Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-6706 March 29, 1953

The facts, as found in the action for support, are these: On November 19, 1937, plaintiff Salud R. Arca and defendant Alfredo Javier had their marriage solemnized by Judge Mariano Nable of the Municipal Court of Manila. At the time of their marriage, they had already begotten a son named Alfredo Javier Junior who was born on December 2, 1931. Sometime in 1938, defendant Alfredo Javier left for the United States on board a ship of the United States navy, for it appears that he had joined the United States Navy since 1927, such at the time of his marriage with plaintiff Salud R. Arca, defendant Alfredo Javier was already a enlisted man in the United States Navy. Because of defendant Alfredo Javier's departure for the United States in 1938, his wife Salud R. Arca, who is from Tanza, Cavite, chose to live with defendant's parents at Naic, Cavite. But for certain incompatibility of character (frictions having occurred between plaintiff Salud R. Arca and defendant's folks) plaintiff Salud R. Arca had found it necessary to leave defendant's parents' abode and transfer her residence to Tanza, Cavite her native place. Since then the relation between plaintiff Salud R. Arca and defendant Alfredo Javier become strained such that on August 13, 1940 defendant Alfredo Javier brought an action for divorce against plaintiff Salud R. Arca before the Circuit Court of Mobile County, State of Alabama, USA, docketed as Civil Case No. 14313 of that Court and marked as Exhibit 2 (c) in this case. Having received a copy of the complaint for divorce on September 23, 1940, plaintiff Salud R. Arca answering the complaint alleged in her answer that she received a copy of the complaint on September 23, 1940 although she was directed to file her answer thereto on or before September 13, 1940. In that answer she filed, plaintiff Salud R. Arca averred among other things that defendant Alfredo Javier was not a resident of Mobile County, State of Alabama, for the period of twelve months preceding the institution of the complaint, but that he was a resident of Naic, Cavite, Philippines. Another avernment of interest, which is essential to relate here, is that under paragraph 5 of her answer to the complaint for divorce, Salud R. Arca alleged that it was not true that the cause of their separation was desertion on her part but that if the defendant Alfredo Javier was in the United States at that time and she was not with him then it was because he was in active duty as an enlisted man of the United States Navy, as a consequence of which he had to leave for the United States without her. She further alleged that since his departure from the Philippines for the United States, he had always supported her and her co-plaintiff Alfredo Javier Junior through allotments made by the Navy Department of the United States Government. She denied, furthermore, the allegation that she had abandoned defendant's home at Naic, Cavite, and their separation was due to physical impossibility for they were separated by about 10,000 miles from each other. At this juncture, under the Old civil Code, the wife is not bound to live with her husband if the latter has gone to ultra-

ALFREDO JAVIER, petitioner, vs. HON. ANTONIO G. LUCERO, Judge of the Court of First Instance of Cavite; SALUD R. ARCA and ALFREDO JAVIER, JR., respondents. David F. Barrera for petitioner. Jacinto, Santillan and Roxas for respondents. BENGZON, J.: In an action for alimony (Civil Case No. 5150, Cavite), the respondent judge, after hearing the parties and their evidence, ordered Alfredo Javier to give a monthly allowance of P60 to his wife Salud R. Arca and their son Alfredo Javier, Jr. On April 14, 1953 the husband filed a notice of appeal, and on May 6, 1953, he submitted the appeal bond and the record on appeal. Meanwhile the wife and the son presented on April 30, 1953 a motion for "support pendente lite" even pending the final determination of the case on appeal". Whereupon on May 8, 1953, the judge directed Alfredo Javier to pay the monthly pensions notwithstanding the pendency of his appeal. Here comes Alfredo Javier with a petition for certiorari challenging such directive and arguing, in his own words: "1. The status of Salud R. Arca as wife of the petitioner is being contested; "2. Alfredo Javier Jr. is over 21 years old on March 31, 1953 and no longer entitled to be supported; and "3. Even granting that Alfredo Javier, Jr. is entitled to support even if over 21 years of age to complete his education or training for some profession, trade or vocation, the support could not be paid because the decision is vague or silent on that point.

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marine colonies. Plaintiff Salud R. Arca, in her answer to the complaint for divorce by defendant Alfredo Javier, prayed that the complaint for divorce be dismissed. However, notwithstanding Salud R. Arca's averments in her answer, contesting the jurisdiction of the Circuit Court of Mobile County, State of Alabama, to take cognizance of the divorce proceeding filed by defendant Alfredo Javier, as shown by her answer marked Exhibit 2 (d), nevertheless the Circuit Court of Mobile County rendered judgment decreeing dissolution of the marriage of Salud R. Arca and Alfredo Javier, and granting the latter a decree of divorce dated April 9, 1941, a certified copy of which is marked Exhibit 2(f). Thereupon, the evidence discloses that some time in 1946 defendant Alfredo Javier returned to the Philippines but went back to the United States. In July, 1941, that is after securing a divorce from plaintiff Salud R. Arca on April 9, 1941 defendant Alfredo Javier married Thelma Francis, an American citizen and bought a house and lot at 248 Brooklyn, New York City. In 1949, Thelma Francis, defendant's American wife, obtained a divorce from him for reasons not disclosed by the evidence, and later on, having retired from the United States Navy, defendant Alfredo Javier returned to the Philippines, armed with two decrees of divorce one against his first wife Salud R. Arca and the other against him by his second wife Thelma Francis issued by the Circuit Court of Mobile County, State of Alabama, USA, defendant Alfredo Javier married Maria Odvina before Judge Natividad AlmedaLopez of the Municipal Court of Manila on April 19, 1950, marked Exhibit 2 (b). At the instance of plaintiff Salud R. Arca an information for bigamy was filed by the City fiscal of manila on July 25, 1950 against defendant Alfredo Javier with the Court of First Instance of Manila, docketed as Criminal Case No. 13310 and marked Exhibit 2 (a). However, defendant Alfredo Javier with the Court of First Instance of Manila was acquitted of the charge of bigamy in a decision rendered by the Court of First Instance of Manila through Judge Alejandro J. Panlilio, dated August 10, 1951, predicated on the proposition that the marriage of defendant Alfredo Javier with Maria Odvina was made in all good faith and in the honest belief that his marriage with plaintiff Salud R. Arca had been legally dissolved by the decree of divorce obtained by him from the Circuit Court of Mobile County, State of Alabama, USA, which had the legal effect of dissolving the marital ties between defendant Alfredo Javier and plaintiff Salud R. Arca. At this juncture, again, it is this Court's opinion that defendant Alfredo Javier's acquittal in that Criminal Case No. 13310 of the Court of First Instance of Manila by Judge Panlilio was due to the fact that the accused had no criminal intent in contracting a second or subsequent marriage while his first marriage was still subsisting.

Turning now to the petition for certiorari, we perceive that, as to its first ground the respondent judge declared in his decision that Alfredo Javier and Salud Arca were married on November 19, 1937 when they had already a natural son named Alfredo Javier Junior, born December 2, 1931, and that, notwithstanding a decree of divorce which the husband Alfredo obtained in the United States in 1941, their marriage still subsists. Such being the situation, the principle in Francisco vs. Zandueta, 61 Phil., 752 on which petitioner entirely relies is not controlling, inasmuch as the existence of the married relation and the paternity had been established at least prima facie (cf. Sanchez vs. Zulueta, 68 Phil., 112.) Besides, as respondents point out, this is strictly not alimony pendente lite, under Rule 63, but execution of judgment pending appeal, under Rule 39. 1 In connection with the second ground of the petition, respondents observe that under the new Civil Code, article 290 support also includes the education of the person to be supported "until he complete his education or training for some profession, trade or vocation even beyond the age of majority" and on the basis of this article support was granted to Alfredo Javier Junior. Said the Court, "while it is true that plaintiff Alfredo Javier Junior, who was born on December 2, 1931, has reached the age of majority on December 2, 1952, yet, under the last part of article 290 of the new Civil Code, support may be given him even beyond the age of majority in order to enable him to complete his education, for some trade or profession." Now then, was the order issued in excess of jurisdiction or with grave abuse of discretion? The court undoubtedly has jurisdiction, inasmuch as it was issued before the record on appeal was submitted. (Sumulong vs. Imperial, 51 Phil., 251; Syquia vs. Concepcion, 60 Phil., 186). Did the judge abuse his discretion? Unquestionably, Alfredo Javier, Jr. is the son of petitioner Alfredo Javier, and if financial assistance is to be rendered only at the termination of the appeal his education, or the completion thereof, would be unduly delayed. That is good reason for immediate execution. Petitioner claims that according to the records Alfredo Javier Jr. "is no longer studying". Yet probably he stopped going to school due to lack of means, since the petitioner himself admits that his son is just a pre-law graduate. But the real grievance of petitioner is contained in the last portion of his pleading, which says, "What Alfredo Javier now tries to avoid is to support a woman who has desperately tried to put him in jail, when she accused him of bigamy." Such disgust is easily understandable. But compliance with legal and contractual duties is not always pleasant. Under the New Civil Code articles 303 and 921 the wife forfeits her husband's support after "she has accused (him) of a crime for which the law prescribes imprisonment for six years or more, and the accusation has been found to be

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false." Admittedly, he married a third time without the first marriage having been dissolved; but he was cleared of the bigamy charge for lack of criminal intent, inasmuch as he believed his divorce obtained in the U.S., had already ended his first marriage to Salud r. Arca. Such acquittal is no different from an acquittal on reasonable doubt, which in our opinion, and in the opinion of a member of the code Commission that framed the New Civil code, would not be ground to forfeit her right to support.2 Of course, the question whether Alfredo Javier's prosecution for bigamy and subsequent acquittal extinguished his obligation to maintain his complaining spouse will definitely be decided when the main case (No. 5150) is reviewed on appeal. Other aspects of the issue could then undoubtedly be the subject of research and elucidation. Nevertheless, we briefly explain our first impressions or provisional conclusion in the task of examining the alleged misuse by respondent judge of his prerogatives. It is markworthy that the son has not forfeited his right to support. As the issues are presently framed, petitioner has failed to sustain the burden of demonstrating the judge's clear error or grievous mistake in ordering execution of his judgment pending appeal. Costs against petitioner. Paras, C.J., Pablo, Montemayor, Reyes, Jugo, Bautista Angelo, Labrador, Concepcion and Diokno, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 11263 November 2, 1916

them, which just refusals of the plaintiff exasperated the defendant and induce him to maltreat her by word and deed and inflict injuries upon her lips, her face and different parts of her body; and that, as the plaintiff was unable by any means to induce the defendant to desist from his repugnant desires and cease from maltreating her, she was obliged to leave the conjugal abode and take refuge in the home of her parents. Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities established by General Orders No. 68, in so far as its civil effects are concerned requiring the consent of the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil Code.) Upon the termination of the marriage ceremony, a conjugal partnership is formed between the parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the nature of an ordinary contract. But it is something more than a mere contract. It is a new relation, the rights, duties, and obligations of which rest not upon the agreement of the parties but upon the general law which defines and prescribes those rights, duties, and obligations .Marriage is an institution, in the maintenance of which in its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any contract they may make .The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and none other. When the legal existence of the parties is merged into one by marriage, the new relation is regulated and controlled by the state or government upon principles of public policy for the benefit of society as well as the parties. And when the object of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable. With these principles to guide us, we will inquire into the status of the law touching and governing the question under consideration. Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the Peninsula, were extended to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law read: ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each other. ART. 45. The husband must live with and protect his wife. (The second paragraph deals with the management of the wife's property.) ART. 48. The wife must obey her husband, live with him, and follow him when he charges his domicile or residence.

