GENERAL CONCEPTS

1. SAFEGUARD SECURITY AGENCY VS TANGCO convicted Pajarillo of Homicide in its Decision dated January 19,
SAFEGUARD SECURITY G.R. NO. 165732 2000.[3] On appeal to the CA, the RTC decision was affirmed with
AGENCY, INC., and ADMER modification as to the penalty in a Decision [4] dated July 31, 2000.
PAJARILLO, Entry of Judgment was made on August 25, 2001.
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and Meanwhile, on January 14, 1998, respondents filed with RTC,
CHICO-NAZARIO, JJ. Branch 273, Marikina City, a complaint[5] for damages
against Pajarillo for negligently shooting Evangeline and against
LAURO TANGCO, VAL TANGCO, Safeguard for failing to observe the diligence of a good father of a
VERN LARRY TANGCO, VAN family to prevent the damage committed by its security guard.
LAURO TANGCO, VON LARRIE Respondents prayed for actual, moral and exemplary damages and
TANGCO, VIEN LARI TANGCO attorneys fees.
and VIVIEN LAURIZ TANGCO, Promulgated:
Respondents. December 14, 2006 In their Answer,[6] petitioners denied the material allegations in
x- - - - - - - X the complaint and alleged that Safeguard exercised the diligence of
DECISION a good father of a family in the selection and supervision of Pajarillo;
that Evangelines death was not due to Pajarillos negligence as the
AUSTRIA-MARTINEZ, J.: latter acted only in self-defense. Petitioners set up a compulsory
counterclaim for moral damages and attorneys fees.

Before us is a petition for review on certiorari filed by Safeguard Trial thereafter ensued. On January 10, 2003, the RTC rendered
Security Agency, Inc. (Safeguard) and Admer Pajarillo (Pajarillo) its Decision,[7] the dispositive portion of which reads:
assailing the Decision[1] dated July 16, 2004 and the
Resolution dated October 20, 2004 issued by the Court of Appeals
[2] WHEREFORE, judgment is hereby rendered in
(CA) in CA-G.R. CV No. 77462. favor of the plaintiffs, the heirs of Evangeline Tangco,
On November 3, 1997, at about 2:50 p.m., and against defendants Admer Pajarillo and Safeguard
Evangeline Tangco (Evangeline) went to Ecology Security Agency, Inc. ordering said defendants to pay
Bank, Katipunan Branch, Quezon City, to renew her time deposit per the plaintiffs, jointly and severally, the following:
advise of the banks cashier as she would sign a specimen
card. Evangeline, a duly licensed firearm holder with corresponding 1. ONE HUNDRED FIFTY SEVEN
permit to carry the same outside her residence, approached security THOUSAND FOUR HUNDRED THIRTY PESOS
guard Pajarillo, who was stationed outside the bank, and pulled out (P157,430.00), as actual damages
her firearm from her bag to deposit the same for safekeeping. 2. FIFTY THOUSAND PESOS (P50,000.00)
Suddenly, Pajarillo shot Evangeline with his service shotgun hitting her as death indemnity;
in the abdomen instantly causing her death. 3. ONE MILLION PESOS (P1,000,000.00),
as moral damages;
Lauro Tangco, Evangelines husband, together with his six minor 4. THREE HUNDRED THOUSAND PESOS
children (respondents) filed with the Regional Trial Court (RTC) (P300,000.00), as exemplary damages;
of Quezon City, a criminal case of Homicide against Pajarillo, 5. THIRTY THOUSAND PESOS
docketed as Criminal Case No. 0-97-73806 and assigned to Branch (P30,000.00), as attorneys fees; and
78. Respondents reserved their right to file a separate civil action in the 6. costs of suit.
said criminal case. The RTC of Quezon City subsequently
 For lack of merit, defendants counterclaim is
hereby DISMISSED.
SO ORDERED. [8]
The RTC found respondents to be entitled to damages. It
rejected Pajarillos claim that he merely acted in self-defense. It gave
no credence to Pajarillos bare claim that Evangeline was seen
roaming around the area prior to the shooting incident
since Pajarillo had not made such report to the head office and the
police authorities. The RTC further ruled that being the guard on duty,
the situation demanded that he should have exercised proper
prudence and necessary care by asking Evangeline for him to
ascertain the matter instead of shooting her instantly; that Pajarillo had
already been convicted of Homicide in Criminal Case No. 0-97-73806;
and that he also failed to proffer proof negating liability in the instant
case.
The RTC also found Safeguard as employer of Pajarillo to be
jointly and severally liable with Pajarillo. It ruled that while it may be
conceded that Safeguard had perhaps exercised care in the
selection of its employees, particularly of Pajarillo, there was no
sufficient evidence to show that Safeguard exercised the diligence of
a good father of a family in the supervision of its employee; that
Safeguards evidence simply showed that it required its guards to
attend trainings and seminars which is not the supervision
contemplated under the law; that supervision includes not only the
issuance of regulations and instructions designed for the protection of
persons and property, for the guidance of their servants and
employees, but also the duty to see to it that such regulations and
instructions are faithfully complied with.
Petitioners appealed the RTC decision to the CA. On July 16,
2004, the CA issued its assailed Decision, the dispositive portion of
which reads:
IN VIEW OF ALL THE FOREGOING, the appealed
decision is hereby AFFIRMED, with the modification that
Safeguard Security Agency, Inc.s civil liability in this
case is only subsidiary under Art. 103 of the Revised
Penal Code. No pronouncement as to costs.[9]
In finding that Safeguard is only subsidiarily liable, the CA
held that the applicable provisions are not Article 2180 in relation to
Article 2176 of the Civil Code, on quasi-delicts, but the provisions on
civil liability arising from felonies under the Revised Penal Code; that
since Pajarillo had been found guilty of Homicide in a final
and executoryjudgment and is said to be serving sentence
in Muntinlupa, he must be adjudged civilly liable under the provisions
of Article 100 of the Revised Penal Code since the civil liability
recoverable in the criminal action is one solely dependent upon
conviction, because said liability arises from the offense charged and
no other; that this is also the civil liability that is deemed extinguished
with the extinction of the penal liability with a pronouncement that the
fact from which the civil action might proceed does not exist; that
unlike in civil liability arising from quasi-delict, the defense of diligence
of a good father of a family in the employment and supervision of
employees is inapplicable and irrelevant in civil liabilities based on
crimes or ex-delicto; that Article 103 of the Revised Penal Code
provides that the liability of an employer for the civil liability of their
employees is only subsidiary, not joint or solidary.
Petitioners filed their Motion for Reconsideration which the CA
denied in a Resolution dated October 20, 2004.
Hence, the instant Petition for Review on Certiorari with the
following assignment of errors, to wit:
The Honorable Court of Appeals gravely erred
in finding petitioner Pajarillo liable to respondents for
the payment of damages and other money claims.
The Honorable Court of Appeals gravely erred
when it applied Article 103 of the Revised Penal Code
in holding petitioner Safeguard solidarily [sic] liable with
petitioner Pajarillo for the payment of damages and
other money claims.
The Honorable Court of Appeals gravely erred in
failing to find that petitioner Safeguard Security
Agency, Inc. exercised due diligence in the selection
and supervision of its employees, hence, should be
excused from any liability.[10]
The issues for resolution are whether (1) Pajarillo is guilty of
negligence in shooting Evangeline; and (2) Safeguard should be
held solidarily liable for the damages awarded to respondents.
 Safeguard insists that the claim for damages by respondents is
based on culpa aquiliana under Article 2176[11] of the Civil
Code, in which case, its liability is jointly and severally
with Pajarillo. However, since it has established that it had exercised
due diligence in the selection and supervision of Pajarillo, it should be
exonerated from civil liability.
We will first resolve whether the CA correctly held that
respondents, in filing a separate civil action against petitioners are
limited to the recovery of damages arising from a crime or delict, in
which case the liability of Safeguard as employer under Articles 102
and 103 of the Revised Penal Code[12] is subsidiary and the defense of
due diligence in the selection and supervision of employee is not
available to it.
The CA erred in ruling that the liability of Safeguard is only
subsidiary.
The law at the time the complaint for damages was filed is Rule
111 of the 1985 Rules on Criminal Procedure, as amended, to wit:
SECTION 1. Institution of criminal and civil
actions. - When a
criminal action is instituted, the civil action for the recov
ery of civil
liability is impliedly instituted with the criminal action,
unless the offended party waives the civil action,
reserves his right to institute it separately, or institutes the
civil action prior to the criminal action.
Such civil action includes recovery of indemnity
under the Revised Penal Code, and damages under
Articles 32, 33, 34, and 2176 of the Civil Code of
the Philippines arising from the same act or omission of
the accused.
Respondents reserved the right to file a separate civil action
and in fact filed the same on January 14, 1998.
The CA found that the source of damages in the instant case
must be the crime of homicide, for which he had already been found
guilty of and serving sentence thereof, thus must be governed by the
Revised Penal Code.
We do not agree.
An act or omission causing damage to another may give rise
to two separate civil liabilities on the part of the offender, i.e., (1) civil
liability ex delicto, under Article 100 of the Revised Penal Code; and
(2) independent civil liabilities, such as those (a) not arising from an
act or omission complained of as a felony, e.g., culpa contractual or
obligations arising from law under Article 31 of the Civil Code,
intentional torts under Articles 32 and 34, and culpa aquiliana under
Article 2176 of the Civil Code; or (b) where the injured party is granted
a right to file an action independent and distinct from the criminal
action under Article 33 of the Civil Code. Either of these liabilities may
be enforced against the offender subject to the caveat under Article
2177 of the Civil Code that the offended party cannot recover
damages twice for the same act or omission or under both causes.[13]
It is important to determine the nature of respondents cause of
action. The nature of a cause of action is determined by the facts
alleged in the complaint as constituting the cause of action.[14] The
purpose of an action or suit and the law to govern it is to be
determined not by the claim of the party filing the action, made in his
argument or brief, but rather by the complaint itself, its allegations and
prayer for relief.[15]
The pertinent portions of the complaint read:
7. That Defendant Admer A. Pajarillo was the
guard assigned and posted in the Ecology
Bank Katipunan Branch, Quezon City, who was
employed and under employment of Safeguard
Security Agency, Inc. hence there is employer-
employee relationship between co-defendants.
The Safeguard Security Agency, Inc. failed to observe
the diligence of a good father of a family to prevent
damage to herein plaintiffs.
8. That defendant Admer Pajarillo upon seeing
Evangeline Tangco, who brought her firearm out of her
bag, suddenly without exercising necessary
caution/care, and in idiotic manner, with the use of his
 shotgun, fired and burst bullets upon Evangeline
M. Tangco, killing her instantly. x x x
xxxx
16. That defendants, being employer and the
employee are jointly and severally liable for the death
of Evangeline M. Tangco.[16]
Thus, a reading of respondents complaint shows that the latter are
invoking their right to recover damages against Safeguard for their
vicarious responsibility for the injury caused by Pajarillos act of shooting
and killing Evangeline under Article 2176, Civil Code which provides:
ARTICLE 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 scope of Article 2176 is not limited to acts or omissions
resulting from negligence. In Dulay v. Court of Appeals,[17] we held:
x x x Well-entrenched is the doctrine that Article
2176 covers not only acts committed with negligence,
but also acts which are voluntary and intentional. As far
back as the definitive case of Elcano v. Hill (77 SCRA 98
[1977]), this Court already held that:
"x x x Article 2176, where it refers to "fault or
negligence," covers not only acts "not punishable by
law" but also acts criminal in character, whether
intentional and voluntary or negligent. Consequently, a
separate civil action lies against the offender in a
criminal act, whether or not he is criminally prosecuted
and found guilty or acquitted, provided that the
offended party is not allowed, if he is actually charged
also criminally, to recover damages on both scores,
and would be entitled in such eventuality only to the
bigger award of the two, assuming the awards made in
the two cases vary. In other words, the extinction of civil
liability referred to in Par. (e) of Section 3, Rule 111,
refers exclusively to civil liability founded on Article 100
of the Revised Penal Code, whereas the civil liability for
the same act considered as quasi-delict only and not
as a crime is not extinguished even by a declaration in
the criminal case that the criminal act charged has not
happened or has not been committed by the
accused. Briefly stated, We here hold, in reiteration of
Garcia, that culpa aquiliana includes voluntary and
negligent acts which may be punishable by
law." (Emphasis supplied)
The civil action filed by respondents was not derived from the
criminal liability of Pajarillo in the criminal case but one based
on culpa aquiliana or quasi-delict which is separate and distinct from
the civil liability arising from crime.[18] The source of the obligation
sought to be enforced in the civil case is a quasi-delict not an act or
omission punishable by law.
In Bermudez v. Melencio-Herrera,[19] where the issue involved
was whether the civil action filed by plaintiff-appellants is founded on
crime or on quasi-delict, we held:
x x x The trial court treated the case as an
action based on a crime in view of the reservation
made by the offended party in the criminal case
(Criminal Case No. 92944), also pending before the
court, to file a separate civil action. Said the trial court:
It would appear that plaintiffs instituted this
action on the assumption that
defendant Pontino's negligence in the accident of May
10, 1969 constituted a quasi-delict. The Court cannot
accept the validity of that assumption. In Criminal Case
No. 92944 of this Court, plaintiffs had already appeared
as complainants. While that case was pending, the
offended parties reserved the right to institute a
separate civil action. If, in a criminal case, the right to
file a separate civil action for damages is reserved,
such civil action is to be based on crime and not on
tort. That was the ruling in Joaquin vs. Aniceto, L-
18719, Oct. 31, 1964.
 We do not agree. The doctrine in the case cited
by the trial court is inapplicable to the instant case x x x.
xxxx
In cases of negligence, the injured party or his
heirs has the choice between an action to enforce the
civil liability arising from crime under Article 100 of the
Revised Penal Code and an action for quasi-
delict under Article 2176-2194 of the Civil Code. If a
party chooses the latter, he may hold the
employer solidarily liable for the negligent act of his
employee, subject to the employer's defense of
exercise of the diligence of a good father of the family.
In the case at bar, the action filed by appellant
was an action for damages based on quasi-delict. The
fact that appellants reserved their right in the criminal
case to file an independent civil action did not
preclude them from choosing to file a civil action
for quasi-delict.[20] (Emphasis supplied)
Although the judgment in the criminal case
finding Pajarillo guilty of Homicide is already final and executory, such
judgment has no relevance or importance to this case.[21] It would
have been entirely different if respondents cause of action was for
damages arising from a delict, in which case the CA is correct in
finding Safeguard to be only subsidiary liable pursuant to Article 103 of
the Revised Penal Code.[22]
As clearly shown by the allegations in the
complaint, respondents cause of action is based on quasi-
delict. Under Article 2180 of the Civil Code, when the injury is caused
by the negligence of the employee, there instantly arises a
presumption of law that there was negligence on the part of the
master or the employer either in the selection of the servant or
employee, or in the supervision over him after selection or both. The
liability of the employer under Article 2180 is direct and immediate.
Therefore, it is incumbent upon petitioners to prove that they exercised
the diligence of a good father of a family in the selection and
supervision of their employee.
We must first resolve the issue of whether Pajarillo was
negligent in shooting Evangeline.
The issue of negligence is factual in nature. Whether a person is
negligent or not is a question of fact, which, as a general rule, we
cannot pass upon in a petition for review on certiorari, as our
jurisdiction is limited to reviewing errors of law.[23] Generally, factual
findings of the trial court, affirmed by the CA, are final and conclusive
and may not be reviewed on appeal. The established exceptions are:
(1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is grave abuse of discretion; (3) when the
findings are grounded entirely on speculations, surmises or
conjectures; (4) when the judgment of the CA is based on
misapprehension of facts; (5) when the findings of fact are conflicting;
(6) when the CA, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant
and appellee; (7) when the findings of fact are conclusions without
citation of specific evidence on which they are based; (8) when the
CA manifestly overlooked certain relevant facts not disputed by the
parties and which, if properly considered, would justify a different
conclusion; and (9) when the findings of fact of the CA are premised
on the absence of evidence and are contradicted by the evidence
on record. [24]
A thorough review of the records of the case fails to show any
cogent reason for us to deviate from the factual finding of the trial
court and affirmed by the CA that petitioner Pajarillo was guilty of
negligence in shooting Evangeline.
Respondents evidence established that Evangelines purpose in
going to the bank was to renew her time deposit.[25] On the other
hand, Pajarillo claims that Evangeline drew a gun from her bag and
aimed the same at him, thus, acting instinctively, he shot her in self-
defense.
Pajarillo testified that when Evangeline aimed the gun at him
at a distance of about one meter or one arms length [26] he stepped
backward, loaded the chamber of his gun and shot her.[27] It is
however unimaginable that petitioner Pajarillo could still make such
movements if indeed the gun was already pointed at him. Any
movement could have prompted Evangeline to pull the trigger to
shoot him.
Petitioner Pajarillo would like to justify his action in shooting
Evangeline on his mere apprehension that Evangeline will stage a
bank robbery. However, such claim is befuddled by his
own testimony. Pajarillo testified that prior to the incident, he saw
Evangeline roaming under the fly over which was about 10 meters
away from the bank[28]and saw her talking to a man thereat;[29] that
she left the man under the fly-over, crossed the street and
approached the bank. However, except for the bare testimony
of Pajarillo, the records do not show that indeed Evangeline was seen
roaming near the vicinity of the bank and acting suspiciously prior to
the shooting incident. In fact, there is no evidence that Pajarillo called
the attention of his head guard or the banks branch manager
regarding his concerns or that he reported the same to the police
authorities whose outpost is just about 15 meters from the bank.
Moreover, if Evangeline was already roaming the vicinity of the
bank, she could have already apprised herself that Pajarillo, who was
posted outside the bank, was armed with a shotgun; that there were
two guards inside the bank[30] manning the entrance door. Thus, it is
quite incredible that if she really had a companion, she would leave
him under the fly-over which is 10 meters far from the bank and stage
a bank robbery all by herself without a back-up. In fact, she would
have known, after surveying the area, thataiming her gun
at Pajarillo would not ensure entrance to the bank as there were
guards manning the entrance door.
Evidence, to be believed, must not only proceed from the
mouth of a credible witness, but it must be credible in itself such as the
common experience and observation of mankind can approve as
probable under the circumstances. We have no test of the truth of
human testimony, except its conformity to our knowledge, observation
and experience. Whatever is repugnant to these belongs to the
miraculous and is outside judicial cognizance.[31]
That Evangeline just wanted to deposit her gun before entering
the bank and was actually in the act of pulling her gun from her bag
when petitioner Pajarillo recklessly shot her, finds support from the
contentions raised in petitioners petition for review where they argued
that when Evangeline approached the bank, she was seen pulling a
gun from inside her bag and petitioner Pajarillo who was suddenly
beset by fear and perceived the act as a dangerous threat, shot and
killed the deceased out of pure instinct;[32] that the act of drawing a
gun is a threatening act, regardless of whether or not the gun was
intended to be used against petitioner Pajarillo;[33] that the fear that
was created in the mind of petitioner Pajarillo as he saw
Evangeline Tangco drawing a gun from her purse was suddenly very
real and the former merely reacted out of pure self-preservation.[34]
Considering that unlawful aggression on the part of Evangeline
is absent, Pajarillos claim of self-defense cannot be
accepted specially when such claim was uncorroborated by any
separate competent evidence other than his testimony which was
even doubtful. Pajarillos apprehension that Evangeline will shoot him
to stage a bank robbery has no basis at all. It is therefore clear that the
alleged threat of bank robbery was just a figment
of Pajarillos imagination which caused such unfounded unlawful
aggression on his part.
Petitioners argue that Evangeline was guilty of contributory
negligence. Although she was a licensed firearm holder, she had no
business bringing the gun in such establishment where people would
react instinctively upon seeing the gun; that had Evangeline been
prudent, she could have warned Pajarillo before drawing the gun and
did not conduct herself with suspicion by roaming outside the vicinity
of the bank; that she should not have held the gun with the nozzle
pointed at Pajarillo who mistook the act as hold up or robbery.
We are not persuaded.
As we have earlier held, Pajarillo failed to substantiate his claim
that Evangeline was seen roaming outside the vicinity of the bank and
acting suspiciously prior to the shooting incident. Evangelines death
was merely due to Pajarillos negligence in shooting her on his
imagined threat that Evangeline will rob the bank.
