of the afore-quoted reversible errors supposedly
committed by the Court of Appeals in its Decision and
Resolution would reveal that petitioners are fundamentally
assailing the finding of the Court of Appeals that the evidence
on record is insufficient to establish petitioners’ entitlement to
any kind of damage. Therefore, it could be said that the sole
issue for our resolution in the Petition at bar is whether the
Court of Appeals committed reversible error in affirming the
judgment of the RTC that petitioners failed to prove, by
preponderance of evidence, their claim for damages against
Dr. Tuaño.
Evidently, said issue constitutes a question of fact, as we are
asked to revisit anew the factual findings of the Court of
Appeals, as well as of the RTC. In effect, petitioners would
have us sift through the evidence on record and pass upon
whether there is sufficient basis to establish Dr. Tuaño’s
negligence in his treatment of Peter’s eye condition. This
question clearly involves a factual inquiry, the determination
of which is not within the ambit of this Court’s power of
review under Rule 45 of the 1997 Rules Civil Procedure, as
amended.70
Elementary is the principle that this Court is not a trier of
facts; only errors of law are generally reviewed in petitions for
review on certiorari criticizing decisions of the Court of
Appeals. Questions of fact are not entertained.71
Nonetheless, the general rule that only questions of law may
be raised on appeal in a petition for review under Rule 45 of
the Rules of Court admits of certain exceptions, including the
circumstance when the finding of fact of the Court of Appeals
is premised on the supposed absence of evidence, but is
contradicted by the evidence on record. Although petitioners
may not explicitly invoke said exception, it may be gleaned
from their allegations and arguments in the instant
Petition.1avvphi1.zw+
Petitioners contend, that "[c]ontrary to the findings of the
Honorable Court of Appeals, [they] were more than able to
establish that: Dr. Tuaño ignored the standard medical
procedure for ophthalmologists, administered medication with
recklessness, and exhibited an absence of competence and
skills expected from him."72 Petitioners reject the necessity of
presenting expert and/or medical testimony to establish (1) the
standard of care respecting the treatment of the disorder
affecting Peter’s eye; and (2) whether or not negligence
attended Dr. Tuaño’s treatment of Peter, because, in their
words –
That Dr. Tuaño was grossly negligent in the treatment of
Peter’s simple eye ailment is a simple case of cause and effect.
With mere documentary evidence and based on the facts
presented by the petitioners, respondent can readily be held
liable for damages even without any expert testimony. In any
case, however, and contrary to the finding of the trial court
and the Court of Appeals, there was a medical expert
presented by the petitioner showing the recklessness
committed by [Dr. Tuaño] – Dr. Tuaño himself. [Emphasis
supplied.]
33
They insist that Dr. Tuaño himself gave sufficient evidence to
establish his gross negligence that ultimately caused the
impairment of the vision of Peter’s right eye, 73 i.e., that
"[d]espite [Dr. Tuaño’s] knowledge that 5% of the population
reacts adversely to Maxitrol, [he] had no qualms whatsoever in
prescribing said steroid to Peter without first determining
whether or not the (sic) Peter belongs to the 5%."74
We are not convinced. The judgments of both the Court of
Appeals and the RTC are in accord with the evidence on
record, and we are accordingly bound by the findings of fact
made therein.
Petitioners’ position, in sum, is that Peter’s glaucoma is the
direct result of Dr. Tuaño’s negligence in his improper
administration of the drug Maxitrol; "thus, [the latter] should
be liable for all the damages suffered and to be suffered by
[petitioners]."75 Clearly, the present controversy is a classic
illustration of a medical negligence case against a physician
based on the latter’s professional negligence. In this type of
suit, the patient or his heirs, in order to prevail, is required to
prove by preponderance of evidence that the physician failed
to exercise that degree of skill, care, and learning possessed by
other persons in the same profession; and that as a proximate
result of such failure, the patient or his heirs suffered damages.
For lack of a specific law geared towards the type of
negligence committed by members of the medical profession,
such claim for damages is almost always anchored on the
alleged violation of Article 2176 of the Civil Code, which
states that:
ART. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
In medical negligence cases, also called medical malpractice
suits, there exist a physician-patient relationship between the
doctor and the victim. But just like any other proceeding for
damages, four essential (4) elements i.e., (1) duty; (2) breach;
(3) injury; and (4) proximate causation, 76 must be established
by the plaintiff/s. All the four (4) elements must co-exist in
order to find the physician negligent and, thus, liable for
damages.
When a patient engages the services of a physician, a
physician-patient relationship is generated. And in accepting a
case, the physician, for all intents and purposes, represents that
he has the needed training and skill possessed by physicians
and surgeons practicing in the same field; and that he will
employ such training, care, and skill in the treatment of the
patient.77 Thus, in treating his patient, a physician is under
a duty to [the former] to exercise that degree of care, skill and
diligence which physicians in the same general neighborhood
and in the same general line of practice ordinarily possess and
exercise in like cases.78 Stated otherwise, the physician has the
duty to use at least the same level of care that any other
reasonably competent physician would use to treat the
condition under similar circumstances.
This standard level of care, skill and diligence is a matter best
addressed by expert medical testimony, because the standard
of care in a medical malpractice case is a matter peculiarly
within the knowledge of experts in the field.79
There is breach of duty of care, skill and diligence, or the
improper performance of such duty, by the attending physician
when the patient is injured in body or in health [and this]
constitutes the actionable malpractice.80 Proof of such breach
must likewise rest upon the testimony of an expert witness that
the treatment accorded to the patient failed to meet the
standard level of care, skill and diligence which physicians in
the same general neighborhood and in the same general line of
practice ordinarily possess and exercise in like cases.
Even so, proof of breach of duty on the part of the attending
physician is insufficient, for there must be a causal connection
between said breach and the resulting injury sustained by the
patient. Put in another way, in order that there may be a
recovery for an injury, it must be shown that the "injury for
which recovery is sought must be the legitimate consequence
of the wrong done; the connection between the negligence and
the injury must be a direct and natural sequence of events,
unbroken by intervening efficient causes";81 that is, the
negligence must be the proximate cause of the injury. And the
proximate cause of an injury is that cause, which, in the
natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the
result would not have occurred.82
Just as with the elements of duty and breach of the same, in
order to establish the proximate cause [of the injury] by a
preponderance of the evidence in a medical malpractice
action, [the patient] must similarly use expert testimony,
because the question of whether the alleged professional
negligence caused [the patient’s] injury is generally one for
specialized expert knowledge beyond the ken of the average
layperson; using the specialized knowledge and training of his
field, the expert’s role is to present to the [court] a realistic
assessment of the likelihood that [the physician’s] alleged
negligence caused [the patient’s] injury.83
From the foregoing, it is apparent that medical negligence
cases are best proved by opinions of expert witnesses
belonging in the same general neighborhood and in the same
general line of practice as defendant physician or surgeon. The
deference of courts to the expert opinion of qualified
physicians [or surgeons] stems from the former’s realization
that the latter possess unusual technical skills which laymen in
most instances are incapable of intelligently
evaluating;84 hence, the indispensability of expert testimonies.
In the case at bar, there is no question that a physician-patient
relationship developed between Dr. Tuaño and Peter when
Peter went to see the doctor on 2 September 1988, seeking a
consult for the treatment of his sore eyes. Admittedly, Dr.
Tuaño, an ophthalmologist, prescribed Maxitrol when Peter
developed and had recurrent EKC. Maxitrol or
neomycin/polymyxin B sulfates/dexamethasone ophthalmic
ointment is a multiple-dose anti-infective steroid combination
in sterile form for topical application.85 It is the drug which
petitioners claim to have caused Peter’s glaucoma.
However, as correctly pointed out by the Court of Appeals,
"[t]he onus probandi was on the patient to establish before the
trial court that the physicians ignored standard medical
procedure, prescribed and administered medication with
recklessness and exhibited an absence of the competence and
skills expected of general practitioners similarly
situated."86 Unfortunately, in this case, there was absolute
failure on the part of petitioners to present any expert
testimony to establish: (1) the standard of care to be
implemented by competent physicians in treating the same
condition as Peter’s under similar circumstances; (2) that, in
his treatment of Peter, Dr. Tuaño failed in his duty to exercise
said standard of care that any other competent physician
would use in treating the same condition as Peter’s under
34
similar circumstances; and (3) that the injury or damage to
Peter’s right eye, i.e., his glaucoma, was the result of his use
of Maxitrol, as prescribed by Dr. Tuaño. Petitioners’ failure to
prove the first element alone is already fatal to their cause.
Petitioners maintain that Dr. Tuaño failed to follow in Peter’s
case the required procedure for the prolonged use of Maxitrol.
But what is actually the required procedure in situations such
as in the case at bar? To be precise, what is the standard
operating procedure when ophthalmologists prescribe steroid
medications which, admittedly, carry some modicum of risk?
Absent a definitive standard of care or diligence required of
Dr. Tuaño under the circumstances, we have no means to
determine whether he was able to comply with the same in his
diagnosis and treatment of Peter. This Court has no yardstick
upon which to evaluate or weigh the attendant facts of this
case to be able to state with confidence that the acts
complained of, indeed, constituted negligence and, thus,
should be the subject of pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuaño
should have determined first whether Peter was a "steroid
responder."87 Yet again, petitioners did not present any
convincing proof that such determination is actually part of the
standard operating procedure which ophthalmologists should
unerringly follow prior to prescribing steroid medications.
In contrast, Dr. Tuaño was able to clearly explain that what is
only required of ophthalmologists, in cases such as Peter’s, is
the conduct of standard tests/procedures known as "ocular
routine examination,"88 composed of five (5) tests/procedures
– specifically, gross examination of the eyes and the
surrounding area; taking of the visual acuity of the patient;
checking the intraocular pressure of the patient; checking the
motility of the eyes; and using ophthalmoscopy on the
patient’s eye – and he did all those tests/procedures every time
Peter went to see him for follow-up consultation and/or check-
up.
We cannot but agree with Dr. Tuaño’s assertion that when a
doctor sees a patient, he cannot determine immediately
whether the latter would react adversely to the use of steroids;
all the doctor can do is map out a course of treatment
recognized as correct by the standards of the medical
profession. It must be remembered that a physician is not an
insurer of the good result of treatment. The mere fact that the
patient does not get well or that a bad result occurs does not in
itself indicate failure to exercise due care.89 The result is not
determinative of the performance [of the physician] and he is
not required to be infallible.90
Moreover, that Dr. Tuaño saw it fit to prescribe Maxitrol to
Peter was justified by the fact that the latter was already using
the same medication when he first came to see Dr. Tuaño on 2
September 1988 and had exhibited no previous untoward
reaction to that particular drug. 91
Also, Dr. Tuaño categorically denied petitioners’ claim that he
never monitored the tension of Peter’s eyes while the latter
was on Maxitrol. Dr. Tuaño testified that he palpated Peter’s
eyes every time the latter came for a check-up as part of the
doctor’s ocular routine examination, a fact which petitioners
failed to rebut. Dr. Tuaño’s regular conduct of examinations
and tests to ascertain the state of Peter’s eyes negate the very
basis of petitioners’ complaint for damages. As to whether Dr.
Tuaño’s actuations conformed to the standard of care and
diligence required in like circumstances, it is presumed to have
so conformed in the absence of evidence to the contrary.
Even if we are to assume that Dr. Tuaño committed negligent
acts in his treatment of Peter’s condition, the causal
connection between Dr. Tuaño’s supposed negligence and
Peter’s injury still needed to be established. The critical and
clinching factor in a medical negligence case is proof of the
causal connection between the negligence which the evidence
established and the plaintiff’s injuries.92 The plaintiff must
plead and prove not only that he has been injured and
defendant has been at fault, but also that the defendant’s fault
caused the injury. A verdict in a malpractice action cannot be
based on speculation or conjecture. Causation must be proven
within a reasonable medical probability based upon competent
expert testimony.93
The causation between the physician’s negligence and the
patient’s injury may only be established by the presentation of
proof that Peter’s glaucoma would not have occurred but for
Dr. Tuaño’s supposed negligent conduct. Once more,
petitioners failed in this regard.
Dr. Tuaño does not deny that the use of Maxitrol involves the
risk of increasing a patient’s IOP. In fact, this was the reason
why he made it a point to palpate Peter’s eyes every time the
latter went to see him -- so he could monitor the tension of
Peter’s eyes. But to say that said medication conclusively
caused Peter’s glaucoma is purely speculative. Peter was
diagnosed with open-angle glaucoma. This kind of glaucoma
is characterized by an almost complete absence of symptoms
and a chronic, insidious course.94 In open-angle glaucoma,
halos around lights and blurring of vision do not occur unless
there has been a sudden increase in the intraocular
vision.95 Visual acuity remains good until late in the course of
the disease.96 Hence, Dr. Tuaño claims that Peter’s glaucoma
"can only be long standing x x x because of the large
C:D97 ratio," and that "[t]he steroids provoked the latest
glaucoma to be revealed earlier" was a blessing in disguise "as
[Peter] remained asymptomatic prior to steroid application."
Who between petitioners and Dr. Tuaño is in a better position
to determine and evaluate the necessity of using Maxitrol to
cure Peter’s EKC vis-à-vis the attendant risks of using the
same?
That Dr. Tuaño has the necessary training and skill to practice
his chosen field is beyond cavil. Petitioners do not dispute Dr.
Tuaño’s qualifications – that he has been a physician for close
to a decade and a half at the time Peter first came to see him;
that he has had various medical training; that he has authored
numerous papers in the field of ophthalmology, here and
abroad; that he is a Diplomate of the Philippine Board of
Ophthalmology; that he occupies various teaching posts (at the
time of the filing of the present complaint, he was the Chair of
the Department of Ophthalmology and an Associate Professor
at the University of the Philippines-Philippine General
Hospital and St. Luke’s Medical Center, respectively); and
that he held an assortment of positions in numerous medical
organizations like the Philippine Medical Association,
Philippine Academy of Ophthalmology, Philippine Board of
Ophthalmology, Philippine Society of Ophthalmic Plastic and
Reconstructive Surgery, Philippine Journal of Ophthalmology,
Association of Philippine Ophthalmology Professors, et al.
It must be remembered that when the qualifications of a
physician are admitted, as in the instant case, there is an
inevitable presumption that in proper cases, he takes the
necessary precaution and employs the best of his knowledge
and skill in attending to his clients, unless the contrary is
sufficiently established.98 In making the judgment call of
treating Peter’s EKC with Maxitrol, Dr. Tuaño took the
necessary precaution by palpating Peter’s eyes to monitor their
35
IOP every time the latter went for a check-up, and he
employed the best of his knowledge and skill earned from
years of training and practice.
In contrast, without supporting expert medical opinions,
petitioners’ bare assertions of negligence on Dr. Tuaño’s part,
which resulted in Peter’s glaucoma, deserve scant credit.
Our disposition of the present controversy might have been
vastly different had petitioners presented a medical expert to
establish their theory respecting Dr. Tuaño’s so-called
negligence. In fact, the record of the case reveals that
petitioners’ counsel recognized the necessity of presenting
such evidence. Petitioners even gave an undertaking to the
RTC judge that Dr. Agulto or Dr. Aquino would be presented.
Alas, no follow-through on said undertaking was
made.1avvphi1
The plaintiff in a civil case has the burden of proof as he
alleges the affirmative of the issue. However, in the course of
trial in a civil case, once plaintiff makes out a prima facie case
in his favor, the duty or the burden of evidence shifts to
defendant to controvert plaintiff’s prima facie case; otherwise,
a verdict must be returned in favor of plaintiff.99 The party
having the burden of proof must establish his case by a
preponderance of evidence.100 The concept of "preponderance
of evidence" refers to evidence which is of greater weight or
more convincing than that which is offered in opposition to
it;101 in the last analysis, it means probability of truth. It is
evidence which is more convincing to the court as worthy of
belief than that which is offered in opposition thereto. 102 Rule
133, Section 1 of the Revised Rules of Court provides the
guidelines for determining preponderance of evidence, thus:
In civil cases, the party having the burden of proof must
establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of
evidence on the issues involved lies the court may consider all
the facts and circumstances of the case, the witnesses’ manner
of testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of
the facts to which they testify, the probability or improbability
of their testimony, their interest or want of interest, and also
their personal credibility so far as the same legitimately appear
upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with
the greater number.
Herein, the burden of proof was clearly upon petitioners, as
plaintiffs in the lower court, to establish their case by a
preponderance of evidence showing a reasonable connection
between Dr. Tuaño’s alleged breach of duty and the damage
sustained by Peter’s right eye. This, they did not do. In reality,
petitioners’ complaint for damages is merely anchored on a
statement in the literature of Maxitrol identifying the risks of
its use, and the purported comment of Dr. Agulto – another
doctor not presented as witness before the RTC – concerning
the prolonged use of Maxitrol for the treatment of EKC.
It seems basic that what constitutes proper medical treatment
is a medical question that should have been presented to
experts. If no standard is established through expert medical
witnesses, then courts have no standard by which to gauge the
basic issue of breach thereof by the physician or surgeon. The
RTC and Court of Appeals, and even this Court, could not be
expected to determine on its own what medical technique
should have been utilized for a certain disease or injury.
Absent expert medical opinion, the courts would be
dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuaño liable for any
medical negligence or malpractice where there is no evidence,
in the nature of expert testimony, to establish that in treating
Peter, Dr. Tuaño failed to exercise reasonable care, diligence
and skill generally required in medical practice. Dr. Tuaño’s
testimony, that his treatment of Peter conformed in all respects
to standard medical practice in this locality, stands unrefuted.
Consequently, the RTC and the Court of Appeals correctly
held that they had no basis at all to rule that petitioners were
deserving of the various damages prayed for in their
Complaint.
