Cases in Torts and Damages

SECOND DIVISIONPOLO S. PANTALEON, G.R. No. 174269 Petitioner, Present: CARPIO MORALES, J.,* Acting Chairperson, - versus - TINGA, VELASCO, LEONARDO-DE CASTRO,** and BRION, JJ. AMERICAN EXPRESS INTERNATIONAL, INC., Promulgated: Respondent. May 8, 2009 x---------------------------------------------------------------------------x DECISION TINGA, J.: The petitioner, lawyer Polo Pantaleon, his wife Julialinda, daughter Anna Regina and son Adrian Roberto, joined an escorted tour of Western Europe organized by Trafalgar Tours of Europe, Ltd., in October of 1991. The tour group arrived in Amsterdam in the afternoon of 25 October 1991, the second to the last day of the tour. As the group had arrived late in the city, they failed to engage in any sight-seeing. Instead, it was agreed upon that they would start early the next day to see the entire city before ending the tour. The following day, the last day of the tour, the group arrived at the Coster Diamond House in Amsterdam around 10 minutes before 9:00 a.m. The group had agreed that the visit to Coster should end by 9:30 a.m. to allow enough time to take in a guided city tour of Amsterdam. The group was ushered into Coster shortly before 9:00 a.m., and listened to a lecture on the art of diamond polishing that lasted for around ten minutes.[1] Afterwards, the group was led to the stores showroom to allow them to select items for purchase. Mrs. Pantaleon had already planned to purchase even before the tour began a 2.5 karat diamond brilliant cut, and she found a diamond close enough in approximation that she decided to buy.[2] Mrs. Pantaleon also selected for purchase a pendant and a chain, [3] all of which totaled U.S. $13,826.00. To pay for these purchases, Pantaleon presented his American Express credit card together with his passport to the Coster sales clerk. This occurred at around 9:15 a.m., or 15 minutes before the tour group was slated to depart from the store. The sales clerk took the cards imprint, and asked Pantaleon to sign the charge slip. The charge purchase was then referred electronically to respondents Amsterdam office at 9:20 a.m. Ten minutes later, the store clerk informed Pantaleon that his AmexCard had not yet been approved. His son, who had already boarded the tour bus, soon returned to Coster and informed the other members of the Pantaleon family that the entire tour group was waiting for them. As it was already 9:40 a.m., and he was already worried about further inconveniencing the tour group, Pantaleon asked the store clerk to cancel the sale. The store manager though asked plaintiff to wait a few more minutes. After 15 minutes, the store manager informed Pantaleon that respondent had demanded bank references. Pantaleon supplied the names of his depositary banks, then instructed his daughter to return to the bus and apologize to the tour group for the delay. At around 10:00 a.m, or around 45 minutes after Pantaleon had presented his AmexCard, and 30 minutes after the tour group was supposed to have left the store, Coster decided to release the items even without respondents approval of the purchase. The spouses Pantaleon returned to the bus. It is alleged that their offers of apology were met by their tourmates with stony silence.[4] The tour groups visible irritation was aggravated when the tour guide announced that the city tour of Amsterdam was to be canceled due to lack of remaining time, as they had to catch a 3:00 p.m. ferry at Calais, Belgium to London.[5] Mrs. Pantaleon ended up weeping, while her husband had to take a tranquilizer to calm his nerves. It later emerged that Pantaleons purchase was first transmitted for approval to respondents Amsterdam office at 9:20 a.m., Amsterdam time, then referred to respondents Manila office at 9:33 a.m, then finally approved at 10:19 a.m., Amsterdam time.[6] The Approval Code was transmitted to respondents Amsterdam office at 10:38 a.m., several minutes after petitioner had already left Coster, and 78 minutes from the time the purchases were electronically transmitted by the jewelry store to respondents Amsterdam office. After the star-crossed tour had ended, the Pantaleon family proceeded to the United States before returning to Manila on 12 November 1992. While in the United States, Pantaleon continued to use his AmEx card, several times without hassle or delay, but with two other incidents similar to the Amsterdam brouhaha. On 30 October 1991, Pantaleon purchased golf equipment amounting to US $1,475.00 using his AmEx card, but he cancelled his credit card purchase and borrowed money instead from a friend, after more than 30 minutes had transpired without the purchase having been approved. On 3 November 1991, Pantaleon used the card to purchase childrens shoes worth $87.00 at a store in Boston, and it took 20 minutes before this transaction was approved by respondent. On 4 March 1992, after coming back to Manila, Pantaleon sent a letter[7] through counsel to the respondent, demanding an apology for the inconvenience, humiliation and embarrassment he and his family thereby suffered for respondents refusal to provide credit authorization for the aforementioned purchases.[8] In response, respondent sent a letter dated 24 March 1992,[9] stating among others that the delay in authorizing the purchase from Coster was attributable to the circumstance that the charged purchase of US $13,826.00 was out of the usual charge purchase pattern established.[10] Since respondent refused to accede to Pantaleons demand for an apology, the aggrieved cardholder instituted an action for damages with the Regional Trial Court (RTC) of Makati City, Branch In addition. it made two critical conclusions in favor of respondent.000.00.00 as moral damages. Edgardo Jaurigue.[15] On 18 August 2006.00 as exemplary damages.000. which were not in accordance with the charge pattern petitioner had established for himself. as moral damages. it ruled that respondent had exercised diligent efforts to effect the approval of the purchases. and the .000. P100. while Pantaleon moved for partial reconsideration. holding that respondent had not breached its obligations to petitioner. as attorneys fees. malice. it still remained liable for damages under Article 21 of the Civil Code.00 as litigation expenses.01 as expenses of litigation. and thereafter gave due course to respondents Notice of Appeal. Pantaleon submits that even assuming that respondent had not been in breach of its obligations. However. respondent had been in clear delay with respect to the three subject transactions. Respondent filed a Notice of Appeal.233. the Makati City RTC rendered a decision[13] in favor of Pantaleon.000.[14] The RTC denied Pantaleons motion for partial reconsideration. this petition. Hence. based on the testimonial representations of Pantaleon and respondents credit authorizer.826. had committed a breach of its obligations to Pantaleon.000. Based on that standard.00 as attorneys fees.00. First.P100. The RTC had concluded. that the normal approval time for purchases was a matter of seconds.P500. the Court of Appeals conceded that there had been delay on the part of respondent in approving the purchases. Second.000. as exemplified by the fact that at Coster. in connection with the aforementioned transactions. as exemplary damages. P300. and P50.[12] On 5 August 1996. he was making his very first single charge purchase of US$13.000. and P85.145. the Court of Appeals rendered a decision[16] reversing the award of damages in favor of Pantaleon. awarding him P500. the appellate court ruled that the delay was not attended by bad faith. praying that the trial court award the increased amount of moral and exemplary damages he had prayed for. The key question is whether respondent.000.[11] Pantaleon prayed that he be awarded P2. As it appears.00. or gross negligence. the three requisites for a finding of default are that the obligation is demandable and liquidated.[19] The error of the appellate court. and the creditor judicially or extrajudicially requires the debtors performance. The requisites of mora accipiendi are: an offer of performance by the debtor who has the required capacity. Generally. We can see the possible source of confusion as to which type of mora to appreciate. argues petitioner. which relates to delay on the part of the obligee in accepting the performance of the obligation by the obligor. insofar as it has the obligation to the customer as creditor/obligee to act promptly on its purchases on credit. the offer must be to comply with the prestation as it should be performed. . it is not so with the case of mora solvendi. who as debtor is obliged to repay the creditor. since while just cause is determinative of mora accipiendi.[20] with the card company as the creditor extending loans and credit to the card holder. petitioner argues that the failure to timely approve or disapprove the purchase constituted mora solvendi on the part of respondent in the performance of its obligation.[17] On the premise that there was an obligation on the part of respondent to approve or disapprove with dispatch the charge purchase. not baselessly.record of [petitioner]s past spending with [respondent] at the time does not favorably support his ability to pay for such purchase. respondent characterizes the depiction by petitioner of its obligation to him as to approve purchases instantaneously or in a matter of seconds. the relationship between a credit card provider and its card holders is that of creditor-debtor. Petitioner correctly cites that under mora solvendi.[18] Petitioner asserts that the Court of Appeals had wrongly applied the principle ofmora accipiendi. to again shift perspectives and again see the credit card company as the debtor/obligor.[21] Petitioner is asking us. the debtor delays performance. and the creditor refuses the performance without just cause. This relationship already takes exception to the general rule that as between a bank and its depositors. is in relying on the invocation by respondent of just cause for the delay. For its part. the bank is deemed as the debtor while the depositor is considered as the creditor. or for the purposes of this case. thus: As to the first issue. within a period significantly less than the one hour it apparently took before the purchase at Coster was finally approved. If there was delay on the part of respondent in its normal role as creditor to the cardholder. in order for us to appreciate that respondent was in mora solvendi. Herein. amply established that the tardiness on the part of respondent in acting on petitioners purchase at Coster did constitute culpable delay on its part in complying with its obligation to act promptly on its customers purchase request. petitioners perspective appears more sensible than if we were to still regard respondent as the creditor in the context of this cause of action. we will have to first recognize that there was indeed an obligation on the part of respondent to act on petitioners purchases with timely dispatch. the normal approval time for charges would be 3 to 4 seconds? .e. Such delay would not fall under mora accipiendi. but it would be delay in the extension of the credit in the first place. Still.. both parties have testified that normal approval time for purchases was a matter of seconds. whether such action be favorable or unfavorable. Plaintiff testified that his personal experience with the use of the card was that except for the three charge purchases subject of this case. such as the actual purchases on credit.Ultimately. You also testified that on normal occasions. the repayment of the debt). the establishment of the debt itself (purchases on credit of the jewelry) had not yet been perfected. We quote the trial court. which contemplates that the obligation of the debtor. approvals of his charge purchases were always obtained in a matter of seconds. has already been constituted. Defendants credit authorizer Edgardo Jaurique likewise testified: Q. such delay would not have been in the acceptance of the performance of the debtors obligation (i. The findings of the trial court. to our mind. as it remained pending the approval or consent of the respondent credit card company. the approval was conditional as it directed in computerese [sic] Positive Identification of Card holder necessary further charges require bank information due to high exposure. By Jack Manila. Plaintiff testified that he presented his AmexCard to the sales clerk at Coster. all times Phoenix.m.. Manila Amexco could be unaware of the need for speed in resolving the charge purchase referred to it. And even then. ID seen. or a total time lapse of one hour and [18] minutes. at 9:15 a. Amsterdam time or 01:20. and by the time he had to leave the store at 10:05 a. unconcerned. Phoenix time. Yes.A. the Credit Authorization System (CAS) record on the Amsterdam transaction shows how Amexco Netherlands viewed the delay as unusually frustrating.m. yet it sat on its hand.m. defendants own record shows: 01:22 the authorization is referred to Manila Amexco . Cardmember buying jewels. and that the defendant relayed its approval to Coster at 10:38 a. the Credit Authorization System (CAS) record of defendant at Phoenix Amex shows that defendants Amsterdam office received the request to approve plaintiffs charge purchase at 9:20 a. In sequence expressed in Phoenix time from 01:20 when the charge purchased was referred for authorization.m. Advise how long will this take? They were sent at 01:33. Maam. Amsterdam time.. 01:40. no approval had yet been received. The delay in the processing is apparent to be undue as shown from the frantic successive queries of Amexco Amsterdam which reads: US$13.. Both parties likewise presented evidence that the processing and approval of plaintiffs charge purchase at the Coster Diamond House was way beyond the normal approval time of a matter of seconds. Phoenix time. 01:52 and 02:08. In fact. xxx To repeat. or 2:38. 01:45. 01:37.826. Yet this is one of those instances when youd know it when youd see it. there really is no strict. Notably. this particular action would have never seen the light of day.01:32 Netherlands gives information that the identification of the cardmember has been presented and he is buying jewelries worth US $13. Certainly. to verify whether the credit it is extending upon on a particular . and return to the store. withdraw money over the counter. 01:33 Netherlands asks How long will this take? 02:08 Netherlands is still asking How long will this take? The Court is convinced that defendants delay constitute[s] breach of its contractual obligation to act on his use of the card abroad with special handling. We do not wish do dispute that respondent has the right. It is long enough time for the customer to walk to a bank a kilometer away. if not the obligation. legally determinative point of demarcation on how long must it take for a credit card company to approve or disapprove a customers purchase. patently unreasonable length of time to approve or disapprove a credit card purchase. and one hour appears to be an awfully long. had respondent disapproved petitioners purchase within seconds or within a timely manner. petitioner frames the obligation of respondent as to approve or disapprove the purchase in timely dispatch. and not to approve the purchase instantaneously or within seconds. [22] (Citations omitted) xxx Notwithstanding the popular notion that credit card purchases are approved within seconds.826. Petitioner and his family would have returned to the bus without delay internally humiliated perhaps over the rejection of his card yet spared the shame of being held accountable by newly-made friends for making them miss the chance to tour the city of Amsterdam. much less one specifically contracted upon by the parties. attributable in particular to the dilly-dallying of respondents Manila credit authorizer. petitioner was left uncomfortably dangling in the chilly autumn winds in a foreign land and soon forced to confront the wrath of foreign folk. petitioner would have had informed basis on whether or not to pursue the transaction at Coster. the object of credit or charge cards would be lost. Moral damages avail in cases of breach of contract where the defendant acted fraudulently or in bad faith. is silent as to the amount of time it should take defendant to grant authorization for a charge purchase. or at least abuse of its rights. The findings of the trial court are ample in establishing the bad faith and unjustified neglect of respondent. under the contract. to the Courts mind. Such right was not accorded to plaintiff in the instances complained off for reasons known only to defendant at that time. such damages are due. whether favorably or unfavorably. Edgardo Jaurique.[23] Wrote the trial court: While it is true that the Cardmembership Agreement. defendant acknowledged that the normal time for approval should only be three to four seconds. meaning with priority.purchase was indeed contracted by the cardholder. since it alleges to have . This. which defendant prepared. and that the cardholder is within his means to make such transaction. but the more elemental failure to timely act on the same. which can be delivered and accepted quickly. Specially so with cards used abroad which requires special handling. we see no reason why respondent could not have promptly informed petitioner the reason for the delay. and duly advised him that resolving the same could take some time. amounts to a wanton and deliberate refusal to comply with its contractual obligations. and the court should find that under the circumstances. [24] xxx The delay committed by defendant was clearly attended by unjustified neglect and bad faith. Instead. Even assuming that respondents credit authorizers did not have sufficient basis on hand to make a judgment. In that way. Otherwise. The culpable failure of respondent herein is not the failure to timely approve petitioners purchase. it would be so inconvenient to use that buyers and consumers would be better off carrying bundles of currency or travellers checks. given the attending circumstances. consumed more than one hour to simply go over plaintiffs past credit history with defendant. serious anxiety. wounded feelings and social humiliation sustained by the petitioner.[27] Those circumstances are fairly unusual. Nothing in arrears at that time. so this decision should not be cause for relief for those who time the length of their credit card transactions with a stopwatch. and should not give rise to a general entitlement for damages under a more mundane set of facts. sir. Jaurique further testified that there were no delinquencies in plaintiffs account. The somewhat unusual attending circumstances to the purchase at Coster that there was a deadline for the completion of that purchase by petitioner before any delay would redound to the injury of his several traveling companions gave rise to the moral shock. . Q. but because the delay. Defendants witness Jaurique admits: Q. as concluded by the RTC. for which culpability lies under Article 1170. This Court also takes note of the fact that there is nothing in plaintiffs billing history that would warrant the imprudent suspension of action by defendant in processing the purchase. when all such data are already stored and readily available from its computer. Mr. led to the particular injuries under Article 2217 of the Civil Code for which moral damages are remunerative. Yes. his payment record and his credit and bank references.[25] It should be emphasized that the reason why petitioner is entitled to damages is not simply because respondent incurred delay. mental anguish.[26] Moral damages do not avail to soothe the plaints of the simply impatient. But did you discover that he did not have any outstanding account? A. You were well aware of this fact on this very date? A. 00 in moral damages more seemly.00 appropriate. The assailed Decision of the Court of Appeals is REVERSED and SET ASIDE. Likewise. Costs against respondent. .000. and the amount of P300. and P85.00 as attorneys fees. the petition is GRANTED. SO ORDERED. Branch 145 in Civil Case No. There is no hard-and-fast rule in determining what would be a fair and reasonable amount of moral damages. it must be commensurate to the loss or injury suffered.[28] Petitioners original prayer forP5.00 for moral damages is excessive under the circumstances. WHEREFORE.000. The Decision of the Regional Trial Court of Makati. since each case must be governed by its own peculiar facts.000.233. 921665 is hereby REINSTATED. and the amount awarded by the trial court of P500.000. we deem exemplary damages available under the circumstances.We sustain the amount of moral damages awarded to petitioner by the RTC. however. There is similarly no cause though to disturb the determined award of P100.01 as expenses of litigation.000. his surviving spouse [and children]. 47466 for the grant of an easement of right of way was filed by Pacifico Mabasa against Cristino Custodio. Metro Manila. this Court finds that the original plaintiff Pacifico Mabasa died during the pendency of this case and was substituted by Ofelia Mabasa.: This petition for review on certiorari assails the decision of respondent Court of Appeals in CA-G. Civil Case No. then that of Lito and Maria Cristina Santos and then that of Ofelia Mabasa. has to be traversed. On the right side (is) that of defendant Rosalina Morato and then a Septic Tank (Exhibit "D"). are as follows: Perusing the record. The plaintiff owns a parcel of land with a two-door apartment erected thereon situated at Interior P.R. 1996 SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and MARIA CRISTINA SANTOS. Custodio. The second passageway is about 3 meters in width and length from plaintiff Mabasa's residence to P. 1994 denying petitioner's motion for reconsideration. on the left side.R. Taking P. Rosalina R. Tagig. In passing thru said passageway. 1982. 29115. a less than a meter wide path through the septic tank and with 5-6 meters in length. Burgos Street. which affirmed with modification the decision of the trial court. Lito Santos and Maria Cristina C.petitioners. Burgos Street as the point of reference. DECISION REGALADO. it is about 26 meters. vs. CV No. the row of houses will be as follows: That of defendants Cristino and Brigido Custodio. Santos before the Regional Trial Court of Pasig and assigned to Branch 22 thereof.. No. HEIRS OF PACIFICO C. respondents. Brigida R. there are two possible passageways. 1 On August 26. BRANCH 181. The plaintiff was able to acquire said property through a contract of sale with spouses Mamerto Rayos and Teodora Quintero as vendors last September 1981. 116100 February 9. The first passageway is approximately one meter wide and is about 20 meters distan(t) from Mabasa's residence to P. Burgos Street from plaintiff's property.2 The generative facts of the case. Tipas. as synthesized by the trial court and adopted by the Court of Appeals. As an access to P. COURT OF APPEALS. MABASA and REGIONAL TRIAL COURT OF PASIG. Such path is passing in between the previously mentioned row of houses. Said property may be described to be surrounded by other immovables pertaining to defendants herein. J. going to plaintiff's property. METRO MANILA. as well as its resolution dated July 8. .Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G. Morato. 1993. Burgos Street. promulgated on November 10. Palingon. Burgos St. he saw that there had been built an adobe fence in the first passageway making it narrower in width. Cristina Santos testified that she constructed said fence because there was an incident when her daughter was dragged by a bicycle pedalled by a son of one of the tenants in said apartment along the first passageway. corrections in parentheses supplied) On February 27. The rest of the appealed decision is affirmed to all respects. Defendant Ma. the decretal portion of which disposes as follows: WHEREFORE. raising two issues. "1-D" and "1-E") And it was then that the remaining tenants of said apartment vacated the area. therein plaintiff represented by his heirs. there were tenants occupying the remises and who were acknowledged by plaintiff Mabasa as tenants. and whether or not the award of damages is in order. the Court of Appeals denied petitioner's motion for reconsideration. hence they are presumed to be satisfied with the . 2) Ordering the plaintiff to pay defendants Custodios and Santoses the sum of Eight Thousand Pesos (P8. Defendant Morato constructed her adobe fence and even extended said fence in such a way that the entire passageway was enclosed. Thirty Thousand (P30. 4 Not satisfied therewith. namely. a decision was rendered by the trial court.000) Pesos as Actual Damages. She also mentioned some other inconveniences of having (at) the front of her house a pathway such as when some of the tenants were drunk and would bang their doors and windows.When said property was purchased by Mabasa. On November 10. and Ten Thousand (P10. . one of said tenants vacated the apartment and when plaintiff Mabasa went to see the premises. went to the Court of Appeals raising the sole issue of whether or not the lower court erred in not awarding damages in their favor. Petitioners did not appeal from the decision of the court a quo granting private respondents the right of way. to the public street. .000) Pesos as Moral Damages. 1982. Some of their footwear were even lost.3 (Emphasis in original text. herein petitioners are already barred from raising the same. the Court of Appeals rendered its decision affirming the judgment of the trial court with modification.6 Petitioners then took the present recourse to us. whether or not the grant of right of way to herein private respondents is proper. sometime in February. "D" for plaintiff. With respect to the first issue. "1-C". herein private respondents. However. . (Exhibit "1-Santoses and Custodios. 1993. Said adobe fence was first constructed by defendants Santoses along their property which is also along the first passageway.000) as indemnity for the permanent use of the passageway. judgment is hereby rendered as follows: 1) Ordering defendants Custodios and Santoses to give plaintiff permanent access ingress and egress. with this dispositive part: Accordingly.5 On July 8. 1990. Exh. Exhs. as earlier stated. the appealed decision of the lower court is hereby AFFIRMED WITH MODIFICATION only insofar as the herein grant of damages to plaintiffsappellants. 1994. The parties to shoulder their respective litigation expenses.000) Pesos as Exemplary Damages. The Court hereby orders defendants-appellees to pay plaintiffsappellants the sum of Sixty Five Thousand (P65. 8 There is a material distinction between damages and injury.adjudication therein.10 The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation of law. Pacifico Mabasa. much less reversed. For failure to appeal the decision of the trial court to the Court of Appeals. To warrant the recovery of damages. he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff a concurrence of injury to the plaintiff and legal responsibility by the person causing it. and damage resulting to the plaintiff therefrom. and consequently create no cause of action in his favor. The law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong. However. or damage without wrong. as may happen in many cases. The rule in this jurisdiction is that whenever an appeal is taken in a civil case. and damages are the recompense or compensation awarded for the damage suffered. may be considered by the appellate court solely to maintain the appealed decision on other grounds. or harm which results from the injury. That decision of the court below has become final as against them and can no longer be reviewed. hurt. incurred losses in the form of unrealized rentals when the tenants vacated the leased premises by reason of the closure of the passageway. that is. since damages are merely part of the remedy allowed for the injury caused by a breach or wrong. in turn. There must be damnum et injuria. in order that the law will give redress for an act causing damage. In such cases. with respect to the second issue. but not for the purpose of reversing or modifying the judgment in the appellee's favor and giving him other affirmative reliefs. an appellee who has not himself appealed may not obtain from the appellate court any affirmative relief other than what was granted in the decision of the lower court. 12 In other words. With the finality of the judgment of the trial court as to petitioners.13 If. there must first be the breach of some duty and the imposition of liability for that breach before damages may be awarded. harm or loss to his . but wrongful. a person sustains actual damage.7 However. the consequences must be borne by the injured person alone. These assigned errors. there can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. there must be both a right of action for a legal wrong inflicted by the defendant. does not constitute a cause of action. A reading of the decision of the Court of Appeals will show that the award of damages was based solely on the fact that the original plaintiff. Wrong without damage. The appellee can only advance any argument that he may deem necessary to defeat the appellant's claim or to uphold the decision that is being disputed. These situations are often called damnum absque injuria.9 In order that a plaintiff may maintain an action for the injuries of which he complains. the mere fact that the plaintiff suffered losses does not give rise to a right to recover damages. it is not sufficient to state that there should be tort liability merely because the plaintiff suffered some pain and suffering. the issue of propriety of the grant of right of way has already been laid to rest. Thus. The award of damages has no substantial legal basis. Thus. damage is the loss. and he can assign errors in his brief if such is required to strengthen the views expressed by the court a quo. we agree with petitioners that the Court of Appeals erred in awarding damages in favor of private respondents. Injury is the illegal invasion of a legal right.11 Many accidents occur and many injuries are inflicted by acts or omissions which cause damage or loss to another but which violate no legal duty to such other person. that act must be not only hurtful. petitioners cannot obtain any affirmative relief other than those granted in the decision of the trial court. by this Court. The law recognizes in the owner the right to enjoy and dispose of a thing. for no legal right has been invaded. to enclose and fence their property. The courts can give no redress for hardship to an individual resulting from action reasonably calculated to achieve a lawful means. for all the purposes to which such property is usually applied. There was no easement of way existing in favor of private respondents. under the compulsion of the foregoing premises. live or dead hedges. Contrary to the claim of private respondents. As a general rule. as such damage or loss is damnum absque injuria. an act or omission which the law does not deem an injury. petitioners could not be said to have violated the principle of abuse of right. although there was damage. petitioners had an absolute right over their property and their act of fencing and enclosing the same was an act which they may lawfully perform in the employment and exercise of said right. that is.17 A person has a right to the natural use and enjoyment of his own property. 18 When the owner of property makes use thereof in the general and ordinary manner in which the property is used. good customs or public policy. 19 The proper exercise of a lawful right cannot constitute a legal wrong for which an action will lie. although such acts incidentally cause damage or an unavoidable loss to another. good customs or public policy." At the time of the construction of the fence. whatever injury or damage may have been sustained by private respondents by reason of the rightful use of the said land by petitioners is damnum absque injuria. according to his pleasure. nobody can complain of having been injured.person or property.15 The act of petitioners in constructing a fence within their lot is a valid exercise of their right as owners. . (2) The acts should be willful. without sustaining any legal injury. because the incovenience arising from said use can be considered as a mere consequence of community life. or by any other means without detriment to servitudes constituted thereon. as owners. The fact that private respondents had no existing right over the said passageway is confirmed by the very decision of the trial court granting a compulsory right of way in their favor after payment of just compensation. An injury or damage occasioned thereby is damnum absque injuria. 20 although the act may result in damage to another. Article 430 of the Civil Code provides that "(e)very owner may enclose or fence his land or tenements by means of walls. the lot was not subject to any servitudes. therefore.16 It is within the right of petitioners. 21 One may use any lawful means to accomplish a lawful purpose and though the means adopted may cause damage to another. hence not contrary to morals. either by law or by contract. no cause of action arises in the latter's favor. and (3) There was damage or injury to the plaintiff. 22 WHEREFORE. it is essential that the following requisites concur: (1) The defendant should have acted in a manner that is contrary to morals. To repeat. such as fencing or enclosing the same as in this case. the appealed decision of respondent Court of Appeals is hereby REVERSED and SET ASIDE and the judgment of the trial court is correspondingly REINSTATED. ditches.14 In the case at bar. prior to said decision. there was no legal injury. the damage is regarded as damnum absque injuria. It was only that decision which gave private respondents the right to use the said passageway after payment of the compensation and imposed a corresponding duty on petitioners not to interfere in the exercise of said right. without other limitations than those established by law. Hence. In order that the principle of abuse of right provided in Article 21 of the Civil Code can be applied. there is no cause of action for acts done by one person upon his own property in a lawful and proper manner. J. and in coming daily by train to the company's office in the city of Manila where he worked. but one or both of his feet came in contact with a sack of watermelons with the result that his feet slipped from under him and he fell violently on the platform. 1918 JOSE CANGCO. The accident occurred between 7 and 8 o'clock on a dark night. was in the employment of Manila Railroad Company in the capacity of clerk. took his position upon the steps of the coach.: At the time of the occurrence which gave rise to this litigation the plaintiff. L-12191 October 14. alighting safely at the point where the platform begins to rise from the level of the ground. seizing the upright guardrail with his right hand for support. which is located upon the line of the defendant railroad company. JJ. his exit through the door. got off the same car. Ramon Sotelo for appellant. When the train had proceeded a little farther the plaintiff Jose Cangco stepped off also. also an employee of the railroad company. named Emilio Zuñiga. where his right arm was badly crushed and lacerated. J. took no part. vs. Kincaid & Hartigan for appellee.. January 20. objects on the platform where the accident occurred were difficult to discern especially to a person emerging from a lighted car. defendant-appellee. which entitled him to ride upon the company's trains free of charge.Romero and Puno.R. The testimony shows that this row of sacks was so placed of melons and the . No. Mendoza. He lived in the pueblo of San Mateo. Republic of the Philippines SUPREME COURT Manila EN BANC G. plaintiff-appellant. The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the fact that it was the customary season for harvesting these melons and a large lot had been brought to the station for the shipment to the market. with a monthly wage of P25. Jose Cangco. concur. he used a pass. His body at once rolled from the platform and was drawn under the moving car. the plaintiff arose from his seat in the second class-car where he was riding and. MANILA RAILROAD CO. 1915. supplied by the company. On the side of the train where passengers alight at the San Mateo station there is a cement platform which begins to rise with a moderate gradient some distance away from the company's office and extends along in front of said office for a distance sufficient to cover the length of several coaches. making. and as the railroad station was lighted dimly by a single light located some distance away. It appears that after the plaintiff alighted from the train the car moved forward possibly six meters before it came to a full stop. As the train slowed down another passenger. FISHER. Upon the occasion in question. in the province of Rizal. They were contained in numerous sacks which has been piled on the platform in a row one upon another... It is important to note that the foundation of the legal liability of the defendant is the contract of carriage. in legal viewpoint from that presumptive responsibility for the negligence of its servants. The result of this operation was unsatisfactory. Judgment was accordingly entered in favor of the defendant company. The plaintiff was drawn from under the car in an unconscious condition. nevertheless. Upon August 31. the plaintiff himself had failed to use due caution in alighting from the coach and was therefore precluded form recovering. and drew therefrom his conclusion to the effect that. which can be rebutted by proof of the exercise of due care in their selection and supervision. . In commenting upon article 1093 Manresa clearly points out the difference between "culpa. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu. He was therefore brought at once to a certain hospital in the city of Manila where an examination was made and his arm was amputated. and the plaintiff appealed. It appears in evidence that the plaintiff expended the sum of P790. At the hearing in the Court of First Instance. if at all..25 in the form of medical and surgical fees and for other expenses in connection with the process of his curation. and that they therefore constituted an effective legal cause of the injuries sustained by the plaintiff. In resolving this problem it is necessary that each of these conceptions of liability. and it is clear that the fall of the plaintiff was due to the fact that his foot alighted upon one of these melons at the moment he stepped upon the platform.edge of platform. rep. (7 Phil. 1915. p. substantive and independent. that article relates only to culpa aquiliana and not to culpa contractual. imposed by article 1903 of the Civil Code. the primary responsibility of the defendant company and the contributory negligence of the plaintiff should be separately examined. although negligence was attributable to the defendant by reason of the fact that the sacks of melons were so placed as to obstruct passengers passing to and from the cars. . his Honor. the trial judge. and that the obligation to respond for the damage which plaintiff has suffered arises. 8. Atlantic. founding his action upon the negligence of the servants and employees of the defendant in placing the sacks of melons upon the platform and leaving them so placed as to be a menace to the security of passenger alighting from the company's trains. It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks on the platform in the manner above stated. Manresa (vol. to-wit. he instituted this proceeding in the Court of First Instance of the city of Manila to recover damages of the defendant company. differing essentially. and it appeared that the injuries which he had received were very serious. that their presence caused the plaintiff to fall as he alighted from the train. . His statement that he failed to see these objects in the darkness is readily to be credited. but only to extra-contractual obligations — or to use the technical form of expression. It necessarily follows that the defendant company is liable for the damage thereby occasioned unless recovery is barred by the plaintiff's own contributory negligence." . Gulf and Pacific Co. clearly points out this distinction. 359). which was also recognized by this Court in its decision in the case of Rakes vs. its liability is direct and immediate. which of itself constitutes the source of an obligation between persons not formerly connected by any legal tie" and culpa considered as an accident in the performance of an obligation already existing . and the plaintiff was then carried to another hospital where a second operation was performed and the member was again amputated higher up near the shoulder. found the facts substantially as above stated. from the breach of that contract by reason of the failure of defendant to exercise due care in its performance. That is to say. Atlantic. Rep. under the Spanish law. One who places a powerful automobile in the hands of a servant whom he knows to be ignorant of the method of managing such a vehicle. then breaches of those duties are subject to article 1101. The supreme court of Porto Rico. but by mere negligence or inattention. thereby performs his duty to third persons to whom he is bound by no contractual ties. if the master has not been guilty of any negligence whatever in the selection and direction of the servant. said: . is not based. The liability. such third person suffer damage. but the presumption is rebuttable and yield to proof of due care and diligence in this respect. and 1104 of the same code. as found in the Porto Rico Code. Gulf and Pacific Co. which was an action brought upon the theory of the extra-contractual liability of the defendant to respond for the damage caused by the carelessness of his employee while acting within the scope of his employment. It is not accurate to say that proof of diligence and care in the selection and control of the servant relieves the master from liability for the latter's acts — on the contrary. is. has caused damage to another.) This distinction is of the utmost importance. True it is that under article 1903 of the Civil Code the law creates a presumption that he has been negligent in the selection or direction of his servant. in interpreting identical provisions. has held that these articles are applicable to cases of extracontractual culpa exclusively. the master would be liable in every case and unconditionally — but upon the principle announced in article 1902 of the Civil Code. without willful intent. 68) the liability arising from extra-contractual culpa is always based upon a voluntary act or omission which. p. and directs them with equal diligence.. even within the scope of their employment. if the damage done by the servant does not amount to a breach of the contract between the master and the person injured. Cuesta. 624). (30 Phil.. 1103. as in the English Common Law. Upon this point the Court said: The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be those not growing out of pre-existing duties of the parties to one another. after citing the last paragraph of article 1903 of the Civil Code. do injury to another. The Court. The obligation to make good the damage arises at the very instant that the unskillful servant. which imposes upon all persons who by their fault or negligence. and he incurs no liability whatever if. The liability of the master is personal and direct. upon the principle ofrespondeat superior — if it were. which. rep. the obligation of making good the damage caused. 215. that proof shows that the responsibility has never existed. while acting within the scope of his employment causes the injury. 20 Porto Rico Reports. A master who exercises all possible care in the selection of his servant. is himself guilty of an act of negligence which makes him liable for all the consequences of his imprudence. 7 Phil.) This distinction was again made patent by this Court in its decision in the case of Bahia vs. whatever done within the scope of his employment or not. (Rakes vs. in certain cases imposed upon employers with respect to damages occasioned by the negligence of their employees to persons to whom they are not bound by contract. 8. 359 at 365. But.In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article 1903 of the Civil Code is not applicable to acts of negligence which constitute the breach of a contract. by reason of the negligence of his servants. he is not liable for the acts of the latter. (Carmona vs. whether springing from contract or quasi-contract.. taking into consideration the qualifications they should possess for the discharge of the duties which it is his purpose to confide to them. As Manresa says (vol. But where relations already formed give rise to duties. Litonjua and Leynes. was the cause of it. who says (vol. generally embraced in the concept of status. or in supervision over him after the selection. the liability of masters and employers for the negligent acts or omissions of their servants or agents. of course. and consequently. It is. when such acts or omissions cause damages which amount to the breach of a contact. This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. 611) that the liability created by article 1903 is imposed by reason of the breach of the duties inherent in the special relations of authority or superiority existing between the person called upon to repair the damage and the one who. for reasons of public policy. 12. in relations with strangers. and that the last paragraph of article 1903 merely establishes a rebuttable presumption. of certain members of society to others. Every legal obligation must of necessity be extra-contractual or contractual. by his act or omission. whereas in contractual relations the vinculum exists independently of the breach of the voluntary duty assumed by the parties when entering into the contractual relation.From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in selection of the servant or employee. p. the presumption is overcome and he is relieved from liability. The fundamental distinction between obligations of this character and those which arise from contract. the negligence of the servant in conclusively the negligence of the master. Extracontractual obligation has its source in the breach or omission of those mutual duties which civilized society imposes upon it members. The opinion there expressed by this Court. The legislature which adopted our Civil Code has elected to limit extra-contractual liability — with certain well-defined exceptions — to cases in which moral culpability can be directly imputed to the persons to be charged. or both. may be rebutted. which the existence of those rights imposes upon all other members of society. mainly negative in character. On the other hand. to the effect that in case of extracontractual culpa based upon negligence. to others who are in a position to exercise an absolute or limited control over them. whether of act or omission. other than contractual. is in complete accord with the authoritative opinion of Manresa. give rise to an obligation to indemnify the injured party. This is the notable peculiarity of the Spanish law of negligence. With respect to extra-contractual obligation arising from negligence. if productive of injury. to extend that liability. rests upon the fact that in cases of non-contractual obligation it is the wrongful or negligent act or omission itself which creates the vinculum juris. without regard to the lack of moral culpability. It follows necessarily that if the employer shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a family. it is competent for the legislature to elect — and our Legislature has so elected — whom such an obligation is imposed is morally culpable. and proof of exercise of the utmost diligence and care in this regard does not relieve the master of his liability for the breach of his contract. it is necessary that there shall have been some fault attributable to the defendant personally. The legal rights of each member of society constitute the measure of the corresponding legal duties. in striking contrast to the American doctrine that. or. so as to include responsibility for the negligence of those person who acts or mission are imputable. . or which arise from these relations. and (2) that that presumption is juris tantum and not juris et de jure. The breach of these general duties whether due to willful intent or to mere inattention. by a legal fiction. on the contrary. is not based upon a mere presumption of the master's negligence in their selection or control. the anomalous result would be that person acting through the medium of agents or servants in the performance of their contracts. occupy a position of dependency with respect to the person made liable for their conduct. vol. 1896. and it would no doubt be true in most instances that reasonable care had been taken in selection and direction of such servants.This moral responsibility may consist in having failed to exercise due care in the selection and control of one's agents or servants. (Manresa. without any pre-existing obligation. Proof of the contract and of its nonperformance is sufficientprima facie to warrant a recovery. it is obvious that proof on the part of defendant that the negligence or omission of his servants or agents caused the breach of the contract would not constitute a defense to the action. (Sentencias of June 27. but of . would be in a better position than those acting in person. saying: These are not cases of injury caused. such as those to which article 1902 of the Civil Code relates. and December 13. and they are lost by reason of the negligence of some clerk employed by the bank. but that defendant sought to avail himself of the provisions of article 1902 of the Civil Code as a defense. if he shows that it was his servant whose negligence caused the injury? If such a theory could be accepted. as the source of an obligation. it is logical that in case of extra-contractual culpa. or in the control of persons who.) In the decisions of November 20. 1896. As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due to the negligent conduct of defendant or of his servants. is wholly different from that to which article 1903 relates. 1896. and culpa contractual as a mere incident to the performance of a contract has frequently been recognized by the supreme court of Spain. November 20. it is not necessary for him to prove negligence. and the bailee. a suing creditor should assume the burden of proof of its existence. If one delivers securities to a banking corporation as collateral. 76]). p. . . it appeared that plaintiff's action arose ex contractu. 71 [1907 ed. as the only fact upon which his action is based. even though such be in fact the actual cause of the breach. If one delivers a valuable watch to watchmaker who contract to repair it. would it be just and reasonable to permit the bank to relieve itself of liability for the breach of its contract to return the collateral upon the payment of the debt by proving that due care had been exercised in the selection and direction of the clerk? This distinction between culpa aquiliana.. p. juridical persons would enjoy practically complete immunity from damages arising from the breach of their contracts if caused by negligent acts as such juridical persons can of necessity only act through agents or servants. by fault or negligence. When the sources of the obligation upon which plaintiff's cause of action depends is a negligent act or omission. 8. the burden of proof rests upon plaintiff to prove the negligence — if he does not his action fails. If the negligence of servants or agents could be invoked as a means of discharging the liability arising from contract. it is not necessary for plaintiff to specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on the part of the defendant. As a general rule . 1894. Would it be logical to free him from his liability for the breach of his contract. or of his servants or agents. The Spanish Supreme Court rejected defendant's contention. he is unquestionably liable. The position of a natural or juridical person who has undertaken by contract to render service to another. in a case of negligence which presupposes the existence of a contractual obligation. and it is alleged that plaintiff has failed or refused to perform the contract. which involves the duty to exercise due care in the preservation of the watch. if the creditor shows that it exists and that it has been broken. by reason of their status. while on the contrary. by a personal negligent act causes its destruction. But when the facts averred show a contractual undertaking by defendant for the benefit of plaintiff. liable for the injury suffered by plaintiff. pp. 8. and that in the particular case the presumption of negligence had not been overcome. 8). Rep. The court found that the damages were caused by the negligence of the driver of the automobile. Rep. plaintiff sued the defendant to recover damages for the personal injuries caused by the negligence of defendant's chauffeur while driving defendant's automobile in which defendant was riding at the time. Viewed from the standpoint of the defendant the practical result must have been the same in any event.. The court held. the plaintiff sued the defendant for damages caused by the loss of a barge belonging to plaintiff which was allowed to get adrift by the negligence of defendant's servants in the course of the performance of a contract of towage. but held that the master was not liable. As Manresa points out (vol. whether the breach of the duty were to be regarded as constituting culpa aquiliana or culpa contractual. . pp. In the case of Yamada vs. saying: . although the facts disclosed that the injury complaint of by plaintiff constituted a breach of the duty to him arising out of the contract of transportation. 8. 663). It also affirmatively appeared that defendant had been guilty of negligence in its failure to exercise proper discretion in the direction of the servant. . Manila Railroad Co. therefore that in its decision Yamada case. Rep. makes the driver's acts his own. it is true that the court rested its conclusion as to the liability of the defendant upon article 1903." that as to the latter the law creates a rebuttable presumption of negligence in the selection or direction of servants. or that he had any knowledge of his lack of skill or carefulness. In that case the court commented on the fact that no evidence had been adduced in the trial court that the defendant had been negligent in the employment of the driver. . 29. . It is evident. Defendant was. The express ground of the decision in this case was that article 1903. . 