Safeguard contends that it cannot be jointly held liable since it
had adequately shown that it had exercised the diligence required in
the selection and supervision of its employees. It claims that it had
required the guards to undergo the necessary training and to submit
the requisite qualifications and credentials which even the RTC found
to have been complied with; that the RTC erroneously found that it
did not exercise the diligence required in the supervision of its
employee. Safeguard further claims that it conducts monitoring of the
activities of its personnel, wherein supervisors are assigned to routinely
check the activities of the security guards which include among
others, whether or not they are in their proper post and with proper
equipment, as well as regular evaluations of the employees
performances; that the fact that Pajarillo loaded his firearm contrary
to Safeguards operating procedure is not sufficient basis to say that
Safeguard had failed its duty of proper supervision; that it was likewise
error to say that Safeguard was negligent in seeing to it that the
procedures and policies were not properly implemented by reason
of one unfortunate event.
We are not convinced.
Article 2180 of the Civil Code provides:
Art. 2180. The obligation imposed by Article 2176
is demandable not only for ones own acts or omissions,
but also for those of persons for whom one is
responsible.
xxxx
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.
xxxx
The responsibility treated of in this article shall
cease when the persons herein mentioned prove that
they observed all the diligence of a good father of a
family to prevent damage.
As the employer of Pajarillo, Safeguard is primarily
and solidarily liable for the quasi-delict committed by the former.
Safeguard is presumed to be negligent in the selection and
supervision of his employee by operation of law. This presumption may
be overcome only by satisfactorily showing that the employer
exercised the care and the diligence of a good father of a family in
the selection and the supervision of its employee.
In the selection of prospective employees, employers are
required to examine them as to their qualifications, experience, and
service records.[35] On the other hand, due diligence in the supervision
of employees includes the formulation of suitable rules and regulations
for the guidance of employees and the issuance of proper instructions
intended for the protection of the public and persons with whom the
employer has relations through his or its employees and the imposition
of necessary disciplinary measures upon employees in case of breach
or as may be warranted to ensure the performance of acts
indispensable to the business of and beneficial to their employer. To
this, we add that actual implementation and monitoring of consistent
compliance with said rules should be the constant concern of the
employer, acting through dependable supervisors who should
regularly report on their supervisory functions.[36] To establish these
factors in a trial involving the issue of vicarious liability, employers must
submit concrete proof, including documentary evidence.
We agree with the RTCs finding that Safeguard had exercised
the diligence in the selection of Pajarillo since the record shows
that Pajarillo underwent a psychological and neuro-psychiatric
evaluation conducted by the St. Martin de Porres Center where no
psychoses ideations were noted, submitted a certification on the Pre-
licensing training course for security guards, as well as police and NBI
clearances.
The RTC did not err in ruling that Safeguard fell short of the
diligence required in the supervision of its employee,
particularly Pajarillo. In this case, while Safeguard presented Capt.
James Camero, its Director for Operations, who testified on the
issuance of company rules and regulations, such as the Guidelines of
Guards Who Will Be Assigned To Banks,[37] Weapons
Training, Safeguard Training Center Marksmanship Training Lesson
[38]
Plan,[39] Disciplinary/Corrective Sanctions,[40] it had also been
established during Cameros cross-examination that Pajarillo was not
aware of such rules and
regulations.[41] Notwithstanding Cameros clarification on his re-direct
examination that these company rules and regulations are lesson
plans as a basis of guidelines of the instructors during classroom
instructions and not necessary to give students copy of the
same,[42] the records do not show that Pajarillo had attended such
classroom instructions.
The records also failed to show that there was adequate
training and continuous evaluation of the security guards
performance. Pajarillo had only attended an in-service training
on March 1, 1997 conducted by Toyota Sta. Rosa, his first assignment
as security guard of Safeguard, which was in collaboration with
Safeguard. It was established that the concept of such training was
purely on security of equipments to be guarded and protection of the
life of the employees.[43]
It had not been established that after Pajarillos training
in Toyota, Safeguard had ever conducted further training
of Pajarillo when he was later assigned to guard a bank which has a
different nature of business with that of Toyota. In
fact, Pajarillo testified that being on duty in a bank is different from
being on duty in a factory since a bank is a very sensitive area.[44]
Moreover, considering his reactions to Evangelines act of just
depositing her firearm for safekeeping, i.e., of immediately shooting
her, confirms that there was no training or seminar given on how to
handle bank clients and on human psychology.
Furthermore, while Safeguard would like to show that there
were inspectors who go around the bank two times a day to see the
daily performance of the security guards assigned therein, there was
no record ever presented of such daily inspections. In fact, if there was
really such inspection made, the alleged suspicious act of Evangeline
could have been taken noticed and reported.
Turning now to the award of damages, we find that the award
of actual damages in the amount P157,430.00 which were the
expenses incurred by respondents in connection with the burial of
Evangeline were supported by receipts. The award of P50,000.00 as
civil indemnity for the death of Evangeline is likewise in order.
As to the award of moral damages, Article 2206 of the Civil
Code provides that the spouse, legitimate children and illegitimate
descendants and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased.
Moral damages are awarded to enable the injured party to obtain
means, diversions or amusements that will serve to alleviate the moral
suffering he/she has undergone, by reason of the defendants
culpable action. Its award is aimed at restoration, as much as possible,
of the spiritual status quo ante; thus it must be proportionate to the
suffering inflicted.[45] 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.[46]
In this case, respondents testified as to their moral suffering
caused by Evangelines death was so sudden causing
respondent Lauro to lose a wife and a mother to six children who were
all minors at the time of her death. In People v. Teehankee, Jr.,[47] we
awarded one million pesos as moral damages to the heirs of a
seventeen-year-old girl who was murdered. In Metro Manila Transit
Corporation v. Court of Appeals,[48] we likewise awarded the amount
of one million pesos as moral damages to the parents of a third year
high school student and who was also their youngest child who died in
a vehicular accident since the girls death left a void in their lives.
Hence, we hold that the respondents are also entitled to the amount
of one million pesos as Evangelines death left a void in the lives of her
husband and minor children as they were deprived of her love and
care by her untimely demise.
We likewise uphold the award of exemplary damages in the
amount of P300,000.00. Under Article 2229 of the Civil Code,
exemplary damages are imposed by way of example or correction for
the public good, in addition to moral, temperate, liquidated or
compensatory damages.[49] It is awarded as a deterrent to socially
deleterious actions. In quasi-delict, exemplary damages may be
granted if the defendant acted with gross negligence.[50]
Pursuant to Article 2208 of the Civil Code, attorney's fees may
be recovered when, as in the instant case, exemplary damages are
awarded. Hence, we affirm the award of attorney's fees in the
amount of P30,000.00.
WHEREFORE, the petition for review is DENIED. The Decision
dated July 16, 2004 of the Court of Appeals
is AFFIRMED with MODIFICATION that the civil liability of petitioner
Safeguard Security Agency, Inc. is SOLIDARY and PRIMARY under
Article 2180 of the Civil Code.
SO ORDERED.
G.R. No. L-12219 March 15, 1918
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for 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 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.
Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher,
JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to concur with the
judgment in this case. I do so because of my understanding of the "last
clear chance" rule of the law of negligence as particularly applied to
automobile accidents. This rule cannot be invoked where the
negligence of the plaintiff is concurrent with that of the defendant.
Again, if a traveler when he reaches the point of collision is in a
situation to extricate himself and avoid injury, his negligence at that
point will prevent a recovery. But Justice Street finds as a fact that the
negligent act of the interval of time, and that at the moment the
plaintiff had no opportunity to avoid the accident. Consequently, the
"last clear chance" rule is applicable. In other words, when a traveler
has reached a point where he cannot extricate himself and vigilance
on his part will not avert the injury, his negligence in reaching that
position becomes the condition and not the proximate cause of the
injury and will not preclude a recovery. (Note especially Aiken vs.
Metcalf [1917], 102 Atl., 330.)
G.R. No. L-51806 November 8, 1988
CIVIL AERONAUTICS ADMINISTRATION, petitioner,
vs.
COURT OF APPEALS and ERNEST E. SIMKE, respondents.
The Solicitor General for petitioner.
Ledesma, Guytingco, Veleasco & Associates for respondent Ernest E.
Simke.
CORTES, J.:
Assailed in this petition for review on certiorari is the decision of the
Court of Appeals affirming the trial court decision which reads as
follows:
WHEREFORE, judgment is hereby rendered ordering
defendant to pay plaintiff the amount of P15,589.55 as
full reimbursement of his actual medical and hospital
expenses, with interest at the legal rate from the
commencement of the suit; the amount of P20,200.00
as consequential damages; the amount of P30,000.00
as moral damages; the amount of P40,000.00 as
exemplary damages; the further amount of P20,000.00
as attorney's fees and the costs [Rollo, p. 24].
The facts of the case are as follows:
Private respondent is a naturalized Filipino citizen and at the time of
the incident was the Honorary Consul Geileral of Israel in the
Philippines.
In the afternoon of December 13, 1968, private respondent with
several other persons went to the Manila International Airport to meet
his future son-in-law. In order to get a better view of the incoming
passengers, he and his group proceeded to the viewing deck or
terrace of the airport.
While walking on the terrace, then filled with other people, private
respondent slipped over an elevation about four (4) inches high at the
far end of the terrace. As a result, private respondent fell on his back
and broke his thigh bone.
The next day, December 14, 1968, private respondent was operated
on for about three hours.
Private respondent then filed an action for damages based on quasi-
delict with the Court of First Instance of Rizal, Branch VII against
petitioner Civil Aeronautics Administration or CAA as the entity
empowered "to administer, operate, manage, control, maintain and
develop the Manila International Airport ... ." [Sec. 32 (24), R.A. 776].
Said claim for damages included, aside from the medical and hospital
bills, consequential damages for the expenses of two lawyers who had
to go abroad in private respondent's stead to finalize certain business
transactions and for the publication of notices announcing the
postponement of private respondent's daughter's wedding which had
to be cancelled because of his accident [Record on Appeal, p. 5].
Judgment was rendered in private respondent's favor prompting
petitioner to appeal to the Court of Appeals. The latter affirmed the
trial court's decision. Petitioner then filed with the same court a Motion
for, Reconsideration but this was denied.
Petitioner now comes before this Court raising the following
assignment of errors:
1. The Court of Appeals gravely erred in not holding
that the present the CAA is really a suit against the
Republic of the Philippines which cannot be sued
without its consent, which was not given in this case.
2. The Court of Appeals gravely erred in finding that the
injuries of respondent Ernest E. Simke were due to
petitioner's negligence — although there was no
substantial evidence to support such finding; and that
the inference that the hump or elevation the surface of
the floor area of the terrace of the fold) MIA building is
dangerous just because said respondent tripped over it
is manifestly mistaken — circumstances that justify a
review by this Honorable Court of the said finding of
fact of respondent appellate court (Garcia v. Court of
Appeals, 33 SCRA 622; Ramos v. CA, 63 SCRA 331.)
3. The Court of Appeals gravely erred in ordering
petitioner to pay actual, consequential, moral and
exemplary damages, as well as attorney's fees to
respondent Simke — although there was no substantial
and competent proof to support said awards I Rollo,
pp. 93-94 1.
I
Invoking the rule that the State cannot be sued without its consent,
petitioner contends that being an agency of the government, it
cannot be made a party-defendant in this case.
This Court has already held otherwise in the case of National Airports
Corporation v. Teodoro, Sr. [91 Phil. 203 (1952)]. Petitioner contends
that the said ruling does not apply in this case because: First, in the
Teodoro case, the CAA was sued only in a substituted capacity, the
National Airports Corporation being the original party. Second, in the
Teodoro case, the cause of action was contractual in nature while
here, the cause of action is based on a quasi-delict. Third, there is no
specific provision in Republic Act No. 776, the law governing the CAA,
which would justify the conclusion that petitioner was organized for
business and not for governmental purposes. [Rollo, pp. 94-97].
Such arguments are untenable.
First, the Teodoro case, far from stressing the point that the CAA was
only substituted for the National Airports Corporation, in fact treated
the CAA as the real party in interest when it stated that:
xxx xxx xxx
... To all legal intents and practical purposes, the
National Airports Corporation is dead and the Civil
Aeronautics Administration is its heir or legal
representative, acting by the law of its creation upon its
own rights and in its own name. The better practice
there should have been to make the Civil Aeronautics
Administration the third party defendant instead of the
National Airports Corporation. [National Airports Corp.
v. Teodoro, supra, p. 208.]
 xxx xxx xxx
Second, the Teodoro case did not make any qualification or limitation
as to whether or not the CAA's power to sue and be sued applies only
to contractual obligations. The Court in the Teodoro case ruled that
Sections 3 and 4 of Executive Order 365 confer upon the CAA, without
any qualification, the power to sue and be sued, albeit only by
implication. Accordingly, this Court's pronouncement that where such
power to sue and be sued has been granted without any
qualification, it can include a claim based on tort or quasi-delict [Rayo
v. Court of First Instance of Bulacan, G.R. Nos. 55273-83, December
19,1981, 1 1 0 SCRA 4561 finds relevance and applicability to the
present case.
Third, it has already been settled in the Teodoro case that the CAA as
an agency is not immune from suit, it being engaged in functions
pertaining to a private entity.
xxx xxx xxx
The Civil Aeronautics Administration comes under the
category of a private entity. Although not a body
corporate it was created, like the National Airports
Corporation, not to maintain a necessary function of
government, but to run what is essentially a business,
even if revenues be not its prime objective but rather
the promotion of travel and the convenience of the
travelling public. It is engaged in an enterprise which,
far from being the exclusive prerogative of state, may,
more than the construction of public roads, be
undertaken by private concerns. [National Airports
Corp. v. Teodoro, supra, p. 207.]
xxx xxx xxx
True, the law prevailing in 1952 when the Teodoro case was
promulgated was Exec. Order 365 (Reorganizing the Civil Aeronautics
Administration and Abolishing the National Airports Corporation).
Republic Act No. 776 (Civil Aeronautics Act of the Philippines),
subsequently enacted on June 20, 1952, did not alter the character of
the CAA's objectives under Exec, Order 365. The pertinent provisions
cited in the Teodoro case, particularly Secs. 3 and 4 of Exec. Order
365, which led the Court to consider the CAA in the category of a
private entity were retained substantially in Republic Act 776, Sec. 32
(24) and (25).<äre||anº•1àw> Said Act provides:
Sec. 32. Powers and Duties of the Administrator. Subject
to the general — control and supervision of the
Department Head, the Administrator shall have among
others, the following powers and duties:
xxx xxx xxx
(24) To administer, operate, manage, control, maintain
and develop the Manila International Airport and all
government-owned aerodromes except those
controlled or operated by the Armed Forces of the
Philippines including such powers and duties as: (a) to
plan, design, construct, equip, expand, improve, repair
or alter aerodromes or such structures, improvement or
air navigation facilities; (b) to enter into, make and
execute contracts of any kind with any person, firm, or
public or private corporation or entity; ... .
(25) To determine, fix, impose, collect and receive
landing fees, parking space fees, royalties on sales or
deliveries, direct or indirect, to any aircraft for its use of
aviation gasoline, oil and lubricants, spare parts,
accessories and supplies, tools, other royalties, fees or
rentals for the use of any of the property under its
management and control.
xxx xxx xxx
From the foregoing, it can be seen that the CAA is tasked with private
or non-governmental functions which operate to remove it from the
purview of the rule on State immunity from suit. For the correct rule as
set forth in the Tedoro case states:
xxx xxx xxx
Not all government entities, whether corporate or non-
corporate, are immune from suits. Immunity functions
suits is determined by the character of the objects for
 which the entity was organized. The rule is thus stated in To determine whether or not the construction of the elevation was
Corpus Juris: done in a negligent manner, the trial court conducted an ocular
inspection of the premises.
Suits against State agencies with relation
to matters in which they have assumed xxx xxx xxx
to act in private or non-governmental
capacity, and various suits against ... This Court after its ocular inspection found the
certain corporations created by the elevation shown in Exhs. A or 6-A where plaintiff slipped
state for public purposes, but to engage to be a step, a dangerous sliding step, and the
in matters partaking more of the nature proximate cause of plaintiffs injury...
of ordinary business rather than functions
of a governmental or political character, xxx xxx xxx
are not regarded as suits against the
state. The latter is true, although the
This Court during its ocular inspection also observed the
state may own stock or property of such
dangerous and defective condition of the open
a corporation for by engaging in
terrace which has remained unrepaired through the
business operations through a
years. It has observed the lack of maintenance and
corporation, the state divests itself so far
upkeep of the MIA terrace, typical of many
of its sovereign character, and by
government buildings and offices. Aside from the litter
implication consents to suits against the
allowed to accumulate in the terrace, pot holes cause
corporation. (59 C.J., 313) [National
by missing tiles remained unrepaired and unattented.
Airport Corporation v. Teodoro, supra,
The several elevations shown in the exhibits presented
pp. 206-207; Emphasis supplied.]
were verified by this Court during the ocular inspection
it undertook. Among these elevations is the one (Exh. A)
This doctrine has been reaffirmed in the recent case of Malong v. where plaintiff slipped. This Court also observed the
Philippine National Railways [G.R. No. L-49930, August 7, 1985, 138 other hazard, the slanting or sliding step (Exh. B) as one
SCRA 631, where it was held that the Philippine National Railways, passes the entrance door leading to the terrace
although owned and operated by the government, was not immune [Record on Appeal, U.S., pp. 56 and 59; Emphasis
from suit as it does not exercise sovereign but purely proprietary and supplied.]
business functions. Accordingly, as the CAA was created to undertake
the management of airport operations which primarily involve
The Court of Appeals further noted that:
proprietary functions, it cannot avail of the immunity from suit
accorded to government agencies performing strictly governmental
The inclination itself is an architectural anomaly for as
functions.
stated by the said witness, it is neither a ramp because
a ramp is an inclined surface in such a way that it will
II
prevent people or pedestrians from sliding. But if, it is a
step then it will not serve its purpose, for pedestrian
Petitioner tries to escape liability on the ground that there was no basis purposes. (tsn, p. 35, Id.) [rollo, p. 29.]
for a finding of negligence. There can be no negligence on its part, it
alleged, because the elevation in question "had a legitimate purpose
These factual findings are binding and conclusive upon this Court.
for being on the terrace and was never intended to trip down people
Hence, the CAA cannot disclaim its liability for the negligent
and injure them. It was there for no other purpose but to drain water
construction of the elevation since under Republic Act No. 776, it was
on the floor area of the terrace" [Rollo, P. 99].
charged with the duty of planning, designing, constructing,
equipping, expanding, improving, repairing or altering aerodromes or
such structures, improvements or air navigation facilities [Section
32, supra, R.A. 776]. In the discharge of this obligation, the CAA is duty-
bound to exercise due diligence in overseeing the construction and
maintenance of the viewing deck or terrace of the airport.
It must be borne in mind that pursuant to Article 1173 of the Civil
Code, "(t)he fault or negligence of the obligor consists in the omission
of that diligence which is required by the nature of the obligation and
corresponds with the circumstances of the person, of the time and of
the place." Here, the obligation of the CAA in maintaining the viewing
deck, a facility open to the public, requires that CAA insure the safety
of the viewers using it. As these people come to the viewing deck to
watch the planes and passengers, their tendency would be to look to
where the planes and the incoming passengers are and not to look
down on the floor or pavement of the viewing deck. The CAA should
have thus made sure that no dangerous obstructions or elevations
exist on the floor of the deck to prevent any undue harm to the public.
The legal foundation of CAA's liability for quasi-delict can be found in
Article 2176 of the Civil Code which provides that "(w)hoever by act or
omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done... As the CAA knew of the
existence of the dangerous elevation which it claims though, was
made precisely in accordance with the plans and specifications of
the building for proper drainage of the open terrace [See Record on
Appeal, pp. 13 and 57; Rollo, p. 391, its failure to have it repaired or
altered in order to eliminate the existing hazard constitutes such
negligence as to warrant a finding of liability based on quasi-delict
upon CAA.