WHEREFORE, premises considered, the instant petition is
DENIED for lack of merit. The assailed Decision dated 27
September 2006 and Resolution dated 3 July 2007, both of the
Court of Appeals in CA-G.R. CV No. 68666, are hereby
AFFIRMED. No cost.
SO ORDERED.
EDGAR O. PEREA, Complainant,
vs.
ATTY. RUBEN L. ALMADRO, Respondent.
AUSTRIA-MARTINEZ, J.:
This refers to an offshoot incident in the disbarment case1 filed
by Edgar O. Perea against Atty. Ruben L. Almadro.
Atty. Ruben L. Almadro engaged the services of the Sua &
Alambra Law Offices to represent him in this disbarment case.
In their Entry of Appearance with Motion/Manifestation dated
November 20, 2000, signed by Atty. Alan Andres B. Alambra,
he stated that respondent has yet to receive a copy of the
complaint and thus prayed that a copy of the said complaint be
furnished him so he can file an answer. Complainant Edgar O.
Perea filed a Manifestation dated November 29, 2000,
asseverating that he had furnished respondent copies of the
complaint through facsimile machine.
In the Resolution dated March 20, 2003, the Court sustained
the Integrated Bar of the Philippines’ order requiring Atty.
Kenton Sua and Atty. Alambra to show cause for their
deliberate falsehood and misrepresentation in the preparation
of the answer for respondent, and accordingly remanded the
case to the IBP for further action on the contempt proceedings.
Before the Court now is the Resolution No. XVII-2005-162
dated December 17, 2005 of the Board of Governors of the
IBP finding that Atty. Sua and Atty. Alambra were less than
honest and forthright in their representation before the Court
and imposing a fine of P2,000.00 each with warning that any
further unprofessional conduct will be dealt with more
severely.
Let it be emphasized that the subject contumacious act was
committed before the Court; thus, the following disposition.
In their Explanation dated September 10, 2002,2 Atty. Sua and
Atty. Alambra avered that: Atty. Sua, a partner in the Sua &
Alambra Law Offices, was not and is not, the partner assigned
to handle the case for Atty. Almadro and had no participation
whatsoever in the case other than to notarize the Affidavit of
Service for Atty. Almadro’s Answer; Atty. Alambra acted in
good faith upon the express instructions and advise of Atty.
Almadro that he never received a copy of the complaint up to
the time that he referred the case to their Law Office. To
36
bolster their claim of good faith, they attached a photocopy of
the letter of Atty. Almadro dated November 9, 20003 stating
that he had not actually received a copy of the complaint of
Mr. Perea.
The Court is not fully convinced.
A perusal of the aforesaid letter of Atty. Almadro reveals that
indeed stated that he had not received a copy of the complaint.
However, in Atty. Almadro’s three Motions for Extension of
Time to Comment4 which he filed before the Court before
engaging the services of the law office, there was no mention
that he had not received a copy of the complaint. In fact, in the
second paragraph of the second motion for extension, Atty.
Almadro stated that:
He is in the process of reviewing an initial draft of said
comment and will need said period of ten (10) days to
complete and finalize the draft.
Said statement shows very clearly that Atty. Almadro has
received a copy of the complaint. For how can he prepare a
draft of his comment if it were not so? This should have
alerted Atty. Alambra to verify the veracity of the claim of
Atty. Almadro. Atty. Alambra should not have relied on the
statement given by Atty. Almadro. Their being classmates in
the law school is not a reason to be less cautious in his
dealings with the Court. He is an officer of the court, and as
such, he owes candor, fairness and good faith to the Court.5 As
explicitly stated in Rule 10.01, Canon 10 of the Code of
Professional Responsibility, to wit:
A lawyer shall not do any falsehood, nor consent to the doing
of any in Court; nor shall he misled, or allow the Court to be
misled by any artifice.1avvphil.net
Considering the admission made by Atty. Alambra regarding
the non-participation of Atty. Sua, the latter should be
absolved of any liability.
WHEREFORE, finding Atty. Alan Andres B. Alambra guilty
of contempt of Court and neglect of his duties as a lawyer as
embodied in Canon 10, Rule 10.01 of the Code of Professional
Responsibility, he is FINED in the amount of Two Thousand
Pesos (P2,000.00) with a WARNING that any similar act will
be dealt with more severely. Atty. Kenton Sua is absolved of
any liability.
SO ORDERED.
EQUITABLE BANKING CORPORATION,
INC. Petitioner,
vs.
SPECIAL STEEL PRODUCTS, and AUGUSTO L.
PARDO, Respondents.
DEL CASTILLO, J.:
A crossed check with the notation "account payee only" can
only be deposited in the named payee’s account. It is gross
negligence for a bank to ignore this rule solely on the basis of
a third party’s oral representations of having a good title
thereto.
Before the Court is a Petition for Review on Certiorari of the
October 13, 2006 Decision of the Court of Appeals (CA) in
CA-G.R. CV No. 62425. The dispositive portion of the
assailed Decision reads:
WHEREFORE, premises considered, the May 4, 1998
Decision of the Regional Trial Court of Pasig City, Branch
168, in Civil Case No. 63561, is hereby AFFIRMED.
SO ORDERED.1
Factual Antecedents
Respondent Special Steel Products, Inc. (SSPI) is a private
domestic corporation selling steel products. Its co-respondent
Augusto L. Pardo (Pardo) is SSPI’s President and majority
stockholder.2
International Copra Export Corporation (Interco) is its regular
customer.3
Jose Isidoro4 Uy, alias Jolly Uy (Uy), is an Interco employee,
in charge of the purchasing department, and the son-in-law of
its majority stockholder.5
Petitioner Equitable Banking Corporation (Equitable or bank)
is a private domestic corporation engaged in banking6 and is
the depository bank of Interco and of Uy.
In 1991, SSPI sold welding electrodes to Interco, as evidenced
by the following sales invoices:
Sales Invoice No. 65042 dated February 14, 1991 for
₱325,976.347
Sales Invoice No. 65842 dated April 11, 1991 for
₱345,412.808
Sales Invoice No. 65843 dated April 11, 1991 for
₱313,845.849
The due dates for these invoices were March 16, 1991 (for the
first sales invoice) and May 11, 1991 (for the others). The
invoices provided that Interco would pay interest at the rate of
36% per annum in case of delay.
In payment for the above welding electrodes, Interco issued
three checks payable to the order of SSPI on July 10,
1991,10 July 16, 1991,11 and July 29, 1991.12 Each check was
crossed with the notation "account payee only" and was drawn
against Equitable. The records do not identify the signatory for
these three checks, or explain how Uy, Interco’s purchasing
officer, came into possession of these checks.
The records only disclose that Uy presented each crossed
check to Equitable on the day of its issuance and claimed that
he had good title thereto.13 He demanded the deposit of the
checks in his personal accounts in Equitable, Account No.
18841-2 and Account No. 03474-0.14
Equitable acceded to Uy’s demands on the assumption that
Uy, as the son-in-law of Interco’s majority stockholder,15 was
acting pursuant to Interco’s orders. The bank also relied on
Uy’s status as a valued client.16 Thus, Equitable accepted the
checks for deposit in Uy’s personal accounts 17 and stamped
"ALL PRIOR ENDORSEMENT AND/OR LACK OF
ENDORSEMENT GUARANTEED" on their dorsal
portion.18 Uy promptly withdrew the proceeds of the checks.
37
In October 1991, SSPI reminded Interco of the unpaid welding
electrodes, amounting to ₱985,234.98.19 It reiterated its
demand on January 14, 1992.20 SSPI explained its immediate
need for payment as it was experiencing some financial crisis
of its own. Interco replied that it had already issued three
checks payable to SSPI and drawn against Equitable. SSPI
denied receipt of these checks.
On August 6, 1992, SSPI requested information from
Equitable regarding the three checks. The bank refused to give
any information invoking the confidentiality of deposits.21
The records do not disclose the circumstances surrounding
Interco’s and SSPI’s eventual discovery of Uy’s scheme.
Nevertheless, it was determined that Uy, not SSPI, received
the proceeds of the three checks that were payable to SSPI.
Thus, on June 30, 1993 (twenty-three months after the
issuance of the three checks), Interco finally paid the value of
the three checks to SSPI, plus a portion of the accrued
interests. Interco refused to pay the entire accrued interest of
₱767,345.64 on the ground that it was not responsible for the
delay. Thus, SSPI was unable to collect ₱437,040.35 (at the
contracted rate of 36% per annum) in interest income.22
SSPI and its president, Pardo, filed a complaint for damages
with application for a writ of preliminary attachment against
Uy and Equitable Bank. The complaint alleged that the three
crossed checks, all payable to the order of SSPI and with the
notation "account payee only," could be deposited and
encashed by SSPI only. However, due to Uy’s fraudulent
representations, and Equitable’s indispensable connivance or
gross negligence, the restrictive nature of the checks was
ignored and the checks were deposited in Uy’s account. Had
the defendants not diverted the three checks in July 1991, the
plaintiffs could have used them in their business and earned
money from them. Thus, the plaintiffs prayed for an award of
actual damages consisting of the unrealized interest income
from the proceeds of the checks for the two-year period that
the defendants withheld the proceeds from them (from July
1991 up to June 1993).23
In his personal capacity, Pardo claimed an award of ₱3 million
as moral damages from the defendants. He allegedly suffered
hypertension, anxiety, and sleepless nights for fear that the
government would charge him for tax evasion or money
laundering. He maintained that defendants’ actions amounted
to money laundering and that it unfairly implicated his
company in the scheme. As for his fear of tax evasion, Pardo
explained that the Bureau of Internal Revenue might notice a
discrepancy between the financial reports of Interco (which
might have reported the checks as SSPI’s income in 1991) and
those of SSPI (which reported the income only in 1993). Since
Uy and Equitable were responsible for Pardo’s worries, they
should compensate him jointly and severally therefor.24
SSPI and Pardo also prayed for exemplary damages and
attorney’s fees.25
In support of their application for preliminary attachment, the
plaintiffs alleged that the defendants are guilty of fraud in
incurring the obligation upon which the action was brought
and that there is no sufficient security for the claim sought to
be enforced in this action.26
The trial court granted plaintiffs’ application. 27 It issued the
writ of preliminary attachment on September 20, 1993,28 upon
the filing of plaintiffs’ bond for ₱500,000.00. The sheriff
served and implemented the writ against the personal
properties of both defendants.29
Upon Equitable’s motion and filing of a counter-bond,
however, the trial court eventually discharged the
attachment30 against it.31
Equitable then argued for the dismissal of the complaint for
lack of cause of action. It maintained that interest income is
due only when it is expressly stipulated in writing. Since
Equitable and SSPI did not enter into any contract, Equitable
is not liable for damages, in the form of unobtained interest
income, to SSPI.32 Moreover, SSPI’s acceptance of Interco’s
payment on the sales invoices is a waiver or extinction of
SSPI’s cause of action based on the three checks.33
Equitable further argued that it is not liable to SSPI because it
accepted the three crossed checks in good faith.34 Equitable
averred that, due to Uy’s close relations with the drawer of the
checks, the bank had basis to assume that the drawer
authorized Uy to countermand the original order stated in the
check (that it can only be deposited in the named payee’s
account). Since only Uy is responsible for the fraudulent
conversion of the checks, he should reimburse Equitable for
any amounts that it may be made liable to plaintiffs.35
The bank counter-claimed that SSPI is liable to it in damages
for the wrongful and malicious attachment of Equitable’s
personal properties. The bank maintained that SSPI knew that
the allegation of fraud against the bank is a falsehood. Further,
the bank is financially capable to meet the plaintiffs’ claim
should the latter receive a favorable judgment. SSPI was
aware that the preliminary attachment against the bank was
unnecessary, and intended only to humiliate or destroy the
bank’s reputation.36
Meanwhile, Uy answered that the checks were negotiated to
him; that he is a holder for value of the checks and that he has
a good title thereto.37 He did not, however, explain how he
obtained the checks, from whom he obtained his title, and the
value for which he received them. During trial, Uy did not
present any evidence but adopted Equitable’s evidence as his
own.
Ruling of the Regional Trial Court 38
The RTC clarified that SSPI’s cause of action against Uy and
Equitable is for quasi-delict. SSPI is not seeking to enforce
payment on the undelivered checks from the defendants, but to
recover the damage that it sustained from the wrongful non-
delivery of the checks.39
The crossed checks belonged solely to the payee named
therein, SSPI. Since SSPI did not authorize anyone to receive
payment in its behalf, Uy clearly had no title to the checks and
Equitable had no right to accept the said checks from Uy.
Equitable was negligent in permitting Uy to deposit the checks
in his account without verifying Uy’s right to endorse the
crossed checks. The court reiterated that banks have the duty
to scrutinize the checks deposited with it, for a determination
of their genuineness and regularity. The law holds banks to a
high standard because banks hold themselves out to the public
as experts in the field. Thus, the trial court found Equitable’s
explanation regarding Uy’s close relations with the drawer
unacceptable.40
Uy’s conversion of the checks and Equitable’s negligence
make them liable to compensate SSPI for the actual damage it
sustained. This damage consists of the income that SSPI failed
to realize during the delay.41 The trial court then equated this
unrealized income with the interest income that SSPI failed to
collect from Interco. Thus, it ordered Uy and Equitable to pay,
38
jointly and severally, the amount of ₱437,040.35 to SSPI as
actual damages.42
It also ordered the defendants to pay exemplary damages of
₱500,000.00, attorney’s fees amounting to ₱200,000.00, as
well as costs of suit.43
The trial court likewise found merit in Pardo’s claim for moral
damages. It found that Pardo suffered anxiety, sleepless
nights, and hypertension in fear that he would face criminal
prosecution. The trial court awarded Pardo the amount of ₱3
million in moral damages.44
The dispositive portion of the trial court’s Decision reads:
WHEREFORE, judgment is hereby rendered in favor of
plaintiffs Special Steel Products, Inc., and Augusto L. Pardo
and against defendants Equitable Banking Corporation [and]
Jose Isidoro Uy, alias "Jolly Uy," ordering defendants to
jointly and severally pay plaintiffs the following:
1. ₱437,040.35 as actual damages;
2. ₱3,000,000.00 as moral damages to Augusto L.
Pardo;
3. ₱500,000.00 as exemplary damages;
4. ₱200,000.00 as attorney’s fees; and
5. Costs of suit.
Defendant EBC’s counterclaim is hereby DISMISSED for
lack of factual and legal basis.
Likewise, the crossclaim filed by defendant EBC against
defendant Jose Isidoro Uy and the crossclaim filed by
defendant Jose Isidoro Uy against defendant EBC are hereby
DISMISSED for lack of factual and legal basis.
SO ORDERED.
Pasig City, May 4, 1998.45
The trial court denied Equitable’s motion for reconsideration
in its Order dated November 19, 1998.46
Only Equitable appealed to the CA,47 reiterating its defenses
below.
Appealed Ruling of the Court of Appeals48
The appellate court found no merit in Equitable’s appeal.
It affirmed the trial court’s ruling that SSPI had a cause of
action for quasi-delict against Equitable.49 The CA noted that
the three checks presented by Uy to Equitable were crossed
checks, and strictly made payable to SSPI only. This means
that the checks could only be deposited in the account of the
named payee.50 Thus, the CA found that Equitable had the
responsibility of ensuring that the crossed checks are deposited
in SSPI’s account only. Equitable violated this duty when it
allowed the deposit of the crossed checks in Uy’s account.51
The CA found factual and legal basis to affirm the trial court’s
award of moral damages in favor of Pardo.52
It likewise affirmed the award of exemplary damages and
attorney’s fees in favor of SSPI.53
Issues
1. Whether SSPI has a cause of action against Equitable for
quasi-delict;
2. Whether SSPI can recover, as actual damages, the stipulated
36% per annum interest from Equitable;
3. Whether speculative fears and imagined scenarios, which
cause sleepless nights, may be the basis for the award of moral
damages; and
4. Whether the attachment of Equitable’s personal properties
was wrongful.
Our Ruling
SSPI’s cause of action
This case involves a complaint for damages based on quasi-
delict. SSPI asserts that it did not receive prompt payment
from Interco in July 1991 because of Uy’s wilful and illegal
conversion of the checks payable to SSPI, and of Equitable’s
gross negligence, which facilitated Uy’s actions. The
combined actions of the defendants deprived SSPI of interest
income on the said moneys from July 1991 until June 1993.
Thus, SSPI claims damages in the form of interest income for
the said period from the parties who wilfully or negligently
withheld its money from it.
Equitable argues that SSPI cannot assert a right against the
bank based on the undelivered checks.54 It cites provisions
from the Negotiable Instruments Law and the case of
Development Bank of Rizal v. Sima Wei55 to argue that a
payee, who did not receive the check, cannot require the
drawee bank to pay it the sum stated on the checks.
Equitable’s argument is misplaced and beside the point.
SSPI’s cause of action is not based on the three checks. SSPI
does not ask Equitable or Uy to deliver to it the proceeds of
the checks as the rightful payee. SSPI does not assert a right
based on the undelivered checks or for breach of contract.
Instead, it asserts a cause of action based on quasi-delict. A
quasi-delict is an act or omission, there being fault or
negligence, which causes damage to another. Quasi-delicts
exist even without a contractual relation between the parties.
The courts below correctly ruled that SSPI has a cause of
action for quasi-delict against Equitable.
The checks that Interco issued in favor of SSPI were all
crossed, made payable to SSPI’s order, and contained the
notation "account payee only." This creates a reasonable
expectation that the payee alone would receive the proceeds of
the checks and that diversion of the checks would be averted.