29 and 69) whether . A brief review of the earlier decision of this court involving the liability of employers for damage done by the negligent acts of their servants will show that in no case has the court ever decided that the negligence of the defendant's servants has been held to constitute a defense to an action for damages for breach of contract. The act complained of must be continued in the presence of the owner for such length of time that the owner by his acquiescence. .damages caused by the defendant's failure to carry out the undertakings imposed by the contracts . In the case of Baer Senior & Co's Successors vs. the court treated plaintiff's action as though founded in tort rather than as based upon the breach of the contract of carriage. 215). and Bachrach Garage & Taxicab Co. although he was present at the time. therefore. and an examination of the pleadings and of the briefs shows that the questions of law were in fact discussed upon this theory.. Compania Maritima (6 Phil. (33 Phil. . In the case of Johnson vs." In the case of Chapman vs. 69) that if the "obligation of the defendant grew out of a contract made between it and the plaintiff . citing Manresa (vol. unless the negligent acts of the driver are continued for a length of time as to give the owner a reasonable opportunity to observe them and to direct the driver to desist therefrom. . The proof disclosed beyond doubt that the defendant's servant was grossly negligent and that his negligence was the proximate cause of plaintiff's injury. . David (5 Phil. .. Underwood (27 Phil. 374). in dealing with the liability of a master for the negligent acts of his servants "makes the distinction between private individuals and public enterprise. Rep. the court held that the owner of a carriage was not liable for the damages caused by the negligence of his driver.. we do not think that the provisions of articles 1902 and 1903 are applicable to the case. the direct and proximate cause of the injury suffered by plaintiff was his own contributory negligence in failing to wait until the train had come to a complete stop before alighting. the mere fact that a person is bound to another by contract does not relieve him from extra-contractual liability to such person. We are not disposed to subscribe to this doctrine in its absolute form. its essential characteristics are identical. or in failing to exercise proper care in the selection and direction of his servants. article 1258). the duty to carry him in safety and to provide safe means of entering and leaving its trains (civil code. The true explanation of such cases is to be found by directing the attention to the relative spheres of contractual and extra-contractual obligations. when the court holds that a defendant is liable in damages for having failed to exercise due care. There is no reason to believe that plaintiff would have suffered any injury whatever in alighting as he did had it not been for defendant's negligent failure to perform its duty to provide a safe alighting place. by implication. that the train was barely moving when plaintiff alighted is shown conclusively by the fact that it came to stop within six meters from the place where he stepped from it. There is always an act or omission productive of damage due to carelessness or inattention on the part of the defendant. important to ascertain if defendant was in fact guilty of negligence. the practical result is identical in either case. Therefore. because the court held in the Yamada case that defendant was liable for the damages negligently caused by its servants to a person to whom it was bound by contract. that is to say. These two fields. In this particular instance. being contractual. comprising. It is. it follows that it is not to be inferred. concentric. The railroad company's defense involves the assumption that even granting that the negligent conduct of its servants in placing an obstruction upon the platform was a breach of its contractual obligation to maintain safe means of approaching and leaving its trains. for defendant to have proved that it did in fact exercise care in the selection and control of the servant.negligence occurs an incident in the course of the performance of a contractual undertaking or its itself the source of an extra-contractual undertaking obligation. Defendant contends. We are of the opinion that this proposition is too badly stated and is at variance with the experience of every-day life. that in such a case the court would have held that it would have been a good defense to the action. Consequently. that it is negligence per se for a passenger to alight from a moving train. either directly. The contract of defendant to transport plaintiff carried with it. no liability is imposed upon defendant's negligence and plaintiff's negligence merely contributed to his injury. if the accident was caused by plaintiff's own negligence. figuratively speaking. It may be admitted that had plaintiff waited until the train had come to a full stop before alighting. That duty. if presented squarely upon the theory of the breach of the contract. therefore. and cites many authorities in support of the contention. and made reference to the fact that the defendant was negligent in the selection and control of its servants. the damages should be apportioned. was direct and immediate. When such a contractual relation exists the obligor may break the contract under such conditions that the same act which constitutes the source of an extra-contractual obligation had no contract existed between the parties. the particular injury suffered by him could not have occurred. The field of non. the whole extent of juridical human relations. and sustain no injury where the company has kept its platform free from dangerous obstructions. .contractual obligation is much more broader than that of contractual obligations. Under the doctrine of comparative negligence announced in the Rakes case (supra). Thousands of person alight from trains under these conditions every day of the year. as it does. and its nonperformance could not be excused by proof that the fault was morally imputable to defendant's servants. or dimly lighted. vol. to avoid injury. 3. Women. it may be noted that the place was perfectly familiar to the plaintiff as it was his daily custom to get on and of the train at this station. that the platform was clear. ignorant of the fact that the obstruction which was caused by the sacks of melons piled on the platform existed. the plaintiff should have desisted from alighting. Again. sex. . Furthermore. and physical condition of the passenger are circumstances necessarily affecting the safety of the passenger. thereby decreasing the risk incident to stepping off. whether the passenger acted prudently or recklessly — the age. and should be considered. we may say that the test is this. the only fact from which a conclusion can be drawn to the effect that plaintiff was guilty of contributory negligence is that he stepped off the car without being able to discern clearly the condition of the platform and while the train was yet slowly moving.. as we find. In determining the question of contributory negligence in performing such act — that is to say. was dark. There could. as a general rule are less capable than men of alighting with safety under such conditions. the placing of them adequately so that their presence would be revealed. 3010) as follows: The test by which to determine whether the passenger has been guilty of negligence in attempting to alight from a moving railway train. it has been observed. and as the defendant was bound by reason of its duty as a public carrier to afford to its passengers facilities for safe egress from its trains. Was there anything in the circumstances surrounding the plaintiff at the time he alighted from the train which would have admonished a person of average prudence that to get off the train under the conditions then existing was dangerous? If so. the plaintiff was possessed of the vigor and agility of young manhood. and this also is proof of a failure upon the part of the defendant in the performance of a duty owing by it to the plaintiff.net As the case now before us presents itself. of the age. 3010. would have acted as the passenger acted under the circumstances disclosed by the evidence. sec.We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work on Negligence (vol. as we have already stated. As pertinent to the question of contributory negligence on the part of the plaintiff in this case the following circumstances are to be noted: The company's platform was constructed upon a level higher than that of the roadbed and the surrounding ground. The nature of the platform. therefore. Commentaries on Negligence. as the nature of their wearing apparel obstructs the free movement of the limbs. The distance from the steps of the car to the spot where the alighting passenger would place his feet on the platform was thus reduced. it we prefer to adopt the mode of exposition used by this court in Picart vs. rep. 3. This care has been defined to be. but the care which a man of ordinary prudence would use under similar circumstances. sex and condition of the passenger. The place. be no uncertainty in his mind with regard either to the length of the step which he was required to take or the character of the platform where he was alighting. 809). not the care which may or should be used by the prudent man generally. In considering the situation thus presented. in the absence of some circumstance to warn him to the contrary. 1awph!l. for if it were by any possibility concede that it had right to pile these sacks in the path of alighting passengers. sec. also assured to the passenger a stable and even surface on which to alight. Smith (37 Phil. is that of ordinary or reasonable care. It is to be considered whether an ordinarily prudent person." (Thompson. constructed as it was of cement material. it should not be overlooked that the plaintiff was.) Or. the plaintiff had a right to assume. and his failure so to desist was contributory negligence. and it was by no means so risky for him to get off while the train was yet moving as the same act would have been in an aged or feeble person. Our conclusion is that the conduct of the plaintiff in undertaking to alight while the train was yet slightly under way was not characterized by imprudence and that therefore he was not guilty of contributory negligence. " With the general rule relative to a passenger's contributory negligence. JJ.. at the time of the accident. Defendant has not shown that any other gainful occupation is open to plaintiff. and for the costs of both instances. C. J. namely.290. So ordered. "It may be admitted that had plaintiff waited until the train had come to a full stop before alighting.. We are of the opinion that a fair compensation for the damage suffered by him for his permanent disability is the sum of P2. The decision of lower court is reversed. we are likewise in full accord. Arellano. Street and Avanceña. concur. .. namely. was earning P25 a month as a copyist clerk. is approximately thirty-three years. should be absolved from the complaint.500. hospital services. Torres. and that the injuries he has suffered have permanently disabled him from continuing that employment.The evidence shows that the plaintiff. and that he is also entitled to recover of defendant the additional sum of P790.J.25 for medical attention. according to the standard mortality tables. and judgment affirmed." Adding these two points together. Johnson. dissenting: With one sentence in the majority decision. and other incidental expenditures connected with the treatment of his injuries. "An attempt to alight from a moving train is negligence per se. Separate Opinions MALCOLM. concur.. His expectancy of life.25. the particular injury suffered by him could not have occurred. J. and judgment is hereby rendered plaintiff for the sum of P3. we are of full accord. HON. Magtalas (Treasurer/Cashier). vs. M. PADILLA. SEGUNDA R. Specifically. LIM. COL. PAULINO. during and after the attack on the victim.R. SORIANO. Soriano (Assistant Chief of Security). Defendants a quo (now petitioners) sought to have the suit dismissed. such as the PSBA. BAUTISTA and ARSENIA D. 84698 February 4. Regional Trial Court. It was established that his assailants were not members of the school's academic community but were elements from outside the school. At the time of his death. means and methods before. BAUTISTA. 1992 PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION. the plaintiffs (now private respondents) sought to adjudge them liable for the victim's untimely demise due to their alleged negligence. Balgos and Perez for petitioners. JUAN D. Lt. No. Benjamin P. are beyond the ambit of the rule in the afore-stated article. Carlitos was enrolled in the third year commerce course at the PSBA. . the complaint states no cause of action against them. as jurisprudence on the subject is to the effect that academic institutions. REGINA ORDOÑEZ-BENITEZ. Col. Paulino (Vice-President). Substantially. Antonio M. in her capacity as Presiding Judge of Branch 47. MAGTALAS. the suit impleaded the PSBA and the following school authorities: Juan D. PEDRO SACRO and LT. recklessness and lack of security precautions. Lim (President).: A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the second-floor premises of the Philippine School of Business Administration (PSBA) prompted the parents of the deceased to file suit in the Regional Trial Court of Manila (Branch 47) presided over by Judge (now Court of Appeals justice) Regina OrdoñezBenitez. Manila. COURT OF APPEALS. alleging that since they are presumably sued under Article 2180 of the Civil Code. ANTONIO M. Collantes. respondents. Ramirez & Associates for private respondents. During the proceedings a quo. M.Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G. J. Pedro Sacro (Chief of Security) and a Lt. M. BENJAMIN P. for damages against the said PSBA and its corporate officers. petitioners. Soriano terminated his relationship with the other petitioners by resigning from his position in the school. it must be dynamic. This Court discussed this doctrine in the afore-cited cases of Exconde. more recently. On 22 August 1988. However. the assailants of Carlitos were not students of the PSBA. establishes the rule of in loco parentis. there is established a contract between them. does the appellate court's failure to consider such material facts mean the exculpation of the petitioners from liability? It does not necessarily follow. resulting in bilateral obligations which both parties are bound to comply with. Hence. the student covenants to abide by the school's academic requirements and observe its rules and regulations. in Amadora vs. The comments of Manresa and learned authorities on its meaning should give way to present day changes. Construed in the light of modern day educational system. the school undertakes to provide the student with an education that would presumably suffice to equip him with the necessary tools and skills to pursue higher education or a profession.Court of Appeals. Court of Appeals. 1 Pertinent portions of the appellate court's now assailed ruling state: Article 2180 (formerly Article 1903) of the Civil Code is an adoption from the old Spanish Civil Code. overruled petitioners' contention and thru an order dated 8 December 1987. At the outset. we do not however agree with the premises of the appellate court's ruling. it is to be observed that the respondent appellate court primarily anchored its decision on the law ofquasi-delicts. for whose acts the school could be made liable. On the other hand. However. Mendoza. 7 For its part. as enunciated in Articles 2176 and 2180 of the Civil Code. academic or vocational." This can only be done at a trial on the merits of the case. this petition. affirmed the trial court's orders. this material situation does not exist in the present case for. in conjunction with Article 2176 of the Civil Code.The respondent trial court. The law is not fixed and flexible (sic). Capuno 2 and Mercado vs. 3hence. Article 2180. . In fact. it had been stressed that the law (Article 2180) plainly provides that the damage should have been caused or inflicted by pupils or students of he educational institution sought to be held liable for the acts of its pupils or students while in its custody. 5 While we agree with the respondent appellate court that the motion to dismiss the complaint was correctly denied and the complaint should be tried on the merits. A subsequent motion for reconsideration was similarly dealt with by an order dated 25 January 1988. Petitioners then assailed the trial court's disposition before the respondent appellate court which. Article 2180 cannot be construed in its narrow concept as held in the old case of Exconde vs. At any rate. the respondent appellate court resolved to deny the petitioners' motion for reconsideration. however. Palisoc and. 6 In all such cases. in a decision * promulgated on 10 June 1988. the greatest value and significance of law as a rule of conduct in (sic) its flexibility to adopt to changing social conditions and its capacity to meet the new challenges of progress. the law holds the teachers and heads of the school staff liable unless they relieve themselves of such liability pursuant to the last paragraph of Article 2180 by "proving that they observed all the diligence to prevent damage. When an academic institution accepts students for enrollment. as earlier indicated. denied their motion to dismiss. the ruling in the Palisoc 4 case that it should apply to all kinds of educational institutions. In effect. the school must ensure that adequate steps are taken to maintain peace and order within the campus premises and to prevent the breakdown thereof. to award damages to the latter. unless the negligence occurs under the circumstances set out in Article 21 of the Civil Code. In other words. Air France penalized the racist policy of the airline which emboldened the petitioner's employee to forcibly oust the private respondent to cater to the comfort of a white man who allegedly "had a better right to the seat. From the foregoing. concentric. as it does. This view was not all that revolutionary. 780). the public embarrassment caused to the passenger was the justification for the Circuit Court of Appeals. Certainly. the same could give rise generally to a breach of contractual obligation only. the whole extent of juridical human relations. the mere fact that a person is bound to another by contract does not relieve him from extra-contractual liability to such person. . the negligence of the school would not be relevant absent a contract. it can be concluded that should the act which breaches a contract be done in bad faith and be violative of Article 21. that the Court referred to the petitioner-airline's liability as one arising from tort. (Austro-America S. which provides: Any person who wilfully causes loss or injury to another in a manner that is contrary to morals.S. InCangco vs. Justice Fisher elucidated thus: The field of non-contractual obligation is much broader than that of contractual obligation. (emphasis supplied). Co. Because the circumstances of the present case evince a contractual relation between the PSBA and Carlitos Bautista. In Air France vs. then there is a cause to view the act as constituting a quasi-delict. Necessarily. the rules on quasi-delict do not really govern. However. for even as early as 1918. no finding that the contract between the school and Bautista had been breached thru the former's negligence in providing proper security measures. good custom or public policy shall compensate the latter for the damage. that is to say. Using the test of Cangco. a contractual relation is a condition sine qua nonto the school's liability. however. particularly Article 21. Air France is authority for the view that liability from tort may exist even if there is a contract. not one arising from a contract of carriage. supra. even if there be a finding of negligence. Thomas. Carrascoso (124 Phil. (Second Circuit). vs. no student can absorb the intricacies of physics or higher mathematics or explore the realm of the arts and other sciences when bullets are flying or grenades exploding in the air or where there looms around the school premises a constant threat to life and limb. whether express or implied. 248 Fed. And. the private respondent was awarded damages for his unwarranted expulsion from a first-class seat aboard the petitioner airline. comprising. 231). that negligence becomes material only because of the contractual relation between PSBA and Bautista. figuratively speaking.Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an atmosphere that promotes or assists in attaining its primary undertaking of imparting knowledge. for the act that breaks the contract may be also a tort. In the circumstances obtaining in the case at bar. supra. Immediately what comes to mind is the chapter of the Civil Code on Human Relations. this impression has not prevented this Court from determining the existence of a tort even when there obtains a contract. this Court was already of a similar mind. there is. When such a contractual relation exists the obligor may break the contract under such conditions that the same act which constitutes a breach of the contract would have constituted the source of an extra-contractual obligation had no contract existed between the parties. 8 A perusal of Article 2176 shows that obligations arising from quasi-delicts or tort. In fact. Manila Railroad (38 Phil. This would be for the trial court to determine. also known as extra-contractual obligations. as yet. It is noted. The negligence of the school cannot exist independently of the contract. These two fields. Mr. however. 722). arise only between parties not otherwise bound by contract." InAustro-American. the same may still fail against an individual or group determined to carry out a nefarious deed inside school premises and environs. at this stage. only the trial court can make such a determination from the evidence still to unfold. 9 As the proceedings a quo have yet to commence on the substance of the private respondents' complaint. above-mentioned. . This is specially true in the populous student communities of the so-called "university belt" in Manila where there have been reported several incidents ranging from gang wars to other forms of hooliganism. like a common carrier. SO ORDERED. the record is bereft of all the material facts. Obviously. the petition is DENIED. Should this be the case. Paras. The court of origin (RTC. cannot be an insurer of its students against all risks. JJ. Melencio-Herrera. the foregoing premises considered. time and place.This Court is not unmindful of the attendant difficulties posed by the obligation of schools. Manila. Br. for conceptually a school. for notwithstanding the security measures installed. It would not be equitable to expect of schools to anticipate all types of violent trespass upon their premises. Costs against the petitioners. Regalado and Nocon. WHEREFORE. here statutorily defined to be the omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of persons. 47) is hereby ordered to continue proceedings consistent with this ruling of the Court. concur.. the school may still avoid liability by proving that the breach of its contractual obligation to the students was not due to its negligence. 00 each.00 for the account of RBPG. Roque were deposited by the Roques with the Philippine Banking Corporation. Felipe C. 1982. 1993 denying petitioner's motion for reconsideration of the aforesaid decision. Novaliches Branch in Quezon City. vs. the checks were returned by MBTC with the annotations "DAIF — TNC" (Drawn .000. COURT OF APPEALS. 1992 in CA — GR CV No.000. representing loans granted by the Central Bank to RBPG. Roque and Mrs.000. The case emanated from a dispute between the Rural Bank of Padre Garcia. and the Resolution dated November 11. No. 1982 that its demand deposit account was credited with P304. Torres & Ibarra for petitioner. two (2) of which (Metrobank Check Nos. The records show that Isabel Katigbak is the president and director of RBPG. 1994 (CA-GR CV No. Eliza Roque for P25. and Mrs.00.R.000. THE HON. ROMERO. Said checks issued to Dr. 26571) METROPOLITAN BANK AND TRUST COMPANY. 1982 for payment (six (6) days from receipt of the Credit Memo). Inc. MBTC received from the Central Bank a credit memo dated April 5. petitioner. where Katigbak maintains current accounts with MBTC's main office in Makati as well as its Lipa City branch. Barot. On April 6. 112576 October 26.00 in favor of RBPG. Isabel Katigbak issued several checks against its account with MBTC in the total amount of P300.respondents. KATIGBAK. and ISABEL R.: This petition for certiorari seeks to annul the decision of respondent Court of Appeals dated October 29. On the basis of said credit memo. INC. owning 65% of the shares thereof. J. Metropolitan Bank and Trust Company (MBTC) is the rural bank's depository bank. When these checks were forwarded to MBTC on April 12. Batangas — Branch XIII for damages. Makalintal. RURAL BANK OF PADRE GARCIA. 1982 from the Central Bank in the amount of P304. 26571 affirming the decision of the Regional Trial Court of Lipa. 0069 and 0070) were payable to Dr. Fornier. Lava & Fornier for private respondents. (RBPG) and Metropolitan Bank and Trust Company (MBTC) relative to a credit memorandum dated April 5.Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G. On April 13. the Katigbaks had to cut short their Hongkong stay with their respective families and flew back to Manila.00. Katigbak called up MBTC. Mrs. an officer of RBPG. 1982. Rizal Dungo. Tense and angered. These were however again dishonored and returned unpaid for the following reason: "DAIF — TNC — NO ADVICE FROM CB. 1982. Mr. through a Mr. Maris Katigbak-San Juan at her residence in San Lorenzo Village. Dungo. Immediately upon arrival. Batangas — Branch XIII against the Metropolitan Bank and Trust Company for damages on April 26. Dungo that Mrs. Assistant Cashier of MBTC insisted on talking to her (Mrs. The ultimate facts as alleged by the defendant MBTC in its answer are as follows: that on April 6. when MBTC received from the clearing department the checks in question. its messenger. chiding him for the bouncing checks. catching the first available flight on April 15. San Juan was constrained to place another long distance call to Mrs. Cochico. Mrs.000. Katigbak testified that she informed Mrs. which included that of plaintiff RBPG in the amount of P304.000. informing Isabel Katigbak that a certain Mr.00 in favor of RBPG as she was certain that the checks were sufficiently covered by the CB credit memo as early as April 6. wala naman kayong pondo?" These remarks allegedly so shocked Mrs. received overseas phone calls from Mrs. 1982." even if it was explained to Mr.") 1 When Mrs. Dungo ("Bakit kayo nag-issue ng tseke na wala namang pondo.00. Mrs. 1983. In order to appease the doctor. RBPG and Isabel Katigbak filed Civil Case No. saying "Nag-issue kayo ng tseke.Against Insufficient Funds — Try Next Clearing) so they were redeposited on April 14. allegedly went to the Office of Antonio Katigbak. Isabel Katigbak who was in Hongkong on a business-vacation trip together with her sons Alfredo and Antonio.498. received from the Central Bank several credit advices on rural bank accounts. San Juan to request defendant MBTC to check and verify the records regarding the aforementioned Central Bank credit memo for P304. 1994. a member of the Board of Directors of Philippine Banking Corporation.58 which excluded the unprocessed credit advice of P304. allegedly arrogantly said: "Bakit kayo magagalit. the stated balance in RBPG's account was only P5. Three Hundred Thousand na. Roque P50. the latter was issued four (4) debit memos representing service and penalty charges for the returned checks. wala namang pondo. Elizer Gonzales." After the second dishonor of the two (2) checks. to whom Cochico handed over the phone. RBPG paid Dr. San Juan explained to him the need to verify the records regarding the Central Bank memo. Katigbak in Hongkong that evening. San Juan received another insulting call from Mr. San Juan).00 resulting in the dishonor of the . telling her sarcastically that he was very sure that no such credit memo existed. Dr.000. Metrobank not only dishonored the checks issued by RBPG. Makati. both of whom were also officers of RBPG. Mrs. berating her about the checks which bounced. Katigbak that her blood pressure rose to a dangerous level and she had to undergo medical treatment at the Makati Medical Center for two (2) days. the credit advice issued in favor of plaintiff RBPG was not delivered to the department in charge of processing the same. Felipe Roque. he merely brushed it aside.000. that due to the inadvertence of said messenger. 1982 for P304. San Juan was not in any way connected with RBPG. but the following day. consequently. V-329 in the RTC of Lipa. 1982. for a re-examination of the records of MBTC regarding the Central Bank credit memo dated April 5.000.00 in cash to replace the aforesaid checks. On August 25. MBTC credited the amount of the credit advice to plaintiff RBPG's account and thru its officers. On October 29. (as shown by Exhibit "I. that as regards the P304. including attorney's fees.00 as temperate damages. Felipe C. considering that RBPG's credit standing and business reputation were damaged by the wrongful acts of defendant's employees. explaining the circumstances that gave rise to the bouncing checks situation.00 as moral damages. Valentino Elevado) and Mr. the court held that no actual damages could have been suffered by plaintiff RBPG because on April 15. as attorney's fees.00 representing the amount of the two (2) checks payable to Dr. plus costs and expenses of litigation without factual or legal basis therefor. Elisa Roque for P25.000. despite daily reporting of credit memos and a corresponding daily radio message confirmation.000. 26571. Metrobank's negligence arising from their messenger's misrouting of the credit advice resulting in the return of the checks in question.00 as attorney's fees and litigation expenses.000. questioning the deletion of the award of temperate damages and the reduction of the award of moral damages and attorney's fees. the reduction of moral damages from P500. pay the costs of suit. pay P500. the same was credited only on April 15. 3. litigation expenses and the costs of the suit. Antonio Katigbak who allegedly paid the amount was actually reimbursed by plaintiff RBPG. Dungo's improper handling of clients led to the messenger's dismissal from service and Mr. pay P100. 2. The motion was denied. except for the deletion of the award of temperate damages.000. The threshold issue was whether or not.000.000.aforementioned checks. 1989. were all reversed. moral and exemplary damages. pay plaintiff Isabel Katigbak P50. alleging that the trial court erred in awarding temperate and moral damages. as well as penalty charges.000 each.000.00 in favor of RBPG and P100. Dungo. 1982.00 were already credited to the account of RBPG and the service. 4.000.000 which included the two (2) checks issued to the Roque spouses in the sum of P50. allegedly conveyed personally on two occasions its apologies to plaintiffs to show that the bank and its officers acted with no deliberate intent on their part to cause injury or damage to plaintiffs. under the facts and circumstances of the case.00 to P50. that after the confirmation. Roque and Mrs. The lower court did not award actual damages in the amount of P50. all of which impelled her to seek medical treatment. MBTC filed this petition. Dungo's transfer from Metro Manila to Mindoro. as it found no showing that Mr.000. 1992.00." the Investigation Report of the bank's Mr.00 for Isabel Katigbak and P50. Plaintiffs-appellees filed a motion for reconsideration of the decision. as well as attorney's fees. plaintiff may be allowed to recover actual. presenting the following issues for resolution: . Moreover.00 which was a re-discounting loan from the Central Bank. the Court of Appeals rendered a decision 3 affirming that of the trial court. the Central Bank credit advice in the amount of P304. coupled with the rude treatment received by Isabel Katigbak at the hands of Mr. 1982 after the Central Bank finally confirmed that a credit advice was indeed issued in favor of RBPG. MBTC appealed from the decision to the Court of Appeals in CA — GR CV No.000. the RTC of Lipa City rendered a decision 2 in favor of plaintiffs and against the defendant MBTC. ordering the latter to: 1. and. petitioner bank was remiss in its duty and obligation to treat private respondent's account with the highest degree of care. Katigbak. are no longer reviewable here. Bank of America. whether such account consists only of a few hundred pesos or of millions. though he cannot. embarrassment and humiliation to private respondents for which they are entitled to recover reasonable moral damages. it caused serious anxiety. Katigbak learned that her checks were not being honored and Mr. it being a significant part of the foundation of his business. The petition is devoid of merit. and the insults from petitioner bank's officer directed against private respondent Isabel R. . Any adverse reflection thereon constitutes some financial loss to him. the dishonoring of the respondent's checks committed through negligence by the petitioner bank on April 6. Clearly. It must bear the blame for failing to discover the mistake of its employee despite the established procedure requiring bank papers to pass through bank personnel whose duty it is to check and countercheck them for possible errors. 96 Ga 334. While this rule admits of exceptions. having been already thoroughly discussed and analyzed in the courts below. 1982 was rectified only on April 15. insult was added to injury by petitioner bank's issuance of debit memoranda representing service and penalty charges for the returned checks. As borne out by the records. not to mention the insulting remarks from its Assistant Cashier. "it can hardly be possible that a customer's check can be wrongfully refused payment without some impeachment of his credit. her wounded feelings and the mental anguish suffered by her caused her blood pressure to rise beyond normal limits. The case at bench was instituted to seek damages caused by the dishonor through negligence of respondent bank's checks which were actually sufficiently funded.1. from the nature of the case. as well as a reappraisal of its probative value. furnish independent. whether or not the amounts awarded are excessive and unconscionable. The bank is under obligation to treat the accounts of its depositors with meticulous care. considering the fiduciary nature of their relationship. 5 While the bank's negligence may not have been attended with malice and bad faith. distinct proof thereof". 458. Sec. assuming that they are so entitled. There is no merit in petitioner's argument that it should not be considered negligent. this case does not fall under any of these. In the case of Leopoldo Araneta v. whether or not private respondents RBPG and Isabel Rodriguez are legally entitled to moral damages and attorney's fees. 23 SE 190. and 2. As stated in the case of Atlanta National Bank vs. The presence of malice and the evidence of besmirched reputation or loss of credit and business standing. nevertheless. necessitating medical attendance for two (2) days at a hospital. 6 As the records bear out. Davis. 1992 or nine (9) days after receipt of the credit memo. involves factual matters which. 7 we held that: The financial credit of a businessman is a prized and valuable asset. citing 2 Morse Banks. much less be held liable for damages on account of the inadvertence of its bank employee as Article 1173 of the Civil Code only requires it to exercise the diligence of a good pater familias. 4 Responsibility arising from negligence in the performance of every kind of obligation is demandable. It was established that when Mrs. Dungo repeatedly made the insulting phone calls. which must in fact be an actual injury. Moreover. serious anxiety. 10 Moral and temperate damages which are not susceptible of pecuniary estimation are not awarded to penalize the petitioner but to compensate the respondents for injuries suffered as a result of the former's fault and negligence. Moral damages include physical suffering. precisely due to their nature. both in the trial and appellate courts.The damage to private respondents' reputation and social standing entitles them to moral damages. definite proof of pecuniary loss cannot be adduced. aside from the fact that the amount allegedly suffered by Mrs.00 is not part of the relief prayed for in the complaint. besmirched reputation. considering the nature and extent of the services rendered by private respondent's counsel. be proved with certainty. 9 Temperate damages may be allowed in cases where from the nature of the case. social humiliation and similar injury. from the nature of the case. however.000. the Court deems it just and equitable that attorney's fees in the amount of P50. fright. which are clearly not excessive and unconscionable. . The amount of such losses need not be established with exactitude. justifies the grant of moral damages. Katigbak is susceptible of proof. The appellate court. particularly since this is the very first time such humiliation has befallen private respondents. SO ORDERED. mental anguish. although the court is convinced that there has been such loss. WHEREFORE. wounded feelings.000. 8 Temperate or moderate damages which are more than nominal but less than compensatory damages. taking into account the latter's credit and social standing in the banking community. 11 The carelessness of petitioner bank. the decision of respondent Court of Appeals is AFFIRMED in all respects. moral shock.00 be awarded. may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot. justified its deletion when MBTC reasoned out that the amount of P50. aggravated by the lack of promptness in repairing the error and the arrogant attitude of the bank officer handling the matter. Republic of the Philippines SUPREME COURT Manila EN BANC G. seated just behind the four last mentioned. There is nothing in the evidence to show whether or not the passengers already free from the wreck. who said they could not get out of the bus. while the bus was running within the jurisdiction of Imus. These men presumably approach the overturned bus. . Lope E. No. DE BATACLAN and the minors NORMA. one of them carrying a lighted torch made of bamboo with a wick on one end. another passenger apparently from the Visayan Islands whom the witnesses just called Visaya. on its way to Pasay City. made any attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle. evidently fueled with petroleum. 1952 bus no. others had to be helped or pulled out. After half an hour. a fierce fire started. after they had clambered up to the road. vs. MARIANO MEDINA. Francisco for plaintiffs-appellants. including the driver and conductor. Conrado Saylon.R. shouts for help from Bataclan and Lara. and that the lighted torch brought by one of the men who answered the call for help set it on fire. Emmanuel Andamo and Jose R. DE BATACLAN. but calls or shouts for help were made to the houses in the neighborhood. burning and all but consuming the bus. gasoline began to leak and escape from the gasoline tank on the side of the chassis. driven by its regular chauffeur. plaintiffs-appellants. 30 of the Medina Transportation. sated to the right of Bataclan.: Shortly after midnight. LUZVIMINDA. There were about eighteen passengers. heard groans and moans from inside the bus. Cavite. one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. ELENITA. seated beside and to the right of the driver. L-10126 October 22. while the three passengers seated beside the driver. on September 13. Some of the passengers managed to leave the bus the best way they could. Felipe Lara. including the driver and the conductor. Among the passengers were Juan Bataclan. Cavite. 1957 SALUD VILLANUEVA VDA. and almost immediately. Some of the passengers. OSCAR and ALFREDO BATACLAN. and a woman named Natalia Villanueva. defendant-appellant. named Bataclan. MONTEMAYOR. Fortunato Jose for defendant and appellant. could not get out of the overturned bus. apparently not knowing his name. At about 2:00 o'clock that same morning. J. operated by its owner defendant Mariano Medina under a certificate of public convenience. seated in the left side of the driver. including the four passengers trapped inside it. came about ten men. It would appear that as the bus overturned. spreading over and permeating the body of the bus and the ground under and around it. Adriano. particularly. Lara and the Visayan and the woman behind them named Natalia Villanueva. represented by their Natural guardian. left the town of Amadeo. SALUD VILLANUEVA VDA. For purposes of reference. unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755 ART. moral. We agree with the trial court that the case involves a breach of contract of transportation for hire. are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them. in her name and in behalf of her five minor children. if the common carrier's employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission. but the latter endorsed the appeal to us because of the value involved in the claim in the complaint. the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. with a due regard for all the circumstances. the charred bodies of the four deemed passengers inside the bus were removed and duly identified that of Juan Bataclan. Pasay City. Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734. This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees.That same day. from the nature of their business and for reasons of public policy.000 to the plaintiffs plus P600 as attorney's fee. ART. the bus was speeding. the driver Saylon. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former's employees. 5. the Medina Transportation having undertaken to carry Bataclan safely to his destination. Nos. and exemplary damages and attorney's fees in the total amount of P87. Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their goods. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide. plus P100. although such employees may have acted beyond the scope of their authority or in violation of the order of the common carriers. the Court of First Instance of Cavite awarded P1. using the utmost diligence of very cautious persons. After trial. there was a distance of about 150 . and 1745. The plaintiffs and the defendants appealed the decision to the Court of Appeals. Common carriers. while the extra ordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756. 1733. ART. from the point where one of the front tires burst up to the canal where the bus overturned after zig-zaging. 1735. his widow. through his agent. By reason of his death. as testified to by one of the passengers. We also agree with the trial court that there was negligence on the part of the defendant. In case of death of or injuries to passengers. 1759. There is evidence to show that at the time of the blow out. common carriers are presumed to have been at fault or to have acted negligently. Salud Villanueva. 6. including that of the defense. 1755. 1756. brought the present suit to recover from Mariano Medina compensatory.150. ART. 1763. we are reproducing the pertinent codal provisions: ART. A common carrier responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers. and as shown by the fact that according to the testimony of the witnesses. and 7. according to all the circumstances of each case. say. and pins down a passenger. this aside from the fact that gasoline when spilled. and so damages were awarded. Bataclan. unbroken by any efficient intervening cause. or at least. produces the injury. this for the reason that when the vehicle turned not only on its side but completely on its back. Articles 1733. not for his death. was still alive. A satisfactory definition of proximate cause is found in Volume 38. but for the physical injuries suffered by him. In other words. that the coming of the men with a lighted torch was in response to the call for help. its momentum carried it over a distance of 150 meters before it fell into the canal and turned turtle. cited by plaintiffs-appellants in their brief. through is driver and its conductor. if through some event. Said negligence on the part of the agents of the carrier come under the codal provisions above-reproduced. The only question is to what degree. the trapping of some of its passengers and the call for outside help. The chauffeur. we do not hesitate to hold that the proximate cause was the overturning of the bus. the burning of the bus can also in part be attributed to the negligence of the carrier. pages 695-696 of American jurisprudence. particularly. one might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle. the fire that burned the bus. There is no question that under the circumstances. must have applied the brakes in order to stop the bus. the driver and the conductor were on the road walking back and forth. and what was more natural than that said rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested from them. the defendant carrier is liable. the leaking of the gasoline from the tank was not unnatural or unexpected. But in the present case under the circumstances obtaining in the same. the driver should and must have known that in the position in which the overturned bus was. as an ordinary prudent and intelligent person. have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. . and that because it was dark (about 2:30 in the morning). gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus. each having a close causal connection with its immediate predecessor. all constituting a natural and continuous chain of events. including himself and his co-passengers who were unable to leave it. the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted. 'the proximate legal cause is that acting first and producing the injury. by the driver and the conductor themselves. and the passenger is burned to death. that at the time the fire started. 'that cause. either immediately or by setting other events in motion. in natural and continuous sequence. . or if some highwaymen after looting the vehicle sets it on fire. made not only by the passengers. though he must have suffered physical injuries. What is more. after the blow-out. the coming of the men with a torch was to be expected and was a natural sequence of the overturning of the bus. can be smelt and directed even from a distance. and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. It may be that ordinarily. According to the witness. the overturned bus is set on fire. and coming as they did from a rural area where lanterns and flashlights were not available. They. when a passenger bus overturns. . It is as follows: . the rescuers had to carry a light with them. but most probably. The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus.' And more comprehensively. which. but because of the velocity at which the bus must have been running. 1759 and 1763. specially over a large area. under such circumstances that the person responsible for the first event should. and without which the result would not have occurred. We disagree. perhaps serious. merely causing him physical injuries.meters. unexpected and extraordinary. but rather. by lightning. A.. he had been telling the driver to change the said tires. and other damages. Bengzon. but that the driver did not follow his instructions.000) PESOS. as well as the other elements entering into a damage award. and assessing the legal services rendered by plaintiffs' attorneys not only in the trial court. there is reason to believe that the driver operated and drove his vehicle negligently. In the public interest the prosecution of said erring driver should be pursued. J. because of the injuries suffered by her. Reyes.As regard the damages to which plaintiffs are entitled.000) PESOS would constitute satisfactory compensation.. and Felix. respectively. but also in the course of the appeal. But the record of the case before us shows the several witnesses. but for the promotion of the safety of passengers on public utility buses. concur. either failed or appear or were reluctant to testify. passengers. physical injuries to others. specially those in front. for the death of Bataclan and for the attorney's fees. . If this be true. one of the passengers who. Reyes. J. not only as a matter of justice. and that as a matter of fact. as we have already stated. the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried by the deceased in the bus. and the complete loss and destruction of their goods. this to include compensatory. was provisionally dismissed.. C. resulting in the death of four of his passengers. JJ. and from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS. is adequate and will not be disturbed.. in that bus. Concepcion. with costs. we are satisfied that the amount of SIX THOUSAND (P6. considering the earning capacity of the deceased. and not losing sight of the able briefs prepared by them. she overheard him speaking to one of his bus inspectors. and while in the hospital. the blow out would not have occurred. probably. Paras. Bautista Angelo. was hospitalized. telling said inspector to have the tires of the bus changed immediately because they were already old. despite his speeding. Endencia. willingly and unhesitatingly testified in court to the effect of the said driver was negligent. We also believe that plaintiffs are entitled to attorney's fees. Labrador. and yet the criminal case against him. the decision appealed is from hereby affirmed. Had he changed the tires. with new ones. this. and in the course of his visit. There is one phase of this case which disturbs if it does not shock us. as he had been instructed to do. moral.000) PESOS TO SIX THOUSAND (P6. because according to the fiscal. the witnesses on whose testimony he was banking to support the complaint. on motion of the fiscal and with his consent. she was visited by the defendant Mariano Medina. B. In view of the foregoing. Let a copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite. L. with the modification that the damages awarded by the trial court are increased from ONE THOUSAND (P1. Padilla. All in all. it goes to prove that the driver had not been diligent and had not taken the necessary precautions to insure the safety of his passengers. According to the evidence. Pacis. Baluyot. there was a vehicle coming from the opposite direction.Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G. The force of the impact caused the parked jeepney to move forward hitting the rear of the . Branch XXII presided by Judge Federico C. While in front of house no.R. four (4) months and one (1) day of prision correccional as maximum and was made to indemnify the heirs of the victim the sum of P12. She was sentenced to an indeterminate penalty of four (4) months and one (1) day of arresto mayor as minimum and two (2) years. pinning him against the rear of the parked jeepney. the defendant swerved to the right and as a consequence. THE HONORABLE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES. followed by another which tried to overtake and bypass the one in front of it and thereby encroached the lane of the car driven by the accused. FERNAN. the trial court's decision was modified and petitioner was convicted only of Homicide thru Simple Imprudence.J. C. vs. Reyes & De Leon for petitioner. there were two vehicles. L-44264 September 19. a truck and a jeepney parked on one side of the road. On appeal. Tondo. one following the other about two to three meters from each other. Manila. Still unsatisfied with the decision of the Court of Appeals.000. the accused Hedy Gan was driving a Toyota car along North Bay Boulevard. 1988 HEDY GAN y YU. 1 petitioner has come to this Court for a complete reversal of the judgment below. 694 of North Bay Boulevard. 1972 at about 8:00 o'clock. respondents. The Solicitor General for respondents. To avoid a head-on collision with the oncoming vehicle. the front bumper of the Toyota Crown Sedan hit an old man who was about to cross the boulevard from south to north. Alikpala.00 without any subsidiary imprisonment in case of insolvency and to pay the costs.: Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless Imprudence in Criminal Case No. The facts of the case as found by the appellate court are as follows: In the morning of July 4. No. 10201 of the then Court of First Instance of Manila. As the car driven by the accused approached the place where the two vehicles were parked. petitioner. parts truck ahead of it. The motion to dismiss filed by the fiscal was never resolved. 1972. the jeep suffered damages on its rear and front paints. III .R.00) without. the accused Hedy Gan is guilty beyond reasonable doubt of the crime of homicide thru simple imprudence and. as modified. On May 3. 14472-CR. The pedestrian was injured. After the prosecution rested its case. and the truck sustained scratches at the wooden portion of its rear. The body of the old man who was later Identified as Isidoro Casino was immediately brought to the Jose Reyes Memorial Hospital but was (pronounced) dead on arrival. No. the Toyota Sedan was damaged on its front. Article 365 of the Revised Penal Code. 1972. 1976. the trial court rendered judgment finding petitioner guilty beyond reasonable doubt of the of.offense charged. 3 Petitioner now appeals to this Court on the following assignments of errors: I The Court of Appeals erred in holding that when the petitioner saw a car travelling directly towards her.000. the Court of Appeals rendered a decision. Petitioner appealed to the Court of Appeals in CA-G. 2 An information for Homicide thru Reckless Imprudence was filed against petitioner in view of the above incident. The grounds cited therefor were lack of interest on the part of the complaining witness to prosecute the case as evidenced by an affidavit of desistance submitted to the trial court and lack of eyewitness to sustain the charge. any subsidiary imprisonment in case of insolvency. II The Court of Appeals erred in convicting the petitioner of the crime of Homicide thru Simple Imprudence. she is hereby sentenced to the indeterminate penalty of three (3) months and eleven (11) days of arresto mayor and to indemnify the heirs of Isidoro Casino in the sum of Twelve Thousand Pesos (Pl2. pursuant to paragraph 2. Meanwhile. and to pay the costs. as a result of which the trial fiscal moved for the dismissal of the case against petitioner during the resumption of hearing on September 7. The Court instead ordered the prosecution to present its evidence. to avoid the death of a pedestrian. On December 22. she should have stepped on the brakes immediately or in swerving her vehicle to the right should have also stepped on the brakes or lessened her speed. She entered a plea of not guilty upon arraignment and the case was set for trial. petitioner sought and was granted a re-investigation by the City Fiscal. however. the petitioner filed a motion to dismiss the case on the ground of insufficiency of evidence. the dispositive portion of which reads as follows: Wherefore. we find that the appellate court is asking too much from a mere mortal like the . the law imposes the duty oil the doer to take precaution against its mischievous results and the failure to do so constitutes negligence. we cannot but deem its veracity to have been admitted by it. no evidence was presented by the prosecution with respect to the relative distances of petitioner to the parked jeepney and the oncoming overtaking vehicle that would tend to prove that petitioner did have sufficient time to reflect on the consequences of her instant decision to swerve her car to the light without stepping on her brakes." 