The Court finds the contention that private respondent was, at the
very least, guilty of contributory negligence, thus reducing the
damages that plaintiff may recover, unmeritorious. Contributory
negligence under Article 2179 of the Civil Code contemplates a
negligent act or omission on the part of the plaintiff, which although
not the proximate cause of his injury, contributed to his own damage,
the proximate cause of the plaintiffs own injury being the defendant's
lack of due care. In the instant case, no contributory negligence can
be imputed to the private respondent, considering the following test
formulated in the early case of Picart v. Smith, 37 Phil. 809 (1918):
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 reasonable care and caution
which an ordinarily prudent man 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 the 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 be here of much value
but this much can be profitably said: Reasonable men-
overn 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 the ignoring of the suggestion born of this
prevision, is always necessary before negligence can
be held to exist.... [Picart v. Smith, supra, p. 813;
Emphasis supplied.]
The private respondent, who was the plaintiff in the case before the
lower court, could not have reasonably foreseen the harm that would
befall him, considering the attendant factual circumstances. Even if
the private respondent had been looking where he was going, the
step in question could not easily be noticed because of its
construction. As the trial court found:
 In connection with the incident testified to, a sketch,
Exhibit O, shows a section of the floorings oil which
plaintiff had tripped, This sketch reveals two pavements
adjoining each other, one being elevated by four and
one-fourth inches than the other. From the architectural
standpoint the higher, pavement is a step. However,
unlike a step commonly seen around, the edge of the
elevated pavement slanted outward as one walks to
one interior of the terrace. The length of the inclination
between the edges of the two pavements is three
inches. Obviously, plaintiff had stepped on the
inclination because had his foot landed on the lower
pavement he would not have lost his balance. The
same sketch shows that both pavements including the
inclined portion are tiled in red cement, and as shown
by the photograph Exhibit A, the lines of the tilings are
continuous. It would therefore be difficult for a
pedestrian to see the inclination especially where there
are plenty of persons in the terrace as was the situation
when plaintiff fell down. There was no warning sign to
direct one's attention to the change in the elevation of
the floorings. [Rollo, pp. 2829.]
III
Finally, petitioner appeals to this Court the award of damages to
private respondent. The liability of CAA to answer for damages,
whether actual, moral or exemplary, cannot be seriously doubted in
view of one conferment of the power to sue and be sued upon it,
which, as held in the case of Rayo v. Court of First Instance, supra,
includes liability on a claim for quasi-dilict. In the aforestated case, the
liability of the National Power Corporation to answer for damages
resulting from its act of sudden, precipitate and simultaneous opening
of the Angat Dam, which caused the death of several residents of the
area and the destruction of properties, was upheld since the o,rant of
the power to sue and be sued upon it necessarily implies that it can
be held answerable for its tortious acts or any wrongful act for that
matter.
With respect to actual or compensatory damages, the law mandates
that the same be proven.
Art. 2199. Except as provided by law or by stipulation,
one are entitled to an adequate compensation only
for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual on
compensatory damages [New Civil Code].
Private respondent claims P15,589.55 representing medical and
hospitalization bills. This Court finds the same to have been duly
proven through the testimony of Dr. Ambrosio Tangco, the physician
who attended to private respondent (Rollo, p. 26) and who Identified
Exh. "H" which was his bill for professional services [Rollo, p. 31].
Concerning the P20,200.00 alleged to have been spent for other
expenses such as the transportation of the two lawyers who had to
represent private respondent abroad and the publication of the
postponement notices of the wedding, the Court holds that the same
had also been duly proven. Private respondent had adequately
shown the existence of such losses and the amount thereof in the
testimonies before the trial court [CA decision, p. 81. At any rate, the
findings of the Court of Appeals with respect to this are findings of
facts [One Heart Sporting Club, Inc. v. Court of Appeals, G.R. Nos.
5379053972, Oct. 23, 1981, 108 SCRA 4161 which, as had been held
time and again, are, as a general rule, conclusive before this Court
[Sese v. Intermediate Appellate Court, G.R. No. 66186, July 31,
1987,152 SCRA 585].
With respect to the P30,000.00 awarded as moral damages, the Court
holds private respondent entitled thereto because of the physical
suffering and physical injuries caused by the negligence of the CAA
[Arts. 2217 and 2219 (2), New Civil Code].
With respect to the award of exemplary damages, the Civil Code
explicitly, states:
Art. 2229. Exemplary or corrective damages, are
imposed, by way of example or correction for the
public good, in addition to the moral, liquidated or
compensatory
Art. 2231. In quasi-delicts, exemplary damages may be
granted if the defendant acted with gross negligence.
Gross negligence which, according to the Court, is equivalent to the
term "notorious negligence" and consists in the failure to exercise even
slight care [Caunan v. Compania General de Tabacos, 56 Phil. 542
(1932)] can be attributed to the CAA for its failure to remedy the
dangerous condition of the questioned elevation or to even post a
warning sign directing the attention of the viewers to the change in
the elevation of the floorings notwithstanding its knowledge of the
hazard posed by such elevation [Rollo, pp. 28-29; Record oil Appeal,
p. 57]. The wanton disregard by the CAA of the safety of the people
using the viewing deck, who are charged an admission fee, including
the petitioner who paid the entrance fees to get inside the vantage
place [CA decision, p. 2; Rollo, p. 25] and are, therefore, entitled to
expect a facility that is properly and safely maintained — justifies the
award of exemplary damages against the CAA, as a deterrent and
by way of example or correction for the public good. The award of
P40,000.00 by the trial court as exemplary damages appropriately
underscores the point that as an entity changed with providing
service to the public, the CAA. like all other entities serving the public.
has the obligation to provide the public with reasonably safe service.
Finally, the award of attorney's fees is also upheld considering that
under Art. 2208 (1) of the Civil Code, the same may be awarded
whenever exemplary damages are awarded, as in this case, and,at
any rate, under Art. 2208 (11), the Court has the discretion to grant the
same when it is just and equitable.
However, since the Manila International Airport Authority (MIAA) has
taken over the management and operations of the Manila
International Airport [renamed Ninoy Aquino International Airport
under Republic Act No. 6639] pursuant to Executive Order No. 778 as
amended by executive Orders Nos. 903 (1983), 909 (1983) and 298
(1987) and under Section 24 of the said Exec. Order 778, the MIAA has
assumed all the debts, liabilities and obligations of the now defunct
Civil Aeronautics Administration (CAA), the liabilities of the CAA have
now been transferred to the MIAA.
WHEREFORE, finding no reversible error, the Petition for review on
certiorari is DENIED and the decision of the Court of Appeals in CA-
G.R. No. 51172-R is AFFIRMED.
SO ORDERED.
PHILIPPINE NATIONAL CONSTRUCTION CORPORATION, petitioner, vs.
HON. COURT OF APPEALS, RODRIGO ARNAIZ, REGINA LATAGAN,
RICARDO GENERALAO and PAMPANGA SUGAR DEVELOPMENT
COMPANY, INC., CORPORATION, respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision[1] of the
Court of Appeals (CA) in CA-G.R. CV No. 47699 affirming, with
modification, the decision of the Regional Trial Court (RTC) of Manila in
Civil Case No. 93-64803.
The Antecedents
Pampanga Sugar Development Company, Inc. (PASUDECO)
transports sugarcane from Mabalacat and Magalang, Pampanga.
When the Mount Pinatubo eruption of 1991 heavily damaged the
national bridges along Abacan-Angeles and Sapang
Maragul via Magalang, Pampanga, it requested permission from the
Toll Regulatory Board (TRB) for its trucks to enter and pass through the
North Luzon Expressway (NLEX) via Dau-Sta. Ines from Mabalacat,
and via Angeles from Magalang, and exit at San Fernando going to its
milling factory.[2] The TRB furnished the Philippine National Construction
Corporation (PNCC) (the franchisee that operates and maintains the
toll facilities in the North and South Luzon Toll Expressways) with a copy
of the said request for it to comment thereon.[3]
On November 5, 1991, TRB and PASUDECO entered into a
Memorandum of Agreement[4] (MOA), where the latter was allowed
to enter and pass through the NLEX on the following terms and
conditions:
1. PASUDECO trucks should move in convoy;
2. Said trucks will stay on the right lane;
3. A vehicle with blinking lights should be assigned at the rear
end of the convoy with a sign which should read as
follows: Caution: CONVOY AHEAD!!!;
4. Tollway safety measures should be properly observed;
 5. Accidents or damages to the toll facilities arising out of any
activity related to this approval shall be the responsibility
of PASUDECO;
6. PASUDECO shall be responsible in towing their stalled trucks
immediately to avoid any inconvenience to the other
motorists;
7. This request will be in force only while the national bridges
along Abacan-Angeles and Sapang
Maragul via Magalang remain impassable.
PASUDECO furnished the PNCC with a copy of the MOA. [5] In a
Letter[6] dated October 22, 1992, the PNCC informed PASUDECO that
it interposed no objection to the MOA.
At around 2:30 a.m. on January 23, 1993, Alex Sendin, the PNCC
security supervisor, and his co-employees Eduardo Ducusin and
Vicente Pascual were patrolling Km. 72 going north of the NLEX. They
saw a pile of sugarcane in the middle portion of the north and
southbound lanes of the road.[7] They placed lit cans with diesel oil in
the north and southbound lanes, including lane dividers with
reflectorized markings, to warn motorists of the obstruction. Sendin,
Ducusin and Pascual proceeded to the PASUDECO office, believing
that the pile of sugarcane belonged to it since it was the only milling
company in the area. They requested for a payloader or grader to
clear the area. However, Engineer Oscar Mallari, PASUDECOs
equipment supervisor and transportation superintendent, told them
that no equipment operator was available as it was still very
early.[8] Nonetheless, Mallari told them that he would send someone to
clear the affected area. Thereafter, Sendin and company went back
to Km. 72 and manned the traffic. At around 4:00 a.m., five (5)
PASUDECO men arrived, and started clearing the highway of the
sugarcane. They stacked the sugarcane at the side of the road. The
men left the area at around 5:40 a.m., leaving a few flattened
sugarcanes scattered on the road. As the bulk of the sugarcanes had
been piled and transferred along the roadside, Sendin thought there
was no longer a need to man the traffic. As dawn was already
approaching, Sendin and company removed the lighted cans and
lane dividers.[9] Sendin went to his office in Sta. Rita, Guiguinto,
Bulacan, and made the necessary report.[10]
At about 6:30 a.m., Rodrigo S. Arnaiz, a certified mechanic and
marketing manager of JETTY Marketing, Inc.,[11] was driving his two-
door Toyota Corolla with plate number FAG 961 along the NLEX at
about 65 kilometers per hour.[12] He was with his sister Regina Latagan,
and his friend Ricardo Generalao; they were on their way to Baguio to
attend their grandmothers first death anniversary.[13] As the vehicle ran
over the scattered sugarcane, it flew out of control and turned turtle
several times. The accident threw the car about fifteen paces away
from the scattered sugarcane.
Police Investigator Demetrio Arcilla investigated the matter and
saw black and white sugarcanes on the road, on both lanes, which
appeared to be flattened.[14]
On March 4, 1993, Arnaiz, Latagan and Generalao filed a
complaint[15] for damages against PASUDECO and PNCC in the RTC of
Manila, Branch 16. The case was docketed as Civil Case No. 93-64803.
They alleged, inter alia, that through its negligence, PNCC failed to
keep and maintain the NLEX safe for motorists when it allowed
PASUDECO trucks with uncovered and unsecured sugarcane to pass
through it; that PASUDECO negligently spilled sugarcanes on the NLEX,
and PNCC failed to put up emergency devices to sufficiently warn
approaching motorists of the existence of such spillage; and that the
combined gross negligence of PASUDECO and PNCC was the direct
and proximate cause of the injuries sustained by Latagan and the
damage to Arnaizs car. They prayed, thus:
WHEREFORE, it is respectfully prayed that, after due hearing, judgment
be rendered for the plaintiffs, ordering the defendants jointly and
severally:
(a) To pay unto plaintiff Rodrigo Arnaiz the sum
of P100,000.00 representing the value of his car
which was totally wrecked;
(b) to pay unto plaintiff Regina Latagan the sum
of P100,000.00 by way of reimbursement for medical
expenses, the sum of P50,000.00 by way of moral
damages, and the sum of P30,000.00 by way of
exemplary damages;
(c) To pay unto plaintiffs Rodrigo Arnaiz and Ricardo
Generalao the sum of P5,000.00 by way of
reimbursement for medical expenses; and
(d) To pay unto the plaintiffs the sum of P30,000.00 by
way of attorneys fees; plus the costs of suit.
Plaintiffs pray for other reliefs which the Honorable Court may find due
them in the premises.[16]
In its Answer,[17] PNCC admitted that it was under contract to
manage the North Luzon Expressway, to keep it safe for motorists. It
averred that the mishap was due to the unreasonable speed at which
Arnaizs car was running, causing it to turn turtle when it passed over
some pieces of flattened sugarcane. It claimed that the proximate
cause of the mishap was PASUDECOs gross negligence in spilling the
sugarcane, and its failure to clear and mop up the area completely. It
also alleged that Arnaiz was guilty of contributory negligence in
driving his car at such speed.
The PNCC interposed a compulsory counterclaim [18] against the
plaintiffs and cross-claim[19] against its co-defendant PASUDECO.
PASUDECO adduced evidence that aside from it, there were
other sugarcane mills in the area, like the ARCAM Sugar Central
(formerly known as Pampanga Sugar Mills) and the Central Azucarrera
de Tarlac;[20] it was only through the expressway that a vehicle could
access these three (3) sugar centrals;[21] and PASUDECO was
obligated to clear spillages whether the planters truck which caused
the spillage was bound for PASUDECO, ARCAM or Central
Azucarera.[22]
On rebuttal, PNCC adduced evidence that only planters trucks
with PSD markings were allowed to use the tollway;[23] that all such
trucks would surely enter the PASUDECO compound. Thus, the truck
which spilled sugarcane in January 1993 in Km. 72 was on its way to
the PASUDECO compound.[24]
On November 11, 1994, the RTC rendered its decision [25] in favor of
Latagan, dismissing that of Arnaiz and Generalao for insufficiency of
evidence. The case as against the PNCC was, likewise, dismissed. The
decretal portion of the decision reads:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
I. ORDERING defendant PASUDECO:
1. To pay plaintiff Regina Latagan:
a. P25,000 = for actual damages
b. P15,000 = for moral damages
c. P10,000 = for attorneys fees
P50,000
2. To pay costs of suit.
II. The case is DISMISSED as to defendant PNCC. No
pronouncement as to costs. Its counterclaim is, likewise,
DISMISSED.
III. The claims for damages of plaintiffs Rodrigo Arnaiz and
Ricardo Generalao are hereby DISMISSED for insufficiency
of evidence.
SO ORDERED.[26]
Both the plaintiffs Arnaiz, Latagan and Generalao and defendant
PASUDECO appealed the decision to the CA. Since the plaintiffs failed
to file their brief, the CA dismissed their appeal.[27]
Resolving PASUDECOs appeal, the CA rendered judgment on
April 29, 2003, affirming the RTC decision with modification. The
appellate court ruled that Arnaiz was negligent in driving his car, but
that such negligence was merely contributory to the cause of the
mishap, i.e., PASUDECOs failure to properly supervise its men in
clearing the affected area. Its supervisor, Mallari, admitted that he
was at his house while their men were clearing Km. 72. Thus, the
appellate court held both PASUDECO and PNCC, jointly and severally,
liable to Latagan. The decretal portion of the decision reads:
WHEREFORE, premises considered, the assailed DECISION is hereby
MODIFIED and judgment is hereby rendered declaring PASUDECO
and PNCC, jointly and solidarily, liable:
1. To pay plaintiff Regina Latagan:
a. P25,000 = for actual damages
b. P15,000 = for moral damages
c. P10,000 = for attorneys fees
2. To pay costs of suit.
SO ORDERED. [28]
 The PNCC, now the petitioner, filed a petition for review
on certiorari under Rule 45 of the Revised Rules of Court, alleging that:
THE HONORABLE COURT OF APPEALS ERRED IN MODIFYING THE
DECISION OF THE TRIAL COURT AND MAKING PETITIONER PNCC,
JOINTLY AND [SOLIDARILY], LIABLE WITH PRIVATE RESPONDENT
PASUDECO.[29]
The petitioner asserts that the trial court was correct when it held
that PASUDECO should be held liable for the mishap, since it had
assumed such responsibility based on the MOA between it and the
TRB. The petitioner relies on the trial courts finding that only PASUDECO
was given a permit to pass through the route.
The petitioner insists that the respondents failed to prove that it
was negligent in the operation and maintenance of the NLEX. It
maintains that it had done its part in clearing the expressway of
sugarcane piles, and that there were no more piles of sugarcane
along the road when its men left Km. 72; only a few scattered
sugarcanes flattened by the passing motorists were left. Any liability
arising from any mishap related to the spilled sugarcanes should be
borne by PASUDECO, in accordance with the MOA which provides
that accidents or damages to the toll facilities arising out of any
activity related to this approval shall be the responsibility of
PASUDECO.
The petitioner also argues that the respondents should bear the
consequences of their own fault or negligence, and that the
proximate and immediate cause of the mishap in question was
respondent Arnaizs reckless imprudence or gross negligence.
The Court notes that the issues raised in the petition are factual in
nature. Under Rule 45 of the Rules of Court, only questions of law may
be raised in this Court, and while there are exceptions to the rule, no
such exception is present in this case. On this ground alone, the
petition is destined to fail. The Court, however, has reviewed the
records of the case, and finds that the petition is bereft of merit.
The petitioner is the grantee of a franchise, giving it the right,
privilege and authority to construct, operate and maintain toll facilities
covering the expressways, collectively known as the
NLEX. Concomitant thereto is its right to collect toll fees for the use
[30]
of the said expressways and its obligation to keep it safe for motorists.
There are three elements of a quasi-delict: (a) damages suffered
by the plaintiff; (b) fault or negligence of the defendant, or some
other person for whose acts he must respond; and (c) the connection
of cause and effect between the fault or negligence of the
defendant and the damages incurred by the plaintiff.[31] 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-existing contractual
relation between the parties, is called a quasi-delict and is governed
by the provisions of this Chapter.
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.[32] It also refers to the
conduct which creates undue risk of harm to another, the failure to
observe that degree of care, precaution and vigilance that the
circumstance justly demand, whereby that other person suffers
injury.[33] The Court declared the test by which to determine the
existence of negligence in Picart v. Smith,[34] viz:
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 reasonable care and caution
which an ordinarily prudent 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 test for determining whether a person is negligent in doing an
act whereby injury or damage results to the person or property of
another is this: could a prudent man, in the position of the person to
whom negligence is attributed, foresee harm to the person injured as
a reasonable consequence of the course actually pursued? If so, the
law imposes a duty on the actor to refrain from that course or to take
precautions to guard against its mischievous results, and the failure to
do so constitutes negligence. Reasonable foresight of harm, followed
by the ignoring of the admonition born of this provision, is always
necessary before negligence can be held to exist.[35]
In the case at bar, it is clear that the petitioner failed to exercise
the requisite diligence in maintaining the NLEX safe for motorists. The
lighted cans and lane dividers on the highway were removed even as
flattened sugarcanes lay scattered on the ground.[36] The highway
was still wet from the juice and sap of the flattened sugarcanes.[37] The
petitioner should have foreseen that the wet condition of the highway
would endanger motorists passing by at night or in the wee hours of
the morning.
The petitioner cannot escape liability under the MOA between
PASUDECO and TRB, since respondent Latagan was not a party
thereto. We agree with the following ruling of the CA:
Both defendants, appellant PASUDECO and appellee PNCC, should
be held liable. PNCC, in charge of the maintenance of the
expressway, has been negligent in the performance of its duties. The
obligation of PNCC should not be relegated to, by virtue of a private
agreement, to other parties.
PNCC declared the area free from obstruction since there were
no piles of sugarcane, but evidence shows there were still pieces of
sugarcane stalks left flattened by motorists. There must be an
observance of that degree of care, precaution, and vigilance which
the situation demands. There should have been sufficient warning
devices considering that there were scattered sugarcane stalks still left
along the tollway.
The records show, and as admitted by the parties, that Arnaizs car ran
over scattered sugarcanes spilled from a hauler truck.[38]
Moreover, the MOA refers to accidents or damages to the toll
facilities. It does not cover damages to property or injuries caused to
motorists on the NLEX who are not privies to the MOA.
