Proximate damages are the immediate and direct damages and natural results of the act complained of,

and such as are usual and might have been expected. Remote damages are those attributable immediately to an intervening cause, though it forms a link in an unbroken chain of causation, so that the remote damage would not have occurred if its elements had not been set in motion by the original act or event. Henry v. Railroad Co., 50 Cal. 183; Kuhn v. Jewett, 32 N. J. Eq. 649; Pielke v. Railroad Co.. 5 Dak. 444, 41 N. W. 669. The terms remote damages and consequential damages are not synonymous nor to be usedinterchangeably; all remote damage is consequential, but it is by no means true that all consequential damage is remote. Eaton v. Railroad Co., 51 N. II. 511, 12 Am. Rep. 147.

rdinary damages, which are reasonably foreseeable consequences of breach, are estimated on the basis of circumstances prevailing at the date of breach. In the case of the sale of goods, the ordinary damages are the difference between the contracted price and the market price prevailing at the time of sale when the time is fixed. Special damages are the damages resulting from a breach of contractunder special circumstances known to both the parties. These damages are not recoverable unless the possibility of special loss is contemplated by both parties at the time of the formation of the contract.

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS, and RON RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DR. PERFECTA GUTIERREZ, respondents. RESOLUTION
KAPUNAN, J.:

Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta Gutierrez move for a reconsideration of the Decision, dated December 29, 1999, of this Court holding them civilly liable for petitioner Erlinda Ramos comatose condition after she delivered herself to them for their professional care and management. For better understanding of the issues raised in private respondents respective motions, we will briefly restate the facts of the case as follows: Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help, was advised to undergo an operation for the removal of a stone in her gall

bladder (cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed to perform the operation on her. The operation was scheduled for June 17, 1985 at 9:00 in the morning at private respondent De Los Santos Medical Center (DLSMC). Since neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez. Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation. By 7:30 in the morning of the following day, petitioner Erlinda was already being prepared for operation. Upon the request of petitioner Erlinda, her sister-in-law, Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical Center, was allowed to accompany her inside the operating room. At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to get in touch with him by phone. Thereafter, Dr. Gutierrez informed Cruz that the operation might be delayed due to the late arrival of Dr. Hosaka. In the meantime, the patient, petitioner Erlinda said to Cruz, Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor. By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already wanted to pull out his wife from the operating room. He met Dr. Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or more than three (3) hours after the scheduled operation. Cruz, who was then still inside the operating room, heard about Dr. Hosakas arrival. While she held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate the patient. Cruz heard Dr. Gutierrez utter: ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. Cruz noticed a bluish discoloration of Erlindas nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr. Calderon attempted to intubate the patient. The nailbeds of the patient remained bluish, thus, she was placed in a trendelenburg position a position where the head of the patient is placed in a position lower than her feet. At this point, Cruz went out of the operating room to express her concern to petitioner Rogelio that Erlindas operation was not going well. Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was released from the hospital only four months later or on November 15, 1985. Since the ill-fated operation, Erlinda remained in comatose condition until she died on August 3, 1999.[1]

Petitioners filed with the Regional Trial Court of Quezon City a civil case for damages against private respondents. After due trial, the court a quo rendered judgment in favor of petitioners. Essentially, the trial court found that private respondents were negligent in the performance of their duties to Erlinda. On appeal by private respondents, the Court of Appeals reversed the trial courts decision and directed petitioners to pay their unpaid medical bills to private respondents. Petitioners filed with this Court a petition for review on certiorari. The private respondents were then required to submit their respective comments thereon. On December 29, 1999, this Court promulgated the decision which private respondents now seek to be reconsidered. The dispositive portion of said Decision states: WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each exemplary damages and attorneys fees; and 5) the costs of the suit.[2] In his Motion for Reconsideration, private respondent Dr. Hosaka submits the following as grounds therefor:
I

THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON THE BASIS OF THE CAPTAIN-OF-THE-SHIP DOCTRINE.
II

THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.
III

ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA IS LIABLE, THE HONORABLE SUPREME COURT ERRED IN AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND WITHOUT LEGAL BASIS.[3] Private respondent Dr. Gutierrez, for her part, avers that:

A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED THE FACT THAT THE COURT OF APPEALS DECISION DATED 29 MAY 1995 HAD ALREADY BECOME FINAL AND EXECUTORY AS OF 25 JUNE 1995, THEREBY DEPRIVING THIS HONORABLE COURT OF JURISDICTION OVER THE INSTANT PETITION; B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED SEVERAL MATERIAL FACTUAL CIRCUMSTANCES WHICH, IF PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS WERE NOT GUILTY OF ANY NEGLIGENCE IN RESPECT OF THE INSTANT CASE;
B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER COMPLIANCE WITH THE STANDARDS OF DUE CARE EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL SPECIALIZATION. B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER HAVING SUCCESSFULLY INTUBATED PATIENT ERLINDA RAMOS

C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO MUCH RELIANCE ON THE TESTIMONY OF PETITIONERS WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED THE EXPERT TESTIMONY OF DR. JAMORA AND DRA. CALDERON E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY AWARDED DAMAGES TO PETITIONERS DESPITE THE FACT THAT THERE WAS NO NEGLIGENCE ON THE PART OF RESPONDENT DOCTOR.[4] Private respondent De Los Santos Medical Center likewise moves for reconsideration on the following grounds:
I

THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE INSTANT PETITION AS THE DECISION OF THE HONORABLE COURT OF APPEALS HAD ALREADY BECOME FINAL AND EXECUTORY
II

THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS. ORLINO HOSAKA AND PERFECTA GUTIERREZ
III

THE HONORABLE SUPREME COURT ERRED IN FINDING THAT RESPONDENT DE LOS SANTOS MEDICAL CENTER IS SOLIDARILY LIABLE WITH RESPONDENT DOCTORS
IV

THE HONORABLE SUPREME COURT ERRED IN INCREASING THE AWARD OF DAMAGES IN FAVOR OF PETITIONERS.[5] In the Resolution of February 21, 2000, this Court denied the motions for reconsideration of private respondents Drs. Hosaka and Gutierrez. They then filed their respective second motions for reconsideration. The Philippine College of Surgeons filed its Petition-in-Intervention contending in the main that this Court erred in holding private respondent Dr. Hosaka liable under the captain of the ship doctrine. According to the intervenor, said doctrine had long been abandoned in the United States in recognition of the developments in modern medical and hospital practice.[6] The Court noted these pleadings in the Resolution of July 17, 2000. [7] On March 19, 2001, the Court heard the oral arguments of the parties, including the intervenor. Also present during the hearing were the amicii curiae: Dr. Felipe A. Estrella, Jr., Consultant of the Philippine Charity Sweepstakes, former Director of the Philippine General Hospital and former Secretary of Health; Dr. Iluminada T. Camagay, President of the Philippine Society of Anesthesiologists, Inc. and Professor and Vice-Chair for Research, Department of Anesthesiology, College of MedicinePhilippine General Hospital, University of the Philippines; and Dr. Lydia M. Egay, Professor and Vice-Chair for Academics, Department of Anesthesiology, College of Medicine-Philippine General Hospital, University of the Philippines. The Court enumerated the issues to be resolved in this case as follows:

1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR NEGLIGENCE; 2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND 3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR VISITING CONSULTANT SURGEON AND ANESTHESIOLOGIST.[8]

We shall first resolve the issue pertaining to private respondent Dr. Gutierrez. She maintains that the Court erred in finding her negligent and in holding that it was the faulty intubation which was the proximate cause of Erlindas comatose condition. The following objective facts allegedly negate a finding of negligence on her part: 1) That the outcome of the procedure was a comatose patient and not a dead one; 2) That the patient had a cardiac arrest; and 3) That the patient was revived from that cardiac arrest.[9] In effect, Dr. Gutierrez insists that, contrary to the finding of this Court, the intubation she performed on Erlinda was successful. Unfortunately, Dr. Gutierrez claim of lack of negligence on her part is belied by the records of the case. It has been sufficiently established that she failed to exercise the standards of care in the administration of anesthesia on a patient. Dr. Egay enlightened the Court on what these standards are: x x x What are the standards of care that an anesthesiologist should do before we administer anesthesia? The initial step is the preparation of the patient for surgery and this is a pre-operative evaluation because the anesthesiologist is responsible for determining the medical status of the patient, developing the anesthesia plan and acquainting the patient or the responsible adult particularly if we are referring with the patient or to adult patient who may not have, who may have some mental handicaps of the proposed plans. We do pre-operative evaluation because this provides for an opportunity for us to establish identification and personal acquaintance with the patient. It also makes us have an opportunity to alleviate anxiety, explain techniques and risks to the patient, given the patient the choice and establishing consent to proceed with the plan. And lastly, once this has been agreed upon by all parties concerned the ordering of pre-operative medications. And following this line at the end of the evaluation we usually come up on writing, documentation is very important as far as when we train an anesthesiologist we always emphasize this because we need records for our protection, well, records. And it entails having brief summary of patient history and physical findings pertinent to anesthesia, plan, organize as a problem list, the plan anesthesia technique, the plan post operative, pain management if appropriate, special issues for this particular patient. There are needs for special care after surgery and if it so it must be written down there and a request must be made known to proper authorities that such and such care is necessary. And the request for medical evaluation if there is an indication. When we ask for a cardio-

pulmonary clearance it is not in fact to tell them if this patient is going to be fit for anesthesia, the decision to give anesthesia rests on the anesthesiologist. What we ask them is actually to give us the functional capacity of certain systems which maybe affected by the anesthetic agent or the technique that we are going to use. But the burden of responsibility in terms of selection of agent and how to administer it rest on the anesthesiologist.[10] The conduct of a preanesthetic/preoperative evaluation prior to an operation, whether elective or emergency, cannot be dispensed with.[11] Such evaluation is necessary for the formulation of a plan of anesthesia care suited to the needs of the patient concerned. Pre-evaluation for anesthesia involves taking the patients medical history, reviewing his current drug therapy, conducting physical examination, interpreting laboratory data, and determining the appropriate prescription of preoperative medications as necessary to the conduct of anesthesia.[12] Physical examination of the patient entails not only evaluating the patients central nervous system, cardiovascular system and lungs but also the upper airway. Examination of the upper airway would in turn include an analysis of the patients cervical spine mobility, temporomandibular mobility, prominent central incisors, deceased or artificial teeth, ability to visualize uvula and the thyromental distance.[13] Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation on Erlinda. As she herself admitted, she saw Erlinda for the first time on the day of the operation itself, one hour before the scheduled operation. She auscultated[14] the patients heart and lungs and checked the latters blood pressure to d etermine if Erlinda was indeed fit for operation.[15] However, she did not proceed to examine the patients airway. Had she been able to check petitioner Erlindas airway prior to the operation, Dr. Gutierrez would most probably not have experienced difficulty in intubating the former, and thus the resultant injury could have been avoided. As we have stated in our Decision: In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physicians centuries-old

Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.[16] Further, there is no cogent reason for the Court to reverse its finding that it was the faulty intubation on Erlinda that caused her comatose condition. There is no question that Erlinda became comatose after Dr. Gutierrez performed a medical procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during the oral arguments:
CHIEF JUSTICE: Mr. Counsel, you started your argument saying that this involves a comatose patient? ATTY. GANA: Yes, Your Honor. CHIEF JUSTICE: How do you mean by that, a comatose, a comatose after any other acts were done by Dr. Gutierrez or comatose before any act was done by her? ATTY. GANA: No, we meant comatose as a final outcome of the procedure. CHIEF JUSTICE: Meaning to say, the patient became comatose after some intervention, professional acts have been done by Dr. Gutierrez? ATTY. GANA: Yes, Your Honor. CHIEF JUSTICE: In other words, the comatose status was a consequence of some acts performed by D. Gutierrez? ATTY. GANA: It was a consequence of the well, (interrupted) CHIEF JUSTICE: An acts performed by her, is that not correct? ATTY. GANA: Yes, Your Honor. CHIEF JUSTICE: Thank you.[17]

What is left to be determined therefore is whether Erlindas hapless condition was due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was under the latters care. Dr. Gutierrez maintains that the bronchospasm and cardiac

arrest resulting in the patients comatose condition was brought about by the anaphylactic reaction of the patient to Thiopental Sodium (pentothal). [18] In the Decision, we explained why we found Dr. Gutierrez theory unacceptable. In the first place, Dr. Eduardo Jamora, the witness who was presented to support her (Dr. Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an authority on anesthesia practice and procedure and their complications.[19] Secondly, there was no evidence on record to support the theory that Erlinda developed an allergic reaction to pentothal. Dr. Camagay enlightened the Court as to the manifestations of an allergic reaction in this wise:
DR. CAMAGAY: All right, let us qualify an allergic reaction. In medical terminology an allergic reaction is something which is not usual response and it is further qualified by the release of a hormone called histamine and histamine has an effect on all the organs of the body generally release because the substance that entered the body reacts with the particular cell, the mass cell, and the mass cell secretes this histamine. In a way it is some form of response to take away that which is not mine, which is not part of the body. So, histamine has multiple effects on the body. So, one of the effects as you will see you will have redness, if you have an allergy you will have tearing of the eyes, you will have swelling, very crucial swelling sometimes of the larynges which is your voice box main airway, that swelling may be enough to obstruct the entry of air to the trachea and you could also have contraction, constriction of the smaller airways beyond the trachea, you see you have the trachea this way, we brought some visual aids but unfortunately we do not have a projector. And then you have the smaller airways, the bronchi and then eventually into the mass of the lungs you have the bronchus. The difference is that these tubes have also in their walls muscles and this particular kind of muscles is smooth muscle so, when histamine is released they close up like this and that phenomenon is known as bronco spasm. However, the effects of histamine also on blood vessels are different. They dilate blood vessel open up and the patient or whoever has this histamine release has hypertension or low blood pressure to a point that the patient may have decrease blood supply to the brain and may collapse so, you may have people who have this.[20]

These symptoms of an allergic reaction were not shown to have been extant in Erlindas case. As we held in our Decision, no evidence of stridor, skin reactions, or wheezing some of the more common accompanying signs of an allergic reaction appears on record. No laboratory data were ever presented to the court.[21] Dr. Gutierrez, however, insists that she successfully intubated Erlinda as evidenced by the fact that she was revived after suffering from cardiac arrest. Dr. Gutierrez faults the Court for giving credence to the testimony of Cruz on the matter of the administration of anesthesia when she (Cruz), being a nurse, was allegedly not qualified to testify thereon. Rather, Dr. Gutierrez invites the Courts attention to her synopsis on what transpired during Erlindas intubation:
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by slow IV. 02 was started by mask. After pentothal injection this was followed by IV injection of Norcuron 4mg. After 2 minutes 02 was given by positive pressure for about one minute. Intubation with endotracheal tube 7.5 m in diameter was done with slight

difficulty (short neck & slightly prominent upper teeth) chest was examined for breath sounds & checked if equal on both sides. The tube was then anchored to the mouth by plaster & cuff inflated. Ethrane 2% with 02 4 liters was given. Blood pressure was checked 120/80 & heart rate regular and normal 90/min. 12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02 given alone. Cyanosis disappeared. Blood pressure and heart beats stable. 12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all over the chest. D_5%_H20 & 1 ampule of aminophyline by fast drip was started. Still the cyanosis was persistent. Patient was connected to a cardiac monitor. Another ampule of of [sic] aminophyline was given and solu cortef was given. 12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac injection of adrenalin was given & heart beat reappeared in less than one minute. Sodium bicarbonate & another dose of solu cortef was given by IV. Cyanosis slowly disappeared & 02 continuously given & assisted positive pressure. Laboratory exams done (see results in chart).

Patient was transferred to ICU for further management.[22] From the foregoing, it can be allegedly seen that there was no withdrawal (extubation) of the tube. And the fact that the cyanosis allegedly disappeared after pure oxygen was supplied through the tube proved that it was properly placed. The Court has reservations on giving evidentiary weight to the entries purportedly contained in Dr. Gutierrez synopsis. It is significant to note that the said record prepared by Dr. Gutierrez was made only after Erlinda was taken out of the operating room. The standard practice in anesthesia is that every single act that the anesthesiologist performs must be recorded. In Dr. Gutierrez case, she could not account for at least ten (10) minutes of what happened during the administration of anesthesia on Erlinda. The following exchange between Dr. Estrella, one of the amicii curiae, and Dr. Gutierrez is instructive:
DR. ESTRELLA You mentioned that there were two (2) attempts in the intubation period? DR. GUTIERREZ Yes. Q A Q There were two attempts. In the first attempt was the tube inserted or was the laryngoscope only inserted, which was inserted? All the laryngoscope. All the laryngoscope. But if I remember right somewhere in the re-direct, a certain lawyer, you were asked that you did a first attempt and the question was did you withdraw the tube? And you said you never withdrew the tube, is that right? Yes.

Yes. And so if you never withdrew the tube then there was no, there was no insertion of the tube during that first attempt. Now, the other thing that we have to settle here is when cyanosis occurred, is it recorded in the anesthesia record when the cyanosis, in your recording when did the cyanosis occur? (sic) Is it a standard practice of anesthesia that whatever you do during that period or from the time of induction to the time that you probably get the patient out of the operating room that every single action that you do is so recorded in your anesthesia record? I was not able to record everything I did not have time anymore because I did that after the, when the patient was about to leave the operating room. When there was second cyanosis already that was the (interrupted) When was the first cyanosis? The first cyanosis when I was (interrupted) What time, more or less? I think it was 12:15 or 12:16. Well, if the record will show you started induction at 12:15? Yes, Your Honor. And the first medication you gave was what? The first medication, no, first the patient was oxygenated for around one to two minutes. Yes, so, that is about 12:13? Yes, and then, I asked the resident physician to start giving the pentothal very slowly and that was around one minute. So, that is about 12:13 no, 12:15, 12:17? Yes, and then, after one minute another oxygenation was given and after (interrupted) 12:18? Yes, and then after giving the oxygen we start the menorcure which is a relaxant. After that relaxant (interrupted) After that relaxant, how long do you wait before you do any manipulation? Usually you wait for two minutes or three minutes. So, if our estimate of the time is accurate we are now more or less 12:19, is that right? Maybe. 12:19. And at that time, what would have been done to this patient? After that time you examine the, if there is relaxation of the jaw which you push it downwards and when I saw that the patient was relax because that monorcure is a relaxant, you cannot intubate the patient or insert the laryngoscope if it is not keeping him relax. So, my first attempt when I put the laryngoscope on I saw the trachea was deeply interiorly. So, what I did ask mahirap ata ito ah. So, I removed the laryngoscope and oxygenated again the patient.

A Q

Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A

Q A Q A Q A Q A Q A Q A Q

So, more or less you attempted to do an intubation after the first attempt as you claimed that it was only the laryngoscope that was inserted. Yes. And in the second attempt you inserted the laryngoscope and now possible intubation? Yes. And at that point, you made a remark, what remark did you make? I said mahirap ata ito when the first attempt I did not see the trachea right away. That was when I (interrupted) That was the first attempt? Yes. What about the second attempt? On the second attempt I was able to intubate right away within two to three seconds. At what point, for purposes of discussion without accepting it, at what point did you make the comment na mahirap ata to intubate, mali ata ang pinasukan I did not say mali ata ang pinasukan I never said that. Well, just for the information of the group here the remarks I am making is based on the documents that were forwarded to me by the Supreme Court. That is why for purposes of discussion I am trying to clarify this for the sake of enlightenment. So, at what point did you ever make that comment? Which one, sir? The mahirap intubate ito assuming that you (interrupted) Iyon lang, that is what I only said mahirap intubate (interrupted) At what point? When the first attempt when I inserted the laryngoscope for the first time. So, when you claim that at the first attempt you inserted the laryngoscope, right? Yes. But in one of the recordings somewhere at the, somewhere in the transcript of records that when the lawyer of the other party try to inquire from you during the first attempt that was the time when mayroon ba kayong hinugot sa tube, I do not remember the page now, but it seems to me it is there. So, that it was on the second attempt that (interrupted) I was able to intubate. And this is more or less about what time 12:21? Maybe, I cannot remember the time, Sir. Okay, assuming that this was done at 12:21 and looking at the anesthesia records from 12:20 to 12:30 there was no recording of the vital signs. And can we presume that at this stage there was already some problems in handling the patient?

A Q A Q A Q A Q

A Q A Q

A Q A Q A Q A Q

Not yet. But why are there no recordings in the anesthesia record? I did not have time. Ah, you did not have time, why did you not have time? Because it was so fast, I really (at this juncture the witness is laughing) No, I am just asking. Remember I am not here not to pin point on anybody I am here just to more or less clarify certainty more ore less on the record. Yes, Sir. And so it seems that there were no recording during that span of ten (10) minutes. From 12:20 to 12:30, and going over your narration, it seems to me that the cyanosis appeared ten (10) minutes after induction, is that right? Yes. And that is after induction 12:15 that is 12:25 that was the first cyanosis? Yes. And that the 12:25 is after the 12:20? We cannot (interrupted) Huwag ho kayong makuwan, we are just trying to enlighten, I am just going over the record ano, kung mali ito kuwan eh di ano. So, ganoon po ano, that it seems to me that there is no recording from 12:20 to 12:30, so, I am just wondering why there were no recordings during the period and then of course the second cyanosis, after the first cyanosis. I think that was the time Dr. Hosaka came in? No, the first cyanosis (interrupted).[23]

A Q A Q A Q

We cannot thus give full credence to Dr. Gutierrez synopsis in light of her admission that it does not fully reflect the events that transpired during the administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there was a ten-minute gap in Dr. Gutierrez synopsis, i.e., the vital signs of Erlinda were not recorded during that time. The absence of these data is particularly significant because, as found by the trial court, it was the absence of oxygen supply for four (4) to five (5) minutes that caused Erlindas comatose condition. On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As we stated in the Decision, she is competent to testify on matters which she is capable of observing such as, the statements and acts of the physician and surgeon, external appearances and manifest conditions which are observable by any one.[24] Cruz, Erlindas sister-in-law, was with her inside the operating room. Moreover, being a nurse and Dean of the Capitol Medical Center School of Nursing at that, she is not entirely ignorant of anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez remark, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. She observed that the nailbeds of Erlinda

became bluish and thereafter Erlinda was placed in trendelenburg position. [25] Cruz further averred that she noticed that the abdomen of Erlinda became distended. [26] The cyanosis (bluish discoloration of the skin or mucous membranes caused by lack of oxygen or abnormal hemoglobin in the blood) and enlargement of the stomach of Erlinda indicate that the endotracheal tube was improperly inserted into the esophagus instead of the trachea. Consequently, oxygen was delivered not to the lungs but to the gastrointestinal tract. This conclusion is supported by the fact that Erlinda was placed in trendelenburg position. This indicates that there was a decrease of blood supply to the patients brain. The brain was thus temporarily dep rived of oxygen supply causing Erlinda to go into coma. The injury incurred by petitioner Erlinda does not normally happen absent any negligence in the administration of anesthesia and in the use of an endotracheal tube. As was noted in our Decision, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents Dr. Gutierrez and Dr. Hosaka.[27] In Voss vs. Bridwell,[28]which involved a patient who suffered brain damage due to the wrongful administration of anesthesia, and even before the scheduled mastoid operation could be performed, the Kansas Supreme Court applied the doctrine of res ipsa loquitur, reasoning that the injury to the patient therein was one which does not ordinarily take place in the absence of negligence in the administration of an anesthetic, and in the use and employment of an endotracheal tube. The court went on to say that [o]rdinarily a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia in the absence of negligence. Upon these facts and under these circumstances, a layman would be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not as such as would ordinarily have followed if due care had been exercised.[29] Considering the application of the doctrine of res ipsa loquitur, the testimony of Cruz was properly given credence in the case at bar. For his part, Dr. Hosaka mainly contends that the Court erred in finding him negligent as a surgeon by applying the Captain-of-the-Ship doctrine.[30] Dr. Hosaka argues that the trend in United States jurisprudence has been to reject said doctrine in light of the developments in medical practice. He points out that anesthesiology and surgery are two distinct and specialized fields in medicine and as a surgeon, he is not deemed to have control over the acts of Dr. Gutierrez. As anesthesiologist, Dr. Gutierrez is a specialist in her field and has acquired skills and knowledge in the course of her training which Dr. Hosaka, as a surgeon, does not possess.[31] He states further that current American jurisprudence on the matter recognizes that the trend towards specialization in medicine has created situations where surgeons do not always have the right to control all personnel within the operating room, [32] especially a fellow specialist.[33]

Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,[34] which involved a suit filed by a patient who lost his voice due to the wrongful insertion of the endotracheal tube preparatory to the administration of anesthesia in connection with the laparotomy to be conducted on him. The patient sued both the anesthesiologist and the surgeon for the injury suffered by him. The Supreme Court of Appeals of West Virginia held that the surgeon could not be held liable for the loss of the patients voice, considering that the surgeon did not have a hand in the intubation of the patient. The court rejected the application of the Captain-of-theShip Doctrine, citing the fact that the field of medicine has become specialized such that surgeons can no longer be deemed as having control over the other personnel in the operating room. It held that [a]n assignment of liability based on actual control more realistically reflects the actual relationship which exists in a modern operating room.[35] Hence, only the anesthesiologist who inserted the endotracheal tube into the patients throat was held liable for the injury suffered by the latter. This contention fails to persuade. That there is a trend in American jurisprudence to do away with the Captain-ofthe-Ship doctrine does not mean that this Court will ipso facto follow said trend. Due regard for the peculiar factual circumstances obtaining in this case justify the application of the Captain-of-the-Ship doctrine. From the facts on record it can be logically inferred that Dr. Hosaka exercised a certain degree of, at the very least, supervision over the procedure then being performed on Erlinda. First, it was Dr. Hosaka who recommended to petitioners the services of Dr. Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed the necessary competence and skills. Drs. Hosaka and Gutierrez had worked together since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage the services of Dr. Gutierrez to administer the anesthesia on his patient.[36] Second, Dr. Hosaka himself admitted that he was the attending physician of Erlinda. Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave instructions to call for another anesthesiologist and cardiologist to help resuscitate Erlinda.[37] Third, it is conceded that in performing their responsibilities to the patient, Drs. Hosaka and Gutierrez worked as a team. Their work cannot be placed in separate watertight compartments because their duties intersect with each other.[38] While the professional services of Dr. Hosaka and Dr. Gutierrez were secured primarily for their performance of acts within their respective fields of expertise for the treatment of petitioner Erlinda, and that one does not exercise control over the other, they were certainly not completely independent of each other so as to absolve one from the negligent acts of the other physician.