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant, vs. JOSE CAMPOS RUEDA, defendant-appellee. Eduardo Gutierrez Repide and Felix Socias for appellant. Sanz, Opisso and Luzuriaga for appellee.

TRENT, J.: This is an action by the wife against her husband for support outside of the conjugal domicile. From a judgment sustaining the defendant's demurrer upon the ground that the facts alleged in the complaint do not state a cause of action, followed by an order dismissing the case after the plaintiff declined to amend, the latter appealed. It was urged in the first instance, and the court so held, that the defendant cannot be compelled to support the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her a divorce or separation from the defendant. The parties were legally married in the city of Manila on January 7, 1915, and immediately thereafter established their residence at 115 Calle San Marcelino, where they lived together for about a month, when the plaintiff returned to the home of her parents. The pertinent allegations of the complaint are as follows: That the defendant, one month after he had contracted marriage with the plaintiff, demanded of her that she perform unchaste and lascivious acts on his genital organs; that the plaintiff spurned the obscene demands of the defendant and refused to perform any act other than legal and valid cohabitation; that the defendant, since that date had continually on other successive dates, made similar lewd and indecorous demands on his wife, the plaintiff, who always spurned

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Notwithstanding the provisions of the foregoing paragraph, the court may for just cause relieve her from this duty when the husband removes his residence to a foreign country. And articles 143 and 149 of the Civil Code are as follows: ART. 143. The following are obliged to support each other reciprocally to the whole extent specified in the preceding article. 1. The consorts. xxx xxx xxx

ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying the pension that may be fixed or by receiving and maintaining in his own home the person having the right to the same. Article 152 of the Civil Code gives the instances when the obligation to give support shall cease. The failure of the wife to live with her husband is not one of them. The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with and protect his wife. The wife must obey and live with her husband and follow him when he changes his domicile or residence, except when he removes to a foreign country. But the husband who is obliged to support his wife may, at his option, do so by paying her a fixed pension or by receiving and maintaining her in his own home. May the husband, on account of his conduct toward his wife, lose this option and be compelled to pay the pension? Is the rule established by article 149 of the Civil Code absolute? The supreme court of Spain in its decision of December 5, 1903, held:. That in accordance with the ruling of the supreme court of Spain in its decisions dated May 11, 1897, November 25, 1899, and July 5, 1901, the option which article 149 grants the person, obliged to furnish subsistence, between paying the pension fixed or receiving and keeping in his own house the party who is entitled to the same, is not so absolute as to prevent cases being considered wherein, either because this right would be opposed to the exercise of a preferential right or because of the existence of some justifiable cause morally opposed to the removal of the party enjoying the maintenance, the right of selection must be understood as being thereby restricted.

Whereas the only question discussed in the case which gave rise to this appeal was whether there was any reason to prevent the exercise of the option granted by article 149 of the Civil Code to the person obliged to furnish subsistence, to receive and maintain in his own house the one who is entitled to receive it; and inasmuch as nothing has been alleged or discussed with regard to the parental authority of Pedro Alcantara Calvo, which he ha not exercised, and it having been set forth that the natural father simply claims his child for the purpose of thus better attending to her maintenance, no action having been taken by him toward providing the support until, owing to such negligence, the mother was obliged to demand it; it is seen that these circumstances, together with the fact of the marriage of Pedro Alcantara, and that it would be difficult for the mother to maintain relations with her daughter, all constitute an impediment of such a nature as to prevent the exercise of the option in the present case, without prejudice to such decision as may be deemed proper with regard to the other questions previously cited in respect to which no opinion should be expressed at this time. The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576), wherein the court held that the rule laid down in article 149 of the Civil Code "is not absolute." but it is insisted that there existed a preexisting or preferential right in each of these cases which was opposed to the removal of the one entitled to support. It is true that in the first the person claiming the option was the natural father of the child and had married a woman other than the child's mother, and in the second the right to support had already been established by a final judgment in a criminal case. Notwithstanding these facts the two cases clearly established the proposition that the option given by article 149 of the Civil Code may not be exercised in any and all cases. Counsel for the defendant cite, in support of their contention, the decision of the supreme court of Spain, dated November 3, 1905. In this case Don Berno Comas, as a result of certain business reverses and in order no to prejudice his wife, conferred upon her powers to administer and dispose of her property. When she left him he gave her all the muniments of title, mortgage credits, notes, P10,000 in accounts receivable, and the key to the safe in which he kept a large amount of jewels, thus depriving himself of all his possessions and being reduced in consequence to want. Subsequently he instituted this civil action against his wife, who was then living in opulence, for support and the revocation of the powers heretofore granted in reference to the administration and disposal of her property. In her answer the wife claimed that the plaintiff (her husband) was not legally in a situation to claim support and that the powers voluntarily conferred and accepted by her were bilateral and could not be canceled by the plaintiff. From a judgment in favor of the plaintiff the defendant wife appealed to the Audencia Territorialwherein, after due trial, judgment was rendered in her favor dismissing the action upon the merits. The plaintiff appealed to the

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supreme court and that high tribunal, in affirming the judgment of the Audencia Territorial, said: Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutually obliged to provide each other with support, cannot but be subordinate to the other provisions of said Code which regulates the family organization and the duties of spouses not legally separated, among which duties are those of their living together and mutually helping each other, as provided in article 56 of the aforementioned code; and taking this for granted, the obligation of the spouse who has property to furnish support to the one who has no property and is in need of it for subsistence, is to be understood as limited to the case where, in accordance with law, their separation has been decreed, either temporarily or finally and this case, with respect to the husband, cannot occur until a judgment of divorce is rendered, since, until then, if he is culpable, he is not deprived of the management of his wife's property and of the product of the other property belonging to the conjugal partnership; and Considering that, should the doctrine maintained in the appeal prevail, it would allow married persons to disregard the marriage bond and separate from each other of their own free will, thus establishing, contrary to the legal provision contained in said article 56 of the Civil Code, a legal status entirely incompatible with the nature and effects of marriage in disregard of the duties inherent therein and disturbing the unity of the family, in opposition to what the law, in conformity with good morals, has established; and. Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo are not legally separated, it is their duty to live together and afford each other help and support; and for this reason, it cannot be held that the former has need of support from his wife so that he may live apart from her without the conjugal abode where it is his place to be, nor of her conferring power upon him to dispose even of the fruits of her property in order therewith to pay the matrimonial expenses and, consequently, those of his own support without need of going to his wife; wherefore the judgment appealed from, denying the petition of D. Ramon Benso for support, has not violated the articles of the Civil Code and the doctrine invoked in the assignments of error 1 and 5 of the appeal. From a careful reading of the case just cited and quoted from it appears quite clearly that the spouses separated voluntarily in accordance with an agreement previously made. At least there are strong indications to this effect, for the court says, "should the doctrine maintained in the appeal prevail, it would allow married persons to disregard the marriage bond and separate from each

other of their own free will." If this be the true basis upon which the supreme court of Spain rested its decision, then the doctrine therein enunciated would not be controlling in cases where one of the spouses was compelled to leave the conjugal abode by the other or where the husband voluntarily abandons such abode and the wife seeks to force him to furnish support. That this is true appears from the decision of the same high tribunal, dated October 16, 1903. In this case the wife brought an action for support against her husband who had willfully and voluntarily abandoned the conjugal abode without any cause whatever. The supreme court, reversing the judgment absolving the defendant upon the ground that no action for divorce, etc., had been instituted, said: In the case at bar, it has been proven that it was Don Teodoro Exposito who left the conjugal abode, although he claims, without however proving his contention, that the person responsible for this situation was his wife, as she turned him out of the house. From this state of affairs it results that it is the wife who is party abandoned, the husband not having prosecuted any action to keep her in his company and he therefore finds himself, as long as he consents to the situation, under the ineluctable obligation to support his wife in fulfillment of the natural duty sanctioned in article 56 of the Code in relation with paragraph 1 of article 143. In not so holding, the trial court, on the mistaken ground that for the fulfillment of this duty the situation or relation of the spouses should be regulated in the manner it indicates, has made the errors of law assigned in the first three grounds alleged, because the nature of the duty of affording mutual support is compatible and enforcible in all situations, so long as the needy spouse does not create any illicit situation of the court above described.lawphil.net If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of November 3, 1905, and if the court did hold, as contended by counsel for the defendant in the case under consideration, that neither spouse can be compelled to support the other outside of the conjugal abode, unless it be by virtue of a final judgment granting the injured one a divorce or separation from the other, still such doctrine or holding would not necessarily control in this jurisdiction for the reason that the substantive law is not in every particular the same here as it is in Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the Peninsula are not in force in the Philippine Islands. The law governing the duties and obligations of husband and wife in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the Civil Code, various causes for divorce, such as adultery on the part of the wife in every case and on the part of the husband when public scandal or disgrace of the wife results therefrom; personal violence actually inflicted or grave insults: violence exercised by the husband toward the wife in order to force her to change her religion; the proposal of the husband to prostitute his wife; the attempts of the husband or wife to corrupt their sons or to prostitute their daughters; the connivance in their corruption or prostitution; and

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the condemnation of a spouse to perpetual chains or hard labor, while in this jurisdiction the only ground for a divorce is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and absolute doctrine was announced by this court in the case just cited after an exhaustive examination of the entire subject. Although the case was appealed to the Supreme Court of the United States and the judgment rendered by this court was there reversed, the reversal did not affect in any way or weaken the doctrine in reference to adultery being the only ground for a divorce. And since the decision was promulgated by this court in that case in December, 1903, no change or modification of the rule has been announced. It is, therefore, the well settled and accepted doctrine in this jurisdiction. But it is argued that to grant support in an independent suit is equivalent to granting divorce or separation, as it necessitates a determination of the question whether the wife has a good and sufficient cause for living separate from her husband; and, consequently, if a court lacks power to decree a divorce, as in the instant case, power to grant a separate maintenance must also be lacking. The weakness of this argument lies in the assumption that the power to grant support in a separate action is dependent upon a power to grant a divorce. That the one is not dependent upon the other is apparent from the very nature of the marital obligations of the spouses. The mere act of marriage creates an obligation on the part of the husband to support his wife. This obligation is founded not so much on the express or implied terms of the contract of marriage as on the natural and legal duty of the husband; an obligation, the enforcement of which is of such vital concern to the state itself that the laws will not permit him to terminate it by his own wrongful acts in driving his wife to seek protection in the parental home. A judgment for separate maintenance is not due and payable either as damages or as a penalty; nor is it a debt in the strict legal sense of the term, but rather a judgment calling for the performance of a duty made specific by the mandate of the sovereign. This is done from necessity and with a view to preserve the public peace and the purity of the wife; as where the husband makes so base demands upon his wife and indulges in the habit of assaulting her. The pro tanto separation resulting from a decree for separate support is not an impeachment of that public policy by which marriage is regarded as so sacred and inviolable in its nature; it is merely a stronger policy overruling a weaker one; and except in so far only as such separation is tolerated as a means of preserving the public peace and morals may be considered, it does not in any respect whatever impair the marriage contract or for any purpose place the wife in the situation of a feme sole. The foregoing are the grounds upon which our short opinion and order for judgment, heretofore filed in this case, rest. Torres, Johnson and Carson, JJ., concur.