This expectation arises from the accepted banking practice that
crossed checks are intended for deposit in the named payee’s
account only and no other.56 At the very least, the nature of
crossed checks should place a bank on notice that it should
exercise more caution or expend more than a cursory inquiry,
to ascertain whether the payee on the check has authorized the
holder to deposit the same in a different account. It is well to
remember that "[t]he banking system has become an
indispensable institution in the modern world and plays a vital
role in the economic life of every civilized society. Whether as
mere passive entities for the safe-keeping and saving of money
or as active instruments of business and commerce, banks
39
have attained an [sic] ubiquitous presence among the people,
who have come to regard them with respect and even gratitude
and, above all, trust and confidence. In this connection, it is
important that banks should guard against injury attributable to
negligence or bad faith on its part. As repeatedly emphasized,
since the banking business is impressed with public interest,
the trust and confidence of the public in it is of paramount
importance. Consequently, the highest degree of diligence is
expected, and high standards of integrity and performance are
required of it."57
Equitable did not observe the required degree of diligence
expected of a banking institution under the existing factual
circumstances.
The fact that a person, other than the named payee of the
crossed check, was presenting it for deposit should have put
the bank on guard. It should have verified if the payee (SSPI)
authorized the holder (Uy) to present the same in its behalf, or
indorsed it to him. Considering however, that the named payee
does not have an account with Equitable (hence, the latter has
no specimen signature of SSPI by which to judge the
genuineness of its indorsement to Uy), the bank knowingly
assumed the risk of relying solely on Uy’s word that he had a
good title to the three checks. Such misplaced reliance on
empty words is tantamount to gross negligence, which is the
"absence of or failure to exercise even slight care or diligence,
or the entire absence of care, evincing a thoughtless disregard
of consequences without exerting any effort to avoid them."58
Equitable contends that its knowledge that Uy is the son-in-
law of the majority stockholder of the drawer, Interco, made it
safe to assume that the drawer authorized Uy to countermand
the order appearing on the check. In other words, Equitable
theorizes that Interco reconsidered its original order and
decided to give the proceeds of the checks to Uy. 59 That the
bank arrived at this conclusion without anything on the face of
the checks to support it is demonstrative of its lack of caution.
It is troubling that Equitable proceeded with the transaction
based only on its knowledge that Uy had close relations with
Interco. The bank did not even make inquiries with the drawer,
Interco (whom the bank considered a "valued client"), to
verify Uy’s representation. The banking system is placed in
peril when bankers act out of blind faith and empty promises,
without requiring proof of the assertions and without making
the appropriate inquiries. Had it only exercised due diligence,
Equitable could have saved both Interco and the named payee,
SSPI, from the trouble that the bank’s mislaid trust wrought
for them.
Equitable’s pretension that there is nothing under the
circumstances that rendered Uy’s title to the checks
questionable is outrageous. These are crossed checks, whose
manner of discharge, in banking practice, is restrictive and
specific. Uy’s name does not appear anywhere on the crossed
checks. Equitable, not knowing the named payee on the check,
had no way of verifying for itself the alleged genuineness of
the indorsement to Uy. The checks bear nothing on their face
that supports the belief that the drawer gave the checks to Uy.
Uy’s relationship to Interco’s majority stockholder will not
justify disregarding what is clearly ordered on the checks.
Actual damages
For its role in the conversion of the checks, which deprived
SSPI of the use thereof, Equitable is solidarily liable with Uy
to compensate SSPI for the damages it suffered.
Among the compensable damages are actual damages, which
encompass the value of the loss sustained by the plaintiff, and
the profits that the plaintiff failed to obtain.60 Interest
payments, which SSPI claims, fall under the second category
of actual damages.
SSPI computed its claim for interest payments based on the
interest rate stipulated in its contract with Interco. It explained
that the stipulated interest rate is the actual interest income it
had failed to obtain from Interco due to the defendants’
tortious conduct.
The Court finds the application of the stipulated interest rate
erroneous.
SSPI did not recover interest payments at the stipulated rate
from Interco because it agreed that the delay was not Interco’s
fault, but that of the defendants’. If that is the case, then
Interco is not in delay (at least not after issuance of the checks)
and the stipulated interest payments in their contract did not
become operational. If Interco is not liable to pay for the 36%
per annum interest rate, then SSPI did not lose that income.
SSPI cannot lose something that it was not entitled to in the
first place. Thus, SSPI’s claim that it was entitled to interest
income at the rate stipulated in its contract with Interco, as a
measure of its actual damage, is fallacious.
More importantly, the provisions of a contract generally take
effect only among the parties, their assigns and heirs. 61 SSPI
cannot invoke the contractual stipulation on interest payments
against Equitable because it is neither a party to the contract,
nor an assignee or an heir to the contracting parties.
Nevertheless, it is clear that defendants’ actions deprived SSPI
of the present use of its money for a period of two years. SSPI
is therefore entitled to obtain from the tortfeasors the profits
that it failed to obtain from July 1991 to June 1993. SSPI
should recover interest at the legal rate of 6% per annum,62 this
being an award for damages based on quasi-delict and not for
a loan or forbearance of money.
Moral damages
Both the trial and appellate courts awarded Pardo ₱3 million in
moral damages. Pardo claimed that he was frightened,
anguished, and seriously anxious that the government would
prosecute him for money laundering and tax evasion because
of defendants’ actions.63 In other words, he was worried about
the repercussions that defendants’ actions would have on him.
Equitable argues that Pardo’s fears are all imagined and
should not be compensated. The bank points out that none of
Pardo’s fears panned out.64
Moral damages are recoverable only when they are the
proximate result of the defendant’s wrongful act or
omission.65 Both the trial and appellate courts found that Pardo
indeed suffered as a result of the diversion of the three checks.
It does not matter that the things he was worried and anxious
about did not eventually materialize. It is rare for a person,
who is beset with mounting problems, to sift through his
emotions and distinguish which fears or anxieties he should or
should not bother with. So long as the injured party’s moral
sufferings are the result of the defendants’ actions, he may
recover moral damages.
The Court, however, finds the award of ₱3 million excessive.
Moral damages are given not to punish the defendant but only
to give the plaintiff the means to assuage his sufferings with
40
diversions and recreation.66 We find that the award of
₱50,000.0067 as moral damages is reasonable under the
circumstances.
Equitable to recover amounts from Uy
Equitable then insists on the allowance of their cross-claim
against Uy. The bank argues that it was Uy who was enriched
by the entire scheme and should reimburse Equitable for
whatever amounts the Court might order it to pay in damages
to SSPI.68
Equitable is correct. There is unjust enrichment when (1) a
person is unjustly benefited, and (2) such benefit is derived at
the expense of or with damages to another.69 In the instant
case, the fraudulent scheme concocted by Uy allowed him to
improperly receive the proceeds of the three crossed checks
and enjoy the profits from these proceeds during the entire
time that it was withheld from SSPI. Equitable, through its
gross negligence and mislaid trust on Uy, became an unwitting
instrument in Uy’s scheme. Equitable’s fault renders it
solidarily liable with Uy, insofar as respondents are concerned.
Nevertheless, as between Equitable and Uy, Equitable should
be allowed to recover from Uy whatever amounts Equitable
may be made to pay under the judgment. It is clear that
Equitable did not profit in Uy’s scheme. Disallowing
Equitable’s cross-claim against Uy is tantamount to allowing
Uy to unjustly enrich himself at the expense of Equitable. For
this reason, the Court allows Equitable’s cross-claim against
Uy.
Preliminary attachment
Equitable next assails as error the trial court’s dismissal of its
counter-claim for wrongful preliminary attachment. It
maintains that, contrary to SSPI’s allegation in its application
for the writ, there is no showing whatsoever that Equitable
was guilty of fraud in allowing Uy to deposit the checks. Thus,
the trial court should not have issued the writ of preliminary
attachment in favor of SSPI. The wrongful attachment
compelled Equitable to incur expenses for a counter-bond,
amounting to ₱30,204.26, and caused it to sustain damage,
amounting to ₱5 million, to its goodwill and business credit.70
SSPI submitted the following affidavit in support of its
application for a writ of preliminary attachment:
I, Augusto L. Pardo, of legal age, under oath hereby
depose and declare:
1. I am one of the plaintiffs in the above-entitled
case; the other plaintiff is our family corporation,
Special Steel Products, Inc., of which I am the
president and majority stockholder; I caused the
preparation of the foregoing Complaint, the
allegations of which I have read, and which I hereby
affirm to be true and correct out of my own personal
knowledge;
2. The corporation and I have a sufficient cause of
action against defendants Isidoro Uy alias Jolly Uy
and Equitable Banking Corporation, who are guilty of
fraud in incurring the obligation upon which this
action is brought, as particularly alleged in the
Complaint, which allegations I hereby adopt and
reproduce herein;
3. There is no sufficient security for our claim in this
action and that the amount due us is as much as the
 sum for which the order is granted above all legal
counterclaims;
4. We are ready and able to put up a bond executed to
the defendants in an amount to be fixed by the
Court[,] conditioned on the payment of all costs[,]
which may be adjudged to defendants[,] and all
damages[,] which they may sustain by reason of the
attachment of the court, should [the court] finally
adjudge that we are not entitled thereto.71
The complaint (to which the supporting affidavit
refers) cites the following factual circumstances to
justify SSPI’s application:
6. x x x Yet, notwithstanding the fact that SPECIAL
STEEL did not open an account with EQUITABLE
BANK as already alleged, thru its connivance with
defendant UY in his fraudulent scheme to defraud
SPECIAL STEEL, or at least thru its gross
negligence EQUITABLE BANK consented to or
allowed the opening of Account No. 18841-2 at its
head office and Account No. 03474-0 at its Ermita
Branch in the name of SPECIAL STEEL without the
latter’s knowledge, let alone authority or consent, but
obviously on the bases of spurious or falsified
documents submitted by UY or under his authority,
which documents EQUITABLE BANK did not
bother to verify or check their authenticity with
SPECIAL STEEL.72
xxxx
9. On August 6, 1992, plaintiffs, thru counsel, wrote
EQUITABLE BANK about the fraudulent
transactions involving the aforesaid checks, which
could not have been perpetrated without its
indispensable participation and cooperation, or gross
negligence, and therein solicited its cooperation in
securing information as to the anomalous and
irregular opening of the false accounts maintained in
SPECIAL STEEL’s name, but EQUITABLE BANK
malevolently shirking from its responsibility to
prevent the further perpetration of fraud,
conveniently, albeit unjustifiably, invoked the
confidentiality of the deposits and refused to give any
information, and accordingly denied SPECIAL
STEEL’s valid request, thereby knowingly shielding
the identity of the ma[le]factors involved [in] the
unlawful and fraudulent transactions.73
The above affidavit and the allegations of the complaint are
bereft of specific and definite allegations of fraud against
Equitable that would justify the attachment of its properties. In
fact, SSPI admits its uncertainty whether Equitable’s
participation in the transactions involved fraud or was a result
of its negligence. Despite such uncertainty with respect to
Equitable’s participation, SSPI applied for and obtained a
preliminary attachment of Equitable’s properties on the
ground of fraud. We believe that such preliminary attachment
was wrongful. "[A] writ of preliminary attachment is too harsh
a provisional remedy to be issued based on mere abstractions
of fraud. Rather, the rules require that for the writ to issue,
there must be a recitation of clear and concrete factual
circumstances manifesting that the debtor practiced fraud upon
the creditor at the time of the execution of their agreement in
that said debtor had a preconceived plan or intention not to
pay the creditor."74 No proof was adduced tending to show that
Equitable had a preconceived plan not to pay SSPI or had
knowingly participated in Uy’s scheme.
41
That the plaintiffs eventually obtained a judgment in their
favor does not detract from the wrongfulness of the
preliminary attachment.1âwphi1 While "the evidence warrants
[a] judgment in favor of [the] applicant, the proofs may
nevertheless also establish that said applicant’s proffered
ground for attachment was inexistent or specious, and hence,
the writ should not have issued at all x x x."75
For such wrongful preliminary attachment, plaintiffs may be
held liable for damages. However, Equitable is entitled only to
such damages as its evidence would allow,76 for the
wrongfulness of an attachment does not automatically warrant
the award of damages. The debtor still has the burden of
proving the nature and extent of the injury that it suffered by
reason of the wrongful attachment.77
The Court has gone over the records and found that Equitable
has duly proved its claim for, and is entitled to recover, actual
damages. In order to lift the wrongful attachment of
Equitable’s properties, the bank was compelled to pay the total
amount of ₱30,204.26 in premiums for a counter-
bond.78 However, Equitable failed to prove that it sustained
damage to its "goodwill and business credit" in consequence
of the alleged wrongful attachment. There was no proof of
Equitable’s contention that respondents’ actions caused it
public embarrassment and a bank run.
WHEREFORE, premises considered, the Petition is
PARTIALLY GRANTED. The assailed October 13, 2006
Decision of the Court of Appeals in CA-G.R. CV No. 62425 is
MODIFIED by:
1. REDUCING the award of actual damages to
respondents to the rate of 6% per annum of the value
of the three checks from July 1991 to June 1993 or a
period of twenty-three months;
2. REDUCING the award of moral damages in favor
of Augusto L. Pardo from ₱3,000,000.00 to ₱
50,000.00; and
3. REVERSING the dismissal of Equitable Banking
Corporation’s cross-claim against Jose Isidoro Uy,
alias Jolly Uy. Jolly Uy is hereby ORDERED to
REIMBURSE Equitable Banking Corporation the
amounts that the latter will pay to respondents.
Additionally, the Court hereby REVERSES the dismissal of
Equitable Banking Corporation’s counterclaim for damages
against Special Steel Products, Inc. This Court ORDERS
Special Steel Products, Inc. to PAY Equitable Banking
Corporation actual damages in the total amount of ₱30,204.36,
for the wrongful preliminary attachment of its properties.
The rest of the assailed Decision is AFFIRMED.
PHILIPPINE NATIONAL BANK, Petitioner,
vs.
F.F. CRUZ and CO., INC. Respondent.
DEL CASTILLO, J.:
As between a bank and its depositor, where the bank’s
negligence is the proximate cause of the loss and the depositor
is guilty of contributory negligence, the greater proportion of
the loss shall be borne by the bank.
This Petition for Review on Certiorari seeks to reverse and set
aside the Court of Appeal’s January 31, 2006 Decision 1 in CA-
G.R. CV No. 81349, which modified the January 30, 2004
Decision2 of the Regional Trial Court of Manila City, Branch
46 in Civil Case No. 97-84010, and the June 26, 2006
Resolution3 denying petitioner’s motion for reconsideration.
Factual Antecedents
The antecedents are aptly summarized by the appellate court:
In its complaint, it is alleged that [respondent F.F. Cruz & Co.,
Inc.] (hereinafter FFCCI) opened savings/current or so-called
combo account No. 0219-830-146 and dollar savings account
No. 0219-0502-458-6 with [petitioner Philippine National
Bank] (hereinafter PNB) at its Timog Avenue Branch. Its
President Felipe Cruz (or Felipe) and Secretary-Treasurer
Angelita A. Cruz (or Angelita) were the named signatories for
the said accounts.
The said signatories on separate but coeval dates left for and
returned from the Unites States of America, Felipe on March
18, 1995 until June 10, 1995 while Angelita followed him on
March 29, 1995 and returned ahead on May 9, 1995.
While they were thus out of the country, applications for
cashier’s and manager’s [checks] bearing Felipe’s [signature]
were presented to and both approved by the PNB. The first
was on March 27, 1995 for ₱9,950,000.00 payable to a certain
Gene B. Sangalang and the other one was on April 24, 1995
for ₱3,260,500.31 payable to one Paul Bautista. The amounts
of these checks were then debited by the PNB against the
combo account of [FFCCI].
When Angelita returned to the country, she had occasion to
examine the PNB statements of account of [FFCCI] for the
months of February to August 1995 and she noticed the
deductions of ₱9,950,000.00 and ₱3,260,500.31. Claiming that
these were unauthorized and fraudulently made, [FFCCI]
requested PNB to credit back and restore to its account the
value of the checks. PNB refused, and thus constrained
[FFCCI] filed the instant suit for damages against the PNB and
its own accountant Aurea Caparas (or Caparas).
In its traverse, PNB averred lack of cause of action. It alleged
that it exercised due diligence in handling the account of
[FFCCI]. The applications for manager’s check have passed
through the standard bank procedures and it was only after
finding no infirmity that these were given due course. In fact,
it was no less than Caparas, the accountant of [FFCCI], who
confirmed the regularity of the transaction. The delay of
[FFCCI] in picking up and going over the bank statements was
the proximate cause of its self-proclaimed injury. Had
[FFCCI] been conscientious in this regard, the alleged
chicanery would have been detected early on and Caparas
effectively prevented from absconding with its millions. It
prayed for the dismissal of the complaint.4
Regional Trial Court’s Ruling
The trial court ruled that F.F. Cruz and Company, Inc.
( FFCCI) was guilty of negligence in clothing Aurea Caparas
(Caparas) with authority to make decisions on and dispositions
of its account which paved the way for the fraudulent
transactions perpetrated by Caparas; that, in practice, FFCCI
waived the two-signature requirement in transactions
involving the subject combo account so much so that
Philippine National Bank (PNB) could not be faulted for
honoring the applications for manager’s check even if only the
42
signature of Felipe Cruz appeared thereon; and that FFCCI
was negligent in not immediately informing PNB of the fraud.
On the other hand, the trial court found that PNB was,
likewise, negligent in not calling or personally verifying from
the authorized signatories the legitimacy of the subject
withdrawals considering that they were in huge amounts. For
this reason, PNB had the last clear chance to prevent the
unauthorized debits from FFCCI’s combo account. Thus, PNB
should bear the whole loss –
WHEREFORE, judgment is hereby rendered ordering
defendant [PNB] to pay plaintiff [FFCCI] ₱13,210,500.31
representing the amounts debited against plaintiff’s account,
with interest at the legal rate computed from the filing of the
complaint plus costs of suit.
