Republic of the Philippines An investigation of your case however, revealed that FAREASTCARD failed to inform
SUPREME COURT you about its security policy. Furthermore, an overzealous employee of the Bank's
Manila
EN BANC
G.R. No. 108164 February 23, 1995
FAR EAST BANK AND TRUST COMPANY, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, LUIS A. LUNA and CLARITA S. LUNA, respondents.
VITUG, J.:
Some time in October 1986, private respondent Luis A. Luna applied for, and was accorded, a
FAREASTCARD issued by petitioner Far East Bank and Trust Company ("FEBTC") at its Pasig
Branch. Upon his request, the bank also issued a supplemental card to private respondent Clarita
S. Luna.
In August 1988, Clarita lost her credit card. FEBTC was forthwith informed. In order to replace the
lost card, Clarita submitted an affidavit of loss. In cases of this nature, the bank's internal security
procedures and policy would appear to be to meanwhile so record the lost card, along with the
principal card, as a "Hot Card" or "Cancelled Card" in its master file.
On 06 October 1988, Luis tendered a despedida lunch for a close friend, a Filipino-American, and
another guest at the Bahia Rooftop Restaurant of the Hotel Intercontinental Manila. To pay for the
lunch, Luis presented his FAREASTCARD to the attending waiter who promptly had it verified
through a telephone call to the bank's Credit Card Department. Since the card was not honored,
Luis was forced to pay in cash the bill amounting to P588.13. Naturally, Luis felt embarrassed by
this incident.
In a letter, dated 11 October 1988, private respondent Luis Luna, through counsel, demanded from
FEBTC the payment of damages. Adrian V. Festejo, a vice-president of the bank, expressed the
bank's apologies to Luis. In his letter, dated 03 November 1988, Festejo, in part, said:
In cases when a card is reported to our office as lost, FAREASTCARD undertakes the
necessary action to avert its unauthorized use (such as tagging the card as hotlisted),
as it is always our intention to protect our cardholders.
Credit Card Department did not consider the possibility that it may have been you who
was presenting the card at that time (for which reason, the unfortunate incident
occurred). 1
Festejo also sent a letter to the Manager of the Bahia Rooftop Restaurant to assure the latter that
private respondents were "very valued clients" of FEBTC. William Anthony King, Food and
Beverage Manager of the Intercontinental Hotel, wrote back to say that the credibility of private
respondent had never been "in question." A copy of this reply was sent to Luis by Festejo.
Still evidently feeling aggrieved, private respondents, on 05 December 1988, filed a complaint for
damages with the Regional Trial Court ("RTC") of Pasig against FEBTC.
On 30 March 1990, the RTC of Pasig, given the foregoing factual settings, rendered a decision
ordering FEBTC to pay private respondents (a) P300,000.00 moral damages; (b) P50,000.00
exemplary damages; and (c) P20,000.00 attorney's fees.
On appeal to the Court of Appeals, the appellate court affirmed the decision of the trial court.
Its motion for reconsideration having been denied by the appellate court, FEBTC has come to this
Court with this petition for review.
There is merit in this appeal.
In culpa contractual, moral damages may be recovered where the defendant is shown to have
acted in bad faith or with malice in the breach of the contract. 2 The Civil Code provides:
Art. 2220. Willful injury to property may be a legal ground for awarding moral damages
if the court should find that, under the circumstances, such damages are justly
due. The same rule applies to breaches of contract where the defendant acted
fraudulently or in bad faith. (Emphasis supplied)
Bad faith, in this context, includes gross, but not simple, negligence. 3 Exceptionally, in a contract
of carriage, moral damages are also allowed in case of death of a passenger attributable to the
fault (which is presumed 4) of the common carrier. 5
Concededly, the bank was remiss in indeed neglecting to personally inform Luis of his own card's
cancellation. Nothing in the findings of the trial court and the appellate court, however, can
sufficiently indicate any deliberate intent on the part of FEBTC to cause harm to private
respondents. Neither could FEBTC's negligence in failing to give personal notice to Luis be
considered so gross as to amount to malice or bad faith.
Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest
purpose or moral obliquity; it is different from the negative idea of negligence in that malice or bad
faith contemplates a state of mind affirmatively operating with furtive design or ill will. 6
We are not unaware of the previous rulings of this Court, such as in American Express
International, Inc., vs. Intermediate Appellate Court (167 SCRA 209) and Bank of Philippine
Islands vs. Intermediate Appellate Court (206 SCRA 408), sanctioning the application of Article 21,
in relation to Article 2217 and Article 2219 7 of the Civil Code to a contractual breach similar to the
case at bench. Article 21 states:
Art. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
Article 21 of the Code, it should be observed, contemplates a conscious act to cause harm. Thus,
even if we are to assume that the provision could properly relate to a breach of contract, its
application can be warranted only when the defendant's disregard of his contractual obligation is
so deliberate as to approximate a degree of misconduct certainly no less worse than fraud or bad
faith. Most importantly, Article 21 is a mere declaration of a general principle in human relations
that clearly must, in any case, give way to the specific provision of Article 2220 of the Civil Code
authorizing the grant of moral damages in culpa contractual solely when the breach is due to fraud
or bad faith.
Mr. Justice Jose B.L. Reyes, in his ponencia in Fores vs. Miranda 8 explained with great clarity the
predominance that we should give to Article 2220 in contractual relations; we quote:
Anent the moral damages ordered to be paid to the respondent, the same must be
discarded. We have repeatedly ruled (Cachero vs. Manila Yellow Taxicab Co. Inc., 101
Phil. 523; 54 Off. Gaz., [26], 6599; Necesito, et al. vs. Paras, 104 Phil., 75; 56 Off.
Gaz., [23] 4023), that moral damages are not recoverable in damage actions
predicated on a breach of the contract of transportation, in view of Articles 2219 and
2220 of the new Civil Code, which provide as follows:
Art. 2219. Moral damages may be recovered in the following
and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
xxx xxx xxx
Art. 2220. Wilful injury to property may be a legal ground for
awarding moral damages if the court should find that, under the
circumstances, such damages are justly due. The same rule
applies to breaches of contract where the defendant acted
fraudulently or in bad faith.
By contrasting the provisions of these two articles it immediately becomes apparent
that:
(a) In case of breach of contract (including one of transportation) proof of bad faith or
fraud (dolus), i.e., wanton or deliberately injurious conduct, is essential to justify an
award of moral damages; and
(b) That a breach of contract can not be considered included in the descriptive term
"analogous cases" used in Art. 2219; not only because Art. 2220 specifically provides
for the damages that are caused contractual breach, but because the definition of
quasi-delict in Art. 2176 of the Code expressly excludes the cases where there is a
"preexisitng contractual relations between the parties."
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
The exception to the basic rule of damages now under consideration is a mishap
resulting in the death of a passenger, in which case Article 1764 makes the common
carrier expressly subject to the rule of Art. 2206, that entitles the spouse, descendants
and ascendants of the deceased passenger to "demand moral damages for mental
anguish by reason of the death of the deceased" (Necesito vs. Paras, 104 Phil. 84,
Resolution on motion to reconsider, September 11, 1958). But the exceptional rule of
Art. 1764 makes it all the more evident that where the injured passenger does not die,
moral damages are not recoverable unless it is proved that the carrier was guilty of
malice or bad faith. We think it is clear that the mere carelessness of the carrier's driver
does not per se constitute or justify an inference of malice or bad faith on the part of
the carrier; and in the case at bar there is no other evidence of such malice to support
the award of moral damages by the Court of Appeals. To award moral damages for
breach of contract, therefore, without proof of bad faith or malice on the part of the
defendant, as required by Art. 2220, would be to violate the clear provisions of the law,
and constitute unwarranted judicial legislation.
xxx xxx xxx
The distinction between fraud, bad faith or malice in the sense of deliberate or wanton
wrong doing and negligence (as mere carelessness) is too fundamental in our law to
be ignored (Arts. 1170-1172); their consequences being clearly differentiated by the
Code.
Art. 2201. In contracts and quasi-contracts, the damages for
which the obligor who acted in good faith is liable shall be those
 that are the natural and probable consequences of the breach Nevertheless, the bank's failure, even perhaps inadvertent, to honor its credit card issued to
of the obligation, and which the parties have foreseen or could private respondent Luis should entitle him to recover a measure of damages sanctioned under
have reasonably foreseen at the time the obligation was Article 2221 of the Civil Code providing thusly:
constituted.

Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which
In case of fraud, bad faith, malice or wanton attitude, the obligor has been violated or invaded by the defendant, may be vindicated or recognized, and
shall be responsible for all damages which may be reasonably not for the purpose of indemnifying the plaintiff for any loss suffered by him.
attributed to the non-performance of the obligation.

Reasonable attorney's fees may be recovered where the court deems such recovery to be just and
It is to be presumed, in the absence of statutory provision to the contrary, that this equitable (Art. 2208, Civil Code). We see no issue of sound discretion on the part of the appellate
difference was in the mind of the lawmakers when in Art. 2220 they limited recovery of court in allowing the award thereof by the trial court.
moral damages to breaches of contract in bad faith. It is true that negligence may be
occasionally so gross as to amount to malice; but the fact must be shown in evidence,
and a carrier's bad faith is not to be lightly inferred from a mere finding that the contract WHEREFORE, the petition for review is given due course. The appealed decision is MODIFIED by
was breached through negligence of the carrier's employees. deleting the award of moral and exemplary damages to private respondents; in its stead, petitioner
is ordered to pay private respondent Luis A. Luna an amount of P5,000.00 by way of nominal
damages. In all other respects, the appealed decision is AFFIRMED. No costs.
The Court has not in the process overlooked another rule that a quasi-delict can be the cause for
breaching a contract that might thereby permit the application of applicable principles on tort 9 even
where there is a pre-existing contract between the plaintiff and the defendant (Phil. Airlines vs. SO ORDERED.
Court of Appeals, 106 SCRA 143; Singson vs. Bank of Phil. Islands, 23 SCRA 1117; and Air France
vs. Carrascoso, 18 SCRA 155). This doctrine, unfortunately, cannot improve private respondents'
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason,
case for it can aptly govern only where the act or omission complained of would constitute an
Puno, Kapunan, Mendoza and Francisco, JJ., concur.
actionable tort independently of the contract. The test (whether a quasi-delict can be deemed to
underlie the breach of a contract) can be stated thusly: Where, without a pre-existing contract
between two parties, an act or omission can nonetheless amount to an actionable tort by itself, the
fact that the parties are contractually bound is no bar to the application of quasi-delict provisions to
the case. Here, private respondents' damage claim is predicated solely on their contractual
relationship; without such agreement, the act or omission complained of cannot by itself be held to
stand as a separate cause of action or as an independent actionable tort.

The Court finds, therefore, the award of moral damages made by the court a quo, affirmed by the
appellate court, to be inordinate and substantially devoid of legal basis.

Exemplary or corrective damages, in turn, are intended to serve as an example or as correction for
the public good in addition to moral, temperate, liquidated or compensatory damages (Art. 2229,
Civil Code; see Prudenciado vs. Alliance Transport System, 148 SCRA 440; Lopez vs. Pan
American World Airways, 16 SCRA 431). In criminal offenses, exemplary damages are imposed
when the crime is committed with one or more aggravating circumstances (Art. 2230, Civil Code).
In quasi-delicts, such damages are granted if the defendant is shown to have been so guilty of
gross negligence as to approximate malice (See Art. 2231, Civil Code; CLLC E.G. Gochangco
Workers Union vs. NLRC, 161 SCRA 655; Globe Mackay Cable and Radio Corp. vs. CA, 176
SCRA 778). In contracts and quasi-contracts, the court may award exemplary damages if the
defendant is found to have acted in a wanton, fraudulent, reckless, oppressive, or malevolent
manner (Art. 2232, Civil Code; PNB vs. Gen. Acceptance and Finance Corp., 161 SCRA 449).