PASUDECOs negligence in transporting sugarcanes without
proper harness/straps, and that of PNCC in removing the emergency
warning devices, were two successive negligent acts which were the
direct and proximate cause of Latagans injuries. As such, PASUDECO
and PNCC are jointly and severally liable. As the Court held in the
vintage case of Sabido v. Custodio:[39]
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. ...
In Far Eastern Shipping Company v. Court of Appeals,[40] 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 plaintiff's, 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 the other concurrent tortfeasors.
Where several causes producing an injury are concurrent and each is
an efficient cause without which the injury would not have happened,
the injury may be attributed to all or any of the causes and recovery
may be had against any or all of the responsible persons although
under the circumstances of the case, it may appear that one of them
was more culpable, and that the duty owed by them to the injured
person was not the same. No actor's negligence ceases to be a
proximate cause merely because it does not exceed the negligence
of other actors. Each wrongdoer is responsible for the entire result and
is liable as though his acts were the sole cause of the injury.
There is no contribution between joint tortfeasors whose liability is
solidary since both of them are liable for the total damage. Where the
concurrent or successive negligent acts or omissions of two or more
persons, although acting independently, are in combination with the
direct and proximate cause of a single injury to a third person, it is
impossible to determine in what proportion each contributed to the
injury and either of them is responsible for the whole injury. Where their
concurring negligence resulted in injury or damage to a third party,
they become joint tortfeasors and are solidarily liable for the resulting
damage under Article 2194 of the Civil Code.
Thus, with PASUDECOs and the petitioners successive negligent
acts, they are joint tortfeasors who are solidarily liable for the resulting
damage under Article 2194 of the New Civil Code.[41]
Anent respondent Arnaizs negligence in driving his car, both the
trial court and the CA agreed that it was only contributory, and
considered the same in mitigating the award of damages in his favor
as provided under Article 2179[42] of the New Civil Code. Contributory
negligence is conduct on the part of the injured party, contributing as
a legal cause to the harm he has suffered, which falls below the
standard to which he is required to conform for his own
protection.[43] Even the petitioner itself described Arnaizs negligence
as contributory. In its Answer to the complaint filed with the trial court,
the petitioner asserted that the direct and proximate cause of the
accident was the gross negligence of PASUDECO personnel which
resulted in the spillage of sugarcane and the apparent failure of the
PASUDECO workers to clear and mop up the area completely,
coupled with the contributory negligence of Arnaiz in driving his car at
an unreasonable speed.[44] However, the petitioner changed its theory
in the present recourse, and now claims that the proximate and
immediate cause of the mishap in question was the reckless
imprudence or gross negligence of respondent Arnaiz.[45] Such a
change of theory cannot be allowed. When a party adopts a certain
theory in the trial court, he will not be permitted to change his theory
on appeal, for to permit him to do so would not only be unfair to the
other party but it would also be offensive to the basic rules of fair play,
justice and due process.[46]
IN LIGHT OF ALL THE FOREGOING, the present petition is hereby
DENIED for lack of merit. The Decision of the Court of Appeals in CA-
G.R. CV No. 47699, dated April 29, 2003, is AFFIRMED. Costs against the
petitioner.
SO ORDERED.
G.R. No. L-21291 March 28, 1969
PRECIOLITA V. CORLISS, plaintiff-appellant,
vs.
THE MANILA RAILROAD CO., defendant-appellant.
Moises C. Nicomedes for plaintiff-appellant.
The Government Corporate Counsel for defendant-appellee.
FERNANDO, J.:
Youth, the threshold of life, is invariably accompanied by that
euphoric sense of well-being, and with reason. The future, bright with
promise, looms ahead. One's powers are still to be tested, but one
feels ready for whatever challenge may come his way. There is that
heady atmosphere of self-confidence, at times carried to excess. The
temptation to take risks is there, ever so often, difficult, if not
impossible, to resist. There could be then a lessening of prudence and
foresight, qualities usually associated with age. For death seems so
remote and contingent an event. Such is not always the case though,
and a slip may be attended with consequences at times unfortunate,
even fatal.
Some such thought apparently was in the mind of the lower court
when it dismissed the complaint for recovery of damages filed by
plaintiff-appellant, Preciolita V. Corliss whose husband, the late Ralph
W. Corliss, was, at the tender age of twenty-one, the victim of a grim
tragedy, when the jeep he was driving collided with a locomotive of
defendant-appellee Manila Railroad Company, close to midnight on
the evening of Feb 21, 1957, at the railroad crossing in Balibago,
Angeles, Pampanga, in front of the Clark Air Force Base. In the
decision appealed from, the lower court, after summarizing the
evidence, concluded that the deceased "in his eagerness to beat, so
to speak, the oncoming locomotive, took the risk and attempted to
reach the other side, but unfortunately he became the victim of his
own miscalculation." 1
The negligence imputed to defendant-appellee was thus ruled out
by the lower court, satisfactory proof to that effect, in its opinion,
being lacking. Hence this appeal direct to us, the amount sought in
the concept of damages reaching the sum of P282,065.40. An
examination of the evidence of record fails to yield a basis for a
reversal of the decision appealed from. We affirm.
According to the decision appealed from, there is no dispute as to
the following: "In December 1956, plaintiff, 19 years of age, married
Ralph W. Corliss Jr., 21 years of age, ...; that Corliss Jr. was an air police
of the Clark Air Force Base; that at the time of the accident, he was
driving the fatal jeep; that he was then returning in said jeep, together
with a P.C. soldier, to the Base; and that Corliss Jr. died of serious burns
at the Base Hospital the next day, while the soldier sustained serious
physical injuries and burns." 2
Then came a summary of the testimony of two of the witnesses for
plaintiff-appellant. Thus: "Ronald J. Ennis, a witness of the plaintiff,
substantially declared in his deposition, ..., that at the time of the
accident, he also awaiting transportation at the entrance of Clark
Field, which was about 40 to 50 yards away from the tracks and that
while there he saw the jeep coming towards the Base. He said that
said jeep slowed down before reaching the crossing, that it made a
brief stop but that it did not stop — dead stop. Elaborating, he
declared that while it was slowing down, Corliss Jr. shifted into first gear
and that was what he meant by a brief stop. He also testified that he
could see the train coming from the direction of San Fernando and
that he heard a warning but that it was not sufficient enough to avoid
the accident." 3 Also: "Virgilio de la Paz, another witness of the plaintiff,
testified that on the night of February 21, 1957, he was at the Balibago
checkpoint and saw the train coming from Angeles and a jeep going
towards the direction of Clark Field. He stated that he heard the
whistle of the locomotive and saw the collision. The jeep, which
caught fire, was pushed forward. He helped the P.C. soldier. He stated
that he saw the jeep running fast and heard the tooting of the horn. It
did not stop at the railroad crossing, according to him." 4
After which reference was made to the testimony of the main witness
for defendant-appellee, Teodorico Capili, "who was at the engine at
the time of the mishap," and who "testified that before the locomotive,
which had been previously inspected and found to be in good
condition approached, the crossing, that is, about 300 meters away,
he blew the siren and repeated it in compliance with the regulations
until he saw the jeep suddenly spurt and that although the locomotive
was running between 20 and 25 kilometers an hour and although he
had applied the brakes, the jeep was caught in the middle of the
tracks." 5
1. The above finding as to the non-existence of negligence
attributable to defendant-appellee Manila Railroad Company comes
to us encased in the armor of what admittedly appears to be a
careful judicial appraisal and scrutiny of the evidence of record. It is
thus proof against any attack unless sustained and overwhelming. Not
that it is invulnerable, but it is likely to stand firm in the face of even the
most formidable barrage.
In the more traditional terminology, the lower court judgment has in
its favor the presumption of correctness. It is entitled to great respect.
After all, the lower court had the opportunity of weighing carefully
what was testified to and apparently did not neglect it. There is no
affront to justice then if its finding be accorded acceptance subject
of course the contingency of reversal if error or errors, substantial in
character, be shown in the conclusion thus arrived at. It is a fair
statement of the governing, principle to say that the appellate
function is exhausted when there is found to be a rational basis for the
result reached by the trial court.
As was held in a 1961 decision: "We have already ruled, that when
the credibility of witnesses is the one at issue, the trial court's judgment
as to their degree of credence deserves serious consideration by this
Court." 6 An earlier expression of the same view is found in Jai-Alai
Corporation v. Ching Kiat: "After going over the record, we find no
reason for rejecting the findings of the court below. The questions
raised hinge on credibility and it is well-settled that in the absence of
compelling reasons, its determination is best left to the trial judge why
had the advantage of hearing the parties testify and observing their
demeanor on the witness stand." 7
In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing
in the record suggests any arbitrary or abusive conduct on the part of
the trial judge in the formulation of the ruling. His conclusion on the
matter is sufficiently borne out by the evidence presented. We are
denied, therefore, the prerogative to disturb that finding, consonant
to the time honored tradition of the Tribunal to hold trial judges better
situated to make conclusions on questions of fact'." 8 On this ground
alone we can rest the affirmance of the judgment appealed
from.lâwphi1.ñet
2. Nor is the result different even if no such presumption were
indulged in and the matter examined as if we were exercising original
and not appellate jurisdiction. The sad and deplorable situation in
which plaintiff-appellant now finds herself, to the contrary
notwithstanding we find no reason for reversing the judgment of the
lower court.
This action is predicated on negligence, the Civil Code making clear
that whoever by act or omission causes damage to another, there
being negligence, is under obligation to pay for the damage
done. 9 Unless it could be satisfactorily shown, therefore, that
defendant-appellee was guilty of negligence then it could not be
held liable. The crucial question, therefore, is the existence of
negligence.
The above Civil Code provision, which is a reiteration of that found in
the Civil Code of Spain, formerly applicable in this jurisdiction, 10 had
been interpreted in earlier decisions. Thus, in Smith v. Cadwallader
Gibson Lumber Co., 11Manresa was cited to the following effect
"'Among the questions most frequently raised and upon which the
majority of cases have been decided with respect to the application
of this liability, are those referring to the determination of the damage
or prejudice, and to the fault or negligence of the person responsible
therefor. These are the two indispensable factors in the obligations
under discussion, for without damage or prejudice there can be no
liability, and although this element is present no indemnity can be
awarded unless arising from some person's fault or negligence'."
Negligence was defined by us in two 1912 decisions, United States v.
Juanillo 12 and United States v. Barias. 13Cooley' formulation was
quoted with approval in both the Juanillo and Barias decisions. Thus:
"Judge Cooley in his work on Torts (3d ed.), Sec. 1324, defines
negligence to be: "The failure to observe for the protection of the
interests of another person that degree of care, precaution and
vigilance which the circumstance justly demand whereby such other
person suffers injury." There was likewise a reliance on Ahern v. Oregon
Telephone Co. 14 Thus: "Negligence is want of the care required by the
circumstances. It is a relative or comparative, not an absolute term
and its application depends upon the situation of the parties and the
degree of care and vigilance which the circumstances reasonably
require. Where the danger is great, a high degree of care is
necessary, and the failure to observe it is a want of ordinary care
under the circumstances."
To repeat, by such a test, no negligence could be imputed to
defendant-appellee, and the action of plaintiff-appellee must
necessary fail. The facts being what they are, compel the conclusion
that the liability sought to be fastened on defendant-appellee had
not arisen.
3. Plaintiff-appellant, in her brief, however, would seek a reversal of
the judgment appealed from on the ground that there was a failure to
appreciate the true situation. Thus the first three assigned errors are
factual in character. The third assigned error could be summarily
disposed of. It would go against the evidence to maintain the view
that the whistle was not sounded and the brakes not applied at a
distance of 300 meters before reaching the crossing.
The first two assigned errors would make much of the failure of the
lower court to hold that the crossing bars not having been put down
and there being no guard at the gate-house, there still was a duty on
the part of Corliss to stop his jeep to avoid a collision and that
Teodorico Capili, who drove the engine, was not qualified to do so at
the time of the accident. For one cannot just single out circumstance
and then confidently assign to it decisive weight and significance.
Considered separately, neither of the two above errors assigned
would call for a judgment different in character. Nor would a
combination of acts allegedly impressed with negligence suffice to
alter the result. The quantum of proof required still not been met. The
alleged errors fail of their said effect. The case for plaintiff-appellant,
such as it had not been improved. There is no justification for reversing
the judgment of the lower court.
It cannot be stressed too much that the decisive considerations are
too variable, too dependent in the lid analysis upon a common sense
estimate of the situation as it presented itself to the parties for us to be
able to say that this or that element having been isolated, negligence
is shown. The factors that enter the judgment are too many and
diverse for us to imprison them in a formula sufficient of itself to yield
the correct answer to the multi-faceted problems the question of
negligence poses. Every case must be dependent on its facts. The
circumstances indicative of lack of due care must be judged in the
light of what could reasonably be expected of the parties. If the
objective standard of prudence be met, then negligence is ruled out.
In this particular case, it would be to show less than fidelity to the
controlling facts to impute negligence to defendant-appellee. The first
three errors assigned certainly do not call for that conclusion.
4. The fourth assigned error is deserving of a more extended
treatment. Plaintiff-appellant apparently had in mind this portion of
the opinion of the lower court: "The weight of authorities is to the effect
that a railroad track is in itself a warning or a signal of danger to those
who go upon it, and that those who, for reasons of their own, ignore
such warning, do so at their own risk and responsibility. Corliss Jr., who
undoubtedly had crossed the checkpoint frequently, if not daily, must
have known that locomotive engines and trains usually pass at that
particular crossing where the accident had taken place." 15
Her assignment of error, however, would single out not the above
excerpt from the decision appealed from but what to her is the
apparent reliance of the lower court on Mestres v. Manila Electric
Railroad & Light Co. 16 and United States v. Manlabat & Pasibi. 17 In the
Manabat case, the doctrine announced by this Court follows: "A
person in control of an automobile who crosses a railroad, even at a
regular road crossing, and who does not exercise that precaution and
that control over it as to be able to stop the same almost immediately
upon the appearance of a train, is guilty of criminal negligence,
providing a collision occurs and injury results. Considering the purposes
and the general methods adopted for the management of railroads
and railroad trains, we think it is incumbent upon one approaching a
railroad crossing to use all of his faculties of seeing and hearing. He
should approach a railroad crossing cautiously and carefully. He
should look and listen and do everything that a reasonably prudent
man would do before he attempts to cross the track." The Mestres
doctrine in a suit arising from a collision between an automobile and a
street car is substantially similar. Thus: "It may be said, however, that,
where a person is nearing a street crossing toward which a car is
approaching, the duty is on the party to stop and avoid a collision
who can most readily adjust himself to the exigencies of the case, and
where such person can do so more readily, the motorman has a right
to presume that such duty will be performed."
It is true, as plaintiff-appellant would now allege that there has been
a drift away from the apparent rigid and inflexible doctrine thus set
forth in the two above cases evidenced by Lilius v. Manila Railroad
Co., 18 the controlling facts of which, however, are easily
distinguishable from what had been correctly ascertained in the
present case. Such a deviation from the earlier principle announced is
not only true of this jurisdiction but also of the United States.
This is made clear by Prosser. Speaking of a 1927 decision by Justice
Holmes, he had the following to say: "Especially noteworthy in this
respect is the attempt Mr. Justice Holmes, in Baltimore & Ohio Railway
v. Goodman, to 'lay down a standard once for all,' which would
require an automobile driver approaching a railroad crossing with an
obstructed view to stop, look and listen, and if he cannot be sure
otherwise that no train is coming to get out of the car. The basic idea
behind this is sound enough: it is by no means proper care to cross a
railroad track without taking reasonable precautions against a train,
and normally such precautions will require looking, hearing, and a
stop, or at least slow speed, where the view is obstructed." 19
Then, barely seven years later, in 1934, came Pakora v. Wabash
Railway, 20 where, according to Prosser, it being shown that "the only
effective stop must be made upon the railway tracks themselves, in a
position of obligation danger, the court disregarded any such uniform
rule, rejecting the 'get out of the car' requirement as 'an uncommon
precaution, likely to be futile and sometimes even dangerous,' and
saying that the driver need not always stop. 'Illustrations such as these,'
said Mr. Justice Cardozo 'bear witness to the need for caution in
framing standards of behavior that amount to rules of law....
Extraordinary situations may not wisely or fairly be subjected to tests or
regulations that are fitting for the commonplace or normal." 21
What Justice Cardozo announced would merely emphasize what
was set forth earlier that each and every, case on questions of
negligence is to be decided in accordance with the peculiar
circumstances that present themselves. There can be no hard and
fast rule. There must be that observance of that degree of care,
precaution, and vigilance which the situation demands. Thus
defendant-appellee acted. It is undeniable then that no negligence
can rightfully be imputed to it.
What commends itself for acceptance is this conclusion arrived at by
the lower court: "Predicated on the testimonies of the plaintiff's
witnesses, on the knowledge of the deceased and his familiarity with
the setup of the checkpoint, the existence of the tracks; and on the
further fact that the locomotive had blown its siren or whistle, which
was heard by said witnesses, it is clear that Corliss Jr. was so sufficiently
warned in advance of the oncoming train that it was incumbent upon
him to avoid a possible accident — and this consisted simply in
stopping his vehicle before the crossing and allowing the train to
move on. A prudent man under similar circumstances would have
acted in this manner. This, unfortunately, Corliss, Jr. failed to do." 22
WHEREFORE, the decision of the lower court of November 29, 1962
dismissing the complaint, is affirmed. Without pronouncement as to
costs.
G.R. No. L-57079 September 29, 1989
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA
ESTEBAN, respondents.
REGALADO, J.:
This case had its inception in an action for damages instituted in the
former Court of First Instance of Negros Occidental 1 by private
respondent spouses against petitioner Philippine Long Distance
Telephone Company (PLDT, for brevity) for the injuries they sustained in
the evening of July 30, 1968 when their jeep ran over a mound of
earth and fell into an open trench, an excavation allegedly
undertaken by PLDT for the installation of its underground conduit
system. The complaint alleged that respondent Antonio Esteban failed
to notice the open trench which was left uncovered because of the
creeping darkness and the lack of any warning light or signs. As a
result of the accident, respondent Gloria Esteban allegedly sustained
injuries on her arms, legs and face, leaving a permanent scar on her
cheek, while the respondent husband suffered cut lips. In addition, the
windshield of the jeep was shattered.2
PLDT, in its answer, denies liability on the contention that the injuries
sustained by respondent spouses were the result of their own
negligence and that the entity which should be held responsible, if at
all, is L.R. Barte and Company (Barte, for short), an independent
contractor which undertook the construction of the manhole and the
conduit system.3 Accordingly, PLDT filed a third-party complaint
against Barte alleging that, under the terms of their agreement, PLDT
should in no manner be answerable for any accident or injuries arising
from the negligence or carelessness of Barte or any of its
employees.4 In answer thereto, Barte claimed that it was not aware
nor was it notified of the accident involving respondent spouses and
that it had complied with the terms of its contract with PLDT by
installing the necessary and appropriate standard signs in the vicinity
of the work site, with barricades at both ends of the excavation and
with red lights at night along the excavated area to warn the traveling
public of the presence of excavations.5
On October 1, 1974, the trial court rendered a decision in favor of
private respondents, the decretal part of which reads:
IN VIEW OF THE FOREGOING considerations the
defendant Philippine Long Distance Telephone
Company is hereby ordered (A) to pay the plaintiff
Gloria Esteban the sum of P20,000.00 as moral
damages and P5,000.00 exemplary damages; to
plaintiff Antonio Esteban the sum of P2,000.00 as moral
damages and P500.00 as exemplary damages, with
legal rate of interest from the date of the filing of the
complaint until fully paid. The defendant is hereby
ordered to pay the plaintiff the sum of P3,000.00 as
attorney's fees.