6 Applying the above test to the case at bar. 9 (Emphasis supplied) The prosecution having presented this exhibit as its own evidence. Thus. Iyan ho ang buong pangyayari nang nasabing aksidente. 5 A corollary rule is what is known in the law as the emergency rule. we find the petitioner not guilty of the crime of Simple Imprudence resulting in Homicide. Due to the lack of eyewitnesses.The Court of Appeals erred in adjudging the petitioner liable to indemnify the deceased in the sum of P12. if he fails to adopt what subsequently and upon reflection may appear to have been a better method. "Under that rule. is not guilty of negligence. The appellate court in finding the petitioner guilty said: The accused should have stepped on the brakes when she saw the car going in the opposite direction followed by another which overtook the first by passing towards its left. the evidence presented by the prosecution on this point is the petitioner's statement to the police 8 stating:: And masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang nagovertake sa sasakyan na aking kasalubong kung kaya ay aking kinabig sa kanan ang akin kotse subalit siya naman biglangpagtawid ng tao o victim at hindi ko na ho naiwasan at ako ay wala ng magawa . She should not only have swerved the car she was driving to the right but should have also tried to stop or lessen her speed so that she would not bump into the pedestrian who was crossing at the time but also the jeepney which was then parked along the street. In fact. 4 We reverse. one who suddenly finds himself in a place of danger.00. under the circumstances narrated by petitioner.000. The test for determining whether or not a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: Would 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 about to be pursued? If so. 7 The course of action suggested by the appellate court would seem reasonable were it not for the fact that such suggestion did not take into account the amount of time afforded petitioner to react to the situation she was in. For it is undeniable that the suggested course of action presupposes sufficient time for appellant to analyze the situation confronting her and to ponder on which of the different courses of action would result in the least possible harm to herself and to others. and is required to act without time to consider the best means that may be adopted to avoid the impending danger. unless the emergency in which he finds himself is brought about by his own negligence. She had no opportunity for rational thinking but only enough time to heed the very powerfull instinct of self-preservation.petitioner who in the blink of an eye had to exercise her best judgment to extricate herself from a difficult and dangerous situation caused by the driver of the overtaking vehicle. She is no longer liable for the P12. We further set aside the award of damages to the heirs of the victim. Also. judgment is hereby rendered acquitting petitioner HEDY GAN y YU of the crime of Homicide thru Simple Imprudence.000. Petitioner certainly could not be expected to act with all the coolness of a person under normal conditions. who by executing a release of the claim due them.00 civil indemnity awarded by the appellate court to the heirs of the victim. WHEREFORE. 10 The danger confronting petitioner was real and imminent. threatening her very existence. had effectively and clearly waived their right thereto. We therefore rule that the "emergency rule" enunciated above applies with full force to the case at bar and consequently absolve petitioner from any criminal negligence in connection with the incident under consideration. the respondent court itself pronounced that the petitioner was driving her car within the legal limits. . SO ORDERED. Clodualdo de Jesus. and CLODUALDO DE JESUS. uttered the following remarks: "Clody [referring to Clodualdo de Jesus].:p With ample evidentiary support are the following antecedent facts: In the evening of October 19. thus. a practicing lawyer and businessman. petitioner.658. as embossed on its face. INC. Following a full-dress trial. and (c) attorney's fees and litigation expenses in the amount of P50. judgment was rendered directing the petitioner and BANKARD to pay jointly and severally the private respondent: (a) moral damages in the amount of P250. Ten minutes later.i. 2 The waiter was unmoved..e. (BANKARD). 1 Private respondent remonstrated that said credit card had yet to expire on September 1990. 1989. Professor Lirag. 119850 June 20.000. No. The incident triggered the filing of a suit for damages by private respondent. (b) exemplary damages in the amount of P100.000. The same information was produced. 1996 MANDARIN VILLA.00. Mandaluyong City.50.. After dinner the waiter handed to him the bill in the amount of P2. respondents.Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G. This card was accepted by the waiter who immediately proceeded to the restaurant's cashier for card verification. however. COURT OF APPEALS. vs. CARD EXPIRED. . 4 Petitioner and his companions left afterwards.00. J. RESOLUTION FRANCISCO. another guest.00. Private respondent and his guests returned to their table and at this juncture. may problema ba? Baka kailangang maghugas na kami ng pinggan?" 3 Thereupon. the Mandarin Villa Seafoods Village Greenhills. the waiter returned and audibly informed private respondent that his credit card had expired.R.000. private respondent and two of his guests approached the restaurant's cashier who again passed the credit card over the verification computer. This was accepted and honored by the cashier after verification. private respondent left the restaurant and got his BPI Express Credit Card from his car and offered it to pay their bill. private respondent. Private respondent offered to pay the bill through his credit card issued by Philippine Commercial Credit Card Inc. hosted a dinner for his friends at the petitioner's restaurant. and (3) if negligent. SO ORDERED. 1989. 7 While private respondent. to wit: (1) whether or not petitioner is bound to accept payment by means of credit card. Absolving appellant BANKARD of any responsibility for damages. Finding appellant MANDARIN solely responsible for damages in favor of appellee.00 for attorney's fees as well as interest awarded. the decision appealed from is hereby MODIFIED by: 1. 2. no signs of tampering. the above-quoted stipulation conferred a favor upon the private respondent. 4.Both the petitioner and BANKARD appealed to the respondent Court of Appeals which rendered a decision. an "Agreement" 6 entered into by petitioner and BANKARD dated June 23.000. and 6. 5. Reducing moral damages awarded to appellee to TWENTY FIVE THOUSAND and 00/100 (P25. whether or not such negligence is the proximate cause of the private respondent's damage. must first give its consent otherwise there will be no binding contract between them.000.00) PESOS. may not be a party to the said agreement. interposed this present petition. thus: WHEREFORE. It argues that private respondent's offer to pay by means of credit card partook of the nature of a proposal to novate an existing obligation for which petitioner. suspended and canceled PCCCI credit cards and. a holder of credit card validly issued by BANKARD. the same not being a legal tender. alterations or irregularities appear on the face of the credit card. AFFIRMING the dismissal of all counterclaims and cross-claims. Petitioner contends that it cannot be faulted for its cashier's refusal to accept private respondent's BANKARD credit card. Petitioner cannot seek refuge behind this averment. thus. Reducing exemplary damages awarded to appellee to TEN THOUSAND and 00/100 (P10. (2) whether or not petitioner is negligent under the circumstances obtaining in this case. 3. We note that Mandarin Villa Seafood Village is affiliated with BANKARD. as creditor. 5 Mandarin Villa. faulting the respondent court with six (6) assigned errors which may be reduced to the following issues.00) PESOS.000. Reversing and setting aside the award of P250. provides inter alia: The MERCHANT shall honor validly issued PCCCI credit cards presented by their corresponding holders in the purchase of goods and/or services supplied by it provided that the card expiration date has not elapsed and the card number does not appear on the latest cancellation bulletin of lost. In fact. This stipulation is a stipulation pour autri and under Article 1311 of the Civil Code private respondent may demand its fulfillment provided he communicated . Costs against appellant Mandarin. In this case. appellant apparently intentionally glossed over option "(a) Check expiry date on card" (id. The argument is untenable. If in CB as Suspended/Cancelled. If unexpired. Petitioner. it has not yet expired on October 19. do not honor card. petitioner should not honor the card. However.his acceptance to the petitioner before its revocation.3. 11 The Point of Sale (POS) Guidelines which outlined the steps that petitioner must follow under the circumstances provides. 1989. b. It chose to exercise option (c) by not honoring appellee's credit card. petitioner should check the credit card's expiry date embossed on the card itself. the record shows that petitioner posted a logo inside Mandarin Villa Seafood Village stating that "Bankard is accepted here. the party relying thereon. It argues that since the verification machine flashed an information that the credit card has expired. 8 In this case. not just once but twice. petitioner asseverates that it only followed the guidelines and instructions issued by BANKARD in dishonoring the aforementioned credit card. private respondent's offer to pay by means of his BANKARD credit card constitutes not only an acceptance of the said stipulation but also an explicit communication of his acceptance to the obligor. Hence. petitioner cites its good faith in checking. petitioner did not use the reasonable care and caution which an ordinary prudent person would have used in the same situation and as such petitioner is guilty of negligence. 9 This representation is conclusive upon the petitioner which it cannot deny or disprove as against the private respondent. Mandarin argues that based on the POS Guidelines (supra). If expired. But if expired. b. when the same was wrongfully dishonored by the petitioner. cancelled or otherwise suspended. the validity of the aforementioned credit card prior to its dishonor. we quote with approval the following observations of the respondent Court. In this connection. it has three options in case the verification machine flashes "CARD EXPIRED". b. petitioner could not be expected to honor the same much less be adjudged negligent for dishonoring it. b. c. refer to CB. Check expiry date on card. honor up to maximum of SPL only.2. 10 Anent the second issue. If unexpired. therefore. do not honor card.. If in CB as Lost. private respondent's BANKARD credit card has an embossed expiry date of September 1990.) which would have shown without any . do procedures 2a to 2e.1. In support thereof. If valid. petitioner insists that it is not negligent. cannot disclaim its obligation to accept private respondent's BANKARD credit card without violating the equitable principle of estoppel. xxx xxx xxx CARD EXPIRED a. 13 Clearly. 12 A cursory reading of said rule reveals that whenever the words CARD EXPIRED flashes on the screen of the verification machine. In addition. Further. then he is guilty of negligence. The test for determining the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use the reasonable care and caution which an ordinary prudent person would have used in the same situation? If not. petitioner should honor the card provided it is not invalid. Neither can we conclude that the remark of Professor Lirag was a supervening event and the proximate cause of private respondent's injury. the instant petition is hereby DISMISSED. argues that private respondent's own negligence in not bringing with him sufficient cash was the proximate cause of his damage. albeit silently within himself. petitioner accepted private respondent's BPI Express Credit Card after verifying its validity. The humiliation and embarrassment of the private respondent was brought about not by such a remark of Professor Lirag but by the fact of dishonor by the petitioner of private respondent's valid BANKARD credit card. to accept payment by means of credit cards in lieu of cash. WHEREFORE. this fact alone does not constitute negligence on his part. however. It likewise sought exculpation by contending that the remark of Professor Lirag 15 is a supervening event and at the same time the proximate cause of private respondent's injury. Neither can it be claimed that the same was the proximate cause of private respondent's damage. SO ORDERED.shadow of doubt that the expiry date embossed on the BANKARD was "SEP 90". a fact which would have entitled the customer the courtesy of better treatment. (Exhibit "D". While it is true that private respondent did not have sufficient cash on hand when he hosted a dinner at petitioner's restaurant.) A cursory look at the appellee's BANKARD would also reveal that appellee had been as of that date a cardholder since 1982. If at all. the remark of Professor Lirag served only to aggravate the embarrassment then felt by private respondent. 17 a fact which all the more refutes petitioner's imputation of negligence on the private respondent. Thus. We find this contention also devoid of merit. We take judicial notice 16 of the current practice among major establishments. petitioner included. . 14 Petitioner. 00 as exemplary damages.000. No. rammed "head-on" the store-residence of the private respondent.024.R. causing damages thereto which were inventoried and assessed at P53. respondents. petitioner. Nueva Ecija. THE COURT OF APPEALS and AMADEO AZARCON.22.024. that the steering wheel refused to respond to his effort and as a result of a blown-out tire and despite application of his brakes. respondent the following: (a) P53. to the private. (c) P10. RESOLUTION PADILLA." 1 Petitioner also filed a third party complaint against Travellers Insurance and Surety Corporation. while driving a cargo truck belonging to petitioner. the said cargo truck hit the store-residence of plaintiff (private respondent) and that the said accident was an act of God for which he cannot be held liable. and (d) the . The trial court rendered judgment in favor of private respondent. alleging that said cargo truck involved in the vehicular accident. Upon appeal to the Court of Appeals.00 as moral damages.000. The action arose from a vehicular accident that occurred on 5 August 1979 in Gapan. (b) P10. the petitioner alleged principally: "that his driver Martin Belmonte operated said cargo truck in a very diligent (and) careful manner.Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G. J. 77679 September 30. the latter court affirmed in toto the decision of the trial court. 1987 VICENTE VERGARA. 2176 of the Civil Code) was filed by private respondent against petitioner.: An action for damages based on quasi-delict (Art. vs. when Martin Belmonte. Petitioner asked that the latter be ordered to pay him whatever amount he may be ordered by the court to pay to the private respondent. jointly and severally with Travellers Insurance and Surety Corporation.22 as actual damages. which ordered Petitioner to pay. belonging to the petitioner. was insured by the third party defendant insurance company. In his answer to the complaint. and then said cargo truck rammed the store warehouse of the plaintiff. It is undisputed that private respondent suffered damages as a result of an act or omission of petitioner. and (b) P3. affirmed by the respondent court. moral and exemplary damages as well as attorney's fees and costs. According to the police report. the insurance company was sentenced to pay to the petitioner the following: (a) P50.00 for third party liability under its comprehensive accident insurance policy. which we are not prepared to now disturb." 2 According to the driver of the cargo truck. this petition for review on certiorari.sum of P5. of which defendant.000.000. "the cargo truck was travelling on the right side of the road going to Manila and then it crossed to the center line and went to the left side of the highway. it then bumped a tricycle. The findings of said court. On the third party complaint. or some person for whose acts he must respond. and then another bicycle. the petition is DENIED. Certainly.00 for attorney's fees and the costs. Based on the foregoing finding by the respondent Court that there was negligence on the part of the petitioner.00 for and as attorney's fees. Petitioner's contention that the respondent court erred in finding him guilty of fault or negligence is not tenable. And the fact of negligence may be deduced from the surrounding circumstances thereof. SO ORDERED. a mishap caused by defective brakes can not be consideration as fortuitous in character. Furthermore. It was established by competent evidence that the requisites of a quasi-delict are present in the case at bar. (2) negligence. the petitioner failed to adduce any evidence to overcome the disputable presumption of negligence on his part in the selection and supervision of his driver. . These requisites are: (1) damages to the plaintiff. he applied the brakes but the latter did not work due to mechanical defect. is untenable. the defects were curable and the accident preventable. the petitioner's contention that the respondent court erred in awarding private respondent actual. The issue of whether or not this act or omission can be considered as a "negligent" act or omission was passed upon by the trial court. ACCORDINGLY. Hence. show that the fact of occurrence of the "vehicular accident" was sufficiently established by the policy report and the testimony of Patrolman Masiclat. by act or omission.000. and (3) the connection of cause and effect between such negligence and the damages. was guilty. Contrary to the claim of the petitioner. La Union. No. It appears that upon the occasion in question the plaintiff was riding on his pony over said bridge. As the automobile approached. 1912. as damages alleged to have been caused by an automobile driven by the defendant. Campbell for appellee.: In this action the plaintiff. G. L-12219 March 15. Seeing that the pony was apparently quiet. In so doing the defendant assumed that the horseman would move to the other side. The plaintiff. The occurrence which gave rise to the institution of this action took place on December 12. he pulled the pony closely up against the railing on the right side of the bridge instead of going to the left.. He continued his course and after he had taken the bridge he gave two more successive blasts. From a judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed. seeks to recover of the defendant. continued to approach directly toward the . it appears. being perturbed by the novelty of the apparition or the rapidity of the approach. plaintiff-appellant.000. vs. going at the rate of about ten or twelve miles per hour. the defendant guided it toward his left. Amado Picart. Alejo Mabanag for appellant.80 meters.R. The pony had not as yet exhibited fright.Republic of the Philippines SUPREME COURT Manila EN BANC G. jr. and the rider had made no sign for the automobile to stop. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. 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. E. JR. the sum of P31.. as it appeared to him that the man on horseback before him was not observing the rule of the road. the defendant. defendant-appellee. Frank Smith. FRANK SMITH. saw the automobile coming and heard the warning signals. Before he had gotten half way across. instead of veering to the right while yet some distance away or slowing down. J. at San Fernando. 1918 AMADO PICART. on the Carlatan Bridge. that being the proper side of the road for the machine. However. STREET. the defendant approached from the opposite direction in an automobile. The bridge is shown to have a length of about 75 meters and a width of 4. 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 plaintiff received contusions which caused temporary unconsciousness and required medical attention for several days. seeing that there were no other persons on the bridge. in our opinion. As a result of its injuries the horse died. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. Could a prudent man. When he had gotten quite near. followed by ignoring of the suggestion born of this prevision. Instead of doing this. the defendant ran straight on until he was almost upon the horse. The horse fell and its rider was thrown off with some violence. foresee harm as a result of the course actually pursued? If so. there being then no possibility of the horse getting across to the other side. and it was his duty either to bring his car to an immediate stop or. 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 . 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. 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. if the animal in question was unacquainted with automobiles. Reasonable foresight of harm. deceived into doing this by the fact that the horse had not yet exhibited fright. negligent in the eye of the law. and we are of the opinion that he is so liable. the defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing. When the defendant exposed the horse and rider to this danger he was. he might get exited and jump under the conditions which here confronted him. and are not supposed to be. blameworthy. 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. then he is guilty of negligence.horse without diminution of speed. 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. is always necessary before negligence can be held to exist. 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. we think. he had the right to assume that the horse and the rider would pass over to the proper side. The law considers what would be reckless. it was the duty of the actor to take precautions to guard against that harm. in the case under consideration. it as struck on the hock of the left hind leg by the flange of the car and the limb was broken. or negligent in the man of ordinary intelligence and prudence and determines liability by that. 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. In so doing. In the nature of things this change of situation occurred while the automobile was yet some distance away. but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be done. The control of the situation had then passed entirely to the defendant. Stated in these terms. there was an appreciable risk that. They are not. But in view of the known nature of horses. He was. 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. to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. omniscient of the future. 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. As the defendant started across the bridge. Hence they can be expected to take care only when there is something before them to suggest or warn of danger. 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. The defendant company had there employed the plaintiff. Under these circumstances the law imposed on the defendant the duty to guard against the threatened harm. the defendant was also negligent.would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences. have recognized that the course which he was pursuing was fraught with risk. The decision in the case of Rkes vs. In this connection it appears that soon after the accident in question occurred. As will be seen the defendant's negligence in that case consisted in an omission only. to assist in transporting iron rails from a barge in Manila harbor to the company's yards located not far away. (7 Phil. 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 . at the moment of the accident. The rails were conveyed upon cars which were hauled along a narrow track. the rails slid off. Atlantic. 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). for he was guilty of antecedent negligence in planting himself on the wrong side of the road. without reference to the prior negligence of the other party. and in such case the problem always is to discover which agent is immediately and directly responsible. as a laborer. Rep. In a case like the one now before us. But as we have already stated. Gulf and Pacific Co. 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. it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the other party. The car was in consequence upset. guilty of contributory negligence in walking at the side of the car instead of being in front or behind. A prudent man. A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer. 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. Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. The liability of the company arose from its responsibility for the dangerous condition of its track. to the effect that the subject matter of the action had been previously adjudicated in the court of a justice of the peace. 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. and the plaintiff's leg was caught and broken. It goes without saying that the plaintiff himself was not free from fault. At the preliminary investigation the defendant was discharged by the magistrate and the proceedings were dismissed.. This Court there held that while contributory negligence on the part of the person injured did not constitute a bar to recovery. 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. since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. 359) should perhaps be mentioned in this connection. and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course. would in our opinion. placed in the position of the defendant. 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. 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. It will be noted that the negligent acts of the two parties were not contemporaneous. . and lawful interest on the whole to the date of this recovery. J.. 330. and that at the moment the plaintiff had no opportunity to avoid the accident. the "last clear chance" rule is applicable.. (See U. 564. Separate Opinions MALCOLM. But Justice Street finds as a fact that the negligent act of the interval of time. concurring: After mature deliberation. S.) From what has been said it results that the judgment of the lower court must be reversed.. and Fisher. if a traveler when he reaches the point of collision is in a situation to extricate himself and avoid injury. and judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200). Arellano. (Note especially Aiken vs. 102 Atl.. I have finally decided to concur with the judgment in this case. Avanceña. Johnson. I do so because of my understanding of the "last clear chance" rule of the law of negligence as particularly applied to automobile accidents. Banzuela and Banzuela.. Araullo.the action of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect.from negligence -. his negligence at that point will prevent a recovery. J. his negligence in reaching that position becomes the condition and not the proximate cause of the injury and will not preclude a recovery.) . Metcalf [1917]. JJ. when a traveler has reached a point where he cannot extricate himself and vigilance on his part will not avert the injury. Rep. Consequently. the loss or damage occasioned to articles of his apparel. with costs of other instances. The sum here awarded is estimated to include the value of the horse. So ordered. reserves his vote. Carson. vs. Again. concur. medical expenses of the plaintiff. The other damages claimed by the plaintiff are remote or otherwise of such character as not to be recoverable. Torres.a point upon which it is unnecessary to express an opinion -. C. In other words. 31 Phil.J. This rule cannot be invoked where the negligence of the plaintiff is concurrent with that of the defendant. JANISE MARIE. 70493 May 18. Inc. coming from the opposite direction of Davao City and bound for Glan. The first. DE CALIBO. VDA. plywood.1979.. loaded with cement bags. At about that time. Rufino Mayor and Isidro M. AGAD. Hontanosas for private respondents. represented by their mother. Minors ROYCE STEPHEN. GI sheets. J. The facts giving rise to the controversy at bar are tersely and quite accurately recounted by the Trial Court as follows: 2 Engineer Orlando T. driven by defendant Paul Zacarias y Infants. NARVASA. petitioners. not the plight of the persons involved.Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G. an accident of which they are the innocent victims has brought them to. and Maximo Patos were on the jeep owned by the Bacnotan Consolidated Industries. DE CALIBO. GEORGE LIM. JULIET GERALDINE. CECILIA ALFEREZ VDA. JACQUELINE BRIGITTE JOCELINE CORAZON. 1989 GLAN PEOPLE'S LUMBER AND HARDWARE. JOYCE JOAN. FABIO S. Ampig for petitioners. an obvious one. reduced circumstances or otherwise tragically altered their lives.R. as it approached from the South Lizada Bridge going towards the direction of Davao City at about 1:45 in the afternoon of July 4. FELIX LIM and PAUL ZACARIAS y INFANTE. No. the cargo track. JENNIFER JILL. for example. with Calibo at the wheel. South . Manuel L. is that it is the objective facts established by proofs presented in a controversy that determine the verdict.respondents. no matter how deserving of sympathy and commiseration because. Agripino Roranes. INTERMEDIATE APPELLATE COURT. all surnamed CALIBO. CECILIA A. Smith 1continues to be good law to this day. The second is that the doctrine laid done many. many years ago in Picart vs.: There is a two-fold message in this judgment that bears stating at the outset. vs. Calibo. Roranes' testimony." 7 3. the cargo truck and the jeep collided as a consequence of which Engineer Calibo died while Roranes and Patos sustained physical injuries. (who) appear to be the coowners of the Glan People's Lumber and Hardware . On November 27. . and the fact that indeed no criminal case was ever instituted in Court against Zacarias. At about 59 yards after crossing the bridge." 5 "After (trial. As a result of the impact. Roranes (an accountant). Agad. the left side of the truck was slightly damaged while the left side of the jeep. Lim as bookkeeper". the jeep of the deceased Calibo was "zigzagging. private respondents herein was docketed as Civil Case No. The circumstances leading to the Court's conclusion just mentioned. Moments before its collission with the truck being operated by Zacarias. Unlike Zacarias who readily submitted himself to investigation by the police. was extensively damaged." 8 . . Agad was not a co-owner thereof but "merely employed by . Lim." Accordingly.Cotabato. (and) Paul Zacarias y Infante. was declared in default. both testimonial and documentary. The case filed by the heirs of Engineer Calibo his widow and minor children." 6 2. was "not as clear and detailed as that of . and thus the liability." 4 The defendants' answer however alleged that the lumber and hardware business was exclusively owned by George Y. and) a careful evaluation of the evidence. George Y. as follows: 1. were "telling indications that they did not attribute the happening to defendant Zacarias' negligence or fault. the jeep fell and rested on its right side on the asphalted road a few meters to the rear of the truck. After the impact. George Lim and Felix Lim ." and was "uncertain and even contradicted by the physical facts and the police investigators Dimaano and Esparcia." the Court reached the conclusion "that the plaintiffs failed to establish by preponderance of evidence the negligence. 1979. For failure to file its answer to the third party complaint. 3 Named defendants in the complaint were "Felix S. while the truck stopped on its wheels on the road. plus Roranes' waiver of the right to institute criminal proceedings against Zacarias. including its fender and hood. . the Court dismissed the complaint (and defendants' counterclaim) "for insufficiency of evidence. . Zacarias was unhurt. . and Patos. Calibo's companions. Zacarias. which insured the cargo truck involved. this being evidenced by the Certificate of Registration issued by the Bureau of Domestic Trade. This." Likewise dismissed was third-party complaint presented by the defendants against the insurer of the truck. 3283 of the Court of First Instance of Bohol. and Felix Lim had no connection whatever with said business. who suffered injuries on account of the collision. . refused to be so investigated or give statements to the police officers. Fabio S. given in plaintiffs' behalf. . . "he being a child only eight (8) years of age. third party defendant. of the defendants. had just crossed said bridge. the instant case for damages was filed by the surviving spouse and children of the late Engineer Calibo who are residents of Tagbilaran City against the driver and owners of the cargo truck. are detailed in the Court's decision. Esparcia. Agad and Paul Zacarias have appealed to this Court on certiorariand pray for a reversal of the judgment of the Intermediate Appellate Court which.." 11 what is worse. Calibo had the last clear chance of avoiding the accident because he still had ample room in his own lane to steer clear of the truck.000.000." 14 3) the waiver of the right to file criminal charges against Zacarias should not be taken against "plaintiffs" Roranes and Patos who had the right. the collision would never have occurred.' and although Zacarias saw the jeep from a distance of about 150 meters. Engr. Felix Lim.4. It rendered judgment 9 on the plaintiffs' appeal." 12 had both vehicles stayed in their respective lanes.00 for the loss of earning capacity of the deceased (3) P15. It found Zacarias to be negligent on the basis of the following circumstances. ignored or ran counter to the established facts. under the law. and their liability is both primary and solidary. and none by the jeep. according to the Court. what he handed to Pfc. Fabio S." 13 2) Zacarias had no license at the time. 15 The Appellate Court opined that Zacarias' negligence "gave rise to the presumption of negligence on the part of his employer. it was negligence on the part of the driver of the jeep. Engr. l0 reversing the decision of the Trial Court." It therefore ordered "the defendants jointly and solidarily to indemnify the plaintiffs the following amounts: (1) P30.000. "the truck driver suddenly applied his brakes even as he knew that he was still within the lane of the jeep. for not reducing his speed upon sight of the truck and failing to apply the brakes as he got within collision range with the truck.00 for attorney's fees. was the 'driver's license of his co-driver Leonardo Baricuatro. The Court of Appeals saw things differently. and that the jeep had on impact fallen on its right side is indication that it was running at high speed. in that he had caused his truck to run some 25 centimeters to the left of the center of the road. to wit: 1) "the truck driven by defendant Zacarias occupied the lane of the jeep when the collision occurred.00 for the death of Orlando Calibo. Even if it be considered that there was some antecedent negligence on the part of Zacarias shortly before the collision. to opt merely to bring a civil suit. . (4) Cost of suit. he "did not drive his truck back to his lane in order to avoid collision with the oncoming jeep . That there were skid marks left by the truck's tires at the scene. it is claimed. Calibo. Under the circumstances." 5. . demonstrates that the driver of the truck had applied the brakes and the jeep's driver had not. they would have passed "along side each other safely. 16 The defendants George Lim. A review of the record confirms the merit of this assertion and persuades this Court that . or he could simply have braked to a full stop. (2) P378. on the latter's demand. given "the curvature of the road and the descending grade of the jeep's lane. coming to a full stop with the jeep still thirty (30) meters away cannot be considered an unsafe or imprudent action. 19 which called for extra precautions against driving too near the shoulder. according to measurements made and testified by Patrolman Juanita Dimaano. therefore. which was not the case at all as just pointed out. Nor was the Appellate Court correct in finding that Paulino Zacarias had acted negligently in applying his brakes instead of getting back inside his lane upon qqqespying the approaching jeep. The traffic accident report attests to the proven fact that Zacarias voluntarily surrendered to the investigating officers his driver's license. it could hardly be accounted negligent on the part of its driver to intrude temporarily. 21 The Court was apparently misled by the circumstance that when said driver was first asked to . 1979. there also being uncontradicted evidence that the jeep was "zigzagging" 20 and hence no way of telling in which direction it would go as it approached the truck. that had been renewed just the day before the accident. valid for 1979. the actual center line of the road was not that indicated by the painted stripe but. in case this was made necessary by traffic contingencies or road conditions. he had no duty to swerve out of the jeep's way as said Court would have had him do. will have to be reversed. 17 The total width of the road being. measured from the incorrectly located center stripe uncomfortably narrow. and that of the truck three (3) meters and three (3) centimeters. The unimpugned testimony of Patrolman Dimaano. it was still at least eleven (11) centimeters away from its side of the true center line of the road and well inside its own lane when the accident occurred. on July 3.said judgment indeed disregarded facts clearly and undisputably demonstrated by the proofs. consequently. the true center line equidistant from both side lines would divide the road into two lanes each three (meters) and thirty-nine (39) centimeters wide. based on nothing more than the showing that at the time of the accident. And even supposing that he was in fact partly inside the opposite lane. By this same reckoning. one of the two officers who investigated the accident. It ignores the fact that by the uncontradicted evidence. the truck driven by Zacarias had edged over the painted center line of the road into the opposite lane by a width of twenty-five (25) centimeters. This. is to the effect that the jeep's lane was three (3) meters and seventy-five (75) centimeters wide. Thus. given that vehicle's width of two (2) meters and forty-six (46) centimeters. although it was not disputed that the truck overrode the painted stripe by twenty-five (25) centimeters. Also clearly erroneous is the finding of the Intermediate Appellate Court that Zacarias had no driver's license at the time. Being well within his own lane. being about three (3) inches lower than the paved surface of the road and "soft--not firm enough to offer traction for safe passage — besides which. since it was unquestionably the jeep that rammed into the stopped truck. into the opposite lane in order to insure his vehicle's safety. 18 The truck's lane as erroneously demarcated by the center stripe gave said vehicle barely half a meter of clearance from the edge of the road and the dangerous shoulder and little room for maneuver. even supposing that said maneuver was in fact an intrusion into the opposite lane. It being also shown that the accident happened at or near the point of the truck's approach to a curve. six (6) meters and seventy-eight (78) centimeters. measured from the center stripe to the corresponding side lines or outer edges of the road. if it always kept to said lane. and by only as small as a twenty-five centimeter wide space (less than ten inches). correctly lay thirty-six (36) centimeters farther to the left of the truck's side of said stripe. The appealed judgment. it may also be deduced that it (the jeep) was at the time travelling beyond its own lane and intruding into the lane of the truck by at least the same 11centimeter width of space. The finding that "the truck driven by defendant Paul Zacarias occupied the lane of the jeep when the collision occurred" is a loose one. the adjacent road shoulder was also virtually impassable. Not only was the truck's lane. it sloped gradually down to a three foot-deep ravine with a river below. as has already been explained. a witness for the private respondents. Calibo's two companions in the jeep and supposed eyewitnesses. Both drivers. The other investigator. refused to give any statements. as the Appellate Court would have it. . pumipilit. Furthermore. Agripino Roranes and Maximo Patos. ." 24 There is moreover more than a suggestion that Calibo had been drinking shortly before the accident." which is to say that it was travelling or being driven erratically at the time. 22 The evidence not only acquits Zacarias of any negligence in the matter. Both vehicles were travelling at a speed of approximately thirty kilometers per hour. who had left said license in Davao City and had asked Zacarias to bring it back to him in Glan. Leonardo Baricuatro." (loosely translated. also testified that eyewitnesses to the accident had remarked on the jeep's "zigzagging. it is only necessary to recall the summary made in the syllabus of this Court's decision that: . there are also quite a few significant indicators that it was rather Engineer Calibo's negligence that was the proximate cause of the accident. but he insisted. incorrectly demarcated as it was. "He was advised not to drive. The decision of the Trial Court adverts to further testimony of Esparcia to the effect that three of Calibo's companions at the beach party he was driving home from when the collision occurred. had sustained injuries as a result of the collision. had remarked: "Sabi na huag nang mag drive . had said that there had been a drinking spree at the party and. the physical facts. the truck to swerve and leave him a clear path. together with Patos. And they have not seen fit to deny or impugn petitioners' imputation that they also admitted the truck had been brought to a stop while the jeep was still thirty meters away. according to the traffic accident report. however. Smith. having left ahead of him went to the scene when they heard about the accident. either expressly found by the Intermediate Appellate Court or which may be deemed conceded for lack of any dispute. either of which he had sufficient time to do while running at a speed of only thirty kilometers per hour. Reference has already been made to the finding of the Trial Court that while Zacarias readily submitted to interrogation and gave a detailed statement to the police investigators immediately after the accident. 26 The private respondents have admitted that the truck was already at a full stop when the jeep plowed into it.show his license by the investigators at the scene of the collision. by stopping in his turn or swerving his jeep away from the truck. Cotabato. Said license unexplainedly found its way into the record some two years later. Exhibit "J". ignoring these telltale indicia of negligence on the part of Calibo. 25 Even. Roranes who. would still absolve the latter of any actionable responsibility for the accident under the rule of the last clear chance. and assuming some antecedent negligence on the part of Zacarias in failing to keep within his designated lane. Zacarias had told Patrolman Dimaano at the scene of the collision and later confirmed in his written statement at the police headquarters 23 that the jeep had been "zigzagging. which should be familiar to every student of law. not merely rely on a supposed right to expect. . Of those facts. 27 From these facts the logical conclusion emerges that the driver of the jeep had what judicial doctrine has appropriately called the last clear chance to avoid the accident. had had a full view of each other's vehicle from a distance of one hundred fifty meters. In those circumstances. while still at that distance of thirty meters from the truck. supra. his duty was to seize that opportunity of avoidance. waived his right to file a criminal case against Zacarias.") It was Calibo whose driver's license could not be found on his person at the scene of the accident. referring to Calibo. Patrolman Jose Esparcia. which involved a similar state of facts. he had first inadvertently produced the license of a fellow driver. and was reported by his companions in the jeep as having been lost with his wallet at said scene. who. The doctrine of the last clear chance provides as valid and complete a defense to accident liability today as it did when invoked and applied in the 1918 case of Picart vs. as the Appellate Court found. with petitioner George Lim. 29 In the opinion of this Court and after a careful review of the record. 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. that the Intermediate Appellate Court also seriously erred in holding the petitioners Pablo S. and in such case the problem always is to discover which agent is immediately and directly responsible. It must be pointed out. however. . employer of petitioner Zacarias. . Agad and Felix Lim solidarily liable for the damages awarded in its appealed decision. however. but only the most obvious — that said findings directly conflict with those of the Trial Court — will suffice. jumped around and was killed by the passing car. much less to influence. Compassion for the plight of those whom an accident has robbed of the love and support of a husband and father is an entirely natural and understandable sentiment. an inquiry into whether or not the evidence supports the latter's additional defense of due diligence in the selection and supervision of said driver is no longer necessary and wig not be undertaken. without reference to the prior negligence of the other party. In conclusion. not only the certificate of registration issued by the Bureau of Domestic Trade identifying Glan People's Lumber and Hardware as a business name registered by George Lim. It will be noted that the negligent acts of the two parties were not contemporaneous. the more remote factor in the case": It goes without saying that the plaintiff himself was not free from fault. Many of those exceptions may be cited to support the review here undertaken. It should not. held that that of the defendant was the immediate and determining cause of the accident and that of the plaintiff ". it must also be stated that there is no doubt of this Court's power to review the assailed decision of the Intermediate Appellate Court under the authority of precedents recognizing exceptions to the familiar rule binding it to observe and respect the latter's findings of fact. a just verdict in a suit at law. 28 but also unimpugned allegations into the petitioners' answer to the complaint that Pablo S. was in no way connected with the business. then a child of only eight (8) years. since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. He sued the defendant Smith for the value of his animal. for all that appears. . . the evidence singularly fails to support the findings of the Intermediate Appellate Court which. however guided his car toward the plaintiff without diminution of speed until he was only few feet away. while finding that there was negligence on the part of both parties. seem to have been prompted rather by sympathy for the heirs of the deceased Engineer Calibo than by an objective appraisal of the proofs and a correct application of the law to the established facts. the defendant was also negligent. of Glan People's Lumber and Hardware. Since said ruling clearly applies to exonerate petitioner Zacarias and his employer (and co-petitioner) George Lim. The driver of the automobile. be allowed to stand in the way of. . . This manifestly disregarded. Agad was only an employee of George Lim and that Felix Lim. But as we have already stated. Seeing an automobile ahead he improperly pulled his horse over to the railing on the right. as alleged owners. medical expenses and damage to his apparel and obtained judgment from this Court which. The fact is that there is such evidence in the record which has not been controverted. .(t)he plaintiff was riding a pony on a bridge. Plaintiff Picart was thrown off his horse and suffered contusions which required several days of medical attention. for he was guilty of antecedent negligence in planting himself on the wrong side of the road. He then turned to the right but passed so closely to the horse that the latter being frightened. ARACELI KOH MCKEE. and granted the private respondents' counterclaim for moral damages. and the complaint against herein petitioners in Civil Case No. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.A. SO ORDERED. LETICIA KOH. INTERMEDIATE APPELLATE COURT. CV Nos. JULIETA KOH TUQUERO. Kim Koh McKee and Loida .R.-G. ANTONIO KOH and ELIZABETH KOH TURLA. 69040-41. vs.. The said civil cases for damages based on quasi-delict were filed as a result of a vehicular accident which led to the deaths of Jose Koh. Jaime Tayag and Rosalinda Manalo.R. 4478 of the then Court of First Instance (now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh. L-68103 July 16. Leticia Koh. 1992 GEORGE MCKEE and ARACELI KOH MCKEE. promulgated on 3 April 1984. DAVIDE. INTERMEDIATE APPELLATE COURT. No pronouncement as to costs. Jaime Tayag and Rosalinda Manalo. G. J. vs. respondents. JAIME TAYAG and ROSALINDA MANALO." respectively. JAIME TAYAG and ROSALINDA MANALO. Julieta Koh Tuquero. No. 1992 CARMEN DAYRIT KOH. petitioners. Branch IV. attorney's fees and litigation expenses. the appealed judgment of the Intermediate Appellate Court is hereby REVERSED. respondents. which set aside its previous Decision dated 29 November 1983 reversing the Decision of the trial court which dismissed petitioners' complaints in Civil Case No. is DISMISSED. 3283 of the Court of First Instance of Bohol. 4477 and Civil Case No." and "George McKee and Araceli Koh McKee vs. petitioners. L-68102 July 16. Araceli Koh McKee and Elizabeth Koh Turla vs.: Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C. JR.R.WHEREFORE. No. Kim was seated on the lap of Loida Bondoc who was at the front passenger's seat of the car while Araceli and her two (2) sons were seated at the car's back seat. In the sketch 1 prepared by the investigating officers. and was bound for Manila.R. The antecedent facts are not disputed. private respondents are the owners of the cargo truck which figured in the mishap. Immediately before the collision. were the plaintiffs in Civil Case No. Kim Koh McKee and Loida Bondoc. Before he could do so. in Pulong Pulo Bridge along MacArthur Highway. the bridge is described to be sixty (60) "footsteps" long and fourteen (14) "footsteps" wide — seven (7) "footsteps" from the center line to the inner edge of the side walk on both sides. Christopher Koh McKee and Araceli Koh McKee.000 kilos. a headon-collision took place between an International cargo truck. consequently. 4477. the mother of minors George. on the other hand. was on its way to Angeles City from San Fernando. while its left front portion was touching the center line of the bridge. between Angeles City and San Fernando. The Ford Escort. Jose Koh blew the horn of the car. RF912-T Philippines '76 owned by private respondents.Bondoc and caused physical injuries to George Koh McKee. S2-850 Pampanga '76 driven by Jose Koh. Christopher and Kim Koh McKee. Petitioners in G. Skid marks produced by the right front tire of the truck measured nine (9) . is made of concrete with soft shoulders and concrete railings on both sides about three (3) feet high. with the smashed front side of the car resting on its front bumper. 4478. was traveling southward from Angeles City to San Fernando Pampanga. Upon the other hand. Loida Bondoc. which was the opposite lane. on the other hand. The collision occurred in the lane of the truck. Christopher Koh McKee and petitioner Araceli Koh McKee. Between nine and ten o'clock in the morning of 8 January 1977. Pampanga. which was loaded with two hundred (200) cavans of rice weighing about 10. a team of police officers was forthwith dispatched to conduct an on the spot investigation. The boys were moving back and forth. were the plaintiffs in Civil Case No. No. all passengers of the Ford Escort. the cargo truck. Christopher Koh McKee and the deceased Kim Koh McKee. swerved to the left and entered the lane of the truck. 68103. and physical injuries to George Koh McKee. respectively. while petitioner Carmen Dayrit Koh and her co-petitioners in G. was the baby sitter of one and a half year old Kim. The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two (2) "footsteps" from the edge of the right sidewalk. At the time of the collision. his car collided with the truck. who are the wife and children. he then switched on the headlights of the car. with Plate No. of the late Jose Koh. and driven by Ruben Galang. on the said bridge.R. which spans a dry brook. Loadstar. Jose Koh was the father of petitioner Araceli Koh McKee. and a Ford Escort car bearing Plate No. The collision resulted in the deaths of Jose Koh. When the northbound car was about (10) meters away from the southern approach of the bridge. a certain Ruben Galang was the driver of the truck at the time of the accident. two (2) boys suddenly darted from the right side of the road and into the lane of the car. The truck was about sixteen (16) "footsteps" away from the northern end of the bridge while the car was about thirty-six (36) "footsteps" from the opposite end. parents of the minors George Koh McKee. unsure of whether to cross all the way to the other side or turn back. 2 Pulong Pulo Bridge. applied the brakes and thereafter attempted to return to his lane. The incident was immediately reported to the police station in Angeles City. 68102. No. P60.00 as exemplary damages and the following medical expenses: P3.000. P3. It was docketed as Criminal Case No. P50. 4 On 1 March 1977.00 as exemplary damages. however.00 as moral damages. Ruben Galang. P10.R. respectively. No.00 as moral damages. the truck driver. with costs.00. P20. . P5. P100. which was on the right lane going towards Manila and at a moderate speed observing all traffic rules and regulations applicable under the circumstances then prevailing. No. 3751 and was raffled to Branch V of the court.000. Jr. 4477. Galang admitted that he was traveling at thirty (30) miles (48 kilometers) per hour. .00 for the hospitalization expenses up to the date of the filing of the complaint.500.00 for litigation expenses. To expedite the proceedings.00 for the tomb.000.000. two (2) cases." The two (2) rear tires of the truck. Francis Medical Center.000.000. the same Branch where Civil Case No. P6.000. 