That they were working as a medical team is evident from the fact that Dr. Hosaka was keeping an eye on the intubation of the patient by Dr. Gutierrez, and while doing so, he observed that the patients nails had become dusky and had to call Dr. Gutierrezs attention thereto. The Court also notes that the counsel for Dr. Hosaka admitted that in practice, the anesthesiologist would also have to observe the surgeons acts during the surgical process and calls the attention of the surgeon whenever necessary[39] in the course of the treatment. The duties of Dr. Hosaka and those of Dr. Gutierrez in the treatment of petitioner Erlinda are therefore not as clearcut as respondents claim them to be. On the contrary, it is quite apparent that they have a common responsibility to treat the patient, which responsibility necessitates that they call each others attention to the condition of the patient while the other physician is performing the necessary medical procedures. It is equally important to point out that Dr. Hosaka was remiss in his duty of attending to petitioner Erlinda promptly, for he arrived more than three (3) hours late for the scheduled operation. Thecholecystectomy was set for June 17, 1985 at 9:00 a.m., but he arrived at DLSMC only at around 12:10 p.m. In reckless disregard for his patients well being, Dr. Hosaka scheduled two procedures on the same day, just thirty minutes apart from each other, at different hospitals. Thus, when the first procedure (protoscopy) at the Sta. Teresita Hospital did not proceed on time, Erlinda was kept in a state of uncertainty at the DLSMC. The unreasonable delay in petitioner Erlindas scheduled operation subjected her to continued starvation and consequently, to the risk of acidosis,[40] or the condition of decreased alkalinity of the blood and tissues, marked by sickly sweet breath, headache, nausea and vomiting, and visual disturbances.[41] The long period that Dr. Hosaka made Erlinda wait for him certainly aggravated the anxiety that she must have been feeling at the time. It could be safely said that her anxiety adversely affected the administration of anesthesia on her. As explained by Dr. Camagay, the patients anxiety usually causes the outpouring of adrenaline which in turn results in high blood pressure or disturbances in the heart rhythm:
DR. CAMAGAY: x x x Pre-operative medication has three main functions: One is to alleviate anxiety. Second is to dry up the secretions and Third is to relieve pain. Now, it is very important to alleviate anxiety because anxiety is associated with the outpouring of certain substances formed in the body called adrenalin. When a patient is anxious there is an outpouring of adrenalin which would have adverse effect on the patient. One of it is high blood pressure, the other is that he opens himself to disturbances in the heart rhythm, which would have adverse implications. So, we would like to alleviate patients anxiety mainly because he will not be in control of his body there could be adverse results to surgery and he will be opened up; a knife is going to open up his body. x x x[42]

Dr. Hosaka cannot now claim that he was entirely blameless of what happened to Erlinda. His conduct clearly constituted a breach of his professional duties to Erlinda:

CHIEF JUSTICE: Two other points. The first, Doctor, you were talking about anxiety, would you consider a patient's stay on the operating table for three hours sufficient enough to aggravate or magnify his or her anxiety? DR. CAMAGAY: Yes. CHIEF JUSTICE: In other words, I understand that in this particular case that was the case, three hours waiting and the patient was already on the operating table (interrupted) DR. CAMAGAY: Yes. CHIEF JUSTICE: Would you therefore conclude that the surgeon contributed to the aggravation of the anxiety of the patient? DR. CAMAGAY: That this operation did not take place as scheduled is already a source of anxiety and most operating tables are very narrow and that patients are usually at risk of falling on the floor so there are restraints that are placed on them and they are never, never left alone in the operating room by themselves specially if they are already pre-medicated because they may not be aware of some of their movement that they make which would contribute to their injury. CHIEF JUSTICE: In other words due diligence would require a surgeon to come on time? DR. CAMAGAY: I think it is not even due diligence it is courtesy. CHIEF JUSTICE: Courtesy. DR. CAMAGAY: And care. CHIEF JUSTICE: Duty as a matter of fact? DR. CAMAGAY: Yes, Your Honor.[43]

Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation of petitioner Erlinda is violative, not only of his duty as a physician to serve the interest of his patients with the greatest solicitude, giving them always his

best talent and skill,[44] but also of Article 19 of the Civil Code which requires a person, in the performance of his duties, to act with justice and give everyone his due. Anent private respondent DLSMCs liability for the resulting injury to petitioner Erlinda, we held that respondent hospital is solidarily liable with respondent doctors therefor under Article 2180 of the Civil Code[45] since there exists an employeremployee relationship between private respondent DLSMC and Drs. Gutierrez and Hosaka: In other words, private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, x x x the control exercised, the hiring and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. x x x[46] DLSMC however contends that applying the four-fold test in determining whether such a relationship exists between it and the respondent doctors, the inescapable conclusion is that DLSMC cannot be considered an employer of the respondent doctors. It has been consistently held that in determining whether an employer-employee relationship exists between the parties, the following elements must be present: (1) selection and engagement of services; (2) payment of wages; (3) the power to hire and fire; and (4) the power to control not only the end to be achieved, but the means to be used in reaching such an end.[47] DLSMC maintains that first, a hospital does not hire or engage the services of a consultant, but rather, accredits the latter and grants him or her the privilege of maintaining a clinic and/or admitting patients in the hospital upon a showing by the consultant that he or she possesses the necessary qualifications, such as accreditation by the appropriate board (diplomate), evidence of fellowship and references. [48]Second, it is not the hospital but the patient who pays the consultants fee for services rendered by the latter.[49] Third, a hospital does not dismiss a consultant; instead, the latter may lose his or her accreditation or privileges granted by the hospital.[50] Lastly, DLSMC argues that when a doctor refers a patient for admission in a hospital, it is the doctor who prescribes the treatment to be given to said patient. The hospitals obligation is limited to providing the patient with the preferred room accommodation, the nutritional diet and medications prescribed by the doctor, the equipment and facilities necessary for the treatment of the patient, as well as the services of the hospital staff who perform the ministerial tasks of ensuring that the doctors orders are carried out strictly.[51]

After a careful consideration of the arguments raised by DLSMC, the Court finds that respondent hospitals position on this issue is meritorious. There is no employer employee relationship between DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code. As explained by respondent hospital, that the admission of a physician to membership in DLSMCs medical staff as active or visiting consultant is first decided upon by the Credentials Committee thereof, which is composed of the heads of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the particular specialty applied for as chairman. The Credentials Committee then recommends to DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant physician, and said director or administrator validates the committee's recommendation.[52] Similarly, in cases where a disciplinary action is lodged against a consultant, the same is initiated by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the department specialty heads. The medical director/hospital administrator merely acts as ex-officio member of said committee. Neither is there any showing that it is DLSMC which pays any of its consultants for medical services rendered by the latter to their respective patients. Moreover, the contract between the consultant in respondent hospital and his patient is separate and distinct from the contract between respondent hospital and said patient. The first has for its object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment of the patient. Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment. For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered by petitioner Erlinda. Finally, the Court also deems it necessary to modify the award of damages to petitioners in view of the supervening event of peti tioner Erlindas death. In the assailed Decision, the Court awarded actual damages of One Million Three Hundred Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner Erlindas treatment and care from the date of promulgation of the Decision up to the time the patient expires or survives.[53] In addition thereto, the Court awarded temperate damages of One Million Five Hundred Thousand Pesos (P1,500,000.00) in view of the chronic and continuing nature of petitioner Erlindas injury and the

certainty of further pecuniary loss by petitioners as a result of said injury, the amount of which, however, could not be made with certainty at the time of the promulgation of the decision. The Court justified such award in this manner: Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur, are difficult to predict. In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases. As it would not be equitableand certainly not in the best interests of the administration of justicefor the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awardedtemperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative, should take into account the cost of proper care. In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained in that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would therefore be reasonable.[54] However, subsequent to the promulgation of the Decision, the Court was informed by petitioner Rogelio that petitioner Erlinda died on August 3, 1999. [55] In view of this supervening event, the award of temperate damages in addition to the

actual or compensatory damages would no longer be justified since the actual damages awarded in the Decision are sufficient to cover the medical expenses incurred by petitioners for the patient. Hence, only the amounts representing actual, moral and exemplary damages, attorneys fees and costs of suit should be awarded to petitioners. WHEREFORE, the assailed Decision is hereby modified as follows:
JOSE MENDOZA, plaintiff-appellant, vs. PHILIPPINE AIR LINES, INC., defendant-appellee. Manuel O. Chan, Reyes and Dy-Liaco for appellant. Daniel Me. Gomez and Emigdio Tanjuatco for appellee. MONTEMAYOR, J.: The present appeal by plaintiff Jose Mendoza from the decision of the Court of First Instance of Camarines Sur, has come directly to this Tribunal for the reason that both parties, appellant and appellee, accepted the findings of fact made by the trial court and here raise only questions of law. On our part, we must also accept said findings of fact of the lower court. In the year 1948, appellant Jose Mendoza was the owner of the Cita Theater located in the City of Naga, Camarines Sur, where he used to exhibit movie pictures booked from movie producers or film owners in Manila. The fiesta or town holiday of the City of Naga, held on September 17 and 18, yearly, was usually attended by a great many people, mostly from the Bicol region, especially since the Patron Saint Virgin of Pea Francia was believed by many to be miraculous. As a good businessman, appellant, taking advantage of these circumstances, decided to exhibit a film which would fit the occasion and have a special attraction and significance to the people attending said fiesta. A month before the holiday, that is to say, August 1948, he contracted with the LVN pictures, Inc., a movie producer in Manila for him to show during the town fiesta the Tagalog film entitled "Himala ng Birhen" or Miracle of the Virgin. He made extensive preparations; he had two thousand posters printed and later distributed not only in the City of Naga but also in the neighboring towns. He also advertised in a weekly of general circulation in the province. The posters and advertisement stated that the film would be shown in the Cita theater on the 17th and 18th of September, corresponding to the eve and day of the fiesta itself. In pursuance of the agreement between the LVN Pictures Inc. and Mendoza, the former on September 17th, 1948, delivered to the defendant Philippine Airlines (PAL) whose planes carried passengers and cargo and made regular trips from Manila to the Pili Air Port near Naga, Camarines Sur, a can containing the film "Himala ng Birhen" consigned to the Cita Theater. For this shipment the defendant issued its Air Way Bill No. 317133 marked Exhibit "1". This can of films was loaded on flight 113 of the defendant, the plane arriving at the Air Port at Pili a little after four o'clock in the afternoon of the same day, September 17th. For reasons not explained by the defendant, but which would appear to be the fault of its employees or agents, this can of film was not unloaded at Pili Air Port and it was brought ba to Manila. Mendoza who had completed all arrangements for the exhibition of the film beginning in the evening of September 17th, to exploit the presence of the big crowd that came to attend the town fiesta, went to the Air Port and inquired from the defendant's station master there about the can of film. Said station master could not explain why the film was not unloaded and sent several radiograms to his principal in Manila making inquiries and asking that the film be sent to Naga immediately. After investigation and search in the Manila office, the film was

finally located the following day, September 18th, and then shipped to the Pili Air Port on September 20th. Mendoza received it and exhibited the film but he had missed his opportunity to realize a large profit as he expected for the people after the fiesta had already left for their towns. To recoup his losses, Mendoza brought this action against the PAL. After trial, the lower court found that because of his failure to exhibit the film "Himala ng Birhen" during the town fiesta, Mendoza suffered damages or rather failed to earn profits in the amount of P3,000.00, but finding the PAL not liable for said damages, dismissed the complaint. To avoid liability, defendant-appellee, called the attention of the trial court to the terms and conditions of paragraph 6 of the Way Bill printed on the back thereof which paragraph reads as follows: 6. The Carrier does not obligate itself to carry the Goods by any specified aircraft or on a specified time. Said Carrier being hereby authorized to deviate from the route of the shipment without any liability therefor. It claimed that since there was no obligation on its part to carry the film in question on any specified time, it could not be held accountable for the delay of about three days. The trial court, however, found and held that although the defendant was not obligated to load the film on any specified plane or on any particular day, once said can film was loaded and shipped on one of its planes making trip to Camarines, then it assumed the obligation to unload it at its point of destination and deliver it to the consignee, and its unexplained failure to comply with this duty constituted negligence. If however found that fraud was not involved and that the defendant was a debtor in good faith. The trial court presided over by Judge Jose N. Leuterio in a well-considered decision citing authorities, particularly the case of Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39 Phil. 587, held that not because plaintiff failed to realize profits in the sum of P3,000.00 due to the negligence of the defendant, should the latter be made to reimburse him said sum. Applying provisions of Art. 1107 of the Civil Code which provides that losses and those foreseen, or which might have been foreseen, at the time of constituting the obligation, and which are a necessary consequence of the failure to perform it, the trial court held that inasmuch as these damages suffered by Mendoza were not foreseen or could not have been foreseen at the time that the defendant accepted the can of film for shipment, for the reason that neither the shipper LVN Pictures Inc. nor the consignee Mendoza had called its attention to the special circumstances attending the shipment and the showing of the film during the town fiesta of Naga, plaintiff may not recover the damages sought. Counsel for appellant insists that the articles of the Code of Commerce rather than those of the Civil Code should have been applied in deciding this case for the reason that the shipment of the can of film is an act of commerce; that the contract of transportation in this case should be considered commercial under Art. 349 of the Code of Commerce because it only involves merchandise or an object of commerce but also the transportation company, the defendant herein, was a common carrier, that is to say, customarily engaged in transportation for the public, and that although the contract of transportation was not by land or waterways as defined in said Art. 349, nevertheless, air transportation being analogous to land and water transportation, should be considered as included, especially in view of the second paragraph of Art. 2 of the same Code which says that transactions covered by the Code of Commerce and all others of analogous character shall be deemed acts of commerce. The trial court, however, disagreed to this contention and opined that air transportation not being expressly covered by the Code of Commerce, cannot be governed by its provisions. We believe that whether or not transportation by air should be regarded as a commercial contract under Art. 349, would be immaterial in the present case, as will be explained later. Without making a

definite ruling on the civil or commercial nature of transportation by air, it being unnecessary, we are inclined to believe and to hold that a contract of transportation by air may be regarded as commercial. The reason is that at least in the present case the transportation company (PAL) is a common carrier; besides, air transportation is clearly similar or analogous to land and water transportation. The obvious reason for its non-inclusion in the Code of Commerce was that at the time of its promulgation, transportation by air on a commercial basis was not yet known. In the United Sates where air transportation has reached its highest development, an airline company engaged in the transportation business is regarded as a common carrier. The principles which govern carriers by other means, such as by railroad or motor bus, govern carriers by aircraft. 6 Am. Jur., Aviation, Sec. 56, p. 33. When Aircraft Operator is Common Carrier. That aircraft and the industry of carriage by aircraft are new is no reason why one in fact employing aircraft as common-carrier vehicles should not be classified as a common carrier and charged with liability as such. There can be no doubt, under the general law of common carriers, that those air lines and aircraft owners engaged in the passenger service on regular schedules on definite routes, who solicit the patronage of the traveling public, advertise schedules for routes, time of leaving, and rates of fare, and make the usual stipulation as to baggage, are common carriers by air. A flying service company which, according to its printed advertising, will take anyone anywhere at any time, though not operating on regular routes or schedules, and basing its charges not on the number of passengers, but on the operating cost of the plane per mile, has been held to be a common carrier. It is not necessary, in order to make one carrying passengers by aircraft a common carrier of passengers that the passengers can be carried from one point to another; the status and the liability as a common carrier may exist notwithstanding the passenger's ticket issued by an airplane carrier of passengers for hire contains a statement that it is not a common carrier, etc., or a stipulation that it is to be held only for its proven negligence. But an airplane owner cannot be classed as a common carrier of passengers unless he undertakes, for hire, to carry all persons who apply for passage indiscriminately as long as there is room and no legal excuse for refusing. . . . 6 Am. Jur., Aviation, Sec. 58, pp. 34-35. The rules governing the business of a common carrier by airship or flying machine may be readily assimilated to those applied to other common carriers. 2 C.J.S., 1951, Cumulative Pocket Part, Aerial Navigation, Sec. 38, p. 99. The test of whether one is a common carrier by air is whether he holds out that he will carry for hire, so long as he has room, goods for everyone bringing goods to him for carriage, not whether he is carrying as a public employment or whether he carries to a fixed place. (Ibid., Sec. 39, p. 99.) Appellant contends that Art. 358 of the Code of Commerce should govern the award of the damages in his favor. Said article provides that if there is no period fixed for the delivery of the goods, the carrier shall be bound to forward them in the first shipment of the same or similar merchandise which he may make to the point of delivery, and that upon failure to do so, the damages caused by the delay should be suffered by the carrier. This is a general provision for ordinary damages and is no different from the provisions of the Civil Code, particularly Art. 1101 thereof, providing for the payment of damages caused by the negligence or delay in the fulfillment of one's obligation. Even applying the provisions of the Code of Commerce, as already stated, the pertinent provisions regarding damages only treats of ordinary damages or damages in general, not special damages like those suffered by the plaintiff herein. Article 2 of the Code of Commerce provides that commercial transactions are to be governed by the provisions of the Code of Commerce, but in the

absence of applicable provisions, they will be governed by the usages of commerce generally observed in each place; and in default of both, by those of the Civil Law. So that assuming that the present case involved a commercial transaction, still inasmuch as the special damages herein claimed finds no applicable provision in the Code of Commerce, neither has it been shown that there are any commercial usages applicable thereto, then in the last analysis, the rules of the civil law would have to come into play. Under Art. 1107 of the Civil Code, a debtor in good faith like the defendant herein, may be held liable only for damages that were foreseen or might have been foreseen at the time the contract of the transportation was entered into. The trial court correctly found that the defendant company could not have foreseen the damages that would be suffered by Mendoza upon failure to deliver the can of film on the 17th of September, 1948 for the reason that the plans of Mendoza to exhibit that film during the town fiesta and his preparations, specially the announcement of said exhibition by posters and advertisement in the newspaper, were not called to the defendant's attention. In our research for authorities we have found a case very similar to the one under consideration. In the case of Chapman vs. Fargo, L.R.A. (1918 F) p. 1049, the plaintiff in Troy, New York, delivered picture films to the defendant Fargo, an express company, consigned and to be delivered to him in Utica. At the time of the shipment the attention of the express company was called to the fact that the shipment involved motion picture films to be exhibited in Utica, and that they should be sent to their destination, rush. There was delay in their delivery and it was found that the plaintiff because of his failure to exhibit the film in Utica due to the delay suffered damages or loss of profits. But the highest court in the State of New York refused to award him special damages. Said appellate court observed: But before defendant could be held to special damages, such as the present alleged loss of profits on account of delay or failure of delivery, it must have appeared that he had notice at the time of delivery to him of the particular circumstances attending the shipment, and which probably would lead to such special loss if he defaulted. Or, as the rule has been stated in another form, in order to impose on the defaulting party further liability than for damages naturally and directly, i.e., in the ordinary course of things, arising from a breach of contract, such unusual or extraordinary damages must have been brought within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting. Generally, notice then of any special circumstances which will show that the damages to be anticipated from a breach would be enhanced has been held sufficient for this effect. As may be seen, that New York case is a stronger one than the present case for the reason that the attention of the common carrier in said case was called to the nature of the articles shipped, the purpose of shipment, and the desire to rush the shipment, circumstances and facts absent in the present case. But appellants now contends that he is not suing on a breach of contract but on a tort as provided for in Art. 1902 of the Civil Code. We are a little perplexed as to this new theory of the appellant. First, he insists that the articles of the Code of Commerce should be applied; that he invokes the provisions of said Code governing the obligations of a common carrier to make prompt delivery of goods given to it under a contract of transportation. Later, as already said, he says that he was never a party to the contract of transportation and was a complete stranger to it, and that he is now suing on a tort or violation of his rights as a stranger (culpa aquiliana). If he does not invoke the contract of carriage entered into with the defendant company, then he would hardly have any leg to stand on. His right to prompt delivery of the can of film at the Pili Air Port stems and is derived from the contract of carriage under which contract, the PAL undertook to carry the can of film safely and to deliver it to him promptly. Take away or ignore that contract and the obligation to carry and to deliver and the right to prompt delivery disappear. Common carriers are not obligated by law to carry and to deliver merchandise, and persons are not vested with the right of prompt delivery, unless

such common carriers previously assume the obligation. Said rights and obligations are created by a specific contract entered into by the parties. In the present case, the findings of the trial court which as already stated, are accepted by the parties and which we must accept are to the effect that the LVN Pictures Inc. and Jose Mendoza on one side, and the defendant company on the other, entered into a contract of transportation. (p. 29, Rec. on Appeal). One interpretation of said finding is that the LVN Pictures Inc. through previous agreement with Mendoza acted as the latter's agent. When he negotiated with the LVN Pictures Inc. to rent the film "Himala ng Birhen" and show it during the Naga town fiesta, he most probably authorized and enjoined the Picture Company to ship the film for him on the PAL on September 17th. Another interpretation is that even if the LVN Pictures Inc. as consignor of its own initiative, and acting independently of Mendoza for the time being, made Mendoza as consignee, a stranger to the contract if that is possible, nevertheless when he, Mendoza, appeared at the Pili Air Port armed with the copy of the Air Way Bill (Exh. 1) demanding the delivery of the shipment to him, he thereby made himself a party to the contract of the transportation. The very citation made by appellant in his memorandum supports this view. Speaking of the possibility of a conflict between the order of the shipper on the one hand and the order of the consignee on the other, as when the shipper orders the shipping company to return or retain the goods shipped while the consignee demands their delivery, Malagarriga in his book Codigo de Comercio Comentado, Vol. I, p. 400, citing a decision of Argentina Court of Appeals on commercial matters, cited by Tolentino in Vol. II of his book entitled "Commentaries and Jurisprudence on the Commercial Laws of the Philippines" p. 209, says that the right of the shipper to countermand the shipment terminates when the consignee or legitimate holder of the bill of lading appears with such bill of lading before the carrier and makes himself a party to the contract. Prior to that time, he is stranger to the contract. Still another view of this phase of the case is that contemplated in Art. 1257, paragraph 2, of the old Civil Code which reads thus: Should the contract contain any stipulation in favor of a third person, he may demand its fulfillment, provided he has given notice of his acceptance to the person bound before the stipulation has been revoked. Here, the contract of carriage between the LVN Pictures Inc. and the defendant carrier contains the stipulations of the delivery to Mendoza as consignee. His demand for the delivery of the can of film to him at the Pili Air Port may be regarded as a notice of his acceptance of the stipulation of the delivery in his favor contained in the contract of carriage, such demand being one of the fulfillment of the contract of carriage and delivery. In this case he also made himself a party to the contract, or at least has come to court to enforce it. His cause of action must necessarily be founded on its breach. One can readily sympathize with the appellant herein for his loss of profits which he expected to realize. But he overlooked the legal angle. In situations like the present where failure to exhibit films on a certain day would spell substantial damages or considerable loss of profits, including waste of efforts on preparations and expenses incurred in advertisements, exhibitors, for their security, may either get hold of the films well ahead of the time of exhibition in order to make allowance for any hitch in the delivery, or else enter into a special contract or make a suitable arrangement with the common carrier for the prompt delivery of the films, calling the attention of the carrier to the circumstances surrounding the case and the approximate amount of damages to be suffered in case of delay. Finding no reversible error in the decision appealed from, the same is hereby affirmed. No pronouncement as to costs. So ordered.