(B) The third-party defendant is hereby ordered to
reimburse whatever amount the defendant-third party
plaintiff has paid to the plaintiff. With costs against the
defendant. 6
From this decision both PLDT and private respondents appealed, the
latter appealing only as to the amount of damages. Third-party
defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the Court of
Appeals rendered a decision in said appealed case, with Justice
Corazon Juliano Agrava as ponente, reversing the decision of the
lower court and dismissing the complaint of respondent spouses. It
held that respondent Esteban spouses were negligent and
consequently absolved petitioner PLDT from the claim for
damages.7 A copy of this decision was received by private
respondents on October 10, 1979. 8 On October 25, 1979, said
respondents filed a motion for reconsideration dated October 24,
1979. 9 On January 24, 1980, the Special Ninth Division of the Court of
Appeals denied said motion for reconsideration.10 This resolution was
received by respondent spouses on February 22, 1980.11
On February 29, 1980, respondent Court of Appeals received private
respondents' motion for leave of court to file a second motion for
reconsideration, dated February 27, 1980. 12 On March 11, 1980,
respondent court, in a resolution likewise penned by Justice Agrava,
allowed respondents to file a second motion for reconsideration,
within ten (10) days from notice thereof. 13 Said resolution was
received by private respondents on April 1, 1980 but prior thereto,
private respondents had already filed their second motion for
reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion
to dismiss said second motion for reconsideration. 15 The Court of
Appeals, in view of the divergent opinions on the resolution of the
second motion for reconsideration, designated two additional justices
to form a division of five.16 On September 3, 1980, said division of five
promulgated its resolution, penned by Justice Mariano A. Zosa, setting
aside the decision dated September 25, 1979, as well as the resolution
dated, January 24,1980, and affirming in toto the decision of the lower
court.17
On September 19, 1980, petitioner PLDT filed a motion to set aside
and/or for reconsideration of the resolution of September 3, 1980,
contending that the second motion for reconsideration of private
respondent spouses was filed out of time and that the decision of
September 25, 1979 penned by Justice Agrava was already final. It
further submitted therein that the relationship of Barte and petitioner
PLDT should be viewed in the light of the contract between them and,
under the independent contractor rule, PLDT is not liable for the acts
of an independent contractor.18 On May 11, 1981, respondent Court
of Appeals promulgated its resolution denying said motion to set aside
and/or for reconsideration and affirming in toto the decision of the
lower court dated October 1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner
assigns the following errors:
1. Respondent Court of Appeals erred in not denying private
respondents' second motion for reconsideration on the ground that
the decision of the Special Second Division, dated September 25,
1979, and the resolution of the Special Ninth Division, dated January
24, 1980, are already final, and on the additional ground that said
second motion for reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid decision and
resolution and in misapplying the independent contractor rule in
holding PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent
court, as shown by the records and admitted by both parties, may be
graphically presented as follows:
(a) September 25, 1979, a decision was rendered by
the Court of Appeals with Justice Agrava asponente;
(b) October 10, 1979, a copy of said decision was
received by private respondents;
(c) October 25, 1979, a motion for reconsideration was
filed by private respondents;
(d) January 24, 1980, a resolution was issued denying
said motion for reconsideration;
(e) February 22, 1980, a copy of said denial resolution
was received by private respondents;
(f) February 29, 1980, a motion for leave to file a second
motion for reconsideration was filed by private
respondents
(g) March 7, 1980, a second motion for reconsideration
was filed by private respondents;
(h) March 11, 1980, a resolution was issued allowing
respondents to file a second motion for reconsideration
within ten (10) days from receipt; and
(i) September 3, 1980, a resolution was issued, penned
by Justice Zosa, reversing the original decision dated
September 25, 1979 and setting aside the resolution
dated January 24, 1980.
From the foregoing chronology, we are convinced that both the
motion for leave to file a second motion for reconsideration and,
consequently, said second motion for reconsideration itself were filed
out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural
governance at the time, provided that a second motion for
reconsideration may be presented within fifteen (15) days from notice
of the order or judgment deducting the time in which the first motion
has been pending. 20 Private respondents having filed their first motion
for reconsideration on the last day of the reglementary period of
fifteen (15) days within which to do so, they had only one (1) day from
receipt of the order denying said motion to file, with leave of court, a
second motion for reconsideration. 21 In the present case, after their
receipt on February 22, 1980 of the resolution denying their first motion
for reconsideration, private respondents had two remedial options. On
February 23, 1980, the remaining one (1) day of the aforesaid
reglementary period, they could have filed a motion for leave of court
to file a second motion for reconsideration, conceivably with a prayer
for the extension of the period within which to do so. On the other
hand, they could have appealed through a petition for review on
certiorari to this Court within fifteen (15) days from February 23,
1980. 22 Instead, they filed a motion for leave to file a second motion
'for reconsideration on February 29, 1980, and said second motion for
reconsideration on March 7, 1980, both of which motions were by then
time-barred.
Consequently, after the expiration on February 24, 1980 of the original
fifteen (15) day period, the running of which was suspended during
the pendency of the first motion for reconsideration, the Court of
Appeals could no longer validly take further proceedings on the merits
of the case, much less to alter, modify or reconsider its aforesaid
decision and/or resolution. The filing of the motion for leave to file a
second motion for reconsideration by herein respondents on February
29, 1980 and the subsequent filing of the motion itself on March 7,
1980, after the expiration of the reglementary period to file the same,
produced no legal effects. Only a motion for re-hearing or
reconsideration filed in time shall stay the final order or judgment
sought to be re-examined. 23
The consequential result is that the resolution of respondent court of
March 11, 1980 granting private respondents' aforesaid motion for
leave and, giving them an extension of ten (10) days to file a second
motion for reconsideration, is null and void. The period for filing a
second motion for reconsideration had already expired when private
respondents sought leave to file the same, and respondent court no
longer had the power to entertain or grant the said motion. The
aforesaid extension of ten (10) days for private respondents to file their
second motion for reconsideration was of no legal consequence since
it was given when there was no more period to extend. It is an
elementary rule that an application for extension of time must be filed
prior to the expiration of the period sought to be
extended. 24 Necessarily, the discretion of respondent court to grant
said extension for filing a second motion for reconsideration is
conditioned upon the timeliness of the motion seeking the same.
No appeal having been taken seasonably, the respondent court's
decision, dated September 25, 1979, became final and executory on
March 9, 1980. The subsequent resolutions of respondent court, dated
March 11, 1980 and September 3, 1980, allowing private respondents
to file a second motion for reconsideration and reversing the original
decision are null and void and cannot disturb the finality of the
judgment nor restore jurisdiction to respondent court. This is but in line
with the accepted rule that once a decision has become final and
executory it is removed from the power and jurisdiction of the court
which rendered it to further alter or amend, much less revoke it.25 The
decision rendered anew is null and void.26 The court's inherent power
to correct its own errors should be exercised before the finality of the
decision or order sought to be corrected, otherwise litigation will be
endless and no question could be considered finally settled. Although
the granting or denial of a motion for reconsideration involves the
exercise of discretion,27 the same should not be exercised whimsically,
capriciously or arbitrarily, but prudently in conformity with law, justice,
reason and equity.28
Prescinding from the aforesaid procedural lapses into the substantive
merits of the case, we find no error in the findings of the respondent
court in its original decision that the accident which befell private
respondents was due to the lack of diligence of respondent Antonio
Esteban and was not imputable to negligent omission on the part of
petitioner PLDT. Such findings were reached after an exhaustive
assessment and evaluation of the evidence on record, as evidenced
by the respondent court's resolution of January 24, 1980 which we
quote with approval:
First. Plaintiff's jeep was running along the inside lane of
Lacson Street. If it had remained on that inside lane, it
would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the
ACCIDENT MOUND was hit by the jeep swerving from
the left that is, swerving from the inside lane. What
caused the swerving is not disclosed; but, as the cause
of the accident, defendant cannot be made liable for
the damages suffered by plaintiffs. The accident was
not due to the absence of warning signs, but to the
unexplained abrupt swerving of the jeep from the
inside lane. That may explain plaintiff-husband's
insistence that he did not see the ACCIDENT MOUND
for which reason he ran into it.
Second. That plaintiff's jeep was on the inside lane
before it swerved to hit the ACCIDENT MOUND could
have been corroborated by a picture showing Lacson
Street to the south of the ACCIDENT MOUND.
It has been stated that the ditches along Lacson Street
had already been covered except the 3 or 4 meters
where the ACCIDENT MOUND was located. Exhibit B-1
shows that the ditches on Lacson Street north of the
ACCIDENT MOUND had already been covered, but not
in such a way as to allow the outer lane to be freely
and conveniently passable to vehicles. The situation
could have been worse to the south of the ACCIDENT
MOUND for which reason no picture of the ACCIDENT
MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an
hour as plaintiff-husband claimed. At that speed, he
could have braked the vehicle the moment it struck
the ACCIDENT MOUND. The jeep would not have
climbed the ACCIDENT MOUND several feet as
indicated by the tiremarks in Exhibit B. The jeep must
have been running quite fast. If the jeep had been
braked at 25 kilometers an hour, plaintiff's would not
have been thrown against the windshield and they
would not have suffered their injuries.
Fourth. If the accident did not happen because the
jeep was running quite fast on the inside lane and for
some reason or other it had to swerve suddenly to the
right and had to climb over the ACCIDENT MOUND,
then plaintiff-husband had not exercised the diligence
of a good father of a family to avoid the accident.
With the drizzle, he should not have run on dim lights,
but should have put on his regular lights which should
have made him see the ACCIDENT MOUND in time. If
he was running on the outside lane at 25 kilometers an
hour, even on dim lights, his failure to see the ACCIDENT
MOUND in time to brake the car was negligence on his
part. The ACCIDENT MOUND was relatively big and
visible, being 2 to 3 feet high and 1-1/2 feet wide. If he
did not see the ACCIDENT MOUND in time, he would
not have seen any warning sign either. He knew of the
existence and location of the ACCIDENT MOUND,
having seen it many previous times. With ordinary
precaution, he should have driven his jeep on the night
of the accident so as to avoid hitting the ACCIDENT
MOUND.29
The above findings clearly show that the negligence of respondent
Antonio Esteban was not only contributory to his injuries and those of
his wife but goes to the very cause of the occurrence of the accident,
as one of its determining factors, and thereby precludes their right to
recover damages.30 The perils of the road were known to, hence
appreciated and assumed by, private respondents. By exercising
reasonable care and prudence, respondent Antonio Esteban could
have avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged negligence on the
part of petitioner.
The presence of warning signs could not have completely prevented
the accident; the only purpose of said signs was to inform and warn
the public of the presence of excavations on the site. The private
respondents already knew of the presence of said excavations. It was
not the lack of knowledge of these excavations which caused the
jeep of respondents to fall into the excavation but the unexplained
sudden swerving of the jeep from the inside lane towards the
accident mound. As opined in some quarters, the omission to perform
a duty, such as the placing of warning signs on the site of the
excavation, constitutes the proximate cause only when the doing of
the said omitted act would have prevented the injury.31 It is basic that
private respondents cannot charge PLDT for their injuries where their
own failure to exercise due and reasonable care was the cause
thereof. It is both a societal norm and necessity that one should
exercise a reasonable degree of caution for his own protection.
Furthermore, respondent Antonio Esteban had the last clear chance
or opportunity to avoid the accident, notwithstanding the negligence
he imputes to petitioner PLDT. As a resident of Lacson Street, he
passed on that street almost everyday and had knowledge of the
presence and location of the excavations there. It was his negligence
that exposed him and his wife to danger, hence he is solely
responsible for the consequences of his imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals
in its original decision that there was insufficient evidence to prove any
negligence on the part of PLDT. We have for consideration only the
self-serving testimony of respondent Antonio Esteban and the
unverified photograph of merely a portion of the scene of the
accident. The absence of a police report of the incident and the non-
submission of a medical report from the hospital where private
respondents were allegedly treated have not even been satisfactorily
explained.
WHEREFORE, the resolutions of respondent Court of Appeals, dated
March 11, 1980 and September 3,1980, are hereby SET ASIDE. Its
original decision, promulgated on September 25,1979, is hereby
REINSTATED and AFFIRMED.
SO ORDERED.
FIRST DIVISION

As aptly observed by respondent court in its aforecited extended

resolution of January 24, 1980 — MERCURY DRUG CORPORATION and G.R. No. 172122
ROLANDO J. DEL ROSARIO,
(a) There was no third party eyewitness of the accident. Petitioners,
As to how the accident occurred, the Court can only Present:
rely on the testimonial evidence of plaintiffs themselves,
and such evidence should be very carefully evaluated, PUNO, C.J., Chairperson,
with defendant, as the party being charged, being SANDOVAL-GUTIERREZ,
- versus -
given the benefit of any doubt. Definitely without CORONA,
ascribing the same motivation to plaintiffs, another AZCUNA, and
person could have deliberately engineered a similar GARCIA, JJ.
accident in the hope and expectation that the Court SPOUSES RICHARD HUANG and
can grant him substantial moral and exemplary CARMEN HUANG, and STEPHEN
Promulgated:
damages from the big corporation that defendant is. HUANG,
The statement is made only to stress the Respondents.
June 22, 2007
disadvantageous position of defendant which would
have extreme difficulty in contesting such person's
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
claim. If there were no witness or record available from
-----x
the police department of Bacolod, defendant would
not be able to determine for itself which of the
conflicting testimonies of plaintiffs is correct as to the
DECISION
report or non-report of the accident to the police
department.32
PUNO, C.J.:
A person claiming damages for the negligence of another has the
burden of proving the existence of such fault or negligence causative
thereof. The facts constitutive of negligence must be affirmatively On appeal are the Decision[1] and Resolution[2] of the Court of
established by competent evidence.33 Whosoever relies on Appeals in CA-G.R. CV No. 83981, dated February 16, 2006 and March
negligence for his cause of action has the burden in the first instance 30, 2006, respectively which affirmed with modification the
of proving the existence of the same if contested, otherwise his action Decision[3] of the Regional Trial Court (RTC) of Makati City, dated
must fail. September 29, 2004. The trial court found petitioners jointly and
severally liable to pay respondents damages for the injuries sustained
by respondent Stephen Huang, son of respondent spouses Richard In contrast, petitioners allege that the immediate and
and Carmen Huang. proximate cause of the accident was respondent Stephen Huangs
recklessness. According to petitioner Del Rosario, he was driving on the
left innermost lane when the car bumped the trucks front right tire. The
First, the facts:
truck then swerved to the left, smashed into an electric post, crossed
the center island, and stopped on the other side of the highway. The
Petitioner Mercury Drug Corporation (Mercury Drug) is the
car likewise crossed over the center island and landed on the same
registered owner of a six-wheeler 1990 Mitsubishi Truck with plate
portion of C-5. Further, petitioner Mercury Drug claims that it exercised
number PRE 641 (truck). It has in its employ petitioner Rolando J. del
due diligence of a good father of a family in the selection and
Rosario as driver. Respondent spouses Richard and Carmen Huang
supervision of all its employees.
are the parents of respondent Stephen Huang and own the red 1991
Toyota Corolla GLI Sedan with plate number PTT 775 (car).
The trial court, in its Decision dated September 29, 2004, found
These two vehicles figured in a road accident on December petitioners Mercury Drug and Del Rosario jointly and severally liable to
20, 1996 at around 10:30 p.m. within the municipality of Taguig, Metro pay respondents actual, compensatory, moral and exemplary
Manila. Respondent Stephen Huang was driving the car, weighing damages, attorneys fees, and litigation expenses. The dispositive
1,450 kg., while petitioner Del Rosario was driving the truck, weighing portion reads:
14,058 kg. Both were traversing the C-5 Highway, north bound, coming
WHEREFORE, judgment is rendered finding
from the general direction of Alabang going to Pasig City. The car was
defendants Mercury Drug Corporation, Inc. and
on the left innermost lane while the truck was on the next lane to its
Rolando del Rosario, jointly and severally liable to pay
right, when the truck suddenly swerved to its left and slammed into the
plaintiffs Spouses Richard Y. Huang and Carmen G.
front right side of the car. The collision hurled the car over the island
Huang, and Stephen Huang the following amounts:
where it hit a lamppost, spun around and landed on the opposite
lane. The truck also hit a lamppost, ran over the car and zigzagged 1. Two Million Nine Hundred Seventy Three
towards, and finally stopped in front of Buellah Land Church. Thousand Pesos (P2,973,000.00) actual
damages;
At the time of the accident, petitioner Del Rosario only had a 2. As compensatory damages:
Traffic Violation Receipt (TVR). His drivers license had been
a. Twenty Three Million Four Hundred
confiscated because he had been previously apprehended for
Sixty One Thousand, and Sixty-Two Pesos
reckless driving.
(P23,461,062.00) for life care cost of
Stephen;
The car, valued at P300,000.00, was a total wreck. Respondent
b. Ten Million Pesos (P10,000,000.00) as
Stephen Huang sustained massive injuries to his spinal cord, head,
and for lost or impaired earning
face, and lung. Despite a series of operations, respondent Stephen
capacity of Stephen;
Huang is paralyzed for life from his chest down and requires
continuous medical and rehabilitation treatment. 3. Four Million Pesos (P4,000,000.00) as moral
damages;
Respondents fault petitioner Del Rosario for committing gross 4. Two Million Pesos (P2,000,000.00) as
negligence and reckless imprudence while driving, and petitioner exemplary damages; and
Mercury Drug for failing to exercise the diligence of a good father of a
5. One Million Pesos (P1,000,000.00) as
family in the selection and supervision of its driver.
attorneys fees and litigation expense.[4]
 On February 16, 2006, the Court of Appeals affirmed the
decision of the trial court but reduced the award of moral damages
to P1,000,000.00. The appellate court also denied the motion for
reconsideration filed by petitioners.
Hence, this appeal.
Petitioners cite the following grounds for their appeal:
1. That the subject Decision which dismissed the appeal
of petitioners herein but AFFIRMED WITH MODIFICATION
the decision of the Regional Trial Court, Branch 64,
Makati City, in that the award of moral damages was
reduced to P1,000,000.00 and its Resolution dated
March 30, 2006, which dismissed outright the Motion for
Reconsideration must be set aside because the
Honorable Court of Appeals committed reversible error:
A. IN DENYING OUTRIGHTLY THE MOTION FOR
RECONSIDERATION ON ALLEGEDLY BEING FILED
OUT OF TIME FOR ONE DAY;
B. IN ACCORDING GREATER WEIGHT TO THE
EVIDENCE ADDUCED BY THE RESPONDENTS HEREIN
AND COMPLETELY DISREGARDING THE DEFENSE
INTERPOSED BY THE PETITIONERS HEREIN;
C. IN DISREGARDING COMPLETELY ALL EVIDENCES
PRESENTED BY THE PETITIONERS HEREIN AND
PROCEEDED TO RENDER ITS DECISION BASED ON
PRESUMPTIONS AND PERSONAL OPINIONS OF
PEOPLE WHO ARE NOT WITNESSES TO THE
ACCIDENT;
D. IN AWARDING DAMAGES IN FAVOR OF
RESPONDENTS HEREIN;
E. IN FINDING THAT MERCURY DRUG CORPORATION
FAILED TO EXERCISE THE DILIGENCE REQUIRED IN
SUPERVISING ITS EMPLOYEES DESPITE
OVERWHELMING EVIDENCE PRESENTED BY
PETITIONER COMPANY;
F. IN FINDING THAT PETITIONER ROLANDO DEL
ROSARIO WAS NEGLIGENT IN DRIVING THE TRUCK
AT THE TIME OF ACCIDENT AND TOTALLY
DISREGARDING THE EVIDENCES PRESENTED
DURING THE TRIAL OF THE CASE.
G. IN PRESENTING ONLY IN THE DECISION
TESTIMONIES FAVORABLE TO THE RESPONDENTS
HEREIN AND COMPLETELY DISREGARDING THE
EVIDENCES PRESENTED BY THE PETITIONERS HEREIN
WHICH CONTRADICTED SUCH TESTIMONIES NOT
ONLY THROUGH ORAL TESTIMONIES BUT AS WELL
AS DOCUMENTARY EVIDENCES.[5]
We affirm the findings of the trial court and the appellate court
that petitioner Del Rosario was negligent. The evidence does not
support petitioners claim that at the time of the accident, the truck
was at the left inner lane and that it was respondent Stephen Huangs
car, at its right, which bumped the right front side of the truck. Firstly,
petitioner Del Rosario could not precisely tell which part of the truck
was hit by the car,[6] despite the fact that the truck was snub-nosed
and a lot higher than the car. Petitioner Del Rosario could not also
explain why the car landed on the opposite lane of C-5 which was on
its left side. He said that the car did not pass in front of him after it hit
him or under him or over him or behind him.[7] If the truck were really at
the left lane and the car were at its right, and the car hit the truck at
its front right side, the car would not have landed on the opposite
side, but would have been thrown to the right side of the C-5
Highway. Noteworthy on this issue is the testimony of Dr. Marlon
Rosendo H. Daza, an expert in the field of physics. He conducted a
study based on the following assumptions provided by respondents:
1. Two vehicles collided;
2. One vehicle is ten times heavier, more massive
than the other;
3. Both vehicles were moving in the same direction
and at the same speed of about 85 to 90 kilometers
per hour;
4. The heavier vehicle was driving at the innermost
left lane, while the lighter vehicle was at its right.