IT IS SO ORDERED.5
Court of Appeal’s Ruling
On January 31, 2006, the CA rendered the assailed Decision
affirming with modification the Decision of the trial court, viz:
WHEREFORE, the appealed Decision is AFFIRMED with
the MODIFICATION that [PNB] shall pay [FFCCI] only
60% of the actual damages awarded by the trial court while
the remaining 40% shall be borne by [FFCCI].
SO ORDERED.6
The appellate court ruled that PNB was negligent in not
properly verifying the genuineness of the signatures appearing
on the two applications for manager’s check as evidenced by
the lack of the signature of the bank verifier thereon. Had this
procedure been followed, the forgery would have been
detected.
Nonetheless, the appellate court found FFCCI guilty of
contributory negligence because it clothed its
accountant/bookkeeper Caparas with apparent authority to
transact business with PNB. In addition, FFCCI failed to
timely examine its monthly statement of account and report
the discrepancy to PNB within a reasonable period of time to
prevent or recover the loss. FFCCI’s contributory negligence,
thus, mitigated the bank’s liability. Pursuant to the rulings
in Philippine Bank of Commerce v. Court of Appeals 7 and The
Consolidated Bank & Trust Corporation v. Court of
Appeals,8 the appellate court allocated the damages on a 60-40
ratio with the bigger share to be borne by PNB.
From this decision, both FFCCI and PNB sought review
before this Court.
On August 17, 2006, FFCCI filed its petition for review
on certiorari which was docketed as G.R. No. 173278.9 On
March 7, 2007, the Court issued a Resolution10 denying said
petition. On June 13, 2007, the Court issued another
Resolution11 denying FFCCI’s motion for reconsideration. In
denying the aforesaid petition, the Court ruled that FFCCI
essentially raises questions of fact which are, as a rule, not
reviewable under a Rule 45 petition; that FFCCI failed to
show that its case fell within the established exceptions to this
rule; and that FFCCI was guilty of contributory negligence.
Thus, the appellate court correctly mitigated PNB’s liability.
On July 13, 2006, PNB filed its petition for review
on certiorari which is the subject matter of this case.
 Issue
Whether the Court of Appeals seriously erred when it found
PNB guilty of negligence.12
Our Ruling
We affirm the ruling of the CA.
PNB is guilty of negligence.
Preliminarily, in G.R. No. 173278, we resolved with
finality13 that FFCCI is guilty of contributory negligence, thus,
making it partly liable for the loss (i.e., as to 40% thereof)
arising from the unauthorized withdrawal of ₱13,210,500.31
from its combo account. The case before us is, thus, limited to
PNB’s alleged negligence in the subject transactions which the
appellate court found to be the proximate cause of the loss,
thus, making it liable for the greater part of the loss (i.e., as to
60% thereof) pursuant to our rulings in Philippine Bank of
Commerce v. Court of Appeals14 and The Consolidated Bank
& Trust Corporation v. Court of Appeals.15
PNB contends that it was not negligent in verifying the
genuineness of the signatures appearing on the subject
applications for manager’s check. It claims that it followed the
standard operating procedure in the verification process and
that four bank officers examined the signatures and found the
same to be similar with those found in the signature cards of
FFCCI’s authorized signatories on file with the bank.
Given the foregoing, we find no reversible error in the
findings of the appellate court that PNB was negligent in the
handling of FFCCI’s combo account, specifically, with respect
to PNB’s failure to detect the forgeries in the subject
applications for manager’s check which could have prevented
the loss. As we have often ruled, the banking business is
impressed with public trust.21 A higher degree of diligence is
imposed on banks relative to the handling of their affairs than
that of an ordinary business enterprise. 22 Thus, the degree of
responsibility, care and trustworthiness expected of their
officials and employees is far greater than those of ordinary
officers and employees in other enterprises. 23 In the case at
bar, PNB failed to meet the high standard of diligence required
by the circumstances to prevent the fraud. In Philippine Bank
of Commerce v. Court of Appeals24 and The Consolidated
Bank & Trust Corporation v. Court of Appeals,25 where the
bank’s negligence is the proximate cause of the loss and the
depositor is guilty of contributory negligence, we allocated the
damages between the bank and the depositor on a 60-40 ratio.
We apply the same ruling in this case considering that, as
shown above, PNB’s negligence is the proximate cause of the
loss while the issue as to FFCCI’s contributory negligence has
been settled with finality in G.R. No. 173278. Thus, the
appellate court properly adjudged PNB to bear the greater part
of the loss consistent with these rulings.
WHEREFORE, the petition is DENIED. The January 31,
2006 Decision and June 26, 2006 Resolution of the Court of
Appeals in CA-G.R. CV No. 81349 are AFFIRMED.

PNB raises factual issues which are generally not proper for
review under a Rule 45 petition.1avvphi1 While there are
exceptions to this rule, we find none applicable to the present
case. As correctly found by the appellate court, PNB failed to
make the proper verification because the applications for the
manager’s check do not bear the signature of the bank verifier.
PNB concedes the absence16 of the subject signature but
argues that the same was the result of inadvertence. It posits
that the testimonies of Geronimo Gallego (Gallego), then the
branch manager of PNB Timog Branch, and Stella San Diego
(San Diego), then branch cashier, suffice to establish that the
signature verification process was duly followed.

We are not persuaded.

First, oral testimony is not as reliable as documentary

evidence.17 Second, PNB’s own witness, San Diego, testified
that in the verification process, the principal duty to determine
the genuineness of the signature devolved upon the account
analyst.18 However, PNB did not present the account analyst to
explain his or her failure to sign the box for signature and
balance verification of the subject applications for manager’s
check, thus, casting doubt as to whether he or she did indeed
verify the signatures thereon. Third, we cannot fault the
appellate court for not giving weight to the testimonies of
Gallego and San Diego considering that the latter are naturally
interested in exculpating themselves from any liability arising
from the failure to detect the forgeries in the subject
transactions. Fourth, Gallego admitted that PNB’s employees
received training on detecting forgeries from the National
Bureau of Investigation.19 However, Emmanuel Guzman, then
NBI senior document examiner, testified, as an expert witness,
that the forged signatures in the subject applications for
manager’s check contained noticeable and significant
differences from the genuine signatures of FFCCI’s authorized
signatories and that the forgeries should have been detected or
observed by a trained signature verifier of any bank.20

43

Article 2179
LAMBERT S. RAMOS, Petitioner,
vs.
C.O.L. REALTY CORPORATION, Respondent.
YNARES-SANTIAGO, J.:
The issue for resolution is whether petitioner can be held
solidarily liable with his driver, Rodel Ilustrisimo, to pay
respondent C.O.L. Realty the amount of P51,994.80 as actual
damages suffered in a vehicular collision.
The facts, as found by the appellate court, are as follows:
On or about 10:40 o’clock in the morning of 8 March 2004,
along Katipunan (Avenue), corner Rajah Matanda (Street),
Quezon City, a vehicular accident took place between a
Toyota Altis Sedan bearing Plate Number XDN 210, owned
by petitioner C.O.L. Realty Corporation, and driven by
Aquilino Larin ("Aquilino"), and a Ford Expedition, owned by
x x x Lambert Ramos (Ramos) and driven by Rodel
Ilustrisimo ("Rodel"), with Plate Number LSR 917. A
passenger of the sedan, one Estela Maliwat ("Estela")
sustained injuries. She was immediately rushed to the hospital
for treatment.
(C.O.L. Realty) averred that its driver, Aquilino, was slowly
driving the Toyota Altis car at a speed of five to ten kilometers
per hour along Rajah Matanda Street and has just crossed the
center lane of Katipunan Avenue when (Ramos’) Ford
Espedition violently rammed against the car’s right rear door
and fender. With the force of the impact, the sedan turned 180
degrees towards the direction where it came from.
Upon investigation, the Office of the City Prosecutor of
Quezon City found probable cause to indict Rodel, the driver
of the Ford Expedition, for Reckless Imprudence Resulting in
Damage to Property. In the meantime, petitioner demanded
from respondent reimbursement for the expenses incurred in
the repair of its car and the hospitalization of Estela in the
aggregate amount of P103,989.60. The demand fell on deaf
ears prompting (C.O.L. Realty) to file a Complaint for
Damages based on quasi-delict before the Metropolitan Trial
Court of Metro Manila (MeTC), Quezon City, docketed as
Civil Case No. 33277, and subsequently raffled to Branch 42.
As could well be expected, (Ramos) denied liability for
damages insisting that it was the negligence of Aquilino,
(C.O.L. Realty’s) driver, which was the proximate cause of the
accident. (Ramos) maintained that the sedan car crossed
Katipunan Avenue from Rajah Matanda Street despite the
concrete barriers placed thereon prohibiting vehicles to pass
through the intersection.
(Ramos) further claimed that he was not in the vehicle when
the mishap occurred. He asserted that he exercised the
diligence of a good father of a family in the selection and
supervision of his driver, Rodel.
Weighing the respective evidence of the parties, the MeTC
rendered the Decision dated 1 March 2006 exculpating
(Ramos) from liability, thus:
44
"WHEREFORE, the instant case is DISMISSED for lack of
merit. The Counterclaims of the defendant are likewise
DISMISSED for lack of sufficient factual and legal basis.
SO ORDERED."
The aforesaid judgment did not sit well with (C.O.L. Realty)
so that he (sic) appealed the same before the RTC of Quezon
City, raffled to Branch 215, which rendered the assailed
Decision dated 5 September 2006, affirming the MeTC’s
Decision. (C.O.L. Realty’s) Motion for Reconsideration met
the same fate as it was denied by the RTC in its Order dated 5
June 2007.1
C.O.L. Realty appealed to the Court of Appeals which
affirmed the view that Aquilino was negligent in crossing
Katipunan Avenue from Rajah Matanda Street since, as per
Certification of the Metropolitan Manila Development
Authority (MMDA) dated November 30, 2004, such act is
specifically prohibited. Thus:
This is to certify that as per records found and available in this
office the crossing of vehicles at Katipunan Avenue from
Rajah Matanda Street to Blue Ridge Subdivision, Quezon City
has (sic) not allowed since January 2004 up to the present in
view of the ongoing road construction at the area. 2 (Emphasis
supplied)
Barricades were precisely placed along the intersection of
Katipunan Avenue and Rajah Matanda Street in order to
prevent motorists from crossing Katipunan Avenue.
Nonetheless, Aquilino crossed Katipunan Avenue through
certain portions of the barricade which were broken, thus
violating the MMDA rule.3
However, the Court of Appeals likewise noted that at the time
of the collision, Ramos’ vehicle was moving at high speed in a
busy area that was then the subject of an ongoing construction
(the Katipunan Avenue-Boni Serrano Avenue underpass), then
smashed into the rear door and fender of the passenger’s side
of Aquilino’s car, sending it spinning in a 180-degree turn.4 It
therefore found the driver Rodel guilty of contributory
negligence for driving the Ford Expedition at high speed along
a busy intersection.
Thus, on May 28, 2008, the appellate court rendered the
assailed Decision,5 the dispositive portion of which reads, as
follows:
WHEREFORE, the Decision dated 5 September 2006 of the
Regional Trial Court of Quezon City, Branch 215 is hereby
MODIFIED in that respondent Lambert Ramos is held
solidarily liable with Rodel Ilustrisimo to pay petitioner
C.O.L. Realty Corporation the amount of P51,994.80 as actual
damages. Petitioner C.O.L. Realty Corporation’s claim for
exemplary damages, attorney’s fees and cost of suit are
DISMISSED for lack of merit.
SO ORDERED.
Petitioner filed a Motion for Reconsideration but it was
denied. Hence, the instant petition, which raises the following
sole issue:
THE COURT OF APPEALS’ DECISION IS CONTRARY
TO LAW AND JURISPRUDENCE, AND THE EVIDENCE
TO SUPPORT AND JUSTIFY THE SAME
INSUFFICIENT.
We resolve to GRANT the petition.
There is no doubt in the appellate court’s mind that Aquilino’s
violation of the MMDA prohibition against crossing
Katipunan Avenue from Rajah Matanda Street was the
proximate cause of the accident. Respondent does not dispute
this; in its Comment to the instant petition, it even conceded
that petitioner was guilty of mere contributory negligence.6
Thus, the Court of Appeals acknowledged that:
The Certification dated 30 November 2004 of the
Metropolitan Manila Development Authority (MMDA)
evidently disproved (C.O.L. Realty’s) barefaced assertion that
its driver, Aquilino, was not to be blamed for the accident –
"TO WHOM IT MAY CONCERN:
This is to certify that as per records found and available in this
office the crossing of vehicles at Katipunan Avenue from
Rajah Matanda Street to Blue Ridge Subdivision, Quezon City
has (sic) not allowed since January 2004 up to the present in
view of the ongoing road construction at the area.
This certification is issued upon request of the interested
parties for whatever legal purpose it may serve."
(C.O.L. Realty) admitted that there were barricades along the
intersection of Katipunan Avenue and Rajah Matanda Street.
The barricades were placed thereon to caution drivers not to
pass through the intersecting roads. This prohibition stands
even if, as (C.O.L. Realty) claimed, the "barriers were broken"
at that point creating a small gap through which any vehicle
could pass. What is clear to Us is that Aquilino recklessly
ignored these barricades and drove through it. Without doubt,
his negligence is established by the fact that he violated a
traffic regulation. This finds support in Article 2185 of the
Civil Code –
"Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the
time of the mishap, he was violating any traffic regulation."
Accordingly, there ought to be no question on (C.O.L.
Realty’s) negligence which resulted in the vehicular mishap.7
However, it also declared Ramos liable vicariously for Rodel’s
contributory negligence in driving the Ford Expedition at high
speed along a busy intersection. On this score, the appellate
court made the following pronouncement:
As a professional driver, Rodel should have known that
driving his vehicle at a high speed in a major thoroughfare
which was then subject of an on-going construction was a
perilous act. He had no regard to (sic) the safety of other
vehicles on the road. Because of the impact of the collision,
(Aquilino’s) sedan made a 180-degree turn as (Ramos’) Ford
Expedition careened and smashed into its rear door and fender.
We cannot exculpate Rodel from liability.
Having thus settled the contributory negligence of Rodel, this
created a presumption of negligence on the part of his
employer, (Ramos). For the employer to avoid the solidary
liability for a tort committed by his employee, an employer
must rebut the presumption by presenting adequate and
IS convincing proof that in the selection and supervision of his
employee, he or she exercises the care and diligence of a good
father of a family. Employers must submit concrete proof,
including documentary evidence, that they complied with
everything that was incumbent on them.
(Ramos) feebly attempts to escape vicarious liability by
averring that Rodel was highly recommended when he applied
for the position of family driver by the Social Service
Committee of his parish. A certain Ramon Gomez, a member
of the church’s livelihood program, testified that a background
investigation would have to be made before an applicant is
recommended to the parishioners for employment. (Ramos)
supposedly tested Rodel’s driving skills before accepting him
for the job. Rodel has been his driver since 2001, and except
for the mishap in 2004, he has not been involved in any road
accident.
Regrettably, (Ramos’) evidence which consisted mainly of
testimonial evidence remained unsubstantiated and are thus,
barren of significant weight. There is nothing on the records
which would support (Ramos’) bare allegation of Rodel’s 10-
year unblemished driving record. He failed to present
convincing proof that he went to the extent of verifying
Rodel’s qualifications, safety record, and driving history.
So too, (Ramos) did not bother to refute (C.O.L. Realty’s)
stance that his driver was texting with his cellphone while
running at a high speed and that the latter did not slow down
albeit he knew that Katipunan Avenue was then undergoing
repairs and that the road was barricaded with barriers. The
presumption juris tantum that there was negligence in the
selection of driver remains unrebutted. As the employer of
Rodel, (Ramos) is solidarily liable for the quasi-delict
committed by the former.1avvphi1
Certainly, in the selection of prospective employees,
employers are required to examine them as to their
qualifications, experience and service records. In the
supervision of employees, the employer must formulate
standard operating procedures, monitor their implementation
and impose disciplinary measures for the breach thereof.
These, (Ramos) failed to do.8
Petitioner disagrees, arguing that since Aquilino’s willful
disregard of the MMDA prohibition was the sole proximate
cause of the accident, then respondent alone should suffer the
consequences of the accident and the damages it incurred. He
argues:
20. It becomes apparent therefore that the only time a plaintiff,
the respondent herein, can recover damages is if its negligence
was only contributory, and such contributory negligence was
the proximate cause of the accident. It has been clearly
established in this case, however, that respondent’s negligence
was not merely contributory, but the sole proximate cause of
the accident.
xxxx
22. As culled from the foregoing, respondent was the sole
proximate cause of the accident. Respondent’s vehicle should
not have been in that position since crossing the said
intersection was prohibited. Were it not for the obvious
negligence of respondent’s driver in crossing the intersection
that was prohibited, the accident would not have happened.
The crossing of respondent’s vehicle in a prohibited
intersection unquestionably produced the injury, and without
which the accident would not have occurred. On the other
45
hand, petitioner’s driver had the right to be where he was at
the time of the mishap. As correctly concluded by the RTC,
the petitioner’s driver could not be expected to slacken his
speed while travelling along said intersection since nobody, in
his right mind, would do the same. Assuming, however, that
petitioner’s driver was indeed guilty of any contributory
negligence, such was not the proximate cause of the accident
considering that again, if respondent’s driver did not cross the
prohibited intersection, no accident would have happened. No
imputation of any lack of care on Ilustrisimo’s could thus be
concluded. It is obvious then that petitioner’s driver was not
guilty of any negligence that would make petitioner
vicariously liable for damages.