OSCAR VENTANILLA, plaintiff-appellant, vs. GREGORIO CENTENO, defendant-appellee. Espinosa and Ventanilla for plaintiff-appellant. Artemio R. Pascual for defendant-appellee. PADILLA, J.: This is an action to recover damages claimed to have been suffered by the plaintiff due to the defendant's neglect in perfecting within the reglementary period his appeal from an adverse judgment rendered by the Court of First Instance of Manila in civil case No. 18833, attorney's fees and costs (civil No. 2063, Court of First Instance of Nueva Ecija). After trial, the Court rendered judgment in favor of the plaintiff and against the defendant, ordering the latter to pay the former the sum of P200 as nominal damages and the costs. The plaintiff appealed to theCourt of Appeals, which certified the case to this Court on the ground that only questions of law are raised. The defendant did not appeal. The facts, as found by the trial court, are: In Civil Case No. 18833 of the Court of First Instance of Manila, entitled Oscar Ventanilla vs. Edilberto Alejandrino and Aida G. Alejandrino, plaintiff retained the service of Atty. Gregorio Centeno to represent him and prosecute the case. Civil Case No. 19833 was an action for the recovery of P4,000.00 together with damages. Decision unfavorable to the plaintiff was received by Atty. Gregorio Centeno on July 21, 1955, and a notice of appeal was filed by Atty. Centeno on July 25, 1955. On July 30, 1955, Atty. Centeno wrote to the plaintiff the letter, Exhibit A, enclosing copies of the decision and that notice of appeal, and stating that he was not conformable to the decision and had not hesitated to file the notice of appeal. Plaintiff Oscar Ventanilla after receiving the letter and copy of the decision went to see Atty. Centeno in his office in Manila about August 5, 1955. Atty. Centeno informed him that he intended to appeal and plaintiff agreed. Plaintiff, however, did not leave with Atty. Centeno at that time the amount for the appeal bond. About the middle of Aug. 1955, Atty. Centeno wrote a letter to the plaintiff enclosing therein forms for an appeal bond. The plaintiff Ventanilla, however, instead of executing an appeal bond, and because use of his reluctance to pay the premium on the appeal bond, decided to file a cash appeal bond of P60.00. He went to the office of Atty. Centeno at about 4 o'clock on August 18,1955, but was informed by the clerk, Leonardo Sanchez, that Atty. Centeno was in Laguna campaigning for his candidacy as member of the Provincial Board. Plaintiff then issued the check Exhibit 1, for P60.00 as appeal bond and delivered the same to Leonardo Sanchez with instruction to give the same to Atty. Centeno upon his arrival. The Court does not believe plaintiff's testimony that Sanchez had contacted Atty. Centeno by telephone and that he issued the cheek upon instruction of Atty. Centeno. Leonardo Sanchez had informed the plaintiff that Atty. Centeno was in Laguna, and if he were in Manila, Sanchez could not have known the whereabouts of Atty, Centeno. It was therefore improbable that he could contact Atty. Centeno that afternoon. On August 17, Atty. Centeno prepared the motion for extension of time to file the record on appeal, Exhibit D, which was filed only on August 20, 1955. Atty. Centeno returned to Manila and went to his office at about 10 o'clock in the morning of August 22. He cash the check, Exhibit 1, with the Marvel Building Corporation and then went to the office of the Clerk of Court to file the appeal bond. According to Atty. Centeno it was not accepted because the period of appeal had already expired, and that it was only at that time he came to know that the period of appeal had expired. The court does not likewise believe the testimony of Atty. Centeno. Neither the Clerk of Court, or any of the employees had the right to refuse an

appeal bond that is being filed, for it is not in his power to determine whether or not the appeal bond has been filed within the time prescribed by law. In fact the record on appeal was accepted and filed on September 5, 1955, but no appeal bond has been filed by Atty. Centeno. The fact that the record on appeal was admitted for filing is the best evidence that Atty. Centeno had not in fact filed any appeal bond. The record on appeal was disapproved because it was filed out of time and no appeal bond had been filed by the plaintiff. (pp. 3336, rec. on app.) The appellant claims that the trial court erred in not ordering the appellee to pay him actual or compensatory, moral, temperate or moderate, and exemplary or corrective damages; in ordering the appellee to pay the appellant only the sum of P200, and not P2,000 as nominal damages; and in not ordering the appellee to pay the appellant the sum of P500 as attorney's fee. Article 2199 of the new Civil Code provides: Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. He who claims actual or compensatory damages must establish and prove by competent evidence actual pecuniary loss.1 The appellant's bare allegation that by reason of the appellee's indifference, negligence and failure to perfect within the reglementary period his appeal from an adverse judgment rendered in civil case No. 18833, by not paying the appeal bond of P60, he lost his chance to recover from the defendants therein the sum of P4,000 and moral and actual damages, which he could have recovered if the appeal had duly been perfected, indicates that his claim for actual or compensatory damages is highly speculative. Hence he is not entitled to such damages. The appellant claims that he suffered mental anguish upon learning that his appeal had not been perfected within the reglementary period due to the appellee's negligence; serious anxiety upon learning that his adversary had won by a mere technicality; besmirched reputation for losing the opportunity to substantiate his claim made while testifying in open court that he was entitled to collect the sum of P4,000 and damages from the defendants in civil No. 18833; and wounded feelings for the appellee's failure to remain faithful to his client and worthy of his trust and confidence. The provisions of the new Civil Code on moral damages state: Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shocks, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act or omission. Art. 2219. Moral damages may be recovered in the following and analogous cases: (1) A criminal offense resulting in physical injuries; . (2) Quasi-delicts causing physical injuries; . (3) Seduction, abduction, rape, or other lascivious acts; . (4) Adultery or concubinage; . (5) Illegal or arbitrary detention or arrest; .

(6) Illegal search; . (7) Libel, slander or any other form of defamation; . (8) Malicious prosecution . (9) Acts mentioned in article 309; . (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sister may bring action mentioned in No. 9 of this article, in the order named. Art. 2220. Willful injury to property may be legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith. Moral damages are recoverable only when physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shocks, social humiliation, and similar injury are the proximate result of a criminal offense resulting in physical injuries, quasi-delicts causing physical injuries, seduction, abduction, rape or other lascivious acts, adultery or concubinage, illegal or arbitrary detention or arrest, illegal search, libel, slander or any other form of defamation, malicious prosecution, disrespect for the dead or wrongful interference with funerals, violation of specific provisions of the Civil Code on human relations, and willful injury to property. To this we may add that where a mishap occurs resulting in the death of a passenger being transported by a common carrier, the spouse, descendants and ascendants of the deceased passenger are entitled to demand moral damages for mental anguish by reason of the passenger's death.2 In Malonzo vs. Galang, supra, this Court categorically stated that . . .Art. 2219 specifically mentions "quasi-delicts causing physical injuries," as an instance when moral damages may be allowed, thereby implying that all other quasi-delicts not resulting in physical injuries are excluded (Strebel vs. Figueras, G.R. L-4722, Dec. 29, 1954), excepting, of course, the special torts referred to in Art. 309 (par. 9, Art. 2219) and in Arts. 21, 26, 27, 28, 29, 30, 32, 34 and 35 on the chapter on human relations (par. 10, Art. 2219).3 Since the appellant's cause of action for recovery of moral damages is not predicated upon any of those specifically enumerated, the trial court did not err in declining to award moral damages to him. Concerning temperate or moderate damages claimed by the appellant, considering that he is not entitled to actual or compensatory damages but has been awarded nominal damages by the trial court, such award precludes the recovery of temperate or moderate damages,4 and so the trial court did not err in refusing to award temperate or moderate damages to the appellant . As regards exemplary or corrective damages also claimed by the appellant, since it cannot be recovered as a matter of right and the court will decide whether or not they should be adjudicated,5 if the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner,6 the trial court has judiciously, wisely and correctly exercised its discretion in not awarding them to the appellant.

Relative to the sufficiency of the sum of P200 as nominal damages awarded by the trial court to the appellant, article 2221 of the new Civil Code provides: Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. The assessment of nominal damages is left to the discretion of the court, according to the circumstances of the case.7 Considering the circumstances, as found by the trial court, and the degree of negligence committed by the appellee, a lawyer, in not depositing on time the appeal bond and filing the record on appeal within the extension period granted by the court, which brought about the refusal by the trial court to allow the record on appeal, the amount of P200 awarded by the trial court to the appellant as nominal damages may seem exiguous. Nevertheless, considering that nominal damages are not for indemnification of loss suffered but for the vindication or recognition of a right violated or invaded; and that even if the appeal in civil case No. 18833 had been duly perfected, it was not an assurance that the appellant would succeed in recovering the amount he had claimed in his complaint, the amount of P2,000 the appellant seeks to recover as nominal damages is excessive. After weighing carefully all the considerations, the amount awarded to the appellant for nominal damages should not be disturbed. RADIO COMMUNICATIONS OF THE PHILS., INC. (RCPI). petitioner, vs. COURT OF APPEALS and LORETO DIONELA, respondents. O. Pythogoras Oliver for respondents.

PARAS, J.: Before Us, is a Petition for Review by certiorari of the decision of the Court of Appeals, modifying the decision of the trial court in a civil case for recovery of damages against petitioner corporation by reducing the award to private respondent Loreto Dionela of moral damages from P40,000 to Pl5,000, and attorney's fees from P3,000 to P2,000. The basis of the complaint against the defendant corporation is a telegram sent through its Manila Office to the offended party, Loreto Dionela, reading as follows: 176 AS JR 1215PM 9 PAID MANDALUYONG JUL 22-66 LORETO DIONELA CABANGAN LEGASPI CITY WIRE ARRIVAL OF CHECK FER LORETO DIONELA-CABANGAN-WIRE ARRIVAL OF CHECK-PER 115 PM SA IYO WALANG PAKINABANG DUMATING KA DIYAN-WALA-KANG PADALA DITO KAHIT BULBUL MO (p. 19, Annex "A")

Plaintiff-respondent Loreto Dionela alleges that the defamatory words on the telegram sent to him not only wounded his feelings but also caused him undue embarrassment and affected adversely his business as well because other people have come to know of said defamatory words. Defendant corporation as a defense, alleges that the additional words in Tagalog was a private joke between the sending and receiving operators and that they were not addressed to or intended for plaintiff and therefore did not form part of the telegram and that the Tagalog words are not defamatory. The telegram sent through its facilities was received in its station at Legaspi City. Nobody other than the operator manned the teletype machine which automatically receives telegrams being transmitted. The said telegram was detached from the machine and placed inside a sealed envelope and delivered to plaintiff, obviously as is. The additional words in Tagalog were never noticed and were included in the telegram when delivered. The trial court in finding for the plaintiff ruled as follows: There is no question that the additional words in Tagalog are libelous. They clearly impute a vice or defect of the plaintiff. Whether or not they were intended for the plaintiff, the effect on the plaintiff is the same. Any person reading the additional words in Tagalog will naturally think that they refer to the addressee, the plaintiff. There is no indication from the face of the telegram that the additional words in Tagalog were sent as a private joke between the operators of the defendant. The defendant is sued directly not as an employer. The business of the defendant is to transmit telegrams. It will open the door to frauds and allow the defendant to act with impunity if it can escape liability by the simple expedient of showing that its employees acted beyond the scope of their assigned tasks. The liability of the defendant is predicated not only on Article 33 of the Civil Code of the Philippines but on the following articles of said Code: ART. 19.- Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. ART. 20.-Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. There is sufficient publication of the libelous Tagalog words. The office file of the defendant containing copies of telegrams received are open and held together only by a metal fastener. Moreover, they are open to view and inspection by third parties. It follows that the plaintiff is entitled to damages and attorney's fees. The plaintiff is a businessman. The libelous Tagalog words must have affected his business and social standing in the community. The Court fixes the amount of P40,000.00 as the reasonable amount of moral damages and the amount of P3,000.00 as attorney's fee which the defendant should pay the plaintiff. (pp. 15-16, Record on Appeal) The respondent appellate court in its assailed decision confirming the aforegoing findings of the lower court stated: The proximate cause, therefore, resulting in injury to appellee, was the failure of the appellant to take the necessary or precautionary steps to avoid the occurrence of the

humiliating incident now complained of. The company had not imposed any safeguard against such eventualities and this void in its operating procedure does not speak well of its concern for their clientele's interests. Negligence here is very patent. This negligence is imputable to appellant and not to its employees. The claim that there was no publication of the libelous words in Tagalog is also without merit. The fact that a carbon copy of the telegram was filed among other telegrams and left to hang for the public to see, open for inspection by a third party is sufficient publication. It would have been otherwise perhaps had the telegram been placed and kept in a secured place where no one may have had a chance to read it without appellee's permission. The additional Tagalog words at the bottom of the telegram are, as correctly found by the lower court, libelous per se, and from which malice may be presumed in the absence of any showing of good intention and justifiable motive on the part of the appellant. The law implies damages in this instance (Quemel vs. Court of Appeals, L22794, January 16, 1968; 22 SCRA 44). The award of P40,000.00 as moral damages is hereby reduced to P15,000.00 and for attorney's fees the amount of P2,000.00 is awarded. (pp. 22-23, record) After a motion for reconsideration was denied by the appellate court, petitioner came to Us with the following: ASSIGNMENT OF ERRORS I The Honorable Court of Appeals erred in holding that Petitioner-employer should answer directly and primarily for the civil liability arising from the criminal act of its employee. II The Honorable Court of Appeals erred in holding that there was sufficient publication of the alleged libelous telegram in question, as contemplated by law on libel. III The Honorable Court of Appeals erred in holding that the liability of petitionercompany-employer is predicated on Articles 19 and 20 of the Civil Code, Articles on Human Relations. IV The Honorable Court of Appeals erred in awarding Atty's. fees. (p. 4, Record) Petitioner's contentions do not merit our consideration. The action for damages was filed in the lower court directly against respondent corporation not as an employer subsidiarily liable under the provisions of Article 1161 of the New Civil Code in relation to Art. 103 of the Revised Penal Code. The cause of action of the private respondent is based on Arts. 19 and 20 of the New Civil Code (supra). As well as on respondent's breach of contract thru the negligence of its own employees. 1

Petitioner is a domestic corporation engaged in the business of receiving and transmitting messages. Everytime a person transmits a message through the facilities of the petitioner, a contract is entered into. Upon receipt of the rate or fee fixed, the petitioner undertakes to transmit the message accurately. There is no question that in the case at bar, libelous matters were included in the message transmitted, without the consent or knowledge of the sender. There is a clear case of breach of contract by the petitioner in adding extraneous and libelous matters in the message sent to the private respondent. As a corporation, the petitioner can act only through its employees. Hence the acts of its employees in receiving and transmitting messages are the acts of the petitioner. To hold that the petitioner is not liable directly for the acts of its employees in the pursuit of petitioner's business is to deprive the general public availing of the services of the petitioner of an effective and adequate remedy. In most cases, negligence must be proved in order that plaintiff may recover. However, since negligence may be hard to substantiate in some cases, we may apply the doctrine of RES IPSA LOQUITUR (the thing speaks for itself), by considering the presence of facts or circumstances surrounding the injury. WHEREFORE, premises considered, the judgment of the appellate court is hereby AFFIRMED. SO ORDERED.

G.R. No. L-27782 July 31, 1970 OCTAVIO A. KALALO, plaintiff-appellee, vs. ALFREDO J. LUZ, defendant-appellant. Amelia K. del Rosario for plaintiff-appellee. Pelaez, Jalandoni & Jamir for defendant-appellant. ZALDIVAR, J.: Appeal from the decision, dated, February 10, 1967, of the Court of First Instance of Rizal (Branch V, Quezon City) in its Civil Case No. Q-6561. On November 17, 1959, plaintiff-appellee Octavio A. Kalalo hereinafter referred to as appellee), a licensed civil engineer doing business under the firm name of O. A. Kalalo and Associates, entered into an agreement (Exhibit A ) 1 with defendant-appellant Alfredo J . Luz (hereinafter referred to as appellant), a licensed architect, doing business under firm name of A. J. Luz and Associates, whereby the former was to render engineering design services to the latter for fees, as stipulated in the agreement. The services included design computation and sketches, contract drawing and technical specifications of all engineering phases of the project designed by O. A. Kalalo and Associates bill of quantities and cost estimate, and consultation and advice during construction relative to the work. The fees agreed upon were percentages of the architect's fee, to wit: structural engineering, 12-%; electrical engineering, 2-%. The agreement was subsequently supplemented by a "clarification to letter-proposal" which provided, among other things, that "the schedule of engineering fees in this agreement does not cover the following: ... D. Foundation soil exploration, testing and evaluation; E. Projects that are principally engineering works such as industrial plants, ..." and "O. A. Kalalo and Associates reserve the right to increase fees on projects ,which cost less than P100,000 ...." 2 Pursuant to said agreement, appellee rendered engineering services to appellant in the following projects: (a) Fil-American Life Insurance Building at Legaspi City; (b) Fil-American Life Insurance Building at Iloilo City;

(c) General Milling Corporation Flour Mill at Opon Cebu; (d) Menzi Building at Ayala Blvd., Makati, Rizal; (e) International Rice Research Institute, Research center Los Baos, Laguna; (f) Aurelia's Building at Mabini, Ermita, Manila; (g) Far East Bank's Office at Fil-American Life Insurance Building at Isaac Peral Ermita, Manila; (h) Arthur Young's residence at Forbes Park, Makati, Rizal; (i) L & S Building at Dewey Blvd., Manila; and (j) Stanvac Refinery Service Building at Limay, Bataan. On December 1 1, '1961, appellee sent to appellant a statement of account (Exhibit "1"), 3 to which was attached an itemized statement of defendant-appellant's account (Exh. "1-A"), according to which the total engineering fee asked by appellee for services rendered amounted to P116,565.00 from which sum was to be deducted the previous payments made in the amount of P57,000.00, thus leaving a balance due in the amount of P59,565.00. On May 18, 1962 appellant sent appellee a resume of fees due to the latter. Said fees, according to appellant. amounted to P10,861.08 instead of the amount claimed by the appellee. On June 14, 1962 appellant sent appellee a check for said amount, which appellee refused to accept as full payment of the balance of the fees due him. On August 10, 1962, appellee filed a complaint against appellant, containing four causes of action. In the first cause of action, appellee alleged that for services rendered in connection with the different projects therein mentioned there was due him fees in sum s consisting of $28,000 (U.S.) and P100,204.46, excluding interests, of which sums only P69,323.21 had been paid, thus leaving unpaid the $28,000.00 and the balance of P30,881.25. In the second cause of action, appellee claimed P17,000.00 as consequential and moral damages; in the third cause of action claimed P55,000.00 as moral damages, attorney's fees and expenses of litigation; and in the fourth cause of action he claimed P25,000.00 as actual damages, and also for attorney's fees and expenses of litigation. In his answer, appellant admitted that appellee rendered engineering services, as alleged in the first cause of action, but averred that some of appellee's services were not in accordance with the agreement and appellee's claims were not justified by the services actually rendered, and that the aggregate amount actually due to appellee was only P80,336.29, of which P69,475.21 had already been paid, thus leaving a balance of only P10,861.08. Appellant denied liability for any damage claimed by appellee to have suffered, as alleged in the second, third and fourth causes of action. Appellant also set up affirmative and special defenses, alleging that appellee had no cause of action, that appellee was in estoppel because of certain acts, representations, admissions and/or silence, which led appellant to believe certain facts to exist and to act upon said facts, that appellee's claim regarding the Menzi project was premature because appellant had not yet been paid for said project, and that appellee's services were not complete or were performed in violation of the agreement and/or otherwise unsatisfactory. Appellant also set up a counterclaim for actual and moral damages for such amount as the court may deem fair to assess, and for attorney's fees of P10,000.00. Inasmuch as the pleadings showed that the appellee's right to certain fees for services rendered was not denied, the only question being the assessment of the proper fees and the balance due to appellee after deducting the admitted payments made by appellant, the trial court, upon agreement of the parties, authorized the case to be heard before a Commissioner. The

Commissioner rendered a report which, in resume, states that the amount due to appellee was $28,000.00 (U.S.) as his fee in the International Research Institute Project which was twenty percent (20%) of the $140,000.00 that was paid to appellant, and P51,539.91 for the other projects, less the sum of P69,475.46 which was already paid by the appellant. The Commissioner also recommended the payment to appellee of the sum of P5,000.00 as attorney's fees. At the hearing on the Report of the Commissioner, the respective counsel of the parties manifested to the court that they had no objection to the findings of fact of the Commissioner contained in the Report, and they agreed that the said Report posed only two legal issues, namely: (1) whether under the facts stated in the Report, the doctrine of estoppel would apply; and (2) whether the recommendation in the Report that the payment of the amount. due to the plaintiff in dollars was legally permissible, and if not, at what rate of exchange it should be paid in pesos. After the parties had submitted their respective memorandum on said issues, the trial court rendered its decision dated February 10, 1967, the dispositive portion of which reads as follows: WHEREFORE, judgment is rendered in favor of plaintiff and against the defendant, by ordering the defendant to pay plaintiff the sum of P51,539.91 and $28,000.00, the latter to be converted into the Philippine currency on the basis of the current rate of exchange at the time of the payment of this judgment, as certified to by the Central Bank of the Philippines, from which shall be deducted the sum of P69,475.46, which the defendant had paid the plaintiff, and the legal rate of interest thereon from the filing of the complaint in the case until fully paid for; by ordering the defendant to pay to plaintiff the further sum of P8,000.00 by way of attorney's fees which the Court finds to be reasonable in the premises, with costs against the defendant. The counterclaim of the defendant is ordered dismissed. From the decision, this appeal was brought, directly to this Court, raising only questions of law. During the pendency of this appeal, appellee filed a petition for the issuance of a writ of attachment under Section 1 (f) of Rule 57 of the Rules of Court upon the ground that appellant is presently residing in Canada as a permanent resident thereof. On June 3, 1969, this Court resolved, upon appellee's posting a bond of P10,000.00, to issue the writ of attachment, and ordered the Provincial Sheriff of Rizal to attach the estate, real and personal, of appellant Alfredo J. Luz within the province, to the value of not less than P140,000.00. The appellant made the following assignments of errors: I. The lower court erred in not declaring and holding that plaintiff-appellee's letter dated December 11, 1961 (Exhibit "1") and the statement of account (Exhibit "1-A") therein enclosed, had the effect, cumulatively or alternatively, of placing plaintiff-appellee in estoppel from thereafter modifying the representations made in said exhibits, or of making plaintiff-appellee otherwise bound by said representations, or of being of decisive weight in determining the true intent of the parties as to the nature and extent of the engineering services rendered and/or the amount of fees due. II. The lower court erred in declaring and holding that the balance owing from defendantappellant to plaintiff-appellee on the IRRI Project should be paid on the basis of the rate of exchange of the U.S. dollar to the Philippine peso at the time of payment of judgment. . III. The lower court erred in not declaring and holding that the aggregate amount of the balance due from defendant-appellant to plaintiff-appellee is only P15,792.05.