Given the above premises and the factual circumstances here obtaining, it would also be just as
arduous to sustain the exemplary damages granted by the courts below (see De Leon vs. Court of
Appeals, 165 SCRA 166).
 SECOND DIVISION
[G.R. No. 126152. September 28, 1999]
PHILIPPINE NATIONAL BANK, petitioner, vs. COURT OF APPEALS and LILY S.
PUJOL, respondents.
DECISION
BELLOSILLO, J.:
PHILIPPINE NATIONAL BANK filed this petition for review on certiorari under Rule 45 of the
Rules of Court assailing the Decision of the Court of Appeals [1] which affirmed the award of damages by the
Regional Trial Court, Branch 154, Pasig City in favor of private respondent Lily S. Pujol. [2]
Sometime prior to 23 October 1990 private respondent Lily S. Pujol opened with petitioner
Philippine National Bank, Mandaluyong Branch (PNB for brevity), an account denominated as "Combo
Account," a combination of Savings Account and Current Account in private respondent's business name
"Pujol Trading," under which checks drawn against private respondents checking account could be charged
against her Savings Account should the funds in her Current Account be insufficient to cover the value of her
checks. Hence, private respondent was issued by petitioner a passbook on the front cover of which was
typewritten the words "Combo Deposit Plan."
On 23 October 1990, private respondent issued a check in the amount of P30,000.00 in favor of her
daughter-in-law, Dr. Charisse M. Pujol. When issued and presented for payment, private respondent had
sufficient funds in her Savings Account. However, petitioner dishonored her check allegedly for
insufficiency of funds and debited her account with P250.00 as penalty charge.
On 24 October 1990 private respondent issued another check in the amount of P30,000.00 in favor of
her daughter, Ms. Venus P. De Ocampo. When issued and presented for payment petitioner had sufficient
funds in her Savings Account. But, this notwithstanding, petitioner dishonored her check for insufficiency of
funds and debited her account with P250.00 as penalty charge. On 4 November 1990, after realizing its
mistake, petitioner accepted and honored the second check for P30,000.00 and re-credited to private
respondents account the P250.00 previously debited as penalty.
Private respondent Lily S. Pujol filed with the Regional Trial Court of Pasig City a complaint for
moral and exemplary damages against petitioner for dishonoring her checks despite sufficiency of her funds
in the bank.
Petitioner admitted in its answer that private respondent Pujol opened a "Combo Account," a
combination of Savings Account and Current Account, with its Mandaluyong branch. It however justified the
dishonor of the two (2) checks by claiming that at the time of their issuance private respondent Pujols
account was not yet operational due to lack of documentary requirements, to wit: (a) Certificate of Business
Registration; (b) Permit to Operate Business; (c) ID Card; and, (d) Combination Agreement. Petitioner
further alleged that despite the non-compliance with such requirements petitioner placed the sign "Combo
Flag" on respondent Pujols account out of courtesy and generosity. Petitioner also admitted that it later
honored private respondent's second check, debited the amount stated therein from her account and re-
credited the amount of P250.00 initially charged as penalty.
On 27 September 1994 the trial court rendered a decision ordering petitioner to pay private
respondent Pujol moral damages of P100,000.00 and attorneys fees of P20,000.00. It found that private
respondent suffered mental anguish and besmirched reputation as a result of the dishonor of her checks, and
that being a former member of the judiciary who was expected to be the embodiment of integrity and good
behavior, she was subjected to embarrassment due to the erroneous dishonor of her checks by petitioner.
The Court of Appeals affirmed in toto the decision of the trial court. Hence, petitioner comes to this
Court alleging that the appellate court erred (a) in holding that petitioner was estopped from denying the
existence of a "Combo Account" and the fact that it was operational at the time of the issuance of the checks
because respondent Pujol was issued a Savings Account passbook bearing the printed words "Combo
Deposit Plan;" and, (b) in not holding that the award by the trial court of moral damages of P100,000.00 and
attorneys fees of P20,000.00 was inordinately disproportionate and unconscionable.
We cannot sustain petitioner. Findings of fact and conclusions of the lower courts are entitled to great
weight on appeal and will not be disturbed except for strong and cogent reasons, and for that matter, the
findings of the Court of Appeals especially when they affirm the trial court, and which are supported by
substantial evidence, are almost beyond the power of review by the Supreme Court. [3]
Petitioner does not dispute the fact that private respondent Pujol maintained a Savings Account as
well as a Current Account with its Mandaluyong Branch and that private respondent applied for a
"Combination Deposit Plan" where checks issued against the Current Account of the drawer shall be charged
automatically against the latters Savings Account if her funds in the Current Account be insufficient to cover
her checks. There was also no question that the Savings Account passbook of respondent Pujol contained the
printed words "Combo Deposit Plan" without qualification or condition that it would take effect only after
submission of certain requirements. Although petitioner presented evidence before the trial court to prove
that the arrangement was not yet operational at the time respondent Pujol issued the two (2) checks, it failed
to prove that she had actual knowledge that it was not yet operational at the time she issued the checks
considering that the passbook in her Savings Account already indicated the words "Combo Deposit Plan."
Hence, respondent Pujol had justifiable reason to believe, based on the description in her passbook, that her
accounts were effectively covered by the arrangement during the issuance of the checks. Either by its own
deliberate act, or its negligence in causing the "Combo Deposit Plan" to be placed in the passbook, petitioner
is considered estopped to deny the existence of and perfection of the combination deposit agreement with
respondent Pujol. Estoppel in pais or equitable estoppel arises when one, by his acts, representations or
admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence,
induces another to believe certain facts to exist and such other rightfully relies and acts on such belief so that
he will be prejudiced if the former is permitted to deny the existence of such facts. [4]
As found by the Court of Appeals, petitioner knew it committed a mistake in dishonoring the checks
of respondent Pujol. This was based on the testimony of Pedro Lopez, petitioners employee, that after the
second check was dishonored, petitioner examined respondent Pujols account and learned that there was
sufficient funds in the Savings Account, and that only after the second check was dishonored did petitioner
rectify its error.[5] The appellate court also found that respondent Pujol, who is a retired judge and community
leader, issued the first check dated 23 October 1990 to her daughter-in-law, Dr. Charisse Pujol, who in turn
indorsed the check to her mother. The latter needed the money to refloat two (2) of their vessels which sank
during a typhoon. When the check was dishonored for insufficient funds, private respondents daughter-in-
law confronted the former which subjected her to embarrassment and humiliation. Petitioner issued the
second check dated 24 October 1990 to daughter Venus de Ocampo as payment for the expenses of her round
trip ticket to the United States which were shouldered by her son-in-law, husband of Venus de
Ocampo. When the second check was initially dishonored for insufficiency of funds, she again suffered
serious anxiety and mental anguish that her son-in-law would no longer hold her in high esteem. [6]
 This Court has ruled that a bank is under obligation to treat the accounts of its depositors with
meticulous care whether such account consists only of a few hundred pesos or of millions of
pesos. Responsibility arising from negligence in the performance of every kind of obligation is
demandable. While petitioners negligence in this case may not have been attended with malice and bad faith,
nevertheless, it caused serious anxiety, embarrassment and humiliation to private respondent Lily S. Pujol for
which she is entitled to recover reasonable moral damages. [7] In the case of Leopoldo Araneta v. Bank of
America[8] we held that it can hardly be possible that a customers check can be wrongfully refused payment
without some impeachment of his credit which must in fact be an actual injury, although he cannot, from the
nature of the case, furnish independent and distinct proof thereof.

Damages are not intended to enrich the complainant at the expense of the defendant, and there is no
hard-and-fast rule in the determination of what would be a fair amount of moral damages since each case
must be governed by its own peculiar facts. The yardstick should be that it is not palpably and scandalously
excessive. In this case, the award of P100,000.00 is reasonable considering the reputation and social standing
of private respondent Pujol and applying our rulings in similar cases involving banks negligence with regard
to the accounts of their depositors. [9] The award of attorneys fees in the amount of P20,000.00 is proper for
respondent Pujol was compelled to litigate to protect her interest. [10]

WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals which affirmed
the award by the Regional Trial Court of Pasig City of moral damages of P100,000.00 and attorneys fees
of P20,000.00 in favor of private respondent Lily S. Pujol is AFFIRMED. Costs against petitioner.

SO ORDERED.

Mendoza, Quisumbing, and Buena, JJ., concur.