Dr. Daza testified that given the foregoing assumptions, if the lighter
vehicle hits the right front portion of the heavier vehicle, the general
direction of the light vehicle after the impact would be to the right
side of the heavy vehicle, not the other way around. The truck, he
opined, is more difficult to move as it is heavier. It is the car, the lighter
vehicle, which would move to the right of, and away from the
truck. Thus, there is very little chance that the car will move towards
the opposite side, i.e., to the left of the truck.
Dr. Daza also gave a further study on the basis of the same
assumptions except that the car is on the left side of the truck, in
accordance with the testimony of respondent Stephen Huang. Dr.
Daza concluded that the general direction of the car after impact
would be to the left of the truck. In this situation, the middle island
against which the car was pinned would slow down the car, and
enable the truck to catch up and hit the car again, before running
over it.[8]
To support their thesis, petitioners tried to show the damages
that the truck sustained at its front right side. The attempt does not
impress. The photographs presented were taken a month after the
accident, and Rogelio Pantua, the automechanic who repaired the
truck and authenticated the photographs, admitted that there were
damages also on the left side of the truck.[9]
Worse still, petitioner Del Rosario further admitted that after the
impact, he lost control of the truck and failed to apply his
brakes. Considering that the car was smaller and lighter than the six-
wheeler truck, the impact allegedly caused by the car when it hit the
truck could not possibly be so great to cause petitioner to lose all
control that he failed to even step on the brakes. He testified, as
follows:
ATTY. DIAZ:
May I proceed, Your Honor. You were able to apply
the brakes, were you sir?
WITNESS:
No more, sir, because I went over the island.
ATTY. DIAZ:
Because as you said you lost control, correct sir?
WITNESS:
Yes, sir.
ATTY. DIAZ:
In other words, sir from the time your truck was hit
according to you up to the time you rested on the
shoulder, you traveled fifty meters?
WITNESS:
Yes, sir, about that distance.
ATTY. DIAZ:
And this was despite the fact that you were only
traveling at the speed of seventy five kilometers per
hour, jumped over the island, hit the lamppost, and
traveled the three lanes of the opposite lane of C-5
highway, is that what you want to impress upon this
court?
WITNESS:
Yes, sir.[10]
We therefore find no cogent reason to disturb the findings of
the RTC and the Court of Appeals. The evidence proves petitioner Del
Rosarios negligence as the direct and proximate cause of the injuries
suffered by respondent Stephen Huang. Petitioner Del Rosario failed to
do what a reasonable and prudent man would have done under the
circumstances.
We now come to the liability of petitioner Mercury Drug as
employer of Del Rosario. Articles 2176 and 2180 of the Civil Code
provide:
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
Art. 2180. The obligation imposed by article 2176
is demandable not only for ones 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.
xxx
attended before the accident which occurred in 1996 was held
twelve years ago in 1984.
It also appears that petitioner Mercury Drug does not provide
for a back-up driver for long trips. At the time of the accident,
petitioner Del Rosario has been out on the road for more than thirteen
hours, without any alternate. Mrs. Caamic testified that she does not
know of any company policy requiring back-up drivers for long trips.[14]

The liability of the employer under Art. 2180 of the Civil Code is
Petitioner Mercury Drug likewise failed to show that it exercised
direct or immediate. It is not conditioned on a prior recourse against
due diligence on the supervision and discipline over its employees. In
the negligent employee, or a prior showing of insolvency of such
fact, on the day of the accident, petitioner Del Rosario was driving
employee. It is also joint and solidary with the employee.[11]
without a license. He was holding a TVR for reckless driving. He testified
that he reported the incident to his superior, but nothing was done
To be relieved of liability, petitioner Mercury Drug should show about it. He was not suspended or reprimanded.[15] No disciplinary
that it exercised the diligence of a good father of a family, both in the action whatsoever was taken against petitioner Del Rosario. We
selection of the employee and in the supervision of the performance therefore affirm the finding that petitioner Mercury Drug has failed to
of his duties. Thus, in the selection of its prospective employees, the discharge its burden of proving that it exercised due diligence in the
employer is required to examine them as to their qualifications, selection and supervision of its employee, petitioner Del Rosario.
experience, and service records.[12] With respect to the supervision of
its employees, the employer should formulate standard operating
We now consider the damages which respondents should
procedures, monitor their implementation, and impose disciplinary
recover from the petitioners.
measures for their breach. To establish compliance with these
requirements, employers must submit concrete proof, including
documentary evidence.[13] The trial court awarded the following amounts:
1. Two Million Nine Hundred Seventy-Three Thousand
In the instant case, petitioner Mercury Drug presented Pesos (P2,973,000.00) actual damages;
testimonial evidence on its hiring procedure. According to
Mrs. Merlie Caamic, the Recruitment and Training Manager of
petitioner Mercury Drug, applicants are required to take theoretical
2. As compensatory damages:
and actual driving tests, and psychological examination. In the case
of petitioner Del Rosario, however, Mrs. Caamic admitted that he took a. Twenty-Three Million Four Hundred Sixty One
the driving tests and psychological examination when he applied for Thousand, and Sixty-Two Pesos
the position of Delivery Man, but not when he applied for the position (P23,461,062.00) for life care cost of Stephen;
of Truck Man. Mrs. Caamic also admitted that petitioner Del Rosario
b. Ten Million Pesos (P10,000,000.00) as and for
used a Galant which is a light vehicle, instead of a truck during the
lost or impaired earning capacity of Stephen;
driving tests. Further, no tests were conducted on the motor skills
development, perceptual speed, visual attention, depth visualization, 3. Four Million Pesos (P4,000,000.00) as moral
eye and hand coordination and steadiness of petitioner Del damages;
Rosario. No NBI and police clearances were also presented. Lastly,
4. Two Million Pesos (P2,000,000.00) as exemplary
petitioner Del Rosario attended only three driving seminars on June 30,
damages; and
2001, February 5, 2000 and July 7, 1984. In effect, the only seminar he
 5. One Million Pesos (P1,000,000.00) as attorneys fees
and litigation expense.
The Court of Appeals affirmed the decision of the trial court
but reduced the award of moral damages to P1,000,000.00.
With regard to actual damages, Art. 2199 of the Civil Code
provides that [E]xcept as provided by law or by stipulation one is
entitled to an adequate compensation only for such pecuniary loss
suffered by him as he has duly proved x x x. In the instant case, we
uphold the finding that the actual damages claimed by respondents
were supported by receipts. The amount of P2,973,000.00 represented
cost of hospital expenses, medicines, medical services and supplies,
and nursing care services provided respondent Stephen from
December 20, 1996, the day of the accident, until December 1998.
Petitioners are also liable for all damages which are the natural
and probable consequences of the act or omission complained
of.[16] The doctors who attended to respondent Stephen are one in
their prognosis that his chances of walking again and performing
basic body functions are nil. For the rest of his life, he will need
continuous rehabilitation and therapy to prevent further complications
such as pneumonia, bladder and rectum
infection, renal failure, sepsis and severe bed sores, osteoporosis and
fractures, and other spinal cord injury-related conditions. He will be
completely dependent on the care and support of his family. We thus
affirm the award of P23,461,062.00 for the life care cost of respondent
Stephen Huang, based on his average monthly expense and the
actuarial computation of the remaining years that he is expected to
live; and the conservative amount of P10,000,000.00, as reduced by
the trial court, for the loss or impairment of his earning
capacity,[17] considering his age, probable life expectancy, the state
of his health, and his mental and physical condition before the
accident. He was only seventeen years old, nearly six feet tall and
weighed 175 pounds. He was in fourth year high school, and a
member of the school varsity basketball team. He was also class
president and editor-in-chief of the school annual. He had shown very
good leadership qualities. He was looking forward to his college life,
having just passed the entrance examinations of the University of the
Philippines, De La Salle University, and the University of Asia and the
Pacific. The University of Sto. Tomas even offered him a chance to
obtain an athletic scholarship, but the accident prevented him from
attending the basketball try-outs. Without doubt, he was an
exceptional student. He excelled both in his academics and
extracurricular undertakings. He is intelligent and motivated, a go-
getter, as testified by Francisco Lopez, respondent Stephen Huangs
godfather and a bank executive.[18] Had the accident not happened,
he had a rosy future ahead of him. He wanted to embark on a
banking career, get married and raise children. Taking into account
his outstanding abilities, he would have enjoyed a successful
professional career in banking. But, as Mr. Lopez stated, it is highly
unlikely for someone like respondent to ever secure a job in a bank. To
his knowledge, no bank has ever hired a person suffering with
the kind of disability as Stephen Huangs.[19]
We likewise uphold the award of moral and exemplary
damages and attorneys fees.
The award of moral damages is aimed at a restoration, within
the limits of the possible, of the spiritual status quo ante. [20] Moral
damages are designed to compensate and alleviate in some way the
physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and
similar injury unjustly caused a person. Although incapable of
pecuniary computation, they must be proportionate to the suffering
inflicted.[21] The amount of the award bears no relation whatsoever
with the wealth or means of the offender.
In the instant case, respondent Stephen Huang and
respondent spouses Richard and Carmen Huang testified to the
intense suffering they continue to experience as a result of the
accident. Stephen recounted the nightmares and traumas he suffers
almost every night when he relives the accident. He also gets
depression when he thinks of his bleak future. He feels frustration and
embarrassment in needing to be helped with almost everything and in
his inability to do simple things he used to do. Similarly, respondent
spouses and the rest of the family undergo their own private
suffering. They live with the day-to-day uncertainty of respondent
Stephen Huangs condition. They know that the chance of full recovery
is nil. Moreover, respondent Stephen Huangs paralysis has made him
prone to many other illnesses. His family, especially
respondent spouses, have to make themselves available for Stephen
twenty-four hours a day. They have patterned their daily life around
taking care of him, ministering to his daily needs, altering the lifestyle to may be granted when a party is compelled to litigate or incur
which they had been accustomed. expenses to protect his interest by reason of an unjustified act of the
other party.[24]
Respondent Carmen Huangs brother testified on the
insensitivity of petitioner Mercury Drug towards the plight of Cost against petitioners.
respondent. Stephen, viz.:
Maybe words cannot describe the anger that
IN VIEW THEREOF, the petition is DENIED. The Decision and
we feel towards the defendants. All the time that we
Resolution of the Court of Appeals dated February 16, 2006 and
were going through the crisis, there was none (sic) a
March 30, 2006, respectively, in CA-G.R. CV No. 83981, are AFFIRMED.
single sign of nor offer of help, any consolation or
anything whatsoever. It is funny because, you know, I
have many colleagues, business associates, people SO ORDERED.
even as far as United States, Japan, that I probably met
only once, when they found out, they make a call, they G.R. No. L-4977 March 22, 1910
sent card, they write small notes, but from the
defendant, absolute silence. They didnt care, and DAVID TAYLOR, plaintiff-appellee,
worst, you know, this is a company that have (sic) all vs.
the resources to help us. They were (sic) on our part, it THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-
was doubly painful because we have no choice but to appellant.
go back to them and buy the medicines that we need
for Stephen. So, I dont know how someone will really
W. H. Lawrence, for appellant.
have no sense of decency at all to at least find out
W. L. Wright, for appellee.
what happened to my son, what is his condition, or if
there is anything that they can do to help us.[22]
CARSON, J.:

On the matter of exemplary damages, Art. 2231 of the Civil An action to recover damages for the loss of an eye and other injuries,
Code provides that in cases of quasi-delicts, exemplary damages may instituted by David Taylor, a minor, by his father, his nearest relative.
be granted if the defendant acted with gross negligence. The records
show that at the time of the accident, petitioner Del Rosario was
The defendant is a foreign corporation engaged in the operation of a
driving without a license because he was previously ticketed for
street railway and an electric light system in the city of Manila. Its
reckless driving.The evidence also shows that he failed to step on his
power plant is situated at the eastern end of a small island in the Pasig
brakes immediately after the impact. Had petitioner Del Rosario done
River within the city of Manila, known as the Isla del Provisor. The power
so, the injuries which respondent Stephen sustained could have been
plant may be reached by boat or by crossing a footbridge,
greatly reduced. Wanton acts such as that committed by petitioner
impassable for vehicles, at the westerly end of the island.
Del Rosario need be suppressed; and employers like petitioner
Mercury Drug should be more circumspect in the observance of due
diligence in the selection and supervision of their employees. The The plaintiff, David Taylor, was at the time when he received the
award of exemplary damages in favor of the respondents is therefore injuries complained of, 15 years of age, the son of a mechanical
justified. engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.

With the award of exemplary damages, we also affirm the On the 30th of September, 1905, plaintiff, with a boy named Manuel
grant of attorneys fees to respondents.[23] In addition, attorneys fees Claparols, about 12 years of age, crossed the footbridge to the Isla del
Provisor, for the purpose of visiting one Murphy, an employee of the
defendant, who and promised to make them a cylinder for a
miniature engine. Finding on inquiry that Mr. Murphy was not in his
quarters, the boys, impelled apparently by youthful curiosity and
perhaps by the unusual interest which both seem to have taken in
machinery, spent some time in wandering about the company's
premises. The visit was made on a Sunday afternoon, and it does not
appear that they saw or spoke to anyone after leaving the power
house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling
the defendant's coal, they walked across the open space in the
neighborhood of the place where the company dumped in the
cinders and ashes from its furnaces. Here they found some twenty or
thirty brass fulminating caps scattered on the ground. These caps are
approximately of the size and appearance of small pistol cartridges
and each has attached to it two long thin wires by means of which it
may be discharged by the use of electricity. They are intended for use
in the explosion of blasting charges of dynamite, and have in
themselves a considerable explosive power. After some discussion as
to the ownership of the caps, and their right to take them, the boys
picked up all they could find, hung them on stick, of which each took
end, and carried them home. After crossing the footbridge, they met
a little girl named Jessie Adrian, less than 9 years old, and all three
went to the home of the boy Manuel. The boys then made a series of
experiments with the caps. They trust the ends of the wires into an
electric light socket and obtained no result. They next tried to break
the cap with a stone and failed. Manuel looked for a hammer, but
could not find one. Then they opened one of the caps with a knife,
and finding that it was filled with a yellowish substance they got
matches, and David held the cap while Manuel applied a lighted
match to the contents. An explosion followed, causing more or less
serious injuries to all three. Jessie, who when the boys proposed putting
a match to the contents of the cap, became frightened and started
to run away, received a slight cut in the neck. Manuel had his hand
burned and wounded, and David was struck in the face by several
particles of the metal capsule, one of which injured his right eye to
such an extent as to the necessitate its removal by the surgeons who
were called in to care for his wounds.
The evidence does definitely and conclusively disclose how the caps
came to be on the defendant's premises, nor how long they had
been there when the boys found them. It appears, however, that
some months before the accident, during the construction of the
defendant's plant, detonating caps of the same size and kind as those
found by the boys were used in sinking a well at the power plant near
the place where the caps were found; and it also appears that at or
about the time when these caps were found, similarly caps were in
use in the construction of an extension of defendant's street car line to
Fort William McKinley. The caps when found appeared to the boys
who picked them up to have been lying for a considerable time, and
from the place where they were found would seem to have been
discarded as detective or worthless and fit only to be thrown upon the
rubbish heap.
No measures seems to have been adopted by the defendant
company to prohibit or prevent visitors from entering and walking
about its premises unattended, when they felt disposed so to do. As
admitted in defendant counsel's brief, "it is undoubtedly true that
children in their play sometimes crossed the foot bridge to the islands;"
and, we may add, roamed about at will on the uninclosed premises of
the defendant, in the neighborhood of the place where the caps
were found. There is evidence that any effort ever was made to forbid
these children from visiting the defendant company's premises,
although it must be assumed that the company or its employees were
aware of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a
cabin boy on one of the interisland transports. Later he took up work in
his father's office, learning mechanical drawing and mechanical
engineering. About a month after his accident he obtained
employment as a mechanical draftsman and continued in that
employment for six months at a salary of P2.50 a day; and it appears
that he was a boy of more than average intelligence, taller and more
mature both mentally and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and
conclusively established by the evidence of record, and are
substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were
found by plaintiff on defendant company's premises were the
property of the defendant, or that they had come from its possession
and control, and that the company or some of its employees left them
exposed on its premises at the point where they were found.
The evidence in support of these allegations is meager, and the
defendant company, apparently relying on the rule of law which
places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in his
proof. We think, however, that plaintiff's evidence is sufficient to sustain
a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used,
more or less extensively, on the McKinley extension of the defendant
company's track; that some of these caps were used in blasting a well
on the company's premises a few months before the accident; that
not far from the place where the caps were found the company has
a storehouse for the materials, supplies and so forth, used by it in its
operations as a street railway and a purveyor of electric light; and that
the place, in the neighborhood of which the caps were found, was
being used by the company as a sort of dumping ground for ashes
and cinders. Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in common
use by the average citizen, and under all the circumstances, and in
the absence of all evidence to the contrary, we think that the
discovery of twenty or thirty of these caps at the place where they
were found by the plaintiff on defendant's premises fairly justifies the
inference that the defendant company was either the owner of the
caps in question or had the caps under its possession and control. We
think also that the evidence tends to disclose that these caps or
detonators were willfully and knowingly thrown by the company or its
employees at the spot where they were found, with the expectation
that they would be buried out of the sight by the ashes which it was
engaged in dumping in that neighborhood, they being old and
perhaps defective; and, however this may be, we are satisfied that
the evidence is sufficient to sustain a finding that the company or
some of its employees either willfully or through an oversight left them
exposed at a point on its premises which the general public, including
children at play, where not prohibited from visiting, and over which
the company knew or ought to have known that young boys were
likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative
value of the facts on which these conclusions are based by
intimidating or rather assuming that the blasting work on the
company's well and on its McKinley extension was done by
contractors. It was conclusively proven, however, that while the
workman employed in blasting the well was regularly employed by J.
G. White and Co., a firm of contractors, he did the work on the well
directly and immediately under the supervision and control of one of
defendant company's foremen, and there is no proof whatever in the
record that the blasting on the McKinley extension was done
by independent contractors. Only one witness testified upon this point,
and while he stated that he understood that a part of this work was
done by contract, he could not say so of his own knowledge, and
knew nothing of the terms and conditions of the alleged contract, or
of the relations of the alleged contractor to the defendant company.
The fact having been proven that detonating caps were more or less
extensively employed on work done by the defendant company's
directions and on its behalf, we think that the company should have
introduced the necessary evidence to support its contention if it
wished to avoid the not unreasonable inference that it was the owner
of the material used in these operations and that it was responsible for
tortious or negligent acts of the agents employed therein, on the
ground that this work had been intrusted to independent
contractors as to whose acts the maxim respondent superior should
not be applied. If the company did not in fact own or make use of
caps such as those found on its premises, as intimated by counsel, it
was a very simple matter for it to prove that fact, and in the absence
of such proof we think that the other evidence in the record
sufficiently establishes the contrary, and justifies the court in drawing
the reasonable inference that the caps found on its premises were its
property, and were left where they were found by the company or
some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his
decision in plaintiff's favor, upon the provisions of article 1089 of the
Civil Code read together with articles 1902, 1903, and 1908 of that
code.
ART. 1089 Obligations are created by law, by contracts, by
quasi-contracts, and illicit acts and omissions or by those in
which any kind of fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage
to another when there is fault or negligence shall be obliged to
repair the damage so done.
ART. 1903 The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also
for those of the persons for whom they should be responsible.
 The father, and on his death or incapacity the mother, is liable
for the damages caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are
equally liable for damages caused by their employees in the
service of the branches in which the latter may be employed
or on account of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage
caused —
1 By the explosion of machines which may not have been
cared for with due diligence, and for kindling of explosive
substances which may not have been placed in a safe and
proper place.