IV. The lower court erred in awarding attorney's fees in the sum of P8,000.00, despite the commissioner's finding, which plaintiff-appellee has accepted and has not questioned, that said fee be only P5,000.00; and V. The lower court erred in not granting defendant-appellant relief on his counter-claim. 1. In support of his first assignment of error appellant argues that in Exhibit 1-A, which is a statement of accounts dated December 11, 1961, sent by appellee to appellant, appellee specified the various projects for which he claimed engineering fees, the precise amount due on each particular engineering service rendered on each of the various projects, and the total of his claims; that such a statement barred appellee from asserting any claim contrary to what was stated therein, or from taking any position different from what he asserted therein with respect to the nature of the engineering services rendered; and consequently the trial court could not award fees in excess of what was stated in said statement of accounts. Appellant argues that for estoppel to apply it is not necessary, contrary to the ruling of the trial court, that the appellant should have actually relied on the representation, but that it is sufficient that the representations were intended to make the defendant act there on; that assuming arguendo that Exhibit 1-A did not put appellee in estoppel, the said Exhibit 1-A nevertheless constituted a formal admission that would be binding on appellee under the law on evidence, and would not only belie any inconsistent claim but also would discredit any evidence adduced by appellee in support of any claim inconsistent with what appears therein; that, moreover, Exhibit 1-A, being a statement of account, establishes prima facie the accuracy and correctness of the items stated therein and its correctness can no longer be impeached except for fraud or mistake; that Exhibit 1-A furthermore, constitutes appellee's own interpretation of the contract between him and appellant, and hence, is conclusive against him. On the other hand, appellee admits that Exhibit 1-A itemized the services rendered by him in the various construction projects of appellant and that the total engineering fees charged therein was P116,565.00, but maintains that he was not in estoppel: first, because when he prepared Exhibit 1-A he was laboring under an innocent mistake, as found by the trial court; second, because appellant was not ignorant of the services actually rendered by appellee and the fees due to the latter under the original agreement, Exhibit "A." We find merit in the stand of appellee. The statement of accounts (Exh. 1-A) could not estop appellee, because appellant did not rely thereon as found by the Commissioner, from whose Report we read: While it is true that plaintiff vacillated in his claim, yet, defendant did not in anyway rely or believe in the different claims asserted by the plaintiff and instead insisted on a claim that plaintiff was only entitled to P10,861.08 as per a separate resume of fees he sent to the plaintiff on May 18, 1962 (See Exhibit 6). 4 The foregoing finding of the Commissioner, not disputed by appellant, was adopted by the trial court in its decision. Under article 1431 of the Civil Code, in order that estoppel may apply the person, to whom representations have been made and who claims the estoppel in his favor must have relied or acted on such representations. Said article provides: Art. 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. An essential element of estoppel is that the person invoking it has been influenced and has relied on the representations or conduct of the person sought to be estopped, and this element

is wanting in the instant case. In Cristobal vs. Gomez, 5 this Court held that no estoppel based on a document can be invoked by one who has not been mislead by the false statements contained therein. And inRepublic of the Philippines vs. Garcia, et al., 6 this Court ruled that there is no estoppel when the statement or action invoked as its basis did not mislead the adverse party-Estoppel has been characterized as harsh or odious and not favored in law. 7 When misapplied, estoppel becomes a most effective weapon to accomplish an injustice, inasmuch as it shuts a man's mouth from speaking the truth and debars the truth in a particular case. 8Estoppel cannot be sustained by mere argument or doubtful inference: it must be clearly proved in all its essential elements by clear, convincing and satisfactory evidence. 9 No party should be precluded from making out his case according to its truth unless by force of some positive principle of law, and, consequently, estoppel in pains must be applied strictly and should not be enforced unless substantiated in every particular. 1 0 The essential elements of estoppel in pais may be considered in relation to the party sought to be estopped, and in relation to the party invoking the estoppel in his favor. As related to the party to be estopped, the essential elements are: (1) conduct amounting to false representation or concealment of material facts or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intent, or at least expectation that his conduct shall be acted upon by, or at least influence, the other party; and (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as the facts in questions; (2) (reliance, in good faith, upon the conduct or statements of the party to be estopped; (3) action or inaction based thereon of such character as To change the position or status of the party claiming the estoppel, to his injury, detriment or prejudice. 1 1 The first essential element in relation to the party sought to be estopped does not obtain in the instant case, for, as appears in the Report of the Commissioner, appellee testified "that when he wrote Exhibit 1 and prepared Exhibit 1-A, he had not yet consulted the services of his counsel and it was only upon advice of counsel that the terms of the contract were interpreted to him resulting in his subsequent letters to the defendant demanding payments of his fees pursuant to the contract Exhibit A." 1 2 This finding of the Commissioner was adopted by the trial court. 1 3 It is established , therefore, that Exhibit 1-A was written by appellee through ignorance or mistake. Anent this matter, it has been held that if an act, conduct or misrepresentation of the party sought to be estopped is due to ignorance founded on innocent mistake, estoppel will not arise. 1 4 Regarding the essential elements of estoppel in relation to the party claiming the estoppel, the first element does not obtain in the instant case, for it cannot be said that appellant did not know, or at least did not have the means of knowing, the services rendered to him by appellee and the fees due thereon as provided in Exhibit A. The second element is also wanting, for, as adverted to, appellant did not rely on Exhibit 1-A but consistently denied the accounts stated therein. Neither does the third element obtain, for appellant did not act on the basis of the representations in Exhibit 1-A, and there was no change in his position, to his own injury or prejudice. Appellant, however, insists that if Exhibit 1-A did not put appellee in estoppel, it at least constituted an admission binding upon the latter. In this connection, it cannot be gainsaid that Exhibit 1-A is not a judicial admission. Statements which are not estoppels nor judicial

admissions have no quality of conclusiveness, and an opponent. whose admissions have been offered against him may offer any evidence which serves as an explanation for his former assertion of what he now denies as a fact. This may involve the showing of a mistake. Accordingly, in Oas vs. Roa, 1 6 it was held that when a party to a suit has made an admission of any fact pertinent to the issue involved, the admission can be received against him; but such an admission is not conclusive against him, and he is entitled to present evidence to overcome the effect of the admission. Appellee did explain, and the trial court concluded, that Exhibit 1-A was based on either his ignorance or innocent mistake and he, therefore, is not bound by it. Appellant further contends that Exhibit 1-A being a statement of account, establishes prima facie the accuracy and correctness of the items stated therein. If prima facie, as contended by appellant, then it is not absolutely conclusive upon the parties. An account stated may be impeached for fraud, mistake or error. In American Decisions, Vol. 62, p. 95, cited as authority by appellant himself. we read thus: An account stated or settled is a mere admission that the account is correct. It is not an estoppel. The account is still open to impeachment for mistakes or errors. Its effect is to establish, prima facie, the accuracy of the items without other proof; and the party seeking to impeach it is bound to show affirmatively the mistake or error alleged. The force of the admission and the strength of the evidence necessary to overcome it will depend upon the circumstances of the case. In the instant case, it is Our view that the ignorance mistake that attended the writing of Exhibit 1-A by appellee was sufficient to overcome the prima facie evidence of correctness and accuracy of said Exhibit 1-A. Appellant also urges that Exhibit 1-A constitutes appellee's own interpretation of the contract, and is, therefore, conclusive against him. Although the practical construction of the contract by one party, evidenced by his words or acts, can be used against him in behalf of the other party, 1 7 yet, if one of the parties carelessly makes a wrong interpretation of the words of his contract, or performs more than the contract requires (as reasonably interpreted independently of his performance), as happened in the instant case, he should be entitled to a restitutionary remedy, instead of being bound to continue to his erroneous interpretation or his erroneous performance and "the other party should not be permitted to profit by such mistake unless he can establish an estoppel by proving a material change of position made in good faith. The rule as to practical construction does not nullify the equitable rules with respect to performance by mistake." 1 8 In the instant case, it has been shown that Exhibit 1-A was written through mistake by appellee and that the latter is not estopped by it. Hence, even if said Exhibit 1-A be considered as practical construction of the contract by appellee, he cannot be bound by such erroneous interpretation. It has been held that if by mistake the parties followed a practice in violation of the terms of the agreement, the court should not perpetuate the error. 1 9 2. In support of the second assignment of error, that the lower court erred in holding that the balance from appellant on the IRRI project should be paid on the basis of the rate of exchange of the U.S. dollar to the Philippine peso at the time of payment of the judgment, appellant contends: first, that the official rate at the time appellant received his architect's fees for the IRRI project, and correspondingly his obligation to appellee's fee on August 25, 1961, was P2.00 to $1.00, and cites in support thereof Section 1612 of the Revised Administrative Code, Section

48 of Republic Act 265 and Section 6 of Commonwealth Act No. 699; second, that the lower court's conclusion that the rate of exchange to be applied in the conversion of the $28,000.00 is the current rate of exchange at the time the judgment shall be satisfied was based solely on a mere presumption of the trial court that the defendant did not convert, there being no showing to that effect, the dollars into Philippine currency at the official rate, when the legal presumption should be that the dollars were converted at the official rate of $1.00 to P2.00 because on August 25, 1961, when the IRRI project became due and payable, foreign exchange controls were in full force and effect, and partial decontrol was effected only afterwards, during the Macapagal administration; third, that the other ground advanced by the lower court for its ruling, to wit, that appellant committed a breach of his obligation to turn over to the appellee the engineering fees received in U.S. dollars for the IRRI project, cannot be upheld, because there was no such breach, as proven by the fact that appellee never claimed in Exhibit 1-A that he should be paid in dollars; and there was no provision in the basic contract (Exh. "A") that he should be paid in dollars; and, finally, even if there were such provision, it would have no binding effect under the provision of Republic Act 529; that, moreover, it cannot really be said that no payment was made on that account for appellant had already paid P57,000.00 to appellee, and under Article 125 of the Civil Code, said payment could be said to have been applied to the fees due from the IRRI project, this project being the biggest and this debt being the most onerous. In refutation of appellant's argument in support of the second assignment of error, appellee argues that notwithstanding Republic Act 529, appellant can be compelled to pay the appellee in dollars in view of the fact that appellant received his fees in dollars, and appellee's fee is 20% of appellant's fees; and that if said amount is be converted into Philippine Currency, the rate of exchange should be that at the time of the execution of the judgment. 2 0 We have taken note of the fact that on August 25, 1961, the date when appellant said his obligation to pay appellee's fees became due, there was two rates of exchange, to wit: the preferred rate of P2.00 to $1.00, and the free market rate. It was so provided in Circular No. 121 of the Central Bank of the Philippines, dated March 2, 1961. amending an earlier Circular No. 117, and in force until January 21, 1962 when it was amended by Circular No. 133, thus: 1. All foreign exchange receipts shall be surrendered to the Central Bank of those authorized to deal in foreign exchange as follows: Percentage of Total to be surrendered at Preferred: Free Market Rate: Rate: (a) Export Proceeds, U.S. Government Expenditures invisibles other than those specifically mentioned below. ................................................ 25 75 (b) Foreign Investments, Gold Proceeds, Tourists and Inward Remittances of Veterans and Filipino Citizens; and Personal Expenses of Diplomatic Per personnel ................................. 100" 2 1 The amount of $140,000.00 received by appellant foil the International Rice Research Institute project is not within the scope of sub-paragraph (a) of paragraph No. 1 of Circular No. 121. Appellant has not shown that 25% of said amount had to be surrendered to the Central Bank at the preferred rate because it was either export proceeds, or U.S. Government expenditures, or invisibles not included in sub-paragraph (b). Hence, it cannot be said that the trial court erred in presuming that appellant converted said amount at the free market rate. It is hard to believe

that a person possessing dollars would exchange his dollars at the preferred rate of P2.00 to $1.00, when he is not obligated to do so, rather than at the free market rate which is much higher. A person is presumed to take ordinary care of his concerns, and that the ordinary course of business has been followed. 2 2 Under the agreement, Exhibit A, appellee was entitled to 20% of $140,000.00, or the amount of $28,000.00. Appellee, however, cannot oblige the appellant to pay him in dollars, even if appellant himself had received his fee for the IRRI project in dollars. This payment in dollars is prohibited by Republic Act 529 which was enacted on June 16, 1950. Said act provides as follows: SECTION 1. Every provision contained in, or made with respect to, any obligation which provision purports to give the obligee the right to require payment in gold or in a particular kind of coin or currency other than Philippine currency or in an amount of money of the Philippines measured thereby, be as it is hereby declared against public policy, and null, void and of no effect, and no such provision shall be contained in, or made with respect to, any obligation hereafter incurred. Every obligation heretofore or here after incurred, whether or not any such provision as to payment is contained therein or made with respect thereto, shall be discharged upon payment in any coin or currency which at the time of payment is legal tender for public and private debts: Provided, That, ( a) if the obligation was incurred prior to the enactment of this Act and required payment in a particular kind of coin or currency other than Philippine currency, it shall be discharged in Philippine currency measured at the prevailing rate of exchange at the time the obligation was incurred, (b) except in case of a loan made in a foreign currency stipulated to be payable in the same currency in which case the rate of exchange prevailing at the time of the stipulated date of payment shall prevail. All coin and currency, including Central Bank notes, heretofore or hereafter issued and declared by the Government of the Philippines shall be legal tender for all debts, public and private. Under the above-quoted provision of Republic Act 529, if the obligation was incurred prior to the enactment of the Act and require payment in a particular kind of coin or currency other than the Philippine currency the same shall be discharged in Philippine currency measured at the prevailing rate of exchange at the time the obligation was incurred. As We have adverted to, Republic Act 529 was enacted on June 16, 1950. In the case now before Us the obligation of appellant to pay appellee the 20% of $140,000.00, or the sum of $28,000.00, accrued on August 25, 1961, or after the enactment of Republic Act 529. It follows that the provision of Republic Act 529 which requires payment at the prevailing rate of exchange when the obligation was incurred cannot be applied. Republic Act 529 does not provide for the rate of exchange for the payment of obligation incurred after the enactment of said Act. The logical Conclusion, therefore, is that the rate of exchange should be that prevailing at the time of payment. This view finds support in the ruling of this Court in the case of Engel vs. Velasco & Co. 2 3where this Court held that even if the obligation assumed by the defendant was to pay the plaintiff a sum of money expressed in American currency, the indemnity to be allowed should be expressed in Philippine currency at the rate of exchange at the time of judgment rather than at the rate of exchange prevailing on the date of defendant's breach. This is also the ruling of American court as follows:

The value in domestic money of a payment made in foreign money is fixed with respect to the rate of exchange at the time of payment. (70 CJS p. 228) According to the weight of authority the amount of recovery depends upon the current rate of exchange, and not the par value of the particular money involved. (48 C.J. 605-606) The value in domestic money of a payment made in foreign money is fixed in reference to the rate of exchange at the time of such payment. (48 C.J. 605) It is Our considered view, therefore, that appellant should pay the appellee the equivalent in pesos of the $28,000.00 at the free market rate of exchange at the time of payment. And so the trial court did not err when it held that herein appellant should pay appellee $28,000.00 "to be converted into the Philippine currency on the basis of the current rate of exchange at the time of payment of this judgment, as certified to by the Central Bank of the Philippines, ...." 2 4 Appellant also contends that the P57,000.00 that he had paid to appellee should have been applied to the due to the latter on the IRRI project because such debt was the most onerous to appellant. This contention is untenable. The Commissioner who was authorized by the trial court to receive evidence in this case, however, reports that the appellee had not been paid for the account of the $28,000.00 which represents the fees of appellee equivalent to 20% of the $140,000.00 that the appellant received as fee for the IRRI project. This is a finding of fact by the Commissioner which was adopted by the trial court. The parties in this case have agreed that they do not question the finding of fact of the Commissioner. Thus, in the decision appealed from the lower court says: At the hearing on the Report of the Commissioner on February 15, 1966, the counsels for both parties manifested to the court that they have no objection to the findings of facts of the Commissioner in his report; and agreed that the said report only poses two (2)legal issues, namely: (1) whether under the facts stated in the Report, the doctrine of estoppel will apply; and (2) whether the recommendation in the Report that the payment of amount due to the plaintiff in dollars is permissible under the law, and, if not, at what rate of exchange should it be paid in pesos (Philippine currency) .... 2 5 In the Commissioner's report, it is spetifically recommended that the appellant be ordered to pay the plaintiff the sum of "$28,000. 00 or its equivalent as the fee of the plaintiff under Exhibit A on the IRRI project." It is clear from this report of the Commissioner that no payment for the account of this $28,000.00 had been made. Indeed, it is not shown in the record that the peso equivalent of the $28,000.00 had been fixed or agreed upon by the parties at the different times when the appellant had made partial payments to the appellee. 3. In his third assignment of error, appellant contends that the lower court erred in not declaring that the aggregate amount due from him to appellee is only P15,792.05. Appellant questions the propriety or correctness of most of the items of fees that were found by the Commissioner to be due to appellee for services rendered. We believe that it is too late for the appellant to question the propriety or correctness of those items in the present appeal. The record shows that after the Commissioner had submitted his report the lower court, on February 15, 1966, issued the following order: When this case was called for hearing today on the report of the Commissioner, the counsels of the parties manifested that they have no objection to the findings of facts in the report. However, the report poses only legal issues, namely: (1) whether under the facts stated in the report, the doctrine of estoppel will apply; and (2) whether the recommendation in the report

that the alleged payment of the defendant be made in dollars is permissible by law and, if not, in what rate it should be paid in pesos (Philippine Currency). For the purpose of resolving these issues the parties prayed that they be allowed to file their respective memoranda which will aid the court in the determination of said issues. 2 6 In consonance with the afore-quoted order of the trial court, the appellant submitted his memorandum which opens with the following statements: As previously manifested, this Memorandum shall be confined to: (a) the finding in the Commissioner's Report that defendant's defense of estoppel will not lie (pp. 17-18, Report); and (b) the recommendation in the Commissioner's Report that defendant be ordered to pay plaintiff the sum of '$28,000.00 (U.S.) or its equivalent as the fee of the plaintiff under Exhibit 'A' in the IRRI project.' More specifically this Memorandum proposes to demonstrate the affirmative of three legal issuesposed, namely: First: Whether or not plaintiff's letter dated December 11, 1961 (Exhibit 'I') and/or Statement of Account (Exhibit '1-A') therein enclosed has the effect of placing plaintiff in estoppel from thereafter modifying the representations made in said letter and Statement of Account or of making plaintiff otherwise bound thereby; or of being decisive or great weight in determining the true intent of the parties as to the amount of the engineering fees owing from defendant to plaintiff; Second: Whether or not defendant can be compelled to pay whatever balance is owing to plaintiff on the IRRI (International Rice and Research Institute) project in United States dollars; and Third: Whether or not in case the ruling of this Honorable Court be that defendant cannot be compelled to pay plaintiff in United States dollars, the dollar-to-peso convertion rate for determining the peso equivalent of whatever balance is owing to plaintiff in connection with the IRRI project should be the 2 to 1 official rate and not any other rate. 2 7 It is clear, therefore, that what was submitted by appellant to the lower court for resolution did not include the question of correctness or propriety of the amounts due to appellee in connection with the different projects for which the appellee had rendered engineering services. Only legal questions, as above enumerated, were submitted to the trial court for resolution. So much so, that the lower court in another portion of its decision said, as follows: The objections to the Commissioner's Report embodied in defendant's memorandum of objections, dated March 18, 1966, cannot likewise be entertained by the Court because at the hearing of the Commissioner's Report the parties had expressly manifested that they had no objection to the findings of facts embodied therein. We, therefore hold that the third assignment of error of the appellant has no merit. 4. In his fourth assignment of error, appellant questions the award by the lower court of P8,000.00 for attorney's fees. Appellant argues that the Commissioner, in his report, fixed the sum of P5,000.00 as "just and reasonable" attorney's fees, to which amount appellee did not interpose any objection, and by not so objecting he is bound by said finding; and that, moreover, the lower court gave no reason in its decision for increasing the amount to P8,000.00.

Appellee contends that while the parties had not objected to the findings of the Commissioner, the assessment of attorney's fees is always subject to the court's appraisal, and in increasing the recommended fees from P5,000.00 to P8,000.00 the trial court must have taken into consideration certain circumstances which warrant the award of P8,000.00 for attorney's fees. We believe that the trial court committed no error in this connection. Section 12 of Rule 33 of the Rules of Court, on which the fourth assignment of error is presumably based, provides that when the parties stipulate that a commissioner's findings of fact shall be final, only questions of law arising from the facts mentioned in the report shall thereafter be considered. Consequently, an agreement by the parties to abide by the findings of fact of the commissioner is equivalent to an agreement of facts binding upon them which the court cannot disregard. The question, therefore, is whether or not the estimate of the reasonable fees stated in the report of the Commissioner is a finding of fact. The report of the Commissioner on this matter reads as follows: As regards attorney's fees, under the provisions of Art 2208, par (11), the same may be awarded, and considering the number of hearings held in this case, the nature of the case (taking into account the technical nature of the case and the voluminous exhibits offered in evidence), as well as the way the case was handled by counsel, it is believed, subject to the Court's appraisal of the matter, that the sum of P5,000.00 is just and reasonable as attorney's fees." 2 8 It is thus seen that the estimate made by the Commissioner was an expression of belief, or an opinion. An opinion is different from afact. The generally recognized distinction between a statement of "fact" and an expression of "opinion" is that whatever is susceptible of exact knowledge is a matter of fact, while that not susceptible of exact knowledge is generally regarded as an expression of opinion. 2 9 It has also been said that the word "fact," as employed in the legal sense includes "those conclusions reached by the trior from shifting testimony, weighing evidence, and passing on the credit of the witnesses, and it does not denote those inferences drawn by the trial court from the facts ascertained and settled by it. 3 0 In the case at bar, the estimate made by the Commissioner of the attorney's fees was an inference from the facts ascertained by him, and is, therefore, not a finding of facts. The trial court was, consequently, not bound by that estimate, in spite of the manifestation of the parties that they had no objection to the findings of facts of the Commissioner in his report. Moreover, under Section 11 of Rule 33 of the Rules of Court, the court may adopt, modify, or reject the report of the commissioner, in whole or in part, and hence, it was within the trial court's authority to increase the recommended attorney's fees of P5,000.00 to P8,000.00. It is a settled rule that the amount of attorney's fees is addressed to the sound discretion of the court. 31 It is true, as appellant contends, that the trial court did not state in the decision the reasons for increasing the attorney's fees. The trial court, however, had adopted the report of the Commissioner, and in adopting the report the trial court is deemed to have adopted the

reasons given by the Commissioner in awarding attorney's fees, as stated in the above-quoted portion of the report. Based on the reasons stated in the report, the trial court must have considered that the reasonable attorney's fees should be P8,000.00. Considering that the judgment against the appellant would amount to more than P100,000.00, We believe that the award of P8,000.00 for attorney's fees is reasonable. 5. In his fifth assignment of error appellant urges that he is entitled to relief on his counterclaim. In view of what We have stated in connection with the preceding four assignments of error, We do not consider it necessary to dwell any further on this assignment of error. WHEREFORE, the decision appealed from is affirmed, with costs against the defendantappellant. It is so ordered.

G.R. No. L-5767 The Testament of the Late PLACIDA MINA; CRISANTO UMIPIG, ET AL., petitioners. ATTY. JESUS Q. QUINTILLAN, claimant-appellee, vs. LAZARO DEGALA, GERMANA ESCOBAR, GREGORIO GUERZON, TEODORO, FELIE, CRISTINA, GUERZON, BOLONIA TAMAYO, LEONA LEONES, SIMONA MENDOZA, ISABEL DIRECTO, PLACIDA DIRECTO , ANDRES DIRECTO, PETRA DIRECTO, PAULA DIRECTO, and CLARO QUEBRAL, oppositors-appellants. Antonio Directo for appellants. F. V. Vergara for appellee. BENGZON, J.: This is an appeal from the order of the Court of First Instance of Ilocos Sur awarding to Jesus Quintillan the sum of P50,000 as attorney's fees payable by the estate of the late Placida Mina. After the death of said woman in July 1939, three different instruments alleged to be duly executed wills. The first was Civil Case No. 3685 filed by Dr. Eufemio Domingo; the second, Civil Case No. 3686 instituted by Crisanto Umipig, Marietta Quintillan, Roberto A. Desierto and Cecilia Reyes, who are four out of six trustees

and children of trustees designated in the will of Placida Mina. The court found this third document to be true testament of the deceased. These trustees successfully opposed the probate of the first two documents alleged to be wills in the two previous cases Nos. cases by Attorney Jesus Quintillan pursuant to their contract Annex A-1 reading as follows: We, Roberto A. Desierto , Cecilia Reyes, Crisanto Umipig and Marieta F. Quintillan, declare the fact that because we desire to oppose the probate of the will sought to be probated by Dr. Eufemio Domingo, and the will sought to be probated by Mr. Joaquin Escobar, who claim that such testaments they are respectively presenting are the true wills of the late Doa Placida Mina, and because the will we desire to be probated is the true will of the late Doa Placida dated the year 1927, we made an agreement with Atty. J. Q. Quintillan that he be our lawyer in all said cases and we promised him that if he can succeed in not allowing the wills presented by said Dr. Eufemio Domingo and Mr. Joaquin Escobar to probate, and in obtaining the probate of the will of Doa Placida Mina dated the year 1927, we will give to the said Atty. J. Q. Quintillan as his fees 30 percent of the entire estate left by the deceased Placida Mina, and it was agreed that the said attorney shall be responsible for all necessary expenses in these cases. In the event that no result shall be obtained in his attending us in said cases, we shall not be under any obligation to him for expenses incurred by him and for his attorney's fees. Having performed his part and obtained the probate of the will, Attorney Quintillan submitted his claim for professional services in this expediente. He requested payment of P150,000 (30 percent) asserting that the entire estate of Placida Mina actually was worth more than half-a million pesos. Leona Leones and Cipriano Alcantara, tow other trustees of the authentic will, opposed the request. Attorney Antonio Directo for the heirs, likewise objected. Subsequently, however, all the heirs and parties interested in the estate subscribed to a stipulation, the pertinent part of which read:

(g) That the parties recognize that Atty. Jesus Q. Quintillan is entitled to certain attorney's fees for services rendered in the testamentary proceedings of Placida Mina and for other services rendered for which he filed a claim thereof, but it is understood that the court shall decide the reasonableness of such attorney's fees and whatever sum the court will adjudicate the same shall constitute a charge as express of administration in the testamentary proceedings of Placida Mina, Civil Case No. 3689, both of the Court of First Instance of Ilocos Sur. Pursuant to said stipulation the court proceed to determine the reasonable amount payable to Atty. Quintillan, adjudging to him the sum "of P50,000 as his attorney' s fees, and the Court orders that the part of this amount that has not yet been collected by Atty. Quintillan be paid to him by the estate of the late Placida Mina, said amount to constitute a charge as expenses of administration in the testamentary proceedings." The heirs appealed directly to this Court. Their brief assigns severally errors in support of their two principal contentions, to wit, (a) the lower court lacked had not been presented in tie and (b) the reasonable compensation should be around P7,000 only. Inasmuch as the amount involve does not exceed P50,000 this appeal would not be properly here, except for the jurisdictional issue tendered by appellants. The point out that the court's directive requiring all money claims against the deceased was published July 3, 1950 and the period expired January 3, 1951. They argue that Quintillan's claim having been filed April 21, 1951 was belated and the court had no jurisdiction to act thereon. They invoke section 5 of Rule 87 partly providing as follows: All claims for money against the decedent arising from contract, express or implied, whether the same be due, or contingent, all, claims for funeral expenses and expenses for the last sickness of the decedent , and judgment for money against the decedent must be filed within the time limited in the notice or otherwise they are barred forever. (Emphasis by appellants.) Upon careful examination we find their argument to have no juridical basis. The section refers obviously to claims "against the decedent arising from contract" with her. It applies to demands "which are proper against the decedent, that is, claims upon

a liability contracted by the decedent before his death" . . . "except funeral expenses" etc. 1 Anyway the judge may, in his discretion, permit a creditor to prove his claim even after the expiration of the period originally fixed. (section 2, Rule 87). Furthermore, all the sureties interested in this litigation covenanted on October 16, 1951 after the expiration of the period to submit Atty. Quintillan's claim to the court's decision so that reasonable attorney's fees may be fixed chargeable as expense of administration. Hence the appellants may not be heard to complain that the court rendered the award and practically extended the time for presentation of the attorneys claim. In connection with appellants' second contention,
[[ ]]

"The records of the case and the evidence adduced" says the trial judge "show that said Atty. Quintillan rendered professional services as counsel for the petitioner in the petition for probate of the will of the late Placida Mina, in the present case, Civil Case No. 3689; said Atty. Quintillan rendered his professional services as counsel for said petitioners in their opposition to the petition of one Dr. Eufemio Domingo (Civil Case No. 3689) for the probate of another supposed will of said late Placida Mina. The supposed will in said Civil Case No. 3685 was denied probate on appeal by the Court of Appeals and the petition of Joaquin Escobar in Civil Case No. 3686 was dismissed at the instance of the petitioner. "The will in the present case No. 3689, was allowed to probate in this Court, and on appeal, the Court of Appeals affirmed the decision appealed from. "In the sum, the claimant Atty. Jesus C. Quintillan, as counsel in the three above mentioned civil cases, obtained favorable decisions. Aside from his services for the benefit of the estate of the deceased Placida Mina. He defended the validity of the provisions of the probated will in Civil Case No. 303 of this Court, for although the claimant lost his case in this Court, he appealed and succeeded in securing the dismissal of the petition for declaratory judgment by the Supreme Court."