23. As the sole proximate cause of the accident was
respondent’s own driver, respondent cannot claim damages
from petitioner.9
On the other hand, respondent in its Comment merely
reiterated the appellate court’s findings and pronouncements,
conceding that petitioner is guilty of mere contributory
negligence, and insisted on his vicarious liability as Rodel’s
employer under Article 2184 of the Civil Code.
Articles 2179 and 2185 of the Civil Code on quasi-delicts
apply in this case, viz:
Article 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.
Article 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.
If the master is injured by the negligence of a third person and
by the concurring contributory negligence of his own servant
or agent, the latter’s negligence is imputed to his superior and
will defeat the superior’s action against the third person,
assuming of course that the contributory negligence was the
proximate cause of the injury of which complaint is made.10
Applying the foregoing principles of law to the instant case,
Aquilino’s act of crossing Katipunan Avenue via Rajah
Matanda constitutes negligence because it was prohibited by
law. Moreover, it was the proximate cause of the accident, and
thus precludes any recovery for any damages suffered by
respondent from the accident.
Proximate cause is defined as that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would
not have occurred. And more comprehensively, the proximate
legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each
having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting
the injury as a natural and probable result of the cause which
first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent
and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person
might probably result therefrom.11
46
If Aquilino heeded the MMDA prohibition against crossing
Katipunan Avenue from Rajah Matanda, the accident would
not have happened. This specific untoward event is exactly
what the MMDA prohibition was intended for. Thus, a
prudent and intelligent person who resides within the vicinity
where the accident occurred, Aquilino had reasonable ground
to expect that the accident would be a natural and probable
result if he crossed Katipunan Avenue since such crossing is
considered dangerous on account of the busy nature of the
thoroughfare and the ongoing construction of the Katipunan-
Boni Avenue underpass. It was manifest error for the Court of
Appeals to have overlooked the principle embodied in Article
2179 of the Civil Code, that when the plaintiff’s own
negligence was the immediate and proximate cause of his
injury, he cannot recover damages.
Hence, we find it unnecessary to delve into the issue of
Rodel’s contributory negligence, since it cannot overcome or
defeat Aquilino’s recklessness which is the immediate and
proximate cause of the accident. Rodel’s contributory
negligence has relevance only in the event that Ramos seeks to
recover from respondent whatever damages or injuries he may
have suffered as a result; it will have the effect of mitigating
the award of damages in his favor. In other words, an assertion
of contributory negligence in this case would benefit only the
petitioner; it could not eliminate respondent’s liability for
Aquilino’s negligence which is the proximate result of the
accident.
WHEREFORE, the petition is GRANTED. The Decision of
the Court of Appeals dated May 28, 2008 in CA-G.R. SP No.
99614 and its Resolution of October 13, 2008 are hereby
REVERSED and SET ASIDE. The Decision of the Regional
Trial Court of Quezon City, Branch 215 dated September 5,
2006 dismissing for lack of merit respondent’s complaint for
damages is hereby REINSTATED.
SO ORDERED.
NELEN LAMBERT, assisted by her husband, GLENROY
ALOYSUIS LAMBERT, petitioners,
vs.
HEIRS OF RAY CASTILLON, Represented by
MARILOU T. CASTILLON and SERGIO
LABANG, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review under Rule 45 of the Rules of
Court seeking the reversal of the decision1 of the Court of
Appeals dated October 21, 2002 in CA-G.R. CV No. 43734,
which affirmed the June 29, 1993 decision of the Regional
Trial Court of Iligan City, Branch 06, in Civil Case No. 06-
2086.
In the evening of January 13, 1991, Ray Castillon visited the
house of his brother Joel Castillon at Tambo, Iligan City and
borrowed his motorcycle. He then invited his friend, Sergio
Labang, to roam around Iligan City. Ray drove the motorcycle
with Sergio as the backrider.2
At around past 10:00 p.m., after eating supper at Hona’s
Restaurant and imbibing a bottle of beer, they traversed the
highway towards Tambo at a high speed. Upon reaching Brgy.
Sto. Rosario, they figured in an accident with a Tamaraw
jeepney, owned by petitioner Nelen Lambert and driven by
Reynaldo Gamot, which was traveling on the same direction
but made a sudden left turn. The incident resulted in the
instantaneous death of Ray and injuries to Sergio.3
Respondents, the heirs of Ray Castillon, thus filed an action
for damages with prayer for preliminary attachment against
the petitioner Nelen Lambert. The complaint was docketed as
Civil Case No. 06-2086 of the RTC of Iligan City, Branch
06.4 The complaint was subsequently amended to include the
claim by Joel Castillon for the damages caused to the
motorcycle.5 1ªvvphi1.nét
On June 29, 1993, after a full-blown trial, the court a
quo rendered a decision in favor of herein private respondents
but reduced petitioner’s liability by 20% in view of the
contributory negligence of Ray. The dispositive portion of the
decision reads:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiffs and against the defendants, directing the latter,
jointly and severally, to pay the former the following:
1. The sum of SIX HUNDRED THIRTY-THREE
THOUSAND AND NINETY-ONE (P633,091)
PESOS, representing loss of support, death
indemnity, funeral and related expenses, moral
damages and attorney’s fees and
2. Costs of the suit.
For lack of merit, defendants’ counterclaim is dismissed.
On the claim of Joel Castillon, the evidence shows that he is
not the real owner of the motorcycle. He is not the real party in
interest. Accordingly, his complaint is dismissed.
On the third-party complaint, the third-party defendant Zenith
Insurance Corporation is ordered to pay the sum of P16,500.00
directly to the plaintiffs. This sum, if paid, should be deducted
from the amount adjudged in par. 1 above.
SO ORDERED.6
The Court of Appeals affirmed the decision of the trial
court.7 Hence the present petition, based on the following
arguments:
1. The Honorable Court of Appeals committed
serious error of law and grave abuse of discretion
when it did not apply the ruling of this Honorable
Court in the case of Philippine Rabbit Bus Lines vs.
The Honorable Intermediate Appellate Court and
Casiano Pascua, Et. Al., [189 SCRA 168, August 30,
1990], as reiterated recently in the case of Edna A.
Raynera vs. Freddie Hiceta and Jimmy Orpilla [306
SCRA 102, April 21, 1999], in which this Honorable
Court enunciated that drivers of vehicles "who bump
the rear of another vehicle" are presumed to be the
cause of the accident.
2. The erroneous conclusion of the Honorable Trial
Court as affirmed by the Honorable Court of Appeals
that the act of tailgating, at high speed, constitutes
contributory negligence only, is contrary to the
rulings of this Honorable Court in the case
of Sanitary Steam Laundry, INC. vs. The Honorable
Court of Appeals [300 SCRA 20, December 10,
1998] and the case of Edna A. Raynera vs. Freddie
47
Hiceta and Jimmy Orpilla [306 SCRA 102, April 21,
1999].
3. The Honorable Court of Appeals grossly erred in
its conclusion that petitioner’s driver was negligent,
without taking into consideration the presumptions
enunciated by this Honorable Court in the case of
Philippine Rabbit Bus Lines vs. The Honorable
Intermediate Appellate Court and Casiano Pascua, Et.
Al., [189 SCRA 168, August 30, 1990], and the
case of Edna A. Raynera vs. Freddie Hiceta and
Jimmy Orpilla [306 SCRA 102, April 21, 1999].
4. As an alternative relief, petitioner most
respectfully assigns as error the Honorable Trial
Court’s computation as to the loss of earning capacity
of Ray Castillon. Such computation is contrary to the
formula enunciated by this Honorable Court in the
case of Villa Rey Transit, Inc. vs. The Honorable
Court of Appeals [31 SCRA 511 (1970)].
5. The Honorable Trial Court’s award of moral
damages is contrary to the pronunciation of this
Honorable Court in the case of Ace Haulers
Corporation vs. The Honorable Court of Appeals and
Abiva [338 SCRA 572, August 23, 2000], wherein
the award of moral damages was disallowed absent
any evidence of bad faith or ill-motive.8
Petitioner insists that the negligence of Ray Castillon was the
proximate cause of his unfortunate death and therefore she is
not liable for damages.
In petitions for review on certiorari under Rule 45 of the
Rules of Court, only questions of law may be put into issue.
Questions of fact cannot be entertained. The finding of
negligence by the Court of Appeals is a question of fact which
we cannot pass upon as it would entail going into factual
matters on which the finding of negligence was based. As a
rule, factual findings of the trial court, especially those
affirmed by the Court of Appeals, are conclusive on this Court
when supported by the evidence on record.9
Our examination of the records shows that both the trial court
and the Court of Appeals carefully considered the factual
backdrop of the case. No cogent reason exists for disturbing
the following findings of the trial court, which the Court of
Appeals affirmed:
… To the mind of the court, this is exactly what happened.
When Reynaldo Gamot was approaching the side road, he
slightly veered to the right for his allowance. Ray Castillon,
who was following closely behind, instinctively veered to the
left but it was also the moment when Reynaldo Gamot sharply
turned to the left towards the side road. At this juncture both
were moving obliquely to the left.l^vvphi1.net Thus the
motorcycle sliced into the side of the jeepney throwing the
driver forward so that his forehead hit the angle bar on the left
front door of the jeepney even as the motorcycle shot forward
and the jeepney veered back to the right and sped away.
…
The testimonies of the witnesses Frias, Opada, Labang and
Sumile show that he did not stop even for a second, or less
before making the left turn. On the contrary, he slightly veered
to the right immediately followed by the abrupt and sudden
turn to the left in order to enter the side road. It is apparent that
Reynaldo Gamot did not keep a lookout for vehicles or
persons following him before proceeding to turn left. He failed
to take into account the possibility that others may be
following him. He did not employ the necessary precaution to
see to it that the road was clear.10
Clearly, the abrupt and sudden left turn by Reynaldo, without
first establishing his right of way, was the proximate cause of
the mishap which claimed the life of Ray and injured Sergio.
Proximate cause is defined as that which, in the natural and
continuous sequence, unbroken by any efficient, intervening
cause, produces the injury, and without which the result would
not have occurred.11 The cause of the collision is traceable to
the negligent act of Reynaldo for, as the trial court correctly
held, without that left turn executed with no precaution, the
mishap in all probability would not have happened.12
Petitioner misunderstood our ruling in Raynera v.
Hiceta.13 That case also involved a motorcycle crashing into
the left rear portion of another vehicle, and we declared
therein that drivers of vehicles "who bump the rear of another
vehicle" are presumed to be "the cause of the accident, unless
contradicted by other evidence".14 In Raynera, the death of the
victim was solely attributable to his own negligence in
bumping the rear of the trailer truck which was traveling ahead
of him at 20 to 30 kilometers per hour. Raynera, being the
driver of the rear vehicle, had full control of the situation as he
was in a position to observe the vehicle in front of him. The
trailer truck therein did not make a sudden left turn as in the
case at bar. Thus, the theory that drivers of vehicles "who
bump the rear of another vehicle" are presumed to be the cause
of the accident is, as in this case, sufficiently contradicted by
evidence, which is the sudden left turn made by Reynaldo
which proximately caused the collision.
While we agree with the trial court that Ray was likewise
guilty of contributory negligence as defined under Article
2179 of the Civil Code, we find it equitable to increase the
ratio of apportionment of damages on account of the victim’s
negligence.
Article 2179 reads as follows:
When the plaintiff’s 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.
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 thus
be held liable only for the damages actually caused by his
negligence.15 The determination of the mitigation of the
defendant’s liability varies depending on the circumstances of
each case. The Court had sustained a mitigation
of 50% in Rakes v. AG & P;16 20% in Phoenix Construction,
Inc. v. Intermediate Appellate Court17 and LBC Air Cargo, Inc.
v. Court of Appeals;18 and 40% in Bank of the Philippine
Islands v. Court of Appeals19 and Philippine Bank of
Commerce v. Court of Appeals.20 1awphi1.nét
In the case at bar, it was established that Ray, at the time of the
mishap: (1) was driving the motorcycle at a high speed; (2)
was tailgating the Tamaraw jeepney; (3) has imbibed one or
two bottles of beer; and (4) was not wearing a protective
helmet.21 These circumstances, although not constituting the
proximate cause of his demise and injury to Sergio,
48
contributed to the same result. The contribution of these
circumstances are all considered and determined in terms of
percentages of the total cause. Hence, pursuant to Rakes v. AG
& P, the heirs of Ray Castillon shall recover damages only up
to 50% of the award. In other words, 50% of the damage shall
be borne by the private respondents; the remaining 50% shall
be paid by the petitioner.
Anent the award of loss of earning capacity, we agree with the
petitioner that the trial court erred in the computation of the
net earnings.
In considering the earning capacity of the victim as an element
of damages, the following factors are considered in
determining the compensable amount of lost earnings: (1) the
number of years for which the victim would otherwise have
lived; and (2) the rate of loss sustained by the heirs of the
deceased. Jurisprudence provides that the first factor, i.e., life
expectancy, is computed by applying the formula (2/3 x [80 -
age at death]) adopted in the American Expectancy Table of
Mortality or the Actuarial Combined Experience Table of
Mortality. As to the second factor, it is computed by
multiplying the life expectancy by the net earnings of the
deceased, i.e., the total earnings less expenses necessary in the
creation of such earnings or income and less living and other
incidental expenses. The net earning is ordinarily computed
at fifty percent (50%) of the gross earnings. Thus, the
formula used by this Court in computing loss of earning
capacity is: Net Earning Capacity = [2/3 x (80 – age at time
of death) x (gross annual income – reasonable and
necessary living expenses)].22
It was established that Ray was 35 at the time of his death and
was earning a gross annual income of P31,876.00 as a driver
at the Mindanao State University. In arriving at the net
earnings, the trial court deducted from the gross annual
income the annual living expenses in the amount of P9,672.00,
broken down as follows: P20.00 a day for travel or P520.00
per month; P60.00 a month for cigarettes; P26.00 for drinks;
and other personal expenses like clothing, toiletries, etc.
estimated at P200.00 per month.23 The amount of P9,672.00,
however, appears unrealistic, and constitutes only 30.34% of
the gross earnings. It even includes expenses for cigarettes
which by no means can be classified as a necessary expense.
Using the cited formula with the net earnings computed at
50% of the gross earnings, a detailed computation is as
follows:
= LIFE
NET x GROSS - LIVING
EXPECTANCY
EARNING ANNUAL EXPENSES
[2/3 (80-age at
CAPACITY INCOME (50% of
the time of
(X) (GAI) GAI)
death)]
x -50% x
X = [2/3 (80-35)]
[P31,876.00 P31,876.00]
x -
X = [2/3 (45)]
[P31,876.00 P15,938.00]
X = 30 x 15,938.00  
X = P478,140.00    
We sustain the awards of P33,215.00 as funeral and burial
expenses being supported with receipts;24 P50,000.00 as death
indemnity; and P50,000.00 as moral damages. However, the
award of P20,000.00 as attorney’s fees must be deleted for
lack of basis.
The indemnity for death caused by a quasi-delict used to be
pegged at P3,000.00,25 based on Article 2206 of the Civil
Code, which reads:
ART. 2206. The amount of damages for death caused by a
crime or quasi-delict shall be at least three thousand pesos,
even though there may have been mitigating circumstances. In
addition:
(1) The defendant shall be liable for the loss of the
earning capacity of the deceased, and the indemnity
shall be paid to the heirs of the latter; such indemnity
shall in every case be assessed and awarded by the
court, unless the deceased on account of permanent
physical disability not caused by the defendant, had
no earning capacity at the time of his death;
(2) If the deceased was obliged to give support
according to the provisions of article 291, the
recipient who is not an heir called to the decedent’s
inheritance by the law of testate or intestate
succession, may demand support from the person
causing the death, for a period of not exceeding five
years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate
descendants and ascendants of the deceased may
demand moral damages for mental anguish by reason
of the death of the deceased.
However, the amount has been gradually increased through
the years. At present, prevailing jurisprudence fixes the
amount at P50,000.00.26
Paragraph 3 of the same provision also serves as the basis for
the award of moral damages in quasi-delict. The reason for the
grant of moral damages has been explained, thus:
… the award of moral damages is aimed at a restoration,
within the limits possible, of the spiritual status quo ante; and
therefore, it must be proportionate to the suffering inflicted.
The intensity of the pain experienced by the relatives of the
victim is proportionate to the intensity of affection for him and
bears no relation whatsoever with the wealth or means of the
offender.27
While it is true that there can be no exact or uniform rule for
measuring the value of human life and the measure of
damages cannot be arrived at by a precise mathematical
calculation,28 we hold that the trial court’s award of moral
damages of P50,000.00 for the death of Ray Castillon is in
accord with the prevailing jurisprudence.29
With respect to attorney’s fees, it is well settled that the same
should not be awarded in the absence of stipulation except
under the instances enumerated in Article 2208 of the Civil
Code. The trial court did not indicate the basis for its award.
As we have held in Rizal Surety and Insurance Company v.
Court of Appeals:30
"Article 2208 of the Civil Code allows attorney’s fess to be
awarded by a court when its claimant is compelled to litigate
with third persons or to incur expenses to protect his interest
49
by reason of an unjustified act or omission of the party from
whom it is sought.l^vvphi1.net While judicial discretion is
here extant, an award thereof demands, nevertheless, a factual,
legal or equitable justification.1a\^/phi1.net The matter cannot
and should not be left to speculation and conjecture (Mirasol
vs. De la Cruz, 84 SCRA 337; Stronghold Insurance
Company, Inc. vs. Court of Appeals, 173 SCRA 619).