4478 was assigned.00 as moral damages. in connection with the serious physical injuries suffered.00 payable to the St..00 as actual and liquidated damages.000.00 as exemplary damages and P2. Petitioners filed their Answers to the Counterclaims in both cases.400 payable to the Medical Center.00 for burial expenses.00 as exemplary damages.00 as attorney's fees and P5.000. (b) in the case of Araceli Koh McKee. P150. herein petitioners in G. prayed for the award of P15.000. Thereupon. P10.00 as death benefit. .000.00 as attorney's fees. They also sought an award of attorney's fees amounting to 25% of the total award plus traveling and hotel expenses. the plaintiffs in Civil Case No. they also filed a motion to consolidate the case with Civil Case No. and (c) with respect to George McKee.000.500.000. the sum of P50.000.00 for the burial lot and P9. private respondents first filed a motion to dismiss on grounds of pendency of another action (Civil Case No.00 as moral damages. 4478 filed on 27 March 1978 a motion to adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751. 10 which Judge Capulong granted in the Order of 5 September 1978. 68102 prayed for the following: (a) in connection with the death of Kim McKee. which private respondents opposed and which the court denied.000.00 for the tomb.650."footsteps". 5 In their Answer with Counterclaim in Civil Case No. P5. he then directed that Civil Case No. 7 Both motions were denied by Branch V. Jr.00 as indemnity for the death of Jose Koh. P3.000. P3. produced no skid marks.000. plus attorney's fees.000. 4478.00 for the cemetery lot.650." in their counterclaim. in connection with the serious physical injuries suffered.00 as miscellaneous damages. 4477 pending before Branch III of the same court. petitioners in G.00 as moral damages and P30.000. In the first.00 for loss of earnings. as counterclaim. private respondents asserted that it was the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang and. 4478 be consolidated with Civil Case No. In his statement to the investigating police officers immediately after the accident. then presided over by Judge Ignacio Capulong.R.000. private respondents filed their Answer with Counter-claim 8 wherein they alleged that Jose Koh was the person "at fault having approached the lane of the truck driven by Ruben Galang. 4477) and failure to implead an indispensable party. 4478. Civil Case No. . and miscellaneous expenses amounting to P5. were filed on 31 January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch III and Branch V of the said court. which was opposed by the plaintiffs. 9 Petitioners subsequently moved to reconsider the order denying the motion for consolidation.175. an Information charging Ruben Galang with the crime of "Reckless Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial court. P20. the sum of P100.000. and the sums of P10.00 payable to the Clark Air Base Hospital.00 for funeral services. P20. while skid marks produced by the left front tire measured five (5) "footsteps.000.000.00 as expenses of litigation. the sum of P12. 4477 and No.150.00 as business losses. 3 In the second case. 6 In Civil Case No. they prayed for an award of damages as may be determined by the court after due hearing. P12. P3. 68103 prayed for the award of P12. 4477 in Branch III of the court then presided over by Judge Mario Castañeda. P3. As a consequence of the collision. Left then with Branch V of the trial court was Criminal Case No. 3751. In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuñag, Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and offered several documentary exhibits. Upon the other hand, private respondents presented as witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12 In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc. Fernando Nuñag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco, and offered several documentary exhibits. 13 Upon the other hand, the defense presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered documentary exhibits. 14 On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the aforesaid criminal case. The dispositive portion of the decision reads as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben Galang guilty beyond reasonable doubt of the crime charged in the information and after applying the provisions of Article 365 of the Revised Penal Code and indeterminate sentence law, this Court, imposes upon said accused Ruben Galang the penalty of six (6) months of arresto mayor as minimum to two (2) years, four (4) months and one (1) day of prision correccional as maximum; the accused is further sentenced to pay and indemnify the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for her death; to reimburse the heirs of Loida Bondoc the amount of P2,000.00 representing the funeral expenses; to pay the heirs of Loida Bondoc the amount of P20,000.00 representing her loss of income; to indemnify and pay the heirs of the deceased Jose Koh the value of the car in the amount of P53,910.95, and to pay the costs. 15 The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for petitioners filed with Branch III of the court — where the two (2) civil cases were pending — a manifestation to that effect and attached thereto a copy of the decision. 16 Upon the other hand, Judge Mario Castañeda, Jr. dismissed the two (2) civil cases on 12 November 1980 and awarded the private respondents moral damages, exemplary damages and attorney's fees. 17 The dispositive portion of the said decision reads as follows: WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and against the plaintiffs, these cases are hereby ordered DISMISSED with costs against the plaintiffs. The defendants had proven their counter-claim, thru evidences (sic) presented and unrebutted. Hence, they are hereby awarded moral and exemplary damages in the amount of P100,000.00 plus attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The actual damages claimed for (sic) by the defendants is (sic) hereby dismissing for lack of proof to that effect (sic). 18 A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was received on 2 December 1980. 19 Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to the appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases Division. On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-CR affirming the conviction of Galang. 21 The dispositive portion of the decision reads: DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol. A motion for reconsideration of the decision was denied by the respondent Court in its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this Court; said petition was subsequently denied. A motion for its reconsideration was denied with finality in the Resolution of 20 April 1983. 24 On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court, promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive portion of which reads: WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is rendered, ordering defendants-appellees to pay plaintiffs-appellants as follows: For the death of Jose Koh: P 50,000.00 as moral damages P 12,000.00 as death indemnity P 16,000.00 for the lot and tomb (Exhs. U and U-1) P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979) P 950.00 for the casket (Exh. M) P 375.00 for the vault services (Exhs. V and V-1) For the death of Kim Koh McKee: P 50,000.00 as moral damages P 12,000.00 as death indemnity P 1,000.00 for the purchase of the burial lot (Exh. M) P 950.00 for funeral services (Exh. M-1) P 375.00 for vault services (Exhs. V and V-1) For the physical injuries suffered by George Koh McKee: P 25,000.00 as moral damages P 672.00 for Clark Field Hospital (Exh. E) P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and D-2) P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1) For the physical injuries suffered by Araceli Koh McKee: P 25,000.00 as moral damages P 1,055.00 paid to St. Francis Medical Center (Exhs. G and G-1) P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3) P 428.00 to Carmelite General Hospital (Exh. F) P 114.20 to Muñoz Clinic (Exh. MM) For the physical injuries suffered by Christopher Koh McKee: P 10,000.00 as moral damages P 1,231.10 to St. Francis Medical Center (Exhs. L and L1) P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1) In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another P10,000.00; as counsel (sic) fees in Civil Case No. 4478. No pronouncement as to costs. SO ORDERED. 26 The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's inattentiveness or reckless imprudence which caused the accident. The appellate court further said that the law presumes negligence on the part of the defendants (private respondents), as employers of Galang, in the selection and supervision of the latter; it was further asserted that these defendants did not allege in their Answers the defense of having exercised the diligence of a good father of a family in selecting and supervising the said employee. 27 This conclusion of reckless imprudence is based on the following findings of fact: In the face of these diametrically opposed judicial positions, the determinative issue in this appeal is posited in the fourth assigned error as follows: IV THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT. Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus: Q What happened after that, as you approached the bridge? A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to sir. 1977). we could have got (sic) back to our right lane on side (sic) of the highway. they do not wish to be identified with the person who was at fault.avoid hitting the two (2) boys. We noticed the truck. 30-31. to slow down to give us the right of way to come back to our right lane. sir. because. 33-34 July 22. experience has shown that in the ordinary course of events people usually take the side of the person with whom they are associated at the time of the accident." how did you know (sic)? A It just kept on coming. Ruben Galang did not reduce its speed before the actual impact of collision (sic) as you narrated in this Exhibit "1. Thus an . sir. 1977) or (Exhibit "O" in these Civil Cases) (pp. he brought one of the injured passengers to the hospital. just (sic) continued on its way. We are not prepared to accord faith and credit to defendants' witnesses. the car tried to go back to the right lane since the truck is (sic) coming. Appellants' Brief). Q Did the truck slow down? A No. xxx xxx xxx Q Mrs. my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic). pp. declared that the truck stopped only when it had already collided with the car: xxx xxx xxx Tanhueco repeated the same testimony during the hearing in the criminal case: xxx xxx xxx Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the first to arrive at the scene of the accident. a passenger of the truck. or (Exhibit "O" in these Civil Cases). Q What happened after that? A After avoiding the two (2) boys. sir. as a general rule. 5-6. (tsn. how did you know that the truck driven by the herein accused. Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and circumstances: 1. (tsn. An impartial eye-witness to the mishap. who supposedly lived across the street. it did not. Eugenio Tanhueco. pp. July 22. Regarding Soliman. he switched on the headlights to warn the truck driver. Zenaida Soliman. and Roman Dayrit. If only he reduced his speed. As a matter of fact. Exhibit 2 is one of the exhibits not included in the record. Fernando L. it is not far-fetched to surmise that Galang's claim that he stopped was an eleventh-hour desperate attempt to exculpate himself from imprisonment and damages. In this light. but his phone had no dial tone. sir. 2. ATTY. 3 to 5. 1978). for clarification. as revealed in Galang's affidavit (Exh. The presence of skid marks show (sic) that the truck was speeding. Jan. Appellants' brief).R.s. the reasonable conclusion is that the . This contention of appellants was completely passed sub-silencio or was not refuted by appellees in their brief. 25. (p. According to the Table of Contents submitted by the court below. 1979). 00310-CR. SOTTO: Q Do I understand from your testimony that inspite of the fact that you admitted that the road is straight and you may be able to (sic) see 500-1000 meters away from you any vehicle.n. that it was about ten (10) meters away. Be this (sic) as it may. SOTTO: Q So. At ten (10) meters away. He did not go to the succor of the injured persons. you clarify and state under your oath that you have (sic) not noticed it before that ten (10) meters? (Tsn. Vivencio. according to plaintiffs (p. 19-20. 2. Galang's truck stopped because of the collision. Pfc. with the truck running at 30 miles per hour.. 3. Appellants' Brief) Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of the impact. 18. t. With respect to Dayrit. 5. it is well-nigh impossible to avoid a collision on a bridge. We can not help suspecting (sic) that he is an accommodation witness. The police investigator. stated that he found skid marks under the truck but there were not (sic) skid marks behind the truck (pp. Sept. Exhibit 2. does not include the claim that Galang stopped his truck at a safe distance from the car. Appellants' Brief). said Exhibit 2 was not submitted by defendants-appellees. 16. Galang divulged that he stopped after seeing the car about 10 meters away: ATTY. He said he wanted to call the police authorities about the mishap. 31. p. you first saw that car only about ten (10) meters away from you for the first time? xxx xxx xxx A I noticed it.imaginary bond is unconsciously created among the several persons within the same group (People vs. the trial court in the criminal case acted correctly in refusing to believe Dayrit. 1962). No. 25. CA-G. Nuñag. the statement of Galang. Nov. and not because he waited for Jose Koh to return to his proper lane. 3. Since the skid marks were found under the truck and none were found at the rear of the truck. Petitioners allege that respondent Court: I . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY REVERSED ITS DECISION BY MERELY BASING IT FROM (sic) A MERE "PRESUMPTION. as aforesaid. . 29 reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial court's judgment of 12 November 1980. IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE RECORDS. II . and in his futile endeavor to avoid the collision he abruptly stepped on his brakes but the smashup happened just the same. the claims of appellants were amply proven. FURTHER. . because at the time that he entered the bridge his attention was not riveted to the road in front of him. He proceeded to cross the bridge. A motion to reconsider this Resolution was denied by the respondent Court on 4 July 1984.skid marks under the truck were caused by the truck's front wheels when the trucks (sic) suddenly stopped seconds before the mishap in an endeavor to avoid the same. But. "IT CANNOT CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED. GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS. Galang saw the car at barely 10 meters away. . For the inattentiveness or reckless imprudence of Galang. Appellees did not allege such defense of having exercised the duties of a good father of a family in the selection and supervision of their employees in their answers. in its Resolution of 3 April 1984. PURELY BASED ON SPECULATIONS. 30 Hence. RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B. but the items must be reduced. and tried to stop when a collision was already inevitable. . CONJECTURES AND WITHOUT SURE FOUNDATION IN THE EVIDENCE. The inattentiveness or negligence of Galang was the proximate cause of the mishap. PETITION) ARE CLEARLY ERRONEOUS. On the question of damages. this petition. ." TOTALLY DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND CONFESSIONS. a very short distance to avoid a collision. They did not even adduce evidence that they did in fact have methods of selection and programs of supervision. he would have sighted the car earlier or at a very safe distance than (sic) 10 meters. WHO EXCLUSIVELY COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic). THEREFORE. If Galang's attention was on the highway. the law presumes negligence on the part of the defendants in the selection of their driver or in the supervision over him. 28 A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private respondents on the basis of which the respondent Court. . which were for the recovery of civil liability arising from a quasi-delict under Article 2176 in relation to Article 2180 of the Civil Code. EXCEEDED ITS JURISDICTION. COMMITTED ANOTHER GRIEVIOUS (sic) ERROR. COMMITTED GRAVE ABUSE OF DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE CASES. .III . COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES TO PETITIONERS WHICH IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE. THE LAW AND JURISPRUDENCE RELATIVE TO THE AWARD OF DAMAGES. EXCEEDED ITS JURISDICTION. Civil Cases Nos. this Court then gave due course to the instant petitions and required petitioners to file their Brief. IV . . 35 which they accordingly complied with. 4477 and 4478. Civil Case No. were filed ahead of Criminal Case No. . There is merit in the petition. . COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED BY EVIDENCE. 32 After the said Comment 33 was filed. . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A MISLEADING PRONOUNCEMENT. petitioners submitted a Reply 34 thereto. 4478 was eventually consolidated with . V . Before We take on the main task of dissecting the arguments and counter-arguments. . 31 In the Resolution of 12 September 1984. . We required private respondents to Comment on the petition. 3751. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND IN THE RECORDS. some observations on the procedural vicissitudes of these cases are in order. VI . WHEN IT HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFS-APPELLANTS (APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER. AND SAID AWARD IS NOT ALLOWED BY LAW AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT. SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE RESPONDENTS' DRIVER. IN THE RECORDS. VII . hopefully. cannot be consolidated with the criminal case. And. permitted in the same manner to be filed separately from the criminal case. thereby preventing the unseeming. The parties may have then believed. Alvendia. attain justice with the least expense to the parties litigants. and it may therefore be reasonably concluded that none was made. Let it be stressed. and shall require only a preponderance of evidence. however. in which case private respondents' liability could only be subsidiary pursuant to Article 103 of the Revised Penal Code. to be filed separately and to proceed independently even during the pendency of the latter case. perception and perhaps even prejudice. may proceed similarly regardless of the result of the criminal case. such as the civil cases in this case. whether acquittal or conviction. Such was what happened in this case.B." Be that as it may. The records do not indicate any attempt on the part of the parties. that an independent civil action. Rule 31 of the Rules of Court. Indeed. as more concretely stated in the concurring opinion of Justice J. De Veyra and PNB vs. Purisima. 38 the responsibility arising from fault or negligence in a quasi-delict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. when the law has allowed a civil case related to a criminal case. the judgment of conviction in the criminal case against Galang . 4477 for joint trial in Branch III of the trial court. This must be so because the offenses specified in Article 33 are of such a nature. In the absence of any collusion. 33. . the same facts differently. however. As We held in Dionisio vs. Indeed. and thereafter rendering conflicting decisions. that the judgment in Criminal Case No. the result of the criminal case. It should not. 40 this Court stated: . to the condition that no final judgment has been rendered in that criminal case. . or vice-versa. which seeks to avoid a multiplicity of suits. although already final by virtue of the denial by no less than this Court of his last attempt to set aside the respondent Court's affirmance of the verdict of conviction. according to their respective orientation. 3751 with the civil cases. 37 this Court held that the present provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an independent civil action for the recovery of civil liability authorized under Articles 32. authorized under Article 33 in relation to Article 2177 of the Civil Code. spectacle of two (2) judges appreciating." 39 In Salta vs.L. has no relevance or importance to this case. 34 or 2176 of the Civil Code with the criminal action subject. unlike other offenses not mentioned. would be entirely irrelevant to the civil action. . happen anymore. 36 would have easily sustained a consolidation. guard against oppression and abuse. . What remains to be the most important consideration as to why the decision in the criminal case should not be considered in this appeal is the fact that private respondents were not parties therein. . 3751 finding Galang guilty of reckless imprudence. such consolidation could have been farthest from their minds as Article 33 itself expressly provides that the "civil action shall proceed independently of the criminal prosecution. there was then no legal impediment against such consolidation. It would have been entirely different if the petitioners' cause of action was for damages arising from a delict. to consolidate Criminal Case No. if no ludicrous. that they may be made the subject of a separate civil action because of the distinct separability of their respective juridical cause or basis of action . and understandably so. In the recent case of Cojuangco vs. "in the case of independent civil actions under the new Civil Code. Section 1. Reyes. the intention is patent to make the court's disposition of the criminal case of no effect whatsoever on the separate civil case. clear congested dockets to simplify the work of the trial court. Court or Appeals.Civil Case No. It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33. or in short. prevent delays. since by then no specific provision of law or ruling of this Court expressly allowed such a consolidation. binding on this Court. are based on an misapprehension of facts and the inferences made therefrom are manifestly mistaken. 43The same is true where the appellate court's conclusions are grounded entirely on conjectures. conjectures and presumptions. . it did not. 41 And now to the merits of the petition. The resolution of factual issues is the function of the lower courts whose findings on these matters are received with respect and are. The respondent Court's decision of 29 November 1983 makes the correct findings of fact. in an appeal by certiorari under Rule 45 of the Revised Rules of Court. the appellate court immediately concluded that it was Jose Koh's negligence that was the immediate and proximate cause of the collision. the respondent Court held that the fact that the car improperly invaded the lane of the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the car. two (2) boys darted across the road from the right sidewalk into the lane of the car. We noticed the truck. as a rule. Findings of facts of the trial courts and the Court of Appeals may be set aside when such findings are not supported by the evidence or when the trial court failed to consider the material facts which would have led to a conclusion different from what was stated in its judgment.would have been conclusive in the civil cases for the subsidiary liability of the private respondents. as you approached the bridge? A When we were approaching the bridge. two (2) boys tried to cross the right lane on the right side of the highway going to San Fernando. however. speculations and surmises44 or where the conclusions of the lower courts are based on a misapprehension of facts. was negligent. he blew his horn and swerved to the left to avoid hitting the two (2) boys. he switched on the headlights to warn the truck driver. Therefore. 45 It is at once obvious to this Court that the instant case qualifies as one of the aforementioned exceptions as the findings and conclusions of the trial court and the respondent Court in its challenged resolution are not supported by the evidence. just (sic) continued on its way. It is readily apparent from the pleadings that the principal issue raised in this petition is whether or not respondent Court's findings in its challenged resolution are supported by evidence or are based on mere speculations. 42 The foregoing rule. My father. In the assailed resolution. On the basis of this presumed negligence. The principle is well-established that this Court is not a trier of facts. who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing. to slow down to give us the right of way to come back to our right lane. This is an unwarranted deduction as the evidence for the petitioners convincingly shows that the car swerved into the truck's lane because as it approached the southern end of the bridge. is not without exceptions. only questions of law may be raised. Q Did the truck slow down? A No sir. As testified to by petitioner Araceli Koh McKee: Q What happened after that. Jose Koh. would do. "(T)he failure to observe for the protection of the interests of another person. 35 Pac. sir. and vigilance which the circumstances justly demand. a greater peril — death or injury to the two (2) boys. Fourth Edition. . Where the danger is great. 813). Jose Koh's entry into the lane of the truck was necessary in order to avoid what was. Moreover. Such act can hardly be classified as negligent. Any reasonable and ordinary prudent man would have tried to avoid running over the two boys by swerving the car away from where they were even if this would mean entering the opposite lane. Fifth Edition. . a high degree of care is necessary. whereby such other person suffers injury. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamiliasof the Roman law. under what is known as the emergency rule. or as Judge Cooley defines it. (W)e held: 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. it is manifest that no negligence could be imputed to Jose Koh. . the car tried to go back to the right lane since the truck is (sic) coming. 48 We held: . Avoiding such immediate peril would be the natural course to take particularly where the vehicle in the opposite lane would be several meters away and could very well slow down. 265) In Picart vs." (Cooley on Torts. and the failure to observe it is a want of ordinary care under the circumstances. or the doing of something which a prudent and reasonable man would not do (Black's Law Dictionary. guided by those considerations which ordinarily regulate the conduct of human affairs. Smith (37 Phil 809. 3. Manila Railroad Company. precaution. In Corliss vs. that degree of care. not an absolute. Intermediate Appellate Court. (citing Ahern v. "one who suddenly finds . . 46 Her credibility and testimony remained intact even during cross examination. vol. Negligence is want of the care required by the circumstances. the test of negligence and the facts obtaining in this case. 47 thus: . . . in his mind at that time. Oregon Telephone Co.. . Negligence is the omission to do something which a reasonable man. my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic). Negligence was defined and described by this Court in Layugan vs. term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. then he is guilty of negligence. 549 (1894). decided more than seventy years ago but still a sound rule. It is a relative or comparative. move to the side of the road and give way to the oncoming car. 930). On the basis of the foregoing definition.Q What happened after that? A After avoiding the two (2) boys. which. the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted. and is required to act without time to consider the best means that may be adopted to avoid the impending danger. unless the emergency in which he finds himself is brought about by his own negligence. We cannot give credence to private respondents' claim that there was an error in the translation by the investigating officer of the truck driver's response in Pampango as to whether the speed cited was in kilometers per hour or miles per hour." 49 Considering the sudden intrusion of the two (2) boys into the lane of the car.himself in a place of danger. In any case. The entry of the car into the lane of the truck would not have resulted in the collision had the latter heeded the emergency signals given by the former to slow down and give the car an opportunity to go back into its proper lane. The truck driver's negligence was likewise duly established through the earlier quoted testimony of petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio Tanhueco. this presumption holds. The law presumes that official duty has been regularly performed. 51 Furthermore. if he fails to adopt what subsequently and upon reflection may appear to have been a better method. if at all negligent. either immediately or by setting other events in motion. 53 unless there is proof to the contrary. And more comprehensively. as an ordinary prudent and intelligent person. a person driving a vehicle is presumed negligent if at the time of the mishap. therefore.598 meters and the truck. unbroken by any efficient intervening cause.661 meters to spare. and without which the result would not have occurred. We find that Jose Koh adopted the best means possible in the given situation to avoid hitting them. Instead of slowing down and swerving to the far right of the road. he was violating any traffic regulation. all constituting a natural and continuous chain of events. it cannot be said that his negligence was the proximate cause of the collision. the proximate legal cause is that acting first and producing the injury. In the instant case. it is clear that he was not guilty of negligence. that cause. the negligent act of the truck driver. the bridge has a level sidewalk which could have partially accommodated the truck. an impartial eyewitness to the mishap. assuming. This would mean that both car and truck could pass side by side with a clearance of 3. the truck driver continued at full speed towards the car. . Proximate cause has been defined as: . which was the actual cause of the tragedy. The truck driver's negligence is apparent in the records. in width. which was the proper precautionary measure under the given circumstances. under such circumstances that the person responsible for the first event should. Applying the above test.286 meters. .50 meters wide while the car measures 1. private respondents' claim is based on mere conjecture. . Under Article 2185 of the Civil Code. He himself said that his truck was running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge 52 is only 30 kilometers per hour. was the initial act in the chain of events. produces the injury. The truck driver's negligence becomes more apparent in view of the fact that the road is 7. in natural and continuous sequence. is not guilty of negligence. although it may be said that the act of Jose Koh. each having a close causal connection with its immediate predecessor. have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. 2. arguendo that Jose Koh is negligent. 50 Applying the above definition. Any reasonable man finding himself in the given situation would have tried to avoid the car instead of meeting it head-on. it cannot be said that the same caused the eventual injuries and deaths because of the occurrence of a sufficient intervening event. 33-34. it was the truck driver's subsequent negligence in failing to take the proper measures and degree of care necessary to avoid the collision which was the proximate cause of the resulting accident. 1977) or (Exhibit. 30-31. Even if Jose Koh was indeed negligent. have avoided the consequences of the negligence of the injured party. 27. how was it moving? A It was moving 50 to 60 kilometers per hour. sir. 1979) xxx xxx xxx Q From the time you saw the truck to the time of the impact." The doctrine. (p. If only he reduced his speed. 55 Clearly. 31. Appellants' Brief) 54 while Eugenio Tanhueco testified thus: Q When you saw the truck. 56 In Bustamante vs. is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant. Q Immediately after you saw this truck. July 22. April 19. how did you know that the truck driven by the herein accused. sir. (tsn. Court of Appeals. the doctrine of last clear chance finds application here. 57 We held: The respondent court adopted the doctrine of "last clear chance. (tsn. (tsn. do you know what happened? A I saw the truck and a car collided (sic). stated broadly. will you tell us if the said truck ever stopped? A I saw it stopped (sic) when it has (sic) already collided with the car and it was already motionless. 1979. the person who had the last clear chance to avoid the mishap is considered in law solely responsible for the consequences thereof. by the exercise of reasonable care and prudence. Emphasis Supplied). by exercising reasonable care and prudence. Appellants' Brief). we could have got (sic) back to our right lane on side (sic) of the highway. might have avoided injurious consequences to the plaintiff notwithstanding the . 28. therefore. sir. sir." how did you know? A It just kept on coming. April 19. "O" in these Civil Cases) (pp.Araceli Koh McKee testified further. and I went to the place to help the victims. Last clear chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant might. pp. In such cases. thus: xxx xxx xxx Q Mrs. Ruben Galang did not reduce its speed before the actual impact of collision as you narrated in this Exhibit "1. or even to a plaintiff who has been grossly negligent in placing himself in peril. 59 Their only possible defense is that they exercised all the diligence of a good father of a family to prevent the damage.R. or according to some authorities. 397 (1958). the private respondents are. 58 We ruled: The doctrine of last clear chance was defined by this Court in the case of Ong v. G. de Calibo. and an injury results. No. Intermediate Appellate Court. 1986. Cecilia Alferez Vda. that it was the truck driver's negligence in failing to exert ordinary care to avoid the collision which was.plaintiff's negligence. Torts and Damages. 18. the last clear chance doctrine is invoked for the purpose of making a defendant liable to a plaintiff who was guilty of prior or antecedent negligence.. 104 Phil. notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. Baesa. vs. In Pantranco North Express. if he. (Sangco. The presumption that they are negligent flows from the negligence of their employee.. the proximate cause of the collision. 2d.. thus making the defendant liable to the plaintiff [Picart v. in law. vs. 1989]. 165). The subsequent negligence of the defendant in failing to exercise ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident which intervenes between the accident and the more remote negligence of the plaintiff. Jur. That presumption. May. 70493. et al. the doctrine of last clear chance means that even though a person's own acts may have placed him in a position of peril. is made liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff [Picart v. Inc. 798-799). pp. In other words. by exercising reasonable care and prudence. however. who had the last fair chance to avoid the impending harm and failed to do so. had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. As the doctrine is usually stated. the injured person is entitled to recovery (sic). might have avoided injurious consequences to claimant notwithstanding his negligence. aware of the plaintiff's peril. Smith. Smith. As employers of the truck driver. supra]. p. means that the negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that the latter. 809 (1918). et al. as We now rule. The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but the defendant. The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff. Glan People's Lumber and Hardware. a person who has the last clear chance or opportunity of avoiding an accident. in this wise: The doctrine of the last clear chance simply. 4th Ed. should have been aware of it in the reasonable exercise of due care. not juris et de jure. Article 2180 reads as follows: . Applying the foregoing doctrine. it is not difficult to rule. directly and primarily liable for the resulting damages. although it may also be raised as a defense to defeat claim (sic) for damages.. 37 Phil. is only juris tantum. Generally. under Article 2180 of the Civil Code. Metropolitan Water District. 4477 and 4478 did not interpose this defense. Its assailed Resolution of 3 April 1984 finds no sufficient legal and factual moorings. even though the former are not engaged in any business or industry. subject to the modification that the indemnity for death is increased from P12.00. The respondent Court was then correct in its Decision of 29 November 1983 in reversing the decision of the trial court which dismissed Civil Cases Nos. 60The answers of the private respondents in Civil Cases Nos. be WHEREFORE. In the light of recent decisions of this Court. The assailed Resolution of the respondent Court of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C. xxx xxx xxx 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. 69040-41 is REINSTATED.The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions.00 each for the death of Jose Koh and Kim Koh McKee.000.A. Neither did they attempt to prove it. SO ORDERED. the instant petition is GRANTED.000.000. xxx xxx xxx Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks. Costs against private respondents. .000. however. 61 the indemnity for death must. but also for those of persons for whom one is responsible. increased from P12. CV Nos. The diligence of a good father referred to means the diligence in the selection and supervision of employees.00 to P50. 4477 and 4478.R.00 to P50.-G. . National Capital Judicial Region. HERMOSISIMA. 1991 1 rendered by public respondent Court of Appeals which affirmed the Decision dated November 15. respondents. THE COURT OF APPEALS. 27288 entitled "Rommel's Marketing Corporation.979. now absorbed by Philippine Commercial and Industrial Bank. In the ordinary and usual course of banking operations. now absorbed by the Philippine Commercial International Bank. No. ROGELIO LACSON. vs.: Challenged in this petition for review is the Decision dated February 28. J. Current Account Nos. etc. Branch CLX (160). its President & General Manager. v. the sum of P304.74 representing various deposits it had made in its current account with said bank but which were not credited to its account. 1985 of the Regional Trial Court. JR.Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G. DIGNA DE LEON. et al. now absorbed by PHILIPPINE COMMERCIAL INTERNATIONAL BANK." The case stemmed from a complaint filed by the private respondent Rommel's Marketing Corporation (RMC for brevity)... 1997 PHILIPPINE BANK OF COMMERCE. RMC maintained two (2) separate current accounts. and were instead deposited to the account of one Bienvenido Cotas. represented by its President and General Manager Romeo Lipana. MARIA ANGELITA PASCUAL. 97626 March 14. Philippine Bank of Commerce. allegedly due to the gross and inexcusable negligence of the petitioner bank.. to recover from the former Philippine Bank of Commerce (PBC for brevity). current account deposits are accepted by the bank on the basis of deposit slips prepared and signed by the depositor. represented by ROMEO LIPANA. in Civil Case No. with the Pasig Branch of PBC in connection with its business of selling appliances.R. ROMMEL'S MARKETING CORP. 53-01980-3 and 53-01748-7. Pasig City. petitioners. now absorbed by defendant Philippine Commercial & Industrial Bank. and defendant Azucena Mabayad to pay the plaintiff. however. After validation. she made her company believe that all the while the amounts she deposited were being credited to its account when. RMC demanded from petitioner bank the return of its money. it had never been the practice of Romeo Lipana to check these monthly statements of account reposing complete trust and confidence on petitioner bank. Irene Yabut's modus operandi is far from complicated. Yabut and submitted to private respondent RMC together with the validated duplicate slips with the latter's name and account number. that these deposits. who indicates therein the current account number to which the deposit is to be credited. Irene Yabut. representing plaintiffs lost deposit.74 to his secretary. the name of the depositor or current account holder. as exemplary damages. Branch 160.979. During this period. In some instances. A sum equivalent to 25% of the total amount due.. an original and a duplicate. would. On the duplicate copy was written the account number of her husband but the name of the account holder was left blank. plus interest thereon at the legal rate from the filing of the complaint. judgment is hereby rendered sentencing defendant Philippine Bank of Commerce.A. 2. the lower portion is retained by the bank. The original showed the name of her husband as depositor and his current account number. petitioner Romeo Lipana claims to have entrusted RMC funds in the form of cash totalling P304. been regularly furnishing private respondent with monthly statements showing its current accounts balances. and without prejudice to any criminal action which may be instituted if found warranted: 1.979. the date of the deposit. i.or the latter's agent or representative. on all occasions. 53-01980-3. however. Unfortunately. C. PBC's teller. while the duplicate copy is returned or given to the depositor. Upon discovery of the loss of its funds. Yabut would then fill up the name of RMC in the space left blank in the duplicate copy and change the account number written thereon. and the amount of the deposit either in cash or checks. The deposit slip has an upper portion or stub. With the daily remittance records also prepared by Ms. and make it appear to be RMC's account number. From May 5. Azucena Mabayad. 1976. the deposit slips are prepared in duplicate by the depositor. The second copy was kept by Irene Yabut allegedly for record purposes. She would accomplish two (2) copies of the deposit slip. It turned out. 1975 to July 16.72. petitioner bank had. however. The sum of P304. however. were not credited to RMC's account but were instead deposited to Account No. validate and stamp both the original and the duplicate of these deposit slips retaining only the original copy despite the lack of information on the duplicate slip. as and for attorney's fees. but as its demand went unheeded. and . 3. which is that of her husband's. in truth and in fact. The trial court found petitioner bank negligent and ruled as follows: WHEREFORE. 53-01734-7 of Yabut's husband. which is detached and given to the depositor or his agent.e. This went on in a span of more than one (1) year without private respondent's knowledge. they were being deposited by her and credited by the petitioner bank in the account of Cotas. jointly and severally. A sum equivalent to 14% thereof. No. The original of the deposit slip is retained by the bank. for the purpose of depositing said funds in the current accounts of RMC with PBC. Bienvenido Cotas who likewise maintains an account with the same bank. it filed a collection suit before the Regional Trial Court of Pasig. 74. Irene Yabut. suffered by the private respondent RMC — petitioner bank's negligence or that of private respondent's? Petitioners submit that the proximate cause of the loss is the negligence of respondent RMC and Romeo Lipana in entrusting cash to a dishonest employee in the person of Ms.00 attorney's fees and costs in the lower court as well as in this Court. appellants are ordered to pay plaintiff.000. viz: WHEREFORE. to the tune of P304. Irene Yabut the opportunity to defraud RMC. Otherwise stated. 3 Hence. Bienvenido Cotas. Yabut to Ms. P25. the main issue posited before us is: What is the proximate cause of the loss. neither was the bank forewarned by RMC that Yabut will be depositing cash to its account.979. on the other hand. Azucena Mabayad. presented by Ms. the appellate court affirmed the foregoing decision with modifications. notwithstanding the fact that one of the deposit slips was not completely accomplished. Irene Yabut. this petition anchored on the following grounds: 1) The proximate cause of the loss is the negligence of respondent Rommel Marketing Corporation and Romeo Lipana in entrusting cash to a dishonest employee. Mabayad. it was RMC's negligence in entrusting cash to a dishonest employee which provided Ms. Costs. .74 representing plaintiff's lost deposit plus legal interest thereon from the filing of the complaint. maintains that the proximate cause of the loss was the negligent act of the bank. it was impossible for the bank to know that the money deposited by Ms. and not as records of deposits she made with the bank. Irene Yabut would be irregular.4. Defendants' counterclaim is hereby dismissed for lack of merit. Irene Yabut to cover up her fraudulent acts against respondent Rommel Marketing Corporation. also maintained an account with the bank. 5 According to them. 4) The duplicate copies of the deposit slips were used by Ms. 4 The petition has no merit. 2) The failure of respondent Rommel Marketing Corporation to crosscheck the bank's statements of account with its own records during the entire period of more than one (1) year is the proximate cause of the commission of subsequent frauds and misappropriation committed by Ms. it was impossible for the bank to know the fraudulent design of Yabut considering that her husband. in validating the deposit slips. both original and duplicate. 2 On appeal. the decision appealed from herein is MODIFIED in the sense that the awards of exemplary damages and attorney's fees specified therein are eliminated and instead. Thus. For the bank to inquire into the ownership of the cash deposited by Ms. 3) The duplicate copies of the deposit slips presented by respondent Rommel Marketing Corporation are falsified and are not proof that the amounts appearing thereon were deposited to respondent Rommel Marketing Corporation's account with the bank. Irene Yabut belong to RMC. thru its teller Ms. in addition to the principal sum of P304. Simply put. 6 Private respondent.979. is obliged to pay for the damage done. Pasig Branch. was negligent in validating. and the check number. Negligence is the omission to do something which a reasonable man. Azucena Mabayad. 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. original or duplicate. if there is no pre-existing contractual relation between the parties. the account number. blameworthy. could you tell us the procedure you follow? A: The client or depositor or the authorized representative prepares a deposit slip by filling up the deposit slip with the name. would do. Mabayad your important duties and functions? A: I accept current and savings deposits from depositors and encashments. Our law on quasi-delicts states: Art. if it is deposited for cash. 2176. then he is guilty of negligence. there is no dispute as to the damage suffered by the private respondent (plaintiff in the trial court) RMC in the amount of P304. yet still relevant. .We sustain the private respondent. There are three elements of a quasi-delict: (a) damages suffered by the plaintiff. or the doing of something which a prudent and reasonable man would do. Smith. the date. The seventy-eight (78)-year-old. 7 In the case at bench. Mabayad herself. 8 provides the test by which to determine the existence of negligence in a particular case which 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. and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff. It is in ascribing fault or negligence which caused the damage where the parties point to each other as the culprit. guided by those considerations which ordinarily regulate the conduct of human affairs. Such fault or negligence. Whoever by act or omission causes damage to another. Q: Now in the handling of current account deposits of bank clients. there being fault or negligence. will you please tell us Mrs. as testified to by Ms. as teller of PCIB. officially stamping and signing all the deposit slips prepared and presented by Ms. or negligent in the man of ordinary intelligence and prudence and determines liability by that. the cash breakdown. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law.979.74. or some other person for whose acts he must respond. Yabut. Applying the above test. (b) fault or negligence of the defendant. thus: Q: Now. it appears that the bank's teller. is called a quasi-delict and is governed by the provisions of this Chapter. case of Picart v. Ms. The law considers what would be reckless. the amount and then he signs the deposit slip. despite the glaring fact that the duplicate copy was not completely accomplished contrary to the self-imposed procedure of the bank with respect to the proper validation of deposit slips. this was not how bank teller Mabayad proceeded thus resulting in huge losses to the private respondent. Rather than readily validating the incomplete duplicate copy. Q: Now what do you do upon presentment of the deposit slip by the depositor or the depositor's authorized representative? A: We see to it that the deposit slip 9 is properly accomplished and then we count the money and then we tally it with the deposit slip sir. Mabayad failed to observe this very important procedure. Ms. 10 [Emphasis ours] Clearly. she should have proceeded more cautiously by being more probing as to the true reason why the name of the account holder in the duplicate slip was left blank while that in the original was filled up. Mrs. She should not have been so naive in accepting hook. is it with the deposit slip? A: The depositor's stub is connected with the deposit slip or the bank's copy. Q: And who prepares the deposit slip? A: The depositor or the authorized representative sir? Q: Where does the depositor's stub comes (sic) from Mrs. and you can detach the bank's copy from the depositor's stub by tearing it sir. Mabayad. Q: Now is the depositor's stub which you issued to your clients validated? A: Yes. Mabayad? A: The bank requires only one copy of the deposit although some of our clients prepare the deposit slip in duplicate. Unfortunately. what do you issue to the depositor to evidence the deposit made? A: We issue or we give to the clients the depositor's stub as a receipt of the deposit. Q: Now in accomplishing current account deposits from your clients. Mabayad on guard. .Q: Now. she would simply fill up the blank space later on. line and sinker the too shallow excuse of Ms. the upper portion is the depositor's stub and the lower portion is the bank's copy. Irene Yabut to the effect that since the duplicate copy was only for her personal record. The odd circumstance alone that such duplicate copy lacked one vital information — that of the name of the account holder — should have already put Ms. how many deposit slips do you normally require in accomplishing current account deposit. In a deposit slip. sir. The fact that the duplicate slip was not compulsorily required by the bank in accepting deposits should not relieve the petitioner bank of responsibility. 11 A "reasonable man of ordinary prudence" 12 would not have given credence to such explanation and would have insisted that the space left blank be filled up as a condition for validation. Romeo Bonifacio. to wit: . unbroken by any efficient intervening cause. policy and precedent. and not the latter's act of entrusting cash to a dishonest employee. . and inexcusable negligence in the appellant bank's supervision of its employees. to the effect that. Mabayad in negligently validating the incomplete duplicate copy of the deposit slip. 15 Vda. Q: It is only now that you are aware of that? A: Yes. and without which the result would not have occurred. Mabayad but also on the part of the bank itself in its lackadaisical selection and supervision of Ms. or after the lapse of more than seven (7) years counted from the period when the funds in question were deposited in plaintiff's accounts (May. Q: The teller validated the blank deposit slip? A: No it was not reported. Azucena Mabayad. which." In this case. 1983. This was exemplified in the testimony of Mr. Undoubtedly. . which was the proximate cause of the loss suffered by the private respondent. is the pronouncement made by the respondent appellate court. he never came to know that blank deposit slips were validated in total disregard of the bank's validation procedures. once again. while he ordered the investigation of the incident. Mabayad. Medina. Apropos. wanton. common sense. 1976) that bank manager Bonifacio admittedly became aware of the practice of his teller Mabayad of validating blank deposit slips. produces the injury. in natural and continuous sequence. sir. is there any report similar to that? A: No. viz: Q: Did he ever tell you that one of your cashiers affixed the stamp mark of the bank on the deposit slips and they validated the same with the machine. de Bataclan v. 14 It was this negligence of Ms. coupled by the negligence of the petitioner bank in the selection and supervision of its bank teller. this is gross.Negligence here lies not only on the part of Ms. Proximate cause is determined on the facts of each case upon mixed considerations of logic. Court of Appeals. as insisted by the petitioners. it was not the cashier but the teller. Irene Yabut would not have the facility with which to perpetrate her fraudulent scheme with impunity. 16 reiterated in the case of Bank of the Phil. . Ms. the fact that those deposit slips were unfilled up. then Manager of the Pasig Branch of the petitioner bank and now its Vice-President. 1975 to July. public respondent Court of Appeals aptly observed: xxx xxx xxx It was in fact only when he testified in this case in February. Q: You did not know that any one in the bank tellers or cashiers validated the blank deposit slip? A: I am not aware of that. Islands v. 13 Prescinding from the above. 17 defines proximate cause as "that cause. absent the act of Ms. the degree of diligence required is more than that of a good father of a family. (1104a) In the case of banks. At this juncture. as advanced by the petitioner. under the doctrine of "last clear chance" (also referred to. such as the failure to duly credit him his deposits as soon as . When negligence shows bad faith. This has to be done if the account is to reflect at any given time the amount of money the depositor can dispose as he sees fit. thru its teller. . 18 Furthermore. and the failure of plaintiff to discover the same soon enough by failing to scrutinize the monthly statements of account being sent to it by appellant bank could not have prevented the fraud and misappropriation which Irene Yabut had already completed when she deposited plaintiff's money to the account of her husband instead of to the latter's accounts. in essence. The bank must record every single transaction accurately. or bar a defense against liability sought by another. The latter's negligence was thus the proximate. the provisions of articles 1171 and 2201. the depositor expects the bank to treat his account with the utmost fidelity. had it not been for bank teller Mabayad's aforesaid gross and reckless negligence. or when it is impossible to determine whose fault or negligence should be attributed to the incident. had the last clear opportunity to avert the injury incurred by its client. Considering the fiduciary nature of their relationship with their depositors. If the law or contract does not state the diligence which is to be observed in the performance. 