Separate Opinions

MORELAND, J., concurring: I based my vote in this case upon the ground that a husband cannot, by his own wrongful acts, relieve himself from the duty to support his wife imposed by law; and where a husband, by wrongful, illegal, and unbearable conduct, drives his wife from the domicile fixed by him, he cannot take advantage of her departure to abrogate the law applicable to the marital relation and repudiate his duties thereunder. In law and for all purposes within its purview, the wife still remains an inmate of the conjugal domicile; for I regard it as a principle of law universally recognized that where a person by his wrongful and illegal acts creates a condition which under ordinary circumstances would produce the loss of rights or status pertaining to another, the law will, whenever necessary to protect fully the rights or status of the person affected by such acts, regard the condition by such acts created as not existing and will recur to and act upon the original situation of the parties to determine their relative rights or the status of the person adversely affected. I do not believe, therefore, that the case is properly conceived by defendant, when the consideration thereof proceeds solely on the theory that the wife is outside the domicile fixed by the husband. Under the facts alleged in the complainant the wife is legally still within the conjugal domicile.

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THIRD DIVISION

2. That with the aforesaid judicial admissions/declarations by the defendant, it seems futile and a useless exercise to claim support from said defendant. 3. That under the foregoing circumstances it would be more practical that plaintiff withdraws the complaint against the defendant subject to the condition that the defendant should not pursue his counterclaim in the above-entitled case, xxx.[1] By virtue of the said manifestation, both the plaintiff and the defendant agreed to move for the dismissal of the case. Acting thereupon, the Regional Trial Court a quo issued the following Order of August 8, 1989, dismissing Civil Case No. Q-88-935 with prejudice, to wit: Acting on the manifestation of Atty. Romualdo C. delos Santos, counsel for the defendant, that counsel for the plaintiff Atty. Ismael J. Andres has no objection that this case be withdrawn provided that the defendant will withdraw the counterclaim, as prayed for, let the case be dismissed with prejudice. SO ORDERED.[2] On September 7, 1995, another Complaint for maintenance and support was brought against Manuel A. de Asis, this time in the name of Glen Camil Andres de Asis, represented by her legal guardian/mother, Vircel D. Andres. Docketed as Civil Case No. C-16107 before Branch 130 of the Regional Trial Court of Kalookan, the said Complaint prayed, thus: WHEREFORE, premises considered, it is respectfully prayed that judgment be rendered ordering defendant: 1. To pay plaintiff the sum of not less than P2,000.00 per month for every month since June 1, 1987 as support in arrears which defendant failed to provide plaintiff shortly after her birth in June 1987 up to the present; 2. To give plaintiff a monthly allowance of P5,000.00 to be paid in advance on or before the 5th of each and every month; 3. To give plaintiff by way of support pendente lite, a monthly allowance of P5,000.00 per month, the first monthly allowance to start retroactively from the first day of this month and the subsequent ones to be paid in advance on or before the 5th of each succeeding month; 4. To pay the costs of suit.

[G.R. No. 127578. February 15, 1999]

MANUEL DE ASIS, petitioner, vs. COURT OF APPEALS, HON. JAIME T. HAMOY, Branch 130, RTC, Kalookan City and GLEN CAMIL ANDRES DE ASIS represented by her mother/guardian VIRCEL D. ANDRES, respondents. DECISION PURISIMA, J.: Petition for certiorari under Rule 65 of the Revised Rules of Court seeking to nullify the decision of the Court of Appeals which affirmed the trial courts Orders, dated November 25, 1993 and February 4, 1994, respectively, denying petitioners Motion to Dismiss the Complaint in Civil Case No. C -16107, entitled Glen Camil Andres de Asis, etc. vs. Manuel de Asis, and the motion for reconsideration. The pertinent facts leading to the filing of the petition at bar are, as follows: On October 14, 1988, Vircel D. Andres, (the herein private respondent) in her capacity as the legal guardian of the minor, Glen Camil Andres de Asis, brought an action for maintenance and support against Manuel de Asis, docketed as Civil Case No. Q-88-935 before the Regional Trial Court of Quezon City, Branch 94, alleging that the defendant Manuel de Asis (the petitioner here) is the father of subject minor Glen Camil Andres de Asis, and the former refused and/or failed to provide for the maintenance of the latter, despite repeated demands. In his Answer, petitioner denied his paternity of the said minor and theorized that he cannot therefore be required to provide support for him. On July 4, 1989, private respondent Vircel D. Andres, through counsel, sent in a manifestation the pertinent portion of which, reads; 1. That in his proposed Amended Answer, defendant (herein petitioner) has made a judicial admission/declaration that 1) defendant denies that the said minor child (Glen Camil) is his child; 2) he (petitioner) has no obligation to the plaintiff Glen Camil xxx.

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Plaintiff prays for such other relief just and equitable under the premises.[3] On October 8, 1993, petitioner moved to dismiss the Complaint on the ground of res judicata, alleging that Civil Case C-16107 is barred by the prior judgment which dismissed with prejudice Civil Case Q-88-935. In the Order dated November 25, 1993 denying subject motion to dismiss, the trial court ruled that res judicata is inapplicable in an action for support for the reason that renunciation or waiver of future support is prohibited by law. Petitioners motion for reconsideration of the said Order met the same fate. It was likewise denied. Petitioner filed with the Court of Appeals a Petition for Certiorari. But on June 7, 1996, the Court of Appeals found the said Petition devoid of merit and dismissed the same. Undaunted, petitioner found his way to this court via the present petition, posing the question whether or not the public respondent acted with grave abuse of discretion amounting to lack or excess of jurisdiction in upholding the denial of the motion to dismiss by the trial court, and holding that an action for support cannot be barred by res judicata. To buttress his submission, petitioner invokes the previous dismissal of the Complaint for maintenance and support, Civil Case Q-88-935, filed by the mother and guardian of the minor, Glen Camil Andres de Asis, (the herein private respondent). In said case, the complainant manifested that because of the defendants judicial declaration denying that he is the father of subject minor child, it wasfutile and a useless exercise to claim support from defendant. Because of such manifestation, and defendants assurance that he would not pursue his counterclaim anymore, the parties mutually agreed to move for the dismissal of the complaint. The motion was granted by the Quezon City Regional Trial Court, which then dismissed the case with prejudice. Petitioner contends that the aforecited manifestation, in effect, admitted the lack of filiation between him and the minor child, which admission binds the complainant, and since the obligation to give support is based on the existence of paternity and filiation between the child and the putative parent, the lack thereof negates the right to claim for support. Thus, petitioner maintains that the dismissal of the Complaint by the lower court on the basis of the said manifestation bars the present action for support, especially so because the order of the trial court explicitly stated that the dismissal of the case was with prejudice. The petition is not impressed with merit. The right to receive support can neither be renounced nor transmitted to a third person. Article 301 of the Civil Code, the law in point, reads:

Art. 301. The right to receive support cannot be renounced, nor can it be transmitted to a third person. Neither can it be compensated with what the recipient owes the obligor. xxx Furthermore, future support cannot be the subject of a compromise. Article 2035, ibid, provides, that: No compromise upon the following questions shall be valid: (1) The civil status of persons; (2) The validity of a marriage or legal separation; (3) Any ground for legal separation (4) Future support; (5) The jurisdiction of courts; (6) Future legitime. The raison d etre behind the proscription against renunciation, transmission and/or compromise of the right to support is stated, thus: The right to support being founded upon the need of the recipient to ma intain his existence, he is not entitled to renounce or transfer the right for this would mean sanctioning the voluntary giving up of life itself. The right to life cannot be renounced; hence, support, which is the means to attain the former, cannot be renounced. xxx To allow renunciation or transmission or compensation of the family right of a person to support is virtually to allow either suicide or the conversion of the recipient to a public burden. This is contrary to public policy.[4] In the case at bar, respondent minors mother, who was the plaintiff in the first case, manifested that she was withdrawing the case as it seemed futile to claim support from petitioner who denied his paternity over the child. Since the right to claim for support is predicated on the existence of filiation between the minor child and the putative parent, petitioner would like us to believe that such

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manifestation admitting the futility of claiming support from him puts the issue to rest and bars any and all future complaint for support. The manifestation sent in by respondents mother in the first case, which acknowledged that it would be useless to pursue its complaint for support, amounted to renunciation as it severed the vinculum that gives the minor, Glen Camil, the right to claim support from his putative parent, the petitioner. Furthermore, the agreement entered into between the petitioner and respondents mother for the dismissal of the complaint for maintenance and support conditioned upon the dismissal of the counterclaim is in the nature of a compromise which cannot be countenanced. It violates the prohibition against any compromise of the right to support. Thus, the admission made by counsel for the wife of the facts alleged in a motion of the husband, in which the latter prayed that his obligation to support be extinguished cannot be considered as an assent to the prayer, and much less, as a waiver of the right to claim for support.[5] It is true that in order to claim support, filiation and/or paternity must first be shown between the claimant and the parent. However, paternity and filiation or the lack of the same is a relationship that must be judicially established and it is for the court to declare its existence or absence. It cannot be left to the will or agreement of the parties. The civil status of a son having been denied, and this civil status, from which the right to support is derived being in issue, it is apparent that no effect can be given to such a claim until an authoritative declaration has been made as to the existence of the cause.[6] Although in the case under scrutiny, the admission may be binding upon the respondent, such an admission is at most evidentiary and does not conclusively establish the lack of filiation. Neither are we persuaded by petitioners theory that the dismissal with prejudice of Civil Case Q-88-935 has the effect of res judicata on the subsequent case for support. The case of Advincula vs. Advincula[7] comes to the fore. In Advincula, the minor, Manuela Advincula, instituted a case for acknowledgment and support against her putative father, Manuel Advincula. On motion of both parties and for the reason that the plaintiff has lost interest and is no longer interested in continuing the case against the defendant and has no further evidence to introduce in support of the complaint , the case was dismissed. Thereafter, a similar case was instituted by Manuela, which the defendant moved to dismiss, theorizing that the dismissal of the first case precluded the filing of the second case. In disposing such case, this Court ruled, thus:

The new Civil Code provides that the allowance for support is provisional because the amount may be increased or decreased depending upon the means of the giver and the needs of the recipient (Art. 297); and that the right to receive support cannot be renounced nor can it be transmitted to a third person; neither can it be compensated with what the recipient owes the obligator (Art. 301). Furthermore, the right to support can not be waived or transferred to third parties and future support cannot be the subject of compromise (Art. 2035; Coral v. Gallego, 38 O.G. 3135, cited in IV Civil Code by Padilla, p. 648, 1956 Ed.). This being true, it is indisputable that the present action for support can be brought, notwithstanding the fact the previous case filed against the same defendant was dismissed. And it also appearing that the dismissal of Civil Case No. 3553, was not an adjudication upon the merits, as heretofore shown, the right of herein plaintiff-appellant to reiterate her suit for support and acknowledgment is available, as her needs arise. Once the needs of plaintiff arise, she has the right to bring an action for support, for it is only then that her cause of action accrues.xxx xxx It appears that the former dismissal was predicated upon a compromise. Acknowledgment, affecting as it does the civil status of persons and future support, cannot be the subject of compromise. (pars. 1 & 4, Art. 2035, Civil Code). Hence, the first dismissal cannot have force and effect and can not bar the filing of another action, asking for the same relief against the same defendant.(emphasis supplied) Conformably, notwithstanding the dismissal of Civil Case 88-935 and the lower courts pronouncement that such dismissal was with prejudice, the second action for support may still prosper. WHEREFORE, the petition under consideration is hereby DISMISSED and the decision of the Court of Appeals AFFIRMED. No pronouncement as to costs. SO ORDERED. Romero, (Chairman), Vitug, Panganiban, and Gonzaga-Reyes, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo, Teresita left Reynaldo and the children and went back to California. She claims, however, that she spent a lot of money on long distance telephone calls to keep in constant touch with her children. Reynaldo brought his children home to the Philippines, but because his assignment in Pittsburgh was not yet completed, he was sent back by his company to Pittsburgh. He had to leave his children with his sister, co-petitioner Guillerma Layug and her family. Teresita claims that she did not immediately follow her children because Reynaldo filed a criminal case for bigamy against her and she was afraid of being arrested. The judgment of conviction in the bigamy case was actually rendered only on September 29, 1994. (Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-222,Rollo). Teresita, meanwhile, decided to return to the Philippines and on December 8, 1992 and filed the petition for a writ of habeas corpus against herein two petitioners to gain custody over the children, thus starting the whole proceedings now reaching this Court. On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended Teresita's parental authority over Rosalind and Reginald and declared Reynaldo to have sole parental authority over them but with rights of visitation to be agreed upon by the parties and to be approved by the Court. On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ibay-Somera concurring, reversed the trial court's decision. It gave custody to Teresita and visitation rights on weekends to Reynaldo. Petitioners now come to this Court on a petition for review, in the main contending that the Court of Appeals disregarded the factual findings of the trial court; that the Court of Appeals further engaged in speculations and conjectures, resulting in its erroneous conclusion that custody of the children should be given to respondent Teresita. We believe that respondent court resolved the question of custody over the children through an automatic and blind application of the age proviso of Article 363 of the Civil Code which reads: Art. 363. In all questions on the care, custody, education and property of the children, the latter's welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.