In the case at bench, the records do not show enough basis for
sustaining the award for attorney’s fees and to adjudge its
payment by petitioner…"
Likewise, this Court held in Stronghold Insurance Company,
Inc. vs. Court of Appeals that:
"In Abrogar v. Intermediate Appellate Court [G.R. No. 67970,
January 15, 1988, 157 SCRA 57] the Court had occasion to
state that ‘[t]he reason for the award of attorney’s fees must be
stated in the text of the court’s decision, otherwise, if it is
stated only in the dispositive portion of the decision, the same
must be disallowed on appeal.’ …1awphi1.nét
WHEREFORE, in view of the foregoing, the petition is
DENIED. The assailed decision of the Court of Appeals is
AFFIRMED with the MODIFICATION that the net earnings
is computed at 50% of the gross annual income to conform
with the prevailing jurisprudence, and the FURTHER
MODIFICATION that petitioner NELEN LAMBERT is
ordered to pay the heirs of Ray Castillon only 50% of the
damages herein awarded, except attorney’s fees which is
DELETED for lack of basis.
SO ORDERED.
MERCURY DRUG CORPORATION, Petitioner,
vs.
SEBASTIAN M. BAKING, Respondent.
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review on
Certiorari1 assailing the Decision2 dated May 30, 2002 and
Resolution dated November 5, 2002 of the Court of Appeals in
CA-G.R. CV No. 57435, entitled "Sebastian M. Baking,
plaintiff-appellee, versus Mercury Drug Co. Inc., defendant-
appellant."
The facts are:
On November 25, 1993, Sebastian M. Baking, respondent,
went to the clinic of Dr. Cesar Sy for a medical check-up. On
the following day, after undergoing an ECG, blood, and
hematology examinations and urinalysis, Dr. Sy found that
respondent’s blood sugar and triglyceride were above normal
levels. Dr. Sy then gave respondent two medical prescriptions
– Diamicron for his blood sugar and Benalize tablets for his
triglyceride.
Respondent then proceeded to petitioner Mercury Drug
Corporation (Alabang Branch) to buy the prescribed
medicines. However, the saleslady misread the prescription for
Diamicron as a prescription for Dormicum. Thus, what was
sold to respondent was Dormicum, a potent sleeping tablet.
Unaware that what was given to him was the wrong medicine,
respondent took one pill of Dormicum on three consecutive
days –November 6, 1993 at 9:00 p.m., November 7 at 6:00
a.m., and November 8 at 7:30 a.m.
On November 8 or on the third day he took the medicine,
respondent figured in a vehicular accident. The car he was
driving collided with the car of one Josie Peralta. Respondent
fell asleep while driving. He could not remember anything
about the collision nor felt its impact.
Suspecting that the tablet he took may have a bearing on his
physical and mental state at the time of the collision,
respondent returned to Dr. Sy’s clinic. Upon being shown the
medicine, Dr. Sy was shocked to find that what was sold to
respondent was Dormicum, instead of the prescribed
Diamicron.
Thus, on April 14, 1994, respondent filed with the Regional
Trial Court (RTC), Branch 80 of Quezon City a complaint for
damages against petitioner, docketed as Civil Case No. Q-94-
20193.
After hearing, the trial court rendered its Decision dated
March 18, 1997 in favor of respondent, thus:
WHEREFORE, premises considered, by preponderance of
evidence, the Court hereby renders judgment in favor of the
plaintiff and against the defendant ordering the latter to pay
mitigated damages as follows:
1. ₱250,000.00 as moral damages;
2. ₱20,000.00 as attorney’s fees and litigation
expenses;
3. plus ½% of the cost of the suit.
SO ORDERED.
On appeal, the Court of Appeals, in its Decision, affirmed in
toto the RTC judgment. Petitioner filed a motion for
reconsideration but it was denied in a Resolution dated
November 5, 2002.
Hence, this petition.
Petitioner contends that the Decision of the Court of Appeals
is not in accord with law or prevailing jurisprudence.
Respondent, on the other hand, maintains that the petition
lacks merit and, therefore, should be denied.
The issues for our resolution are:
1. Whether petitioner was negligent, and if so,
whether such negligence was the proximate cause of
respondent’s accident; and
2. Whether the award of moral damages, attorney’s
fees, litigation expenses, and cost of the suit is
justified.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
50
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
To sustain a claim based on the above provision, the following
requisites must concur: (a) damage suffered by the plaintiff;
(b) fault or negligence of the defendant; and, (c) connection of
cause and effect between the fault or negligence of the
defendant and the damage incurred by the plaintiff.3
There is no dispute that respondent suffered damages.
It is generally recognized that the drugstore business is imbued
with public interest. The health and safety of the people will
be put into jeopardy if drugstore employees will not exercise
the highest degree of care and diligence in selling medicines.
Inasmuch as the matter of negligence is a question of fact, we
defer to the findings of the trial court affirmed by the Court of
Appeals.
Obviously, petitioner’s employee was grossly negligent in
selling to respondent Dormicum, instead of the prescribed
Diamicron. Considering that a fatal mistake could be a matter
of life and death for a buying patient, the said employee
should have been very cautious in dispensing medicines. She
should have verified whether the medicine she gave
respondent was indeed the one prescribed by his physician.
The care required must be commensurate with the danger
involved, and the skill employed must correspond with the
superior knowledge of the business which the law
demands.41awphi1.nét
Petitioner contends that the proximate cause of the accident
was respondent’s negligence in driving his car.
We disagree.
Proximate cause is defined as any cause that produces injury
in a natural and continuous sequence, unbroken by any
efficient intervening cause, such that the result would not have
occurred otherwise. Proximate cause is determined from the
facts of each case, upon a combined consideration of logic,
common sense, policy, and precedent.5
Here, the vehicular accident could not have occurred had
petitioner’s employee been careful in reading Dr. Sy’s
prescription. Without the potent effects of Dormicum, a
sleeping tablet, it was unlikely that respondent would fall
asleep while driving his car, resulting in a collision.
Complementing Article 2176 is Article 2180 of the same Code
which states:
ART. 2180. The obligation imposed by Article 2176 is
demandable not only for one’s own acts or omissions, but also
for those of persons for whom one is responsible.
xxx
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.
xxx
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed the
diligence of a good father of a family to prevent damage.
It is thus clear that the employer of a negligent employee is
liable for the damages caused by the latter. When an injury is
caused by the negligence of an employee, there instantly arises
a presumption of the law that there has been negligence on the
part of the employer, either in the selection of his employee or
in the supervision over him, after such selection. The
presumption, however, may be rebutted by a clear showing on
the part of the employer that he has exercised the care and
diligence of a good father of a family in the selection and
supervision of his employee.6 Here, petitioner's failure to
prove that it exercised the due diligence of a good father of a
family in the selection and supervision of its employee will
make it solidarily liable for damages caused by the latter.
As regards the award of moral damages, we hold the same to
be in order. 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.7
Respondent has adequately established the factual basis for the
award of moral damages when he testified that he suffered
mental anguish and anxiety as a result of the accident caused
by the negligence of petitioner’s employee.
There is no hard-and-fast rule in determining what would be a
fair and reasonable amount of moral damages, since each case
must be governed by its own peculiar facts. However, it must
be commensurate to the loss or injury suffered. 8 Taking into
consideration the attending circumstances here, we are
convinced that the amount awarded by the trial court is
exorbitant. Thus, we reduce the amount of moral damages
from ₱250,000.00 to ₱50,000.00 only.
In addition, we also deem it necessary to award exemplary
damages. Article 2229 allows the grant of exemplary damages
by way of example or correction for the public good. As
mentioned earlier, the drugstore business is affected with
public interest. Petitioner should have exerted utmost diligence
in the selection and supervision of its employees. On the part
of the employee concerned, she should have been extremely
cautious in dispensing pharmaceutical products. Due to the
sensitive nature of its business, petitioner must at all times
maintain a high level of meticulousness. Therefore, an award
of exemplary damages in the amount of ₱25,000.00 is in
order.1awphi1.nét
On the matter of attorney’s fees and expenses of litigation, it is
settled that the reasons or grounds for the award thereof must
be set forth in the decision of the court. 9 Since the trial court’s
decision did not give the basis of the award, the same must be
deleted. In Vibram Manufacturing Corporation v. Manila
Electric Company,10 we held:
Likewise, the award for attorney’s fees and litigation expenses
should be deleted. Well-enshrined is that "an award for
attorney’s fees must be stated in the text of the court’s
decision and not in the dispositive portion only" (Consolidated
Bank and Trust Corporation (Solidbank) v. Court of Appeals,
246 SCRA 193 [1995] and Keng Hua Paper Products, Inc. v.
51
Court of Appeals, 286 SCRA 257 [1998]). This is also true
with the litigation expenses where the body of the decision
discussed nothing for its basis.
WHEREFORE, we DENY the petition. The challenged
Decision and Resolution of the Court of Appeals in CA-G.R.
CV No. 57435 are AFFIRMED with modification in the sense
that (a) the award of moral damages to respondent is reduced
from ₱250,000.00 to ₱50,000.00; (b) petitioner is likewise
ordered to pay said respondent exemplary damages in the
amount of ₱25,000.00; and (c) the award of attorney’s fees
and litigation expenses is deleted.
Costs against petitioner.
SO ORDERED.
SALUD VILLANUEVA VDA. DE BATACLAN and the
minors NORMA, LUZVIMINDA, ELENITA, OSCAR and
ALFREDO BATACLAN, represented by their Natural
guardian, SALUD VILLANUEVA VDA. DE BATACLAN,
plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of
the Medina Transportation, operated by its owner defendant
Mariano Medina under a certificate of public convenience, left
the town of Amadeo, Cavite, on its way to Pasay City, driven
by its regular chauffeur, Conrado Saylon. There were about
eighteen passengers, including the driver and conductor.
Among the passengers were Juan Bataclan, seated beside and
to the right of the driver, Felipe Lara, sated to the right of
Bataclan, another passenger apparently from the Visayan
Islands whom the witnesses just called Visaya, apparently not
knowing his name, seated in the left side of the driver, and a
woman named Natalia Villanueva, seated just behind the four
last mentioned.
At about 2:00 o'clock that same morning, while the bus was
running within the jurisdiction of Imus, Cavite, one of the
front tires burst and the vehicle began to zig-zag until it fell
into a canal or ditch on the right side of the road and turned
turtle. Some of the passengers managed to leave the bus the
best way they could, others had to be helped or pulled out,
while the three passengers seated beside the driver, named
Bataclan, Lara and the Visayan and the woman behind them
named Natalia Villanueva, could not get out of the overturned
bus. Some of the passengers, after they had clambered up to
the road, heard groans and moans from inside the bus,
particularly, shouts for help from Bataclan and Lara, who said
they could not get out of the bus. There is nothing in the
evidence to show whether or not the passengers already free
from the wreck, including the driver and the conductor, made
any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or shouts for
help were made to the houses in the neighborhood. After half
an hour, came about ten men, one of them carrying a lighted
torch made of bamboo with a wick on one end, evidently
fueled with petroleum. These men presumably approach the
overturned bus, and almost immediately, a fierce fire started,
burning and all but consuming the bus, including the four
passengers trapped inside it. It would appear that as the bus
overturned, gasoline began to leak and escape from the
gasoline tank on the side of the chassis, spreading over and
permeating the body of the bus and the ground under and
around it, and that the lighted torch brought by one of the men
who answered the call for help set it on fire.
That same day, the charred bodies of the four deemed
passengers inside the bus were removed and duly identified
that of Juan Bataclan. By reason of his death, his widow,
Salud Villanueva, in her name and in behalf of her five minor
children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and
attorney's fees in the total amount of P87,150. After trial, the
Court of First Instance of Cavite awarded P1,000 to the
plaintiffs plus P600 as attorney's fee, plus P100, the value of
the merchandise being carried by Bataclan to Pasay City for
sale and which was lost in the fire. The plaintiffs and the
defendants appealed the decision to the Court of Appeals, but
the latter endorsed the appeal to us because of the value
involved in the claim in the complaint.
Our new Civil Code amply provides for the responsibility of
common carrier to its passengers and their goods. For
purposes of reference, we are reproducing the pertinent codal
provisions:
ART. 1733. Common carriers, from the nature of
their business and for reasons of public policy, are
bound to observe extraordinary diligence in the
vigilance over the goods and for the safety of the
passengers transported by them, according to all the
circumstances of each case.
Such extraordinary diligence in the vigilance over the
goods is further expressed in articles 1734, 1735, and
1745, Nos. 5, 6, and 7, while the extra ordinary
diligence for the safety of the passengers is further set
forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the
passengers safely as far as human care and foresight
can provide, using the utmost diligence of very
cautious persons, with a due regard for all the
circumstances.
ART. 1756. In case of death of or injuries to
passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they
prove that they observed extraordinary diligence as
prescribed in articles 1733 and 1755
ART. 1759. Common carriers are liable for the death
of or injuries to passengers through the negligence or
willful acts of the former's employees, although such
employees may have acted beyond the scope of their
authority or in violation of the order of the common
carriers.
This liability of the common carriers does not cease
upon proof that they exercised all the diligence of a
good father of a family in the selection and
supervision of their employees.
ART. 1763. A common carrier responsible for
injuries suffered by a passenger on account of the
willful acts or negligence of other passengers or of
strangers, if the common carrier's employees through
the exercise of the diligence of a good father of a
family could have prevented or stopped the act or
omission.
52
We agree with the trial court that the case involves a breach of
contract of transportation for hire, the Medina Transportation
having undertaken to carry Bataclan safely to his destination,
Pasay City. We also agree with the trial court that there was
negligence on the part of the defendant, through his agent, the
driver Saylon. There is evidence to show that at the time of the
blow out, the bus was speeding, as testified to by one of the
passengers, and as shown by the fact that according to the
testimony of the witnesses, including that of the defense, from
the point where one of the front tires burst up to the canal
where the bus overturned after zig-zaging, there was a distance
of about 150 meters. The chauffeur, after the blow-out, must
have applied the brakes in order to stop the bus, but because of
the velocity at which the bus must have been running, its
momentum carried it over a distance of 150 meters before it
fell into the canal and turned turtle.
There is no question that under the circumstances, the
defendant carrier is liable. The only question is to what degree.
The trial court was of the opinion that the proximate cause of
the death of Bataclan was not the overturning of the bus, but
rather, the fire that burned the bus, including himself and his
co-passengers who were unable to leave it; that at the time the
fire started, Bataclan, though he must have suffered physical
injuries, perhaps serious, was still alive, and so damages were
awarded, not for his death, but for the physical injuries
suffered by him. We disagree. A satisfactory definition of
proximate cause is found in Volume 38, pages 695-696 of
American jurisprudence, cited by plaintiffs-appellants in their
brief. It is as follows:
. . . 'that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the
result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that
acting first and producing the injury, either
immediately or by setting other events in motion, all
constituting a natural and continuous chain of events,
each having a close causal connection with its
immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and
probable result of the cause which first acted, under
such circumstances that the person responsible for the
first event should, as an ordinary prudent and
intelligent person, have reasonable ground to expect
at the moment of his act or default that an injury to
some person might probably result therefrom.
It may be that ordinarily, when a passenger bus overturns, and
pins down a passenger, merely causing him physical injuries,
if through some event, unexpected and extraordinary, the
overturned bus is set on fire, say, by lightning, or if some
highwaymen after looting the vehicle sets it on fire, and the
passenger is burned to death, one might still contend that the
proximate cause of his death was the fire and not the
overturning of the vehicle. But in the present case under the
circumstances obtaining in the same, we do not hesitate to
hold that the proximate cause was the overturning of the bus,
this for the reason that when the vehicle turned not only on its
side but completely on its back, the leaking of the gasoline
from the tank was not unnatural or unexpected; that the
coming of the men with a lighted torch was in response to the
call for help, made not only by the passengers, but most
probably, by the driver and the conductor themselves, and that
because it was dark (about 2:30 in the morning), the rescuers
had to carry a light with them, and coming as they did from a
rural area where lanterns and flashlights were not available;
and what was more natural than that said rescuers should
innocently approach the vehicle to extend the aid and effect
the rescue requested from them. In other words, the coming of
the men with a torch was to be expected and was a natural
sequence of the overturning of the bus, the trapping of some of
its passengers and the call for outside help. What is more, the
burning of the bus can also in part be attributed to the
negligence of the carrier, through is driver and its conductor.
According to the witness, the driver and the conductor were on
the road walking back and forth. They, or at least, the driver
should and must have known that in the position in which the
overturned bus was, gasoline could and must have leaked from
the gasoline tank and soaked the area in and around the bus,
this aside from the fact that gasoline when spilled, specially
over a large area, can be smelt and directed even from a
distance, and yet neither the driver nor the conductor would
appear to have cautioned or taken steps to warn the rescuers
not to bring the lighted torch too near the bus. Said negligence
on the part of the agents of the carrier come under the codal
provisions above-reproduced, particularly, Articles 1733, 1759
and 1763.
As regard the damages to which plaintiffs are entitled,
considering the earning capacity of the deceased, as well as
the other elements entering into a damage award, we are
satisfied that the amount of SIX THOUSAND (P6,000)
PESOS would constitute satisfactory compensation, this to
include compensatory, moral, and other damages. We also
believe that plaintiffs are entitled to attorney's fees, and
assessing the legal services rendered by plaintiffs' attorneys
not only in the trial court, but also in the course of the appeal,
and not losing sight of the able briefs prepared by them, the
attorney's fees may well be fixed at EIGHT HUNDRED
(P800) PESOS for the loss of merchandise carried by the
deceased in the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not
shock us. According to the evidence, one of the passengers
who, because of the injuries suffered by her, was hospitalized,
and while in the hospital, she was visited by the defendant
Mariano Medina, and in the course of his visit, she overheard
him speaking to one of his bus inspectors, telling said
inspector to have the tires of the bus changed immediately
because they were already old, and that as a matter of fact, he
had been telling the driver to change the said tires, but that the
driver did not follow his instructions. If this be true, it goes to
prove that the driver had not been diligent and had not taken
the necessary precautions to insure the safety of his
passengers. Had he changed the tires, specially those in front,
with new ones, as he had been instructed to do, probably,
despite his speeding, as we have already stated, the blow out
would not have occurred. All in all, there is reason to believe
that the driver operated and drove his vehicle negligently,
resulting in the death of four of his passengers, physical
injuries to others, and the complete loss and destruction of
their goods, and yet the criminal case against him, on motion
of the fiscal and with his consent, was provisionally dismissed,
because according to the fiscal, the witnesses on whose
testimony he was banking to support the complaint, either
failed or appear or were reluctant to testify. But the record of
the case before us shows the several witnesses, passengers, in
that bus, willingly and unhesitatingly testified in court to the
effect of the said driver was negligent. In the public interest
the prosecution of said erring driver should be pursued, this,
not only as a matter of justice, but for the promotion of the
safety of passengers on public utility buses. Let a copy of this
decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the
damages awarded by the trial court are increased from ONE
THOUSAND (P1,000) PESOS TO SIX THOUSAND
53
(P6,000) PESOS, and from SIX HUNDRED PESOS TO
EIGHT HUNDRED (P800) PESOS, for the death of Bataclan
and for the attorney's fees, respectively, the decision appealed
is from hereby affirmed, with costs.