1173. assuming that private respondent RMC was negligent in entrusting cash to a dishonest employee. . whether such account consists only of a few hundred pesos or of millions.. could have avoided the impending harm by the exercise of due diligence. 22 in every case. 19 Stated differently. confident that the bank will deliver it as and to whomever he directs. and then make plaintiff believe that it was in the latter's accounts wherein she had deposited them. the one who had the last clear opportunity to avoid the impending harm and failed to do so is chargeable with the consequences thereof. The New Civil Code provides: Art. Court of Appeals. the rule would also mean that an antecedent negligence of a person does not preclude the recovery of damages for the supervening negligence of. if the latter. A blunder on the part of the bank. immediate and efficient cause that brought about the loss claimed by plaintiff in this case. who had thelast fair chance. . states that where both parties are negligent. 20 Here. shall apply. Even if Yabut had the fraudulent intention to misappropriate the funds entrusted to her by plaintiff. paragraph 2. This doctrine. simply by faithfully observing their self-imposed validation procedure. it is worth to discuss the degree of diligence ought to be exercised by banks in dealing with their clients. at times as "supervening negligence" or as "discovered peril"). Inc. banks are duty bound to treat the accounts of their clients with the highest degree of care. she would not have been able to deposit those funds in her husband's current account. down to the last centavo. The 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 persons. 21 As elucidated in Simex International (Manila). however. v. of the time and of the place. that which is expected of a good father of a family shall be required. and as promptly as possible. petitioner bank was indeed the culpable party. but the negligent act of one is appreciably later in time than that of the other. thus providing the latter with the opportunity to defraud the company. yet it cannot be denied that the petitioner bank. Had it done so. We do not agree. the company would have been alerted to the series of frauds being committed against RMC by its secretary. But if his negligence was only contributory. he cannot recover damages. The point is that as a business affected with public interest and because of the nature of its functions. can cause the depositor not a little embarrassment if not financial loss and perhaps even civil and criminal litigation. 40% of the damage awarded by the respondent appellate court. Private respondent shall have recourse against Ms. always having in mind the fiduciary nature of their relationship. it is apparent that the petitioner bank was remiss in that duty and violated that relationship. the immediate and proximate cause of the injury being the defendant's lack of due care. The foregoing notwithstanding. to wit: . Irene Yabut. indeed. Ms.they are made. . This omission by RMC amounts to contributory negligence which shall mitigate the damages that may be awarded to the private respondent 23 under Article 2179 of the New Civil Code. particularly Romeo Lipana. the latter would have discovered the loss early on. In all other respects. Azucena Mabayad the amount they would pay the private respondent. The award of attorney's fees shall be borne exclusively by the petitioners. private respondent was likewise negligent in not checking its monthly statements of account. . Irene Yabut. Thus. Considering. we believe that the demands of substantial justice are satisfied by allocating the damage on a 60-40 ratio. Petitioners may recover from Ms. When the plaintiff's own negligence was the immediate and proximate cause of his injury. it cannot be denied that. except the award of P25. the plaintiff may recover damages. common human experience dictates that the same would not have been possible without any form of collusion between Ms. shall be borne by private respondent RMC. the bank is under obligation to treat the accounts of its depositors with meticulous care. only the balance of 60% needs to be paid by the petitioners. Yabut and bank teller Mabayad.00 attorney's fees. In view of this. In the case before us. Thus. the loss would not have occurred. WHEREFORE. such cannot be used by the petitioners to escape liability. Mabayad was negligent in the performance of her duties as bank teller nonetheless. the petitioners are entitled to claim reimbursement from her for whatever they shall be ordered to pay in this case. but the courts shall mitigate the damages to be awarded.000. the decision of the respondent Court of Appeals is modified by reducing the amount of actual damages private respondent is entitled to by 40%. While it is true that had private respondent checked the monthly statements of account sent by the petitioner bank to RMC. . Irene Yabut. This omission on the part of the private respondent does not change the fact that were it not for the wanton and reckless negligence of the petitioners' employee in validating the incomplete duplicate deposit slips presented by Ms. Petitioners nevertheless aver that the failure of respondent RMC to cross-check the bank's statements of account with its own records during the entire period of more than one (1) year is the proximate cause of the commission of subsequent frauds and misappropriation committed by Ms. that the fraud was committed in a span of more than one (1) year covering various deposits. The damage would definitely not have ballooned to such an amount if only RMC. the appellate court's decision is AFFIRMED. had exercised even a little vigilance in their financial affairs. however. Irene Yabut" (Decision. The deposit slip was prepared and signed by the depositor or his representative. RMC's own employee. it indicted all the tellers of PCIB in the branch who were accused of conspiracy to defraud RMC of its current account deposits. p. Irene Yabut. PBC's deposit slip. the name of the depositor or current account . (See Annex B. Irene Yabut from liability when in fact she orchestrated the entire fraud on RMC. Both parts were detachable from each other." It seems that an innocent bank teller is being unduly burdened with what should fall on Ms..Proportionate costs. dissenting: I regret that I cannot join the majority in ruling that the proximate cause of the damage suffered by Rommel's Marketing Corporation (RMC) is mainly "the wanton and reckless negligence of the petitioner's employee in validating the incomplete duplicate deposit slips presented by Ms. This rules out the possibility that there may have been some form of collusion between Yabut and bank teller Mabayad. see also Rollo pp. Bellosillo. 58 to 59). JJ. Mabayad was just unfortunate that private respondent's documentary evidence showed that she was the attending teller in the bulk of Yabut's transactions with the bank. aside from the fact that she does not appear to have been impleaded even as a party defendant in any civil case for damages. I find it difficult to agree with the ruling that "petitioners are entitled to claim reimbursement from her (the bank teller) for whatever they shall be ordered to pay in this case. Going back to Yabut's modus operandi. her employer? To set the record straight. Even private respondent RMC. Rollo p. it is not completely accurate to state that from 5 May 1975 to 16 July 1976.. "their negligence cannot but be gross. Moreover. Why is RMC insulating Ms. had two parts. the records are silent on whether RMC had ever filed any criminal case against Ms. SO ORDERED. Vitug and Kapunan. 15)." (Rollo. it is not disputed that each time Yabut would transact business with PBC's tellers. Miss Irene Yabut had transacted with PCIB (then PBC) through only one teller in the person of Azucena Mabayad. Separate Opinions PADILLA. who indicated therein the current account number to which the deposit was to be credited. J. 55. p. she would accomplish two (2) copies of the current account deposit slip. Irene Yabut. In fact. The upper part was called the depositor's stub and the lower part was called the bank copy. who should have been charged with estafa or estafa through falsification of private document. concur. 22 and 47). when RMC filed a complaint for estafa before the Office of the Provincial Fiscal of Rizal. maintains that "when the petitioner's tellers" allowed Irene Yabut to carry out her modus operandi undetected over a period of one year. in its Comment. Interestingly. as issued in 1975. holder. . In the earlier days before the age of full computerization. The teller. when there is a clear evidence of tampering with any of the material entries in a deposit slip. the date of the deposit. not the validation of the deposit slip by the teller as the deposit slip was made out by Yabut in her husband's name and to his account. deposited the money of RMC in her husband's name and account number instead of that of RMC. Under the circumstances in this case. the bank tellers were absolutely unaware that a crime had already been consummated by Yabut when her transaction by her sole doing was posted in the ledger and validated by the teller in favor of her husband's account even if the funds deposited belonged to RMC. Even if the bank teller had required Yabut to completely fill up the duplicate deposit slip. the original deposit slip would nonetheless still be validated under the account of Yabut's husband. detached the validated depositor's stub on the original deposit slip and allowed Yabut to retain thewhole validated duplicate deposit slip that bore the same account number as the original deposit slip. p. It is then entirely left to speculation what Yabut would have done afterwards — like tampering both the account number and the account name on the stub of the original deposit slip and on the duplicate copy — in order to cover up her crime. it was only after the transaction was posted in the ledger that the teller proceeded to machine validate the deposit slip and then affix his signature or initial to serve as proof of the completed transaction. it was the criminal act of Yabut that directly caused damage to RMC. on the assumption that it would serve no other purpose but for a personal record to complement the original validated depositor's stub. In fine. but with the account name purposely left blank by Yabut. and superimposed RMC's account number. If it did. the genuineness and due execution of the document become an issue in resolving whether or not the transaction had been fair and regular and whether the ordinary course of business had been followed by the bank. therefore. the rightful owner of such deposited funds. Thus. Thus. the damage had already been done to RMC when Yabut deposited its funds in the name and account number of her husband with petitioner bank. her employer. to conclude that the legal or proximate cause of RMC's loss was when Yabut. its employee. and the amount of the deposit either in cash or in checks. when Yabut wrote the name of RMC on the blank account name on the validated duplicate copy of the deposit slip. It should be noted that the teller validated the depositor's stub in the upper portion and the bank copy on the lower portion on both the original and duplicate copies of the deposit slips presented by Yabut. there was no way for PBC's bank tellers to reasonably foresee that Yabut might or would use the duplicate deposit slip to cover up her crime. said act only served to cover-up the loss already caused by her to RMC. then the teller proceeded to verify whether the current account number matched with the current account name as written in the deposit slip. the usual bank procedure then was for the teller to count whether the cash deposit tallied with the amount written down by the depositor in the deposit slip. 137) Since Yabut deposited money in cash. In the first place. a bank normally maintained a ledger which served as a repository of accounts to which debits and credits resulting from transactions with the bank were posted from books of original entry. Precisely. tampered with its account number. (Rollo. however. It is logical. Stated otherwise. or after the deposit slip was validated by the teller in favor of Yabut's husband. In short. the act of validating the duplicate copy was not the proximate cause of RMC's injury but merely a remote cause which an independent cause or agency merely took advantage of to accomplish something which was not the probable or natural effect thereof. I vote to grant the petition. It was private respondent who had the last and clear chance to prevent any further misappropriation by Yabut had it only reviewed the status of its current accounts on the bank statements sent to it monthly or regularly. there must be a last and a clear chance. Nor could it be said that the act of posting and validation was in itself a negligent act because the teller(s) simply had no choice but to accept and validate the deposit as written in the original deposit slip under the account number and name of Yabut's husband. It must have been a chance as would have enabled a reasonably prudent man in like position to have acted effectively to avoid the injury and the resulting damage to himself. not a last possible chance." it is my considered view that the doctrine assumes that the negligence of the defendant was subsequent to the negligence of the plaintiff and the same must be the proximate cause of the injury. is not contributory but the immediate and proximate cause of its injury. have taken ordinary care of its concerns. . Coming now to the doctrine of "last clear chance. Since a sizable amount of cash was entrusted to Yabut. That explains why Yabut still had to tamper with the account number of the duplicate deposit slip after filling in the name of RMC in the blank space. In the case at bar. to avoid the accident or injury.The teller(s) in this case were not in any way proven to be parties to the crime either as accessories or accomplices. the bank was not remiss in its duty of sending monthly bank statements to private respondent RMC so that any error or discrepancy in the entries therein could be brought to the bank's attention at the earliest opportunity. Hence. Its negligence. at least. therefore. as what the law presumes. but because it was purposely negligent as it admitted that it does not normally check bank statements given by banks. Private respondent failed to examine these bank statements not because it was prevented by some cause in not doing so. private respondent should. .R. he undertook to convey the plaintiffs from San Fernando to Currimao. 1924 HONORIO LASAM.. and engaged in the business of carrying passengers for hire from the one point to another in the Province of La Union and the surrounding provinces. according to the testimony of the witnesses for the plaintiffs. JR. Palma and Leuterio for plaintiffs-appellants. when. Ilocos Norte. with legal interest from the date of the judgment. ET AL. It appears from the evidence that on February 27. defendant-appellant. 1918. but had some experience in driving.10. La Union. to drive the car. the automobile was operated by a licensed chauffeur. OSTRAND. No. plaintiffs-appellants.Republic of the Philippines SUPREME COURT Manila EN BANC G. Remigio Bueno. the chauffeur allowed his assistant. vs.: The plaintiff are husband and wife and this action is brought to recover damages in the sum of P20. On the date mentioned. but after having reached the town of San Juan. L-19495 February 2. in a Ford automobile. and with the exception of some slight engine trouble while passing through the town of Luna. the former maintaining that the damages awarded are insufficient while the latter denies all liability for any damages whatever. Mariano Alisangco for defendant-appellant. FRANK SMITH. the car left the road and went down a steep embankment. Bueno held no driver's license.254.000 for physical injuries sustained by them in an automobile accident. the car functioned well until after the crossing of the Abra River in Tagudin. The trial court rendered a judgment in their favor for the sum of P1. On leaving San Fernando. J. Both the plaintiffs and the defendant appeal. . defects developed in the steering gear so as to make accurate steering impossible. and after zigzagging for a distance of about half a kilometer. the defendant was the owner of a public garage in the town of San Fernando. ) It is sufficient to reiterate that the source of the defendant's legal liability is the contract of carriage. Title 33. The trial court held. however. and expresses the opinion that the swaying or zigzagging of the car must have been due to its having been driven at an excessive rate of speed. Manila Railroad Co.. 359).The defendant. is well settled by previous decisions of the court. are applicable. This may possibly be true. 38 Phil. and the distinction between extra-contractual liability and contractual liability has been so ably and exhaustively discussed in various other cases. but it is. from our point of view. but his wife. This brings us to the principal question in the case: What is meant by "events which cannot be foreseen and which. neither before nor after the accident. In our opinion.. having been foreseen. or whether it was due to defects in the automobile. 768. pp. Partida 7. received serious injuries. among other things. (See Cangco vs. derrivamientos de casas e fuego que se enciende a so ora. the conclusions of the court below are entirely correct. 38 Phil. 88 et seq.) The antecedent to article 1105 is found in Law 11. pp. vs. The court further found that the breach of the contract was not due to fortuitous events and that. Gulf & Pacific Co. the automobile was overturned and the plaintiffs pinned down under it. Mr. and that having failed to do so he is liable in damages unless he shows that the failure to fulfill his obligation was due to causes mentioned in article 1105 of the Civil Code. Comentarios al Codigo Civil Español. if any. 19.. Gulf & Pacific Co. E son estos. immaterial whether the accident was caused by negligence on the part of the defendant's employees. (An event that takes place by accident and could not have . The complaint in the case was filed about a year and a half after the occurrence above related. . 8. That upon the facts stated the defendant's liability. Manila Electric Railroad & Light Co. which defines caso fortuito as "occasion que a case por aventura de que non se puede ante ver. Scævola. vol. is contractual. beginning with the case of Rakes vs. that by entering into that contract he bound himself to carry the plaintiffs safely and securely to their destination. Joaquina Sanchez. that nothing further need here be said upon that subject. that the cause of action rests on the defendant's breach of the contract of carriage and that. In going over the bank of the road. Compania Trasatlantica and Atlantic. in his testimony. (Manresa. maintains that there was no defect in the steering gear. Manila Railroad Co. were inevitable. 706. Lasam escaped with a few contusions and a "dislocated" rib . (7 Phil. and the case appears to have been tried largely upon the theory that it sounds in tort and that the liability of the defendant is governed by article 1903 of the Civil Code. e quebrantamiento de navio. It alleges. and not article 1903. even if foreseen. De Guia vs. fuerca de ladrones. vol. the defendant was liable in damages. 526 et seq. Codigo Civil. are inevitable?" The Spanish authorities regard the language employed as an effort to define the term caso fortuito and hold that the two expressions are synonymous. with the exception of the cases in which the law expressly provides otherwise and those in which the obligation itself imposes such liability.. that the accident was due to defects in the automobile as well as to the incompetence and negligence of the chauffeur. . She also appears to have suffered a nervous breakdown from which she had not fully recovered at the time of the trial. articles 1101-1107 of the Civil Code. 40 Phil. .. consequently. Atlantic. therefore. the result would be practically the same in either event.. which reads as follows: No one shall be liable for events which could not be foreseen or which. 875.. among which was a compound fracture of one of the bones in her left wrist.. The case of Alba vs. especially so since he should have been on his guard against a contingency as natural as that of losing his balance to a greater or less extent when the car rounded the curve. and their assignments of error relate to this point only. a passenger on a street car. or of the failure of the debtor to comply with his obligation. the plaintiff could not recover. 309. As far as the records shows. the supreme court of Spain held that inasmuch as the car at the time of the accident was travelling at a moderate rate of speed and there was no infraction of the regulations. . . a caso fortuito presents the following essential characteristics: (1) The cause of the unforeseen and unexpected occurrence. But such is not the present case. art. 706. unexpected fire. shipwreck. 1103. we do not think that the evidence is such as to justify us in interfering with the discretion of the court below in this . such as floods. the accident was caused either by defects in the automobile or else through the negligence of its driver. Jurisprudencia Civil. And (4) the obligor (debtor) must be free from any participation in the aggravation of the injury resulting to the creditor." In discussing and analyzing the term caso fortuito the Enciclopedia Juridica Española says: "In a legal sense and. torrents. But bearing in mind that in determining the extent of the liability for losses or damages resulting from negligence in the fulfillment of a contractual obligation.been foreseen. . shipwrecks. sustaining severe injuries. The plaintiffs maintain that the evidence clearly establishes that they are entitled to damages in the sum of P7. compulsion. also in relation to contracts. In that case Alba. 928. conflagrations. consequently. The car rounded a curve causing Alba to lose his balance and fall off the platform. it must be impossible to avoid.." (5 Enciclopedia Juridica Española. Manila Electric Railroad & Light Co. vol. or of his employees. must be independent of the human will. destruction of buildings by unforseen accidents and other occurrences of a similar nature. it is at once apparent that this element is lacking. In an action brought by him to recover damages. Turning to the present case. insurrections. That is not a caso fortuito. 40 Phil. Sociedad Anonima de Tranvias. here the passengers had no means of avoiding the danger or escaping the injury. and the plaintiff was exposed to no greater danger than that inherent in that particular mode of travel.254. It is not suggested that the accident in question was due to an act of God or to adverse road conditions which could not have been foreseen. or if it can be foreseen.)" Escriche defines caso fortuito as "an unexpected event or act of God which could either be foreseen nor resisted. cited by the defendant in support of his contentions. violence of robbers.. Examples of this are destruction of houses. p. There can be no doubt that the expenses incurred by the plaintiffs as a result of the accident greatly exceeded the amount of the damages awarded. Civil Code).80 instead of P1. the courts have "a discretionary power to moderate the liability according to the circumstances" (De Guia vs. destructions.10 as found by the trial court. these authorities agree that some extraordinary circumstance independent of the will of the obligor.832. is an essential element of a caso fortuito. We agree with counsel that neither under the American nor Spanish law is a carrier of passengers an absolute insurer against the risks of travel from which the passenger may protect himself by exercising ordinary care and diligence.) As will be seen. 102. was standing on the platform of the car while it was in motion. lightning. (3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner. affords a good illustration of the application of this principle. (2) It must be impossible to foresee the event which constitutes the caso fortuito. ). Johns and Romualdez. by far the greater part of the damages claimed by the plaintiffs resulted from the fracture of a bone in the left wrist of Joaquina Sanchez and from her objections to having a decaying splinter of the bone removed by a surgical operation. It started while gasoline was being hosed from a tank truck into the underground storage. the judgment appealed from is affirmed.R. For the reasons stated. Malcolm. Carrascoso and Janda for the respondents. As a consequence of her refusal to submit such an operation. CALTEX (PHIL.. and the HEIRS OF DOMINGA ONG. Street. for the petitioners. MATEO BOQUIREN and THE COURT OF APPEALS. Ross. The action is for damages under Articles 1902 and 1903 of the old Civil Code. J. INC.J. Their owners. Inc. It appears that in the afternoon of March 18. JJ. No..petitioners-appellants. 1966 THE SPOUSES BERNABE AFRICA and SOLEDAD C. . So ordered. sued respondents Caltex (Phil. Republic of the Philippines SUPREME COURT Manila EN BANC G. etc. the first as alleged owner of the station and the second as its agent in charge of operation. including the personal properties and effects inside them. concur.. a series of infections ensued and which required constant and expensive medical treatment for several years.). Bernabe Africa. respondents-appellees. among them petitioners here. The fire spread to and burned several neighboring houses. vs. As pointed out by that court in its well-reasoned and well-considered decision. AFRICA. MAKALINTAL. Manila. Negligence on the part of both of them was attributed as the cause of the fire. We agree with the court below that the defendant should not be charged with these expenses.respect. without costs in this instance. 1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue. and Mateo Boquiren. which affirmed that of the Court of First Instance of Manila dismissing petitioners' second amended complaint against respondents. L-12986 March 31.. right at the opening of the receiving tank where the nozzle of the hose was inserted. Selph. Araullo.: This case is before us on a petition for review of the decision of the Court of Appeals. C. Portions of the first two reports are as follows: 1. it appears in this picture that there are in the premises a coca-cola cooler and a rack which according to information gathered in the neighborhood contained cigarettes and matches. installed between the gasoline pumps and the underground tanks. he was not examined and he did not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). fire suddenly blazed. that with respect to the police report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly "for Salvador Capacillo." the latter was presented as witness but respondents waived their right to cross-examine him although they had the opportunity to do so. The Fire Department report: — In connection with their allegation that the premises was (sic) subleased for the installation of a coca-cola and cigarette stand. On the second point. T5292 into the underground tank of the Caltex Gasoline Station located at the corner of Rizal Avenue and Antipolo Street. All he said was that he was one of those who investigated "the location of the fire and. 1953 (pp. the complainants furnished this Office a copy of a photograph taken during the fire and which is submitted herewith. carried no such explanation. K-5 and X-6 were admitted without objection. The transcript of the hearing of September 17. March 18. were objected to by counsel for each of respondents on the ground that they were hearsay and that they were "irrelevant. that said reports were admitted by the trial court without objection on the part of respondents. although Detective Capacillo did take the witness stand. It is contended: first. Police Department report: — Investigation disclosed that at about 4:00 P. Quick action of Leandro Flores in pulling off the gasoline hose connecting the truck with the underground tank prevented a terrific explosion. 167-170) shows that the reports in question. 2.The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents had exercised due care in the premises and with respect to the supervision of their employees. It burned the truck and the following accessorias and residences. while Leandro Flores was transferring gasoline from a tank truck. and thirdly. The first contention is not borne out by the record. Due to the gasoline fumes. and that he . the flames scattered due to the hose from which the gasoline was spouting. the admission of the others. an unknown Filipino lighted a cigarette and threw the burning match stick near the main valve of the said underground tank. if possible. The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of the gasoline station and what the chief of the fire department had told him on the same subject. However. The first question before Us refers to the admissibility of certain reports on the fire prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines." Indeed. The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible. now Rule 130. including the disputed ones. K. plate No. 1948. This ruling is now assigned as error.M. in the court's resolution only Exhibits J. this City. immaterial and impertinent. that in any event the said reports are admissible as an exception to the hearsay rule under section 35 of Rule 123. when offered as evidence. gather witnesses as to the occurrence. secondly. alongside the road. that is. driver of the tank truck from which gasoline was being transferred at the time to the underground tank of the station. or by a person in the performance of a duty specially enjoined by law.L. Vol. And even if he had testified. and one of the broken ends hit the head of the plaintiff as he was about to board the truck. with clear weather and without any wind blowing. Both the trial court and the appellate court refused to apply the doctrine in the instant case on the grounds that "as to (its) applicability . an electric transmission wire. which provides that "entries in official records made in the performance of his duty by a public officer of the Philippines. fall within the scope of section 35. 3240-R. Petitioners maintain. Others are attributed to Leopoldo Medina. or by another person specially enjoined by law to do so. Of the three requisites just stated. wherein the decision of the Court of Appeals was penned by Mr.. only the last need be considered here. The facts of that case are stated in the decision as follows: In the afternoon of May 5. (CA-G." and that while the rules do not prohibit its adoption in appropriate cases. or by such other person in the performance of a duty specially enjoined by law. Justice J. 3 [1957] p. To qualify their statements as "official information" acquired by the officers who prepared the reports. while the plaintiff-appellee and other companions were loading grass between the municipalities of Bay and Calauan. installed and maintained by the defendant Philippine Power and Development Co.R. and the contents of the report. in the case of Espiritu vs. There was nothing. and to respondent Mateo Boquiren. without further testimonial evidence on their contents. as to which he did not testify. according to Exhibit V-Africa. which must have been acquired by him personally or through official information (Moran. his testimony would still have been objectionable as far as information gathered by him from third persons was concerned. did not thereby become competent evidence. to Leandro Flores. referred to as an employee at the gas station were the fire occurred. Reyes now a member of the Supreme Court. in the province of Laguna. Comments on the Rules of Court. that the reports in themselves. however.. there seems to he nothing definite. are prima facie evidence of the facts therein stated." The question deserves more than such summary dismissal.. 1949). . 1 The reports in question do not constitute an exception to the hearsay rule." There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a public officer. Inc. however. therefore. 1946. without proof as to the cause and origin of the fire. Philippine Power and Development Co. No. the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for record. The doctrine has actually been applied in this jurisdiction. (b) that it was made by the public officer in the performance of his duties. on which he need be crossexamined. we find no practical use for such doctrine. suddenly parted. not having been given by the informants pursuant to any duty to do so. Obviously the material facts recited in the reports as to the cause and circumstances of the fire were not within the personal knowledge of the officers who conducted the investigation.B. however. in the Philippines. and (c) that the public officer or other person had sufficient knowledge of the facts by him stated. Was knowledge of such facts. who could not. The next question is whether or not. give any reason as to the origin of the fire. acquired by them through official information? As to some facts the sources thereof are not even identified. the facts stated therein were not acquired by the reporting officers through official information.brought the report with him. 398). the doctrine of res ipsa loquitur should apply so as to presume negligence on the part of appellees. Rule 123. "in the case at bar. September 20. but we do not consider this a reason for not applying the particular doctrine of res ipsa loquitur in the case at bar. care and maintenance.As a result. On the other hand. and is peculiarly applicable to the case at bar. or culpa aquiliana. 1947. 447: Arthur O. Thereafter. On October 8. In the ordinary course of events. A case strikingly similar to the one before Us is Jones vs. it is also a recognized principal that "where the thing which caused injury." And the burden of evidence is shifted to him to establish that he has observed due care and diligence. electric wires do not part suddenly in fair weather and injure people.400 volts carried by the wire and was knocked unconscious to the ground. Boadle. that in case of noncontractual negligence. unless they are subjected to unusual strain and stress or there are defects in their installation. the fact that the wire snapped suffices to raise a reasonable presumption of negligence in its installation." It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme Court. (San Juan Light & Transit Co. v. as observed by Chief Baron Pollock. plaintiff received the full shock of 4. in the absence of the explanation. also operated by the Shell Petroleum Corporation. is under the exclusive control of the defendant and the injury is such as in the ordinary course of things does not occur if he having such control use proper care. it affords reasonable evidence. to the underground tank of the station. it is for the defendant to prove. as it arises almost invariably from some act of man.95. 1934. after hearing the . without fault of the injured person. "if there are any facts inconsistent with negligence. unless some one was negligent. The judge of the district court. Reprint 299. 56 L. that the injury arose from defendant's want of care. ed. The electric charge coursed through his body and caused extensive and serious multiple burns from skull to legs. maintenance and supervision.) This rule is known by the name of res ipsa loquitur (the transaction speaks for itself). where it is unquestioned that the plaintiff had every right to be on the highway. Consequently. 244. Requena. 89. over one year after the mishap. fire is not considered a fortuitous event. 722. the leading case that established that rule). et al. 171 So. While it is the rule.S. Alleging that the damages to his building amounted to $516. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to the Shell Petroleum Corporation for a gasoline filling station. The court said: The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense. but the appellate court overruled the defense under the doctrine of res ipsa loquitur. in the absence of contributory negligence (which is admittedly not present). Jones sued the Shell Petroleum Corporation for the recovery of that amount. while gasoline was being transferred from the tank wagon. during the term of the lease. in the storage and sale of which extreme care must be taken. the burden of proof is on the plaintiff to establish that the proximate cause of his injury was the negligence of the defendant. (Byrne v. The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of negligence. and the electric wire was under the sole control of defendant company. 159 Eng. 2 H & Co. 680. just as barrels do not ordinarily roll out of the warehouse windows to injure passersby. Gasoline is a highly combustible material.. leaving the bone exposed in some parts and causing intense pain and wounds that were not completely healed when the case was tried on June 18. as contended by the appellant. U. a fire started with resulting damages to the building owned by Jones. Shell Petroleum Corporation. in absence of explanation by defendant. 25 So. and escaping gasoline to the building owned by the plaintiff. on the ground the testimony failed to show with reasonable certainty any negligence on the part of the Shell Petroleum Corporation or any of its agents or employees.. viz. The gasoline station. no witnesses were placed on the stand by the defendant. This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of last resort. There are many cases in which the doctrine may be successfully invoked and this. The persons who knew or could have known how the fire started were appellees and their employees. etc. tank truck. etc. 39 So. Vicksburg. extended to the hose and tank truck. we find it established by the record that the filling station and the tank truck were under the control of the defendant and operated by its agents or employees. R. but they gave no explanation thereof whatsoever. (45 C. We further find from the uncontradicted testimony of plaintiff's witnesses that fire started in the underground tank attached to the filling station while it was being filled from the tank truck and while both the tank and the truck were in charge of and being operated by the agents or employees of the defendant. 64 L.ñët In resolving the issue of negligence. X-1 Africa) the following appears: . 505. Co.. It is a fair and reasonable inference that the incident happened because of want of care.: Maus v. 115 La. the Supreme Court of Louisiana held: Plaintiff's petition contains two distinct charges of negligence — one relating to the cause of the fire and the other relating to the spreading of the gasoline about the filling station. 522. Willis v. Hebert v. we think. 63.A. Ann. 1193). 731. 1153.R. plaintiff has evoked the doctrine of res ipsa loquitur. 599. 111 La. Page. Other than an expert to assess the damages caused plaintiff's building by the fire. and the case is now before us for decision. equipment and employees. 101. Predicated on these circumstances and the further circumstance of defendant's failure to explain the cause of the fire or to show its lack of knowledge of the cause. it affords reasonable evidence. and was communicated from the burning hose. #768. St.testimony. The principle enunciated in the aforequoted case applies with equal force here. 560. 115 La. Rep. Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care. 892. Plaintiff applied to this Court for a Writ of Review which was granted. Bents v. 51 La. p. was under the control of appellees. Taking up plaintiff's charge of negligence relating to the cause of the fire. concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for $427. 38 So. with all its appliances. Lake Charles Ice. 1äwphï1. 977.82. 35 So.. A fire occurred therein and spread to and burned the neighboring houses. that the accident arose from want of care. Some of the cases in this jurisdiction in which the doctrine has been applied are the following. Co.. 100 Am.J. In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. is one of them. Broderick. The Court of Appeals for the First Circuit reversed this judgment. There is no more eloquent demonstration of this than the statement of Leandro Flores before the police investigator. or permission of answering defendant. this gasoline service station is also used by its operator as a garage and repair shop for his fleet of taxicabs numbering ten or more. Although the soft drinks stand had been eliminated. their failure to provide a concrete wall high enough to prevent the flames from leaping over it. was transferring the contents thereof into the underground storage when the fire broke out. These facts. since on their face they called for more stringent measures of caution than those which would satisfy the standard of due diligence under ordinary circumstances." No evidence on this point was adduced. strengthen the presumption of negligence under the doctrine of res ipsa loquitur. adding another risk to the possible outbreak of fire at this already small but crowded gasoline station. The location is within a very busy business district near the Obrero Market. aside from precautions already taken by its operator the concrete walls south and west adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from leaping over it in case of fire. which would predictably crumple and melt when subjected to intense heat. Defendants' negligence. may properly be considered as an exception to the hearsay rule. but while the loading was going on. without authority. The foregoing report." Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent omission on the part of defendants. having been submitted by a police officer in the performance of his duties on the basis of his own personal observation of the facts reported. As it was the concrete wall was only 2-1/2 meters high. was not only with respect to the cause of the fire but also with respect to the spread thereof to the neighboring houses. heard someone shout "fire. namely. There is an admission on the part of Boquiren in his amended answer to the second amended complaint that "the fire was caused through the acts of a stranger who. Flores was the driver of the gasoline tank wagon who. therefore. there were people who went to drink cocacola (at the coca-cola stand) which is about a meter from the hole leading to the underground tank. Furthermore. passed through the gasoline station and negligently threw a lighted match in the premises.Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. alone and without assistance. a railroad crossing and very thickly populated neighborhood where a great number of people mill around t until gasoline tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration. Records show that there have been two cases of fire which caused not only material damages but desperation and also panic in the neighborhood. He said: "Before loading the underground tank there were no people." He added that when the tank was almost filled he went to the tank truck to close the valve. and beyond that height it consisted merely of galvanized iron sheets. descriptive of the location and objective circumstances surrounding the operation of the gasoline station in question. and while he had his back turned to the "manhole" he. but assuming the allegation to be true — certainly any unfavorable inference . " It is true that Boquiren later on amended his answer. but made effective as of January 1. But Caltex did not present any contract with Boquiren that would reveal the nature of their relationship at the time of the fire. is one of law and hence may be passed upon by this Court." But even if the license agreement were to govern. These facts are: (1) Boquiren made an admission that he was an agent of Caltex. There must have been one in existence at that time. A decision of the Supreme Court of Texas. as held by the Court of Appeals. we think it is the generally accepted rule as applied to torts that 'if the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another. vol. states the rule which we find acceptable here. as shown by the clause that Caltex "shall not be liable for any injury to person or property while in the property herein licensed. This question. and that among the changes was one to the effect that he was not acting as agent of Caltex. p. Maintenance of the station and its equipment was subject to . if one there was. Stated in another way. "The intention of an unforeseen and unexpected cause. tortious or criminal act is also a substantial factor in bringing about the harm. such that he could not have incurred personal liability. since it was entered into shortly before the expiration of the one-year period it was intended to operate. (4) the delivery truck used in delivering gasoline to the station had the name of CALTEX painted on it. (3) Caltex exercised control over Boquiren in the management of the state. but claims that the business conducted at the service station in question was owned and operated by Boquiren." (MacAfee. in his motion to dismiss appellants' second amended complaint the ground alleged was that it stated no cause of action since under the allegations thereof he was merely acting as agent of Caltex. which paid the license fees. Exhibit X-5 Africa. 1948.' (Restatement of the Law of Torts. or an agent of Caltex. namely. he denied that he directed one of his drivers to remove gasoline from the truck into the tank and alleged that the "alleged driver.. Instead. In Boquiren's amended answer to the second amended complaint. it being understood and agreed that LICENSEE (Boquiren) is not an employee. "It is the rule that those who distribute a dangerous article or agent. Exhibit U-Africa. 2. This retroactivity provision is quite significant.from the admission may be taken against Boquiren — it does not extenuate his negligence. This so-called license agreement (Exhibit 5-Caltex) was executed on November 29. was not in his employ.) Inc. representative or agent of LICENSOR (Caltex). does not protect the actor from liability. vs. the driver being an employee of the Caltex (Phil. 1184. 2nd 442. He could sell only Caltex Products. in the light of the facts not controverted. (Exhibit T-Africa. owe a degree of protection to the public proportionate to and commensurate with a danger involved . But then again. et al. 1948. Under that agreement Boquiren would pay Caltex the purely nominal sum of P1. and (5) the license to store gasoline at the station was in the name of Caltex.00 for the use of the premises and all the equipment therein. 1948 so as to cover the date of the fire. Traver's Gas Corporation. Exhibit X-6 Africa. Caltex admits that it owned the gasoline station as well as the equipment therein. the fact that the active and substantially simultaneous operation of the effects of a third person's innocent. March 18. is not sufficient to relieve a wrongdoer from consequences of negligence. This issue depends on whether Boquiren was an independent contractor. Exhibit Y-Africa). 153 S. and gives rise to the conclusion that it was designed precisely to free Caltex from any responsibility with respect to the fire. Boquiren can hardly be considered an independent contractor.. upon facts analogous to those of the present case.W. A motion to dismiss on this ground is deemed to be an admission of the facts alleged in the complaint.) The next issue is whether Caltex should be held liable for the damages caused to appellants. (2) at the time of the fire Caltex owned the gasoline station and all the equipment therein. if such negligence directly and proximately cooperates with the independent cause in the resulting injury. what was presented was a license agreement manifestly tailored for purposes of this case. #439). and/or the owners of the gasoline station. the amount that should be recovered be measured by the damages actually suffered. The deduction is now challenged as erroneous on the ground that Article 2207 of the New Civil Code. but the company was not satisfied to allow such relationship to exist. .80. Rogers. and of avoiding liability for the negligence of the employees about the station. 1948 to December 31. or did not conduct the business with due diligence. and should such performance conflict with the name or title given the contract by the parties. The control was such that the latter was virtually an employee of the former. 57 S. but the way the contracting parties do or perform their respective obligations stipulated or agreed upon may be shown and inquired into. 1948. 757).000. Caltex further argues that the gasoline stored in the station belonged to Boquiren. and thereafter until terminated by Caltex upon two days prior written notice.W. Termination of the contract was therefore a right granted only to Caltex but not to Boquiren. These provisions of the contract show the extent of the control of Caltex over Boquiren. 2d. of Caltex. should thereby a controversy as to what they really had intended to enter into. 183). By reserving the right to terminate the contract at will. after deducting the amount of P2. Taking into consideration the fact that the operator owed his position to the company and the latter could remove him or terminate his services at will. that the service station belonged to the company and bore its tradename and the operator sold only the products of the company. it retained the means of compelling submission to its orders. that an employee of the company supervised the operator and conducted periodic inspection of the company's gasoline and service station. and that the receipts signed by the operator indicated that he was a mere agent. otherwise the principle prohibiting unjust enrichment would be violated. vs. in other words control. We think the evidence was sufficient to sustain the verdict of the jury. Firemens' Insurance Company of Newark. it must be held liable for the negligence of those performing service under its direction. But no cash invoices were presented to show that Boquiren had bought said gasoline from Caltex. Caltex could at any time cancel and terminate the agreement in case Boquiren ceased to sell Caltex products. However. Ltd. As found by the trial court the Africas sustained a loss of P9. The license agreement was supposed to be from January 1.00 collected by them on the insurance of the house.005. was not yet in effect when the loss took place. regardless of the silence of the law on this point at that time. The evidence shows that it immediately assumed control. the finding of the Court of Appeals that the operator was an agent of the company and not an independent contractor should not be disturbed. and proceeded to direct the method by which the work contracted for should be performed. that the price of the products sold by the operator was fixed by the company and not by the operator. The written contract was apparently drawn for the purpose of creating the apparent relationship of employer and independent contractor. (Shell Company of the Philippines. New Jersey. in the judgment of Caltex. Having elected to assume control and to direct the means and methods by which the work has to be performed. Neither was there a sales contract to prove the same.the approval. To determine the nature of a contract courts do not have or are not bound to rely upon the name or title given it by the contracting parties. which provides for the subrogation of the insurer to the rights of the insured. 100 Phil. (Gulf Refining Company v. the former must prevail over the latter. that the equipment used by the operator belonged to the company and were just loaned to the operator and the company took charge of their repair and maintenance. Boquiren could not assign or transfer his rights as licensee without the consent of Caltex. respectively.500.500. We agree that the court erred..005. respondents. private respondent Gregorio Mable first approached Eric Cruz.R. petitioner.. Luis S.F. namely. and ordered to pay them the aforesaid sum of P9. The essential facts of the case are not disputed.00. petitioner's plant manager. and in this case should not prevail over positive evidence of such value. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G. with interest from the filing of the complaint. LEONIDAS.80 and P10. CORTES. P1. GREGORIO. since it is of common knowledge that the assessment for taxation purposes is not an accurate gauge of fair market value. THE COURT OF APPEALS.00. INC. LIGAYA..000. 1988 F. ELENA.000. disregarding the testimony of one of the Ong children that said property was worth P4. Sometime in August 1971. GREGORIO MABLE as substituted by his wife LUZ ALMONTE MABLE and children DOMING.00 was adjudged by the lower court on the basis of the assessed value of the property destroyed.: This petition to review the decision of the Court of Appeals puts in issue the application of the common law doctrine of res ipsa loquitur. The . J. the decision appealed from is reversed and respondents-appellees are held liable solidarily to appellants.With respect to the claim of the heirs of Ong P7. CRUZ and CO.000. No. SALOME.00. to request that a firewall be constructed between the shop and private respondents' residence. Wherefore. Monta for respondents. ANTONIO. Mauricio M. Topacio for petitioner. and BERNARDO all surnamed MABLE.00. vs. L-52732 August 29. The furniture manufacturing shop of petitioner in Caloocan City was situated adjacent to the residence of private respondents. The heirs of Ong are therefore entitled to P10. and costs. JR. 00 as attorney's fees and costs. 29-30. 1980.00 as exemplary damages. the Court of Appeals. until fully paid.000. [CA Decision. . Rollo. p. 4. p. in a decision promulgated on November 19. 3.000.00 as actual damages. praying for a judgment in their favor awarding P150. The damages to be awarded to plaintiff should be reduced to P70.00 as moral damages. who slept in the shop premises. jewelries.000. Counterclaim is ordered dismissed. Both the shop and the house were razed to the ground.00 on the insurance on their house and the contents thereof. The National Bureau of Investigation found specimens from the burned structures negative for the presence of inflammable substances. private respondents filed an action for damages against petitioner. books.00 for damages suffered by said plaintiffs for the loss of their house. Ordering the defendant to pay to the plaintiffs the amount of P80. Rollo. Hence. 1975.00 for the house and P50. 