G.R. No. 115640 March 15, 1995 REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners, vs. COURT OF APPEALS and TERESITA MASAUDING, respondents.

MELO, J.: This case concerns a seemingly void marriage and a relationship which went sour. The innocent victims are two children horn out of the same union. Upon this Court now falls the not too welcome task of deciding the issue of who, between the father and mother, is more suitable and better qualified in helping the children to grow into responsible, well-adjusted, and happy young adulthood. Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in 1976 in Iligan City where Reynaldo was employed by the National Steel Corporation and Teresita was employed as a nurse in a local hospital. In 1977, Teresita left for Los Angeles, California to work as a nurse. She was able to acquire immigrant status sometime later. In 1984, Reynaldo was sent by his employer, the National Steel Corporation, to Pittsburgh, Pennsylvania as its liaison officer and Reynaldo and Teresita then began to maintain a common law relationship of husband and wife. On August 16, 1986, their daughter, Rosalind Therese, was born. On October 7, 1987, while they were on a brief vacation in the Philippines, Reynaldo and Teresita got married, and upon their return to the United States, their second child, a son, this time, and given the name Reginald Vince, was born on January 12, 1988. The relationship of the couple deteriorated until they decided to separate sometime in 1990. Teresita blamed Reynaldo for the break-up, stating he was always nagging her about money matters. Reynaldo, on the other hand, contended that Teresita was a spendthrift, buying expensive jewelry and antique furniture instead of attending to household expenses.

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and of Article 213 of the Family Code which in turn provides: Art. 213. In case of separation of the parents parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age unless the parent chosen is unfit. The decision under review is based on the report of the Code Commission which drafted Article 213 that a child below seven years still needs the loving, tender care that only a mother can give and which, presumably, a father cannot give in equal measure. The commentaries of a member of the Code Commission, former Court of Appeals Justice Alicia Sempio-Diy, in a textbook on the Family Code, were also taken into account. Justice Diy believes that a child below seven years should still be awarded to her mother even if the latter is a prostitute or is unfaithful to her husband. This is on the theory that moral dereliction has no effect on a baby unable to understand such action. (Handbook on the Family Code of the Philippines, 1988 Ed., p. 297.) The Court of Appeals was unduly swayed by an abstract presumption of law rather than an appreciation of relevant facts and the law which should apply to those facts. The task of choosing the parent to whom custody shall be awarded is not a ministerial function to be determined by a simple determination of the age of a minor child. Whether a child is under or over seven years of age, the paramount criterion must always be the child's interests. Discretion is given to the court to decide who can best assure the welfare of the child, and award the custody on the basis of that consideration. In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the rule that "in all controversies regarding the custody of minors, the sole and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents", and in Medina vs. Makabali (27 SCRA 502 [1969]), where custody of the minor was given to a non-relative as against the mother, then the country's leading civilist, Justice J.B.L. Reyes, explained its basis in this manner: . . . While our law recognizes the right of a parent to the custody of her child, Courts must not lose sight of the basic principle that "in all questions on the care, custody, education and property of children, the latter's welfare shall be paramount" (Civil Code of the Philippines. Art. 363), and that for compelling reasons, even a child under seven may be ordered separated from the mother (do). This is as it should be, for in the continual evolution of legal institutions, the patria potestas has been transformed from the jus vitae ac necis (right of life and death) of the Roman law, under which the offspring was virtually a chattel of his parents into a

radically different institution, due to the influence of Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig Pena, now "there is no power, but a task; no complex of rights (of parents) but a sum of duties; no sovereignty, but a sacred trust for the welfare of the minor." As a result, the right of parents to the company and custody of their children is but ancillary to the proper discharge of parental duties to provide the children with adequate support, education, moral, intellectual and civic training and development (Civil Code, Art. 356). (pp. 504-505.) In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into account all relevant considerations. If a child is under seven years of age, the law presumes that the mother is the best custodian. The presumption is strong but it is not conclusive. It can be overcome by "compelling reasons". If a child is over seven, his choice is paramount but, again, the court is not bound by that choice. In its discretion, the court may find the chosen parent unfit and award custody to the other parent, or even to a third party as it deems fit under the circumstances. In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind celebrated her seventh birthday on August 16, 1993 while Reginald reached the same age on January 12, 1995. Both are studying in reputable schools and appear to be fairly intelligent children, quite capable of thoughtfully determining the parent with whom they would want to live. Once the choice has been made, the burden returns to the court to investigate if the parent thus chosen is unfit to assume parental authority and custodial responsibility. Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to discover the choice of the children and rather than verifying whether that parent is fit or unfit, respondent court simply followed statutory presumptions and general propositions applicable to ordinary or common situations. The sevenyear age limit was mechanically treated as an arbitrary cut off period and not a guide based on a strong presumption. A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing the "torture and agony" of a mother separated from her children and the humiliation she suffered as a result of her character being made a key issue in court rather than the feelings and future, the best interests and welfare of her children. While the bonds between a mother and her small child are special in nature, either parent, whether father or mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or

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her suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration. We are inclined to sustain the findings and conclusions of the regional trial court because it gave greater attention to the choice of Rosalind and considered in detail all the relevant factors bearing on the issue of custody. When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita Flores Macabulos, to determine the effects of uprooting her from the Assumption College where she was studying. Four different tests were administered. The results of the tests are quite revealing. The responses of Rosalind about her mother were very negative causing the psychologist to delve deeper into the child's anxiety. Among the things revealed by Rosalind was an incident where she saw her mother hugging and kissing a "bad" man who lived in their house and worked for her father. Rosalind refused to talk to her mother even on the telephone. She tended to be emotionally emblazed because of constant fears that she may have to leave school and her aunt's family to go back to the United States to live with her mother. The 5-1/2 page report deals at length with feelings of insecurity and anxiety arising from strong conflict with the mother. The child tried to compensate by having fantasy activities. All of the 8 recommendations of the child psychologist show that Rosalind chooses petitioners over the private respondent and that her welfare will be best served by staying with them (pp. 199-205, Rollo). At about the same time, a social welfare case study was conducted for the purpose of securing the travel clearance required before minors may go abroad. Social Welfare Officer Emma D. Estrada Lopez, stated that the child Rosalind refused to go back to the United States and be reunited with her mother. She felt unloved and uncared for. Rosalind was more attached to her Yaya who did everything for her and Reginald. The child was found suffering from emotional shock caused by her mother's infidelity. The application for travel clearance was recommended for denial (pp. 206-209, Rollo). Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the date when the petition for a writ of habeas corpus is filed, not to the date when a decision is rendered. This argument is flawed. Considerations involving the choice made by a child must be ascertained at the time that either parent is given custody over the child. The matter of custody is not permanent and unalterable. If the parent who was given custody suffers a future character change and becomes unfit, the matter of custody can always be re-examined and adjusted (Unson III v. Navarro, supra, at p. 189). To be sure, the welfare, the best interests, the benefit, and the good of the child must be determined as of the time that either parent is chosen to be the custodian. At the present time, both children are over 7 years of age and are thus perfectly capable of making a fairly intelligent choice.

According to respondent Teresita, she and her children had tearful reunion in the trial court, with the children crying, grabbing, and embracing her to prevent the father from taking them away from her. We are more inclined to believe the father's contention that the children ignored Teresita in court because such an emotional display as described by Teresita in her pleadings could not have been missed by the trial court. Unlike the Justices of the Court of Appeals Fourth Division, Judge Lucas P. Bersamin personally observed the children and their mother in the courtroom. What the Judge found is diametrically opposed to the contentions of respondent Teresita. The Judge had this to say on the matter. And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more understanding, especially as her conduct and demeanor in the courtroom (during most of the proceedings) or elsewhere (but in the presence of the undersigned presiding judge) demonstrated her ebulent temper that tended to corroborate the alleged violence of her physical punishment of the children (even if only for ordinary disciplinary purposes) and emotional instability, typified by her failure (or refusal?) to show deference and respect to the Court and the other parties (pp. 12-13, RTC Decision) Respondent Teresita also questions the competence and impartiality of the expert witnesses. Respondent court, in turn, states that the trial court should have considered the fact that Reynaldo and his sister, herein petitioner Guillerma Layug, hired the two expert witnesses. Actually, this was taken into account by the trial court which stated that the allegations of bias and unfairness made by Teresita against the psychologist and social worker were not substantiated. The trial court stated that the professional integrity and competence of the expert witnesses and the objectivity of the interviews were unshaken and unimpeached. We might add that their testimony remain uncontroverted. We also note that the examinations made by the experts were conducted in late 1991, well over a year before the filing by Teresita of the habeas corpus petition in December, 1992. Thus, the examinations were at that time not intended to support petitioners' position in litigation, because there was then not even an impending possibility of one. That they were subsequently utilized in the case a quo when it did materialize does not change the tenor in which they were first obtained. Furthermore, such examinations, when presented to the court must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it. The persons who effected such examinations were presented in the capacity of expert witnesses testifying on matters within their respective knowledge and expertise. On this matter, this Court had occasion to rule in the case of Sali vs. Abukakar, et al. (17 SCRA 988 [1966]).