 THIRD DIVISION
[G.R. No. 126389. July 10, 1998]
SOUTHEASTERN COLLEGE, INC., petitioner, vs. COURT OF APPEALS, JUANITA DE JESUS
VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO, CONSOLACION
DIMAANO and MILAGROS DIMAANO, respondents.
DECISION
PURISIMA, J.:
Petition for review under Rule 45 of the Rules of Court seeking to set aside the
Decision[1] promulgated on July 31, 1996, and Resolution [2] dated September 12, 1996 of the Court
of Appeals[3] in CA-G.R. No. 41422, entitled Juanita de Jesus vda. de Dimaano, et al. vs.
Southeastern College, Inc., which reduced the moral damages awarded below from P1,000,000.00
to P200,000.00.[4] The Resolution under attack denied petitioners motion for reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay City, while
petitioner owns a four-storey school building along the same College Road. On October 11, 1989,
at about 6:30 in the morning, a powerful typhoon Saling hit Metro Manila. Buffeted by very strong
winds, the roof of petitioners building was partly ripped off and blown away, landing on and
destroying portions of the roofing of private respondents house. After the typhoon had passed, an
ocular inspection of the destroyed buildings was conducted by a team of engineers headed by the
city building official, Engr. Jesus L. Reyna. Pertinent aspects of the latters Report [5] dated October
18, 1989 stated, as follows:
5.Oneofthefactorsthatmayhaveledtothiscalamitouseventistheformationofthebuildingsinthearea
andthegeneraldirectionofthewind.SituatedintheperipherallotisanalmostUshapedformationof4
storeybuilding.Thus,withthestrongwindshavingawesterlydirection,thegeneralformationofthe
buildingsbecomesabigfunnellikestructure,theonesituatedalongCollegeRoad,receivingtheheaviest
impactofthestrongwinds.Hence,thereareportionsoftheroofing,thoselocatedonbothendsofthe Theclaimforexemplarydamagesisdeniedforthereasonthatthedefendants(sic)didnotactinawanton
building,whichremainedintactafterthestorm.
6.Anotherfactorandperhapsthemostlikelyreasonforthedislodgingoftheroofingsstructuraltrussesis
theimproperanchorageofthesaidtrussestotheroofbeams.The1/2diametersteelbarsembeddedonthe
concreteroofbeamswhichserveastrussanchoragearenotboltednornailedtothetrusses.Still,thereare
othersteelbarswhichwerenotevenbenttothetrusses,thus,thosetrussesarenotanchoredatalltothe
roofbeams.
It then recommended that to avoid any further loss and damage to lives, limbs and property of
persons living in the vicinity, the fourth floor of subject school building be declared as a structural
hazard.
In their Complaint[6] before the Regional Trial Court of Pasay City, Branch 117, for damages
based on culpa aquiliana, private respondents alleged that the damage to their house rendered the
same uninhabitable, forcing them to stay temporarily in others houses. And so they sought to
recover from petitioner P117,116.00, as actual damages, P1,000,000.00, as moral
damages, P300,000.00, as exemplary damages and P100,000.00, for and as attorneys fees; plus
costs.
In its Answer, petitioner averred that subject school building had withstood several
devastating typhoons and other calamities in the past, without its roofing or any portion thereof
giving way; that it has not been remiss in its responsibility to see to it that said school building,
which houses school children, faculty members, and employees, is in tip-top condition; and
furthermore, typhoon Saling was an act of God and therefore beyond human control such that
petitioner cannot be answerable for the damages wrought thereby, absent any negligence on its
part.
The trial court, giving credence to the ocular inspection report to the effect that subject
school building had a defective roofing structure, found that, while typhoon Saling was
accompanied by strong winds, the damage to private respondents house could have been avoided
if the construction of the roof of [petitioners] building was not faulty. The dispositive portion of the
lower courts decision[7] reads thus:
WHEREFORE,inviewoftheforegoing,theCourtrendersjudgment(sic)infavoroftheplaintiff(sic)and
againstthedefendants,(sic)orderingthelattertopayjointlyandseverallytheformerasfollows:
a)P117,116.00,asactualdamages,pluslitigationexpenses;
b)P1,000,000.00asmoraldamages;
c)P100,000.00asattorneysfees;
d)Costsoftheinstantsuit.
fraudulent,reckless,oppressiveormalevolentmanner.
In its appeal to the Court of Appeals, petitioner assigned as errors, [8] that:
I
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON SALING, AS AN
ACT OF GOD, IS NOT THE SOLE AND ABSOLUTE REASON FOR THE RIPPING-
OFF OF THE SMALL PORTION OF THE ROOF OF SOUTHEASTERNS FOUR (4)
STOREY SCHOOL BUILDING.
 II
THE TRIAL COURT ERRED IN HOLDING THAT THE CONSTRUCTION OF
THE ROOF OF DEFENDANTS SCHOOL BUILDING WAS FAULTY
NOTWITHSTANDING THE ADMISSION THAT THERE WERE TYPHOONS
BEFORE BUT NOT AS GRAVE AS TYPHOON SALING WHICH IS THE DIRECT
AND PROXIMATE CAUSE OF THE INCIDENT.
suffered by the private respondents. This conclusion finds support in Article 1174 of the Civil Code,
which provides:
Art1174.Exceptincasesexpresslyspecifiedbythelaw,orwhenitisotherwisedeclaredbystipulation,or
whenthenatureoftheobligationrequirestheassumptionofrisk,nopersonshallberesponsibleforthose
eventswhichcouldnotbeforeseen,orwhich,thoughforeseen,wereinevitable.

III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES
AS WELL AS ATTORNEYS FEES AND LITIGATION EXPENSES AND COSTS OF
SUIT TO DIMAANOS WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES AT
ALL AS DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN
INTERVENING EVENT THAT RENDERS THIS CASE MOOT AND ACADEMIC.
The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it
as an event which takes place by accident and could not have been foreseen. [9] Escriche
elaborates it as an unexpected event or act of God which could neither be foreseen nor resisted.
[10]
Civilist Arturo M. Tolentino adds that [f]ortuitous events may be produced by two general
causes: (1) by nature, such as earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act
of man, such as an armed invasion, attack by bandits, governmental prohibitions, robbery, etc. [11]

IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT
OF EXECUTION INSPITE OF THE PERFECTION OF SOUTHEASTERNS APPEAL
WHEN THERE IS NO COMPELLING REASON FOR THE ISSUANCE THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with modification the trial courts
disposition by reducing the award of moral damages from P1,000,000.00 to P200,000.00. Hence,
petitioners resort to this Court, raising for resolution the issues of:
In order that a fortuitous event may exempt a person from liability, it is necessary that he be
free from any previous negligence or misconduct by reason of which the loss may have been
occasioned.[12] An act of God cannot be invoked for the protection of a person who has been guilty
of gross negligence in not trying to forestall its possible adverse consequences. When a persons
negligence concurs with an act of God in producing damage or injury to another, such person is
not exempt from liability by showing that the immediate or proximate cause of the damage or injury
was a fortuitous event. When the effect is found to be partly the result of the participation of man
whether it be from active intervention, or neglect, or failure to act the whole occurrence is hereby
humanized, and removed from the rules applicable to acts of God. [13]

1.Whetherornottheawardofactualdamage[sic]torespondentDimaanosonthebasisofspeculationor
conjecture,withoutprooforreceiptsofactualdamage,[sic]legallyfeasibleorjustified.
2.WhetherornottheawardofmoraldamagestorespondentDimaanos,withoutthelatterhavingsuffered,
actualdamagehaslegalbasis.
3.WhetherornotrespondentDimaanoswhoarenolongertheowneroftheproperty,subjectmatterofthe
case,duringitspendency,hastherighttopursuetheircomplaintagainstpetitionerwhenthecasewas
alreadyrenderedmootandacademicbythesaleofthepropertytothirdparty.
4.Whetherornottheawardofattorneysfeeswhenthecasewasalreadymootandacademic[sic]legally
justified.
5.WhetherornotpetitionerisliablefordamagecausedtoothersbytyphoonSalingbeinganactofGod.
6.Whetherornottheissuanceofawritofexecutionpendingappeal,exparteorwithouthearing,has
supportinlaw.
In the case under consideration, the lower court accorded full credence to the finding of the
investigating team that subject school buildings roofing had no sufficient anchorage to hold it in
position especially when battered by strong winds. Based on such finding, the trial court imputed
negligence to petitioner and adjudged it liable for damages to private respondents.
After a thorough study and evaluation of the evidence on record, this Court believes
otherwise, notwithstanding the general rule that factual findings by the trial court, especially when
affirmed by the appellate court, are binding and conclusive upon this Court. [14] After a careful
scrutiny of the records and the pleadings submitted by the parties, we find exception to this rule
and hold that the lower courts misappreciated the evidence proffered.
There is no question that a typhoon or storm is a fortuitous event, a natural occurrence
which may be foreseen but is unavoidable despite any amount of foresight, diligence or care. [15] In
order to be exempt from liability arising from any adverse consequence engendered thereby, there
should have been no human participation amounting to a negligent act. [16] In other words, the
person seeking exoneration from liability must not be guilty of negligence. Negligence, as
commonly understood, is conduct which naturally or reasonably creates undue risk or harm to
others. It may be the failure to observe that degree of care, precaution, and vigilance which the
circumstances justly demand,[17] or the omission to do something which a prudent and reasonable
man, guided by considerations which ordinarily regulate the conduct of human affairs, would do.
[18]
From these premises, we proceed to determine whether petitioner was negligent, such that if it
were not, the damage caused to private respondents house could have been avoided?