2.000. but their efforts proved futile. with interest of 6% from the date of the filing of the Complaint on January 23. petitioner filed the instant petition for review on February 22.000. in favor of plaintiffs. private respondents collected P35.00 as exemplary damages.00 as and by way of attorney's fees. until fully paid. On January 23.000. kitchen utensils. affirmed the decision of the trial court but reduced the award of damages: WHEREFORE.00 for the furniture and other fixtures with legal interest from the date of the filing of the complaint until full payment thereof. for lack of merit.000. tried to put out the fire. Ordering the defendant to pay to the plaintiffs the sum of P50.00 as moral damages. the decision declaring the defendants liable is affirmed. P2. 1975. 1975. 1979 but was denied in a resolution dated February 18.000. silverwares. The Court of First Instance held for private respondents: WHEREFORE. religious images. In the early morning of September 6. 5. The cause of the conflagration was never discovered. and against the defendant: 1.] A motion for reconsideration was filed on December 3. Petitioner's employees.000. [CA Decision. and P5.00 for the loss of plaintiffs' furnitures. The fire spread to private respondents' house. chinawares. 1980. with interest of 6% from date of the filing of the Complaint on January 23. the Court resolved to deny the petition for lack of merit on June 11. With costs against the defendant.] On appeal. P25. clothing and other valuables. Subsequently. 1-2. 7. fire broke out in petitioner's shop. Ordering the defendant to pay to the plaintiffs the sum of P5. P20. P50. 35. 1979.000. pp. 1980. pp.000.000. After the comment and reply were filed. the Court hereby renders judgment.request was repeated several times but they fell on deaf ears. 1974. However, petitioner filed a motion for reconsideration, which was granted, and the petition was given due course on September 12, 1980. After the parties filed their memoranda, the case was submitted for decision on January 21, 1981. Petitioner contends that the Court of Appeals erred: 1. In not deducting the sum of P35,000.00, which private respondents recovered on the insurance on their house, from the award of damages. 2. In awarding excessive and/or unproved damages. 3. In applying the doctrine of res ipsa loquitur to the facts of the instant case. The pivotal issue in this case is the applicability of the common law doctrine of res ipsa loquitur, the issue of damages being merely consequential. In view thereof, the errors assigned by petitioner shall be discussed in the reverse order. 1. The doctrine of res ipsa loquitur, whose application to the instant case petitioner objects to, may be stated as follows: Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. [Africa v. Caltex (Phil.), Inc., G.R. No. L12986, March 31, 1966, 16 SCRA 448.] Thus, in Africa, supra, where fire broke out in a Caltex service station while gasoline from a tank truck was being unloaded into an underground storage tank through a hose and the fire spread to and burned neighboring houses, this Court, applying the doctrine of res ipsa loquitur, adjudged Caltex liable for the loss. The facts of the case likewise call for the application of the doctrine, considering that in the normal course of operations of a furniture manufacturing shop, combustible material such as wood chips, sawdust, paint, varnish and fuel and lubricants for machinery may be found thereon. It must also be noted that negligence or want of care on the part of petitioner or its employees was not merely presumed. The Court of Appeals found that petitioner failed to construct a firewall between its shop and the residence of private respondents as required by a city ordinance; that the fire could have been caused by a heated motor or a lit cigarette; that gasoline and alcohol were used and stored in the shop; and that workers sometimes smoked inside the shop [CA Decision, p. 5; Rollo, p. 33.] Even without applying the doctrine of res ipsa loquitur, petitioner's failure to construct a firewall in accordance with city ordinances would suffice to support a finding of negligence. Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the flames from leaping over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that height it consisted merely of galvanized iron sheets, which would predictably crumble and melt when subjected to intense heat. Defendant's negligence, therefore, was not only with respect to the cause of the fire but also with respect to the spread thereof to the neighboring houses. [Africa v. Caltex (Phil.), Inc., supra; Emphasis supplied.] In the instant case, with more reason should petitioner be found guilty of negligence since it had failed to construct a firewall between its property and private respondents' residence which sufficiently complies with the pertinent city ordinances. The failure to comply with an ordinance providing for safety regulations had been ruled by the Court as an act of negligence [Teague v. Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA 181.] The Court of Appeals, therefore, had more than adequate basis to find petitioner liable for the loss sustained by private respondents. 2. Since the amount of the loss sustained by private respondents constitutes a finding of fact, such finding by the Court of Appeals should not be disturbed by this Court [M.D. Transit & Taxi Co., Inc. v. Court of Appeals, G.R. No. L-23882, February 17, 1968, 22 SCRA 559], more so when there is no showing of arbitrariness. In the instant case, both the CFI and the Court of Appeals were in agreement as to the value of private respondents' furniture and fixtures and personal effects lost in the fire (i.e. P50,000.00). With regard to the house, the Court of Appeals reduced the award to P70,000.00 from P80,000.00. Such cannot be categorized as arbitrary considering that the evidence shows that the house was built in 1951 for P40,000.00 and, according to private respondents, its reconstruction would cost P246,000.00. Considering the appreciation in value of real estate and the diminution of the real value of the peso, the valuation of the house at P70,000.00 at the time it was razed cannot be said to be excessive. 3. While this Court finds that petitioner is liable for damages to private respondents as found by the Court of Appeals, the fact that private respondents have been indemnified by their insurer in the amount of P35,000.00 for the damage caused to their house and its contents has not escaped the attention of the Court. Hence, the Court holds that in accordance with Article 2207 of the Civil Code the amount of P35,000.00 should be deducted from the amount awarded as damages. Said article provides: Art. 2207. If the plaintiffs property has been insured, and he has received indemnity from the insurance company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance company is subrogated to the rights of the insured against the wrongdoer or the person who violated the contract. If the amount paid by the insurance company does not fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency from the person causing the loss or injury. (Emphasis supplied.] The law is clear and needs no interpretation. Having been indemnified by their insurer, private respondents are only entitled to recover the deficiency from petitioner. On the other hand, the insurer, if it is so minded, may seek reimbursement of the amount it indemnified private respondents from petitioner. This is the essence of its right to be subrogated to the rights of the insured, as expressly provided in Article 2207. Upon payment of the loss incurred by the insured, the insurer is entitled to be subrogated pro tanto to any right of action which the insured may have against the third person whose negligence or wrongful act caused the loss [Fireman's Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA 323.] Under Article 2207, the real party in interest with regard to the indemnity received by the insured is the insurer [Phil. Air Lines, Inc. v. Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or not the insurer should exercise the rights of the insured to which it had been subrogated lies solely within the former's sound discretion. Since the insurer is not a party to the case, its identity is not of record and no claim is made on its behalf, the private respondent's insurer has to claim his right to reimbursement of the P35,000.00 paid to the insured. WHEREFORE, in view of the foregoing, the decision of the Court of Appeals is hereby AFFIRMED with the following modifications as to the damages awarded for the loss of private respondents' house, considering their receipt of P35,000.00 from their insurer: (1) the damages awarded for the loss of the house is reduced to P35,000.00; and (2) the right of the insurer to subrogation and thus seek reimbursement from petitioner for the P35,000.00 it had paid private respondents is recognized. SO ORDERED. THIRD DIVISION [G.R. No. 118231. July 5, 1996] DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs. COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents. DECISION DAVIDE, JR., J.: Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi[1] then already provided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on the eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his hand."[2] Subsequently, Hippocrates[3] wrote what was to become part of the healer's oath: "I will follow that method of treatment which . The petitioners appeal from the decision[5] of the Court of Appeals of 11 May 1994 in CA-G. Batiquin. . when a physician strays from his sacred duty and endangers instead the life of his patient. may the reverse be my lot. as found by the trial court. In the morning of September 21. so she consulted Dr. 1988. Between 1987 and September.according to my ability and judgment. . Mrs. .R. let the act go uncondemned. Villegas checked out of the Hospital . Although society today cannot and will not tolerate the punishment meted out by the ancients. 9492. 30851. Plaintiff remained confined at the Hospital until September 27.R. Thereafter. Head of the Department of Obstetrics and Gynecology at the said Hospital. Nurse Arlene Diones and some student nurses performed a simple cesarean section on Mrs. and O. 1988 Dr. Villegas delivered her first child. Soon after leaving the Hospital Mrs. at about 11:45 that morning. Mrs. are as follows: Dr. as this case would show. the primary objective of the medical profession is the preservation of life and maintenance of the health of the people. which reversed the decision[6] of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital. Villegas is a married woman who submitted to Dr. Doris Teresita Sy who was also a Resident Physician at the same Hospital.00 as "professional fee" .[4] Needless to say then. with the assistance of Dr. Dumaguete City from January 9. The facts. Villegas began to suffer abdominal pains and complained of being feverish. I consider for the benefit of my patients. Rachel Acogido. thru the latter's secretary. She also gradually lost her appetite. CV No. Batiquin for prenatal care as the latter's private patient sometime before September 21. . neither will it and this Court. 1988 during which period of confinement she was regularly visited by Dr.500. While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art. Batiquin. . . the amount of P1. Villegas at the Negros Oriental Provincial Hospital and after 45 minutes Mrs. 1988. he must be made to answer therefor. 1978 to September 1989. and abstain from whatever is deleterious and mischievous . and on the same day she paid Dr. 1989 she was also the Actg. Batiquin at the . On September 28. Batiquin.I. . C. respected by all men at all times but should I trespass and violate this oath." At present. . which she had been taking up to December. Mrs. Upon examination she felt an abdominal mass one finger below the umbilicus which she suspected to be either a tumor of the uterus or an ovarian cyst. Villegas to be feverish.[9] Aside from Dr. Villegas after her delivery on September 21.[10] a Progress Record. Batiquin. Ma. Kho opened the abdomen of Mrs. Villegas at the Holy Child's Hospital on January 20. 1988. When the pains become unbearable and she was rapidly losing weight she consulted Dr. Villegas had [an] infection inside her abdominal cavity. . And this foreign body was the cause of the infection of the ovaries and consequently of all the discomfort suffered by Mrs. 1988. . 1988. . It could have been a torn section of a surgeon's gloves or could have come from other sources. In the meantime. 2 inches by 3/4 inch in size. Salud Kho testified that she sent it to a pathologist in Cebu City for examination. Kho to suggest that Mrs. The evidence of Plaintiffs show that when Dr.[8] it was not mentioned in the pathologist's Surgical Pathology Report. . Kho's testimony. She also took blood tests of Plaintiff. Villegas she found whitish-yellow discharge inside. . The abdominal pains and fever kept on recurring and bothered Mrs. and a piece of rubber materials on the right side of the uterus embedded on [sic] the ovarian cyst. Salud Kho at the Holy Child's Hospital in Dumaguete City on January 20. A blood count showed that Mrs. dirt and pus behind the uterus. .[7] The piece of rubber allegedly found near private respondent Flotilde Villegas' uterus was not presented in court. Negros Oriental. 1988 . Villegas submit to another surgery to which the latter agreed. Villegas no end and despite the medications administered by Dr. on the second week of November. So. 1988 Mrs. and which is [sic] also "rubber-drain like . When Dr. Batiquin on October 31. certifying to her physical fitness to return to her work on November 7. pale and was breathing fast. Ma. . . Ma. This piece of rubber material which Dr. The result of all those examinations impelled Dr. Kho described as a "foreign body" looked like a piece of a "rubber glove" . the evidence which mentioned the piece of rubber are a Medical Certificate. . Salud Kho examined Mrs.latter's polyclinic who prescribed for her certain medicines . abdomen and kidney. either of which could be cancerous. She had an xray taken of Mrs. Villegas was given a Medical Certificate by Dr. 1989 she found Mrs. 1989. Villegas' chest. Villegas returned to her work at the Rural Bank of Ayungon. an ovarian cyst on each of the left and right ovaries which gave out pus. and although Dr. . . . Kho threw it away as told by her to Defendant."[15] The trial court also refused to give weight to Dr. . [19] All told. Batiquin is established by preponderance of evidence. I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the tissues but unluckily I don't know where the rubber was.[17] The trial court deemed vital Dr. however. thus: A .[11] an Anesthesia Record. . . appellant Flotilde became well and healthy. they did not go to any other doctor until they finally decided to see another doctor in January. . . The fault or negligence of appellee Dr. After the second operation. . Except for the Medical Certificate (Exhibit "F"). Kho. . was never denied nor disputed by Dr. . even without admitting the private respondents' documentary evidence. Kho and (2) that Dr. Batiquin admitted on the witness stand that she .[12] a Nurse's Record. Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her abdomen. Thus. the Court of Appeals reversed the decision of the trial court. Kho's positive testimony to definitely establish that a piece of rubber was found near private respondent Villegas' uterus. Kho answered that there was rubber indeed but that she threw it away. the trial court held in favor of the petitioners herein. The failure of the Plaintiffs to reconcile these two different versions serve only to weaken their claim against Defendant Batiquin. Kho. The Court of Appeals reviewed the entirety of Dr.[16] as could be gleaned from her statement. leading it to conclude: There are now two different versions on the whereabouts of that offending "rubber" (1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. and she merely affixed her signature on some of them to express her agreement thereto . 1989 when she was not getting any better under the care of appellee Dr.[13] and a Physician's Discharge Summary. regarded these documentary evidence as mere hearsay. all the above documents were allegedly prepared by persons other than Dr. Kho "may not have had first-hand knowledge" thereof. Kho's testimony and. Appellee Dr. . Kho's testimony regarding the subject piece of rubber as Dr. "there being no showing that the person or persons who prepared them are deceased or unable to testify on the facts therein stated . Batiquin . Victoria Batiquin's testimony that when she confronted Dr. deemed Dr. .[14] The trial court. holding: 4.Both appellants testified that after the operation made by appellee doctor. ."[18] This statement. the trial court noted. "Dr. Kho regarding the piece of rubber. The trial court itself had narrated what happened to appellant Flotilde after the cesarean operation made by appellee doctor . 00 (Exh.00 as and for exemplary damages. the appealed judgment. .000.900.000. Had she exercised due diligence.000. among which are when the factual findings of the trial court and the appellate court .[21] From the above judgment.00 and attorney's fees in the amount of P25. .00 as and for actual damages.00 (Exhs.100.00 [deposit of P7. Kho is not taken into consideration as it is not shown that the removal of said organs were the direct result of the rubber left by appellee Dr.00 as and for attorney's fees plus the cost of litigation. they are entitled to moral damages in the amount of P100. when it gave credence to testimonies punctured with contradictions and falsities. dismissing the complaint for damages is REVERSED and SET ASIDE. . Batiquin would have found the rubber and removed it before closing the operating area. SO ORDERED. (1) committed grave abuse of discretion by resorting to findings of fact not supported by the evidence on record. G-1-A) plus hospital and medical expenses together with doctor's fees in the total amount P9.000.00 as and for moral damages.00. placed the life of appellant Flotilde in jeopardy and caused appellants fear. worry and anxiety . For the miseries appellants endured for more than three (3) months.000.000. The private respondents commented that the petition raised only questions of fact.000.alone decided when to close the operating area. WHEREFORE. P100. The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were removed by Dr. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants the amounts of P17. and (2) exceeded its discretion.00. appellee Dr. . exemplary damages in the amount of P20. . and P25. that she examined the portion she operated on before closing the same . P20.[20] The appellate court then ruled: Appellants' evidence show[s] that they paid a total of P17. Batiquin. While the rule is that only questions of law may be raised in a petition for review on certiorari. there are exceptions.000. What is established is that the rubber left by appellee cause infection. which were not proper for review by this Court. G and G-2)] for the second operation that saved her life. due to the negligence of appellee Dr. . the petitioners appealed to this Court claiming that the appellate court. Batiquin near the uterus. amounting to lack or excess of jurisdiction. Kho's testimony. It was not in the Lab. Kho saw a piece of rubber in private respondent Villegas' abdomen. Dr. According to the Court of Appeals. it was not in Cebu. The phrase relied upon by the trial court does not negate the fact that Dr. Kho saw. I did. And then. And there was a [piece of] rubber. when the appealed decision is clearly contradicted by the evidence on record. I was not the only one who saw it. Furthermore.e.conflict. turned out to be pus.[24] We agree with the Court of Appeals. . could alter what Dr. there was an ovarian cyst on the left and side and there was also an ovarian cyst on the right which. just in case this would turn out to be a medico-legal case. at the back of the uterus it was very dirty. that Dr. we find that the focal point of the instant appeal is the appreciation of Dr. i. Kho's testimony: Q What is the purpose of the examination? A Just in case. Kho's knowledge of the piece of rubber was based on hearsay. there was whitish-yellow discharge inside the abdomen. it was full of pus. Both ovaries turned out . concluded that the underscored phrase was taken out of context by the trial court. Q And what was the result? A Opening up her abdomen. Kho's knowledge of the piece of rubber could not be based on other than first hand knowledge for. we found a [piece of] rubber on the right side. cleaning up the uterus. on opening up or freeing it up from the uterus. as she asserted before the trial court: Q But you are sure you have seen [the piece of rubber]? A Oh yes. The Court of Appeals. to have pus. Kho's testimony.[26] . .[22] After deciphering the cryptic petition. I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the tissues but unluckily I don't know where the rubber was.[25] Not even the Pathologist's Report. The petitioners contend that the Court of Appeals misappreciated the following portion of Dr. on the other hand. although devoid of any mention of a piece of rubber. especially the following: Q So you did actually conduct the operation on her? A Yes. [23] (Italics supplied) The petitioners prefer the trial court's interpretation of the above testimony.. I was just thinking at the back of my mind. the trial court should have likewise considered the other portions of Dr. or when the appellate court misapprehended the facts. and that she sent it to a laboratory and then to Cebu City for examination by a pathologist. And even if we were to doubt Dr.e. Kho found a piece of rubber near private respondent Villegas' uterus. Furthermore. Although hearsay. it is not required that the whole of his uncorroborated testimony be rejected.[32] But the trial court failed to recognize that the assertions of Drs.[34] The trial court's following declaration shows that while it was critical of the lack of care with which Dr. Kho as to what she did to the piece of rubber. Kho's trustworthiness: . i. leaving her trustworthiness unimpaired. and hence. Batiquin's statement cannot belie the fact that Dr. Dr. the trial court pointed out that the absence of a rubber drain was corroborated by Dr. we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent Villegas' abdomen. Batiquin's testimony: that no rubber drain was used in the operation. Kho. Batiquin's assistant during the operation on private respondent Villegas.[31] Moreover. as the petitioners advocate. but such portions thereof deemed worthy of belief may be credited.The petitioners emphasize that the private respondents never reconciled Dr.. Kho's testimony.[30] and that there was neither any tear on Dr.[28] Nevertheless. Kho about the foreign body. Kho was frank throughout her turn on the witness stand. Doris Sy. Batiquin's claim was not objected to. And it has been aptly said that even when a witness is found to have deliberately falsified in some material particulars. While the petitioners claim that contradictions and falsities punctured Dr. such positive testimony must come from a credible source. Kho's testimony with Dr. the latter said that there was a piece of rubber but that she threw it away. thus only supporting out appraisal of Dr. Batiquin's gloves after the operation nor blood smears on her hands upon removing her gloves. it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve his testimony with respect to other facts. Kho handled the piece of rubber. Dr. Well-settled is the rule that positive testimony is stronger than negative testimony. the same is admissible[27] but it carries no probative value. whether she threw it away or sent it to Cebu City. On this score. Batiquin confronted Dr. it was not prepared to doubt Dr. Kho as a credible witness. assuming otherwise. which leads us to the second assigned error. Kho's credibility. Batiquin's claim on the witness stand that when Dr. Dr. a reading of the said testimony reveals no such infirmity and establishes Dr.[29] It is here worth nothing that the trial court paid heed to the following portions of Dr. no motive to state any untruth was ever imputed against Dr. Batiquin and Sy were denials or negative testimonies. Dr.[33] Of course. This is not to say that she was less than honest when she testified about her findings, but it can also be said that she did not take the most appropriate precaution to preserve that "piece of rubber" as an eloquent evidence of what she would reveal should there be a "legal problem" which she claim[s] to have anticipated.[35] Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber was indeed found in private respondent Villegas' abdomen] prevails over the negative testimony in favor of the petitioners. As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and operation of this doctrine: This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." Or as Black's Law Dictionary puts it: Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that [the] instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the] mere fact that [the] accident happened provided [the] character of [the] accident and circumstances attending it lead reasonably to belief that in [the] absence of negligence it would not have occurred and that thing which caused injury is shown to have been under [the] management and control of [the] alleged wrongdoer . . . . Under [this] doctrine . . . the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that [the] injury was caused by an agency or instrumentality under [the] exclusive control and management of defendant, and that the occurrence [sic] was such that in the ordinary course of things would not happen if reasonable care had been used. xxx xxx xxx The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available.[36] In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas' body, which, needless to say, does not occur unless through the intervention of negligence. Second, since aside from the cesarean section, private respondent Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a by-product of the cesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas' abdomen and for all the adverse effects thereof. As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the people,[37] and State's compelling interest to enact measures to protect the public from "the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma."[38] Indeed, a physician is bound to serve the interest of his patients "with the greatest of solicitude, giving them always his best talent and skill."[39] Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her profession's rigid ethical code and in contravention of the legal standards set forth for professionals, in the general,[40] and members of the medical profession,[41] in particular. WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto. Costs against the petitioners. SO ORDERED. Republic of the Philippines Supreme Court Manila SECOND DIVISION G. and MENDOZA. TAN. PERALTA. Petitioner. deposited the aforesaid check to its account with Solid Bank.. 1992[4] in the amount of P34. respondent's balance with petitioner was P35. After clearing.: Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to set aside the Decision [1] and the Resolution[2] of the Court of Appeals (CA) in CA-G. J. JJ.72 in favor of Sulpicio Lines.R. Cebu City. 275100 postdated May 30. The antecedents are as follows: Respondent Arcelito B. CV No.59. ABAD. Inc. respondent issued PCIB Check No.Tan maintained a current and savings account with Philippine Commercial International Bank (PCIB).EQUITABLE PCI BANK. now petitioner Equitable PCI Bank. 165339 Present: CARPIO. NACHURA. Inc. August 23. On May 14. J.versus- Promulgated: ARCELITO B. . 41928. . Chairperson. 1992. Sulpicio Lines. 2010 Respondent. the amount of the check was immediately debited by petitioner from respondent's account thereby leaving him with a balance of only P558.87.147.588. Carbon Branch. No. As of May 14. 1992.R. x-------------------------------------------------x DECISION PERALTA.[3] On May 13. 1992. attorney's fees and litigation expenses. respectively.01.. Respondent claimed that Check No. exemplary damages. 1992 payable to Agusan del Norte Electric Cooperative Inc. 1992. and PCIB Check No. . 275100. and it was restored only on July 20 and August 24. and that his account with petitioner would have had sufficient funds to cover payment of the three other checks were it not for the negligence of petitioner in immediately debiting from his account Check No. 275080.472. located in Talacogon. 314104 dated May 16. 15. respectively. even as the said check was postdated to May 30. which brought about the dishonor of the two checks paid to ASELCO and ANECO. the business operations thereof were stopped. 1992. and in Golden Ribbon. praying for payment of losses consisting of unrealized income in the amount of P1. 1992.000. the electric power supply for the two mini-sawmills owned and operated by respondent. payable to Agusan del Sur Electric Cooperative Inc. in the amount of P34.500. PCIB Check No. When presented for payment. 275080 and 275097 which were payable to ASELCO and ANECO. (ASELCO) for the amount of P6. As a consequence of petitioner's error. respondent filed with the Regional Trial Court (RTC) of Cebu City a complaint against petitioner.864. 1992. 275097 dated May 10. PCIB Check No. PCIB Check Nos. 275080 dated May 9. respondent issued three checks from May 9 to May 16. 16 and 17. Butuan City.00. specifically.72. As a result of the dishonor of Check Nos. respectively. 1992 payable in cash for the amount of P10. (ANECO) for the amount of P6.Meanwhile.427. 1992. the electric supply to his two mini-sawmills was cut off. 275100 was a postdated check in payment of Bills of Lading Nos. Due to the foregoing. He also prayed for payment of moral damages. was cut off on June 1. 275097 and 314014 were dishonored for being drawn against insufficient funds. Agusan del Sur.68.588.00. and purchase orders were not duly served causing tremendous losses to him. 1992 and May 28. 00. P50. EXEMPLARY DAMAGES AND ATTORNEY'S FEES. 1992. in its Decision[5] dated June 21.500. MORAL DAMAGES. 2004. 275100 WAS DATED MAY 3. II THE COURT OF APPEALS ERRED IN REVERSING THE FINDING OF THE REGIONAL TRIAL COURT THAT CHECK NO. Aggrieved by the Decision. P50.00 as actual damages.000. . IV THE COURT OF APPEALS ERRED IN AWARDING ACTUAL DAMAGES. After trial. III THE COURT OF APPEALS ERRED IN NOT HOLDING THAT RESPONDENT'S WAY OF WRITING THE DATE ON CHECK NO.00 by way of moral damages. 275100 WAS THE PROXIMATE CAUSE OF THE DISHONOR OF HIS THREE OTHER CHECKS. 2004.864.000. 82-04-CG BY HOLDING ON TO THIS CASE AND DECIDING IT INSTEAD OF UNLOADING IT AND HAVING IT RE-RAFFLED AMONG THE DIVISIONS IN CEBU CITY. 1992. 1993. which the CA denied in a Resolution dated August 24. the Court of Appeals reversed the decision of the trial court and directed petitioner to pay respondent the sum of P1. the instant petition assigning the following errors: I THE FOURTH DIVISION OF THE COURT OF APPEALS DEFIED OFFICE ORDER NO. petitioner denied that the questioned check was postdated May 30. Petitioner filed a motion for reconsideration. the RTC.00 as exemplary damages and attorney's fees in the amount of P30.000. 1992 and claimed that it was a current check dated May 3. ruled in favor of petitioner and dismissed the complaint. It alleged further that the disconnection of the electric supply to respondent's sawmills was not due to the dishonor of the checks. Hence.[6] In its Decision dated May 31. respondent filed a Notice of Appeal. but for other reasons not attributable to the bank.In its defense. 41928 so that it may be re-raffled among the Divisions in Cebu City. Section 10 of Batas Pambansa Blg. it is provided that: Section 3. 2004. 10. conformable to Section 5 of the said statute.Anent the first issue. CV No. CA-G. 8246. xxxx Petitioner alleged that since the aforementioned Office Order directed the raffle of civil. Garcia when it failed to unload CA-G. CV No. 2004 issued by then CA Presiding Justice Cancio C.A. 2004. is hereby further amended to read as follows: Sec. Respondent argued that the CA's Fourth Division correctly acted in taking cognizance of the case.A. 82-04-CG[7] provides: xxxx In view of the reorganization of the different Divisions due to the appointment of eighteen (18) new Justices to the additional divisions in the cities of Cebu and Cagayan de Oro.R. 2004. shall start on April 12. 2004. criminal and special cases submitted for decision and falling within the jurisdiction of the additional divisions on April 6. 41928 should have been unloaded by the CA's Fourth Division and re-raffled to the CA's Division in Cebu City instead of deciding the case on May 31.) 8246[8] on February 1. The Court of Appeals shall have its permanent stations as follows: The first seventeen (17) . Petitioner's argument is misplaced. Office Order No. The CA defended its jurisdiction by ruling that cases already submitted for decision as of the effectivity of Republic Act (R. criminal and special cases submitted for decision and falling within the jurisdiction of the additional divisions shall commence on April 6. 129. as amended. The raffle of newly-filed cases and those for completion likewise falling within the jurisdiction of the additional divisions. 82-04-CG dated April 5. the raffle of civil.R. Place of Holding Sessions. 1997 were no longer included for re-raffle to the newly-created Visayas and Mindanao Divisions of the CA. Under Section 3 of R. petitioner submits that the CA defied Office Order No. Seventh and Eighth Judicial Regions. 1992. [10] Hence. all pending cases. 8246. administrative issuances must not override.e. and Twentieth Divisions shall be in Cebu City for cases coming from the Sixth. As to the second issue.A. February 1. Trials or hearings in the Court of Appeals must be continuous and must be completed within three (3) months unless extended by the Chief Justice of the Supreme Court. can no longer be referred to the CA's Division in Cebu City. Thus. Nineteenth. the Twenty-first. the CA's Former Fourth Division correctly ruled that CA-G. for the purpose of hearing and deciding cases. Office Order No. except those which have been submitted for resolution. which was already submitted for decision as of the effectivity of R. CA-G. shall be referred to the proper division of the Court of Appeals. 82-04-CG cannot defeat the provisions of R. or for such periods and at such places as the Supreme Court may determine. Further.R. 275100 . may authorize any division of the Court to hold sessions periodically. petitioner maintains that the CA erred in reversing the finding of the RTC that Check No. CV No. 41928. the Eighteenth. Section 5 of the same Act provides: Upon the effectivity of this Act.A. 1997. 41928 pending in its division was not among those cases that had to be re-raffled to the newly-created CA Divisions in the Visayas Region. the said case was already submitted for decision as of July 25.[9] Although CA-G. but must remain consistent with the law they intend to carry out. Further. 1994.divisions shall be stationed in the City of Manila for cases coming from the First to the Fifth Judicial Regions.. Petitioner argued that in arriving at the conclusion that Check No. the Supreme Court. 41928 originated from Cebu City and is thus referable to the CA's Divisions in Cebu City. 8246. Whenever demanded by public interest. or whenever justified by an increase in case load. CV No. and Twelfth Judicial Regions. i. Twentysecond and Twenty-third Divisions shall be in Cagayan de Oro City for cases coming from the Ninth. Tenth.R.R. CV No. [11] Thus. Eleventh. 275100 was dated May 3. upon its own initiative or upon recommendation of the Presiding Justice of the Court of Appeals. supplant or modify the law. or May 30. [12] Due to the divergence of the findings of the CA and the RTC. The RTC ruled that: xxxx The issue to be resolved in this case is whether or not the date of PCIB Check No. 275100 was postdated to May 30. 275100 is May 3. 1992. 16 and 17. the check was issued to Sulpicio Lines in payment of bill of lading nos. 1992 and not May 3. Inc. the CA just made a visual examination of the check. Likewise. Furthermore. only questions of law may be raised. According to the plaintiff. however. The date of the check is written as follows 5/3/0/92. 17 shows that it was issued to Jazz Cola and not to plaintiff. 275100. 1992. Inc. We shall re-examine the facts and evidence presented before the lower courts. shows that the same was issued. not in favor of plaintiff but in favor of Coca Cola Bottlers Philippines. 1992 as claimed by the plaintiff. the Court cannot really make a pronouncement as to whether the true date of the check is May 3 or May 30.was postdated May 30. 1992. Therefore. From the foregoing. binding on this Court. Bill of Lading No. One of these is when the findings of the appellate court are contrary to those of the trial court. 1992 as contended by the defendant. 16 is issued in favor of Suson Lumber and not to plaintiff. in an appeal by certiorari under Rule 45 of the Rules of Court. without inquiring into the background facts leading to the issuance of said check. as a rule. the evidence on record does not support the . the said receipt shows that it was paid in cash and not by check. Moreover. unlike the RTC which verified the truth of respondent's testimony relative to the issuance of Check No. Respondent argued that the check was carefully examined by the CA which correctly found that Check No. this rule is subject to certain exceptions.However. and not by plaintiff. Bill of Lading No. The principle is well established that this Court is not a trier of facts. 15. The resolution of factual issues is the function of the lower courts whose findings on these matters are received with respect and are. 15. the receipt for the payment of the freight for the shipments reflected in these three bills of lading shows that the freight was paid by Coca Cola Bottlers Philippines. From the manner by which the date of the check is written. An examination of bill of lading no. 275100[14] would readily show that it was dated May 30. Besides. The trial court's conclusion is preposterous and illogical. DDDD-4). thereby leading it to read the date as May 3. 1992 and not May 3. The presence of the figure 0 after the number 3 is quite significant. And if we were to accept appellees theory that what we find to be an unintentional mark or line between the figures 3 and 0 is a bar separating the two numbers. which is simply absurd. 16 and 17. 1992 and appellee Bank or its personnel erred in debiting the amount of the check from appellants account even before the checks due date. we agree with appellant that appellee Bank apparently erred in misappreciating the date of Check No. 15. well-defined and bold strokes. 1992 as urged by appellee. Hence. thereby contradicting appellees theory that the number 3 is separated from the figure 0 by a bar. because the same check was not issued to pay for Bills of Lading Nos. The first bar (/) which separates the numbers 5 and 30 and the second bar (/) which further separates the number 30 from the year 1992 appear to have been done in heavy. 1992 and not May 30. is not actually a bar or a slant but appears to be more of an unintentional marking or line done with a very light stroke. 1992. 1992. 1992. 275100 was issued in payment of bills of lading nos. Besides. 15. the trial court need not look into the purpose for which the check was issued.claim of the plaintiff that Check No. the date of the check would then appear as 5/3/0/1992. as respondent claims. Hence. 275100. A reading of Check No. We have carefully examined the check in question (Exh. Undoubtedly. In other words. a close examination thereof would unerringly show that the said number zero or 0 is connected to the preceeding number 3. The purpose for the issuance of the check has no logical connection with the date of the check. As correctly observed by the CA: On the first issue. had not appellee bank prematurely debited the amount of . we cannot go along with appellees theory which will lead us to an absurd result. 1992 is clearly untenable considering the presence of the figure 0 after 3 and another bar before the year 1992. 1992. In fact. clearly indicating the date of the check as 5/30/1992 which obviously means May 30.[13] xxxx In fine. DDDD) and we are convinced that it was indeed postdated to May 30. It is therefore our conclusion that the check was postdated to May 30. the alleged bar (/) which appellee points out as allegedly separating the numbers 3 and 0. the drawer of the check wrote the figures 30 in one continuous stroke. 1992. the conclusion of the Court is that the date of the check was May 3. 16 and 17. On the other hand. 1992 and not May 30. the RTC concluded that the check was dated May 3. The date written on the check clearly appears as 5/30/1992 (Exh. appellees theory that the date of the check is May 3. A.A. and as promptly as possible. would not have been dishonored and the said payees would not have disconnected their supply of electric power to appellants sawmills. The diligence required of banks. always having in mind the fiduciary nature of their relationship. Although R. the depositor expects the bank to treat his account with the utmost fidelity. the two other checks (Exhs. The State recognizes the vital role of banks in providing an environment conducive to the sustained development of the national economy and the fiduciary nature of banking that requires high standards of integrity and performance. 1992 and May 16. In furtherance thereof. is more than that of a good father of a family. v. Inc.[16] which was decided in 1990. Section 2 of R. therefore. 8791 took effect only in the year 2000. [18] From the foregoing. and the latter would not have suffered losses. it is clear that petitioner bank did not exercise the degree of diligence that it ought to have exercised in dealing with its client. confident that the bank will deliver it as and to whomever he directs. dynamic and responsive to the demands of a developing economy. The bank must record every single transaction accurately. Court of Appeals. 8791[15] decrees: Declaration of Policy. . whether such account consists only of a few hundred pesos or of millions. 8791 at the time of the untimely debiting of respondent's account by petitioner in May 1992. LLLL and GGGG) successively dated May 9. This has to be done if the account is to reflect at any given time the amount of money the depositor can dispose of as he sees fit. respectively. the bank is under obligation to treat the accounts of its depositors with meticulous care. In Simex International (Manila).[17] In every case. The law imposes on banks high standards in view of the fiduciary nature of banking.A. the Court held that as a business affected with public interest and because of the nature of its functions. the State shall promote and maintain a stable and efficient banking and financial system that is globally competitive. the Court had already imposed on banks the same high standard of diligence required under R.the check from appellants account before its due date. down to the last centavo. 1992 which were paid by appellant to ASELCO and ANECO. unbroken by any efficient intervening cause. petitioner was confused on whether the check was dated May 3 or May 30 because of the / which allegedly separated the number 3 from the 0. Petitioner should have exercised the highest degree of diligence . 1992 and not May 3. is under strict liability to pay to the order of the payee in accordance with the drawers instructions as reflected on the face and by the terms of the check. The bank on which the check is drawn. [19] The proximate cause of the loss is not respondent's manner of writing the date of the check. If.With respect to the third issue. In its memorandum[21] filed before the RTC. which resulted in the subsequent dishonor of several checks issued by the respondent and the disconnection by ASELCO and ANECO of his electric supply. 275100 was the proximate cause of the dishonor of his three other checks. in a natural and continuous sequence. Contrary to petitioners view. The proximate cause is petitioners own negligence in debiting the account of the respondent prior to the date as appearing in the check. 275100 to be dated May 30. petitioner submits that respondent's way of writing the date on Check No. indeed. bank tellers would not receive nor honor such checks which they believe to be unclear. and without which the result would not have occurred. as it was very clear that he intended Check No. 1992. without the counter-signature of its drawer. As a matter of practice. known as the drawee bank. petitioner should have required respondent drawer to countersign the said / in order to ascertain the true intent of the drawer before honoring the check. the Court finds that its negligence is the proximate cause of respondents loss. produces the injury. payment made before the date specified by the drawer is clearly against the drawee bank's duty to its client.[20] Thus. petitioner submits that respondent caused confusion on the true date of the check by writing the date of the check as 5/3/0/92. Proximate cause is that cause which. xxxx Although petitioner failed to specify in the letter the other details of this postdated check. of a postdated check which ironically and without bad faith passed undetected through several eyes from the payee of the check down to the depository bank and finally the drawee bank (PCIB) the aforesaid Check No.472. petitioner's branch manager. the Court finds that petitioner was . however. 1992 with SOLIDBANK Carbon Branch. We hope that the foregoing will sufficiently explain the circumstances of the dishonor of PCIB Check No. explained the circumstances surrounding the dishonor of PCIB Check No. that Mr. 275097 and would clear the name and credit of Mr. which passed undetected from the eyes of the payee down to the petitioner drawee bank. Tan (MANWOOD Industries) which was returned by PCIB Mandaue Branch for insufficiency of funds. 275097. 275097 dated May 16. in a letter[22] addressed to ANECO. It should be emphasized. Arcelito B.required of it by ascertaining from the respondent the accuracy of the entries therein. Thank you. Please be advised that the return of the aforesaid check was a result of an earlier negotiation to PCIB-Mandaue Branch through a deposit made on May 14. Pedro D.01 payable to your goodselves issued by Mr. in order to settle the confusion. Arcelito B. 1992 ANECO Agusan del Norte Gentlemen: This refer (sic) to PCIB Check No. instead of proceeding to honor and receive the check. Arcelito Tan from any misimpressions which may have resulted from the dishonor of said check. Thus: June 11. Tradio. 1992 in the amount of P6. Tan was in no way responsible for the dishonor of said PCIB Check No. 275097 issued to you would have been honored because it would have been sufficiently funded at the time it was negotiated. Further. or through Central Bank clearing via Philippine Clearing House Corporation facilities. 275097. 275097 (Exh.[23] Evidently. We now resolve the question on the award of actual. appellant [respondent herein] presented adequate evidence to prove losses consisting of unrealized income that .[24] the Court ruled: x x x Banks handle daily transactions involving millions of pesos. 275097.864. Cabamongan. 275100 which was deposited to Solidbank. and was postdated May 30. By the very nature of their works the degree of responsibility. as well as attorney's fees by the CA to the respondent. The CA ruled that: x x x In the case at bar. Needless to state. Banks are expected to exercise the highest degree of diligence in the selection and supervision of their employees. 1992 with SOLIDBANK xxx xxx xxx of a postdated check which xxx xxx passed undetected. 1992.evidently referring to no other than Check No. v. As correctly found by the CA: In the aforequoted letter of its Manager. it [necessarily] follows that responsibility therefor or fault for the dishonor of the check should fall on appellee bank. In Citibank.00 on the purchase orders[25] submitted by respondent. since appellee's Manager has cleared appellant of any fault in the dishonor of the ANECO check.500. but it was dishonored as a result of an earlier negotiation to PCIB-Mandaue Branch through a deposit made on May 14. Petitioner was negligent in the selection and supervision of its employees. care and trustworthiness expected of their employees and officials is far greater than those of ordinary clerks and employees. Tan was in no way responsible for the dishonor of said PCIB Check No. the bank's negligence was the result of lack of due care required of its managers and employees in handling the accounts of its clients. N. appellee Bank expressly acknowledged that Check No. The CA based the award of actual damages in the amount of P1.A. Appellee's attempt to extricate itself from its inadvertence must therefore fail in the face of its Manager's explicit acknowledgment of responsibility for the inadvertent dishonor of the ANECO check. GGGG) which appellant paid to ANECO was sufficiently funded at the time it was negotiated. moral and exemplary damages. Arcelito B. He further admitted that Mr. Purchase Order No. [26] To recover actual damages.[28] Moreover. an examination of the purchase orders and job orders reveal that the orders were due for delivery prior to the period when the power supply of respondent's two sawmills was cut off on June 1. aside from the purchase orders and his testimony. . 9906[29] delivery date is May 4. it must also be actually proven with a reasonable degree of certainty. 1992. 1992. conjecture or guesswork in determining the amount of damages. Appellant identified certain Purchase Orders from various customers which were not met by reason of the disruption of the operation of his sawmills when ANECO and ASELCO disconnected their supply of electricity thereto. No other evidence was provided by respondent to show that the foregoing purchase orders were not met or were canceled by his various customers. Clearly. 1992. The Court cannot simply rely on speculation. respectively. not only must the amount of loss be capable of proof. 1992 and May 28. 9269[30] delivery date is March 19.he sustained as a result of the appellee Bank's gross negligence. 1992 to August 24. [27] Respondent's claim for damages was based on purchase orders from various customers which were allegedly not met due to the disruption of the operation of his sawmills.[33] dated March 18. However. 1992 to July 20. 1992. They arise out of a sense of natural justice and are aimed at repairing the wrong done. 76000[32] delivery date is February and March 1992. 1824. Except as provided by law or by stipulation. x x x Actual or compensatory damages are those awarded in order to compensate a party for an injury or loss he suffered. a party is entitled to an adequate compensation only for such pecuniary loss as he has duly proven. Purchase Order No. 147796 [31] is due for delivery on January 31. respondent failed to present competent proof on the specific amount of actual damages he suffered during the entire period his power was cut off. premised upon competent proof or the best evidence obtainable. Purchase Order No. Purchase Order No. and Job Order No. has a 15 days duration of work. 1992. Article 2216[36]of the Civil Code instructs that assessment of damages is left to the discretion of the court according to the circumstances of each case. besmirched reputation. the sum ofP50. which temporarily halted his business operations and the consequent loss of business opportunity. the principle affording relief to those definitely injured who are unable to prove how definite the injury. from the nature of the case. which are more than nominal but less than compensatory damages. Anent the award of moral damages. respondent is entitled to temperate damages. 1992 to August 24. 1992 could not possibly affect his sawmill operations and prior orders therefrom. in the absence of competent proof on the actual damages suffered. The negligence of petitioner triggered the disconnection of his electrical supply. Under Article 2224 of the Civil Code of the Philippines. may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot. Given the dearth of respondent's evidence on the matter. Nonetheless.00 as temperate damages is reasonable.[34] The allowance of temperate damages when actual damages were not adequately proven is ultimately a rule drawn from equity.the disconnection of his electricity during the period May 28. the Court resolves to delete the award of actual damages rendered by the CA in favor of respondent for his unrealized income. We cannot place its amount with certainty. due to the insufficiency of evidence before Us. However. mental anguish. fright.000. Under the circumstances. social humiliation and similar injuries unjustly . serious anxiety. moral shock. be proved with certainty. it is settled that moral damages are meant to compensate the claimant for any physical suffering.[35] It is apparent that respondent suffered pecuniary loss. temperate or moderate damages. wounded feelings. embarrassment and humiliation. banks have attained an ubiquitous presence among the people.[37] In Philippine National Bank v. On the award of exemplary damages. in addition to the moral. As found by the CA.established corporations. confidence. While petitioner's negligence in that case may not have been attended with malice and bad faith. the unexpected cutting off of respondent's electricity. Court of Appeals. respondent had been reposed with a certain degree of trust by various reputable and well. Exemplary or corrective damages are imposed. The award of P50. mental anguish and serious anxiety. serious anxiety. who have come to regard them with respect and even gratitude and most of all.caused.00 is reasonable. as an accredited supplier. For this reason. The law allows the grant of exemplary damages to set an example for the public good. by way of example or correction for the public good. Article 2229 of the Civil Code states: Art. We ruled that respondent therein was entitled to recover reasonable moral damages. The banking system has become an indispensable institution in the modern world and plays a vital role in the economic life of every civilized society. In said case. liquidated or compensatory damages. which resulted in the stoppage of his business operations. 2229.[38] the Court held that a bank is under obligation to treat the accounts of its depositors with meticulous care whether such account consists only of a few hundred pesos or of millions of pesos. In this case. considering the reputation and social standing of respondent. the banks' negligence caused respondent to suffer mental anguish. had caused him to suffer humiliation. Responsibility arising from negligence in the performance of every kind of obligation is demandable. Whether as mere passive entities for the safekeeping and saving of money or as active instruments of business and commerce. banks should guard against injury .000. temperate. and 2.