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The fact that, in a particular litigation, an NBI expert examines certain contested documents, at the request, not of a public officer or agency of the Government, but of a private litigant, does not necessarily nullify the examination thus made. Its purpose, presumably, to assist the court having jurisdiction over said litigation, in the performance of its duty to settle correctly the issues relative to said documents. Even a nonexpert private individual may examine the same, if there are facts within his knowledge which may help, the court in the determination of said issue. Such examination, which may properly be undertaken by a non-expert private individual, does not, certainly become null and void when the examiner is an expert and/or an officer of the NBI. (pp. 991-992.) In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate Court, et al. (185 SCRA 352 [1990]): . . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which reserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion. (p. 359) It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses' character and to observe their respective demeanor that the trial

court opted to rely on their testimony, and we believe that the trial court was correct in its action. Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind and her aunt were about to board a plane when they were off-loaded because there was no required clearance. They were referred to her office, at which time Reginald was also brought along and interviewed. One of the regular duties of Social Worker Lopez in her job appears to be the interview of minors who leave for abroad with their parents or other persons. The interview was for purposes of foreign travel by a 5-year old child and had nothing to do with any pending litigation. On cross-examination, Social Worker Lopez stated that her assessment of the minor's hatred for her mother was based on the disclosures of the minor. It is inconceivable, much less presumable that Ms. Lopez would compromise her position, ethics, and the public trust reposed on a person of her position in the course of doing her job by falsely testifying just to support the position of any litigant. The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A. degree holder also in Psychology with her thesis graded "Excellent". She was a candidate for a doctoral degree at the time of the interview. Petitioner Reynaldo may have shouldered the cost of the interview but Ms. Macabulos services were secured because Assumption College wanted an examination of the child for school purposes and not because of any litigation. She may have been paid to examine the child and to render a finding based on her examination, but she was not paid to fabricate such findings in favor of the party who retained her services. In this instance it was not even petitioner Reynaldo but the school authorities who initiated the same. It cannot be presumed that a professional of her potential and stature would compromise her professional standing. Teresita questions the findings of the trial court that: 1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a subsisting marriage with another man. 2. She is guilty of grave indiscretion in carrying on a love affair with one of the Reynaldo's fellow NSC employees. 3. She is incapable of providing the children with necessities and conveniences commensurate to their social standing because she does not even own any home in the Philippines. 4. She is emotionally unstable with ebullient temper.

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It is contended that the above findings do not constitute the compelling reasons under the law which would justify depriving her of custody over the children; worse, she claims, these findings are non-existent and have not been proved by clear and convincing evidence. Public and private respondents give undue weight to the matter of a child under 7 years of age not to be separated from the mother, without considering what the law itself denominates as compelling reasons or relevant considerations to otherwise decree. In the Unson III case, earlier mentioned, this Court stated that it found no difficulty in not awarding custody to the mother, it being in the best interest of the child "to be freed from the obviously unwholesome, not to say immoral influence, that the situation where [the mother] had placed herself . . . might create in the moral and social outlook of [the child] who was in her formative and most impressionable stage . . ." Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They understand the difference between right and wrong, ethical behavior and deviant immorality. Their best interests would be better served in an environment characterized by emotional stability and a certain degree of material sufficiency. There is nothing in the records to show that Reynaldo is an "unfit" person under Article 213 of the Family Code. In fact, he has been trying his best to give the children the kind of attention and care which the mother is not in a position to extend. The argument that the charges against the mother are false is not supported by the records. The findings of the trial court are based on evidence. Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in California (p. 13, Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year later, she had already driven across the continental United States to commence living with another man, petitioner Reynaldo, in Pittsburgh. The two were married on October 7, 1987. Of course, to dilute this disadvantage on her part, this matter of her having contracted a bigamous marriage later with Reynaldo, Teresita tried to picture Reynaldo as a rapist, alleging further that she told Reynaldo about her marriage to Lustado on the occasion when she was raped by Reynaldo. Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no weight to such tale. And even if this story were given credence, it adds to and not subtracts from the conviction of this Court about Teresita's values. Rape is an insidious crime against privacy. Confiding to one's potential rapist about a prior marriage is not a very convincing indication that the potential victim is averse to the act. The implication created is that the act would be acceptable if not for the prior marriage. More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the rape incident itself is unlikely against a woman who had driven

three days and three nights from California, who went straight to the house of Reynaldo in Pittsburgh and upon arriving went to bed and, who immediately thereafter started to live with him in a relationship which is marital in nature if not in fact. Judge Bersamin of the court a quo believed the testimony of the various witnesses that while married to Reynaldo, Teresita entered into an illicit relationship with Perdencio Gonzales right there in the house of petitioner Reynaldo and respondent Teresita. Perdencio had been assigned by the National Steel Corporation to assist in the project in Pittsburgh and was staying with Reynaldo, his co-employee, in the latter's house. The record shows that the daughter Rosalind suffered emotional disturbance caused by the traumatic effect of seeing her mother hugging and kissing a boarder in their house. The record also shows that it was Teresita who left the conjugal home and the children, bound for California. When Perdencio Gonzales was reassigned to the Philippines, Teresita followed him and was seen in his company in a Cebu hotel, staying in one room and taking breakfast together. More significant is that letters and written messages from Teresita to Perdencio were submitted in evidence (p.12, RTC Decision). The argument that moral laxity or the habit of flirting from one man to another does not fall under "compelling reasons" is neither meritorious nor applicable in this case. Not only are the children over seven years old and their clear choice is the father, but the illicit or immoral activities of the mother had already caused emotional disturbances, personality conflicts, and exposure to conflicting moral values, at least in Rosalind. This is not to mention her conviction for the crime of bigamy, which from the records appears to have become final (pp. 210222, Rollo). Respondent court's finding that the father could not very well perform the role of a sole parent and substitute mother because his job is in the United States while the children will be left behind with their aunt in the Philippines is misplaced. The assignment of Reynaldo in Pittsburgh is or was a temporary one. He was sent there to oversee the purchase of a steel mill component and various equipment needed by the National Steel Corporation in the Philippines. Once the purchases are completed, there is nothing to keep him there anymore. In fact, in a letter dated January 30, 1995, Reynaldo informs this Court of the completion of his assignment abroad and of his permanent return to the Philippines (ff. p. 263, Rollo). The law is more than satisfied by the judgment of the trial court. The children are now both over seven years old. Their choice of the parent with whom they prefer to stay is clear from the record. From all indications, Reynaldo is a fit person, thus meeting the two requirements found in the first paragraph of Article 213 of the Family Code. The presumption under the second paragraph of said article no longer applies as the children are over seven years. Assuming that the

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presumption should have persuasive value for children only one or two years beyond the age of seven years mentioned in the statute, there are compelling reasons and relevant considerations not to grant custody to the mother. The children understand the unfortunate shortcomings of their mother and have been affected in their emotional growth by her behavior. WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is reversed and set aside, and the decision of Branch 96 of the Regional Trial Court of the National Capital Judicial Region stationed in Quezon City and presided over by the Honorable Lucas P. Bersamin in its Civil Case No. Q-9214206 awarding custody of the minors Rosalind and Reginald Espiritu to their father, Reynaldo Espiritu, is reinstated. No special pronouncement is made as to costs. SO ORDERED. Feliciano, Romero, Vitug and Francisco, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-47745 April 15, 1988 JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA PANTALEON A. AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA, VICENTE A. AMADORA and MARIA TISCALINA A. AMADORA, petitioners vs. HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH SERGIO P. DLMASO JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON thru his parents and natural guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA, thru his guardian, A. FRANCISCO ALONSO, respondents. Jose S. Amadora & Associates for petitioners. Padilla Law Office for respondents.

First Instance of Cebu held the remaining defendants liable to the plaintiffs in the sum of P294,984.00, representing death compensation, loss of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and attorney's fees . 3 On appeal to the respondent court, however, the decision was reversed and all the defendants were completely absolved . 4 In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the respondent court found that Article 2180 was not applicable as the Colegio de San Jose-Recoletos was not a school of arts and trades but an academic institution of learning. It also held that the students were not in the custody of the school at the time of the incident as the semester had already ended, that there was no clear identification of the fatal gun and that in any event the defendant, had exercised the necessary diligence in preventing the injury. 5 The basic undisputed facts are that Alfredo Amadora went to the San JoseRecoletos on April 13, 1972, and while in its auditorium was shot to death by Pablito Daffon, a classmate. On the implications and consequences of these facts, the parties sharply disagree. The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his graduation; hence, he was then under the custody of the private respondents. The private respondents submit that Alfredo Amadora had gone to the school only for the purpose of submitting his physics report and that he was no longer in their custody because the semester had already ended. There is also the question of the identity of the gun used which the petitioners consider important because of an earlier incident which they claim underscores the negligence of the school and at least one of the private respondents. It is not denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys, confiscated from Jose Gumban an unlicensed pistol but later returned it to him without making a report to the principal or taking any further action . 6 As Gumban was one of the companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners contend that this was the same pistol that had been confiscated from Gumban and that their son would not have been killed if it had not been returned by Damaso. The respondents say, however, that there is no proof that the gun was the same firearm that killed Alfredo. Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is invoked by both parties in support of their conflicting positions. The pertinent part of this article reads as follows: Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and

CRUZ, J.: Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where he would ascend the stage and in the presence of his relatives and friends receive his high school diploma. These ceremonies were scheduled on April 16, 1972. As it turned out, though, fate would intervene and deny him that awaited experience. On April 13, 1972, while they were in the auditorium of their school, the Colegio de San Jose-Recoletos, a classmate, Pablito Damon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The victim was only seventeen years old. 1 Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the victim's parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos, its rector the high school principal, the dean of boys, and the physics teacher, together with Daffon and two other students, through their respective parents. The complaint against the students was later dropped. After trial, the Court of

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students or apprentices so long as they remain in their custody. Three cases have so far been decided by the Court in connection with the abovequoted provision, to wit: Exconde v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed in this opinion for a better resolution of the case at bar. In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended a Rizal Day parade on instructions of the city school supervisor. After the parade, the boy boarded a jeep, took over its wheel and drove it so recklessly that it turned turtle, resulting in the death of two of its passengers. Dante was found guilty of double homicide with reckless imprudence. In the separate civil action flied against them, his father was held solidarily liable with him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year old boy. This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter dictum (as it was not a party to the case) on the ground that it was riot a school of arts and trades. Justice J.B.L. Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school authorities who should be held liable Liability under this rule, he said, was imposed on (1) teachers in general; and (2) heads of schools of arts and trades in particular. The modifying clause "of establishments of arts and trades" should apply only to "heads" and not "teachers." Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor blade during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the culprits parents for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself had also not been sued that the school was not liable because it was not an establishment of arts and trades. Moreover, the custody requirement had not been proved as this "contemplates a situation where the student lives and boards with the teacher, such that the control, direction and influences on the pupil supersede those of the parents." Justice J.B.L. Reyes did not take part but the other members of the court concurred in this decision promulgated on May 30, 1960. In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with fist blows in the laboratory of the Manila Technical Institute. Although the wrongdoer who was already of age was not boarding in the school, the head thereof and the teacher in charge were held solidarily liable with him. The Court declared through Justice Teehankee:

The phrase used in the cited article "so long as (the students) remain in their custody" means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time. There is nothing in the law that requires that for such liability to attach, the pupil or student who commits the tortious act must live and board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by the present decision. This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in answer to the dissenting opinion, that even students already of age were covered by the provision since they were equally in the custody of the school and subject to its discipline. Dissenting with three others, 11 Justice Makalintal was for retaining the custody interpretation in Mercado and submitted that the rule should apply only to torts committed by students not yet of age as the school would be acting only in loco parentis. In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that "since the school involved at bar is a nonacademic school, the question as to the applicability of the cited codal provision to academic institutions will have to await another case wherein it may properly be raised." This is the case. Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is sought to be held liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic institution of learning. The parties herein have also directly raised the question of whether or not Article 2180 covers even establishments which are technically not schools of arts and trades, and, if so, when the offending student is supposed to be "in its custody." After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the