To determine the compensation for legal services, courts in this jurisdiction take into account, in the absence of contract, several factors, namely, " (1 amount and character of the services rendered; (2) labor, time, and trouble involved; (3) nature and importance of the litigation or business in which the services were rendered; (4) responsibility imposed; (5) amount of money or value of the property affected by the controversy, or involved in the employment; (6) skill and experience called for in the performance of the services; (7) professional character and social standing of the attorney; (8) results secured; (90 whether or not the fee is absolute or contingent, it being a recognized rule that an attorney may properly charge a much larger fee when it is to be contingent than when it is not 2 ." These are generally questions of fact, within in this instance should be left mostly to the trial judge, since the heirs'' appeal direct to this Court is logically confined to questions of law. At any rate, no material circumstance has been shown to justify a declaration that the amount awarded was excessive, having a declaration that the amount awarded was excessive , having in mind the principles and practice where counsel is engaged on the basis of quantum meruit or contingent fees. It is observed that an absolute majority of the trustees of the will (four) agreed in Exhibit A-1 to give the appellee 30 per cent of the entire estate valued at P500,000 and more 3 ." Although such contract has not been submitted to the court of approval 4 , still it could be a proper element to reckon. At least in one case, an agreement whereby attorneys were promised compensation equal to 2/6 of the hereditary estate if they succeeded in impugning a will, was declared not to be excessive or unreasonable 5 . The allowance of counsel fees in probate proceedings "rest largely in the sound discretion of the court, which should not be interpreted with except for manifest abuse, but it may be modified by the reviewing court when the fee allowed is inadequate or excessive
[[ ]] [[ ]] [[ ]] [[ ]] [

G.R. Nos. 111206-08 October 6, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CLAUDIO TEEHANKEE, JR., accused-appellant.

PUNO, J.: Three (3) separate Informations were filed against accused Claudio Teehankee, Jr. for the shooting of Roland John Chapman, Jussi Olavi Leino and Maureen Hultman. Initially, he was charged with: MURDER for the killing of ROLAND CHAPMAN, and two (2) FRUSTRATED MURDER for the shooting and wounding of JUSSI LEINO and MAUREEN HULTMAN. When Hultman died on October 17, 1991, during the course of the trial, the Information for Frustrated Murder against accused was amended to MURDER. 1 The Information for murder in Criminal Case No. 91-4605 thus reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation and by means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with and shoot with the said handgun Roland John Chapman who war hit in the chest, thereby inflicting mortal wounds which directly caused the death of said Roland John Chapman. Contrary to law. 2 The Amended Information for Murder in Criminal Case No. 91-4606 reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation, and by means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting moral wounds which directly caused the death of the said Maureen Hultman. CONTRARY TO LAW. 3 Finally, the Information for Frustrated Murder in Criminal Case No. 91-4607 reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, while armed with a handgun, with intent to kill, treachery and evident premeditation did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Jussi Olavi Leino on the head, thereby inflicting gunshot wounds, which ordinarily would have caused the death of said Jussi Olavi Leino, thereby performing all the acts of execution which would have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of cause or causes independent of his will, that is, due to the timely and able medical assistance rendered to said Jussi Olavi Leino which prevented his death. Contrary to law. 4 In the two (2) Informations for frustrated murder initially filed against accused, bail was set at twenty thousand pesos (P20,000.00) each. No bail was recommended for the murder of Roland John

Chapman. A petition for bail was thus filed by accused. Hearing was set on August 9, 1991, while his arraignment was scheduled on August 14, 1991. At the hearing of the petition for bail on August 9, 1991, the prosecution manifested that it would present the surviving victim, Jussi Leino, to testify on the killing of Chapman and on the circumstances resulting to the wounding of the witness himself and Hultman. Defense counsel Atty. Rodolfo Jimenez objected on the ground that the incident pending that day was hearing of the evidence on the petition for bail relative to the murder charge for the killing of Chapman only. He opined that Leino's testimony on the frustrated murder charges with respect to the wounding of Leino and Hultman would be irrelevant. 5 Private prosecutor, Atty. Rogelio Vinluan, countered that time would be wasted if the testimony of Leino would be limited to the killing of Chapman considering that the crimes for which accused were charged involved only one continuing incident. He pleaded that Leino should be allowed to testify on all three (3) charges to obviate delay and the inconvenience of recalling him later to prove the two (2) frustrated murder charges. 6 By way of accommodation, the defense suggested that if the prosecution wanted to present Leino to testify on all three (3) charges, it should wait until after the arraignment of accused on August 14, 1991. The defense pointed out that if accused did not file a petition for bail, the prosecution would still have to wait until after accused had been arraigned before it could present Leino. 7 The private prosecutor agreed to defer the hearing on the petition for bail until after arraignment of accused on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. The defense counsel acceded. 8 Upon arraignment, accused pleaded not guilty to the three (3) charges. The prosecution then started to adduce evidence relative to all three (3) cases. No objection was made by the defense. 9 A replay of the facts will show that on July 12, 1991, Jussi Olavi Leino invited Roland Chapman, Maureen Hultman and other friends for a party at his house in Forbes Park, Makati. The party started at about 8:30 p.m. and ended at past midnight. They then proceeded to Roxy's, a pub where students of International School hang out. 10 After an hour, they transferred to Vintage, another pub in
Makati, where they stayed until past 3:00 a.m. of July 13, 1991. Their group returned to Roxy's to pick up a friend of Maureen, then went back to Leino's house to eat. 11

After a while, Maureen requested Leino to take her home at Campanilla Street, Dasmarias Village, Makati. Chapman tagged along. 12 When they entered the village, Maureen asked Leino to stop along
Mahogany Street, about a block away from her house in Campanilla Street. She wanted to walk the rest of the way for she did not like to create too much noise in going back to her house. She did not want her parents to know that she was going home that late. Leino offered to walk with her while Chapman stayed in the car and listened to the radio. 13

Leino and Maureen started walking on the sidewalk along Mahogany Street. When they reached the corner of Caballero and Mahogany Streets, a light-colored Mitsubishi box-type Lancer car, driven by accused Claudio Teehankee, Jr., came up from behind them and stopped on the middle of the road. Accused alighted from his car, approached them, and asked: "Who are you? (Show me your) I.D." Leino thought accused only wanted to check their identities. He reached into his pocket, took out his plastic wallet, and handed to accused his Asian Development Bank (ADB) I.D. 14 Accused did not
bother to look at his I.D. as he just grabbed Leino's wallet and pocketed it.
15

Chapman saw the incident. All of a sudden, he manifested from behind Leino and inquired what was going on. He stepped down on the sidewalk and asked accused: "Why are you bothering us?" Accused pushed Chapman, dug into his shirt, pulled out a gun and fired at him. Chapman felt his upper body, staggered for a moment, and asked: "Why did you shoot me?" Chapman crumpled on the sidewalk. Leino knelt beside Chapman to assist him but accused ordered him to get up and leave Chapman alone. 16 Accused then turned his ire on Leino. He pointed gun at him and asked: "Do you want a trouble?" Leino said "no" and took a step backward. The shooting initially shocked Maureen. When she came to her senses, she became hysterical and started screaming for help. She repeatedly shouted: "Oh, my God, he's got a gun. He's gonna kill us. Will somebody help us?" All the while, accused was pointing his gun to and from Leino to Maureen, warning the latter to shut up. Accused ordered Leino to sit down on the sidewalk. Leino obeyed and made no attempt to move away. Accused stood 2-3 meters away from him. He knew he could not run far without being shot by accused. Maureen continued to be hysterical. She could not stay still. She strayed to the side of accused's car. Accused tried but failed to grab her. Maureen circled around accused's car, trying to put some distance between them. The short chase lasted for a minute or two. Eventually, accused caught Maureen and repeatedly enjoined her to shut up and sit down beside Leino. 17 Maureen finally sat beside Leino on the sidewalk. Two (2) meters away and directly in front of them stood accused.18 For a moment, accused turned his back from the two. He faced them again and shot
Leino. Leino was hit on the upper jaw, fell backwards on the sidewalk, but did not lose consciousness. Leino heard another shot and saw Maureen fall beside him. He lifted his head to see what was happening and saw accused return to his car and drive away. 19

Leino struggled to his knees and shouted for help. He noticed at least three (3) people looking on and standing outside their houses along Caballero Street. 20 The three were: DOMINGO FLORECE, a
private security guard hired by Stephen Roxas to secure his residence at #1357 Caballero Street, Dasmarias Village, Makati; 21 VICENTE MANGUBAT, a stay-in driver of Margarita Canto, residing at #1352 Caballero Street, corner Mahogany Street, Dasmarias Village; 22 and AGRIPINO CADENAS, a private security guard assigned at the house of Rey Dempsey, located at #1351 Caballero Street, corner Mahogany Street, Dasmarias Village. 23

Security guards Florece and Cadenas were then on duty at the house of their employer, while driver Mangubat was in his quarters, preparing to return to his own house. These three (3) eyewitnesses heard the first gunshot while at their respective posts. Upon hearing the first shot, Florece went out to Caballero Street to see what was happening, while Mangubat and Cadenas peeped over the fence of their employer's house and looked out to Caballero Street. Each saw a man (Chapman) sprawled on the ground, another man (Leino) sitting on the sidewalk, a third man standing up ad holding a gun and a woman (Hultman). They saw the gunman shoot Leino and Hultman and flee aboard his Lancer car. However, because of Florece's distance from the scene of the crime, 24 he was not able to discern the face of the gunman. He saw the
control numbers of the gunman's car as 566. He described the gateway car as a box-type Lancer, its color somewhat white ("medyo maputi"). 25 Cadenas noticed in full the plate number of the getaway car and gave it as PDW 566. He described the car as silver metallic gray. 26 Both Cadenas and Mangubat saw the gunman's face. They had a good look at him. Cadenas was then a mere four (4) meters away from the gunman's car, 27 while Mangubat was about twenty (20) meters away from the scene of the crime. 28 The three confirmed that the corner of Caballero and Mahogany Streets where the shooting took place was adequately illuminated by a Meralco lamppost at the time of the incident. 29

After the gunman sped away, Mangubat ran outside his employer's house and went near the scene of the crime. He noticed security guard Florece along Caballero Street. A man on a bike passed by and Mangubat requested him to report the shooting incident to the security officers of Dasmarias Village. 30 Meanwhile, Florece returned to his post and narrated to his employer, Mrs. Helen Roxas, what
he saw. Mrs. Roxas repaired to the crime scene while Florece noted the incident in his logbook (Exhibit "B"). He also jotted down the license plate control number of the gunman's car as 566. 31

The security guards of Dasmarias Village came after a few minutes. They rushed Leino and Maureen to the Makati Medical Center for treatment. 32 The Makati police and agents of the NBI also came. Patrolman JAMES BALDADO of the Makati police, together with SPO3 ALBERTO FERNANDEZ, investigated the incident. 33 Their initial
investigation disclosed that the gunman's car was a box-type Mitsubishi Lancer with plate control number 566. They checked the list of vehicles registered with the village Homeowners' Association and were able to track down two (2) Lancer cars bearing plate control number 566. One was registered in the name of JOSE MONTAO of 1823 Santan Street, Dasmarias Village, with plate number PKX 566, and another was traced to accused CLAUDIO TEEHANKEE, JR., of 1339 Caballero Street, Dasmarias Village, with plate number PDW 566.

SALVADOR RANIN, Chief of the Special Operations Group (SOG) of the NBI, was also tasked by then NBI Director Alfredo Lim 34 to head a team to investigate the shooting. Ranin's team immediately
proceeded to the house of Jose Montao 35 where they found ahead of them the Makati police and operatives of the Constabulary Highway Patrol. Ranin tried to verify from Mrs. Montao whether the white Lancer car registered in the name of Mr. Montao and bearing plate number 566 was the gunman's car. Mrs. Montao denied and declared they had already sold the car to Saldaa Enterprises. She averred the car was being used by one Ben Conti, a comptroller in said company, who resides in Cubao, Quezon City. Mrs. Montao called up her husband and informed him about the investigation. She also called up Conti and asked him to bring the car to the house. 36

Jose Montao came around noon. Conti followed with white Lancer car. Ranin brought them to the NBI office for investigation, together with Lancer car. At the NBI Ranin inquired from Montao the whereabouts of his car on July 12 and 13, 1991. Montao informed him that the car was at the residence of his employee, Ben Conti, at E. Rodriguez Street, Cubao, Quezon City, the night of July 12, 1991. In the morning of July 13, 1991, Conti drove the car to their office at Saldaa Enterprises. Conti confirmed this information. Ranin received the same confirmation from two (2) NBI agents who made a countercheck of the allegation. Upon Ranin's request, Montao left his car at the NBI parking lot pending identification by possible witnesses. 37 On July 14, 1991, a team of NBI agents conducted an on-the-spot investigation and neighborhood inquiry of the shooting incident. They interviewed Domingo Florece and asked him to report to their office the next day for further investigation. 38 They also interviewed Agripino Cadenas who was
reluctant to divulge any information and even denied having witnessed the incident. Sensing his reluctance, they returned to Cadenas' post at Dasmarias Village that night and served him a subpoena, inviting him to appear at the NBI office for investigation the next day. 39 The NBI agents also talked with Armenia Asliami, an Egyptian national residing at #1350 Caballero Street, Dasmarias Village, near the scene of the crime. Asliami informed the agents that the gunman's car was not white but light gray. A foreign national, Asliami was afraid and refused to give a statement about the incident. The agents exerted every effort to convince Asliami to cooperate, assuring her of their protection. Ranin even asked a representative of the Egyptian embassy to coax Asliami to cooperate. They failed. 40

On July 15, 1991, Florece and Cadenas appeared at the NBI office as summoned. Florece readily executed a sworn statement. 41 Cadenas, however, continued to feign ignorance and bridled his
knowledge of the incident. He was lengthily interviewed. At around 2:00 p.m., the NBI agents informed

SOG Chief Ranin that Cadenas was still withholding information from them. Ranin talked to Cadenas in his office. Cadenas confided to Ranin his fear to get involved in the case. He was apprehensive that the gunman would harass or harm him or his family. After Ranin assured him of NBI protection, Cadenas relented. 42

The next day, July 16, 1991, Cadenas gave a full disclosure to Ranin. He described the gunman's car as a box-type Lancer with plate number PDW 566. He was brought to the NBI parking lot where Montao's white Lancer car was parked to identify the gunman's car. Ranin asked Cadenas if Montao's was the gunman's car. Cadenas replied that its color was different. Ranin directed him to look around the cars in the parking lot and to point the color that most resembled the color of the gunman's car. He pointed to a light gray car. Ranin told him that the color of the car he pointed to was not white but light gray. 43 Ranin then asked Cadenas if he could identify the gunman. Cadenas replied in the affirmative. Ranin led Cadenas to his office and showed him ten (10) pictures of different men (Exhibits "CC-1" to "CC10) taken from the NBI files. One of the pictures belonged to accused Claudio Teehankee, Jr. Cadenas studied the pictures, picked accused's picture (Exhibit "CC-7"), and identified him as the gunman. Cadenas wrote his name and the date at the back of said picture. Atty. Alex Tenerife of the NBI then took down Cadenas' statement. 44 Ranin sent his agents and the witnesses to the Makati Regional Trial Court to apply for a search warrant. After a searching examination of the witnesses, Judge Rebecca Salvador issued a search warrant (Exhibit "RR"), authorizing the NBI to search and seize the silver metallic gray, 1983 Mitsubishi Lancer car owned by accused, bearing plate number PDW 566. Ranin and his agents drove to accused's house at #1339 Caballero Street, Dasmarias Village, to implement the warrant. 45 At accused's house, Ranin informed Mrs. Pilar Teehankee, mother of accused, of their search warrant. Ranin also told Mrs. Teehankee that they had orders from Director Lim to invite accused to the NBI office for investigation. Mrs. Teehankee informed them that accused was not in the house at that time. She excused herself, went to the kitchen and called up someone on the phone. 46 In the meantime, Ranin and his men slipped to the Teehankee garage and secured accused's car. After a while, Mrs. Teehankee joined them. Ranin asked her for the car keys but she told him that the keys were with accused. Upon Ranin's request, Mrs. Teehankee got in touch with accused on the phone. Ranin conversed with accused and invited him to the NBI for investigation. Accused assured Ranin that he would report to the NBI later that day. The agents then towed the car of accused to the NBI office. 47 At around 9:00 p.m., accused's brother, Raul Teehankee, arrived at the NBI office and waited for accused. Accused came, escorted by three (3) Makati policemen, after an hour. He informed them that he just came from the Makati police station where he was also investigated. He told Lim that he was given a statement to the Makati police and was brought to the PC Crime Laboratory for paraffin test. 48 Accused's NBI investigation started. Lim asked accused of the whereabouts of his Lancer car at the time of the shooting. Accused claimed that his car was involved in an accident a few weeks back and was no longer functioning. The car had been parked in his mother's house at Dasmarias Village since then. Due to the lateness of the evening, the group decided to continue the investigation the following day. 49

The next day, July 17, 1991, after breakfast at the Manila Hotel, Lim pressed accused on what really happened at Dasmarias Village. Accused said he did not see anything. Lim apprised accused that he would be confronted with some eyewitnesses. Accused sank into silence. 50 Lim directed Ranin to prepare a lineup at his office. Accused was requested to join the lineup composed of seven (7) men and he acceded. Cadenas was called from an adjoining room 51 and
Ranin asked him to identify the gunman from the lineup. Forthwith, Cadenas pointed to accused. 52 Accused merely stared at Cadenas. 53

On the same day, then Asst. Director Epimaco Velasco, Ranin and two (2) other agents brought accused to Forbes Park for further identification by the surviving victim, Jussi Leino. Leino has just been discharged from the hospital the day before. Since Leino's parents were worried about his safety, they requested the NBI to conduct the identification of the gunman in Forbes Park where the Leinos also reside. The NBI agreed. 54 House security agents from the U.S. embassy fetched Leino at his house and escorted him and his father to a vacant house in Forbes Park, along Narra Avenue. After a couple of minutes, Leino was brought out of the house and placed in a car with slightly tinted windows. The car was parked about five (5) meters away from the house. Inside the car with Leino was his father, NBI-SOG Chief Salvador Ranin and a driver. Leino was instructed to look at the men who would be coming out of the house and identify the gunman from the lineup. 55 A group of five to six men (including accused) then came out of the unoccupied house, into the street, in a line-up. Leino noticed that one of them was wearing sunglasses. Since Leino could not yet speak at that time due to the extensive injury on his tongue, he wrote down on a piece of paper a request for one of the men in the lineup to remove his sunglasses. Leino handed this written request to his father. The men in the lineup were herded back inside the house. After a couple of minutes, they again stepped out and none was wearing sunglasses. From the lineup, Leino identified accused as the gunman. 56 The agents brought back accused to the NBI. They prepared and referred the cases of murder and double frustrated murder against accused to the Department of Justice for appropriate action. At the inquest, Fiscal Dennis Villa-Ignacio did not recommend bail insofar as the murder charge was concerned. Hence, accused was detained at the NBI. 57 The shooting incident was also investigated by the Makati Police. Pat. Baldado went to see security guard Vicente Mangubat at his post, at the residence of his employer in Dasmarias Village. Baldado interviewed Mangubat and invited him to the Makati police station where his statement (Exhibit "D") was taken. 58 The next day, July 16, 1991, at about 8:30 a.m., Pat. Baldado fetched Mangubat from his house and brought him to the Makati police station. At the station, Baldado told him to wait for a man who would be coming and see if the person was the gunman. Mangubat was posted at the top of the stairs at the second floor of the station. 59 After a couple of hours, accused, came with Makati police Major Lovete. He ascended the stairs, passed by Mangubat and proceeded to Major Lovete's office at the second floor. While accused was going up the stairs, Pat. Baldado inquired from Mangubat if accused was the gunman. Mangubat initially declined to identify accused, saying that he wanted to see the man again to be sure. He also confided to Pat. Baldado that he was nervous and afraid for accused was accompanied by a police Major. When accused came out from Major Lovete's office, Pat. Baldado again asked Mangubat if accused was the gunman. Mangubat nodded his head in response. 60 Accused, together with Major

Lovete and Pat. Baldado, boarded a Mercedes Benz and left. Mangubat was brought back to his post at Dasmarias Village by other Makati policemen. 61

Two (2) days later, Pat. Baldado visited Mangubat at his employer's house and asked him again if accused was really the gunman. Once more, Mangubat answered in the affirmative. Pat. Baldado told Mangubat that he would no longer ask him to sign a statement which he (Baldado) earlier prepared (Exhibit "HHH"). 62 Baldado then left. 63 In the afternoon of July 23, 1991, Mangubat was also questioned by the NBI agents. Director Lim asked Mangubat if he could recognize the gunman. Mangubat said he could. Mangubat was shown twelve (12) pictures (Exhibits "E" to "E-11) of different men and was asked to identify the gun gunman from them. He chose one picture (Exhibit "E-10"), that of accused, and identified him as the gunman. Mangubat's statement was taken. He was asked to return to the NBI the next day to make a personal identification. 64 When Mangubat returned, a lineup was prepared in Lim's office in the presence of the media. At that time, accused's counsels, Attys. Jimenez and Malvar, were at the office of then Asst. Director Epimaco Velasco protesting to the submission of accused to identification. They pointed out that since the cases against accused had already been filed in court and they have secured a court order for the transfer of accused to the Makati municipal jail, any identification of accused should be made in the courtroom. Asst. Director Velasco insisted on the identification as it was part of their on-going investigation. Eventually, accused's counsels acquiesced but requested that identification be made without the presence of the media. Velasco turned them down and explained that if accused is not identified n the lineup, the media coverage would favor accused. 65 All that time, accused was at the SOG office. He refused to join the lineup at Lim's office and remained seated. Ranin was compelled to bring to the SOG office the men composing the lineup and he asked them to go near accused. Ranin then told Mangubat to go in the office. Mangubat pointed to accused as the gunman. With the identification of accused by Mangubat, the NBI wrote finis to its investigation. 66 JUSSI LEINO, the surviving victim, suffered the following injuries: FINDINGS: = Abrasion, 0.5 cm., temporal area, left. = Wound, gunshot, entrance, circular in shape, 1.0 cm. in diameter, located at the upper lip, mouth, along the medial line, directed backwards and downwards, fracturing the maxillary bone and central and lateral incisors, both sides, to the buccal cavity then lacerating the tongue with fragments of the bullet lodged in the right palatine, tongue and tonsillar region. SKULL CHEST FOR RIBS X-RAY #353322 July 13, 1991

No demonstrable evidence of fracture. Note of radioopaque foreign body (bullet fragments) along the superior alveolar border on the right. No remarkable findings. CT SCAN #43992 July 13, 1991 Small hyperdensities presumably bullet and bone fragments in the right palatine, tongue and tonsillar regions with associated soft tissue swelling. Anterior maxillary bone comminuted fracture. Temporal lobe contusions with small hematomata on the right side. Minimal subarachnoid hemorrhage. Intact bone calvarium. xxx xxx xxx 67 Dr. Pedro Solis, testified that the bullet entered the left temple of Leino. After entering Leino's head, it fractured his upper jaw and his front teeth. Some of the bullet fragments pierced his palette and tongue. Brain scanning revealed contusions on the temporal lobe and hemorrhage on the covering of the brain. Physical deformity resulted as a consequence of the gunshot wound because of the fractured upper jaw and the loss of the front teeth. Sutures were performed on the upper portion of his tongue. Nonetheless, Leino's injuries on the tongue caused him difficulty in speaking. 68 Dr. Solis also testified as to the relative position of Leino and the gunman. He opined that the muzzle of the gun, like in the case of Maureen, must have been at a higher level than the victim's head. He concluded that the gun must have been pointed above Leino's head considering the acuteness and downward trajectory of the bullet. 69 Dr. Leovigildo C. Isabela, a neuro-surgeon at the Makati Medical Center, operated on MAUREEN HULTMAN. He testified that when he first saw Maureen, she was unconscious and her face was bloodied all over. Maureen had a bullet hole on the left side of the forehead, above the eyebrow. Brain tissues were oozing out of her nostrils and on the left side of the forehead where the bullet entered. 70 They brought Maureen to the x-ray room for examination of her skull. She was also given a CT scan. The examination revealed that she suffered injuries on the skull and brain. There were several splintered bullets in her brain and the major portion of the bullet, after it fragmented, was lodged beneath her right jaw. 71 Maureen was rushed to the operating room for surgery. Dr. Isabela led a team who operated on her brain to arrest the bleeding inside her head, remove devitalized brain tissues and retrieve the splintered bullets embedded in her brain. Due to the extensive swelling of Maureen's brain and her very unstable condition, he failed to patch the destroyed undersurface covering of her brain. 72 After
the surgery, Maureen's vital signs continued to function but she remained unconscious. She was wheeled to the ICU for further observation.