The pivot of inquiry here, determinative of the other issues, is whether the damage on the
roof of the building of private respondents resulting from the impact of the falling portions of the
school buildings roof ripped off by the strong winds of typhoon Saling, was, within legal
contemplation, due to fortuitous event? If so, petitioner cannot be held liable for the damages
At the outset, it bears emphasizing that a person claiming damages for the negligence of
another has the burden of proving the existence of fault or negligence causative of his injury or
loss. The facts constitutive of negligence must be affirmatively established by competent evidence,
[19]
not merely by presumptions and conclusions without basis in fact. Private respondents, in
establishing the culpability of petitioner, merely relied on the aforementioned report submitted by a
team which made an ocular inspection of petitioners school building after the typhoon. As the term
imparts, an ocular inspection is one by means of actual sight or viewing. [20] What is visual to the
eye though, is not always reflective of the real cause behind. For instance, one who hears a
gunshot and then sees a wounded person, cannot always definitely conclude that a third person
shot the victim. It could have been self-inflicted or caused accidentally by a stray bullet. The
relationship of cause and effect must be clearly shown.
In the present case, other than the said ocular inspection, no investigation was conducted
to determine the real cause of the partial unroofing of petitioners school building. Private
respondents did not even show that the plans, specifications and design of said school building
were deficient and defective. Neither did they prove any substantial deviation from the approved
plans and specifications.Nor did they conclusively establish that the construction of such building
was basically flawed.[21]
On the other hand, petitioner elicited from one of the witnesses of private respondents, city
building official Jesus Reyna, that the original plans and design of petitioners school building were
approved prior to its construction. Engr. Reyna admitted that it was a legal requirement before the
construction of any building to obtain a permit from the city building official (city engineer, prior to
the passage of the Building Act of 1977). In like manner, after construction of the building, a
certification must be secured from the same official attesting to the readiness for occupancy of the
edifice.Having obtained both building permit and certificate of occupancy, these are, at the very
least, prima facie evidence of the regular and proper construction of subject school building. [22]
Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon
Saling, the same city official gave the go-signal for such repairs without any deviation from the
original design and subsequently, authorized the use of the entire fourth floor of the same
building. These only prove that subject building suffers from no structural defect, contrary to the
report that its U-shaped form was structurally defective. Having given his unqualified imprimatur,
the city building official is presumed to have properly performed his duties [23] in connection
therewith.
Private respondents failed to adduce adequate and competent proof of the pecuniary loss
they actually incurred.[26] It is not enough that the damage be capable of proof but must be actually
proved with a reasonable degree of certainty, pointing out specific facts that afford a basis for
measuring whatever compensatory damages are borne. [27] Private respondents merely submitted
an estimated amount needed for the repair of the roof of their subject building. What is more,
whether the necessary repairs were caused ONLY by petitioners alleged negligence in the
maintenance of its school building, or included the ordinary wear and tear of the house itself, is an
essential question that remains indeterminable.
The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by the trial
court is hereby nullified and set aside. Private respondents are ordered to reimburse any amount
or return to petitioner any property which they may have received by virtue of the enforcement of
said writ.
WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED. The
complaint of private respondents in Civil Case No. 7314 before the trial court a quo is ordered
DISMISSED and the writ of execution issued on April 1, 1993 in said case is SET
ASIDE. Accordingly, private respondents are ORDERED to return to petitioner any amount or
property received by them by virtue of said writ. Costs against the private respondents.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, and Kapunan, JJ., concur.

In addition, petitioner presented its vice president for finance and administration who
testified that an annual maintenance inspection and repair of subject school building were regularly
undertaken.Petitioner was even willing to present its maintenance supervisor to attest to the extent
of such regular inspection but private respondents agreed to dispense with his testimony and
simply stipulated that it would be corroborative of the vice presidents narration.

Moreover, the city building official, who has been in the city government service since 1974,
admitted in open court that no complaint regarding any defect on the same structure has ever been
lodged before his office prior to the institution of the case at bench. It is a matter of judicial notice
that typhoons are common occurrences in this country. If subject school buildings roofing was not
firmly anchored to its trusses, obviously, it could not have withstood long years and several
typhoons even stronger than Saling.

In light of the foregoing, we find no clear and convincing evidence to sustain the judgment
of the appellate court. We thus hold that petitioner has not been shown negligent or at fault
regarding the construction and maintenance of its school building in question and that typhoon
Saling was the proximate cause of the damage suffered by private respondents house.

With this disposition on the pivotal issue, private respondents claim for actual and moral
damages as well as attorneys fees must fail. [24] Petitioner cannot be made to answer for a purely
fortuitous event.[25] More so because no bad faith or willful act to cause damage was alleged and
proven to warrant moral damages.
 Nonetheless, private respondent's lease contract was extended until December 31, 1984. 5 Private
respondent also continued to occupy the leased premises beyond the extended term.

Republic of the Philippines

SUPREME COURT On February 5, 1985, private respondent received a letter 6 from the lessor, through its Real Estate
Manila Accountant Jane F. Bartolome, informing him of the increase in rentals, retroactive to January
1985, pending renewal of his contract until the arrival of Ms. Ma. Rosa Madrigal (one of the owners
of Susana Realty).
SECOND DIVISION
Four days later or on February 9, 1985, petitioner Manolo Samson saw private respondent in the
latter's house and offered to buy the store of Santos & Sons and his right to lease the subject
premises. 7 Petitioner was advised to return after a week.

G.R. No. 108245 November 25, 1994

On February 15, 1985, petitioner returned to private respondent's house to confirm his offer. On
said occasion, private respondent presented petitioner with a letter containing his counter
MANOLO P. SAMSON, petitioner, proposal, thus:
vs.
COURT OF APPEALS, SANTOS & SONS, INC., and ANGEL SANTOS, respondents.
MANOLO SAMSON
Marikina, Metro Manila
Clara Dumandan-Singh for petitioner.

Sir:
Paterno A. Catacutan for private respondents.

In line with our negotiation to sell our rights in the

Madrigal building at Recto, Rizal Avenue, I propose
the following:
PUNO, J.:
1. The lease contract between Santos and Sons,
Inc. and Madrigal was impliedly renewed. It will be
Petitioner MANOLO P. SAMSON prays for the reversal of the Decision of the Court of Appeals,
formally renewed this monthly (sic) when Tanya
dated November 27, 1992, 1 modifying the decision of the Regional Trial Court of Pasig, Branch
Madrigal arrives.
157, dated November 29, 1990, and absolving private respondent Angel Santos from liability for
the damages sustained by petitioner.
2. To avoid breach of contract with Madrigal, I
suggest that you acquire all our shares in Santos
The antecedent facts, as borne by the records, are as follows:
and Sons, Inc.