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head thereof who shall be answerable. Following the canon of reddendo singula singulis "teachers" should apply to the words "pupils and students" and "heads of establishments of arts and trades" to the word "apprentices." The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said in part: I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades and not to academic ones. What substantial difference is there between them insofar as concerns the proper supervision and vice over their pupils? It cannot be seriously contended that an academic teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment of third Persons, so long as they are in a position to exercise authority and Supervision over the pupil. In my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art. 1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of establishments." The phrase is only an updated version of the equivalent terms "preceptores y artesanos" used in the Italian and French Civil Codes. If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in someculpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem clear that where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody, for the very reason/that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction. And if there is no authority, there can be no responsibility. There is really no substantial distinction between the academic and the nonacademic schools insofar as torts committed by their students are concerned. The same vigilance is expected from the teacher over the students under his control and supervision, whatever the nature of the school where he is teaching. The suggestion in the Exconde and Mercado Cases is that the provision would make the teacher or even the head of the school of arts and trades liable for an injury caused by any student in its custody but if that same tort were committed in an academic school, no liability would attach to the teacher or the school head. All other circumstances being the same, the teacher or the head of the academic school would be absolved whereas the teacher and the head of the non-

academic school would be held liable, and simply because the latter is a school of arts and trades. The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the basis only of the nature of their respective schools. There does not seem to be any plausible reason for relaxing that vigilance simply because the school is academic in nature and for increasing such vigilance where the school is non-academic. Notably, the injury subject of liability is caused by the student and not by the school itself nor is it a result of the operations of the school or its equipment. The injury contemplated may be caused by any student regardless of the school where he is registered. The teacher certainly should not be able to excuse himself by simply showing that he is teaching in an academic school where, on the other hand, the head would be held liable if the school were non-academic. These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the torts committed by his students, why is it the head of the school only who is held liable where the injury is caused in a school of arts and trades? And in the case of the academic or non- technical school, why not apply the rule also to the head thereof instead of imposing the liability only on the teacher? The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades exercised a closer tutelage over his pupils than the head of the academic school. The old schools of arts and trades were engaged in the training of artisans apprenticed to their master who personally and directly instructed them on the technique and secrets of their craft. The head of the school of arts and trades was such a master and so was personally involved in the task of teaching his students, who usually even boarded with him and so came under his constant control, supervision and influence. By contrast, the head of the academic school was not as involved with his students and exercised only administrative duties over the teachers who were the persons directly dealing with the students. The head of the academic school had then (as now) only a vicarious relationship with the students. Consequently, while he could not be directly faulted for the acts of the students, the head of the school of arts and trades, because of his closer ties with them, could be so blamed. It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and trades, the consequent increase in their enrollment, and the corresponding diminution of the direct and personal contract of their heads with the students. Article 2180, however, remains unchanged. In its present state, the provision must be interpreted by the Court according to its clear and original mandate until the legislature, taking into account the charges in the situation subject to be regulated, sees fit to enact the necessary amendment.

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The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of arts and trades over the students. Is such responsibility co-extensive with the period when the student is actually undergoing studies during the school term, as contended by the respondents and impliedly admitted by the petitioners themselves? From a reading of the provision under examination, it is clear that while the custody requirement, to repeat Palisoc v. Brillantes, does not mean that the student must be boarding with the school authorities, it does signify that the student should be within the control and under the influence of the school authorities at the time of the occurrence of the injury. This does not necessarily mean that such, custody be co-terminous with the semester, beginning with the start of classes and ending upon the close thereof, and excluding the time before or after such period, such as the period of registration, and in the case of graduating students, the period before the commencement exercises. In the view of the Court, the student is in the custody of the school authorities as long as he is under the control and influence of the school and within its premises, whether the semester has not yet begun or has already ended. It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither should such discipline be deemed ended upon the last day of classes notwithstanding that there may still be certain requisites to be satisfied for completion of the course, such as submission of reports, term papers, clearances and the like. During such periods, the student is still subject to the disciplinary authority of the school and cannot consider himself released altogether from observance of its rules. As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and subject to the discipline of the school authorities under the provisions of Article 2180. During all these occasions, it is obviously the teacher-in-charge who must answer for his students' torts, in practically the same way that the parents are responsible for the child when he is in their custody. The teacher-in-charge is the one designated by the dean, principal, or other administrative superior to exercise supervision over the pupils in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher be physically present and in a position to prevent it. Custody does not connote immediate and actual physical control but refers more to the influence exerted on

the child and the discipline instilled in him as a result of such influence. Thus, for the injuries caused by the student, the teacher and not the parent shag be held responsible if the tort was committed within the premises of the school at any time when its authority could be validly exercised over him. In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the teacher or the head of the school of arts and trades and not on the school itself. If at all, the school, whatever its nature, may be held to answer for the acts of its teachers or even of the head thereof under the general principle ofrespondeat superior, but then it may exculpate itself from liability by proof that it had exercised the diligence of a bonus paterfamilias. Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held to answer for the tort committed by the student. As long as the defendant can show that he had taken the necessary precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Article 2180, which also states that: The responsibility treated of in this article shall cease when the Persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damages. In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco parentis for the law does not require that the offending student be of minority age. Unlike the parent, who wig be liable only if his child is still a minor, the teacher is held answerable by the law for the act of the student under him regardless of the student's age. Thus, in the Palisoc Case, liability attached to the teacher and the head of the technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent more favorably than the teacher. The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in Palisoc that the school may be unduly exposed to liability under this article in view of the increasing activism among the students that is likely to cause violence and resulting injuries in the school premises. That is a valid fear, to be sure. Nevertheless, it should be repeated that, under the present ruling, it is not the school that will be held directly liable. Moreover, the defense of due diligence is available to it in case it is sought to be held answerable as principal for the acts or omission of its head or the teacher in its employ. The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the maintenance of discipline among them. In almost all cases now, in fact, these measures are

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effected through the assistance of an adequate security force to help the teacher physically enforce those rules upon the students. Ms should bolster the claim of the school that it has taken adequate steps to prevent any injury that may be committed by its students. A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly answerable for the damage caused by his students as long as they are in the school premises and presumably under his influence. In this respect, the Court is disposed not to expect from the teacher the same measure of responsibility imposed on the parent for their influence over the child is not equal in degree. Obviously, the parent can expect more obedience from the child because the latter's dependence on him is greater than on the teacher. It need not be stressed that such dependence includes the child's support and sustenance whereas submission to the teacher's influence, besides being coterminous with the period of custody is usually enforced only because of the students' desire to pass the course. The parent can instill more las discipline on the child than the teacher and so should be held to a greater accountability than the teacher for the tort committed by the child. And if it is also considered that under the article in question, the teacher or the head of the school of arts and trades is responsible for the damage caused by the student or apprentice even if he is already of age and therefore less tractable than the minor then there should all the more be justification to require from the school authorities less accountability as long as they can prove reasonable diligence in preventing the injury. After all, if the parent himself is no longer liable for the student's acts because he has reached majority age and so is no longer under the former's control, there is then all the more reason for leniency in assessing the teacher's responsibility for the acts of the student. Applying the foregoing considerations, the Court has arrived at the following conclusions: 1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school auditorium to finish his physics experiment or merely to submit his physics report for what is important is that he was there for a legitimate purpose. As previously observed, even the mere savoring of the company of his friends in the premises of the school is a legitimate purpose that would have also brought him in the custody of the school authorities. 2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the teacher-in-charge as previously defined. Each of them was exercising only a general authority over the student body and not the direct control and influence exerted by the teacher placed in charge of

particular classes or sections and thus immediately involved in its discipline. The evidence of the parties does not disclose who the teacher-in-charge of the offending student was. The mere fact that Alfredo Amadora had gone to school that day in connection with his physics report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of Alfredo's killer. 3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent in enforcing discipline upon Daffon or that he had waived observance of the rules and regulations of the school or condoned their non-observance. His absence when the tragedy happened cannot be considered against him because he was not supposed or required to report to school on that day. And while it is true that the offending student was still in the custody of the teacher-in-charge even if the latter was physically absent when the tort was committed, it has not been established that it was caused by his laxness in enforcing discipline upon the student. On the contrary, the private respondents have proved that they had exercised due diligence, through the enforcement of the school regulations, in maintaining that discipline. 4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable especially in view of the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and returned the same later to him without taking disciplinary action or reporting the matter to higher authorities. While this was clearly negligence on his part, for which he deserves sanctions from the school, it does not necessarily link him to the shooting of Amador as it has not been shown that he confiscated and returned pistol was the gun that killed the petitioners' son. 5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under the article because only the teacher or the head of the school of arts and trades is made responsible for the damage caused by the student or apprentice. Neither can it be held to answer for the tort committed by any of the other private respondents for none of them has been found to have been charged with the custody of the offending student or has been remiss in the discharge of his duties in connection with such custody. In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced that none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo Amadora that resulted in the latter's death at the auditorium of the Colegio de San Jose-Recoletos on April 13, 1972. While we deeply sympathize with the petitioners over the loss of their son under the tragic circumstances here related, we nevertheless are unable to extend them the material relief they seek, as a balm to their grief, under the law they have invoked.

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WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered. Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and GrioAquino, JJ., concur. Fernan, Padilla and Teehankee, C.J., JJ, took no part.

xxx xxx xxx 4) Directors of trade establishments, with regard to apprentices;' Article 352 of the Civil Code further provides: Art. 362. The relations between teacher and pupil, professor and student, are fixed by government regulations and those of each school or institution.... But even such rules and regulations as may be fixed can not contravene the concept of substitute parental authority.

Separate Opinions

The rationale of liability of school heads and teachers for the tortious acts of their pupils was explained in Palisoc vs. Brillantes (41 SCRA 548), thus: The protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it becomes their obligation as well as that of the school itself to provide proper supervision of the students' activities during the whole time that they are at attendance in the school,including recess time, as well as to take the necessary precautions to protect the students in their custody from dangers and hazards that would reasonably be anticipated, including injuries that some students themselves may inflict wilfully or through negligence on their fellow students. (Emphasis supplied) Of course, as provided for in the same Article 2180, the responsibility treated of shall cease when the persons mentioned prove that they observed all the diligence of a good father of a family to prevent damage. And while a school is, admittedly, not directly liable since Article 2180 speaks only of teachers and schools heads, yet, by virtue of the same provision, the school, as their employer, may be held liable for the failure of its teachers or school heads to perform their mandatory legal duties as substitute parents (Sangco, Philippine Law on Torts & Damages, 1978 ed., p. 201). Again, the school may exculpate itself from liability by proving that it had exercised the diligence of a good father of the family. Art. 2180. x x x

MELENCIO-HERRERA, J., concurring and dissenting: I concur, except with respect to the restricted meaning given the term "teacher" in Article 2180 of the Civil Code as "teacher-in-charge." This would limit liability to occasions where there are classes under the immediate charge of a teacher, which does not seem to be the intendment of the law. As I understand it, the philosophy of the law is that whoever stands in loco parentis will have the same duties and obligations as parents whenever in such a standing. Those persons are mandatorily held liable for the tortious acts of pupils and students so long as the latter remain in their custody, meaning their protective and supervisory custody. Thus Article 349 of the Civil Code enumerates the persons who stand in loco parentis and thereby exercise substitute parental authority: Art. 349 The following persons shall exercise substitute parental authority: xxx xxx xxx 2) Teachers and professors

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Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx Parenthetically, from the enumeration in Article 349 of the Civil Code, supra, it is apparent that the Code Commission had already segregated the classification of "teachers and professors" vis-a-vis their pupils, from "directors of trade establishments, with regard to their apprentices." GUTIERREZ, JR., J., concurring: I concur in the Court's opinion so carefully analyzed and crafted by Justice Isagani A. Cruz. However, I would like to stress the need for a major amendment to, if not a complete scrapping of, Article 2180 of the Civil Code insofar as it refers to teachers or heads of establishments of arts and trades in relation to pupils and students or apprentices. The seventh paragraph of Art. 2180 is a relic of the past and contemplates a situation long gone and out of date. In a Palisoc v. Brillantes (41 SCRA 548) situation, it is bound to result in mischief and injustice. First, we no longer have masters and apprentices toiling in schools of arts and trades. Students in "technological" colleges and universities are no different from students in liberal arts or professional schools. Apprentices now work in regular shops and factories and their relationship to the employer is covered by laws governing the employment relationship and not by laws governing the teacher student relationship. Second, except for kindergarten, elementary, and perhaps early high school students, teachers are often no longer objects of veneration who are given the respect due to substitute parents. Many students in their late teens or early adult years view some teachers as part of a bourgeois or reactionary group whose advice on behaviour, deportment, and other non-academic matters is not only resented but actively rejected. It ,seems most unfair to hold teachers liable on a presumption juris tantum of negligence for acts of students even under circumstances where strictly speaking there could be no in loco parentis relationship. Why do teachers have to prove the contrary of negligence to be freed from solidary liability for the acts f bomb-throwing or pistol packing students who would just as soon hurt them as they would other members of the so-called-establishment.