Counsel for the defendant and appellant rests his appeal strictly upon
his contention that the facts proven at the trial do not established the
liability of the defendant company under the provisions of these
articles, and since we agree with this view of the case, it is not
necessary for us to consider the various questions as to form and the
right of action (analogous to those raised in the case of Rakes vs.
Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps,
be involved in a decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as
under the generally accepted doctrine in the United States, the
plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent
evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant
personally, or some person for whose acts it must respond, was
guilty.
(3) The connection of cause and effect between the
negligence and the damage.
These proposition are, of course, elementary, and do not admit of
discussion, the real difficulty arising in the application of these
principles to the particular facts developed in the case under
consideration.
It is clear that the accident could not have happened and not the
fulminating caps been left exposed at the point where they were
found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have
been injured had he not, for his own pleasure and convenience,
entered upon the defendant's premises, and strolled around thereon
without the express permission of the defendant, and had he not
picked up and carried away the property of the defendant which he
found on its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and
inexperience, his entry upon defendant company's premises, and the
intervention of his action between the negligent act of defendant in
leaving the caps exposed on its premises and the accident which
resulted in his injury should not be held to have contributed in any wise
to the accident, which should be deemed to be the direct result of
defendant's negligence in leaving the caps exposed at the place
where they were found by the plaintiff, and this latter the proximate
cause of the accident which occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine
laid down in many of the courts of last resort in the United States in the
cases known as the "Torpedo" and "Turntable" cases, and the cases
based thereon.
In a typical cases, the question involved has been whether a railroad
company is liable for an injury received by an infant of tender years,
who from mere idle curiosity, or for the purposes of amusement, enters
upon the railroad company's premises, at a place where the railroad
company knew, or had good reason to suppose, children would be
likely to come, and there found explosive signal torpedoes left
unexposed by the railroad company's employees, one of which when
carried away by the visitor, exploded and injured him; or where such
infant found upon the premises a dangerous machine, such as a
turntable, left in such condition as to make it probable that children in
playing with it would be exposed to accident or injury therefrom and
where the infant did in fact suffer injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of
authority holds the owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein
the principal question was whether a railroad company was liable for
in injury received by an infant while upon its premises, from idle
curiosity, or for purposes of amusement, if such injury was, under
circumstances, attributable to the negligence of the company), the
principles on which these cases turn are that "while a railroad
company is not bound to the same degree of care in regard to mere
strangers who are unlawfully upon its premises that it owes to
passengers conveyed by it, it is not exempt from responsibility to such
strangers for injuries arising from its negligence or from its tortious acts;"
and that "the conduct of an infant of tender years is not to be judged
by the same rule which governs that of adult. While it is the general
rule in regard to an adult that to entitle him to recover damages for
an injury resulting from the fault or negligence of another he must
himself have been free from fault, such is not the rule in regard to an
infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be
determined in each case by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously
controverted and sharply criticized in several state courts, and the
supreme court of Michigan in the case of Ryan vs. Towar (128 Mich.,
463) formally repudiated and disapproved the doctrine of the
Turntable cases, especially that laid down in Railroad Company vs.
Stout, in a very able decision wherein it held, in the language of the
syllabus: (1) That the owner of the land is not liable to trespassers
thereon for injuries sustained by them, not due to his wanton or willful
acts; (2) that no exception to this rule exists in favor of children who
are injured by dangerous machinery naturally calculated to attract
them to the premises; (3) that an invitation or license to cross the
premises of another can not be predicated on the mere fact that no
steps have been taken to interfere with such practice; (4) that there is
no difference between children and adults as to the circumstances
that will warrant the inference of an invitation or a license to enter
upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs.
Stout were indulged in by the courts in Connecticut and
Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349).
And the doctrine has been questioned in Wisconsin, Pennsylvania,
New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in the
United States, citing and approving the doctrine laid down in England
in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down
the rule in these cases in accord with that announced in the Railroad
Company vs. Stout (supra), and the Supreme Court of the United
States, in a unanimous opinion delivered by Justice Harlan in the case
of Union Pacific Railway Co. vs. McDonal and reconsidered the
doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive
and critical analysis and review of many of the adjudged cases, both
English and American, formally declared that it adhered "to the
principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the
facts were as follows: The plaintiff, a boy 12 years of age, out of
curiosity and for his own pleasure, entered upon and visited the
defendant's premises, without defendant's express permission or
invitation, and while there, was by accident injured by falling into a
burning slack pile of whose existence he had no knowledge, but
which had been left by defendant on its premises without any fence
around it or anything to give warning of its dangerous condition,
although defendant knew or had reason the interest or curiosity of
passers-by. On these facts the court held that the plaintiff could not
be regarded as a mere trespasser, for whose safety and protection
while on the premises in question, against the unseen danger referred
to, the defendant was under no obligation to make provision.
We quote at length from the discussion by the court of the application
of the principles involved to the facts in that case, because what is
said there is strikingly applicable in the case at bar, and would seem
to dispose of defendant's contention that, the plaintiff in this case
being a trespasser, the defendant company owed him no duty, and
in no case could be held liable for injuries which would not have
resulted but for the entry of plaintiff on defendant's premises.
We adhere to the principles announced in Railroad Co. vs.
Stout (supra). Applied to the case now before us, they require
us to hold that the defendant was guilty of negligence in
leaving unguarded the slack pile, made by it in the vicinity of
its depot building. It could have forbidden all persons from
coming to its coal mine for purposes merely of curiosity and
pleasure. But it did not do so. On the contrary, it permitted all,
without regard to age, to visit its mine, and witness its
operation. It knew that the usual approach to the mine was by
a narrow path skirting its slack pit, close to its depot building, at
which the people of the village, old and young, would often
assemble. It knew that children were in the habit of
frequenting that locality and playing around the shaft house in
the immediate vicinity of the slack pit. The slightest regard for
the safety of these children would have suggested that they
were in danger from being so near a pit, beneath the surface
of which was concealed (except when snow, wind, or rain
prevailed) a mass of burning coals into which a child might
accidentally fall and be burned to death. Under all the
circumstances, the railroad company ought not to be heard
to say that the plaintiff, a mere lad, moved by curiosity to see
the mine, in the vicinity of the slack pit, was a trespasser, to
whom it owed no duty, or for whose protection it was under no
obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a
man dangerous traps, baited with flesh, in his own ground, so
near to a highway, or to the premises of another, that dogs
passing along the highway, or kept in his neighbors premises,
would probably be attracted by their instinct into the traps,
and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would
lie. "What difference," said Lord Ellenborough, C.J., "is there in
reason between drawing the animal into the trap by means of
his instinct which he can not resist, and putting him there by
manual force?" What difference, in reason we may observe in
this case, is there between an express license to the children of
this village to visit the defendant's coal mine, in the vicinity of its
slack pile, and an implied license, resulting from the habit of
the defendant to permit them, without objection or warning, to
do so at will, for purposes of curiosity or pleasure? Referring it
the case of Townsend vs. Wathen, Judge Thompson, in his work
on the Law of Negligence, volume 1, page 305, note, well says:
"It would be a barbarous rule of law that would make the
owner of land liable for setting a trap thereon, baited with
stinking meat, so that his neighbor's dog attracted by his
natural instinct, might run into it and be killed, and which would
exempt him from liability for the consequence of leaving
exposed and unguarded on his land a dangerous machine, so
that his neighbor's child attracted to it and tempted to
intermeddle with it by instincts equally strong, might thereby be
killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of
Michigan, in the case of Powers vs. Harlow (53 Mich., 507), said that (p.
515):
Children, wherever they go, must be expected to act upon
childlike instincts and impulses; and others who are chargeable
with a duty of care and caution toward them must calculate
upon this, and take precautions accordingly. If they leave
exposed to the observation of children anything which would
be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to
handle or play with, they should expect that liberty to be
taken.
And the same eminent jurist in his treatise or torts, alluding to the
doctrine of implied invitation to visit the premises of another, says:
In the case of young children, and other persons not fully sui
juris, an implied license might sometimes arise when it would
not on behalf of others. Thus leaving a tempting thing for
children to play with exposed, where they would be likely to
gather for that purpose, may be equivalent to an invitation to
them to make use of it; and, perhaps, if one were to throw
away upon his premises, near the common way, things
tempting to children, the same implication should arise. (Chap.
10, p. 303.)
The reasoning which led the Supreme Court of the United States to its
conclusion in the cases of Railroad Co. vs. Stout (supra) and Union
Pacific Railroad Co. vs. McDonald (supra) is not less cogent and
convincing in this jurisdiction than in that wherein those cases
originated. Children here are actuated by similar childish instincts and
impulses. Drawn by curiosity and impelled by the restless spirit of youth,
boys here as well as there will usually be found whenever the public is
permitted to congregate. The movement of machinery, and indeed
anything which arouses the attention of the young and inquiring mind,
will draw them to the neighborhood as inevitably as does the magnet
draw the iron which comes within the range of its magnetic influence.
The owners of premises, therefore, whereon things attractive to
children are exposed, or upon which the public are expressly or
impliedly permitted to enter or upon which the owner knows or ought
to know children are likely to roam about for pastime and in play, "
must calculate upon this, and take precautions accordingly." In such
cases the owner of the premises can not be heard to say that
because the child has entered upon his premises without his express
permission he is a trespasser to whom the owner owes no duty or
obligation whatever. The owner's failure to take reasonable
precautions to prevent the child from entering his premises at a place
where he knows or ought to know that children are accustomed to
roam about of to which their childish instincts and impulses are likely to
attract them is at least equivalent to an implied license to enter, and
where the child does enter under such conditions the owner's failure
to take reasonable precautions to guard the child against injury from
unknown or unseen dangers, placed upon such premises by the
owner, is clearly a breach of duty, responsible, if the child is actually
injured, without other fault on its part than that it had entered on the
premises of a stranger without his express invitation or permission. To
hold otherwise would be expose all the children in the community to
unknown perils and unnecessary danger at the whim of the owners or
occupants of land upon which they might naturally and reasonably
be expected to enter.
This conclusion is founded on reason, justice, and necessity, and
neither is contention that a man has a right to do what will with his
own property or that children should be kept under the care of their
parents or guardians, so as to prevent their entering on the premises of
others is of sufficient weight to put in doubt. In this jurisdiction as well as
in the United States all private property is acquired and held under the
tacit condition that it shall not be so used as to injure the equal rights
and interests of the community (see U. S. vs. Toribio,1 No. 5060,
decided January 26, 1910), and except as to infants of very tender
years it would be absurd and unreasonable in a community organized
as is that in which we lived to hold that parents or guardian are guilty
of negligence or imprudence in every case wherein they permit
growing boys and girls to leave the parental roof unattended, even if
in the event of accident to the child the negligence of the parent
could in any event be imputed to the child so as to deprive it a right
to recover in such cases — a point which we neither discuss nor
decide.
But while we hold that the entry of the plaintiff upon defendant's
property without defendant's express invitation or permission would
not have relieved defendant from responsibility for injuries incurred
there by plaintiff, without other fault on his part, if such injury were
attributable to the negligence of the defendant, we are of opinion
that under all the circumstances of this case the negligence of the
defendant in leaving the caps exposed on its premises was not the
proximate cause of the injury received by the plaintiff, which therefore
was not, properly speaking, "attributable to the negligence of the
defendant," and, on the other hand, we are satisfied that plaintiffs
action in cutting open the detonating cap and putting match to its
contents was the proximate cause of the explosion and of the
resultant injuries inflicted upon the plaintiff, and that the defendant,
therefore is not civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo
cases, that because of plaintiff's youth the intervention of his action
between the negligent act of the defendant in leaving the caps
exposed on its premises and the explosion which resulted in his injury
should not be held to have contributed in any wise to the accident;
and it is because we can not agree with this proposition, although we
accept the doctrine of the Turntable and Torpedo cases, that we
have thought proper to discuss and to consider that doctrine at
length in this decision. As was said in case of Railroad Co. vs.
Stout (supra), "While it is the general rule in regard to an adult that to
entitle him to recover damages for an injury resulting from the fault or
negligence of another he must himself have been free from fault, such
is not the rule in regard to an infant of tender years. The care and
caution required of a child is according to his maturity and capacity
only, and this is to be determined in each case by the circumstances
of the case." As we think we have shown, under the reasoning on
which rests the doctrine of the Turntable and Torpedo cases, no fault
which would relieve defendant of responsibility for injuries resulting
from its negligence can be attributed to the plaintiff, a well-grown boy
of 15 years of age, because of his entry upon defendant's uninclosed
premises without express permission or invitation' but it is wholly
different question whether such youth can be said to have been free
from fault when he willfully and deliberately cut open the detonating
cap, and placed a match to the contents, knowing, as he
undoubtedly did, that his action would result in an explosion. On this
point, which must be determined by "the particular circumstances of
this case," the doctrine laid down in the Turntable and Torpedo cases
lends us no direct aid, although it is worthy of observation that in all of
the "Torpedo" and analogous cases which our attention has been
directed, the record discloses that the plaintiffs, in whose favor
judgments have been affirmed, were of such tender years that they
were held not to have the capacity to understand the nature or
character of the explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-
grown youth of 15, more mature both mentally and physically than
the average boy of his age; he had been to sea as a cabin boy; was
able to earn P2.50 a day as a mechanical draftsman thirty days after
the injury was incurred; and the record discloses throughout that he
was exceptionally well qualified to take care of himself. The evidence
of record leaves no room for doubt that, despite his denials on the
witness stand, he well knew the explosive character of the cap with
which he was amusing himself. The series of experiments made by him
in his attempt to produce an explosion, as described by the little girl
who was present, admit of no other explanation. His attempt to
discharge the cap by the use of electricity, followed by his efforts to
explode it with a stone or a hammer, and the final success of his
endeavors brought about by the application of a match to the
contents of the caps, show clearly that he knew what he was about.
Nor can there be any reasonable doubt that he had reason to
anticipate that the explosion might be dangerous, in view of the fact
that the little girl, 9 years of age, who was within him at the time when
he put the match to the contents of the cap, became frightened and
ran away.
True, he may not have known and probably did not know the precise
nature of the explosion which might be expected from the ignition of
the contents of the cap, and of course he did not anticipate the
resultant injuries which he incurred; but he well knew that a more or
less dangerous explosion might be expected from his act, and yet he
willfully, recklessly, and knowingly produced the explosion. It would be
going far to say that "according to his maturity and capacity" he
exercised such and "care and caution" as might reasonably be
required of him, or that defendant or anyone else should be held
civilly responsible for injuries incurred by him under such
circumstances.
The law fixes no arbitrary age at which a minor can be said to have
the necessary capacity to understand and appreciate the nature and
consequences of his own acts, so as to make it negligence on his part
to fail to exercise due care and precaution in the commission of such
acts; and indeed it would be impracticable and perhaps impossible
so to do, for in the very nature of things the question of negligence
necessarily depends on the ability of the minor to understand the
character of his own acts and their consequences; and the age at
which a minor can be said to have such ability will necessarily
depends of his own acts and their consequences; and at the age at
which a minor can be said to have such ability will necessarily vary in
accordance with the varying nature of the infinite variety of acts
which may be done by him. But some idea of the presumed capacity
of infants under the laws in force in these Islands may be gathered
from an examination of the varying ages fixed by our laws at which
minors are conclusively presumed to be capable of exercising certain
rights and incurring certain responsibilities, though it can not be said
that these provisions of law are of much practical assistance in cases
such as that at bar, except so far as they illustrate the rule that the
capacity of a minor to become responsible for his own acts varies with
the varying circumstances of each case. Under the provisions of the
Penal Code a minor over fifteen years of age is presumed to be
capable of committing a crime and is to held criminally responsible
therefore, although the fact that he is less than eighteen years of age
will be taken into consideration as an extenuating circumstance
(Penal Code, arts. 8 and 9). At 10 years of age a child may, under
certain circumstances, choose which parent it prefers to live with
(Code of Civil Procedure, sec. 771). At 14 may petition for the
appointment of a guardian (Id., sec. 551), and may consent or refuse
to be adopted (Id., sec. 765). And males of 14 and females of 12 are
capable of contracting a legal marriage (Civil Code, art. 83; G. O.,
No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity
and understanding to be sensible of the danger to which he exposed
himself when he put the match to the contents of the cap; that he
was sui juris in the sense that his age and his experience qualified him
to understand and appreciate the necessity for the exercise of that
degree of caution which would have avoided the injury which
resulted from his own deliberate act; and that the injury incurred by
him must be held to have been the direct and immediate result of his
own willful and reckless act, so that while it may be true that these
injuries would not have been incurred but for the negligence act of
the defendant in leaving the caps exposed on its premises,
nevertheless plaintiff's own act was the proximate and principal cause
of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum
sentit, non intelligitur sentire. (Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which
comes to him through his own fault, and that he can not
demand reparation therefor from another. (Law 25, tit.
5, Partida 3.)
And they even said that when a man received an injury
through his own acts the grievance should be against himself
and not against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury
through his own acts the grievance should be against himself
and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code
which expressly lays down the law touching contributory negligence in
this jurisdiction, nevertheless, the interpretation placed upon its
provisions by the supreme court of Spain, and by this court in the case
of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly
deny to the plaintiff in the case at bar the right to recover damages
from the defendant, in whole or in part, for the injuries sustained by
him.
The judgment of the supreme court of Spain of the 7th of March, 1902
(93 Jurisprudencia Civil, 391), is directly in point. In that case the court
said:
According to the doctrine expressed in article 1902 of the Civil
Code, fault or negligence is a source of obligation when
between such negligence and the injury there exists the
relation of cause and effect; but if the injury produced should
not be the result of acts or omissions of a third party, the latter
has no obligation to repair the same, although such acts or
omission were imprudent or unlawful, and much less when it is
shown that the immediate cause of the injury was the
negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence
of the alleged fault or negligence is not sufficient without proof that it,
and no other cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing
under that title in his Jurisprudencia del Codigo Civil (1902
Anuario, p. 455), commenting on the decision of March 7, 1902
of the Civil Code, fault or negligence gives rise to an obligation
when between it and the damage there exists the relation of
cause and effect; but if the damage caused does not arise
from the acts or omissions of a third person, there is no
obligation to make good upon the latter, even though such
acts or omissions be imprudent or illegal, and much less so
when it is shown that the immediate cause of the damage has
been the recklessness of the injured party himself.
And again —
In accordance with the fundamental principle of proof, that
the burden thereof is upon the plaintiff, it is apparent that it is
duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July,
and September 27, 1898, have especially supported the
principle, the first setting forth in detail the necessary points of
the proof, which are two: An act or omission on the part of the
person who is to be charged with the liability, and the
production of the damage by said act or omission.
This includes, by inference, the establishment of a relation of
cause or effect between the act or omission and the damage;
the latter must be the direct result of one of the first two. As the
decision of March 22, 1881, said, it is necessary that the
damages result immediately and directly from an act
performed culpably and wrongfully; "necessarily presupposing
a legal ground for imputability." (Decision of October 29, 1887.)
 Negligence is not presumed, but must be proven by him who
alleges it. (Scavoela, Jurisprudencia del Codigo Civil, vol. 6,
pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23,
1900.)
Finally we think the doctrine in this jurisdiction applicable to the case
at bar was definitely settled in this court in the maturely considered
case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein we
held that while "There are many cases (personal injury cases) was
exonerated," on the ground that "the negligence of the plaintiff was
the immediate cause of the casualty" (decisions of the 15th of
January, the 19th of February, and the 7th of March, 1902, stated in
Alcubilla's Index of that year); none of the cases decided by the
supreme court of Spain "define the effect to be given the negligence
of its causes, though not the principal one, and we are left to seek the
theory of the civil law in the practice of other countries;" and in such
cases we declared that law in this jurisdiction to require the
application of "the principle of proportional damages," but expressly
and definitely denied the right of recovery when the acts of the
injured party were the immediate causes of the accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of
the injured party shall be considered immediate causes of the
accident. The test is simple. Distinction must be made between
the accident and the injury, between the event itself, without
which there could have been no accident, and those acts of
the victim not entering into it, independent of it, but
contributing to his own proper hurt. For instance, the cause of
the accident under review was the displacement of the
crosspiece or the failure to replace it. This produces the event
giving occasion for damages—that is, the sinking of the track
and the sliding of the iron rails. To this event, the act of the
plaintiff in walking by the side of the car did not contribute,
although it was an element of the damage which came to
himself. Had the crosspiece been out of place wholly or partly
through his act or omission of duty, that would have been one
of the determining causes of the event or accident, for which
he would have been responsible. Where he contributes to the
principal occurrence, as one of its determining factors, he can
not recover. Where, in conjunction with the occurrence, he
contributes only to his own injury, he may recover the amount
that the defendant responsible for the event should pay for
such injury, less a sum deemed a suitable equivalent for his
own imprudence.