The subject matter of this case is a commercial unit at the Madrigal Building, located at Claro M.
3. I will answer and pay all obligations of Santos and
Recto Avenue, Sta. Cruz, Manila. The building is owned by Susana Realty Corporation and the
Sons, Inc. as of February 28, 1985.
subject premises was leased to private respondent Angel Santos. The lessee's haberdashery
store, Santos & Sons, Inc., occupied the premises for almost twenty (20) years on a yearly
basis. 2 Thus, the lease contract in force between the parties in the year 1983 provided that the Very truly yours,
term of the lease shall be one (1) year, starting on August 1, 1983 until July 31, 1984. 3

On June 28, 1984, the lessor Susana Realty Corporation, through its representative Mr. Jes Gal R.
Sarmiento, Jr., informed respondents that the lease contract which was to expire on July 31, 1984
would not be renewed. 4
Angel C. Santos
Petitioner affixed his signature on the letter-proposal signifying his acceptance. 8 They agreed that
the consideration for the sale of the store and leasehold right of Santos & Sons, Inc. shall be
P300,000.00.
On February 20, 1985, petitioner paid P150,000.00 to private respondent representing the value of prices of the goods taken out of the store, with legal
existing improvements in the Santos & Sons store. The parties agreed that the balance of interest thereon from the (d)ate of this decision until
P150,000.00 shall be paid upon the formal renewal of the lease contract between private the same is fully paid;
respondent and Susana Realty. It was also a condition precedent to the transfer of the leasehold
right of private respondent to petitioner. 9
4. The sum of P100,000.00 representing the profits
which plaintiff failed to realize from the sale of the
In March 1985, petitioner began to occupy the Santos & Sons store. He utilized the store for the goods referred to above, with legal interest thereon
sale of his own goods. 10 from the date of the decision until said amount is
fully paid;

All went well for a few months. In July 1985, however, petitioner received a notice from Susana
Realty, addressed to Santos & Sons, Inc., directing the latter to vacate the leased premises on or 5. The amounts of P100,000.00 and P50,000.00 as
before July 15, 1985. 11 Private respondent failed to renew his lease over the premises and moral and exemplary damages, respectively, also
petitioner was forced to vacate the same on July 16, 1985. with legal interest thereon, from the date of this
judgment until fully paid; and

Petitioner then filed an action for damages against private respondent. He imputed fraud and bad
faith against private respondent when the latter stated in his letter-proposal that his lease contract 6. The sum of P45,000.00 as and for attorney's fees
with Susana Realty has been impliedly renewed. Petitioner claimed that this misrepresentation and expenses of litigation, in addition to judicial
induced him to purchase the store of Santos & Sons and the leasehold right of private respondent. costs.

In defense, respondent alleged that their agreement was to the effect that the consideration for the
sale was P300,000.00, broken down as follows: P150,000.00 shall be for the improvements in the
store, and the balance of P150,000.00 shall be for the sale of the leasehold right of Santos & Sons
over the subject premises. The balance shall be paid only after the formal renewal of the lease
contract and its actual transfer to petitioner.
On the defendants' counterclaim, the plaintiff is ordered to return to the
defendants the latter's steel filing cabinet, adding machine, typewriter and
all its unused sales invoices, receipts and blank checks, if the plaintiff still
has any of the said papers or documents.

12
Trial on the merits ensued. On November 29, 1990, the trial court rendered a decision in favor of
petitioner. The dispositive portion reads:
WHEREFORE, AND IN VIEW OF ALL THE FOREGOING, judgment is
hereby rendered in favor of plaintiff Manolo P. Samson and against
defendants Santos and Sons, Inc., and Angel C. Santos, ordering the said
defendants to pay jointly and severally unto the plaintiff:
1. The sum of P150,000.00, representing the cash
advance payment for the store and the right to
occupy its leased premises subject matter of the
sale involved, with interest thereon at the legal rate
from the filing of the complaint on November 5,
1985 until the same is fully paid;
2. The sum of P70,000.00 representing the cost of
additional improvements of the store sold, also with
legal interest from November 5, 1985 until the full
payment thereof;
SO ORDERED. 13
Private respondent appealed to the Court of Appeals. In a Decision dated November 27,
1992, 14 the appellate court modified the decision of the trial court after finding that private
respondent did not exercise fraud or bad faith in its dealings with petitioner. The dispositive portion
of the impugned decision reads:
WHEREFORE, the appealed decision is hereby MODIFIED by reducing the
amounts the trial court awarded to appellee Manolo P. Samson in that
appellants Santos & Sons, Inc. and Angel C. Santos are ordered to pay
appellee, by way of reimbursement, the P150,000.00 which the latter gave
appellants as advance payment for their store and lease right with legal
interest to be reckoned from the promulgation date of this decision; and
AFFIRMED with respect to the trial court's judgment ordering appellee to
return to appellants the latter's filing cabinet, adding machine, typewriter,
and all their unused sales invoices, receipts and blank checks, if appellee
still has any of these documents. No costs.
SO ORDERED. 15

Hence this petition for review with the following assigned errors:
3. The sum of P150,000.00, representing the loss
that the plaintiff suffered from the sale at bargain
 I Petitioner claims that their agreement was that the amount of P300,000.00 is the consideration for
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
DISREGARDING THE FOLLOWING FACTUAL FINDINGS OF THE TRIAL
COURT:
1. THAT RESPONDENTS DELIBERATELY AND
FRAUDULENTLY CONCEALED FROM THE
PETITIONER THE FACT THAT THE LEASE ON
THE SUBJECT STORE PREMISES HAD
ALREADY EXPIRED AND WOULD NO LONGER
BE RENEWED BY THE LESSOR.
2. THAT SOLELY BY REASON OF
RESPONDENTS' FRAUDULENT CONDUCT AND
BAD FAITH, PETITIONER EXERCISING THE
DILIGENCE REQUIRED UNDER THE
CIRCUMSTANCES, THE LATTER INCURRED
DAMAGES AND LOSSES.
II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING
RESPONDENTS FREE FROM LIABILITY TO PETITIONER FOR THE
DAMAGES THE LATTER HAD INCURRED ON ACCOUNT OF THE
RESPONDENTS' BAD FAITH.
The pivotal issue in the case at bench is whether or not private respondent Angel Santos
committed fraud or bad faith in representing to petitioner that his contract of lease over the subject
premises has been impliedly renewed by Susana Realty. Undoubtedly, it was this representation
which induced petitioner to enter into the subject contract with private respondent.
We find the petition devoid of merit.
Bad faith is essentially a state of mind affirmatively operating with furtive design or with some
motive of ill-will. 16 It does not simply connote bad judgment or negligence. It imports a dishonest
purpose or some moral obliquity and conscious doing of wrong. 17 Bad faith is thus synonymous
with fraud and involves a design to mislead or deceive another, not prompted by an honest mistake
as to one's rights or duties, but by some interested or sinister motive. 18
In contracts, the kind of fraud that will vitiate consent is one where, through insidious words or
machinations of one of the contracting parties, the other is induced to enter into a contract which,
without them, he would not have agreed to. 19 This is known as dolo causante or causal fraud
which is basically a deception employed by one party prior to or simultaneous to the contract in
order to secure the consent of the other.
the transfer of private respondent's leasehold right to him and he paid P150,000.00 as
downpayment therefor. He insists that private respondent acted in bad faith in assuring him that his
lease contract with Susana Realty has been impliedly renewed and would be formally renewed
upon the arrival of Tanya Madrigal (representative of Susana Realty). As evidence of private
respondent's bad faith, petitioner stresses that private respondent himself admitted that prior to
February 15, 1985, he was informed by his lawyer that he could not yet sell his lease right to
petitioner for his lease over the premises has not been renewed by Susana Realty Corporation.
After carefully examining the records, we sustain the finding of public respondent Court of Appeals
that private respondent was neither guilty of fraud nor bad faith in claiming that there was implied
renewal of his contract of lease with Susana Realty. The records will bear that the original contract
of lease between the lessor Susana Realty and the lessee private respondent was for a period of
one year, commencing on August 1, 1983 until July 31, 1984. Subsequently, however, private
respondent's lease was extended until December 31, 1984. At this point, it was clear that the
lessor had no intention to renew the lease contract of private respondent for another year.
However, on February 5, 1985, the lessor, thru its Real Estate Accountant, sent petitioner a
letter 20 of even date, worded as follows:
February 5, 1985
Mr. Angel Santos
1609-1613 C.M. Recto Avenue
Sta. Cruz, Manila
Dear Mr. Santos:
This is to notify you that the rentals for the 1609-
1613 C.M. Recto Avenue, Sta. Cruz, Manila, which
you are leasing with (sic) us has been increased
from P77.81 to P100.00 per square meter
retroactive January 1985 (as you have not vacated
the place) pending renewal of your contract until the
arrival of Miss Ma. Rosa A.S. Madrigal.
Thus, your new rate will be PESOS: FOURTEEN
THOUSAND TWO HUNDRED FIFTY ONLY
(P14,250.00) since you are occupying One Hundred
Forty-Two and 50/100 square meters.
Please note that we are charging the same for
everybody and they all agreed to pay the new rate.
We do expect your full cooperation with regards
(sic) to this matter.
Very truly yours,
 (Sgd.) JANE F. BARTOLOME part of one of the contracting parties which allegedly induced the other to enter into a contract must
Accountant-Real Estate be proved by clear and convincing evidence. This petitioner failed to do.