The ordinary rules on quasi-delicta should apply to teachers and schools of whatever nature insofar as grown up students are concerned. The provision of Art. 2180 of the Civil Code involved in this case has outlived its purpose. The Court cannot make law. It can only apply the law with its imperfections. However, the Court can suggest that such a law should be amended or repealed.

Separate Opinions MELENCIO-HERRERA, J., concurring and dissenting: I concur, except with respect to the restricted meaning given the term "teacher" in Article 2180 of the Civil Code as "teacher-in-charge." This would limit liability to occasions where there are classes under the immediate charge of a teacher, which does not seem to be the intendment of the law. As I understand it, the philosophy of the law is that whoever stands in loco parentis will have the same duties and obligations as parents whenever in such a standing. Those persons are mandatorily held liable for the tortious acts of pupils and students so long as the latter remain in their custody, meaning their protective and supervisory custody. Thus Article 349 of the Civil Code enumerates the persons who stand in loco parentis and thereby exercise substitute parental authority: Art. 349 The following persons shall exercise substitute parental authority: xxx xxx xxx 2) Teachers and professors xxx xxx xxx 4) Directors of trade establishments, with regard to apprentices;' Article 352 of the Civil Code further provides:

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Art. 362. The relations between teacher and pupil, professor and student, are fixed by government regulations and those of each school or institution.... But even such rules and regulations as may be fixed can not contravene the concept of substitute parental authority. The rationale of liability of school heads and teachers for the tortious acts of their pupils was explained in Palisoc vs. Brillantes (41 SCRA 548), thus: The protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it becomes their obligation as well as that of the school itself to provide proper supervision of the students' activities during the whole time that they are at attendance in the school,including recess time, as well as to take the necessary precautions to protect the students in their custody from dangers and hazards that would reasonably be anticipated, including injuries that some students themselves may inflict wilfully or through negligence on their fellow students. (Emphasis supplied) Of course, as provided for in the same Article 2180, the responsibility treated of shall cease when the persons mentioned prove that they observed all the diligence of a good father of a family to prevent damage. And while a school is, admittedly, not directly liable since Article 2180 speaks only of teachers and schools heads, yet, by virtue of the same provision, the school, as their employer, may be held liable for the failure of its teachers or school heads to perform their mandatory legal duties as substitute parents (Sangco, Philippine Law on Torts & Damages, 1978 ed., p. 201). Again, the school may exculpate itself from liability by proving that it had exercised the diligence of a good father of the family. Art. 2180. x x x Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx

Parenthetically, from the enumeration in Article 349 of the Civil Code, supra, it is apparent that the Code Commission had already segregated the classification of "teachers and professors" vis-a-vis their pupils, from "directors of trade establishments, with regard to their apprentices." GUTIERREZ, JR., J., concurring: I concur in the Court's opinion so carefully analyzed and crafted by Justice Isagani A. Cruz. However, I would like to stress the need for a major amendment to, if not a complete scrapping of, Article 2180 of the Civil Code insofar as it refers to teachers or heads of establishments of arts and trades in relation to pupils and students or apprentices. The seventh paragraph of Art. 2180 is a relic of the past and contemplates a situation long gone and out of date. In a Palisoc v. Brillantes (41 SCRA 548) situation, it is bound to result in mischief and injustice. First, we no longer have masters and apprentices toiling in schools of arts and trades. Students in "technological" colleges and universities are no different from students in liberal arts or professional schools. Apprentices now work in regular shops and factories and their relationship to the employer is covered by laws governing the employment relationship and not by laws governing the teacher student relationship. Second, except for kindergarten, elementary, and perhaps early high school students, teachers are often no longer objects of veneration who are given the respect due to substitute parents. Many students in their late teens or early adult years view some teachers as part of a bourgeois or reactionary group whose advice on behaviour, deportment, and other non-academic matters is not only resented but actively rejected. It ,seems most unfair to hold teachers liable on a presumption juris tantum of negligence for acts of students even under circumstances where strictly speaking there could be no in loco parentis relationship. Why do teachers have to prove the contrary of negligence to be freed from solidary liability for the acts f bomb-throwing or pistol packing students who would just as soon hurt them as they would other members of the so-called-establishment. The ordinary rules on quasi-delicta should apply to teachers and schools of whatever nature insofar as grown up students are concerned. The provision of Art. 2180 of the Civil Code involved in this case has outlived its purpose. The Court cannot make law. It can only apply the law with its imperfections. However, the Court can suggest that such a law should be amended or repealed.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-33722 July 29, 1988 FEDERICO YLARDE and ADELAIDA DORONIO petitioners, vs. EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents. Buenaventura C. Evangelista for petitioners. Modesto V. Cabanela for respondent Edgardo Aquino. Manuel P. Pastor for respondent Mauro Soriano.

respondent Aquino called four of the original eighteen pupils to continue the digging. These four pupils Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito Ylarde, dug until the excavation was one meter and forty centimeters deep. At this point, private respondent Aquino alone continued digging while the pupils remained inside the pit throwing out the loose soil that was brought about by the digging. When the depth was right enough to accommodate the concrete block, private respondent Aquino and his four pupils got out of the hole. Then, said private respondent left the children to level the loose soil around the open hole while he went to see Banez who was about thirty meters away. Private respondent wanted to borrow from Banez the key to the school workroom where he could get some rope. Before leaving. , private respondent Aquino allegedly told the children "not to touch the stone." A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara and Ylarde, playfully jumped into the pit. Then, without any warning at all, the remaining Abaga jumped on top of the concrete block causing it to slide down towards the opening. Alonso and Alcantara were able to scramble out of the excavation on time but unfortunately fo Ylarde, the concrete block caught him before he could get out, pinning him to the wall in a standing position. As a result thereof, Ylarde sustained the following injuries: 1. Contusion with hematoma, left inguinal region and suprapubic region. 2. Contusion with ecchymosis entire scrotal region. 3. Lacerated wound, left lateral aspect of penile skin with phimosis 4. Abrasion, gluteal region, bilateral. 5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about 2 liters. 6. Fracture, simple, symphesis pubis 7. Ruptured (macerated) urinary bladder with body of bladder almost entirely separated from its neck. REMARKS:

GANCAYCO, J.: In this petition for review on certiorari seeking the reversal of the decision of the Court of Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which originated from the Court of First Instance of Pangasinan, We are again caned upon determine the responsibility of the principals and teachers towards their students or pupils. In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary School, a public educational institution located in Tayug, PangasinanPrivate respondent Edgardo Aquino was a teacher therein. At that time, the school was fittered with several concrete blocks which were remnants of the old school shop that was destroyed in World War II. Realizing that the huge stones were serious hazards to the schoolchildren, another teacher by the name of Sergio Banez started burying them one by one as early as 1962. In fact, he was able to bury ten of these blocks all by himself. Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his male pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being their teacher-in-charge, he ordered them to dig beside a one-ton concrete block in order to make a hole wherein the stone can be buried. The work was left unfinished. The following day, also after classes, private

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1. Above were incurred by crushing injury. 2. Prognosis very poor. ( S Three g days later, Novelito Ylarde died. d Ylarde's . parents, petitioners in this case, filed a suit for damages against both private ) respondents Aquino and Soriano. The lower court dismissed the complaint on the following grounds: (1) that the digging done by the pupils is in line with M their course called Work Education; (2) that Aquino exercised the utmost diligence E of a very cautious person; and (3) that the demise of Ylarde was due to his own L reckless imprudence. 2 Q U On appeal, the Court of Appeals affirmed the Decision of the lower court. I A Petitioners base their action against private respondent Aquino on Article 2176 of D the Civil E Code for his alleged negligence that caused their son's death while the complaint against respondent Soriano as the head of school is founded on Article S 2180 of the same Code. A . 2176 of the Civil Code provides: Article B R A V O Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

P On the other hand, the applicable provision of Article 2180 states: h y s Art. 2180. xxx i c xxx xxx i xxx a n teachers or heads of establishments of arts and trades Lastly, shall be liable for damages caused by their pupils and o or apprentices, so long as they remain in their students n 3 custody. D The issue to be resolved is whether or not under the cited provisions, both u private respondents can be held liable for damages.

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As regards the principal, We hold that he cannot be made responsible for the death of the child Ylarde, he being the head of an academic school and not a school of arts and trades. This is in line with Our ruling in Amadora vs. Court of Appeals, 4 wherein this Court thoroughly discussed the doctrine that under Article 2180 of the Civil Code, it is only the teacher and not the head of an academic school who should be answerable for torts committed by their students. This Court went on to say that in a school of arts and trades, it is only the head of the school who can be held liable. In the same case, We explained: After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Following the canon of reddendo singula sinquilis 'teachers' should apply to the words "pupils and students' and 'heads of establishments of arts and trades to the word "apprentices." Hence, applying the said doctrine to this case, We rule that private respondent Soriano, as principal, cannot be held liable for the reason that the school he heads is an academic school and not a school of arts and trades. Besides, as clearly admitted by private respondent Aquino, private respondent Soriano did not give any instruction regarding the digging. From the foregoing, it can be easily seen that private respondent Aquino can be held liable under Article 2180 of the Civil Code as the teacher-in-charge of the children for being negligent in his supervision over them and his failure to take the necessary precautions to prevent any injury on their persons. However, as earlier pointed out, petitioners base the alleged liability of private respondent Aquino on Article 2176 which is separate and distinct from that provided for in Article 2180. With this in mind, the question We need to answer is this: Were there acts and omissions on the part of private respondent Aquino amounting to fault or negligence which have direct causal relation to the death of his pupil Ylarde? Our answer is in the affirmative. He is liable for damages.