PROSPERO SABIDO and ASER LAGUNDA, petitioners,
vs.
CARLOS CUSTODIO, BELEN MAKABUHAY
CUSTODIO and THE HONORABLE COURT OF
APPEALS, respondents.
CONCEPCION, C.J.:
Prospero Sabido and Aser Lagunda seek the review
by certiorari of a decision of the Court of Appeals, affirming
that of the Court of First Instance of Laguna, sentencing the
Laguna-Tayabas Bus Co., Nicasio Mudales, and herein
petitioners. Prospero Sabido and Aser Lagunda, to jointly and
severally indemnify Belen Makabuhay Custodio and her son,
Agripino Custodio Jr., in the sum of P6,000 and to pay the
costs of the suit.
The facts are set forth in the decision of the Court of Appeals
from which we quote:
Upon a careful study and judicious examining of the
evidence on record, we are inclined to concur in the
findings made by the trial court. Here is how the
Court a quo analyzed the facts of this case:
"In Barrio Halang, Municipality of Lumban,
Province of Laguna, two trucks, one driven
by Nicasio Mudales and belonging to
Laguna-Tayabas Bus Company, and the
other driven by Aser Lagunda and owned by
Prospero Sabido, going in opposite
directions met each other in a road curve.
Agripino Custodia a passenger of LTB bus,
who was hanging on the left side as truck
was full of passengers was sideswiped by
the track driven by Aser Lagunda. As a
result, Agripino Custodio was injured and
died (Exhibit A).
"It appears clear from the evidence that
Agripino Custodio was hanging on the left
side of the LTB bus. Otherwise, were he
sitting inside the truck, he could not have
been struck by the six by six truck driven by
Aser Lagunda. This fact alone, of allowing
Agripino Custodio to hang on the side of the
truck, makes the defendant Laguna Tayabas
Bus Company liable for damages. For
certainly its employees, who are the driver
and conductor were negligent. They should
not have allowed Agripino Custodio to ride
their truck in that manner.
"To avoid any liability, Aser Lagunda and
Prospero Sabido throw all the blame on
Nicasio Mudales. From the testimony,
however, of Belen Makabuhay, Agripino
Custodio's widow, we can deduce that Aser
Lagunda was equally negligent as Nicasio
Mudales. Belen testified that the 6 x 6 truck
 was running fast when it met the LTB Bus.
And Aser Lagunda had time and opportunity
to avoid the mishap if he had been
sufficiently careful and cautious because the
two trucks never collided with each other.
By simply swerving to the right side of the
road, the 6 x 6 truck could have avoided
hitting Agripino Custodio. It is incredible
that the LTB was running on the middle of
the road when passing a curve. He knows it
is dangerous to do so. We are rather of the
belief that both trucks did not keep close to
the right side of the road so they sideswiped
each other and thus Agripino Custodio was
injured and died. In other words, both
drivers must have drive in their trucks not in
the proper lane and are, therefore, both
reckless and negligent.
"We might state by way of additional observations
that the sideswiping of the deceased and his two
fellow passengers took place on broad daylight at
about 9:30 in the morning of June 9, 1955 when the
LTB bus with full load to passengers was negotiating
a sharp curve of a bumpy and sliding downward a
slope, whereas the six by six truck was climbing up
with no cargoes or passengers on board but for three
helpers, owner Sabido and driver Lagunda (tsn. 308-
309, Mendoza). Under the above-stated condition,
there exists strong persuasion to accept what Belen
Makabuhay and Sofia Mesina, LTB passengers, had
testified to the effect that the 6 x 6 cargo truck was
running at a fast rate of speed (tsn. 15, 74, 175
Mendoza). From the lips of no less than driver
Lagunda himself come the testimonial admission that
the presence of three hanging passengers located at
the left side of the bus was noted when his vehicle
was still at a distance of 5 or 7 meters from the bus,
and yet despite the existence of a shallow canal on
the right side of the road which he could pass over
with ease, Lagunda did not care to exercise prudence
to avert the accident simply because to use his own
language the canal "is not a passage of trucks."
Based upon these facts, the Court of First Instance of Laguna
and the Court of Appeals concluded that the Laguna-Tayabas
Bus Co. — hereinafter referred to as the carrier — and its
driver Nicasio Mudales (none of whom has appealed), had
violated the contract of carriage with Agripino Custodio,
whereas petitioners Sabido and Lagunda were guilty of
a quasi delict, by reason of which all of them were held
solidarity liable in the manner above indicated.
Petitioners now maintain: (1) that the death of Agripino
Custodio was due exclusively to the negligence of the carrier
and its driver; (2) that petitioners were not guilty of negligence
in connection with the matter under consideration; (3) that
petitioners cannot be held solidarily liable with the carrier and
its driver; and (4) that the complaint against petitioners herein
should be dismissed.
With respect to the first two (2) points, which are interrelated,
it is urged that the carrier and its driver were clearly guilty of
negligence for having allowed Agripino Custodio to ride on
the running board of the bus, in violation of Section 42 of Act
No. 3992, and that this negligence was the proximate cause of
Agripino's death. It should be noted, however, that the lower
court had, likewise, found the petitioners guilty of contributory
negligence, which was as much a proximate cause of the
accident as the carrier's negligence, for petitioners' truck was
54
running at a considerable speed, despite the fact that it was
negotiating a sharp curve, and, instead of being close to its
right side of the road, said truck was driven on its middle
portion and so near the passenger bus coming from the
opposite direction as to sideswipe a passenger riding on its
running board.1äwphï1.ñët
The views of the Court of Appeals on the speed of the truck
and its location at the time of the accident are in the nature of
findings of fact, which we cannot disturb in a petition for
review by certiorari, such as the one at bar. At any rate, the
correctness of said findings is borne out by the very testimony
of petitioner Lagunda to the effect that he saw the passengers
riding on the running board of the bus while the same was still
five (5) or seven (7) meters away from the truck driven by
him. Indeed, the distance between the two (2) vehicles was
such that he could have avoided sideswiping said passengers if
his truck were not running at a great speed.
Although the negligence of the carrier and its driver is
independent, in its execution, of the negligence of the truck
driver and its owner, both acts of negligence are the proximate
cause of the death of Agripino Custodio. In fact, the
negligence of the first two (2) would not have produced this
result without the negligence of petitioners' herein. What is
more, petitioners' negligence was the last, in point of time, for
Custodio was on the running board of the carrier's bus
sometime before petitioners' truck came from the opposite
direction, so that, in this sense, petitioners' truck had the last
clear chance.
Petitioners contend that they should not be held solidarily
liable with the carrier and its driver, because the latter's
liability arises from a breach of contract, whereas that of the
former springs from a quasi delict. The rule is, however, that
According to the great weight of authority, where the
concurrent or successive negligent acts or omission
of two or more persons, although acting
independently of each other, are, in combination, the
direct and proximate cause of a single injury to a
third person, and it is impossible to determine in what
proportion each contributed to the injury, either is
responsible for the whole injury, even though his act
alone might not have caused the entire injury, or the
same damage might have resulted from the acts of the
other tort-feasor ... (38 Am. Jur. 946, 947.)
MERCEDES M. TEAGUE, petitioner,
vs.
ELENA FERNANDEZ, et al., respondent
MAKALINTAL, J.:
The facts are stated in the decision of the Court of Appeals as
follows:
The Realistic Institute, admittedly owned
and operated by defendant-appellee
Mercedes M. Teague was a vocational
school for hair and beauty culture situated
on the second floor of the Gil-Armi
Building, a two-storey, semi-concrete
edifice (Exhs. "C", "C-1" to "C-5" and "4")
located at the corner of Quezon Boulevard
and Soler Street, Quiapo, Manila. The said
second floor was unpartitioned, had a total
 area of about 400 square meters, and
although it had only one stairway, of about
1.50 meters in width, it had eight windows,
each of which was provided with two fire-
escape ladders (Exh. "4"), and the presence
of each of said fire-exits was indicated on
the wall (Exh. "5").
At about four o'clock in the afternoon of
October 24, 1955, a fire broke out in a store
for surplus materials located about ten
meters away from the institute. Soler Street
lay between that store and the institute.
Upon seeing the fire, some of the students in
the Realistic Institute shouted 'Fire! Fire!'
and thereafter, a panic ensued. Four
instructresses and six assistant instructress of
the Institute were present and they, together
with the registrar, tried to calm down the
students, who numbered about 180 at the
time, telling them not to be afraid because
the Gil-Armi Building would not get burned
as it is made of concrete, and that the fire
was anyway, across the street. They told the
students not to rush out but just to go down
the stairway two by two, or to use the fire-
escapes. Mrs. Justitia Prieto, one of the
instructresses, took to the microphone so as
to convey to the students the above
admonitions more effectively, and she even
slapped three students in order to quiet them
down. Miss Frino Meliton, the registrar,
whose desk was near the stairway, stood up
and tried with outstretched arms to stop the
students from rushing and pushing their way
to the stairs. The panic, however, could not
be subdued and the students, with the
exception of the few who made use of fire-
escapes kept on rushing and pushing their
way through the stairs, thereby causing
stampede therein.
Indeed, no part of the Gil-Armi Building
caught fire. But, after the panic was over,
four students, including Lourdes Fernandez,
a sister of plaintiffs-appellants, were found
dead and several others injured on account
of the stampede.
xxx xxx xxx
The injuries sustained by Lourdes Fernandez consisted of
lacerations in both eyes and on the upper lip, contused
abrasions in different parts of the body, internal hemorrhage
and fractures in the second and third right ribs. The cause of
death, according to the autopsy report, was "Shock due to
traumatic fractures of the ribs with perinephric hematoma and
lacerations of the conjunctiva of both eyes."
The deceased's five brothers and sisters filed an action for
damages against Mercedes M. Teague as owner and operator
of Realistic Institute. The Court of First Instance of Manila
found for the defendant and dismissed the case. The plaintiffs
thereupon appealed to the Court of Appeals, which by a
divided vote of 3 to 2 (a special division of five members
having been constituted) rendered a judgment of reversal and
sentenced the defendant to pay damages to the plaintiffs in the
sum of P11,000.00, plus interest at the legal rate from the date
the complaint was filed.
55
The case came up to this Court on a petition for review filed
by the defendant below.
The decision of the appellate court declared that the defendant,
hereinafter to be referred to as the petitioner, was negligent
and that such negligence was the proximate cause of the death
of Lourdes Fernandez. This finding of negligence is based
primarily on the fact that the provision of Section 491 Of the
Revised Ordinances of the City of Manila had not been
complied with in connection with the construction and use of
the Gil-Armi building where the petitioner's vocational school
was housed. This provision reads as follows:
Sec. 491. Firepro of partitions, exits and
stairways. — ... All buildings and separate
sections of buildings or buildings otherwise
known as accessorias having less than three
stories, having one or more persons
domiciled therein either temporarily or
permanently, and all public or quasi-public
buildings having less than three stories, such
as hospitals, sanitarium, schools,
reformatories, places of human detention,
assembly halls, clubs, restaurants or
panciterias, and the like, shall be provided
with at least two unobstructed stairways of
not less than one meter and twenty
centimeters in width and an inclination of
not less than forty degrees from the
perpendicular, in case of large buildings
more than two stairways shall likewise be
provided when required by the chief of the
fire department, said stairways shall be
placed as far apart as possible.
The alleged violation of the ordinance above-quoted consisted
in the fact that the second storey of the Gil-Armi building had
only one stairway, 1.5 meters wide, instead of two of at least
1.2 meters each, although at the time of the fire the owner of
the building had a second stairway under construction.
In ruling that such non-compliance with the City Ordinances
was an act of negligence and that such negligence was the
proximate cause of the death of Lourdes Fernandez, reliance is
based on a number of authorities in the American jurisdiction,
thus: .
The mere fact of violation of a statute is not
sufficient basis for an inference that such
violation was the proximate cause of the
injury complained. However, if the very
injury has happened which was intended to
be prevented by the statute, it has been held
that violation of the statute will be deemed
to be proximate cause of the injury. (65
C.J.S. 1156).
The generally accepted view is that violation
of a statutory duty constitutes negligence,
negligence as a matter or law, or, according
to the decisions on the question, negligence
per se for the reason that non-observance of
what the legislature has prescribed as a
suitable precaution is failure to observe that
care which an ordinarily prudent man would
observe, and, when the state regards certain
acts as so liable to injure others as to justify
their absolute prohibition, doing the
forbidden act is a breach of duty with
respect to those who may be injured thereby;
 or, as it has been otherwise expressed, when
the standard of care is fixed by law, failure
to conform to such standard is negligence,
negligence per se or negligence in and of
itself, in the absence of a legal
excuse. According to this view it is
immaterial, where a statute has been
violated, whether the act or omission
constituting such violation would have been
regarded as negligence in the absence of
any statute on the subject or whether there
was, as a matter of fact, any reason to
anticipate that injury would result from such
violation. .... (65 C.J.S. pp. 623-628).
But the existence of an ordinance changes
the situation. If a driver causes an accident
by exceeding the speed limit, for example,
do not inquire whether his prohibited
conduct was unreasonably dangerous. It is
enough that it was prohibited. Violation of
an ordinance intended to promote safety is
negligence. If by creating the hazard which
the ordinance was intended to avoid it brings
about the harm which the ordinance was
intended to prevent, it is a legal cause of the
harm. This comes only to saying that in such
circumstances the law has no reason to
ignore the causal relation which obviously
exists in fact. The law has excellent reason
to recognize it, since it is the very relation
which the makers of the ordinance
anticipated. This court has applied these
principles to speed limits and other
regulations of the manner of driving. (Ross
vs. Hartman, 139 Fed. 2d 14 at 15).
... However, the fact that other happenings
causing or contributing toward an injury
intervened between the violation of a statute
or ordinance and the injury does not
necessarily make the result so remote that no
action can be maintained. The test is to be
found not in the number of intervening
events or agents, but in their character and in
the natural and probable connection between
the wrong done and the injurious
consequence. The general principle is that
the violation of a statute or ordinance is not
rendered remote as the cause of an injury by
the intervention of another agency if the
occurrence of the accident, in the manner in
which it happened, was the very thing which
the statute or ordinance was intended to
Prevent. (38 Am Jur 841).
The petitioner has raised a number of issues. The first is that
Section 491 of the Revised Ordinances of the City of Manila
refers to public buildings and hence did not apply to the Gil-
Armi building which was of private ownership. It will be
noted from the text of the ordinance, however, that it is not
ownership which determines the character of buildings subject
to its requirements, but rather the use or the purpose for which
a particular building is utilized. Thus the same may be
privately owned, but if it is devoted to any one of the purposes
mentioned in the ordinance — for instance as a school, which
the Realistic Institute precisely was — then the building is
within the coverage of the ordinance. Indeed the requirement
that such a building should have two (2) separate stairways
instead of only one (1) has no relevance or reasonable relation
56
to the fact of ownership, but does have such relation to the use
or purpose for which the building is devoted.
It is next contended that the obligation to comply with the
ordinance devolved upon the owners of the building and
therefore it is they and not the petitioner herein, who is a mere
lessee, who should be liable for the violation. The contention
ignores the fact that it was the use of the building for school
purposes which brought the same within the coverage of the
ordinance; and it was the petitioner and not the owners who
was responsible for such use.
The next issue, indeed the basic one, raised by the petitioner is
whether or not the failure to comply with the requirement of
the ordinance was the proximate cause of the death of Lourdes
Fernandez. The case of Villanueva Vda. de Bataclan, et al. vs.
Medina, G. R. No. L-10126, October 22, 1957, is cited in
support of the contention that such failure was not the
proximate cause. It is there stated by this Court:
The proximate legal cause is that acting first
and producing the injury, either immediately
or by settling other events in motion, all
constituting a natural and continuous chain
of events, each having a close causal
connection with its immediate predecessor,
the final event in the chain immediately
affecting the injury as a natural and probable
result of the cause which first acted, under
such circumstances that the person
responsible for the first event should, as an
ordinarily prudent and intelligent person,
have reasonable ground to expect at the
moment of his act or default that an injury to
some person might probably result
therefrom.
Having in view the decision just quoted, the petitioner relates
the chain of events that resulted in the death of Lourdes
Fernandez as follows: (1) violation of ordinance; (2) fire at a
neighboring place; (3) shouts of "Fire!, Fire!"; (4) panic in the
Institute; (5) stampede; and (6) injuries and death.
As thus projected the violation of the ordinance, it is argued,
was only a remote cause, if at all, and cannot be the basis of
liability since there intervened a number of independent causes
which produced the injury complained of. A statement of the
doctrine relied upon is found in Manila Electric Co. vs.