Two (2) weeks later, brain tissues and fluid continue to flow out of Maureen's nostrils due to the unpatched undersurface covering of her brain, leaving the swollen portion of her brain exposed. A second surgery was made on July 30, 1991 to repair Maureen's brain covering. He used the fascia lata of Maureen's right thigh to replace the destroyed covering of the brain. Nonetheless, Maureen remained unconscious. The trickle of brain tissues through her nose was lessened but Maureen developed infection as a result of the destruction of her brain covering. Maureen developed brain abscess because of the infection. She underwent a third operation to remove brain abscess and all possible focus of infection. 73 Testifying on the extensive injuries suffered by Maureen Hultman, Dr. Solis explained that Maureen was shot at the left side of the forehead. The bullet entry was at 1.5 cm. above the eyebrow. Upon entering the forehead, the bullet fragmented into pieces and went from the left to the right side of the temple, fracturing the frontal bone of the skull. The bullet eventually settled behind the right jaw of Maureen. 74 The wound inflicted on Maureen was mortal for it hit one of the most vital parts of the body, the brain. When Maureen was subjected to CT scan, they discovered hemorrhage in her brain. After the bullet hit her head, it caused hemorrhagic lesion on the ventricles of the brain and the second covering of the brain. 75 The bullet also injured Maureen's eye sockets. There was swelling underneath the forehead brought about by edema in the area. Scanning also showed that Maureen's right jaw was affected by the fragmented bullet. The whole interior portion of her nose was also swollen. 76 A team of doctors operated on Maureen's brain. They tried to control the internal bleeding and remove the splintered bullets, small bone fragments and dead tissues. The main bullet was recovered behind Maureen's right jaw. There was also an acute downward trajectory of the bullet. Hence, it was opined that Maureen was shot while she was seated. 77 With each passing day, Maureen's condition deteriorated. Even if Maureen survived, she would have led a vegetating life and she would have needed assistance in the execution of normal and ordinary routines. 78 She would have been completely blind on the left eye and there was possibility she would
have also lost her vision on the right eye. All her senses would have been modified and the same would have affected her motor functions. There was practically no possibility for Maureen to return to normal. 79

Maureen did not survive her ordeal. After ninety-seven (97) days of confinement in the hospital, she ceased to be a breathing soul on October 17, 1991. For his exculpation, accused relied on the defense of denial and alibi. Accused claimed that on said date and time, he was not anywhere near the scene of the crime. He alleged that he was then in his house at #53 San Juan, Barrio Kapitolyo, Pasig. He slept at around 1:00 a.m. on July 13, 1991 and woke up at around 8:00 or 9:00 a.m. that same morning. Accused avowed his two (2) maids could attest to his presence in his house that fateful day. 80 Accused averred that he only came to know the three (3) victims in the Dasmarias shooting when he read the newspaper reports about it. He denied knowing prosecution eyewitnesses Agripino Cadenas and Vicente Mangubat before they identified him as the gunman. 81 Accused admitted ownership of a box-type, silver metallic gray Mitsubishi Lancer, with plate number PDW 566. He, however, claimed that said car ceased to be in good running condition after its involvement in an accident in February 1991. Since May 1991 until the day of the shooting, his Lancer car had been parked in the garage of his mother's house in Dasmarias Village. He has not

used this car since then. Accused, however, conceded that although the car was not in good running condition, it could still be used. 82 Accused said that on July 16, 1991, he went to the Makati police station at around 5:00 p.m. upon invitation of Chief of Police Remy Macaspac and Major Lovete who wanted to ask him about the ownership of the Lancer car parked in his mother's house. He readily gave a statement to the Makati police denying complicity in the crime. He submitted himself to a paraffin test. He was accompanied by the Makati police to the Crime Laboratory in Camp Crame and was tested negative for gunpowder nitrates. 83 After the test, he asked the Makati policemen to accompany him to the NBI for he
had earlier committed to his mother that he would present himself to Director Lim. 84

He arrived at Director Lim's office at about 9:30 to 10:00 p.m. He furnished Lim with the statement he earlier gave to the Makati police. Thereafter, Lim detained him at the NBI against his will. 85 The following day, July 17, 1991, Lim and his agents brought him to the Manila Hotel for breakfast. When they returned to the NBI, he was asked to proceed to Lim's office. On his way, he saw a lineup formed inside Lim's office. The NBI agents forced him to join the lineup and placed him in the number seven (7) slot. He observed that the man who was to identify him was already in the room. As soon as he walked up to the lineup, Cadenas identified him as the gunman. 86 A second identification was made on the same day at a house in Forbes Park. The NBI agents brought him to Forbes Park but he never saw Jussi Leino who allegedly identified him as the gunman in a lineup. 87 A third identification was conducted on July 24, 1991. He was then seated at the office of Ranin for he refused to join another lineup. Despite his protest, the NBI agents insisted on the conduct of the identification and ordered a group of men to line up alongside him. While thus seated, he was identified by Mangubat as the gunman. He complained that he was not assisted by counsel at any stage of said investigation. 88 The defense also presented CLAUDIO TEEHANKEE III, son of accused Claudio Teehankee, Jr. He testified that from May 1989 to February 1991, he had been using his father's Lancer car bearing plate number PDW 566 in going to school. 89 In February 1991, while driving his father's Lancer car, he accidentally hit a bicycle driver and two (2) trucks parked at the side of the road. The accident resulted in the death of the bicycle driver and damage to his father's car, 90 especially on its body. The timing of the engine became a little off and the
car was hard to start. They had the car repaired at Reliable Shop located in Banawe Street, Quezon city. After a month, he brought the car to the residence of his grandmother, Pilar Teehankee, at Dasmarias Village, Makati. He personally started the car's engine and drove it to Makati from the shop in Quezon City. He did not bring the car to their house in Pasig for it was still scheduled for further repairs and they preferred to have the repair done in a shop in Makati. Teehankee III claimed that from that time on, he was prohibited by his father from using the car because of his careless driving. He kept the keys to the car and since he was busy in school, no further repair on said car had been made. 91

Accused also imputed the commission of the crimes at bar to Anders Hultman, adoptive father of deceased victim Maureen Hultman. He capitalized on a newspaper report that the gunman may have been an overprotective father. This theory was formed when an eyewitness allegedly overheard Maureen pleading to the gunman: "Huwag Daddy. Huwag, Daddy." The defense presented Anders Hultman as a hostile witness.

ANDERS HULTMAN, testified that he is a Swedish national. He and Vivian Hultman were married in the Philippines in 1981. Vivian had two (2) children by her previous marriage, one of whom was Maureen. He legally adopted Vivian's two (2) daughters in 1991. He and Vivian had three (3) children of their own. 92 The defense confronted Anders with one of the angles of the crime in the initial stage of the investigation, i.e., that Maureen was overhead pleading to the gunman: "Huwag, Daddy. Huwag, Daddy." Anders explained that Maureen could not have uttered those words for Maureen never spoke Tagalog. He also said that all his children call him "Papa," not "Daddy." 93 On July 12, 1991, he and Vivian permitted Maureen to have a night out but instructed her to be home by 2:00 a.m. Maureen just received her first salary in her first job and she wanted to celebrate with friends. At the time of the shooting, he and his wife were sleeping in their house. He woke up at around 5:15 a.m. of July 13, 1991 when a security guard came to their house and informed them about the killings. 94 Anders admitted he had been vocal about the VIP treatment accorded to accused at the Makati municipal jail. On several occasions, he checked on accused in jail and discovered that accused was not in his cell. The jail guards even covered up accused's whereabouts. His complaint was investigated by the Congressional Committee on Crime Prevention, headed by Congressman Concepcion. 95 The defense also presented two (2) Makati policemen, PAT. JAMES F. BALDADO and SPO3 ALBERTO FERNANDEZ, who investigated the shooting. Pat. Baldado testified that in the course of his investigation, he learned from Mr. Jose Montao that he sold his white Lancer car, with plate number PKX 566, to Saldaa Lending Investors in February 1991. This car was assigned to Ben Conti, Operations Manager of said company and was in the residence of Conti at the time of the shooting. The other witnesses he interviewed confirmed that Montao's white Lancer car was not in the vicinity of Montao's residence at the time of the incident. 96 SPO3 Fernandez testified that he interviewed security guard Vicente Mangubat. Mangubat saw the gunman and the get-away car but could not give the central letters of the car's license plate. Fernandez went to one of the houses at the corner of Mahogany and Caballero Streets and asked the maid therein if he could use the phone. After placing a call, the maid told him that he saw the gunman and heard one of the victims say: "Daddy, don't shoot. Don't, don't." Fernandez tried to get the maid's name but the latter refused. The defense did not present this maid in court nor asked the court to subpoena her to testify. Neither was the alleged statement of the maid included in the Progress Report (Exhibit "13") prepared by the Makati police investigators. 97 SPO3 Fernandez saw Mangubat the next time on July 16, 1991 when he and Baldado fetched the latter at Dasmarias Village for identification of the gunman at the Makati police station. At the police station, Fernandez and Baldado posted Mangubat at the lobby. After a few minutes, accused and company arrived. When accused passed by them, they instructed Mangubat to look around and see if he could identify the gunman. Mangubat failed to identify accused. Mangubat told Fernandez that the gunman was younger and shorter than accused. 98 SPO3 Fernandez also took the statement of security guard Domingo Florece (Exhibit "MM"). It was signed by Florece in his presence. In said statement, Florece described the gunman's car as "medyo puti" (somewhat white).99

ELIZABETH AYONON, forensic chemist of the PNP Crime Laboratory, testified on the paraffin test she conducted on July 17, 1991 on both hands of accused. 100 As per Chemistry Report No. C 27491, 101 the test yielded a negative result of gunpowder nitrates on accused's hands. In said Report, she noted that accused was subjected to paraffin test more than seventy-two (72) hours after the shooting incident. She explained that 72 hours is the reasonable period within which nitrate residues may not be removed by ordinary washing and would remain on the hands of a person who has fired a gun. 102

ATTY. MANUEL Q. MALVAR, one of accused's counsel of record, also took the stand for the defense. He testified that in the course of handling the cases, he was able to confer with Ponferrada, Cadenas' supervisor at the Security agency where Cadenas was employed. Ponferrada informed him that Cadenas confided to him that he was tortured at the NBI and was compelled to execute a statement. Ponferrada, allegedly, refused to testify. Atty. Malvar, however, admitted the defense did not compel the attendance of Ponferrada by subpoena. On rebuttal, Cadenas denied the torture story. Atty. Malvar also admitted that he and Atty. Jimenez were aware of the irregularities committed in the off-court identification of their client. When asked what he did to remedy this perceived irregularity, Malvar said he objected to the conduct of the lineup. When further pressed whether he filed a petition for review raising this issue with the Department of Justice upon the filing of the cases therewith, he said he did not. He offered the excuse that he deferred to Atty. Jimenez, the principal counsel of accused at that time. He also declared that although they knew that arraignment would mean waiver of the alleged irregularities in the conduct of the investigation and preliminary investigation, he and Atty. Jimenez allowed accused to be arraigned. 103 The defense likewise relied on a number of news accounts reporting the progress in the investigation of the case. It presented seven (7) newspaper reporters as witnesses, viz: Nestor Barrameda of the Manila Times, Martin Marfil and Dave Veridiano of the Philippine Daily Inquirer, Nida Mendoza of Malaya, Itchie Kabayan and Alex Allan of the People's Journal and Elena Aben of the Manila Bulletin. The bulk of defense evidence consists of newspaper clippings and the testimonies of the news reporters, thus: NESTOR BARRAMEDA, a news reporter of the Manila Times identified two (2) news reports as having been partly written by him. One was a news item, entitled: "JUSTICE DEP'T ORDERS PROBE OF THREE METRO KILLINGS" (Exhibit "1"), appearing on the July 16, 1991 issue of the Manila Times. 104 He, however, clarified that a news report is usually the product of collaborative work
among several reporters. They follow the practice of pooling news reports where several reporters are tasked to cover one subject matter. The news editor then compiles the different reports they file and summarizes them into one story. 105

The defense lifted only certain portions of Exhibit "1" and marked them in evidence as follows: Exhibit "1-A": Bello directed NBI Deputy Director Epimaco Velasco to take over the investigation of the murders of Roland Chapman, 21, Eldon Maguan, 25, and three members of a family Estrellita Vizconde and her daughters, Carmela, 19, and Anne Marie Jennifer, 7. Exhibit "1-B"

Police said that Chapman's assailant could have been angered when Hultman, a 10th grader at the International School in Makati was escorted home by Chapman after going to a disco. Exhibit "1-C" The lone gunman, witnesses told police, first pistol-whipped Hultman. Exhibit "l-D" The same witnesses said Chapman and Leino were shot when they tried to escape. Exhibit "1-E" Other angles Velasco said "we are pursuing two angles" in the Chapman murder. One, he said, is the jealousy angle and the other is a "highly sensitive" matter that might involve influential people. 106 Barrameda testified that he had no personal knowledge of the content of the news items marked as Exhibits "1-C" to "1-D". He just culled them from previous news reports of other newspapers. He admitted that the only portion he wrote based on an actual interview with NBI Asst. Director Velasco was Exhibit "I-E." Barrameda identified another news item in the July 23, 1991 issue of the Manila Times, entitled: "NBI INSISTS IT HAS "RIGHT" SUSPECT IN CHAPMAN SLAY" which was marked as Exhibit "2." Certain portions thereof, which were not written by Barrameda, 107 were lifted by the defense and
offered in evidence, viz:

Exhibit "2-a" Superintendent Lucas Managuelod, CIS director for the national capital region, claims, however, that another security guard, Vic Mangubat, had testified before the police that another man, not Teehankee, had fired at Chapman and his companions. Exhibit "2-b" The CIS official added that the absence of nitrite or powder burns on Teehankee's hands as shown by paraffin tests at the CIS laboratory indicated that he may not have fired the gun. 108 MARTIN MARFIL, a reporter of the Philippine Daily Inquirer identified two (2) newspaper clippings which were partly written by him. One news item, which appeared on the July 17, 1991 issue of the Philippine Daily Inquirer, was entitled: "FBI JOINS PROBE OF DASMA SLAY" (Exhibit "3"). 109 Again, the defense marked in evidence certain portions of Exhibit "3", thus:

Exhibit "3-a" Witnesses said Hultman talked with the gunman whom she called "Daddy" shortly before Chapman's shooting. Exhibit "3-b" But Ranin said they were also looking into reports that Hultman was a dancer before she was adopted by her foster parent. Exhibit "3-c" Investigations showed that the gunman sped along Caballero street inside the village after the shooting and was believed to have proceeded toward Forbes Park using the Palm street gate. On cross-examination, Marfil admitted that he did not write Exhibits "3-a" and "3-c". He just reiterated previous reports in other newspapers. They were based on speculations. Marfil also wrote some portions of a news item, entitled: "TEEHANKEE SON HELD FOR DASMA SLAY," which appeared on the July 18, 1991 issue of the Philippine Daily Inquirer (Exhibit "4"), viz: Exhibit "4-B" According to NBI Director Alfredo Lim, the break in the case came when the witness showed up and said that the gunman was on board a silver-metallic Lancer. Exhibit "4-C" The witness said the gunman was standing a few feet away near the car and was talking to Hultman, who was shouting "Huwag! Daddy!" several times. 110 Marfil's source of information was Director Lim. On cross-examination, Marfil admitted that the news reports marked as Exhibits "3" and "4" were written based on information available at that time. 111 NIDA MENDOZA, a reporter of the Malaya identified a news report, entitled: "TEEHANKEE SON HELD ON DASMA SLAYING," which appeared on the July 18, 1991 issue of Malaya. She testified that she wrote a portion thereof, marked as Exhibit "5-c", and the sources of her information were several Makati policemen. 112 Exhibit "5-c" reads: Makati policemen, meanwhile, disputed NBI accounts that Teehankee was arrested at his house. They said Teehankee, the last remaining owner of a car with plate control number 566 who had not been questioned, voluntarily went to police headquarters upon invitation of Makati police chief Superintendent Remy Macaspac. 113 The defense presented EXHIBITS "1-5" to prove: (a) the alleged concerted effort of the investigators to implicate accused as the lone gunman; (b) that there were other suspects aside from accused and that someone whom Maureen called as "Daddy" was the actual gunman; (c) that the initial police

investigation showed that the gunman's car was a white Lancer with plate no. 566; and, (d) that after the NBI took over the investigation, the white Lancer car of the gunman became a silver gray Lancer of accused and thereafter, he became the gunman. ITCHIE CABAYAN, a reporter of the People's Journal identified the portions she wrote in the news item, entitled: ''I WILL HOUND YOU", which appeared on the October 24, 1991 issue of People's Journal (Exhibit "6"). She identified the source of her information as Mr. Anders Hultman himself. 114 The portions thereof were marked in evidence by the defense, viz: Exhibit "6-a" "I will be visiting him often and at the most unexpected occasion," Hultman said the day after his 17-year old daughter was cremated. 115
Exhibit "6-b"

The day Maureen died, a congressional hearing granted the Hultman family's request for permission to visit Teehankee in his cell "at anytime of their choice." Exhibit "6-c" "If on my next visit he still refuses to come out and is still hiding behind the curtain," Hultman said, "Congress told me that I can take the curtain down and jail authorities will pull him out." 116 ALEX ALLAN, also a reporter of People's Journal co-wrote the news item marked as Exhibit "6". Specifically, he wrote Exhibits "6-d" and "6-e" 117 which read: Exhibit "6-d" "Kaawaawa naman ang mga Hultmans, tulungan natin sila," Ong was quoted as telling Vergel de Dios. Exhibit "6-e" BIR insiders said Ong has shown a keen interest in the Chapman-Hultman, Vizconde and Eldon Maguan cases because he belongs to a secret but very influential multisectoral group monitoring graft and corruption and other crimes in high levels of government and society. 118 Allan was not able to check or verify the information in Exhibit "6-e" given to him by BIR insiders for the latter refused to be identified. 119 Exhibit "6" and its sub-markings were offered to prove: (a) the alleged blind and consuming personal rage and bias of Anders Hultman against accused; and (b) the unwarranted pressure, prejudice and prejudgment by some congressional leaders in favor of the Hultmans in violation of due process. DAVE VERIDIANO, a reporter of the Philippine Daily Inquirer, identified the news account which appeared on the July 16, 1991 issue of the Inquirer, entitled: "DASMA SLAY SUSPECT

IDENTIFIED" (Exhibit "7"). He wrote a portion of said article (Exhibit "7-c") and the source of his information was Camp Crame. 120 It reads: Exhibit "7-c" Witnesses said the gunman fled aboard a white Mitsubishi Lancer with plate number "566." The witnesses cannot tell the plate's control letters. 121 Veridiano likewise identified a news item which appeared on the July 1991 issue of the Inquirer, entitled: "N.B.I. FINDINGS DISPUTED, SECOND WITNESS TAGS TEEHANKEE" (Exhibit "8"). The portions of said news item which he wrote were marked in evidence by the defense, viz: Exhibit "8-a" At the Criminal Investigation Service, however, an investigator who asked not to be identified insisted that the NBI got the wrong man. The NBI has taken over the case from the CIS. Exhibit "8-c" He said the CIS will shortly identify the suspect killer whom he described as "resembling Teehankee but looks much younger." Exhibit "8-e" The source said that the police's "prime witness," identified only as Mangubat, saw everything that happened in the early morning of July 13. The witness, however, failed to identify Teehankee as the gunman. 122 Veridiano was shown another news report, entitled: "CIS GIVES UP CHAPMAN SLAY CASE", which appeared on the July 26, 1991 issue of the Philippine Daily Inquirer (Exhibit 9). 123 He wrote the entire
news account, 124 portions of which were marked by the defense in evidence, thus:

Exhibit "9-a" The CIS pulled out from the case a day after its so-called "surprise witness" picked Claudio Teehankee, Jr. from an NBI lineup. He gathered this information from his source but he was not able to interview Mangubat himself. 125
Exhibit "9-b"

Sira ulo pala siya (Mangubat). Ilang beses kong pinarada sa kanya si Bobby (Teehankee Jr.) puro iling siya. Hindi raw ito ang suspect. Ngayon bigla niyang ituturo, said a red-faced Makati investigator who, as usual, did not want to be identified. ELENA ABEN, a reporter from the Manila Bulletin, wrote the entire article, entitled: "US DIPLOMAT'S SON SHOT DEAD", which appeared on the July 14, 1991 issue of the Manila Bulletin (Exhibit "10"). 126 Two (2) portions thereof were marked as evidence by the defense, viz:

Exhibit "10-a-1" The victims were on their way home in Olanileino's Mercedez Benz with a diplomat's plate number when a white Lancer with plate number PKX-566 blocked its path. Exhibit "10-a-2" US embassy spokesman Stanley Schrager said Chapman's father is a communications specialist. He said the shooting could be the result of an altercation on the street. 127 Finally, VICTOR VEGA, a reporter of the Manila Bulletin, identified the news account he wrote which appeared on the July 16, 1991 issue of the Bulletin, entitled: "4 MURDER SUSPECTS FALL" (Exhibit "22"). Portions of said news item were marked by the defense as follows: Exhibit "22-b" . . . He was shot to death by a group of armed men at the corner of Mahogany and Caballero Sts. in Dasmarias Village at past 4 a.m. Friday. Exhibit "22-c" The NBI sources said that jealousy sparked the slaying of Chapman who was killed in front of his friends on his way home from a party. The armed men, on board a white Lancer car, blocked the path of the victim's Mercedes Benz car inside the village before the shooting. Exhibit "22-a-1" The gunmen then alighted from their car and at gunpoint ordered Chapman to alight from the car. They shot Chapman several times in the body, while his companions identified as Maureen Hultman, and Jussi Olanileino, were seriously wounded when the gunmen sprayed the car with bullets. The gunmen escaped after the shooting. Lim said he will announce later the names of the detained suspects after their initial investigation. 128 Finally, his article, entitled: "MAKATI SLAY SUSPECT IDENTIFIED" (Exhibit "23"), which appeared on the July 18, 1991 issue of the Manila Bulletin, was introduced by the defense in evidence as follows: Exhibit "23-a-1" The NBI said Teehankee was one of four men who blocked Chapman's car on Mahogany St. in the subdivision. Exhibit "23-a-2" Witnesses said they saw Teehankee order Chapman and his two companions, Maureen Hultman and Jussi Olanileino, a Finn, to get out of their car.