From a review of the record of this case, it is very clear that private respondent Aquino acted with fault and gross negligence when he: (1) failed to avail himself of services of adult manual laborers and instead utilized his pupils aged ten to eleven to make an excavation near the one-ton concrete stone which he knew to be a very hazardous task; (2) required the children to remain inside the pit even after they had finished digging, knowing that the huge block was lying nearby and could be easily pushed or kicked aside by any pupil who by chance may go to the perilous area; (3) ordered them to level the soil around the excavation when it was so apparent that the huge stone was at the brink of falling; (4) went to a place where he would not be able to check on the children's safety; and (5) left the children close to the excavation, an obviously attractive nuisance. The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has a direct causal connection to the death of the child Ylarde. Left by themselves, it was but natural for the children to play around. Tired from the strenuous digging, they just had to amuse themselves with whatever they found. Driven by their playful and adventurous instincts and not knowing the risk they were facing three of them jumped into the hole while the other one jumped on the stone. Since the stone was so heavy and the soil was loose from the digging, it was also a natural consequence that the stone would fall into the hole beside it, causing injury on the unfortunate child caught by its heavy weight. Everything that occurred was the natural and probable effect of the negligent acts of private respondent Aquino. Needless to say, the child Ylarde would not have died were it not for the unsafe situation created by private respondent Aquino which exposed the lives of all the pupils concerned to real danger. We cannot agree with the finding of the lower court that the injuries which resulted in the death of the child Ylarde were caused by his own reckless imprudence, It should be remembered that he was only ten years old at the time of the incident, As such, he is expected to be playful and daring. His actuations were natural to a boy his age. Going back to the facts, it was not only him but the three of them who jumped into the hole while the remaining boy jumped on the block. From this, it is clear that he only did what any other ten-year old child would do in the same situation. In ruling that the child Ylarde was imprudent, it is evident that the lower court did not consider his age and maturity. This should not be the case. The degree of care required to be exercised must vary with the capacity of the person endangered to care for himself. A minor should not be held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of his age and experience. 5 The standard of conduct to which a child must conform for his own protection is that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar circumstances. 6 Bearing this in mind, We cannot charge the child Ylarde with reckless imprudence.

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The court is not persuaded that the digging done by the pupils can pass as part of their Work Education. A single glance at the picture showing the excavation and the huge concrete block 7 would reveal a dangerous site requiring the attendance of strong, mature laborers and not ten-year old grade-four pupils. We cannot comprehend why the lower court saw it otherwise when private respondent Aquino himself admitted that there were no instructions from the principal requiring what the pupils were told to do. Nor was there any showing that it was included in the lesson plan for their Work Education. Even the Court of Appeals made mention of the fact that respondent Aquino decided all by himself to help his co-teacher Banez bury the concrete remnants of the old school shop. 8 Furthermore, the excavation should not be placed in the category of school gardening, planting trees, and the like as these undertakings do not expose the children to any risk that could result in death or physical injuries. The contention that private respondent Aquino exercised the utmost diligence of a very cautious person is certainly without cogent basis. A reasonably prudent person would have foreseen that bringing children to an excavation site, and more so, leaving them there all by themselves, may result in an accident. An ordinarily careful human being would not assume that a simple warning "not to touch the stone" is sufficient to cast away all the serious danger that a huge concrete block adjacent to an excavation would present to the children. Moreover, a teacher who stands in loco parentis to his pupils would have made sure that the children are protected from all harm in his company. We close by categorically stating that a truly careful and cautious person would have acted in all contrast to the way private respondent Aquino did. Were it not for his gross negligence, the unfortunate incident would not have occurred and the child Ylarde would probably be alive today, a grown- man of thirty-five. Due to his failure to take the necessary precautions to avoid the hazard, Ylarde's parents suffered great anguish all these years. WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the questioned judgment of the respondent court is REVERSED and SET ASIDE and another judgment is hereby rendered ordering private respondent Edagardo Aquino to pay petitioners the following: (1) Indemnity for the death of Child Ylarde P30,000.00 (2) Exemplary damages 10,000.00 (3) Moral damages 20,000.00 SO ORDERED.

Narvasa Cruz, Grio-Aquino and Medialdea, JJ., concur.

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FIRST DIVISION

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

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

d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral damages; and to pay costs. 2. Their liability being only subsidiary, defendants James Daniel, Sr. and Guada Daniel are hereby ordered to pay herein plaintiffs the amount of damages above-stated in the event of insolvency of principal obligor St. Marys Academy of Dipolog City; 3. Defendant James Daniel II, being a minor at the time of the commission of the tort and who was under special parental authority of defendant St. Marys Acade my, is ABSOLVED from paying the above-stated damages, same being adjudged against defendants St. Marys Academy, and subsidiarily, against his parents; 4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His counterclaim not being in order as earlier discussed in this decision, is hereby DISMISSED. IT IS SO ORDERED. (Decision, pp. 32-33; Records, pp. 205-206). From the records it appears that from 13 to 20 February 1995, defendant-appellant St. Marys Academy of Dipolog City conducted an enrollment drive for the school year 19951996. A facet of the enrollment campaign was the visitation of schools from where prospective enrollees were studying. As a student of St. Marys Academy, Sherwin Carpitanos was part of the campaigning group. Accordingly, on the fateful day, Sherwin, along with other high school students were riding in a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan Elementary School, Larayan, Dapitan City. The jeep was driven by James Daniel II then 15 years old and a student of the same school. Allegedly, the latter drove the jeep in a reckless manner and as a result the jeep turned turtle. Sherwin Carpitanos died as a result of the injuries he sustained from the accident. [2] In due time, petitioner St. Marys academy appealed the decision to the Court of Appeals.[3] On February 29, 2000, the Court of Appeals promulgated a decision reducing the actual damages to P25,000.00 but otherwise affirming the decision a quo, in toto.[4] On February 29, 2000, petitioner St. Marys Academy filed a motion for reconsideration of the decision. However, on May 22, 2000, the Court of Appeals denied the motion.[5] Hence, this appeal.[6]

ST. MARYS ACADEMY, petitioner, vs. WILLIAM CARPITANOS and LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL II, JAMES DANIEL, SR., and VIVENCIO VILLANUEVA, respondents. DECISION PARDO, J.:

The Case

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

The Facts

The facts, as found by the Court of Appeals, are as follows: Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William Carpitanos and Lucia Carpitanos filed on June 9, 1995 a case against James Daniel II and his parents, James Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio Villanueva and St. Marys Academy before the Regional Trial Court of Dipolog City. On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its decision the dispositive portion of which reads as follows: WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the follow ing manner: 1. Defendant St. Marys Academy of Dipolog City, is hereby ordered to pay plaintiffs William Carpitanos and Luisa Carpitanos, the following sums of money: a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of life of Sherwin S. Carpitanos;

The Issues

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1) Whether the Court of Appeals erred in holding the petitioner liable for damages for the death of Sherwin Carpitanos. 2) Whether the Court of Appeals erred in affirming the award of moral damages against the petitioner.

not the recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio Villanueva. Respondents, including the spouses Carpitanos, parents of the deceased Sherwin Carpitanos, did not dispute the report and testimony of the traffic investigator who stated that the cause of the accident was the detachment of the steering wheel guide that caused the jeep to turn turtle. Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the negligence of the school authorities, or the reckless driving of James Daniel II. Hence, the respondents reliance on Article 21 9 of the Family Code that those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by acts or omissions of the unemancipated minor was unfounded. Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the jeep at the time of the accident. Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of the steering wheel guide of the jeep, must be pinned on the minors parents primarily. The negligence of petitioner St. Marys Academy was only a remote cause of the accident. Between the remote cause and the injury, there intervened the negligence of the minors parents or the detachment of the steering whee l guide of the jeep. The proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. [13] Considering that the negligence of the minor driver or the detachment of the steering wheel guide of the jeep owned by respondent Villanueva was an event over which petitioner St. Marys Academy had no control, and which was the proximate cause of the accident, petitioner may not be held liable for the death resulting from such accident. Consequently, we find that petitioner likewise cannot be held liable for moral damages in the amount of P500,000.00 awarded by the trial court and affirmed by the Court of Appeals. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. [14] In this case, the proximate cause of the accident was not attributable to petitioner. For the reason that petitioner was not directly liable for the accident, the decision of the Court of Appeals ordering petitioner to pay death indemnity to respondent Carpitanos must be deleted. Moreover, the grant of attorneys fees as part of damages is the exception rather than the rule.[15] The power of the court to award attorneys fees under Article 2208 of the Civil Code demands factual, legal and equitable justification. [16] Thus, the grant of attorneys fees against the petitioner is likewise deleted. Incidentally, there was no question that the registered owner of the vehicle was respondent Villanueva. He never denied and in fact admitted this fact. We have held that the registered owner of any vehicle, even if not used for public service, would primarily be responsible to the public or to third persons for injuries caused the latter while the vehicle was being driven on the highw ays or streets.[17] Hence, with the overwhelming evidence presented by petitioner and the respondent Daniel spouses that the accident occurred

The Courts Ruling

We reverse the decision of the Court of Appeals. The Court of Appeals held petitioner St. Marys Academy liable for the death of Sherwin Carpitanos under Articles 218[7] and 219[8] of the Family Code, pointing out that petitioner was negligent in allowing a minor to drive and in not having a teacher accompany the minor students in the jeep. Under Article 218 of the Family Code, the following shall have special parental authority over a minor child while under their supervision, instruction or custody: (1) the school, its administrators and teachers; or (2) the individual, entity or institution engaged in child care. This special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution. Thus, such authority and responsibility applies to field trips, excursions and other affairs of the pupils and students outside the school premises whenever authorized by the school or its teachers.[9] Under Article 219 of the Family Code, if the person under custody is a minor, those exercising special parental authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor while under their supervision, instruction, or custody.[10] However, for petitioner to be liable, there must be a finding that the act or omission considered as negligent was the proximate cause of the injury caused because the negligence must have a causal connection to the accident. [11] In order that there may be a recovery for an injury, however, it must be shown that the injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient cau ses. In other words, the negligence must be the proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. And the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. [12] In this case, the respondents failed to show that the negligence of petitioner was the proximate cause of the death of the victim. Respondents Daniel spouses and Villanueva admitted that the immediate cause of the accident was not the negligence of petitioner or the reckless driving of James Daniel II, but the detachment of the steering wheel guide of the jeep. In their comment to the petition, respondents Daniel spouses and Villanueva admitted the documentary exhibits establishing that the cause of the accident was the detachment of the steering wheel guide of the jeep. Hence, the cause of the accident was

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because of the detachment of the steering wheel guide of the jeep, it is not the school, but the registered owner of the vehicle who shall be held responsible for damages for the death of Sherwin Carpitanos.

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals[18] and that of the trial court.[19] The Court remands the case to the trial court for determination of the liability of defendants, excluding petitioner St. Marys Academy, Dipolog City. No costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur. Puno, J., in the result.

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Friday, September 21, 2012 Libi vs. IAC Case Digest Libi vs. IAC 214 SCRA 16 Facts: Deceased Julie Ann Gotiong, 18 years old, and deceased Wendell Libi, between 18 to 19 years old, were sweethearts for two years prior to the incident. After the girl decided to end the relationship finding the guy sadistic and irresponsible, the boy incessantly pursued her and prayed that they be together again this made the guy resort to threats. But, the girl hold steadfast to her decision. In order to avoid the guy, the girl lived with her best friend. On the day of the incident, the two were found shot dead with a Smith and Wesson revolver. The parents of the girl instituted this case against the parents of the guy for damages. Issue: Whether or not the parents of the Wendell Libi is still liable for the death of Julie Ann Gotiong. Ruling: DENIED. The parents of the guy are held liable for not exercising due diligence, diligentissimi patris familias, (Art. 2180). The father of the guy owns a gun which he kept in a safety deposit box. The father and the mother each had a key. The guy knew of it. The key must have been negligently left lying around or he had free access to it, such as the bag of his mother. The said gun was missing. The parents were also unable to explain the photograph of their son holding a gun. The said photograph was dedicated to the girl. Moreover, they were remiss in their duties as parents as not being able to know that their son was a Constabulary Anti-Narcotics Unite (CANU) agent involved in a dangerous work of as either a drug informer or drug user. The damages is based on Art. 2180 of the Civil Code. Art. 101 of RPC doesnt apply since the guy is or above 18 years old already.

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