[41] Respondent has been forced to undergo unnecessary trouble and expense to protect his interest.00) as actual damages. Consequently.500. that attorney's fees may be recovered when exemplary damages are awarded or when the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest.attributable to negligence or bad faith on its part. The award of One Million Eight Hundred Sixty-Four Thousand and Five Hundred Pesos (P1. Article 2208[40] of the Civil Code provides.00) as temperate damages. isDELETED.[39] Petitioner. As to the award of attorney's fees. respectively. having failed in this respect. it has been repeatedly emphasized that since the banking business is impressed with public interest.000. 41928. the petition is PARTIALLY GRANTED. and high standards of integrity and performance are even required of it. dated May 31. Without a doubt. SO ORDERED. CV No. 2004 and August 24.864. The Decision and Resolution of the Court of Appeals in CA-G.000. are AFFIRMED with the following MODIFICATIONS: 1.00 is in order. Petitioner Equitable PCI Bank is instead directed to pay respondent the amount of Fifty Thousand Pesos (P50. among others.R.000. in favor of respondent Arcelito B. the award of exemplary damages in the amount ofP50. WHEREFORE. Tan. the highest degree of diligence is expected.00. Republic of the Philippines Supreme Court Baguio City . of paramount importance thereto is the trust and confidence of the public in general. 2004. The Court affirms the appellate courts award of attorneys fees in the amount of P30. April 25. In doing a friend a favor to help the latters friend collect the proceeds of a foreign check.. And just when the money had been withdrawn and distributed among different beneficiaries. and VILLARAMA. PHILIPPINE NATIONAL BANK. to the .R. G. No. it was discovered that all along.Wingates Maxim. The local bank accepted the check for collection and immediately credited the proceeds thereof to said spouses account even before the lapse of the clearing period.J..FIRST DIVISION PHILIPPINE NATIONAL BANK. and therefore. x--------------------------------x SPOUSES CHEAH CHEE CHONG and OFELIA CAMACHO CHEAH. Respondents.versus - G.versus SPOUSES CHEAH CHEE CHONG and OFELIA CAMACHO CHEAH. No. C. LEONARDO-DE CASTRO. a woman deposited the check in her and her husbands dollar account. hateth folly and negligence. JJ. Chairperson. . DEL CASTILLO. Petitioners.: Law favoreth diligence.R. Promulgated: Respondent. 2012 x------------------------------------------------------------------x DECISION DEL CASTILLO. 170892 Present: CORONA. 170865 . JR. J. Petitioner. BERSAMIN. 000. while the spouses Cheah plead that they be declared entirely faultless. Ofelia agreed.5%. 265705612-2 with PNB Buendia Branch. Eduardo Rosales against Bank of America Alhambra Branch in California. USA. 1992. should equally suffer the resulting loss. Because Adelina does not have a dollar account in which to deposit the check. Filipina Tuazon (Filipina). That same day. hence. The check is Bank of America Check No. For its part. PNB received a credit advice [8] from Philadelphia National Bank . she and her bank had dealt with a rubber check. Garin discussed with them the process of clearing the subject check and they were told that it normally takes 15 days. Ofelia and Adelina went to PNB Buendia Branch. CV No. 63948 which declared both parties equally negligent and. They met with Perfecto Mendiola of the Loans Department who referred them to PNB Division Chief Alberto Garin (Garin). Five days later. Factual Antecedents On November 4. she asked Ofelia if she could accommodate Filipinas request since she has a joint dollar savings account with her Malaysian husband Cheah Chee Chong (Chee Chong) under Account No.00. spouses Cheah. PNB then sent it for clearing through its correspondent bank.horror of the woman whose intention to accommodate a friends friend backfired. 2005 Decision[4] and December 21. 2005 Resolution [5]of the Court of Appeals (CA) in CA-G. for the amount wrongfully paid the latter.R. These consolidated[1] Petitions for Review on Certiorari filed by the Philippine National Bank (PNB)[2] and by the spouses Cheah Chee Chong and Ofelia Camacho Cheah (spouses Cheah)[3] both assail the August 22.[7] Assured that the deposit and subsequent clearance of the check is a normal transaction. Philadelphia National Bank. payable to cash. 190[6] under the account of Alejandria Pineda and Eduardo Rosales and drawn by Atty. PNB questions why it was declared blameworthy together with its depositors. with a face amount of $300. Ofelia deposited Filipinas check. approached her to ask if she could have Filipinas check cleared and encashed for a service fee of 2. Ofelia Cheah (Ofelia) and her friend Adelina Guarin (Adelina) were having a conversation in the latters office when Adelinas friend. PNB Buendia Branch learned about the bounced check when it received on November 20. Garin called up Ofelia to inform her that the check had already been cleared. Said agencys AntiFraud and Action Division was later able to apprehend some of the beneficiaries of the proceeds of the check and recover from them $20. In their effort to recover the money. 1992 SWIFT message was attached. the Cable Division of PNB Head Office in Escolta. informing PNB of the return of the subject check for insufficient funds.000.[14] However. PNB Head Office sent Philadelphia National Bank a SWIFT message informing the latter that SWIFT message with TRN 46506218 has been relayed to PNBs various divisions/departments but was returned to PNB Head Office as it seemed misrouted. from Philadelphia National Bank to which the November 13. Informed about the bounced check and upon demand by PNB Buendia Branch to return the money withdrawn.248. PNB Head Office thus requested for Philadelphia National Banks advice on said SWIFT messages proper disposition. Criminal charges were then filed against these suspect beneficiaries. after deducting the bank charges. 1992. Ofelia that day personally withdrew $180. 1992 a SWIFT [13] message from Philadelphia National Bank dated November 13. But the latter told her that all the money had already been given to several people who asked for the checks encashment.[18] . [9] The following day.00. PNB Head Office ascertained that the SWIFT message was intended for PNB Buendia Branch. PNB Buendia Branch.that the proceeds of the subject check had been temporarily credited to PNBs account as of November 6. 1992 a debit advice. In the meantime. spouses Cheah then sought the help of the National Bureau of Investigation.[16] followed by a letter[17] on November 24.[11] Adelina was able to withdraw the remaining amount the next day after having been authorized by Ofelia. 1992.000. 1992.00. Ofelia immediately contacted Filipina to get the money back. On November 16. Eventually. Manila received on November 16. [10] Acting on Adelinas instruction to withdraw the credited amount.37 to the account of the spouses Cheah.[15] After a few days. credited $299.[12] Filipina received all the proceeds. the PNB Head Office could not ascertain to which branch/office it should forward the same for proper action. 1992 with Transaction Reference Number (TRN) 46506218. Chee Chong signed the letter after the Vice President and Manager of PNB Buendia Branch. i. from the spouses Cheah.44.166. the amount withdrawn would be treated as a loan account with deferred interest while the spouses try to recover the money from those who defrauded them.[22] froze their peso and dollar deposits in the amounts of P275. in violation of its bank practice as mandated by its own bank circular.00 representing the amount they had so far spent in recovering the value of the check. 94-71022. Apparently. the spouses Cheah claimed that the proximate cause of PNBs injury was its own negligence of paying a US dollar denominated check without waiting for the 15-day clearing period. Although some of the officers of PNB were amenable to the proposal. and payment of moral and exemplary damages.80 and $893.000. They further averred that it is unjust for them to pay back the amount disbursed as they never really benefited therefrom. In said complaint. Ruling of the Regional Trial Court . Chee Chong in the end signed a PNB drafted[19] letter[20] which states that the spouses Cheah are offering their condominium units as collaterals for the amount withdrawn. Under this setup. as well as attorneys fees. PNB demanded payment of around P8. they prayed for the return of their frozen deposits. the same did not materialize. the spouses Cheah have been constantly meeting with the bank officials to discuss matters regarding the incident and the recovery of the value of the check while the cases against the alleged perpetrators remain pending.Meanwhile. asked the spouses Cheah to help him and the other bank officers as they were in danger of losing their jobs because of the incident. Asperilla likewise assured the spouses Cheah that the letter was a mere formality and that the mortgage will be disregarded once PNB receives its claim for indemnity from Philadelphia National Bank.[26] Because of this. As counterclaim. the recoupment of P400.202.. spouses Cheah averred that PNB is barred from claiming what it had lost.220. docketed as Civil Case No.e. Erwin Asperilla (Asperilla). PNB General Circular No.[23] and filed a complaint[24] against them for Sum of Money with Branch 50 of the Regional Trial Court (RTC) of Manila. PNB sent a demand letter to spouses Cheah for the return of the amount of the check. Subsequently. 52101/88.46. plus interests[25] and attorneys fees. [21] As their main defense. The dispositive portion of its Decision[27] dated May 20. Filipina Tuazon. . Cheah Chee Chong and Ms. Because Ofelia trusted a friends friend whom she did not know and considering the amount of the check made payable to cash. it ruled that spouses Cheah still cannot escape liability to reimburse PNB the value of the check as an accommodation party pursuant to Section 29 of the Negotiable Instruments Law. SO ORDERED.950. Eduardo Rosales.[29] It likewise applied the principle of solutio indebiti under the Civil Code.accommodated parties) who are privy to the defendants. of US$298. This is without prejudice however. ordering the latter to pay jointly and severally the herein plaintiffs bank the amount: 1. 190 were withdrawn or the prevailing Central Bank Rate at the time the amount is to be reimbursed by the defendants to plaintiff or whatever is lower. 1999 reads: WHEREFORE.25 or its peso equivalent based on Central Bank Exchange Rate prevailing at the time the proceeds of the BA Check No. premises considered. the RTC opined that Ofelia showed lack of vigilance in her dealings. etc. judgment is hereby rendered in favor of the plaintiff Philippine National Bank [and] against defendants Mr. Ofelia Camacho Cheah.The RTC ruled in PNBs favor. No pronouncement as to costs. (Beneficiaries. the RTC held that each party must suffer the consequences of their own acts and thus left both parties as they are. No other award of damages for non[e] has been proven.[28] The RTC held that spouses Cheah were guilty of contributory negligence. With regard to the award of other forms of damages. While the court found that the proximate cause of the wrongful payment of the check was PNBs negligence in not observing the 15-day guarantee period rule. to the rights of the defendants (accommodating parties) to go against the group of Adelina Guarin. Atty. She should have exercised due care by investigating the negotiability of the check and the identity of the drawer.. It ruled in its August 22. the complaint of PNB cannot be dismissed because the Cheah spouses were negligent and Ms. the May 20. 1999 Decision of the Regional Trial Court. Branch 5. WHEREFORE. is hereby REVERSED and SET ASIDE and another one entered DECLARING both parties equally negligent and should suffer and shoulder the loss. 2005 Decision.[31] In so ruling. the CA held that PNB had the last clear opportunity to avoid the impending loss of the money and yet. SO ORDERED. the spouses Cheah appealed to the CA. 94-71022. The remedy of the parties is to go after those who perpetrated. the Cheah spouses cannot entirely bear the loss because PNB allowed her to withdraw without waiting for the clearance of the check.Applying the last clear chance doctrine. PNB is hereby ordered to credit to the peso and dollar accounts of the Cheah spouses the amount due to them.On the other hand. To the CA.[30] viz: As both parties were equally negligent. PNB cannot claim from spouses Cheah even if the latter are accommodation parties . and benefited from. and as provided in its own General Circular No. it is but right and just that both parties should equally suffer and shoulder the loss. Accordingly. As earlier stated. in Civil Case No. Manila. Cheah took an active part in the deposit of the check and the withdrawal of the subject amounts. 52/101/88. Ruling of the Court of Appeals While the CA recognized the spouses Cheah as victims of a scam who nevertheless have to suffer the consequences of Ofelias lack of care and prudence in immediately trusting a stranger. the CA ratiocinated that PNB Buendia Branchs non-receipt of the SWIFT message from Philadelphia National Bank within the 15-day clearing period is not an acceptable excuse. the scam.Unwilling to accept the judgment. The scam would not have been possible without the negligence of both parties. the appellate court did not hold PNB scot-free. it glaringly exhibited its negligence in allowing the withdrawal of funds without exhausting the 15-day clearing period which has always been a standard banking practice as testified to by PNBs own officers. Our Ruling The petitions for review lack merit. Hence. Hence.[35] Even PNBs agreement with Philadelphia National Bank[36] regarding the rules on the collection of the proceeds of US dollar checks refers to business/ banking days. while PNB highlights Ofelias fault in accommodating a strangers check and depositing it to the bank. As declared by Josephine Estella.under the law as the banks own negligence is the proximate cause of the damage it sustained. the Administrative Service Officer who was the banks Remittance Examiner. Ofelia deposited the subject check on November 4. produces the injury and without which the result would not have occurred. x x x To determine the proximate cause of a controversy. It is worthy of notice that the 15-day clearing period alluded to is construed as 15 banking days. Hence. 1992. in natural and continuous sequence. Both parties filed their respective Motions for Reconsideration [32] but same were denied in a Resolution[33] dated December 21. unbroken by any efficient intervening cause. it remains mum in its release of the proceeds thereof without exhausting the 15-day clearing period. the 15thbanking day from the date of said .[34] Here. it also found Ofelia guilty of contributory negligence. what was unusual in the processing of the check was that the lapse of 15 banking days was not observed. an act which contravened established banking rules and practice. 2005. which. PNBs act of releasing the proceeds of the check prior to the lapse of the 15day clearing period was the proximate cause of the loss. Thus. both parties should be made equally responsible for the resulting loss. the question that needs to be asked is: If the event did not happen. would the injury have resulted? If the answer is no. then the event is the proximate cause. we affirm the ruling of the CA. these Petitions for Review on Certiorari. Nevertheless. Proximate cause is that cause. The delay in the receipt by PNB Buendia Branch of the November 13.[40] With regard to collection or encashment of checks. we said that [b]efore the check shall have been cleared for deposit. suffice it to say that the law imposes on the collecting bank the duty to scrutinize diligently the checks deposited with it for the purpose of determining their genuineness and regularity. This Court already held that the payment of the amounts of checks without previously clearing them with the drawee bank especially so where the drawee bank is a foreign bank and the amounts involved were large is contrary to normal or ordinary banking practice. However. [41] A bank is expected to be an expert in banking procedures and it has the necessary means to ascertain whether a check. and the law thus holds it to a high standard of conduct. [38] wherein the bank allowed the withdrawal of the value of a check prior to its clearing. what happened was that PNB Buendia Branch. [37] Also.[39] PNB miserably failed to do its duty of exercising extraordinary diligence and reasonable business prudence. allowed the proceeds thereof to be withdrawn on November 17 and 18. because had PNB Buendia Branch waited for the expiration of the clearing period and had never released during that time the proceeds of the check. upon calling up Ofelia that the check had been cleared. is sufficiently funded. which the law defines as negligence characterized by the want of even slight care. holds itself out to the public as the expert on this field.deposit should fall on November 25. in Associated Bank v. 1992. . The disregard of its own banking policy amounts to gross negligence. 1992 SWIFT message notifying it of the dishonor of the subject check is of no moment. It bears stressing that the diligence required of banks is more than that of a Roman pater familias or a good father of a family. 1992. the collecting bank can only assume at its own risk x x x that the check would be cleared and paid out. a week before the lapse of the standard 15-day clearing period. it would have already been duly notified of its dishonor. acting or omitting to act in a situation where there is duty to act. being primarily engaged in banking. not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. The highest degree of diligence is expected. Tan. local or foreign. Clearly. PNBs disregard of its preventive and protective measure against the possibility of being victimized by bad checks had brought upon itself the injury of losing a significant amount of money. The collecting bank. are. contributing as a legal cause to the harm he has suffered. failed to exercise under the circumstances. which must be something excusable and which requires the exercise of prudence. can never be equated with a mere mistake of fact. the gross negligence of PNB. The spouses Cheah are guilty of contributory negligence and are bound to share the loss with the bank Contributory negligence is conduct on the part of the injured party. which falls below the standard to which he is required to conform for his own protection. and it was unduly delivered through mistake.[44] The CA found Ofelias credulousness blameworthy. [T]he indispensable requisites of the juridical relation known as solutio indebiti. We agree.[43] In the case at bench. the obligation to return it arises. as earlier discussed. The fact that the check was cleared after only eight banking days from the time it was deposited or contrary to what Garin told her that clearing takes 15 days should have already put Ofelia on guard. PNB cannot recover the proceeds of the check under the principle it invokes. She should have first verified the regularity of such hasty clearance considering that if something goes wrong . (a) that he who paid was not under obligation to do so. Considering that Filipina was not personally known to her and the amount of the foreign check to be encashed was $300. No recovery is due if the mistake done is one of gross negligence.000.Incidentally. Indeed. 2154.00. and (b) that the payment was made by reason of an essential mistake of fact. PNB obliges the spouses Cheah to return the withdrawn money under the principle of solutio indebiti. Another circumstance which should have goaded Ofelia to be more circumspect in her dealings was when a bank officer called her up to inform that the Bank of America check has already been cleared way earlier than the 15-day clearing period. In the first place. which is laid down in Article 2154 of the Civil Code:[42] Art. however. a higher degree of care is expected of Ofelia which she. Ofelia failed to observe caution in giving her full trust in accommodating a complete stranger and this led her and her husband to be swindled. If something is received when there is no right to demand it. However. The assailed August 22. we are one with the CA in ruling that Ofelias prior consultation with PNB officers is not enough to totally absolve her of any liability. 2005 Decision and December 21.R. SO ORDERED. 63948 are hereby AFFIRMED in toto. WHEREFORE. The two must both bear the consequences of their mistakes.R. Ofelia chose to ignore the same and instead actively participated in immediately withdrawing the proceeds of the check. premises considered. the spouses Cheah are therefore the persons who should return to PNB the money released to them. Republic of the Philippines SUPREME COURT Manila . 170892 are both DENIED. she should have shunned any participation in that palpably shady transaction. the complaint against the spouses Cheah could not be dismissed. All told. Being the ones in privity with PNB. the Court concurs with the findings of the CA that PNB and the spouses Cheah are equally negligent and should therefore equally suffer the loss. In the first place. CV No. Ofelia was the one who dealt with PNB and negotiated the check such that its value was credited in her and her husbands account. Thus. In any case. it is she and her husband who would be put at risk and not the accommodated party. 2005 Resolution of the Court of Appeals in CA-G. 170865 and in G. No.R. No.with the transaction. the Petitions for Review on Certiorari in G. As PNBs client. These rulings. or rigid check-up before it took to the road that morning." This was.400. in a barrio in Marilao Bulacan.R. filed this appeal bycertiorari from the decision of the Court of Appeals which affirmed that rendered by the Court of First Instance of Bulacan in its civil case No. L-21486 May 14. "to pay to plaintiffs the amount of P2.. 1966 LA MALLORCA and PAMPANGA BUS COMPANY.R.R. CA-G. by itself alone and without a showing as to the causative factors. Palapad. Antonio for respondents. P14. 1959. VALENTIN DE JESUS. the cause of the blow-out was known. a mechanical defect of the conveyance or a fault in its equipment which was easily discoverable if the bus had been subjected to a more thorough. June 27. petitioner.00 to each plaintiff by way of moral damages. MANOLO TOLENTINO and COURT OF APPEALS. La Mallorca-Pambusco. CA-G. would generate liability. in a head-on collision between petitioner's bus. Red Line Transportation Co. The suit arose by reason of the death of Lolita de Jesus. No.00 as counsel fees. vs." and (2) in holding petitioners liable for moral damages. on which she was a passenger. 1äwphï1. Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for negligence." Two errors are attributed to the appellate Court: (1) "in sustaining the decision (of the court a quo) holding that the petitioners were liable for the accident which was caused by a blow-out of one of the tires of the bus and in not considering the same as caso fortuito. citing the rulings of the Court of Appeals in Rodriguez vs. P10.: La Mallorca and Pampanga Bus Company. 8136. entitled "Valentin de Jesus and Manolo Tolentino vs. according to petitioner's own evidence and as found by the Court of Appeals "was pressed between the inner circle of the left wheel and the rim which had slipped out of the wheel." The court a quo sentenced the defendant. The inner tube of the left front tire.50 for actual damages. December 29. Considering that the tire which exploded was not new — petitioner describes it as "hindi masyadong kalbo.ñët . J. MAKALINTAL. 2100. however. Chan for petitioners. and a freight truck traveling in the opposite direction. and P3. 1954.00 as compensatory damages. now petitioner. in the morning of October 8. 1958. not only are not not binding on this Court but were based on considerations quite different from those that obtain in the at bar. The immediate cause of the collision was the fact that the driver of the bus lost control of the wheel when its left front tire suddenly exploded.000. 18480. said Court correctly held. Sixto T.EN BANC G. No.000." or not so very worn out — the plea of caso fortuito cannot be entertained.132. In the present case. commonly known as La MallorcaPambusco. 20-year old daughter of Valentin de Jesus and wife of Manolo Tolentino. and People vs. No. respondents. The appellate Court there made no findings of any specified acts of negligence on the part of the defendants and confined itself to the question of whether or not a tire blow-out. Inc.. Then again both the trial court and the Court of Appeals found as a fact that the bus was running quite fast immediately before the accident. Manuel O. Paras. etc. in relation to Article 2206. et al. In this jurisdiction moral damages are recoverable by reason of the death of a passenger caused by the breach of contract of a common carrier..The second issue raised by petitioner is already a settled one. 29. . Mercado vs. These articles have been applied by this Court in a number of cases. L-10605-06. Wherefore. L-18957. 1961. of the Civil Code. as provided in Article 1764. among them Necesito. Villa-Rey Transit vs. 1963. the judgment appealed from is affirmed. 1958. vs. L13328-29. Lira. with costs against petitioners. Bello. June 30. April 23. Sept. and after wrecking the bridge's wooden rails. ET AL. the son. Jose W. ETC. The passenger truck. that the knuckles are designed and manufactured for heavy duty and may last up to ten years. 199 of the Philippine Rabbit Bus Lines at Agno. plaintiffs-appellants. No. was last . After joint trial.R. was drowned. but the front wheels swerved to the right. L-10606 June 30. 1958 GERMAN NECESITO. The money. the Court of First Instance found that the bus was proceeding slowly due to the bad condition of the road. that the knuckle of bus No. Precillano Necesito.000 having been filed in the Court of First Instance of Tarlac (Cases Nos. Pangasinan truck No. plaintiff-appellant. B. NATIVIDAD PARAS. filed by one passenger.. was injured. He was brought to the Provincial Hospital at Dagupan. boarded passenger auto truck or bus No. wrist watch and cargo of vegetables were lost. NATIVIDAD PARAS. x---------------------------------------------------------x G.. J. Pangasinan. 199 entered a wooden bridge.. where the fracture was set but with fragments one centimeter out of line. and the heirs of another. driven by Francisco Bandonell. 908 and 909) against the carrier. No.: These cases involve ex contractu against the owners and operators of the common carrier known as Philippine Rabbit Bus Lines. then proceeded on its regular run from Agno to Manila. L. REYES. vs. L-10605 June 30. carrying vegetables. 1958 PRECILLANO NECESITO. Severina Garces. 199 that broke on January 28. vs. In the morning of January 28. Two actions for damages and attorney's fees totalling over P85.R. J.Republic of the Philippines SUPREME COURT Manila EN BANC G. suffering abrasions and fracture of the left femur. Severina Garces and her one-year old son. a condition that could not be known or ascertained by the carrier despite the fact that regular thirty-day inspections were made of the steering knuckle.. the driver lost control. the latter pleaded that the accident was due to "engine or mechanical trouble" independent or beyond the control of the defendants or of the driver Bandonell. After passing Mangatarem. The mother. defendants-appellees. Diokno for appellees. Tomas Besa and Federico Agrava for appellants. 1954. ET AL. 1964. Precillano Necesito. who injured as a result of the fall into a river of the vehicle in which they were riding. which was defective in that its center or core was not compact but "bubbled and cellulous". defendants-appellees. that the accident was caused by the fracture of the right steering knuckle.. since the steel exterior was smooth and shiny to the depth of 3/16 of an inch all around. ET AL. the truck fell on its right side into a creek where water was breast deep. should nevertheless be held to answer for the flaws of his equipment if such flaws were at all discoverable. Co. Jur. and in no case has he any share in the selection. Having no privity whatever with the manufacturer or vendor of the defective equipment. vs.. dismissed both actions. We are inclined to agree with the trial court that it is not likely that bus No. the manufacturer is considered as being in law the agent or servant of the carrier. Roy. and Ed Note. the rule on the liability of carriers for defects of equipment is thus expressed: "The preponderance of authority is in favor of the doctrine that a passenger is entitled to recover damages from a carrier for an injury resulting from a defect in an appliance purchased from a manufacturer. 102 U. Hence. Plaintiffs appealed directly to this Court in view of the amount in controversy. Ann. new Civil Code). and whether the evidence discloses that in regard thereto the carrier exercised the diligence required by law (Art. The issue is thus reduced to the question whether or not the carrier is liable for the manufacturing defect of the steering knuckle. According to this theory. Cockrell. Co. In the American law. 184. in case of a passenger's death or injury the carrier bears the burden of satisfying the court that he has duly discharged the duty of prudence required. Such conduct on the part of the driver would have provoked instant and vehement protest on the part of the passengers because of the attendant discomfort. 1755. ART. in Francis vs. with a due regard for the all the circumstances. 1324. using the utmost diligence of very cautious persons. J. 1755. or contracted with someone else for its manufacture. While appellants hint that the broken knuckle exhibited in court was not the real fitting attached to the truck at the time of the accident. whenever it appears that the defect would have been discovered by the carrier if it had exercised the degree of care which under the circumstances was incumbent upon it. 1916E 929). of which the passenger has no knowledge. Ed. the passenger does not know whether the carrier has himself manufactured the means of carriage. It is but logical. 205. and was due to be inspected again on February 5th. the trial court. Thus Hannen. If the carrier has contracted with someone else the passenger does not usually know who that person is. and over which he can have no control. Cas. holding that the accident was exclusively due to fortuitous event. Southern R. therefore. while the carrier can . For the purposes of this doctrine. 1756. The rationale of the carrier's liability is the fact that the passenger has neither choice nor control over the carrier in the selection and use of the equipment and appliances in use by the carrier. 1954. the passenger has no remedy against him. It is clear that the carrier is not an insurer of the passengers' safety. 29 ALR 788. LR 5 Q. said: In the ordinary course of things. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide. see also Pennsylvania R. while not in insurer of the safety of his passengers. We are thus forced to assume that the proximate cause of the accident was the reduced strength of the steering knuckle of the vehicle caused by defects in casting it. the good repute of the manufacturer will not relieve the carrier from liability" (10 Am. 141. as far as regards the work of constructing the appliance. and by Art. 2d 70. The liability of the manufacturer must depend on the terms of the contract between him and the carrier. the records they registered no objection on that ground at the trial below. where the carrier is held to the same degree of diligence as under the new Civil Code. 199 of the Philippine Rabbit Lines was driven over the deeply rutted road leading to the bridge at a speed of 50 miles per hour. 451. with regard to inspection and application of the necessary tests. B. that the carrier. as testified for the plaintiffs. his failure to exercise the "utmost" degree of diligence that the law requires. s. while the carrier usually has.inspected on January 5. vs. 20 L. S. 74 ALR 1172. and there is no trace of any such complaint in the records. 42 Fed. Hussey. His liability rests upon negligence. as well as in inspecting each step of their construction. due to a "sand hole" in the course of moulding the axle. the carrier has a remedy against the manufacturer. Co. the rule of respondeat superior to a situation which falls clearly within its scope and spirit. it is presumably the result of negligence at some point by the carrier. and to look for his indemnity to the person whom he selected and whose breach of contract has caused the mischief. made the following observations. This is not a vicarious responsibility. . and lay its tracks. Its duty to furnish safe cars is side by side with its duty to furnish safe track. the only way in which effect can be given to a different intention is by supposing that the carrier is to be responsible to the passenger. therefore. And the carrier in this . and onus probandi is on the proprietors of the coach to establish that there has been no negligence whatever. None of its duties in these respects can be sublet so as to relieve it from the full measure primarily exacted of it by law. 15 LRA (NS) 790. but the passenger has no remedy against the manufacturer for damage arising from a mere breach of contract with the carrier . and to operate them in a safe manner. 601a: "When the injury or damage happens to the passenger by the breaking down or overturning of the coach." When the passenger has proved his injury as the result of a breakage in the car or the wrecking of the train on which he was being carried. 16 Ann. sec. in Story on Bailments. . whether the defect was in the particular car in which he was riding or not. The carrier selects the manufacturer of its cars. in tenderness to human life and limb. and that the damage or injury has been occasioned by inevitable casualty. As stated by Judge Story. or iron moulders. by which such defects might be discovered before the part was incorporated into the car. the presumed intention of the parties be that the passenger should. 608. hold the proprietors liable for the slightest negligence.introduce what stipulations and take what securities he may think proper. Chesapeake & O. as the necessity of this business demands. That it does not exercise control over the former is because it elects to place that matter in the hands of the manufacturer. in holding the carrier responsible for damages caused by the fracture of a car axle. or by some cause which human care and foresight could not prevent. The manufacturer should be deemed the agent of the carrier as respects its duty to select the material out of which its cars and locomotive are built. There is no reciprocal legal relation between him and the public in this respect. among them being to provide itself with suitable and safe cars and vehicles in which carry the traveling public. for the law will. (29 ALR 789) And in the leading case of Morgan vs. undertakes certain duties toward the public. in consideration of certain well-known and highly valuable rights granted to it by the public. the burden is then cast upon the carrier to show that it was due to a cause or causes which the exercise of the utmost human skill and foresight could not prevent. There is no such duty on the manufacturer of the cars. if it does not itself construct them. If there be tests known to the crafts of car builders. the Court. When the carrier elects to have another build its cars. the presumption prima facie is that it occurred by the negligence of the coachmen. instead of retaining the supervising control itself. The carrier. then the failure of the manufacturer to make the test will be deemed a failure by the carrier to make it. precisely as it does those who grade its road. be without remedy. it ought not to be absolved by that facts from its duty to the public to furnish safe cars. and will compel them to repel by satisfactory proofs every imputation thereof. Cas. or by any other accident occurring on the ground. The carrier cannot lessen its responsibility by shifting its undertaking to another's shoulders. . Unless. R. It extends. of which he has no knowledge. For injury resulting to the carrier himself by the manufacturer's want of care. Where an injury is inflicted upon a passenger by the breaking or wrecking of a part of the train on which he is riding. and operate its trains. in the event of his being injured by the breach of the manufacturer's contract. and the defendantsappellees are sentenced to indemnify the plaintiffs-appellants in the following amounts: P5. an award of P15. 2208. No argument is required to establish that a visual inspection could not directly determine whether the resistance of this critically important part was not impaired. As for the death of Severina Garces (G.000 would be adequate for the abrasions and fracture of the femur. Hence.000 would be adequate (cf Alcantara vs.500 would be reasonable. with seven minor children when she died. on the contrary. Art. Considering that he two cases filed were tried jointly. or that it had no hidden flaws would impair that strength. No. Surro. a fee of P3. her heirs are obviously entitled to indemnity not only for the incidental loses of property (cash. 892. including medical and hospitalization expenses. oppressive or malevolent manner" to warrant their award. Nor has it been shown that the weakening of the knuckle was impossible to detect by any known test. in case of suits for breach of contract. par. It nowhere appears that either the manufacturer or the carrier at any time tested the steering knuckle to ascertain whether its strength was up to standard. but that the builders could not by the exercise of the same care have discovered the defect or foreseen the result. In our judgment. This rule applies the same whether the defective car belonged to the carrier or not. there is testimony that it could be detected. beyond the lack of anatomical symmetry. the decision appealed from is reversed.000 to Precillano Necesito. 93 Phil. 657.. and there is none in the case before us. 45 Phil. Smith.000 to the heirs of the deceased Severina . the record is to the effect that the only test applied to the steering knuckle in question was a purely visual inspection every thirty days. No. moral damages are recoverable only where the defendant acted fraudulently or in bad faith. 11). 2769. but we are of the opinion that a due regard for the carrier's obligations toward the traveling public demands adequate periodical tests to determine the condition and strength of those vehicle portions the failure of which may endanger the safe of the passengers. We are satisfied that the periodical visual inspection of the steering knuckle as practiced by the carrier's agents did not measure up to the required legal standard of "utmost diligence of very cautious persons" — "as far as human care and foresight can provide". as appellee argues. As to the damages suffered by the plaintiffs.) It may be impracticable. fraudulent. L-10606) who was 33 years old. we believe that for the minor Precillano Necesito (G. but also for the loss of her earnings (shown to average P120 a month) and for the deprivation of her protection.connection must show. The low income of the plaintiffs-appellants makes an award for attorney's fees just and equitable (Civil Code. if the accident was due to a latent defect in the material or construction of the car. As to exemplary damages. wrist watch and merchandise) worth P394 that she carried at the time of the accident and for the burial expenses of P490. 94 Phil. 49 Off. to require of carriers to test the strength of each and every part of its vehicles before each trip. and therefore that the knuckle's failure can not be considered a fortuitous event that exempts the carrier from responsibility (Lasam vs.. the carrier has not acted in a "wanton. R. that not only could it not have discovered the defect by the exercise of such care. that its failure or breakage would result in loss of balance and steering control of the bus. Son vs. we agree with appellee that no allowance may be made for moral damages. R. with disastrous effects upon the passengers. since under Article 2220 of the new Civil Code. Gaz. L-10605). In the case now before us. And yet the carrier must have been aware of the critical importance of the knuckle's resistance. reckless. to see if any cracks developed. 472).. guidance and company. an indemnity of P5. and P15. there being no evidence that there would be any permanent impairment of his faculties or bodily functions. Cebu Autobus Co. In view of the foregoing. It can be seen that while the courts of the United States are at variance on the question of a carrier's liability for latent mechanical defects.. whereby the passengers riding in it were injured. does not preclude the right to an indemnity. concurs in the result. and Endencia. 1958. since the previous Philippine cases did not enlarge on the ideas underlying the doctrine established thereby. however. L. 199 to overturn. Bautista Angelo. in Lasam vs. plus P3. B. Cebu Autobus Company.: Defendants-appellees have Submitted a motion asking this Court to reconsider its decision of June 30.500 by way of attorney's fees and litigation expenses. not because it felt bound to follow the same. that appellees argue to be excessive.. 1958 REYES. 892. Concepcion. Smith. (2) the damages awarded. cited in our main opinion. Bengzon. So ordered. J. and (3) the award of attorneys' fees. JJ. particularly because the full effect of the injury is not ascertainable immediately. Art. 2224). J. (1) The rule prevailing in this jurisdiction as established in previous decisions of this Court.. (2) With regard to the indemnity awarded to the child Precilliano Necesito. 659 this Court ruled: As far as the record shows. RESOLUTION September 11. Said evidence is not newly discovered.Garces. the accident was caused either by defects in the automobile or else through the negligence of its driver. J. is that a carrier is liable to its passengers for damages caused by mechanical defects of the conveyance. J. This Court has quoted from American and English decisions. 94 Phil. A. This uncertainty. That is not caso fortuito. since the injury is patent and not denied (Civil Code. And in Son vs. Felix.. the rule in this jurisdiction has been consistent in holding the carrier responsible. The new evidence sought to be introduced do not warrant the grant of a new trial. and that the same be modified with respect to (1) its holding the carrier liable for the breakage of the steering knuckle that caused the autobus No. C. As early as 1924. The reasons behind this award are expounded by the Code Commission in its report: .. concur. Paras. but merely in approval of the rationale of the rule as expressed therein. since the proposed proof available when the original trial was held. this Court held a common carrier liable in damages to passenger for injuries cause by an accident due to the breakage of a faulty drag-link spring. 45 Phil. the injuries suffered by him are incapable of accurate pecuniary estimation. Reyes.. Costs against defendants-appellees. plaintiffs' original claims can not be deemed a priori wholly unreasonable. from the defendant's wrongful act. Lizarraga. 101 Phil. without redress. While. although the court is convinced that there has been such loss. since they had a right to indemnity for moral damages besides compensatory ones. does not for that reason earn the right to a larger indemnity. legitimate and eligimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. . 138. concerning Damages.There are cases where from the nature of the case. . no conflict between our main decision in the instant case and that of Cachero vs. 523. We find no reason to alter the main decision heretofore rendered. protection and company. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this Book. (3) In the Cachero case this Court disallowed attorneys' fees to the injured plaintiff because the litigation arose out of his exaggerated and unreasonable deeds for an indemnity that was out of proportion with the compensatory damages to which he was solely entitled. he should not be deprived of counsel fees if by law he is entitled to recover them. is not entitled to them. but did not lose his life. as pointed out in the main decision. As pointed out for appellants. Apostol. Neither does the fact that the contract between the passengers and their counsel was on a contingent basis affect the former's right to counsel fees. 2220. by parity of reasoning. the Court's award is an party and not to counsel.. therefore. but manages to survive. 601). ART. A litigant who improvidently stipulate higher counsel fees than those to which he is lawfully entitled. It thus appears that under the new Civil Code. rather than that the plaintiff should suffer. Should damages be denied for that reason? The judge should be empowered to calculate moderate damages in such cases. Being a special rule limited to cases of fatal injuries. For instance. Ultimately. 75) In awarding to the heirs of the deceased Severina Garces an indemnity for the loss of her "guidance. vs. 44 Phil. No. 55 Phil. 2206. and moral damages are not determined by set and invariable bounds. But in the present case. where the passenger suffered injuries. Sancio vs. the position taken by this Court is that a common carrier's contract is not to be regarded as a game of . Article 2206 shall also apply to the death of a passenger caused by the breach of contract by a comman carrier. There is. these articles prevail over the general rule of Art. definite proof of pecuniary loss cannot be offered. the heirs of a deceased passenger may recover moral damages. Special provisions control general ones (Lichauco & Co. even though a passenger who is injured. in view of Article 1764 in connection with Article 2206." although it is but moral damage. ART." (Report of the Code Commission. 1764. due to the carrier's negligence constitutes an exception to the general rule.. p. the Court took into account that the case of a passenger who dies in the course of an accident. under Article 2220 of the new Civil Code there can be no recovery of moral damages for a breach of contract in the absence of fraud malice or bad faith. 3 of the new Civil Code. . injury to one's commercial credit or to the goodwill of a business firm is often hard to show with certainty in terms of money. but. (3) The spouse. Manila Yellow Taxi Cab Co. the case of a violation of the contract of carriage leading to a passenger's death escapes this general rule. in case of accident due to a carrier's negligence. petitioner. they came all across to Mr. plaintiff travelled in "first class".R. 1958. as was to be expected. the Manager of the defendant airline forced plaintiff to vacate the "first class" seat that he was occupying because. a civil engineer. The case is now before us for review on certiorari. through its authorized agent. refused. according to said Ernesto G. Lichauco.. Inc. Republic of the Philippines SUPREME COURT Manila EN BANC G. respondents. Philippine Air Lines. and told defendant's Manager that his seat would be taken over his dead body.00 for attorneys' fees. 1966 AIR FRANCE. and. Carrascoso. vs. Picazo and Agcaoili for petitioner. but at Bangkok. plus P3. with costs against petitioner. the defendant. Carrascoso was having a hot discussion with the white man [manager]. On appeal. the motion for reconsideration is hereby denied. P393. when they found out that Mr. who. L-21438 September 28.chance wherein the passenger stakes his limb and life against the carrier's property and profits.20 representing the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome. these various amounts with interest at the legal rate. "many of the Filipino passengers got nervous in the tourist class.000.000. Bengzon Villegas and Zarraga for respondent R. The facts declared by the Court of Appeals as " fully supported by the evidence of record". are: Plaintiff. and the costs of suit. When asked to vacate his "first class" seat. Air France. Carrascoso and pacified . J. SANCHEZ. the plaintiff. No. the Manager alleged. RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS. there was a "white man". So ordered.20 to P383. Wherefore. issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. and voted to affirm the appealed decision "in all other respects". was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30.: The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25. From Manila to Bangkok.000. P10. Cuento. a commotion ensued. from the date of the filing of the complaint until paid.2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393. in the words of the witness Ernesto G.00 by way of moral damages.10. 1958. had a "better right" to the seat. On March 28. Cuento.00 as exemplary damages. 20 With these guideposts. A decision is not to be so clogged with details such that prolixity. and that all the matters within an issue in a case were laid before the court and passed upon by it.Mr. 12. 9 A court of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and the other upon the issues raised. 13 If the court did not recite in the decision the testimony of each witness for. p. 8 The law. it was held that the mere fact that the findings "were based entirely on the evidence for the prosecution without taking into consideration or even mentioning the appellant's side in the controversy as shown by his own testimony". 11 This is but a part of the mental process from which the Court draws the essential ultimate facts. and plaintiff reluctantly gave his "first class" seat in the plane. upon the other hand." 18 2. It is open to direct attack. Petitioner charges that respondent court failed to make complete findings of fact on all the issues properly laid before it.. Was Carrascoso entitled to the first class seat he claims? . the defeated party. has been declared as "one which does not call for an examination of the probative value of the evidence presented by the parties. we now face the problem of whether the findings of fact of the Court of Appeals support its judgment. 12 Indeed. may result. and essential to support the decision and judgment rendered thereon". 3 1. So long as the decision of the Court of Appeals contains the necessary facts to warrant its conclusions. it is no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence for the defense". solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. Neither is it to be burdened with the obligation "to specify in the sentence the facts"which a party "considered as proved". which the Court of Appeals is required to make. 14 At any rate. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of Appeals. 3. it does not mean that the court has overlooked such testimony or such item of evidence. Carrascoso to give his seat to the white man" (Transcript. "the mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution". We are asked to consider facts favorable to petitioner. Because as this Court well observed. to overturn the appellate court's decision. 16They consist of the court's "conclusions" with respect to the determinative facts in issue". maybe defined as "the written statement of the ultimate facts as found by the court . or each item of evidence presented by. 1959). would not vitiate the judgment. "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of Appeals. Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based". "There is no law that so requires". 6 and that "Every decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised before it". 19 That judgment is conclusive as to the facts. 7 A decision with absolutely nothing to support it is a nullity. and then. By statute. 5 This is echoed in the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on which it is based".. if not confusion. It is in this setting that in Manigque. the legal presumptions are that official duty has been regularly performed. Hearing of May 26. however. 17 A question of law. 15 Findings of fact. It is not appropriately the business of this Court to alter the facts or to review the questions of fact. and a right to. although he had tourist class protection. It received the corresponding amount in payment of first-class tickets and yet it allowed the passenger to be at the mercy of its employees. would be accommodated in the first-class compartment. "C" and "C-1". Q. and clearly show that the plaintiff was issued." "B-2". "B". the ticket was subject to confirmation in Hongkong. and paid for. thus: On the fact that plaintiff paid for. (Transcript. the issuance of a first class ticket was no guarantee that he would have a first class ride. and defendant's own witness. that. It is more in keeping with the ordinary course of business that the company should know whether or riot the tickets it issues are to be honored or not. but that such would depend upon the availability of first class seats. But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties. "B". Confirmed for first class? A. and plaintiff's Exhibits "A". 1958 he paid to and received from petitioner a first class ticket. "A-1"." From what you know. confirmed plaintiff's testimony and testified as follows: Q. "first class". Oral evidence cannot prevail over written evidence. particularly that from Saigon to Beirut". there can be no question. Yes. "A-l". for as in the case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first-class reservation. We are not impressed by such a reasoning. what does this OK mean? A. "B-1. 21 And. We cannot understand how a reputable firm like defendant airplane company could have the indiscretion to give out tickets it never meant to honor at all. .It is conceded in all quarters that on March 28. Apart from his testimony. The court cannot give credit to the testimony of said witnesses. "C" and "C-1" belie the testimony of said witnesses. The trial court similarly disposed of petitioner's contention. that said respondent knew that he did not have confirmed reservations for first class on any specific flight. which reads: "The trial court erred in finding that plaintiff had confirmed reservations for.K. "B-l".22 Not that the Court of Appeals is alone. accordingly. a first class ticket without any reservation whatever. In these tickets there are marks "O. see plaintiff's Exhibits "A". Rafael Altonaga. and was issued a "First class" ticket. p. the Court of Appeals disposed of this contention thus: Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the passenger to whom the same had been issued. These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals under its third assignment of error. first class seats on the "definite" segments of his journey. That the space is confirmed. and was issued a "first class" airplane ticket. 169) xxx xxx xxx Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid for. as petitioner underscores. That . Such is the case here. 25 We reached this policy construction because nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with those of the trial court. adherence to the ticket so issued is desirable. 24Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and "all questions raised by the assignments of error and all questions that might have been raised are to be regarded as finally adjudicated against the appellant". under which said contract. If only to achieve stability in the relations between passenger and air carrier. Petitioner's trenchant claim is that Carrascoso's action is planted upon breach of contract. if he had no seat? Or. So also. then an air passenger is placed in the hollow of the hands of an airline. to strike out the very stipulations in the ticket. a written document speaks a uniform language.. and say that there was a verbal agreement to the contrary. was he allowed to take a first class seat in the plane at Bangkok. The pivotal allegations in the complaint bearing on this issue are: 3. plaintiff was entitled to.Furthermore. 28 Nor do we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". What if the passenger had a schedule to fulfill? We have long learned that. defendant's own witness Rafael Altonaga testified that the reservation for a "first class" accommodation for the plaintiff was confirmed.. the decision of the Court of First Instance was affirmed by the Court of Appeals in all other respects. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its position". We hold the view that such a judgment of affirmance has merged the judgment of the lower court. as petitioner states. as charged by petitioner. . then. as defendant agreed to furnish plaintiff. 31 and that the decision of the Court of Appeals fails to make a finding of bad faith. What security then can a passenger have? It will always be an easy matter for an airline aided by its employees. notwithstanding the fact that seat availability in specific flights is therein confirmed. which is a stopover in the Saigon to Beirut leg of the flight.. The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket. a first-class-ticket holder is not entitled to a first class seat. as a rule. that spoken word could be notoriously unreliable. if another had a better right to the seat? 4. as hereinabove shown. Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those which were made the basis of the conclusions of the trial court. Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 26 If. 23 We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on Carrascoso's ticket. . 30 Why. that to authorize an award for moral damages there must be an averment of fraud or bad faith. 29 And this because. First Class passage on defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila. plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable consideration. the judgment affirmed "must be regarded as free from all error". the latter acting as general agents for and in behalf of the defendant. The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok. Petitioner assails respondent court's award of moral damages.. . The court cannot believe that after such confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by defendant would be subject to confirmation in Hongkong. was cured by the evidence. 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without objection on the part of the petitioner. arguments and/or insistence were made by the plaintiff with defendant's employees. That finally. wounded feelings. That likewise. that there was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already. if any. embarrassments and humiliations. serious anxiety. during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok. . That consequently. Deficiency in the complaint. the plaintiff. defendant failed to provide First Class passage. 34 The contract was averred to establish the relation between the parties. It is. 32 xxx xxx xxx 2. therefore. 5. in our opinion. resulting in moral damages in the amount of P30.000. plaintiff suffered inconveniences.00. defendant furnished to the plaintiff First Class accommodation but only after protestations. the Court of Appeals declared: That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air France while at Bangkok.4. corroborated by the corresponding entry made by the purser of the plane in his notebook which notation reads as follows: "First-class passenger was forced to go to the tourist class against his will. substantially aver: First. the inference of bad faith is there. but instead furnished plaintiff only TouristClass accommodations from Bangkok to Teheran and/or Casablanca. embarrassments. But. by reason of which he suffered inconvenience.. But the stress of the action is put on wrongful expulsion. the Bangkok-Teheran leg. the plaintiff has been compelledby defendant's employees to leave the First Class accommodation berths at Bangkok after he was already seated. and was transferred to the tourist class not only without his consent but against his will. unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award for moral damages. thereby causing plaintiff mental anguish. thereby causing him mental anguish. social humiliation. and Third. . has been sufficiently established by plaintiff in his testimony before the court. 6. respondent's counsel placed petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok. it may be drawn from the facts and circumstances set forth therein. Carrascoso was oustedby petitioner's manager who gave his seat to a white man. That said contract was breached when petitioner failed to furnish first class transportation at Bangkok. wounded feelings and social humiliation. That. 36 On the question of bad faith. serious anxiety. seated" and to take a seat in the tourist class. and that the captain refused to intervene". Quite apart from the foregoing is that (a) right the start of the trial. amongst others.. 33 xxx xxx xxx The foregoing. That there was a contract to furnish plaintiff a first class passage covering. as a result of defendant's failure to furnish First Class accommodations aforesaid. Second. and the like injury. An amendment thereof to conform to the evidence is not even required. It is true that there is no specific mention of the term bad faith in the complaint. and humiliations. resulting in moral damages. desiring no repetition of the inconvenience and embarrassments brought by defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip from Madrid to Manila. June 19. said "that the space is confirmed for first class. But can it be doubted that the recital of facts therein points to bad faith? The manager not only prevented Carrascoso from enjoying his right to a first class seat. We are strengthened in our belief that this probably was what happened there. using the words of the witness Ernesto G. nay. The captain of the plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do so. Cuento. that the Manager of the defendant airline in Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat because the said Manager wanted to accommodate. If there was a justified reason for the action of the defendant's Manager in Bangkok. when asked to explain the meaning of the letters "O. as it does find. Hence. Instead of explaining to the white man the improvidence committed by defendant's employees. the defendant could have easily proven it by having taken the testimony of the said Manager by deposition. . another witness for defendant. using the words of witness Ernesto G. any right on the part of the "white man" to the "First class" seat that the plaintiff was occupying and for which he paid and was issued a corresponding "first class" ticket. 247. par (e). the "white man". who was the chief of the Reservation Office of defendant. worse." (t. p.. he imposed his arbitrary will.s. 38 It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad faith". the presumption is that evidence willfully suppressed would be adverse if produced [Sec. Likewise. we quote with approval what the trial Judge has said on this point: Why did the. 37 The Court of appeals further stated — Neither is there evidence as to whether or not a prior reservation was made by the white man. 69. the Court is constrained to find. Carrascoso? The record is silent. Cuento. but defendant did not do so.K.n. or yet to secure his disposition. who was a copassenger. testified as follows: "Q How does the person in the ticket-issuing office know what reservation the passenger has arranged with you? A They call us up by phone and ask for the confirmation. "white man" have a "better right" to the seat occupied by Mr. 1959) In this connection.and by the testimony of an eye-witness. Ernesto G. The defendant airline did not prove "any better". but defendant did neither. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. if the employees of the defendant at Bangkok sold a firstclass ticket to him when all the seats had already been taken. surely the plaintiff should not have been picked out as the one to suffer the consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the presence of others. under the circumstances. It could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case. Rules of Court]. Cuento. Zenaida Faustino. the manager adopted the more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat." appearing on the tickets of plaintiff. and. by the testimony of defendant's witness Rafael Altonaga who. although the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract may be also a tort". They are entitled to be protected against personal misconduct.40 5. bad faith has assumed a meaning different from what is understood in law. we applied the foregoing legal precept. 43And this. It is well settled in law. respect. 41 For the willful malevolent act of petitioner's manager. it was a breach of contract and a tort. naturally. Unless. "Where a steamship company 45 had accepted a passenger's check. thus: The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith. Civil Code. A contract to transport passengers is quite different in kind and degree from any other contractual relation. courtesy and due consideration. and for which the corresponding "first class" ticket was issued by the defendant to him. Neglect or malfeasance of the carrier's employees. In parallel circumstances. a "white man" whom he (defendant's Manager) wished to accommodate. Certainly. It invites people to avail of the comforts and advantages it offers. again using the words of the witness Ernesto G. petitioner. there is the express finding of bad faith in the judgment of the Court of First Instance.he forcibly ejected him from his seat. we held that upon the provisions of Article 2219 (10). indignities and abuses from such employees.just to give way to another passenger whose right thereto has not been established. 21. "bad faith" contemplates a "state of mind affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose. made him suffer the humiliation of having to go to the tourist class compartment . therefore. and the defendant has not proven that this "white man" had any "better right" to occupy the "first class" seat that the plaintiff was occupying. this is bad faith. For. because. "Where a passenger on a railroad train." 46 And this. that any rule or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. and. Any person who willfully causes loss or injury to another in a manner that is contrary to morals. Article 21 of the Civil Code says: ART. of course. when the conductor came to collect his fare tendered him the cash fare to a point where the train was scheduled not to stop. duly paid for. Cuento. The contract of air carriage. with the aggravating circumstances that defendant's Manager in Bangkok went to the extent of threatening the plaintiff in the presence of many passengers to have him thrown out of the airplane to give the "first class" seat that he was occupying to. The responsibility of an employer for the tortious act of its employees need not be essayed. Its business is mainly with the travelling public. injurious language. They have a right to be treated by the carrier's employees with kindness. must answer. 42 6. Passengers do not contract merely for transportation. moral damages are recoverable. good customs or public policy shall compensate the latter for the damage. because of the relation which an air-carrier sustains with the public. giving a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless and demand payment under threat of ejection. though the language used was not insulting and she was not ejected. his employer. 44 Thus. So it is." 39 And if the foregoing were not yet sufficient. could give ground for an action for damages. 47 And in another case. generates a relation attended with a public duty. and told him that as soon as the train reached such point he . Such testimony is admissible. the seats there are so close that you feel uncomfortable and you don't have enough leg room. The stress of Carrascoso's action as we have said. What for? and she said. COURT — I will allow that as part of his testimony. and that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. "You are not going to note anything there because I am protesting to this transfer". Q Was she able to note it? A No. The subject of inquiry is not the entry. "We will note that you transferred to the tourist class". Statements then. in this environment. as by calling him a lunatic. they grow "out of the nervous excitement and mental and physical condition of the declarant". 7. is placed upon his wrongful expulsion. 49 Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First class passenger was forced to go to the tourist class against his will. 1awphîl. are admissible as part of the res gestae. He told me. but the ouster incident. when the dialogue happened. I stood up and I went to the pantry that was next to me and the purser was there.would pay the cash fare from that point to destination. Your Honor. "Nothing of that kind." Mr. because I did not give my ticket. We do not think so. Who is that attendant and purser? A When we left already — that was already in the trip — I could not help it. Q About that purser? A Well. So one of the flight attendants approached me and requested from me my ticket and I said. thus — Q You mentioned about an attendant. there was nothing in the conduct of the passenger which justified the conductor in using insulting language to him. VALTE — I move to strike out the last part of the testimony of the witness because the best evidence would be the notes. Damages are proper. That is tantamount to accepting my transfer. the impact of the startling occurrence was still fresh and continued to be felt.nèt Petitioner's contract with Carrascoso is one attended with public duty. I said." He read it and translated it to me — because it was recorded in French — "First class passenger was forced to go to the tourist class against his will. Testimony on the entry does not come within the proscription of the best evidence rule. Petitioner draws our attention to respondent Carrascoso's testimony." 48 and the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said passenger. The excitement had not as yet died down." And I also said. This is a violation of public duty by the petitioner air carrier — a case of quasi-delict. from a reading of the transcript just quoted. and that the captain refused to intervene. "I have recorded the incident in my notebook. 51 The utterance of the purser regarding his entry in the . 50 For. 49a Besides. 56 The Court of Appeals did not interfere with the same. The least that can be said is that the courts below felt that it is but just and equitable that attorneys' fees be given. And this. And. So ordered. by way of exemplary damages. and related to the circumstances of the ouster incident. Exemplary damages are well awarded.000. the facts and circumstances point to the reasonableness thereof. At all events. 57 On balance. hold that the transcribed testimony of Carrascoso is admissible in evidence. 54 9.notebook was spontaneous. thus: P25. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals. or malevolent manner. The dictates of good sense suggest that we give our imprimatur thereto.000. We. in addition to moral damages. by an employee of petitioner. reckless. 8.00." 53 The manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept. the entry was made outside the Philippines. we say that the judgment of the Court of Appeals does not suffer from reversible error. It would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. . and P3. Its trustworthiness has been guaranteed. The only condition is that defendant should have "acted in a wanton. 10. It forms part of the res gestae. oppressive. therefore. Costs against petitioner. 55 We do not intend to break faith with the tradition that discretion well exercised — as it was here — should not be disturbed. P10. Because. The task of fixing these amounts is primarily with the trial court. fraudulent.000.contracts. The right to attorney's fees is fully established. 52 It thus escapes the operation of the hearsay rule. If it were really true that no such entry was made. the deposition of the purser could have cleared up the matter. The Civil Code gives the court ample power to grant exemplary damages — in contracts and quasi.00 as moral damages.00 as attorneys' fees. We accordingly vote to affirm the same. The grant of exemplary damages justifies a similar judgment for attorneys' fees. J. 1998. as amended.A. It claimed that they cannot be faulted for negligence if there were electric wires dangling along the national road since they were caused by typhoons which are fortuitous events.000 moral and exemplary damages.000 for his medical treatment and P50. On March 29. liable for quasi-delict resulting in the death of Camilo Tangonan and physical injuries of Rapanan. No..THIRD DIVISION G.. December 03. on the other hand. animals and vehicles passing along the national highway.. ALLAN RAPANAN AND MARY GINE TANGONAN. It was driven by its owner Camilo Tangonan who died from the accident. she suffered sleepless nights and lost weight.000 moral and exemplary damages. The appellate court granted the appeal of respondents Allan Rapanan and Mary Gine Tangonan and held petitioner Cagayan II Electric Cooperative.: This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure. P25. CV No. She herself prepared an itemized list and computation of said expenses. They alleged that while the victims were traversing the national highway. INC. 77659. Rapanan and Camilo’s common law wife. P1. TORDESILLAS. G. to secure the safety of persons and vehicles traveling in said areas. around 9:00 p. Inc. respondents testified and also presented Dr. 2014 CAGAYAN II ELECTRIC COOPERATIVE. Respondents. Both Mary Gine and Rapanan prayed for 30% of the total award representing attorney’s fees. Mary Gine prayed that she be awarded P50. 199886. Mary Gine testified4 that she is not married to Camilo but they are living together and that they have one child. while his companions respondent Rapanan and one Erwin Coloma suffered injuries. It also alleged that it was able to clear the said areas of fallen electric poles and dangling or hanging high tension wires immediately after the typhoons.000 indemnity for loss of earning capacity and P100. Cagayan a complaint 2 for damages against petitioner. assailing the December 8. Rapanan. . Hasim as witness. The antecedents of the case follow: chanroble svirtuallawlibrary On October 31.584. 2011 Decision1 of the Court of Appeals (CA) in C.3 petitioner alleged that the typhoons that struck its areas of responsibility caused some of its electric poles to fall and high tension wires to snap or cut-off which caused brownouts in said areas. DECISION VILLARAMA.R. During the trial.000 burial expenses.m. 2000. filed before the Regional Trial Court (RTC) of Aparri. Cagayan. She also claimed that Camilo worked as a jeepney driver earning P150 per day and that as a result of Camilo’s death. JR. They contended that the mishap was due to petitioner’s negligence when it failed to fix and change said live tension wire despite being immediately informed by residents in the area that it might pose an immediate danger to persons. She also testified that she spent P20. prayed for P10.776 for the funeral expenses of Camilo.000 civil indemnity. In its Answer. REPRESENTED BY ITS MANAGER AND CHIEF EXECUTIVE OFFICER. they were struck and electrocuted by a live tension wire from one of the electric posts owned by petitioner. Buguey. It likewise contended that the proximate cause of the mishap was the victims’ negligence and imprudence in operating and driving the motorcycle they were riding on. Triffany C.R. Petitioner. GABRIEL A. v. and ordering it to pay respondents damages and attorney’s fees. respondent Mary Gine Tangonan. a motorcycle with three passengers figured in a mishap along the National Highway of Maddalero. 00. both testified 8 that as a result of the onslaught of typhoons Iliang and Loleng in Buguey and Sta. It further held that respondent Mary Gine has no legal personality to institute the action since such right is only given to the legal heir of the deceased. Cagayan on October 31. The dangling wires were then removed from the electric poles and were placed at the foot of the poles which were located four to five meters from the road.Rapanan testified5 that he.000.10 . 1998. Ana. except the attorney’s fees which should be borne by the defendantappellant: chanroble svirtuallawlibrary To the plaintiff-appellant Allan Rapanan: 1. It held that the proximate cause of the incident is the negligence and imprudence of Camilo in driving the motorcycle. indemnity for loss of earning capacity in the amount of P1. testified7 that there was a skid mark on the cemented portion of the road caused by the motorycle’s foot rest which was about 30 meters long. and 2. employees of petitioner. 10-305 is hereby REVERSED and SET ASIDE and a NEW ONE ENTERED holding the defendant-appellee CAGEL[C]O II liable for quasi-delict which resulted in the death of Camilo Tangonan and the physical injuries of Allan Rapanan. SPO2 Tactac. 3. After the said typhoons.000. Dr. the present appeal is GRANTED. they got wound by said dangling wire.000. petitioner’s employees inspected the affected areas. temperate damages in the amount of P20. He suffered physical injuries and electric burns and was hospitalized for seven days. the RTC rendered a decision 9 in favor of petitioner and dismissed the complaint for damages of respondents.00. premises considered. The assailed decision dated December 9. Hasim. The fallo reads: WHEREFORE. it appears that the motorcycle was overspeeding because of said skid mark. To the legal heirs of the deceased Camilo Tangonan: 1. As with Camilo. 2002. who investigated the incident. 2. and [4. attorney’s fees amounting to 20% of the total amount adjudged.00. He claimed that they saw a wire dangling from an electric post and because of a strong wind that blew.000 for his medicines. for its part. She further said that she did not find any electrical burns on Rapanan. Rasos and Adviento. Mary Gine is not a legal heir of Camilo since she is only his common law wife.000. Buguey. indemnity for death in the amount of P50. Tranquilino Rasos and Rodolfo Adviento. also testified 6 for the respondents. On December 9.062. Camilo and one Erwin Coloma were riding a motorcycle along the National Highway of Maddalero. presented four witnesses among whom were SPO2 Pedro Tactac.00. she found abrasions and hematoma on his body and that the cause of death was due to “cardio respiratory arrest secondary to strangulation. Branch 10 in Civil Case No. On appeal. According to him.00. 2002 of the Regional Trial Court of Appari. Cagayan.000. He claimed to have spent around P10. SO ORDERED. around 9:00 in the evening. and 2. Triffany C. the abrasions of Rapanan were caused by pressure when the body was hit by a hard object or by friction but she is uncertain as to whether a live electric wire could have caused them.000. and also complained of sleepless nights because of the mishap.] moral damages in the amount of P50.00. exemplary damages in the amount [of] P50. and ordering the payment of 50% of the following damages. moral damages in the amount of P50. the power lines were cut off because the electric wires snapped and the electric poles were destroyed. temperate damages in the amount of P10. According to Dr.” She also opined that the strangulation could have been caused by an electric wire entangled around Camilo’s neck.000. Hasim.00. To both the plaintiff-appellant Allan Rapanan and the legal heirs of the deceased Camilo Tangonan: 1. the CA reversed the RTC and held petitioner liable for quasi-delict. Petitioner. the physician who attended to the victims when they were rushed to the Alfonso Ponce Enrile Memorial District Hospital. Cagayan. Petitioner contends that the trial court correctly observed that Camilo drove the motorcycle at a high speed causing it to careen to the shoulder of the road where the electric wire was and had Camilo driven the motorcycle at an average speed. they contributed to the occurrence of the unfortunate event. They rolled the snapped wires and placed them behind nearby electric poles away from the roads as temporary remedy considering that the snapped wires could not be collected all at once. was able to establish the truth of the allegations of respondents – all of which were not controverted by petitioner. 4. one fact was consistent – the protruding or dangling CAGELCO wire to which the victims were strangled or trapped. . that would not have happened. AND THE AWARD OF MORAL. and vigilance which the circumstances justly demand. the CA held that they would not have fallen down and sustained injuries. It likewise ruled that the police blotter and medical certificates together with the testimony of one of the passengers of the motorcycle. THE COURT OF APPEALS SERIOUSLY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN AWARDING DAMAGES TO THE HEIRS OF CAMILO TANGONAN NOTWITHSTANDING THE FACT THAT THEY WERE NEVER IMPLEADED AS PARTIES TO THE ACTION. While said circumstances were not the proximate cause of Camilo’s death and Rapanan’s injuries. THAT THE PETITIONER CAN BE HELD LIABLE FOR THE MISHAP. Thus. Without the dangling wire which struck the victims. the single motorcycle being driven carried three persons. Respondents.11 Thus. respondent Rapanan. insist that the appellate court erred in ruling that it was petitioner’s negligence that caused the mishap resulting to the death of Camilo and injuries of Rapanan. The photograph of the wire also shows that it was placed among banana plants which petitioner submits to be a clear indication that it was safely tucked away from the road. should damages be awarded in favor of Camilo’s heirs even if they were not impleaded? Petitioner contends that it cannot be accused of negligence as its crew cleared the roads of fallen electric poles and snapped wires to ensure the safety of motorists and pedestrians. It cites the report of SPO2 Pedro Tactac and testimony of Tranquilino Rasos stating that the electric wire was placed at the shoulder of the road. they were over-speeding and were not wearing protective helmets. FOR ARGUMENT’S SAKE. Moreover. 2. THE COURT OF APPEALS DISREGARDED THE EVIDENCE ON RECORD AND COMMITTED SERIOUS MISAPPREHENSION OF FACTS AND GRAVE ABUSE OF DISCRETION WHEN IT CONCLUDED THAT THE CAUSE OF THE MISHAP WAS A DANGLING ELECTRIC WIRE THAT STRUCK AND WOUND UPON THE VICTIMS. TO ALLAN RAPANAN IS WITHOUT BASIS. precaution. the proximate cause of the mishap was due to recklessness and imprudence of Camilo and not of petitioner. TEMPERATE AND EXEMPLARY DAMAGES.In ruling against petitioner. THE CONCLUSION OF THE COURT OF APPEALS THAT PETITIONER WAS NEGLIGENT IN THE MAINTENANCE OF ITS POWER LINES IS MANIFESTLY ABSURD AND PREMISED ON A SERIOUS MISAPPREHENSION OF FACTS. The appellate court nevertheless ruled that the victims were partly responsible for the injuries they sustained. At the time of the mishap. The CA found that if petitioner had not been negligent in maintaining its facilities. there are two main issues that need to be resolved by this Court: (1) Was petitioner’s negligence in maintenance of its facilities the proximate cause of the death of Camilo and the injuries of Rapanan? and (2) In the event that petitioner’s negligence is found to be the proximate cause of the accident. AS WELL AS ATTORNEY’S FEES. and making sure that every facility needing repairs had been repaired. the mishap could have been prevented. Hence this petition raising the following arguments for this Court’s consideration: 1. DAMAGES AND ATTORNEY’S FEES COULD NOT BE AWARDED TO THE HEIRS OF CAMILO TANGONAN. They argued that had petitioner properly maintained its facilities by making sure that every facility needing restoration is repaired. ASSUMING. the cause of the mishap which claimed the life of Camilo and injured Rapanan was the dangling wire which struck them. petitioner submits. The petition is meritorious. Negligence is defined as the failure to observe for the protection of the interest of another person that degree of care. The appellate court held that clearly. 3. the mishap could have been prevented. the CA found that despite the different versions of how the incident occurred. as found by the trial court. for their part. and (3) the connection of cause and effect between such negligence and the damages. From the testimonies of petitioner’s employees and the excerpt from the police blotter. Buguey. including the one where the mishap took place. MARRIED. Their testimonies were corroborated by what was recorded in the Police Blotter of the Buguey Police Station. it can only mean that either the motorcycle careened towards the shoulder or even more likely. SPO2 Tactac. RAPANAN: Incompetent. testified that after the typhoons hit Cagayan. Another employee of petitioner. what made you conclude that the motor vehicle where the three rode which caused the death of Camilo Tangonan.” Under this provision. As to how that happened cannot be blamed on petitioner but should be attributed to Camilo’s over speeding as concluded by the police after it investigated the mishap. you honor. he together with his co-employees. 19 YEARS OLD. finds that the second and third elements are lacking thus precluding the award of damages in favor of respondents. there is no negligence on the part of petitioner that was allegedly the proximate cause of Camilo’s death and Rapanan’s injuries. The pertinent excerpt from the blotter is quoted verbatim: xxxx TEAM LED BY SPO2 PEDRO R TACTAC JUMPED OFF AND PROCEEDED TO BRGY MADDALERO. Rasos. you said that the motor vehicle was overspeeding. Cagayan after SPO2 Tactac investigated on the incident. this Court can reasonably conclude that. was guilty.whereby such other person suffers injury. said wires were quietly sitting on the shoulder of the road. that the three passengers were thrown off from the motorcycle to the shoulder of the road and caught up with the wires. if there is no pre-existing contractual relation between the parties. at the time of that fatal mishap. if the victims of the mishap were strangled by said wires. This Court. BUGUEY. (2) negligence. when you went to the place. DRIVER AND A RESIDENT OF MASI AND ALLAN RAFANAN y GUILLERMO. SINGLE. after checking the damage to the electric lines.] ATTY. by act or omission. CAMILO TANGONAN AND ABRASIONS ON DIFFERENT PARTS OF THE BODY OF THE TWO OTHER VICTIMS THE SAID TWO OTHER VICTIMS WERE BROUGHT TO ALFONSO ENRILE HOSPITAL.12 Article 2176 of the Civil Code provides that “[w]hoever by act or omission causes damage to another. explained how they made such conclusion: ATTY. is obliged to pay for the damage done. DRIVER AND A RESIDENT OF BRGY MASI. the elements necessary to establish a quasi-delict case are: (1) damages to the plaintiff. CAGAYAN TO CONDUCT INVEST AT THE SAID VEHICULAR ACCIDENT AT THE SAME PLACE AND RET STN WITH THE REPT THAT ON OR ABOUT 8:45 PM 31 OCTOBER 98 ONE MOTORCYCLE SUZUKI X4 WITH TEMPORARY PLATE NUMBER 14592 DRIVEN BY ONE CAMILO TANGONAN y ROSETE 21 years old. however. rolled the fallen electric wires and placed them at the foot of the electric poles so as to prevent mishaps to pedestrians and vehicles passing by. STA TERESITA. CONDUCTOR AND A RESIDENT OF BRGY BUYUN STA TERESITA CAGAYAN WASACCIDENTALLY TRAPPED BY A PROTRUDING CAGELCO WIRE AT THE SHOULDER OF THE ROAD WHILE THEY WERE BOUND TO STA TERESITA FROM APARRI THIS PROVINCE DUE TO THE OVER SPEED OF MOTOR VEHICLE THE WIRE STRANGLED THE NECK OF THE VICTIMS WHICH CAUSED THE INSTANTANEOUS DEATH OF THE DRIVER. was overspeeding? Please explain that before this court[. petitioner’s employee testified that their electric poles along the highways. since the police found the motorcycle not on the shoulder but still on the road. there being fault or negligence. Such fault or negligence. MARRIED. Hence. is a quasi-delict. CAGAYAN FOR MEDICAL TREATMENT. TUMARU: Q: x x x My question is. .13 chanroble slaw The presence of the first element is undisputed because the unfortunate incident brought about the death of Camilo and physical injuries to Rapanan. in his testimony.14 (Emphasis and underscoring supplied) Thus. far enough from the concrete portion so as not to pose any threat to passing motor vehicles and even pedestrians. were erected about four to five meters from the shoulder of the road. CAGAYAN (DEAD ON THE SPOT) AND TWO COMPANIONS EDWIN COLOMA y MABANAG. of the defendant or by some person for whose acts the defendant must respond. Adviento. GONZAGA. 23 YEARS OLD. sir. sir. COURT: Sustained. ATTY. COURT: . sir. where was the motor vehicle that time? A: It was at the road. your honor. RAPANAN: Immaterial. sir. Q: In this skid mark that you have seen. A: I stated in the police blotter over speeding when we went to investigate.COURT: Answer. TUMARU: Q: And did you try to investigate what was the cause [of death] of the victim? ATTY. at the point of the start of the skid mark to the place where you found the motor vehicle. RAPANAN: Incompetent. We reflected in the report/police blotter that there was over speeding because of the skid mark that lasted up to 30 meters from the start to the place where the motorcycle fell. your honor. Q: Where was the victim found? ATTY. TUMARU: Q: Per your investigation. ATTY. Q: What road? A: At the edge of the cemented pavement. did you find out the cause of death of the victim and the others (sic)? A: There was abrasion at the neck of the victim. you did not include that in your report? ATTY. xxxx ATTY. COURT: . your honor. your honor. Q: When you arrived at the scene. sir. TUMARU: The document is the best evidence. RAPANAN: This is a new matter. A: I did not bother to see the speedometer. you no longer bother yourself to see the speedometer of the motorcycle. COURT: Answer. Q: You only conclude in saying that the driver of the motorcycle was running his motorcycle in a very speed[y] manner because of the skid mark measuring 30 meters. sir. sir. the two companions of the victim were brought to the Gonzaga Alfonso Ponce Enrile hospital by the PNP of Sta. Q: What about the two others? A: When we arrived at the scene.Q: Who among the victims? A: The driver Camilo Tangonan. Teresita police station. is that correct? ATTY. your honor. TUMARU: Incompetent. sir. RAPANAN: Q: Do you know that a motorcycle is provided with the speedometer? A: Yes. ATTY. the three passengers would not have been thrown off from the vehicle towards the shoulder and eventually strangulated by the electric wires sitting thereon. Therefore. sir. sir. there was always a skid mark on the road? A: It is the footrest of the motorcycle that caused the skid mark. COURT: Answer. A: We saw the skid mark so we concluded that there was an over speeding due to the skid mark. It just so happened that after the motorcycle tilted and slid.Answer. the footrest was still pointing [to] the skid mark [on] the cemented road. sir. COURT: Q: Which is which now. Moreover. Had Camilo driven the motorcycle at an average speed. This most likely even aggravated the situation because the motorcycle was overloaded . Q: How do you know that the skid mark was caused by the footrest? A: Because the skid mark was caused by the footrest because the place where the motorcycle fell (sic).15 The foregoing shows that the motorcycle was probably running too fast that it lost control and started tilting and sliding eventually which made its foot rest cause the skid mark on the road. Q: Do you know that a skid on the surface of a cemented road shows that something happened to the motorcycle o[r] its [d]river? ATTY. you found a skid mark of the tire and footrest or only the skid mark of the footrest? A: The footrest. sir. This Court hence agrees with the trial court that the proximate cause of the mishap was the negligence of Camilo. it was also negligent of Camilo to have allowed two persons to ride with him and for Rapanan to ride with them when the maximum number of passengers of a motorcycle is two including the driver. the mishap already occurred even while they were on the road and away from petitioner’s electric wires and was not caused by the latter as alleged by respondents. sir. Q: Do you know that when a vehicle even if running with slow speed if a driver suddenly applied a break. A: There was an accident. the passengers were thrown off to the shoulder where the electric wires were. TUMARU: That calls for an opinion. your honor. No pronouncement as to costs. and hence. Branch 10 in Civil Case No.R.which made it harder to drive and control. As a mere common law wife of Camilo. the common law wife of Camilo. the petition is hereby GRANTED. the appellate court erred in awarding damages in favor of Camilo’s legal heirs since they were not impleaded in the case. Cagayan. WHEREFORE. The April 8. cralawlawlibrary . CV No. 16 chanroble slaw As to the second issue. who is the complainant in the case. has no legal personality to institute the action for damages due to Camilo’s death. 2002 Decision of the Regional Trial Court of Aparri. 77659 is hereby REVERSED and SET ASIDE. It should be noted that it was Mary Gine. 10-305 dismissing the complaint for damages of respondents Allan Rapanan and Mary Gine Tangonan is REINSTATED.A. he cannot recover damages. The December 9. she is not considered a legal heir of the latter. SO ORDERED. When the plaintiff’s own negligence was the immediate and proximate cause of his injury. G. assuming arguendo that petitioner was indeed negligent. 2011 Decision of the Court of Appeals in C. THIRD DIVISION G.R. No. 174161, February 18, 2015 R TRANSPORT CORPORATION, Petitioner, v. LUISITO G. YU, Respondent. DECISION PERALTA, J.: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse and set aside the Decision1 and Resolution,2 dated September 9, 2005 and August 8, 2006, respectively, of the Court of Appeals (CA) in CA-G.R. CV No. 84175. The antecedent facts are as follows: At around 8:45 in the morning of December 12, 1993, Loreta J. Yu, after having alighted from a passenger bus in front of Robinson’s Galleria along the north-bound lane of Epifanio de los Santos Avenue (EDSA), was hit and run over by a bus driven by Antonio P. Gimena, who was then employed by petitioner R Transport Corporation. Loreta was immediately rushed to Medical City Hospital where she was pronounced dead on arrival. 3 cralawlawlibrary On February 3, 1994, the husband of the deceased, respondent Luisito G. Yu, filed a Complaint for damages before the Regional Trial Court (RTC) of Makati City against petitioner R Transport, Antonio Gimena, and Metro Manila Transport Corporation (MMTC) for the death of his wife. MMTC denied its liability reasoning that it is merely the registered owner of the bus involved in the incident, the actual owner, being petitioner R Transport.4 It explained that under the Bus Installment Purchase Program of the government, MMTC merely purchased the subject bus, among several others, for resale to petitioner R Transport, which will in turn operate the same within Metro Manila. Since it was not actually operating the bus which killed respondent’s wife, nor was it the employer of the driver thereof, MMTC alleged that the complaint against it should be dismissed.5 For its part, petitioner R Transport alleged that respondent had no cause of action against it for it had exercised due diligence in the selection and supervision of its employees and drivers and that its buses are in good condition. Meanwhile, the driver Antonio Gimena was declared in default for his failure to file an answer to the complaint. After trial on the merits, wherein the parties presented their respective witnesses and documentary evidence, the trial court rendered judgment in favor of respondent Yu ruling that petitioner R Transport failed to prove that it exercised the diligence required of a good father of a family in the selection and supervision of its driver, who, by its negligence, ran over the deceased resulting in her death. It also held that MMTC should be held solidarily liable with petitioner R Transport because it would unduly prejudice a third person who is a victim of a tort to look beyond the certificate of registration and prove who the actual owner is in order to enforce a right of action. Thus, the trial court ordered the payment of damages in its Decision6 dated June 3, 2004, the dispositive portion of which reads: chanRoblesvirtualLawlibrary WHEREFORE, foregoing premises considered, judgment is hereby rendered ordering defendants Rizal Transport and Metro Manila Transport Corporation to be primarily and solidarily liable and defendant Antonio Parraba Gimena subsidiarily liable to plaintiff Luisito Yu as follows: 1. Actual damages in the amount of Php78,357.00 subject to interest at the legal rate from the filing of the complaint until fully paid; 2. Loss of income in the amount of Php500,000.00; 3. Moral damages in the amount of P150,000.00; 4. Exemplary damages in the amount of P20,000.00; 5. Attorney’s fees in the amount of P10,000.00; and 6. Costs of suit.7 On September 9, 2005, the CA affirmed the Decision of the RTC with modification that defendant Antonio Gimena is made solidarily liable for the damages caused to respondent. According to the appellate court, considering that the negligence of Antonio Gimena was sufficiently proven by the records of the case, and that no evidence of whatever nature was presented by petitioner to support its defense of due diligence in the selection and supervision of its employees, petitioner, as the employer of Gimena, may be held liable for the damage caused. The CA noted that the fact that petitioner is not the registered owner of the bus which caused the death of the victim does not exculpate it from liability.8 Thereafter, petitioner’s Motion for Reconsideration was further denied by the CA in its Resolution 9 dated August 8, 2006. Hence, the present petition. Petitioner essentially invokes the following ground to support its petition: chanRoblesvirtualLawlibrary I. THE COURT OF APPEALS ERRED IN AFFIRMING THE RULING OF THE REGIONAL TRIAL COURT FINDING PETITIONER LIABLE FOR THE DAMAGES CAUSED BY THE NEGLIGENCE OF ITS EMPLOYEE, WHICH WAS NOT SUPPORTED BY THE EVIDENCE ON RECORD. Petitioner insists that the CA and the RTC were incorrect in ruling that its driver was negligent for aside from the mere speculations and uncorroborated testimonies of the police officers on duty at the time of the accident, no other evidence had been adduced to prove that its driver was driving in a reckless and imprudent manner. It asserts that contrary to the findings of the courts below, the bus from which the victim alighted is actually the proximate cause of the victim’s death for having unloaded its passengers on the lane where the subject bus was traversing. Moreover, petitioner reiterates its argument that since it is not the registered owner of the bus which bumped the victim, it cannot be held liable for the damage caused by the same. We disagree. Time and again, it has been ruled that whether a person is negligent or not is a question of fact which this Court cannot pass upon in a petition for review on certiorari, as its jurisdiction is limited to reviewing errors of law.10 This Court is not bound to weigh all over again the evidence adduced by the parties, particularly where the findings of both the trial and the appellate courts on the matter of petitioners’ negligence coincide. As a general rule, therefore, the resolution of factual issues is a function of the trial court, whose findings on these matters are binding on this Court, more so where these have been affirmed by the Court of Appeals, 11save for the following exceptional and meritorious circumstances: (1) when the factual findings of the appellate court and the trial court are contradictory; (2) when the findings of the trial court are grounded entirely on speculation, surmises or conjectures; (3) when the lower court’s inference from its factual findings is manifestly mistaken, absurd or impossible; (4) when there is grave abuse of discretion in the appreciation of facts; (5) when the findings of the appellate court go beyond the issues of the case, or fail to notice certain relevant facts which, if properly considered, will justify a different conclusion; (6) when there is a misappreciation of facts; (7) when the findings of fact are themselves conflicting; and (8) when the findings of fact are conclusions without mention of the specific evidence on which they are based, are premised on the absence of evidence, or are contradicted by evidence on record.12 cralawlawlibrary After a review of the records of the case, we find no cogent reason to reverse the rulings of the courts below for none of the aforementioned exceptions are present herein. Both the trial and appellate courts found driver Gimena negligent in hitting and running over the victim and ruled that his negligence was the proximate cause of her death. Negligence has been defined as "the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.”13Verily, foreseeability is the fundamental test of negligence. 14 It 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.15 cralawlawlibrary In this case, the records show that driver Gimena was clearly running at a reckless speed. As testified by the police officer on duty at the time of the incident16 and indicated in the Autopsy Report,17 not only were the deceased’s clothes ripped off from her body, her brain even spewed out from her skull and spilled over the road. Indeed, this Court is not prepared to believe petitioner’s contention that its bus was travelling at a “normal speed” in preparation for a full stop in view of the fatal injuries sustained by the deceased. Moreover, the location wherein the deceased was hit and run over further indicates Gimena’s negligence. As borne by the records, the bus driven by Gimena bumped the deceased in a loading and unloading area of a commercial center. The fact that he was approaching such a busy part of EDSA should have already cautioned the driver of the bus. In fact, upon seeing that a bus has stopped beside his lane should have signalled him to step on his brakes to slow down for the possibility that said bus was unloading its passengers in the area. Unfortunately, he did not take the necessary precaution and instead, drove on and bumped the deceased despite being aware that he was traversing a commercial center where pedestrians were crossing the street. Ultimately, Gimena should have observed due diligence of a reasonably prudent man by slackening his speed and proceeding cautiously while passing the area. Under Article 218018 of the New Civil Code, employers are liable for the damages caused by their employees acting within the scope of their assigned tasks. Once negligence on the part of the employee is established, a presumption instantly arises that the employer was remiss in the selection and/or supervision of the negligent employee. To avoid liability for the quasi-delict committed by its employee, it is incumbent upon the employer to rebut this presumption by presenting adequate and convincing proof that it exercised the care and diligence of a good father of a family in the selection and supervision of its employees. 19 cralawlawlibrary Unfortunately, however, the records of this case are bereft of any proof showing the exercise by petitioner of the required diligence. As aptly observed by the CA, no evidence of whatever nature was ever presented depicting petitioner’s due diligence in the selection and supervision of its driver, Gimena, despite several opportunities to do so. In fact, in its petition, apart from denying the negligence of its employee and imputing the same to the bus from which the victim alighted, petitioner merely reiterates its argument that since it is not the registered owner of the bus which bumped the victim, it cannot be held liable for the damage caused by the same. Nowhere was it even remotely alleged that petitioner had exercised the required diligence in the selection and supervision of its employee. Because of this failure, petitioner cannot now avoid liability for the quasi-delict committed by its negligent employee. At this point, it must be noted that petitioner, in its relentless attempt to evade liability, cites our rulings in Vargas v. Langcay20 and Tamayo v. Aquino21 insisting that it should not be held solidarily liable with MMTC for it is not the registered owner of the bus which killed the deceased. However, this Court, in Jereos v. Court of Appeals, et al.,22 rejected such contention in the following wise: chanRoble svirtualLawlibrary Finally, the petitioner, citing the case of Vargas vs. Langcay, contends that it is the registered owner of the vehicle, rather than the actual owner, who must be jointly and severally liable with the driver of the passenger vehicle for damages incurred by third persons as a consequence of injuries or death sustained in the operation of said vehicle. The contention is devoid of merit. While the Court therein ruled that the registered owner or operator of a passenger vehicle is jointly and severally liable with the driver of the said vehicle for damages incurred by passengers or third persons as a consequence of injuries or death sustained in the operation of the said vehicle, the Court did so to correct the erroneous findings of the Court of Appeals that the liability of the registered owner or operator of a passenger vehicle is merely subsidiary, as contemplated in Art. 103 of the Revised Penal Code. In no case did the Court exempt the actual owner of the passenger vehicle from liability. On the contrary, it adhered to the rule followed in the cases of Erezo vs. Jepte, Tamayo vs. Aquino, and De Peralta vs. Mangusang, among others, that the registered owner or operator has the right to be indemnified by the real or actual owner of the amount that he may be required to pay as damage for the injury caused. The right to be indemnified being recognized, recovery by the registered owner or operator may be made in any form-either by a cross-claim, third-party complaint, or an independent action. The result is the same.23 Moreover, while We held in Tamayo that the responsibility of the registered owner and actual operator of a truck which caused the death of its passenger is not solidary, We noted therein that the same is due to the fact that the action instituted was one for breach of contract, to wit: C hanRoblesVirtualawlibrary chanRoble svirtualLawlibrary The decision of the Court of Appeals is also attacked insofar as it holds that inasmuch as the third-party defendant had used the truck on a route not covered by the registered owner's franchise, both the registered owner and the actual owner and operator should be considered as the liability for which petitioner is being made responsible actually arises not from a pre-existing contractual relation between petitioner and the deceased. As the registered owner Tamayo and his transferee Rayos may not be held guilty of tort or a quasi-delict. who operated the vehicle when the passenger died. may be held liable for damages arising from the death of respondent Yu’s wife. participate with his transferee.joint tortfeasors and should be made liable in accordance with Article 2194 of the Civil Code. WHEREFORE. and that no evidence of whatever nature was presented by petitioner to support its defense of due diligence in the selection and supervision of its employees. SO ORDERED. therefore.”29 cralawlawlibrary Hence. rely on our ruling in Tamayo and escape its solidary liability for the liability of the employer for the negligent conduct of its subordinate is direct and primary. as in Tamayo. subject only to the defense of due diligence in the selection and supervision of the employee.. but from a damage caused by the negligence of its employee. Petitioner cannot. is how should the holder of the certificate of public convenience. The responsibility of two or more persons who are liable for a quasi-delict is solidary. Jepte. the instant petition is DENIED. 2006. CV No. but a tort or quasi-delict under Article 2176. In operating the truck without transfer thereof having been approved by the Public Service Commission. As Tamayo is the registered owner of the truck. The liability for which he is made responsible. cralawred The question that poses. as the employer of Gimena. respectively. chanroble svirtuallawlibrary . But the action instituted in the case at bar is one for breach of contract. But as the transferee. his responsibility to the public or to any passenger riding in the vehicle or truck must be direct. it must be noted that the case at hand does not involve a breach of contract of carriage. i. 2194. operator Rayos. 24 However. the transferee acted merely as agent of the registered owner and should be responsible to him (the registered owner). supra. for failure of the defendant to carry safely the deceased for her destination. As such. premises considered. petitioner. This Article is as follows: Art. The following considerations must be borne in mind in determining this question. “the principle of holding the registered owner liable for damages notwithstanding that ownership of the offending vehicle has already been transferred to another is designed to protect the public and not as a shield on the part of unscrupulous transferees of the vehicle to take refuge in.R. of the Court of Appeals in CA-G. this Court has consistently been of the view that it is for the better protection of the public for both the owner of record and the actual operator to be adjudged jointly and severally liable with the driver.e. considering that the negligence of driver Gimena was sufficiently proven by the records of the case. for any damages that he may cause the latter by his negligence. for the death of the passenger. Tamayo. dated September 9. 84175 are hereby AFFIRMED. 27 C hanRoblesVirtualawlibrary cralawlawlibrary Indeed.28 As aptly stated by the appellate court. therefore. as quoted above. inorder to free itself from liability arising from its own negligent act. is the one directly responsible for the accident and death he should in turn be made responsible to the registered owner for what the latter may have been adjudged to pay. in the damages recoverable by the heirs of the deceased passenger. The Decision and Resolution. for the reasons given in our decision in the case of Erezo vs. may not be considered as arising from a quasi-delict. their responsibility is not solidary as held by the Court of Appeals. if their liability is not that of Joint tortfeasors in accordance with Article 2194 of the Civil Code. 2005 and August 8. 25 in relation to Article 218026 of the New Civil Code.