Exhibit "23-a-3" They identified the car used by the suspect, a silver gray Lancer with plate No. PDW 566. They added that they saw the same car in the garage of the Teehankee family. 129 On cross-examination, Vega declared that the source of his two (a) stories was the NBI and they were based on information available to the NBI at that time 130 The prosecution recalled to the stand eyewitness VICENTE MANGUBAT as its rebuttal witness. Mangubat insisted that he was able to identify accused when he saw the latter at the Makati police station. Her reiterated that the next day, Pat. Baldado of the Makati police went to his place of work in Dasmarias Village and asked him if he was sure about the identity of the gunman. He told Baldado he was positive. Baldado then said him he would no longer require him to sign the statement he prepared for him earlier. 131 LEONORA C. VALLADO, chief of the Forensic Chemistry Division of the NBI, was also presented as a prosecution rebuttal witness. She testified that extensive washing of hands or excessive perspiration can eliminate gunpowder nitrates lodged on skin pores of the hands. Continued washing with hot water can induce perspiration and remove nitrate residue embedded in the skin pores. Application of vinegar on the hand can register the same effect. 132 She testified that their practice at the NBI is to take the paraffin test on a suspect within 72 hours from the time of the alleged firing of a gun, during which time, any possible trace of nitrate may still be found. 133 She divulged that questions have been raised regarding the reliability of the paraffin test. She related that she once attended a training in Baguio City where they tried to test the accuracy of a paraffin test. In said training, two (2) NBI agents fired a .38 revolver. One of them washed his hands. They then subjected both agents to a paraffin test using diphylamine reagent. Both yielded a negative result. Thus, she opined, the result of a paraffin test should merely be taken as a corroborative evidence and evaluated together with other physical evidence. 134 The records show that the case was set for hearing on October 29, 1992 for the presentation by the defense of sur-rebuttal evidence. However, a day before the scheduled hearing, the defense filed a Constancia 135manifesting that it shall waive its right to present sur-rebuttal evidence, the same being
unneccesary. The defense, however, declared that this is without prejudice to the presentation of its evidence in the trial proper should the same be necessary.

At the hearing of October 29, 1992, the defense counsels did not appear. The prosecution moved in open court that the main cases and the petition for bail be submitted for decision in view of the absence of defense counsels who had manifested that they would no longer present their surrebuttal evidence. The motion was granted and the parties were given ten (10) days from receipt of the Order within which to submit their simultaneous Memorandum. 136 It does not appear that the
defense objected to this Order. The records show that the defense even filed a motion asking for additional time to file its Memorandum. 137 In due time, both parties submitted their respective Memorandum.

On December 22, 1992, the trial court convicted accused CLAUDIO TEEHANKEE, JR. of the crimes charged. 138The dispositive portion of the Decision reads: WHEREFORE, premises considered, the Court hereby renders judgment:

(1) In criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Roland John Chapman, and sentencing said accused to suffer imprisonment of Reclusion perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50, 000.00), Philippine Currency, plus moderate or temperate and exemplary damages in the sum of Five Hundred Thousand Pesos (P500,000.00), Philippine Currency; (2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of Reclusion Perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50,000.00), Philippine Currency, plus the sums of Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83), Philippine Currency, as actual damages; Thirteen Million Pesos (P13,000,000.00), Philippine Currency, for loss of earning capacity of the said deceased; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages; (3) In Criminal Case No. 91-4607, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum, and to pay the said offended party the sum of Thirty Thousand Pesos (P30,000.00), Philippine Currency; plus the sum of One Hundred Eighteen Thousand Three Hundred Sixty-Nine Pesos and Eighty-Four Centavos (P118,369.84), Philippine Currency, and another sum equivalent in Philippine Pesos of U.S. $55,600.00, both as actual damages; an amount equivalent in Philippine Pesos of U.S. $40,000.00, as loss of earning capacity of said offended party; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages. (4) In all these three cases ordering said accused to pay all the offended parties the sum of Three Million Pesos (P3,000,000.00), Philippine Currency, as and for attorney's fees and expenses of litigation; and (5) To pay the costs in these three cases. Consequently the petition for bail is hereby denied for utter lack of merit. SO ORDERED. Accused hired a new counsel in the person of Atty. Nicanor B. Gatmaytan, Jr. He filed a Motion for New Trial, 139alleging for the first time that the trial court erred in considering as submitted for decision not
only the petition for bail but also the case on the merits. He claimed that accused's right to adduce further evidence was violated. His motion for new trial was denied.

Accused interposed the present appeal. 140 He contends that: I. THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED HAD BEEN POSITIVELY IDENTIFIED BY JUSSI LEINO, CADENAS AND MANGUBAT AS THE

ONE WHO SHOT HIM, ROLAND CHAPMAN AND MAUREEN NAVARRO HULTMAN. II. THE PROSECUTION HAS FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT. III. THE PUBLICITY GIVEN THE CASE AGAINST THE APPELLANT WAS MASSIVE, OVERWHELMING, AND PREJUDICIAL AS TO EFFECTIVELY DEPRIVE THE ACCUSED OF RIGHT TO IMPARTIAL TRIAL. IV. THE LOWER COURT ERRED IN FINDING THAT THE KILLING OF CHAPMAN AND HULTMAN AND THE SHOOTING OF LEINO WAS ATTENDED BY TREACHERY. V. THE LOWER COURT ERRED IN GRANTING EXORBITANT MORAL AND EXEMPLARY DAMAGES AND LOSS OF EARNING CAPACITY. VI. THE LOWER COURT ERRED IN AWARDING ATTORNEY'S FEES OF THREE MILLION PESOS (P3,000,000.00). VII. THE LOWER COURT ERRED IN RENDERING JUDGMENT ON THE MERITS AND ON THE PETITION FOR BAIL AT THE SAME TIME WITHOUT GIVING THE ACCUSED THE OPPORTUNITY TO PRESENT ADDITIONAL EVIDENCE IN HIS DEFENSE ON THE MERITS OF THE CASE AND DENYING THE ACCUSED'S MOTION FOR NEW TRIAL. We shall discuss these alleged errors in seriatim. Appellant was convicted on the strength of the testimonies of three (3) eyewitnesses who positively identified him as the gunman. He vigorously assails his out-of-court identification by these eyewitnesses. He starts by trying to discredit the eyeball account of Jussi Leino, the lone surviving victim of the crimes at bar. Appellant urges: First, that Leino's identification of him outside an unoccupied house in Forbes Park was highly irregular. Second, that Leino saw his pictures on television and the newspapers before he identified him. Third, that Leino's interview at the hospital was never put in writing. Fourth, that the sketch of appellant based on the description given by Leino to the CIS agents was suppressed by the NBI. It is surmised that the sketch must have been among the evidence turned over to the NBI when the latter assumed jurisdiction over the investigation. Lastly, that Leino could not have remembered the face of appellant. The shooting lasted for only five (5) minutes. During that period, his gaze could not have been fixed only on the gunman's face. His senses were also dulled by the five (5) bottles of beer he imbibed that night.

It is understandable for appellant to assail his out-of-court identification by the prosecution witnesses in his first assignment of error. Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution. Yet, while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or DNA testing. Some authors even describe eyewitness evidence as "inherently suspect." 141 The causes of misidentification are known, thus: xxx xxx xxx Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences. (Emphasis Supplied) 142 Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru lineups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-ofcourt identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the identification procedure. 143 Using the totality of circumstances test, we hold that the alleged irregularities cited by appellant did not result in his misidentification nor was he denied due process. There is nothing wrong in Leino's identification of appellant in an unoccupied house in Forbes Park. The records reveal that this mode was resorted to by the authorities for security reasons. 144 The need for security even compelled that
Leino be fetched and escorted from his house in Forbes Park by U.S. embassy security officials and brought to the house where he was to make the identification. The Leinos refused to have the identification at the NBI office as it was cramped with people and with high security risk. 145 Leino's fear for his safety was not irrational. He and his companions had been shot in cold blood in one of the exclusive, supposedly safe subdivisions in the metropolis. Atty. Salvador Ranin, Chief of the Special Operations Group of the NBI, correctly testified that there is no hard and fast rule as to the place where suspects are identified by witnesses. Identification may be done in open field. It is often done in hospitals while the crime and the criminal are still fresh in the mind of the victim. 146

Appellant cannot also gripe that Leino saw his pictures and heard radio and TV accounts of the shooting before he personally identified him. Indeed, the records show that on July 15, 1991, while Leino was still in the hospital, he was shown three (3) pictures of different men by the investigators. He identified appellant as the gunman from these pictures. He, however, categorically stated that, before the mug shot identification, he has not seen any picture of appellant or read any report relative to the shooting incident. 147 The burden is on appellant to prove that his mug shot identification
was unduly suggestive. Failing proof of impermissible suggestiveness, he cannot complain about the admission of his out-of-court identification by Leino.

We have no reason to doubt the correctness of appellant's identification by Leino. The scene of the crime was well-lighted by a Meralco lamp post. Appellant was merely 2-3 meters away when he shot Leino. The incident happened for a full five (5) minutes. Leino had no ill-motive to falsely testify against appellant. His testimony at the trial was straightforward. He was unshaken by the brutal cross-examination of the defense counsels. He never wavered in his identification of appellant. When asked how sure he was that appellant was responsible for the crime, he confidently replied: "I'm very sure. It could not have been somebody else." 148 Appellant cannot likewise capitalize on the failure of the investigators to reduce to a sworn statement the information revealed by Leino during his hospital interviews. It was sufficiently established that Leino's extensive injuries, especially the injury to his tongue, limited his mobility. The day he identified appellant in the line-up, he was still physically unable to speak. He was being fed through a tube inserted in his throat. 149 There is also no rule of evidence which requires the rejection of the
testimony of a witness whose statement has not been priorly reduced to writing. Reliance by appellant on the case of People v. Alindog 150 to erode Leino's credibility is misplaced. In Alindog, accused was acquitted not solely on the basis of delay in taking his statement, but mainly on the finding that the prosecution evidence was, at best, circumstancial and "suspiciosly short in important details," there being no investigation whatsoever conducted by the police.

We also reject appellant's contention that the NBI suppressed the sketch prepared by the CIS on the basis of the description given by Leino. There is nothing on the record to show that said sketch was turned over by the CIS to the NBI which could warrant a presumption that the sketch was suppressed. The suspicion that the sketch did not resemble appellant is not evidence. It is unmitigated guesswork. We are not likewise impressed with the contention that it was incredible for Leino to have remembered appellant's face when the incident happened within a span of five (5) minutes. Five (5) minutes is not a short time for Leino to etch in his mind the picture of appellant. Experience shows that precisely because of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, can remember with a high degree of reliability the identity of criminals. 151 We have ruled that the natural reaction of victims of criminal violence is to strive to see the
appearance of their assailants and observe the manner the crime was committed. Most often, the face end body movements of the assailant create an impression which cannot be easily erased from their memory. 152 In the case at bar, there is absolutely no improper motive for Leino to impute a serious crime to appellant. The victims and appellant were unknown to each other before their chance encounter. If Leino identified appellant, it must be because appellant was the real culprit.

Appellant also assails his identification by Cadenas. He contends that Cadenas did not witness the crime. He stresses that when the Dasmarias security force and the Makati police conducted an onthe-spot investigation on the day of the incident, neither came across Cadenas. The next day, in the afternoon of July 14, 1991, an NBI agent interviewed Cadenas and asked if he saw the incident. He merely replied: "Nakita ko pero patay na." He did not volunteer information to anyone as to what he supposedly witnessed. That same night, the NBI subpoenaed him for investigation. He went to the NBI the next morning. It was only the next day, July 16, 1991, that he gave his statement to the NBI. Cadenas allegedly told Ponferrada, his supervisor, that the NBI tortured him. We reject appellant's submission. Cadenas' initial reluctance to reveal to the authorities what he witnessed was sufficiently explained during the trial. He related that he feared for his and his family's safety. His fear was not imaginary. He saw with his own eyes the senseless violence perpetrated by appellant. He knew appellant belonged to an influential family. It was only after consistent prodding and assurance of protection from NBI officials that he agreed to cooperate with the authorities. 153 The Court has taken judicial notice of the natural reticence of witnesses to get involved in
the solution of crimes considering the risk to their lives and limbs. In light of these all too real risks, the

court has not considered the initial reluctance of fear-gripped witnesses to cooperate with authorities as an authorities as an indicium of credibility. 154 It will not depart from this ruling.

Appellant's assertion that Cadenas was tortured by the NBI is not borne out by the records. Supposedly, Cadenas passed on to his superior, a certain Ponferrada, information about his torture. The allegation is an out and out hearsay as Ponferrada was not presented in the witness stand. Cadenas himself stoutly denied this allegation of torture. The claim of torture is also belied by the fact that Cadenas' entire family was allowed to stay with him at the NBI headquarters and likewise extended protection. 155 Appellant then discredits his identification by VICENTE MANGUBAT, citing the testimony of defense witness Pat. James Baldado of the Makati Police. Pat. Baldado testified that Mangubat failed to identify appellant as the gunman the first time he was brought to the Makati police station. Mangubat, however, belied Baldado's story. He declared he positively identified appellant as the gunman at the Makati police station. He averred that the day after he identified appellant, Pat. Baldado returned to his place of work in Dasmarias and asked him again whether appellant was the gunman. Again, he replied in the affirmative. Forthwith, Pat. Baldado said he would no longer ask him to sign a statement (Exhibit "HHH") 156 earlier prepared by Baldado. In said statement
previously prepared by Baldado, Mangubat was supposed to state that appellant, whom he saw at the Makati police station, was NOT the gunman. We give more weight to the testimony of Mangubat. We find nothing in the records to suspect that Mangubat would perjure himself. The Court cannot be as generous to Pat. Baldado of the Makati Police. Mr. Hultman has proved that the Makati police, including some of its jail officials, gave appellant favored treatment while in their custody. The anomaly triggered nothing less than a congressional investigation.

II We now rule on appellant's second assignment of error, i.e., that the trial court erred in not holding that the prosecution failed to establish his guilt beyond reasonable doubt. First, he claims the trial court erred in citing in its Decision his involvement in previous shooting incidents for this contravenes the rule 157 that evidence that one did or omitted to do a certain thing at
one time is not admissible to prove that he did or omitted to do the same or similar thing at another time. Second, the NBI failed to conduct an examination to compare the bullets fired from the gun at the scene of the crime with the bullets recovered from the body of Chapman. Third, the prosecution eyewitnesses described the gunman's car as white, but the trial court found it to be silver mettalic gray. Fourth, appellant could not have been the gunman for Mangubat, in his statement dated July 15, 1991, said that he overheard the victim Maureen Hultman plead to the gunman, thus: "Please, don't shoot me and don't kill me. I promise Mommy, Daddy." Appellant also contends that a maid in a house near the scene of the crime told Makati police Alberto Fernandez that she heard Maureen say: "Daddy don't shoot. Don't." Fifth, the NBI towed accused's car from Dasmarias Village to the NBI office which proved that the same was not in good running condition. Lastly, the result of the paraffin test conducted on appellant showed he was negative of nitrates.

Appellant points to other possible suspects, viz:. ANDERS HULTMAN, since one of the eyewitnesses was quoted in the newspapers as having overheard Maureen plead to the gunman: "Huwag, Daddy."; and, (b) JOSE MONTAO, another resident of Dasmarias Village, who had a white Lancer car, also bearing license plate number 566. We reject appellant's thesis as bereft of merit. Appellant cannot hope to exculpate himself simply because the trial judge violated the rule on res inter alios actawhen he considered his involvement in previous shooting incidents. This stance is a

specie of a mid-1800 rule known as the English Exchequer Rule pursuant to which "a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required a new trial." 158 The Exchequer rule has long been laid to rest for even English
appellate courts now disregard an error in the admission of evidence "unless in its opinion, some substantial wrong or miscarriage (of justice) has been occasioned." 159 American courts adopted this approach especially after the enactment of a 1915 federal statute which required a federal appellate court to "give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 160 We have likewise followed the harmless error rule in our jurisdiction. In dealing with evidence improperly admitted in trial, we examine its damaging quality and its impact to the substantive rights of the litigant . If the impact is slight and insignificant, we disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party. 161

In the case at bar, the reference by the trial judge to reports about the troublesome character of appellant is a harmless error. The reference is not the linchpin of the inculpatory evidence appreciated by the trial judge in convicting appellant. As aforestated, the appellant was convicted mainly because of his identification by three (3) eyewitnesses with high credibility. The NBI may have also failed to compare the bullets fired from the fatal gun with the bullets found at the scene of the crime. The omission, however, cannot exculpate appellant. The omitted comparison cannot nullify the evidentiary value of the positive identification of appellant. There is also little to the contention of appellant that his Lancer car was not in running condition. Allegedly, this was vicariously proved when the NBI towed his car from Dasmarias Village where it was parked to the NBI office. Again, the argument is negated by the records which show that said car was towed because the NBI could not get its ignition key which was then in the possession of appellant. Clearly, the car was towed not because it was not in running condition. Even appellant's evidence show that said car could run. After its repairs, appellant's son, Claudio Teehankee III, drove it from the repair shop in Banawe, Quezon City to Dasmarias Village, in Makati, where it was parked. 162 Nor are we impressed by the alleged discrepancies in the eyewitnesses' description of the color of the gunman's car. Leino described the car as light-colored; Florece said the car was somewhat white ("medyo puti"); 163Mangubat declared the car was white; 164 and Cadenas testified it was silver metallic
gray. 165 These alleged discrepancies amount to no more than shades of differences and are not meaningful, referring as they do to colors white, somewhat white and silver metallic gray. Considering the speed and shocking nature of the incident which happened before the break of dawn, these slight discrepancies in the description of the car do not make the prosecution eyewitnesses unworthy of credence.

Appellant's attempt to pin the crimes at bar on Anders Hultman, the adoptive father of Maureen Hultman, deserves scant consideration. Appellant cites a newspaper item 166 where Maureen was
allegedly overheard as saying to the gunman: "Huwag, Daddy. Huwag, Daddy." The evidence on record, however, demonstrates that Anders Hultman could not have been the gunman. It was clearly established that Maureen could not have uttered said statement for two (2) reasons: Maureen did not speak Tagalog, and she addressed Anders Hultman as "Papa," not "Daddy." 167 Moreover, Leino outrightly dismissed this suspicion. While still in the hospital and when informed that the Makati police were looking into this possibility, Leino flatly stated that Anders Hultman was NOT the gunman. 168 Leino is a reliable witness.

Appellant cannot also capitalize on the paraffin test showing he was negative of nitrates. Scientific experts concur in the view that the paraffin test has ". . . proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge

of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco." 169 In numerous rulings, we have also recognized several
factors which may bring about the absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands after firing the gun, wears gloves at the time of the shooting, or if the direction of a strong wind is against the gunman at the time of firing. 170 In the case at bar, NBI Forensic Chemist, Leonora Vallado, testified and confirmed that excessive perspiration or washing of hands with the use of warm water or vinegar may also remove gunpowder nitrates on the skin. She likewise opined that the conduct of the paraffin test after more than seventy-two (72) hours from the time of the shooting may not lead to a reliable result for, by such time, the nitrates could have already been removed by washing or perspiration. 171 In the Report 172 on the paraffin test conducted on appellant, Forensic Chemist Elizabeth Ayonon noted that when appellant was tested for the presence of nitrates, more than 72 hours has already lapsed from the time of the alleged shooting.

III In his third assigned error, appellant blames the press for his conviction as he contends that the publicity given to his case impaired his right to an impartial trial. He postulates there was pressure on the trial judge for high-ranking government officials avidly followed the developments in the case (as no less than Vice-President Joseph Estrada and then Department of Justice Secretary Franklin Drilon attended some of the hearings and, President Corazon Aquino even visited victim Maureen Hultman while she was still confined at the hospital). He submits that the trial judge failed to protect him from prejudicial publicity and disruptive influences which attended the prosecution of the cases. He claims there were placards displayed during the hearing of the cases, spectators inside the courtroom clapped their hands and converted the proceedings into a carnival. In another instance, he was allegedly given the "finger sign" by several young people while he was leaving the courtroom on his way back to his cell. We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accused's right to a fair trial for, as well pointed out, "a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field . . . The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting in the police, prosecutors, and judicial processes to extensive public scrutiny and criticism."173 Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. Criticisms against the jury system are mounting and Mark Twain's wit and wisdom put them all in better perspective when he observed: "When a gentleman of high social standing, intelligence, and probity swears that testimony given under the same oath will outweigh with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and

stupidity . . . Why could not the jury law be so altered as to give men of brains and honesty an equal chance with fools and miscreants?" 174 Our judges are learned in the law and trained to disregard offcourt evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et a1., 175 we rejected this standard of possibility of prejudice and adopted the test of
actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.

We have minutely examined the transcripts of the proceedings and they do not disclose that the trial judge allowed the proceedings to turn into a carnival. Nor did he consent to or condone any manifestation of unruly or improper behavior or conduct inside the courtroom during the trial of the case at bar. The transcripts reveal the following: 1. At the August 14, 1991 hearing, the defense counsel called the attention of the court to the visible display of a placard inside the courtroom. Acting on the manifestation, the trial judge immediately directed that the placard be hidden. Only then did he order the start of the arraignment of accused.176
On the same hearing, the defense counsel asked for the exclusion of the media after they had enough opportunity to take pictures. The court granted defense's request, noting that the courtroom was also too crowded. 177 2. During the testimony of Domingo Florece, an argument ensued between the defense lawyer and the fiscal. When part of the audience clapped their hands, the defense counsel invoked Rule 119, Section 13 of the Rules of Court and moved for the exclusion of the public. Assistant Prosecutor Villa-Ignacio objected on the ground that the public was not unruly. The trial judge noted that there were yet no guidelines drafted by the Supreme Court regarding media coverage of the trial proceedings. 178 Collaborating defense counsel, Atty. Malvar, complained that the outpouring of sympathy by spectators inside the courtroom has turned the proceedings into a carnival. He also manifested that he personally saw that when accused was being brought back to his cell from the courtroom, a group of young people were pointing dirty fingers at accused in full view of policemen. Forthwith, the trial judge declared that he could not be dissuaded by public sentiments. He noted that the clapping of hands by the public was just a reaction at the spur of the moment. He then admonished the audience not to repeat it. 179 3. At the hearing of July 14, 1992, the parties again argued on the coverage of the trial by the press. The defense alleged that the media coverage will constitute mistrial and deny accused's constitutional right to due process. It invoked the provision in the Rules of Court which allows the accused to exclude everybody in the courtroom, except the organic personnel. The prosecutor, however, argued that exclusion of the public can be ordered only in prosecution of private offenses and does not apply to murder cases. He added that the public is entitled to observe and witness trial of public offenses. He quoted the U.S. case of Sheppard v. Maxwell 180where it was held: "A responsible press is always regarded as the handmaiden of effective judicial administration especially in the criminal field. The press does not simply publish information about trials but guards

against the miscarriage of justice by subjecting the police, the prosecutors and judicial processes to extensive public scrutiny and criticism. What transpires in the courtrooms public property." The trial judge then ruled that the media should be given a chance to cover the proceedings before the trial proper but, thereafter, he prohibited them from taking pictures during the trial. They were allowed to remain inside the courtroom but were ordered to desist from taking live coverage of the proceedings. 181 4. At the August 14, 1992 hearing, before the hearing began, the trial judge gave the media two (2) minutes to take video coverage and no more. Trial then ensued. 182 5. At the September 8, 1992 hearing, the trial judge again gave the media two (2) minutes to take pictures before the trial proper. Afterwards, the reporters were duly admonished to remain silent, to quietly observe the proceedings and just take down notes. 183 6 On September 10, 1992 before the start of the afternoon session, the judge admonished the media people present in the courtroom to stop taking pictures.

184

Parenthetically, appellant should be the last person to complain against the press for prejudicial coverage of his trial. The records reveal he presented in court no less than seven (7) newspaper reporters and relied heavily on selected portions of their reports for his defense. The defense's documentary evidence consists mostly of newspaper clippings relative to the investigation of the case at bar and which appeared to cast doubt on his guilt. The press cannot be fair and unfair to appellant at the same time. Finally, it would not be amiss to stress that on May 29, 1992, the trial judge voluntarily inhibited himself from further hearing the case at bar to assuage appellant's suspicion of bias and partiality. 185 However, upon elevation of the trial judge's voluntary Order of Inhibition to this Court, we
directed the trial judge to proceed with the trial to speed up the administration of justice. 186 We found nothing in the conduct of the proceedings to stir any suspicion of partiality against the trial judge.