Remoquillo, L-8328, May 18, 1956, wherein this Court,
citing Corpus Juris said:
A prior and remote cause cannot be made
the basis of an action if such remote cause
did nothing more than furnish the condition
or give rise to the occasion by which the
injury was made possible, if there intervened
between such prior or remote cause and the
injury a distinct, successive unrelated, and
efficient cause of the injury, even though
such injury would not have happened but for
such condition or occasion. If no danger
existed in the condition except because of
the independent cause, such condition was
not the proximate cause. And if an
independent negligent act or defective
condition sets into operation the
circumstances which result in injury because
of the prior defective condition, such
subsequent act or condition is the proximate
cause. (45 C.J. p. 931.)
According to the petitioner "the events of fire, panic and
stampede were independent causes with no causal connection
at all with the violation of the ordinance." The weakness in the
argument springs from a faulty juxtaposition of the events
which formed a chain and resulted in the injury. It is true that
the petitioner's non-compliance with the ordinance in question
was ahead of and prior to the other events in point of time, in
the sense that it was coetaneous with its occupancy of the
building. But the violation was a continuing one, since the
ordinance was a measure of safety designed to prevent a
specific situation which would pose a danger to the occupants
of the building. That situation was undue overcrowding in case
it should become necessary to evacuate the building, which, it
could be reasonably foreseen, was bound to happen under
emergency conditions if there was only one stairway available.
It is true that in this particular case there would have been no
overcrowding in the single stairway if there had not been a fire
in the neighborhood which caused the students to panic and
rush headlong for the stairs in order to go down. But it was
precisely such contingencies or event that the authors of the
ordinance had in mind, for under normal conditions one
stairway would be adequate for the occupants of the building.
Thus, as stated in 38 American Jurisprudence, page 841: "The
general principle is that the violation of a statute or ordinance
is not rendered remote as the cause of an injury by the
intervention of another agency if the occurrence of the
accident, in the manner in which it happened, was the very
thing which the statute or ordinance was intended to prevent."
To consider the violation of the ordinance as the proximate
cause of the injury does not portray the situation in its true
perspective; it would be more accurate to say that the
overcrowding at the stairway was the proximate cause and that
it was precisely what the ordinance intended to prevent by
requiring that there be two stairways instead of only one.
Under the doctrine of the cases cited by the respondents, the
principle of proximate cause applies to such violation.
A procedural point mentioned by the petitioner is that the
complaint did not specifically allege that the ordinance in
question had been violated. The violation, however, as an act
of negligence which gave rise to liability, was sufficiently
comprehended within paragraph 7 of the complaint, which
reads: .
Par. 7. That the death of Lourdes Fernandez
was due to the gross negligence of the
defendant who failed to exercise due care
and diligence for the safety of its students in
not providing the building with adequate fire
exits and in not practicing fire drill exercises
to avoid the stampede, aside from the fact
that the defendant did not have a permit to
use the building as a school-house.
The decision appealed from is affirmed, with costs.
RAMON K. ILUSORIO, petitioner,
vs.
HON. COURT OF APPEALS, and THE MANILA
BANKING CORPORATION, respondents.
QUISUMBING, J.:
This petition for review seeks to reverse the
decision1 promulgated on January 28, 1999 by the Court of
Appeals in CA-G.R. CV No. 47942, affirming the decision of
the then Court of First Instance of Rizal, Branch XV (now the
57
Regional Trial Court of Makati, Branch 138) dismissing Civil
Case No. 43907, for damages.
The facts as summarized by the Court of Appeals are as
follows:
Petitioner is a prominent businessman who, at the time
material to this case, was the Managing Director of
Multinational Investment Bancorporation and the Chairman
and/or President of several other corporations. He was a
depositor in good standing of respondent bank, the Manila
Banking Corporation, under current Checking Account No.
06-09037-0. As he was then running about 20 corporations,
and was going out of the country a number of times, petitioner
entrusted to his secretary, Katherine2 E. Eugenio, his credit
cards and his checkbook with blank checks. It was also
Eugenio who verified and reconciled the statements of said
checking account.3
Between the dates September 5, 1980 and January 23, 1981,
Eugenio was able to encash and deposit to her personal
account about seventeen (17) checks drawn against the
account of the petitioner at the respondent bank, with an
aggregate amount of P119,634.34. Petitioner did not bother to
check his statement of account until a business partner
apprised him that he saw Eugenio use his credit cards.
Petitioner fired Eugenio immediately, and instituted a criminal
action against her for estafa thru falsification before the Office
of the Provincial Fiscal of Rizal. Private respondent, through
an affidavit executed by its employee, Mr. Dante Razon, also
lodged a complaint for estafa thru falsification of commercial
documents against Eugenio on the basis of petitioner’s
statement that his signatures in the checks were forged.4 Mr.
Razon’s affidavit states:
That I have examined and scrutinized the following checks in
accordance with prescribed verification procedures with
utmost care and diligence by comparing the signatures affixed
thereat against the specimen signatures of Mr. Ramon K.
Ilusorio which we have on file at our said office on such dates,
xxx
That the aforementioned checks were among those issued by
Manilabank in favor of its client MR. RAMON K.
ILUSORIO,…
That the same were personally encashed by KATHERINE E.
ESTEBAN, an executive secretary of MR. RAMON K.
ILUSORIO in said Investment Corporation;
That I have met and known her as KATHERINE E.
ESTEBAN the attending verifier when she personally
encashed the above-mentioned checks at our said office;
That MR. RAMON K. ILUSORIO executed an affidavit
expressly disowning his signature appearing on the checks
further alleged to have not authorized the issuance and
encashment of the same.…5
Petitioner then requested the respondent bank to credit back
and restore to its account the value of the checks which were
wrongfully encashed but respondent bank refused. Hence,
petitioner filed the instant case.6
At the trial, petitioner testified on his own behalf, attesting to
the truth of the circumstances as narrated above, and how he
discovered the alleged forgeries. Several employees of Manila
Bank were also called to the witness stand as hostile
witnesses. They testified that it is the bank’s standard
operating procedure that whenever a check is presented for
encashment or clearing, the signature on the check is first
verified against the specimen signature cards on file with the
bank.
Manila Bank also sought the expertise of the National Bureau
of Investigation (NBI) in determining the genuineness of the
signatures appearing on the checks. However, in a letter dated
March 25, 1987, the NBI informed the trial court that they
could not conduct the desired examination for the reason that
the standard specimens submitted were not sufficient for
purposes of rendering a definitive opinion. The NBI then
suggested that petitioner be asked to submit seven (7) or more
additional standard signatures executed before or about, and
immediately after the dates of the questioned checks.
Petitioner, however, failed to comply with this request.
After evaluating the evidence on both sides, the court a quo
rendered judgment on May 12, 1994 with the following
dispositive portion:
WHEREFORE, finding no sufficient basis for plaintiff's cause
herein against defendant bank, in the light of the foregoing
considerations and established facts, this case would have to
be, as it is hereby DISMISSED.
Defendant’s counterclaim is likewise DISMISSED for lack of
sufficient basis.
SO ORDERED.7
Aggrieved, petitioner elevated the case to the Court of Appeals
by way of a petition for review but without success. The
appellate court held that petitioner’s own negligence was the
proximate cause of his loss. The appellate court disposed as
follows:
WHEREFORE, the judgment appealed from is AFFIRMED.
Costs against the appellant.
SO ORDERED.8
Before us, petitioner ascribes the following errors to the Court
of Appeals:
A. THE COURT OF APPEALS ERRED IN NOT HOLDING
THAT THE RESPONDENT BANK IS ESTOPPED FROM
RAISING THE DEFENSE THAT THERE WAS NO
FORGERY OF THE SIGNATURES OF THE PETITIONER
IN THE CHECK BECAUSE THE RESPONDENT FILED A
CRIMINAL COMPLAINT FOR ESTAFA THRU
FALSIFICATION OF COMMERCIAL DOCUMENTS
AGAINST KATHERINE EUGENIO USING THE
AFFIDAVIT OF PETITIONER STATING THAT HIS
SIGNATURES WERE FORGED AS PART OF THE
AFFIDAVIT-COMPLAINT.9
B. THE COURT OF APPEALS ERRED IN NOT APPLYING
SEC. 23, NEGOTIABLE INSTRUMENTS LAW.10
C. THE COURT OF APPEALS ERRED IN NOT HOLDING
THE BURDEN OF PROOF IS WITH THE RESPONDENT
BANK TO PROVE THE DUE DILIGENCE TO PREVENT
DAMAGE, TO THE PETITIONER, AND THAT IT WAS
NOT NEGLIGENT IN THE SELECTION AND
SUPERVISION OF ITS EMPLOYEES.11
58
D. THE COURT OF APPEALS ERRED IN NOT HOLDING
THAT RESPONDENT BANK SHOULD BEAR THE LOSS,
AND SHOULD BE MADE TO PAY PETITIONER, WITH
RECOURSE AGAINST KATHERINE EUGENIO
ESTEBAN.12
Essentially the issues in this case are: (1) whether or not
petitioner has a cause of action against private respondent; and
(2) whether or not private respondent, in filing an estafa case
against petitioner’s secretary, is barred from raising the
defense that the fact of forgery was not established.
Petitioner contends that Manila Bank is liable for damages for
its negligence in failing to detect the discrepant checks. He
adds that as a general rule a bank which has obtained
possession of a check upon an unauthorized or forged
endorsement of the payee’s signature and which collects the
amount of the check from the drawee is liable for the proceeds
thereof to the payee. Petitioner invokes the doctrine of
estoppel, saying that having itself instituted a forgery case
against Eugenio, Manila Bank is now estopped from asserting
that the fact of forgery was never proven.
For its part, Manila Bank contends that respondent appellate
court did not depart from the accepted and usual course of
judicial proceedings, hence there is no reason for the reversal
of its ruling. Manila Bank additionally points out that Section
2313 of the Negotiable Instruments Law is inapplicable,
considering that the fact of forgery was never proven. Lastly,
the bank negates petitioner’s claim of estoppel.14
On the first issue, we find that petitioner has no cause of
action against Manila Bank. To be entitled to damages,
petitioner has the burden of proving negligence on the part of
the bank for failure to detect the discrepancy in the signatures
on the checks. It is incumbent upon petitioner to establish the
fact of forgery, i.e., by submitting his specimen signatures and
comparing them with those on the questioned checks.
Curiously though, petitioner failed to submit additional
specimen signatures as requested by the National Bureau of
Investigation from which to draw a conclusive finding
regarding forgery. The Court of Appeals found that petitioner,
by his own inaction, was precluded from setting up forgery.
Said the appellate court:
We cannot fault the court a quo for such declaration,
considering that the plaintiff’s evidence on the alleged forgery
is not convincing enough. The burden to prove forgery was
upon the plaintiff, which burden he failed to discharge. Aside
from his own testimony, the appellant presented no other
evidence to prove the fact of forgery. He did not even submit
his own specimen signatures, taken on or about the date of the
questioned checks, for examination and comparison with those
of the subject checks. On the other hand, the appellee
presented specimen signature cards of the appellant, taken at
various years, namely, in 1976, 1979 and 1981 (Exhibits "1",
"2", "3" and "7"), showing variances in the appellant’s
unquestioned signatures. The evidence further shows that the
appellee, as soon as it was informed by the appellant about his
questioned signatures, sought to borrow the questioned checks
from the appellant for purposes of analysis and examination
(Exhibit "9"), but the same was denied by the appellant. It was
also the former which sought the assistance of the NBI for an
expert analysis of the signatures on the questioned checks, but
the same was unsuccessful for lack of sufficient specimen
signatures.15
Moreover, petitioner’s contention that Manila Bank was
remiss in the exercise of its duty as drawee lacks factual basis.
Consistently, the CA and the RTC found that Manila Bank
employees exercised due diligence in cashing the checks. The
bank’s employees in the present case did not have a hint as to
Eugenio’s modus operandi because she was a regular customer
of the bank, having been designated by petitioner himself to
transact in his behalf. According to the appellate court, the
employees of the bank exercised due diligence in the
performance of their duties. Thus, it found that:
The evidence on both sides indicates that TMBC’s employees
exercised due diligence before encashing the checks. Its
verifiers first verified the drawer’s signatures thereon as
against his specimen signature cards, and when in doubt, the
verifier went further, such as by referring to a more
experienced verifier for further verification. In some instances
the verifier made a confirmation by calling the depositor by
phone. It is only after taking such precautionary measures that
the subject checks were given to the teller for payment.
Of course it is possible that the verifiers of TMBC might have
made a mistake in failing to detect any forgery -- if indeed
there was. However, a mistake is not equivalent to negligence
if they were honest mistakes. In the instant case, we believe
and so hold that if there were mistakes, the same were not
deliberate, since the bank took all the precautions.16
As borne by the records, it was petitioner, not the bank, who
was negligent. Negligence is the omission to do something
which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or
the doing of something which a prudent and reasonable man
would do.17 In the present case, it appears that petitioner
accorded his secretary unusual degree of trust and unrestricted
access to his credit cards, passbooks, check books, bank
statements, including custody and possession of cancelled
checks and reconciliation of accounts. Said the Court of
Appeals on this matter:
Moreover, the appellant had introduced his secretary to the
bank for purposes of reconciliation of his account, through a
letter dated July 14, 1980 (Exhibit "8"). Thus, the said
secretary became a familiar figure in the bank. What is worse,
whenever the bank verifiers call the office of the appellant, it
is the same secretary who answers and confirms the checks.
The trouble is, the appellant had put so much trust and
confidence in the said secretary, by entrusting not only his
credit cards with her but also his checkbook with blank
checks. He also entrusted to her the verification and
reconciliation of his account. Further adding to his injury was
the fact that while the bank was sending him the monthly
Statements of Accounts, he was not personally checking the
same. His testimony did not indicate that he was out of the
country during the period covered by the checks. Thus, he had
all the opportunities to verify his account as well as the
cancelled checks issued thereunder -- month after month. But
he did not, until his partner asked him whether he had
entrusted his credit card to his secretary because the said
partner had seen her use the same. It was only then that he was
minded to verify the records of his account. 18
The abovecited findings are binding upon the reviewing court.
We stress the rule that the factual findings of a trial court,
especially when affirmed by the appellate court, are binding
upon us19 and entitled to utmost respect20 and even finality. We
find no palpable error that would warrant a reversal of the
appellate court’s assessment of facts anchored upon the
evidence on record.
59
Petitioner’s failure to examine his bank statements appears as
the proximate cause of his own damage. Proximate cause is
that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have
occurred.21 In the instant case, the bank was not shown to be
remiss in its duty of sending monthly bank statements to
petitioner so that any error or discrepancy in the entries therein
could be brought to the bank’s attention at the earliest
opportunity. But, petitioner failed to examine these bank
statements not because he was prevented by some cause in not
doing so, but because he did not pay sufficient attention to the
matter. Had he done so, he could have been alerted to any
anomaly committed against him. In other words, petitioner had
sufficient opportunity to prevent or detect any
misappropriation by his secretary had he only reviewed the
status of his accounts based on the bank statements sent to him
regularly. In view of Article 2179 of the New Civil
Code,22 when the plaintiff’s own negligence was the
immediate and proximate cause of his injury, no recovery
could be had for damages.
Petitioner further contends that under Section 23 of the
Negotiable Instruments Law a forged check is inoperative, and
that Manila Bank had no authority to pay the forged checks.
True, it is a rule that when a signature is forged or made
without the authority of the person whose signature it purports
to be, the check is wholly inoperative. No right to retain the
instrument, or to give a discharge therefor, or to enforce
payment thereof against any party, can be acquired through or
under such signature. However, the rule does provide for an
exception, namely: "unless the party against whom it is sought
to enforce such right is precluded from setting up the forgery
or want of authority." In the instant case, it is the exception
that applies. In our view, petitioner is precluded from setting
up the forgery, assuming there is forgery, due to his own
negligence in entrusting to his secretary his credit cards and
checkbook including the verification of his statements of
account.
Petitioner’s reliance on Associated Bank vs. Court of
Appeals23 and Philippine Bank of Commerce vs. CA24 to
buttress his contention that respondent Manila Bank as the
collecting or last endorser generally suffers the loss because it
has the duty to ascertain the genuineness of all prior
endorsements is misplaced. In the cited cases, the fact of
forgery was not in issue. In the present case, the fact of forgery
was not established with certainty. In those cited cases, the
collecting banks were held to be negligent for failing to
observe precautionary measures to detect the forgery. In the
case before us, both courts below uniformly found that Manila
Bank’s personnel diligently performed their duties, having
compared the signature in the checks from the specimen
signatures on record and satisfied themselves that it was
petitioner’s.
On the second issue, the fact that Manila Bank had filed a case
for estafa against Eugenio would not estop it from asserting
the fact that forgery has not been clearly established. Petitioner
cannot hold private respondent in estoppel for the latter is not
the actual party to the criminal action. In a criminal action, the
State is the plaintiff, for the commission of a felony is an
offense against the State.25 Thus, under Section 2, Rule 110 of
the Rules of Court the complaint or information filed in court
is required to be brought in the name of the "People of the
Philippines." 26
Further, as petitioner himself stated in his petition, respondent
bank filed the estafa case against Eugenio on the basis of
petitioner’s own affidavit,27 but without admitting that he had
any personal knowledge of the alleged forgery. It is, therefore,
easy to understand that the filing of the estafa case by
respondent bank was a last ditch effort to salvage its ties with
the petitioner as a valuable client, by bolstering the estafa case
which he filed against his secretary.

All told, we find no reversible error that can be ascribed to the

Court of Appeals.

WHEREFORE, the instant petition is DENIED for lack of

merit. The assailed decision of the Court of Appeals dated
January 28, 1999 in CA-G.R. CV No. 47942, is AFFIRMED.

Costs against petitioner.

60