Clearly, this letter led private respondent to believe and conclude that his lease contract was IN VIEW WHEREOF, the appealed decision is hereby AFFIRMED in toto. Costs against petitioner.
impliedly renewed and that formal renewal thereof would be made upon the arrival of Tanya
Madrigal. This much was admitted by petitioner himself when he testified during cross-examination
that private respondent initially told him of the fact that his lease contract with Susana Realty SO ORDERED.
has already expired but he was anticipating its formal renewal upon the arrival of Madrigal. 21 Thus,
from the start, it was known to both parties that, insofar as the agreement regarding the transfer of
Narvasa, C.J., Regalado and Mendoza, JJ., concur.
private respondent's leasehold right to petitioner was concerned, the object thereof relates to a
future right. 22 It is a conditional contract recognized in civil law, 23 the efficacy of which depends
upon an expectancy the formal renewal of the lease contract between private respondent and
Susana Realty.

The records would also reveal that private respondent's lawyer informed him that he could sell the
improvements within the store for he already owned them but the sale of his leasehold right over
the store could not as yet be made for his lease contract had not been actually renewed by Susana
Realty. Indeed, it was precisely pursuant to this advice that private respondent and petitioner
agreed that the improvements in the store shall be sold to petitioner for P150,000.00 24 while the
leasehold right shall be sold for the same amount of P150,000.00, payable only upon the formal
renewal of the lease contract and the actual transfer of the leasehold right to petitioner. 25 The Republic of the Philippines
efficacy of the contract between the parties was thus made dependent upon the happening of this SUPREME COURT
suspensive condition. Manila

Moreover, public respondent Court of Appeals was correct when it faulted petitioner for failing to EN BANC
exercise sufficient diligence in verifying first the status of private respondent's lease. We thus quote
with approval the decision of the Court of Appeals when it ruled, thus:

When appellant Angel C. Santos said that the lease contract had expired G.R. No. L-25906 May 28, 1970
but that it was impliedly renewed, that representation should have put
appellee on guard. To protect his interest, appellee should have checked
with the lessor whether that was so, and this he failed to do; or he would PEDRO D. DIOQUINO, plaintiff-appellee,
have simply deferred his decision on the proposed sale until Miss vs.
Madrigal's arrival, and this appellee also failed to do. In short, as a buyer of FEDERICO LAUREANO, AIDA DE LAUREANO and JUANITO LAUREANO, defendants-
the store and lease right in question or as a buyer of any object of appellants.
commerce for that matter appellee was charged with the obligation of
caution aptly expressed in the universal maxim caveat emptor. 26
Pedro D. Dioquino in his own behalf.

Indeed, petitioner had every opportunity to verify the status of the lease contract of private
respondent with Susana Realty. As held by this Court in the case of Caram, Jr. v. Laureta, 27 the Arturo E. Valdomero, Jose L. Almario and Rolando S. Relova for defendants-appellants.
rule caveat emptor requires the purchaser to be aware of the supposed title of the vendor and he
who buys without checking the vendor's title takes all the risks and losses consequent to such
failure. In the case at bench, the means of verifying for himself the status of private respondent's
lease contract with Susana Realty was open to petitioner. Nonetheless, no effort was exerted by
petitioner to confirm the status of the subject lease right. 28 He cannot now claim that he has been FERNANDO, J.:
deceived.