IV In his fourth assigned error, appellant claims that treachery was not present in the killing of Hultman and Chapman, and the wounding of Leino for it was not shown that the gunman consciously and deliberately adopted particular means, methods and forms in the execution of the crime. Appellant asserts that mere suddenness of attack does not prove treachery. The three (3) Informations charged appellant with having committed the crimes at bar with treachery and evident premeditation. Evident premeditation was correctly ruled out by the trial court for, admittedly, the shooting incident was merely a casual encounter or a chance meeting on the street since the victims were unknown to appellant and vice-versa It, however, appreciated the presence of the qualifying circumstance of treachery. We hold that the prosecution failed to prove treachery in the killing of Chapman. Prosecution witness Leino established the sequence of events leading to the shooting. He testified that for no apparent reason, appellant suddenly alighted from his car and accosted him and Maureen Hultman who were then walking along the sidewalk. Appellant questioned who they were and demanded for an I.D. After Leino handed him his I.D., Chapman appeared from behind Leino and asked what was going on. Chapman then stepped down on the sidewalk and inquired from appellant what was wrong. There and then, appellant pushed Chapman, pulled a gun from inside his shirt, and shot him. The gun attack was unexpected. "Why did you shoot me?" was all Chapman could utter.

Concededly, the shooting of Chapman was carried out swiftly and left him with no chance to defend himself. Even then, there is no evidence on record to prove that appellant consciously and deliberately adopted his mode of attack to insure the accomplishment of his criminal design without risk to himself. It appears to us that appellant acted on the spur of the moment. Their meeting was by chance. They were strangers to each other. The time between the initial encounter and the shooting was short and unbroken. The shooting of Chapman was thus the result of a rash and impetuous impulse on the part of appellant rather than a deliberate act of will. We have consistently ruled that mere suddenness of the attack on the victim would not, by itself, constitute treachery. 187Hence, absent any qualifying circumstance, appellant should only be held liable for
Homicide for the shooting and killing of Chapman.

As to the wounding of Jussi Leino and the killing of Maureen Hultman, we hold that treachery clearly attended the commission of the crimes. The evidence shows that after shooting Chapman in cold blood, appellant ordered Leino to sit on the pavement. Maureen became hysterical and wandered to the side of appellant's car. When appellant went after her, Maureen moved around his car and tried to put some distance between them. After a minute or two, appellant got to Maureen and ordered her to sit beside Leino on the pavement. While seated, unarmed and begging for mercy, the two were gunned down by appellant. Clearly, appellant purposely placed his two victims in a completely defenseless position before shooting them. There was an appreciable lapse of time between the killing of Chapman and the shooting of Leino and Hultman a period which appellant used to prepare for a mode of attack which ensured the execution of the crime without risk to himself. Treachery was thus correctly appreciated by the trial court against appellant insofar as the killing of Hultman and the wounding of Leino are concerned. V and VI We come now to the civil liability imposed against appellant. Appellant posits that the awards of moral and exemplary damages and for loss of earning capacity of Maureen Hultman, Roland Chapman and Jussi Leino were exorbitant. He likewise claims that the trial court's award of attorney's fees was excessive. In its Decision, the trial court awarded to Jussi Leino end the heirs of victims Hultman and Chapman the following damages: 1. For the murder of Roland John Chapman, appellant was sentenced to pay the heirs of the deceased the sum of Fifty Thousand Pesos (P50,000.00) as indemnity for death and the sum of Five Hundred Thousand Pesos (P500,000.00) as moderate or temperate and exemplary damages. 2. For the murder of Maureen Navarro Hultman, appellant was sentenced to pay the heirs of the deceased the sum of: Fifty Thousand Pesos (P50,000.00) as indemnity for death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased; and, One Million Pesos as moral, moderate and exemplary damages. 3. For the shooting of Jussi Olavi Leino, appellant was sentenced to pay: Thirty thousand pesos (P30,000.00) as indemnity for the injury; One Hundred Eighteen Thousand Three-Hundred Sixty Nine Pesos and Eighty-Four Centavos (P118,369.84) and the sum equivalent in Philippine pesos of U.S.$55,600.00, both as actual damages; an amount equivalent in Philippine pesos of U.S.$40,000.00, for

loss of earning capacity of Jussi Leino; and, One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages. 4. In all three cases, appellant was also ordered to pay each of the offended parties the sum of One Million Pesos (or a total of three million pesos) for attorney's fees and expenses of litigation. 5. Costs of litigation. 188 The early case of Heirs of Raymundo Castro v. Bustos 189 discussed in detail the matter of damages
recoverable in case of death arising from a felony, thus:

When the commission of a crime results in death, the civil obligations arising therefrom are governed by penal laws, ". . . subject to the provisions of Art. 2177, and of the pertinent provisions of Chapter 2, Preliminary Title on Human Relations, and of Title XVIII of this Book (Book IV) regulating damages." (Art. 1161, Civil Code) Thus, "every person criminally liable for a felony is also civilly liable." (Art. 100, Revised Penal Code). This civil liability, in case the felony involves death, includes indemnification for consequential damages (Art. 104, id.) and said consequential damages in turn include ". . . those suffered by his family or by a third person by reason of the crime." (Art. 107, id.) Since these provisions are subject, however, as above indicated, to certain provisions of the Civil Code, (w)e will now turn to said provisions. The general rule in the Civil Code is that: In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably foreseen by the defendant. (Art. 2202) When, however, the crime committed involves death, there is Art. 2206 which provides thus: The amount of damages for death caused by a crime or quasidelict shall be at least three thousand pesos even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death; (2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an heir called to the descendant's inheritance by law of testate or intestate succession,

may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court; (3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. The amount of P3,000 referred to in the above article has already been increased by this Court first, to P6,000.00 in People v. Amansec, 80 Phil. 426, and lately to P12,000.00 in the case of People v.Pantoja, G.R. No. L-18793, promulgated October 11, 1968 190, and it must be stressed that this amount, as well as the amount of moral
damages, may be adjudicated even without proof of pecuniary loss, the assessment of the moral damages being "left to the discretion of the court, according to the circumstances of each case." (Art. 2216)

Exemplary damages may also be imposed as a part of this civil liability when the crime has been committed with one or more aggravating circumstances, such damages being "separate and distinct from fines and shall be paid to the offended party." (Art. 2230). Exemplary damages cannot however be recovered as a matter of right; the court will decide whether or not they should be given. (Art. 2233) In any event, save as expressly provided in connection with the indemnity for the sole fact of death (1st par., Art. 2206) and is cases wherein exemplary damages are awarded precisely because of the attendance of aggravating circumstances, (Art. 2230) ". . . damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances," (Art. 2204) "but the party suffering the loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question." (Art. 2203) "Interest as a part of the damages, may, in a proper case, be adjudicated in the discretion of the Court." (Art. 2211) As to attorneys' fees and expenses of litigation, the same may be recovered only when exemplary damages have been granted (Art. 2208, par. 1) or . . . when there is a separate civil action. Stated differently, when death occurs as a result of a crime, the heirs of the deceased are entitled to the following items of damages: 1. As indemnity for the death of the victim of the offense P12,000.00 (now P50,000.00), without the need of any evidence or proof of damages, and even though there may have been mitigating circumstances attending the commission of the offense. 2. As indemnity for loss of earning capacity of the deceased an amount to be fixed by the court according to the circumstances of the deceased related to his actual income at the time of death and his probable life expectancy, the said indemnity to be assessed and awarded by the court as a matter of duty, unless the deceased had no earning capacity at said time on account of permanent disability not caused by the accused. If the deceased was obliged to give support, under Art. 291, Civil Code, the recipient who is not an heir, may demand support from the accused for not more than five years, the exact duration to be fixed by the court.

3. As moral damages for mental anguish, an amount to be fixed by the court. This may be recovered even by the illegitimate descendants and ascendants of the deceased. 4. As exemplary damages, when the crime is attended by one or more aggravating circumstances, an amount to be fixed in the discretion of the court, the same to be considered separate from fines. 5. As attorney's fees and expenses of litigation, the actual amount thereof, (but only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded). 6. Interests in the proper cases. 7. It must be emphasized that the indemnities for loss of earning capacity of the deceased and for moral damages are recoverable separately from and in addition to the fixed sum of P12,000.00 (now P50,000.00) corresponding to the indemnity for the sole fact of death, and that these damages may, however, be respectively increased or lessened according to the mitigating or aggravating circumstances, except items 1 and 4 above, for obvious reasons. 191 We shall first review the damages awarded to the heirs of ROLAND JOHN CHAPMAN in light of the law and the case law. Appellant claims that the award of Five Hundred Thousand (P500,000.00) pesos as moderate or temperate and exemplary damages to the heirs of Roland John Chapman was baseless. We start with the observation that the trial court should not have lumped together the awards for moderate or temperate and exemplary damages at Five Hundred Thousand Pesos (P500,000.00), without specifying the particular amount which corresponds to each, as they are of a different kind. We shall, however, consider their propriety and reasonableness. The amount of Five Hundred Thousand (P500,000.00) pesos cannot be given as temperate or moderate damages for the records do not show any basis for sustaining the award. Nor can it be given as exemplary damages. The killing of Chapman was not attended by either evident premeditation or treachery. Be that as it may, the award can be considered as one for moral damages under Article 2206 (3) of the New Civil Code. 192 It states: Art. 2206. The amount of damages for death caused by a crime . . . shall be at least (fifty thousand pesos, under current jurisprudence) . . . In addition: xxx xxx xxx (3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. Moreover, considering the shocking and senseless aggression committed by appellant, we increase the amount of moral damages to One Million (P1,000,000.00) pesos for the death of Chapman.

We next rule on the legality of damages awarded to the heirs of MAUREEN NAVARRO HULTMAN. Appellant argues that the damages for the death of Maureen should be awarded to her mother, Vivian Hultman, and her natural father. He contends that under Article 352 of the New Civil Code, Anders Hultman as adoptive father of Maureen, is not entitled to said award. Only the parents by nature of Maureen should inherit from her. We reject the argument. Under the Family Code which was already in effect at the time of Maureen's death, Anders Hultman, as adoptive father, is entitled to the award made by the trial court. Article 190 of the Family Code provides: xxx xxx xxx (2) When the parents, legitimate or illegitimate, or the legitimate descendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; xxx xxx xxx (5) When only the adopters survive, they shall inherit the entire estate; It does not appear on the records whether Maureen was survived by her natural father. During the trial of these cases, only Vivian and Anders Hultman testified on their claim of damages. Hence, we find that the award of damages in their favor has sufficient factual and legal basis. Appellant also urges that the award to the heirs of Maureen Hultman of One Million Pesos (P1,000,000.00) as moral and exemplary damages is unjustified or, at the very least, exorbitant and should be reduced. We hold that the award of One Million (P1,000,000.00) pesos is amply justified by the circumstances. The records reveal that Maureen recovered between life and death for ninety-seven (97) days. Her family experienced the peaks and valleys of unspeakable suffering. During that time, she underwent brain surgery three (3) times. Her condition was never stable and remained critical. It was always touch and go with death. She could not be left alone at the hospital. Her parents had to be perpetually by her side at least six (6) to seven (7) hours daily. After the shooting, their siblings had to be sent back to Sweden for their safety. Left unattended, her family's business took a downspin. Soon, her family's assets were depleted, then wiped out. A total of twenty-three (23) doctors attended to her and their bills ballooned without abatement. They were forced to rely on the goodness of the gracious. Her family started receiving contributions from other people to defray the medical expenses and hospital bills. 193 Maureen never regained consciousness until her demise on
October 17, 1991, at the tender age of seventeen. Under the foregoing circumstances, we thus find the award of One Million Pesos (P1,000,000.00) as moral damages to be reasonable.

Moreover, we find that the grant of exemplary damages is called for by the circumstances of the case. Under Article 2229 of the Civil Code, 194 in addition to the award of moral damages, exemplary or
corrective damages may be adjudged in order to deter the commission of similar acts in the future. The award for exemplary damages is designed to permit the courts to mould behavior that has socially deleterious consequences. Its imposition is required by public policy to suppress the wanton acts of an offender.

In the case at bar, appellant's unprovoked aggression snuffed the life of Maureen Hultman, a girl in the prime of her youth. Hultman and her companions were gunned down by appellant in cold-blood,

for no apparent reason. Appellant's vicious criminality led to the suffering of his victims and their families. Considering our soaring crime rate, the imposition of exemplary damages against appellant to deter others from taking the lives of people without any sense of sin is proper. Moreover, since the killing of Hultman was attended by treachery and pursuant to Article 2229 of the new Civil Code, 195 we impose an award of Two Million (P2,000,000.00) pesos as exemplary damages against
appellant for the death of Maureen Hultman.

We now review the award of One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages to victim JUSSI LEINO. From the record, it is incontrovertible that Leino likewise suffered extensive injuries as a result of the shooting. His upper jaw bone was shattered. He would need a bone transplant operation to restore it. His tongue was also injured. He partially lost his sense of taste for his taste buds were also affected. When he was discharged from the hospital, he had difficulty in speaking and had to be fed through a tube running down his nose. He lost eight of his teeth. The roots of his teeth were cut off and the raw nerves were exposed. But all these speak only of his physical injuries and suffering. More devastating was the emotional strain that distressed Leino. His parents were in Europe for a vacation at the time of the shooting. Only a neighbor attended to him at the hospital. It took two (2) days for his father to come and comfort by his bedside. Leino had trouble sleeping in peace at night. The traumatic event woke him up in the middle of the night. Black memories of the incident kept coming back to mind. 196 Understably, the ill-effects of the incident spilled over his family. Seppo Leino, Jussi's father, was
tortured by thoughts of insecurity. He had to relocate his entire family to Europe where he felt they would be safe. 197 Under the foregoing circumstances, we find that an award of One Million (P1,000,000.00) pesos to Jussi Leino as indemnity for moral damages is justified and reasonable.

As in the case of Hultman, since the shooting of Leino was committed with treachery and pursuant to Article 2229 of the New Civil Code, 198 appellant is additionally adjudged liable for the payment to Leino
of Two Million (P2,000,000.00) pesos as exemplary damages.

We come now to the trial court's monetary award to compensate the LOSS OF EARNING CAPACITY OF VICTIMS JUSSI LEINO and MAUREEN HULTMAN. To be compensated for loss of earning capacity, it is not necessary that the victim, at the time of injury or death, is gainfully employed. Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money. In Cariaga v. Laguna Tayabas Bus Company, 199 we
awarded to the heirs of Cariaga a sum representing loss of his earning capacity although he was still a medical student at the time of injury. However, the award was not without basis for Cariaga was then a fourth year medical student at a reputable school; his scholastic record, which was presented at the trial, justified an assumption that he would have been able to finish his course and pass the board in due time; and a doctor, presented as witness for the appellee, testified as to the amount of income Cariaga would have earned had he finished his medical studies.

In the case at bar, the trial court awarded the amount, equivalent in Philippine pesos, of Forty capacity of JUSSI LEINO. We agree with appellant that this amount is highly speculative and should be denied considering that Leino had only earned a high school degree at the International School, Manila, in 1989. He went back to Finland to serve the military and has just arrived in Manila in February 1991 to pursue his ambition to become a pilot. At the time of the shooting on July 13, 1991, he has just enrolled at the Manila Aero Club to become a professional pilot. He was thus only on his first year, first semester, in said school and was practically, a mere high school graduate. Under the foregoing circumstances, we find the records wanting with substantial evidence to justify a reasonable assumption that Leino would have been able to finish his studies at the Manila Aero Club and ultimately become a professional pilot.

We now pass upon the propriety of the award of Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased MAUREEN HULTMAN. We find that the award is not supported by the records. In adjudging an award for Maureen's loss of earning capacity, the trial court incorrectly used the monthly salary of a secretary working in Sweden, computed at two thousand dollars ($2,000.00) a month, as per the estimate given by Anders Hultman. Nowhere in the records does it appear that, at the time of her death, Maureen had acquired the skills needed for a secretarial job or that she intended to take a secretarial course in preparation for such job in Sweden. Anders Hultman himself testified that there was uncertainty as to Maureen's future career path, thus: ATTY. VINLUAN: Q Mr. Witness, if Maureen would not been (sic) shot and she continued her studies, what professional career would she (sic) like to pursue considering her interests and inclinations? WITNESS: A That is very difficult to say. She has just turned 17 and our projection is that, certainly she would have been an artist in the creative side. She would have become an actress or a movie producer or probably she would have been a college graduate. ATTY. VINLUAN: Q But if you would just say based on the salary of a secretary in Sweden, how much would she have much earned? A. Not less than Two Thousand Dollars a month. 200 Clearly, there is no factual basis for the award of thirteen million (P13,000,000.00) pesos to the heirs of Maureen far loss of earning capacity as a probable secretary in Sweden. In any event, what was proved on record is that after graduating from high school, Maureen took up a short personality development course at the John Roberts Powers. Maureen was employed at the John Roberts Powers at the time of her death. It was her first job. In fact, she had just received her first salary, for which reason she went out with her friends to celebrate on that fateful day. However, neither the nature of her work nor her salary in said company was disclosed at the trial. Thus, to compute the award for Maureen's loss of earning capacity, we are constrained to use the minimum wage prevailing as of the date of her death (October 17, 1991), i.e., one hundred eighteen pesos (P118.00). 201 Allowing for reasonable and necessary expenses in the amount of P19,800.00, her net
income per annum would amount to P26,859.17. 202 Hence, using the formula repeatedly adopted by this Court: 203 (2/3 x [80 age of victim at time of death]) x a reasonable portion of the net income which would have been received by the heirs as support, 204 we fix the award for loss of earning as capacity of deceased Maureen Hultman at Five Hundred Sixty-Four Thousand Forty-Two Pesos and Fifty-Seven Centavos (P564,042.57).

It also bears emphasis that in the computation of the award for loss of earning capacity of the deceased, the life expectancy of the deceased's heirs is not factored in. The rule is well-settled that the award of damages for death is computed on the basis of the life expectancy of the deceased, and not the beneficiary. 205

Lastly, appellant seeks a reduction of the award of attorney's fees in the amount of Three Million Pesos (P3,000,000.00), claiming that the same is exorbitant. We disagree. The three (3) private complainants were represented by the ACCRA law firm, with Atty. Rogelio Vinluan as lead counsel. They agreed to pay the amount of One Million (P1,000,000.00) pesos each as attorney's fees and for litigation expenses. The three criminal cases were consolidated. A continuous trial was conducted, with some hearings having both morning and afternoon sessions. The trial lasted for almost one and a half years. More than forty (40) witnesses testified during the hearings. Several pleadings were prepared and filed. A total of sixty-eight (68) documentary exhibits were presented by the prosecution. Incidents related to the trial of the cases came up to this Court for review at least twice during the pendency of the trial. 206 Given these
circumstances and the evident effort exerted by the private prosecutor throughout the trial, the trial court's award of a total of Three Million (P3,000,000.00) pesos as attorney's fees and litigation expenses appears just and reasonable.

VII In his last assigned error, appellant urges that the hearings conducted on the cases, where no less than forty-one (41) witnesses were presented by the parties, 207 were merely hearings on the petition
for bail concerning the murder charge for the killing of Roland Chapman, and not a trial on the merits of all three (3) cases. Appellant insists that after the termination of the hearing, he still had the right to adduce evidence at the trial proper. He claims he was denied due process when the trial court considered all the cases submitted for decision after the defense waived its right to present its surrebuttal evidence.

Appellant's position is untenable. This issue was resolved at the very first hearing of the cases on August 9, 1991. The incident then pending was appellant's petition for bail for the murder of Chapman. It will be remembered that, initially, there was only one murder charge against appellant since Maureen Hultman succumbed to death during the course of the proceedings on October 17, 1991. Thus, at the initial hearing on August 9, 1991, the incident for resolution was appellant's petition for bail. The prosecution sought to present the surviving victim, Jussi Leino, to testify on all three (3) charges to obviate delay and inconvenience since all three (3) charges involved one continuing incident. Appellant, through counsel, objected to the testimony of Leino insofar as the two (2) frustrated murder charges (with respect to the wounding of Leino and Hultman) were concerned. He argued that since the pending incident was the petition for bail with respect to the killing of Chapman, any testimony relative to the two (2) other charges in which bail were recommended was irrelevant. After arguments, the defense suggested that if the prosecution would present Leino to testify on all three (3) charges, it should wait until after accused's arraingment on August 14, 1991. 208 The
prosecution agreed on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. Defense counsel agreed. 209

As agreed upon, accused was arraigned and the prosecution presented Jussi Leino as its first witness to testify on all three (3) cases. No objection was made by the defense. 210 Subsequent proceedings likewise disprove appellant's insistence that the hearings conducted by the trial court were limited to the petition for bail, viz: 1. The prosecution presented all their witnesses and documentary evidence relative to the shooting incident, including evidence in support of the claim for damages.

These witnesses were extensively cross-examined by the defense counsels. The defense never objected that evidence on damages would be unnecessary if its intention was really to limit presentation of evidence to appellant's petition for bail. 2. After the prosecution and the defense rested their cases, the trial court issued an Order 211directing the parties to submit their Memorandum, after which "the main case as
well as the petition for bail are respectively submitted for Decision and Resolution." After receipt of this Order, the defense counsel filed two (2) motions for extension of time to file the defense Memorandum. In both Motions, the defense did not object to the trial court's Order submitting for decision the main case and the petition for bail. Neither did it move for a reconsideration of this Order and notify the court that it still had witnesses to present.

3. In compliance with said Order, appellant's counsel, Atty. Rodolfo Jimenez, filed a Memorandum and Supplemental Memorandum praying for accused's acquittal. This is inconsistent with the defense's position that the hearing conducted was only on the petition for bail. If the defense insist that what was submitted for decision was only his petition for bail, he would have only prayed that he be granted bail. 4. Upon receipt of the notice of promulgation of judgment from the trial court, the defense did not interpose any objection to the intended promulgation. In fact, the defense attended the promulgation of the Decision and manifested that they were ready therefor. All these clearly show that the merits of the cases and the petition for bail were heard simultaneously and appellant acquiesced thereto. Moreover, appellant's right to present additional evidence was not abridged by the trial court. On the contrary, the records disclose that the trial court afforded the defense fair opportunity to adduce its evidence. It took the defense almost one and a half years to submit its evidence. The defense presented more than twenty (20) witnesses and several documentary evidence. It was only after the trial court rendered a decision against appellant that he filed a motion for new trial, 212 through his new counsel, Atty. Gatmaytan, Jr. For the first time, he alleged that the joint decision
of the cases, both on the merits and on the petition for bail, was irregular for he was not given a chance to present further evidence to corroborate his alibi. We note that in his motion for new trial, 213 appellant did not even identify his alleged additional witnesses and the substance of their testimonies. Nor was it shown that he could not have produced these evidence at the trial with reasonable diligence. Appellant's motion was a patent ploy to delay the decision on his cases. His motion was properly denied by the trial court.

IN VIEW WHEREOF, we hereby AFFIRM WITH MODIFICATIONS the Decision of the trial court, dated December 22, 1992, thus: (1) In Criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Homicide for the shooting of Roland John Chapman, and sentencing said accused to suffer an indeterminate penalty of imprisonment of eight (8) years and one (1) day ofprision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for the victim's death; and, One Million (P1,000,000.00) pesos as moral damages. (2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, for the

shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of reclusion perpetua, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for her death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Five Hundred Sixty-Four Thousand Fourty-Two Pesos and Fifty-Seven Centavos (P564,042.57) for loss of earning capacity of said deceased; One Million Pesos (P1,000,000.00) as moral damages; and Two Million (P2,000,000.00) pesos as exemplary damages. (3) In Criminal Case No. 91-4807, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayoras minimum, to fourteen (14) years and eight (8) months of reclusion temporal as maximum, and to pay the said offended party the following amounts: (P30,000.00) pesos as Thirty Thousand (P30,000.00) pesos as indemnity for his injuries; One Hundred Eighteen Thousand Three Hundred Sixty-Nine pesos and Eighty-Four Centavos (P118,369.84) and equivalent in Philippine Pesos of U.S.$55,600.00, both as actual damages; One Million (P1,000,000.00) pesos as moral damages; and, Two Million (P2,000,000.00) pesos as exemplary damages. (4) In all three cases, ordering said accused to pay each of the three (3) offended parties the sum of One Million Pesos (P1,000,000.00; or a total of Three Million [P3,000,000.00] pesos] for attorney's fees and expenses of litigation; and (5) To pay the costs in all three (3) cases