We think it is quite clear that under the doctrine thus stated, the
immediate cause of the explosion, the accident which resulted in
plaintiff's injury, was in his own act in putting a match to the contents
of the cap, and that having "contributed to the principal occurrence,
as one of its determining factors, he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's
action in picking up upon defendant's premises the detonating caps,
the property of defendant, and carrying the relation of cause and
effect between the negligent act or omission of the defendant in
leaving the caps exposed on its premises and the injuries inflicted
upon the plaintiff by the explosion of one of these caps. Under the
doctrine of the Torpedo cases, such action on the part of an infant of
very tender years would have no effect in relieving defendant of
responsibility, but whether in view of the well-known fact admitted in
defendant's brief that "boys are snappers-up of unconsidered trifles," a
youth of the age and maturity of plaintiff should be deemed without
fault in picking up the caps in question under all the circumstances of
this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered
reversing the judgment of the court below, without costs to either
party in this instance, and ten days thereafter let the record be
returned to the court wherein it originated, where the judgment will be
entered in favor of the defendant for the costs in first instance and the
complaint dismissed without day. So ordered.
G.R. No. L-33722 July 29, 1988
FEDERICO YLARDE and ADELAIDA DORONIO petitioners,
vs.
EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS,
respondents.
Buenaventura C. Evangelista for petitioners.
Modesto V. Cabanela for respondent Edgardo Aquino.
Manuel P. Pastor for respondent Mauro Soriano.
GANCAYCO, J.:
In this petition for review on certiorari seeking the reversal of the
decision of the Court of Appeals in CA-G.R. No. 36390-R entitled
"Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which
originated from the Court of First Instance of Pangasinan, We are
again caned upon determine the responsibility of the principals and
teachers towards their students or pupils.
In 1963, private respondent Mariano Soriano was the principal of the
Gabaldon Primary School, a public educational institution located in
Tayug, Pangasinan-Private respondent Edgardo Aquino was a
teacher therein. At that time, the school was fittered with several
concrete blocks which were remnants of the old school shop that was
destroyed in World War II. Realizing that the huge stones were serious
hazards to the schoolchildren, another teacher by the name of Sergio
Banez started burying them one by one as early as 1962. In fact, he
was able to bury ten of these blocks all by himself.
Deciding to help his colleague, private respondent Edgardo Aquino
gathered eighteen of his male pupils, aged ten to eleven, after class
dismissal on October 7, 1963. Being their teacher-in-charge, he
ordered them to dig beside a one-ton concrete block in order to
make a hole wherein the stone can be buried. The work was left
unfinished. The following day, also after classes, private respondent
Aquino called four of the original eighteen pupils to continue the
digging. These four pupils — Reynaldo Alonso, Francisco Alcantara,
Ismael Abaga and Novelito Ylarde, dug until the excavation was one
meter and forty centimeters deep. At this point, private respondent
Aquino alone continued digging while the pupils remained inside the
pit throwing out the loose soil that was brought about by the digging.
When the depth was right enough to accommodate the concrete
block, private respondent Aquino and his four pupils got out of the
hole. Then, said private respondent left the children to level the loose
soil around the open hole while he went to see Banez who was about
thirty meters away. Private respondent wanted to borrow from Banez
the key to the school workroom where he could get some rope.
Before leaving. , private respondent Aquino allegedly told the children
"not to touch the stone."
A few minutes after private respondent Aquino left, three of the four
kids, Alonso, Alcantara and Ylarde, playfully jumped into the pit. Then,
without any warning at all, the remaining Abaga jumped on top of
the concrete block causing it to slide down towards the opening.
Alonso and Alcantara were able to scramble out of the excavation
on time but unfortunately fo Ylarde, the concrete block caught him
before he could get out, pinning him to the wall in a standing position.
As a result thereof, Ylarde sustained the following injuries:
1. Contusion with hematoma, left inguinal region and suprapubic
region.
2. Contusion with ecchymosis entire scrotal region.
3. Lacerated wound, left lateral aspect of penile skin with phimosis
4. Abrasion, gluteal region, bilateral.
5. Intraperitoneal and extrapertitoneal extravasation of blood and
urine about 2 liters.
6. Fracture, simple, symphesis pubis
7. Ruptured (macerated) urinary bladder with body of bladder almost
entirely separated from its neck.
REMARKS:
1. Above were incurred by crushing injury.
2. Prognosis very poor.
(Sgd.) MELQUIADES A. BRAVO
Physician on Duty. 1
Three days later, Novelito Ylarde died.
Ylarde's parents, petitioners in this case, filed a suit for damages
against both private respondents Aquino and Soriano. The lower court
dismissed the complaint on the following grounds: (1) that the digging
done by the pupils is in line with their course called Work Education; (2)
that Aquino exercised the utmost diligence of a very cautious person;
and (3) that the demise of Ylarde was due to his own reckless
imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower
court.
Petitioners base their action against private respondent Aquino on
Article 2176 of the Civil Code for his alleged negligence that caused
their son's death while the complaint against respondent Soriano as
the head of school is founded on Article 2180 of the same Code.
Article 2176 of the 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- existing contractual
relation between the parties, is called a quasi-delict and is governed
by the provisions of this Chapter.
On the other hand, the applicable provision of Article 2180 states:
Art. 2180. x x x
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades shall be
liable for damages caused by their pupils and students or apprentices,
so long as they remain in their custody. 3
The issue to be resolved is whether or not under the cited provisions,
both private respondents can be held liable for damages.
As regards the principal, We hold that he cannot be made responsible
for the death of the child Ylarde, he being the head of an academic
school and not a school of arts and trades. This is in line with Our ruling
in Amadora vs. Court of Appeals, 4 wherein this Court thoroughly
discussed the doctrine that under Article 2180 of the Civil Code, it is
only the teacher and not the head of an academic school who
should be answerable for torts committed by their students. This Court
went on to say that in a school of arts and trades, it is only the head of
the school who can be held liable. In the same case, We explained:
After an exhaustive examination of the problem, the Court has come
to the conclusion that the provision in question should apply to all
schools, academic as well as non-academic. Where the school is
academic rather than technical or vocational in nature, responsibility
for the tort committed by the student will attach to the teacher in
charge of such student, following the first part of the provision. This is
the general rule. In the case of establishments of arts and trades, it is
the head thereof, and only he, who shall be held liable as an
exception to the general rule. In other words, teachers in general shall
be liable for the acts of their students except where the school is
technical in nature, in which case it is the head thereof who shall be
answerable. Following the canon of reddendo singula sinquilis
'teachers' should apply to the words "pupils and students' and 'heads
of establishments of arts and trades to the word "apprentices."
Hence, applying the said doctrine to this case, We rule that private
respondent Soriano, as principal, cannot be held liable for the reason
that the school he heads is an academic school and not a school of
arts and trades. Besides, as clearly admitted by private respondent
Aquino, private respondent Soriano did not give any instruction
regarding the digging.
From the foregoing, it can be easily seen that private respondent
Aquino can be held liable under Article 2180 of the Civil Code as the
teacher-in-charge of the children for being negligent in his supervision
over them and his failure to take the necessary precautions to prevent
any injury on their persons. However, as earlier pointed out, petitioners
base the alleged liability of private respondent Aquino on Article 2176
which is separate and distinct from that provided for in Article 2180.
With this in mind, the question We need to answer is this: Were there
acts and omissions on the part of private respondent Aquino
amounting to fault or negligence which have direct causal relation to
the death of his pupil Ylarde? Our answer is in the affirmative. He is
liable for damages.
From a review of the record of this case, it is very clear that private
respondent Aquino acted with fault and gross negligence when he:
(1) failed to avail himself of services of adult manual laborers and
instead utilized his pupils aged ten to eleven to make an excavation
near the one-ton concrete stone which he knew to be a very
hazardous task; (2) required the children to remain inside the pit even
after they had finished digging, knowing that the huge block was lying
nearby and could be easily pushed or kicked aside by any pupil who
by chance may go to the perilous area; (3) ordered them to level the
soil around the excavation when it was so apparent that the huge
stone was at the brink of falling; (4) went to a place where he would
not be able to check on the children's safety; and (5) left the children
close to the excavation, an obviously attractive nuisance.
The negligent act of private respondent Aquino in leaving his pupils in
such a dangerous site has a direct causal connection to the death of
the child Ylarde. Left by themselves, it was but natural for the children
to play around. Tired from the strenuous digging, they just had to
amuse themselves with whatever they found. Driven by their playful
and adventurous instincts and not knowing the risk they were facing
three of them jumped into the hole while the other one jumped on the
stone. Since the stone was so heavy and the soil was loose from the
digging, it was also a natural consequence that the stone would fall
into the hole beside it, causing injury on the unfortunate child caught
by its heavy weight. Everything that occurred was the natural and
probable effect of the negligent acts of private respondent Aquino.
Needless to say, the child Ylarde would not have died were it not for
the unsafe situation created by private respondent Aquino which
exposed the lives of all the pupils concerned to real danger.
We cannot agree with the finding of the lower court that the injuries
which resulted in the death of the child Ylarde were caused by his
own reckless imprudence, It should be remembered that he was only
ten years old at the time of the incident, As such, he is expected to be
playful and daring. His actuations were natural to a boy his age.
Going back to the facts, it was not only him but the three of them who
jumped into the hole while the remaining boy jumped on the block.
From this, it is clear that he only did what any other ten-year old child
would do in the same situation.
In ruling that the child Ylarde was imprudent, it is evident that the
lower court did not consider his age and maturity. This should not be
the case. The degree of care required to be exercised must vary with
the capacity of the person endangered to care for himself. A minor
should not be held to the same degree of care as an adult, but his
conduct should be judged according to the average conduct of
persons of his age and experience. 5 The standard of conduct to
which a child must conform for his own protection is that degree of
care ordinarily exercised by children of the same age, capacity,
discretion, knowledge and experience under the same or similar
circumstances. 6 Bearing this in mind, We cannot charge the child
Ylarde with reckless imprudence.
The court is not persuaded that the digging done by the pupils can
pass as part of their Work Education. A single glance at the picture
showing the excavation and the huge concrete block 7 would reveal
a dangerous site requiring the attendance of strong, mature laborers
and not ten-year old grade-four pupils. We cannot comprehend why
the lower court saw it otherwise when private respondent Aquino
himself admitted that there were no instructions from the principal
requiring what the pupils were told to do. Nor was there any showing
that it was included in the lesson plan for their Work Education. Even
the Court of Appeals made mention of the fact that respondent
Aquino decided all by himself to help his co-teacher Banez bury the
concrete remnants of the old school shop. 8 Furthermore, the
excavation should not be placed in the category of school
gardening, planting trees, and the like as these undertakings do not
expose the children to any risk that could result in death or physical
injuries.
The contention that private respondent Aquino exercised the utmost
diligence of a very cautious person is certainly without cogent basis. A
reasonably prudent person would have foreseen that bringing
children to an excavation site, and more so, leaving them there all by
themselves, may result in an accident. An ordinarily careful human
being would not assume that a simple warning "not to touch the
stone" is sufficient to cast away all the serious danger that a huge
concrete block adjacent to an excavation would present to the
children. Moreover, a teacher who stands in loco parentis to his pupils
would have made sure that the children are protected from all harm
in his company.
We close by categorically stating that a truly careful and cautious
person would have acted in all contrast to the way private
respondent Aquino did. Were it not for his gross negligence, the
unfortunate incident would not have occurred and the child Ylarde
would probably be alive today, a grown- man of thirty-five. Due to his
failure to take the necessary precautions to avoid the hazard, Ylarde's
parents suffered great anguish all these years.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED
and the questioned judgment of the respondent court is REVERSED
and SET ASIDE and another judgment is hereby rendered ordering
private respondent Edagardo Aquino to pay petitioners the following:
(1) Indemnity for the death of Child Ylarde P30,000.00
(2) Exemplary damages 10,000.00
(3) Moral damages 20,000.00
SO ORDERED.
[G.R. No. 129792. December 21, 1999]
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and
ELISA PANELO, petitioners, vs. HONORABLE COURT OF APPEALS,
CONRADO C. AGUILAR and CRISELDA R. AGUILAR, respondents.
DECISION
DAVIDE, JR., C.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 attorneys fees
to private respondents Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvels
Department Store, Makati City. Petitioners Leonardo Kong, Jose
Tiope and Elisa Panelo are the stores 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 Syvels 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
stores 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
ZHIENETHs 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 attorneys fees and an unspecified
amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any
liability for the injuries and consequent death of ZHIENETH. They
claimed that CRISELDA was negligent in exercising care and
diligence over her daughter by allowing her to freely roam
around in a store filled with glassware and appliances. ZHIENETH
too, was guilty of contributory negligence since she climbed the
counter, triggering its eventual collapse on her. Petitioners also
emphasized that the counter was made of sturdy wood with a
strong support; it never fell nor collapsed for the past fifteen years
since its construction.
Additionally, petitioner Jarco Marketing Corporation
maintained that it observed the diligence of a good father of a
family in the selection, supervision and control of its
employees. The other petitioners likewise raised due care and
diligence in the performance of their duties and countered that
the complaint was malicious for which they suffered besmirched
reputation and mental anguish.They sought the dismissal of the
complaint and an award of moral and exemplary damages and
attorneys 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 CRISELDAs negligence
contributed to ZHIENETHs 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 ZHIENETHs 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 stores
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 ZHIENETHs 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 ZHIENETHs 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 ZHIENETHs 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 courts rejection of Gonzales
testimony as unworthy of credence.
 As to private respondents claim that the counter should have
been nailed to the ground, petitioners justified that it was not
necessary. The counter had been in existence for several years
without any prior accident and was deliberately placed at a
corner to avoid such accidents. Truth to tell, they acted without
fault or negligence for they had exercised due diligence on the
matter. In fact, the criminal case[10] for homicide through simple
negligence filed by private respondents against the individual
petitioners was dismissed; a verdict of acquittal was rendered in
their favor.
The Court of Appeals, however, decided in favor of private
respondents and reversed the appealed judgment. It found that
petitioners were negligent in maintaining a structurally dangerous
counter.The counter was shaped like an inverted L[11] with a top
wider than the base. It was top heavy and the weight of the
upper portion was neither evenly distributed nor supported by its
narrow base. Thus, the counter was defective, unstable and
dangerous; a downward pressure on the overhanging portion or a
push from the front could cause the counter to fall. Two former
employees of petitioners had already previously brought to the
attention of the management the danger the counter could
cause. But the latter ignored their concern. The Court of Appeals
faulted the petitioners for this omission, and concluded that the
incident that befell ZHIENETH could have been avoided had
petitioners repaired the defective counter. It was inconsequential
that the counter had been in use for some time without a prior
incident.
The Court of Appeals declared that ZHIENETH, who was below
seven (7) years old at the time of the incident, was absolutely
incapable of negligence or other tort. It reasoned that since a
child under nine (9) years could not be held liable even for an
intentional wrong, then the six-year old ZHIENETH could not be
made to account for a mere mischief or reckless act. It also
absolved CRISELDA of any negligence, finding nothing wrong or
out of the ordinary in momentarily allowing ZHIENETH to walk while
she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the
witnesses of petitioners. It found them biased and prejudiced. It
instead gave credit to the testimony of disinterested witness
Gonzales. The Court of Appeals then awarded P99,420.86 as
actual damages, the amount representing the hospitalization
expenses incurred by private respondents as evidenced by the
hospital's statement of account.[12]It denied an award for funeral
expenses for lack of proof to substantiate the same. Instead, a
compensatory damage of P50,000 was awarded for the death of
ZHIENETH.
We quote the dispositive portion of the assailed
decision,[13] thus:
WHEREFORE, premises considered, the judgment of the lower
court is SET ASIDE and another one is entered against [petitioners],
ordering them to pay jointly and severally unto [private
respondents] the following:
1. P50,000.00 by way of compensatory damages for the
death of Zhieneth Aguilar, with legal interest (6% p.a.) from
27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses
incurred; with legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorneys 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 ZHIENETHs act of clinging to the counter. This act in turn
caused the counter to fall on her. This and CRISELDAs 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 Syvels 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 hospitals emergency room should
receive credence; and finally, ZHIENETHs 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 Picart 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 ZHIENETHs 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 ZHIENETHs statement
formed (and should be admitted as) part of the res gestae under
Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given
in evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving
it a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or
suffering and statements made to a physician are generally
considered declarations and admissions.[23] All that is required for
their admissibility as part of the res gestae is that they be made or
uttered under the influence of a startling event before the
declarant had the time to think and concoct a falsehood as
witnessed by the person who testified in court. Under the
the testimony of Gonzales, thus:
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 counters 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 it is not nailed and it was only standing on
the floor, it was shaky.
xxx
Q Will you please describe the counter at 5:00 oclock [sic] in
the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing
beside the verification counter. And since the top of it was
heavy and considering that it was not nailed, it can
collapse at anytime, since the top is heavy.
xxx
Q And what did you do?
AI 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
Q Will you please described [sic] to the honorable Court the
counter where you were assigned in January 1983?
xxx
A That counter assigned to me was when my supervisor
ordered me to carry that counter to another place. I told
him that the counter needs nailing and it has to be nailed
because it might cause injury or accident to another since
it was shaky.
Q When that gift wrapping counter was transferred at the
second floor on February 12, 1983, will you please describe
that to the honorable Court?
AI 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.
xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did
Ms. Panelo or any employee of the management do to
that (sic)
xxx
 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 stores 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 formers testimonies were
biased and tainted with partiality. Therefore, the allegation that
Gonzales and Guevarras testimonies were blemished by ill feelings
against petitioners since they (Gonzales and Guevarra) were
already separated from the company at the time their testimonies
were offered in court was but mere speculation and deserved
scant consideration.
It is settled that when the issue concerns the credibility of
witnesses, the appellate courts will not as a general rule disturb
the findings of the trial court, which is in a better position to
determine the same. The trial court has the distinct advantage of
actually hearing the testimony of and observing the deportment
of the witnesses.[26] However, the rule admits of exceptions such as
when its evaluation was reached arbitrarily or it overlooked or
failed to appreciate some facts or circumstances of weight and
substance which could affect the result of the case.[27] In the
instant case, petitioners failed to bring their claim within the
exception.
Anent the negligence imputed to ZHIENETH, we apply the
conclusive presumption that favors children below nine (9) years
old in that they are incapable of contributory negligence. In his
book,[28]former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively
presumed to have acted without discernment, and is, on that
account, exempt from criminal liability. The same presumption
and a like exemption from criminal liability obtains in a case of a
person over nine and under fifteen years of age, unless it is shown
that he has acted with discernment. Since negligence may be a
felony and a quasi-delict and required discernment as a
condition of liability, either criminal or civil, a child under nine
years of age is, by analogy, conclusively presumed to be
incapable of negligence; and that the presumption of lack of
discernment or incapacity for negligence in the case of a child
over nine but under fifteen years of age is a rebuttable one, under
our law. The rule, therefore, is that a child under nine years of age
must be conclusively presumed incapable of contributory
negligence as a matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and
assume that she climbed over the counter, no injury should have
occurred if we accept petitioners theory that the counter was
stable and sturdy. For if that was the truth, a frail six-year old could
not have caused the counter to collapse. The physical analysis of
the counter by both the trial court and Court of Appeals and a
scrutiny of the evidence[29]on record reveal otherwise, i.e., it was
not durable after all. Shaped like an inverted L, the counter was
heavy, huge, and its top laden with formica. It protruded towards
the customer waiting area and its base was not secured.[30]
CRISELDA too, should be absolved from any contributory
negligence. Initially, ZHIENETH held on to CRISELDAs waist, later to
the latters hand.[31] CRISELDA momentarily released the childs
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.