The present lawsuit had its origin in a relationship, if it could be called such, the use of a car owned
In sum, we hold that under the facts proved, private respondent cannot be held guilty of fraud or by plaintiff Pedro D. Dioquino by defendant Federico Laureano, clearly of a character casual and
bad faith when he entered into the subject contract with petitioner. Causal fraud or bad faith on the
temporary but unfortunately married by an occurrence resulting in its windshield being damaged. A
stone thrown by a boy who, with his other companions, was thus engaged in what undoubtedly for
them must have been mistakenly thought to be a none too harmful prank did not miss its mark.
Plaintiff would hold defendant Federico Laureano accountable for the loss thus sustained,
including in the action filed the wife, Aida de Laureano, and the father, Juanito Laureano. Plaintiff
prevail in the lower court, the judgment however going only against the principal defendant, his
spouse and his father being absolved of any responsibility. Nonetheless, all three of them
appealed directly to us, raising two questions of law, the first being the failure of the lower court to
dismiss such a suit as no liability could have been incurred as a result of a fortuitous event and the
other being its failure to award damages against plaintiff for the unwarranted inclusion of the wife
and the father in this litigation. We agree that the lower court ought to have dismissed the suit, but
it does not follow that thereby damages for the inclusion of the above two other parties in the
complaint should have been awarded appellants.
The facts as found by the lower court follow: "Attorney Pedro Dioquino, a practicing lawyer of
Masbate, is the owner of a car. On March 31, 1964, he went to the office of the MVO, Masbate, to
register the same. He met the defendant Federico Laureano, a patrol officer of said MVO office,
who was waiting for a jeepney to take him to the office of the Provincial Commander, PC, Masbate.
Attorney Dioquino requested the defendant Federico Laureano to introduce him to one of the
clerks in the MVO Office, who could facilitate the registration of his car and the request was
graciously attended to. Defendant Laureano rode on the car of Atty. Dioquino on his way to the
P.C. Barracks at Masbate. While about to reach their destination, the car driven by plaintiff's driver
and with defendant Federico Laureano as the sole passenger was stoned by some 'mischievous
boys,' and its windshield was broken. Defendant Federico Laureano chased the boys and he was
able to catch one of them. The boy was taken to Atty. Dioquino [and] admitted having thrown the
stone that broke the car's windshield. The plaintiff and the defendant Federico Laureano with the
boy returned to the P.C. barracks and the father of the boy was called, but no satisfactory
arrangements [were] made about the damage to the
windshield." 1
It was likewise noted in the decision now on appeal: "The defendant Federico Laureano refused to
file any charges against the boy and his parents because he thought that the stone-throwing was
merely accidental and that it was due to force majeure. So he did not want to take any action and
after delaying the settlement, after perhaps consulting a lawyer, the defendant Federico Laureano
refused to pay the windshield himself and challenged that the case be brought to court for judicial
adjudication. There is no question that the plaintiff tried to convince the defendant Federico
Laureano just to pay the value of the windshield and he even came to the extent of asking the wife
to convince her husband to settle the matter amicably but the defendant Federico Laureano
refused to make any settlement, clinging [to] the belief that he could not be held liable because a
minor child threw a stone accidentally on the windshield and therefore, the same was due to force
majeure." 2
1. The law being what it is, such a belief on the part of defendant Federico Laureano was justified.
The express language of Art. 1174 of the present Civil Code which is a restatement of Art. 1105 of
the Old Civil Code, except for the addition of the nature of an obligation requiring the assumption of
risk, compels such a conclusion. It reads thus: "Except in cases expressly specified by the law, or
when it is otherwise declared by stipulation, or when the nature of the obligation requires the
assumption of risk, no person shall be responsible for those events which could not be, foreseen,
or which, though foreseen were inevitable." Even under the old Civil Code then, as stressed by us
in the first decision dating back to 1908, in an opinion by Justice Mapa, the rule was well-settled
that in the absence of a legal provision or an express covenant, "no one should be held to account
for fortuitous cases." 3 Its basis, as Justice Moreland stressed, is the Roman law principle major
casus est, cui humana infirmitas resistere non potest. 4 Authorities of repute are in agreement,
more specifically concerning an obligation arising from contract "that some extraordinary
circumstance independent of the will of the obligor, or of his employees, is an essential element of
a caso fortuito." 5 If it could be shown that such indeed was the case, liability is ruled out. There is
no requirement of "diligence beyond what human care and foresight can provide." 6
The error committed by the lower court in holding defendant Federico Laureano liable appears to
be thus obvious. Its own findings of fact repel the motion that he should be made to respond in
damages to the plaintiff for the broken windshield. What happened was clearly unforeseen. It was
a fortuitous event resulting in a loss which must be borne by the owner of the car. An element of
reasonableness in the law would be manifestly lacking if, on the circumstances as thus disclosed,
legal responsibility could be imputed to an individual in the situation of defendant Laureano. Art.
1174 of the Civil Code guards against the possibility of its being visited with such a reproach.
Unfortunately, the lower court was of a different mind and thus failed to heed its command.
It was misled, apparently, by the inclusion of the exemption from the operation of such a provision
of a party assuming the risk, considering the nature of the obligation undertaken. A more careful
analysis would have led the lower court to a different and correct interpretation. The very wording
of the law dispels any doubt that what is therein contemplated is the resulting liability even if
caused by a fortuitous event where the party charged may be considered as having assumed the
risk incident in the nature of the obligation to be performed. It would be an affront, not only to the
logic but to the realities of the situation, if in the light of what transpired, as found by the lower
court, defendant Federico Laureano could be held as bound to assume a risk of this nature. There
was no such obligation on his part.
Reference to the leading case of Republic v. Luzon Stevedoring Corp. 7 will illustrate when the
nature of the obligation is such that the risk could be considered as having been assumed. As
noted in the opinion of Justice J.B.L. Reyes, speaking for the Court: "The appellant strongly
stresses the precautions taken by it on the day in question: that it assigned two of its most powerful
tugboats to tow down river its barge L-1892; that it assigned to the task the more competent and
experienced among its patrons, had the towlines, engines and equipment double-checked and
inspected; that it instructed its patrons to take extra-precautions; and concludes that it had done all
it was called to do, and that the accident, therefore, should be held due to force majeure or
fortuitous event." Its next paragraph explained clearly why the defense of caso fortuito or force
majeure does not lie. Thus: "These very precautions, however, completely destroy the appellant's
defense. For caso fortuitoor force majeure (which in law are identical in so far as they exempt an
obligor from liability) by definition, are extraordinary events not foreseeable or avoidable, 'events
that could not be foreseen, or which, though foreseen, were inevitable' (Art. 1174, Civil Code of the
Philippines). It is, therefore, not enough that the event should not have been foreseen or
participated, as is commonly believed, but it must be one impossible to foresee or to avoid. The
mere difficulty to foresee the happening is not impossibility to foresee the same: un hecho no
constituye caso fortuito por la sola circunstancia de que su existencia haga mas dificil o mas
onerosa la accion diligente del presente ofensor' (Peirano Facio, Responsibilidad Extra-
contractual, p. 465; Mazeaud, Traite de la Responsibilite Civile, Vol. 2, sec. 1569). The very
measures adopted by appellant prove that the possibility of danger was not only foreseeable, but
actually foreseen, and was not caso fortuito."
In that case then, the risk was quite evident and the nature of the obligation such that a party could
rightfully be deemed as having assumed it. It is not so in the case before us. It is anything but that.
If the lower court, therefore, were duly mindful of what this particular legal provision contemplates,
it could not have reached the conclusion that defendant Federico Laureano could be held liable. To
repeat, that was clear error on its part.

2. Appellants do not stop there. It does not suffice for them that defendant Federico Laureano
would be freed from liability. They would go farther. They would take plaintiff to task for his
complaint having joined the wife, Aida de Laureano, and the father, Juanita Laureano. They were
far from satisfied with the lower court's absolving these two from any financial responsibility.
Appellants would have plaintiff pay damages for their inclusion in this litigation. We are not
disposed to view the matter thus.

It is to be admitted, of course, that plaintiff, who is a member of the bar, ought to have exercised
greater care in selecting the parties against whom he would proceed. It may be said that his view
of the law that would consider defendant Federico Laureano liable on the facts as thus disclosed,
while erroneous, is not bereft of plausibility. Even the lower court, mistakenly of course, entertained
similar view. For plaintiff, however, to have included the wife and the father would seem to indicate
that his understanding of the law is not all that it ought to have been.

Plaintiff apparently was not entirely unaware that the inclusion in the suit filed by him was
characterized by unorthodoxy. He did attempt to lend some color of justification by explicitly setting FIRST DIVISION
forth that the father was joined as party defendant in the case as he was the administrator of the
inheritance of an undivided property to which defendant Federico Laureano could lay claim and
that the wife was likewise proceeded against because the conjugal partnership would be made to
respond for whatever liability would be adjudicated against the husband.
[G.R. No. 129792. December 21, 1999]
It cannot be said that such an attempt at justification is impressed with a high persuasive quality.
Far from it. Nonetheless, mistaken as plaintiff apparently was, it cannot be concluded that he was
prompted solely by the desire to inflict needless and unjustified vexation on them. Considering the
equities of the situation, plaintiff having suffered a pecuniary loss which, while resulting from a
fortuitous event, perhaps would not have occurred at all had not defendant Federico Laureano JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA
borrowed his car, we, feel that he is not to be penalized further by his mistaken view of the law in PANELO, petitioners, vs. HONORABLE COURT OF APPEALS, CONRADO C.
including them in his complaint. Well-worth paraphrasing is the thought expressed in a United AGUILAR and CRISELDA R. AGUILAR, respondents.
States Supreme Court decision as to the existence of an abiding and fundamental principle that
the expenses and annoyance of litigation form part of the social burden of living in a society which
seeks to attain social control through law. 8 DECISION

DAVIDE, JR., C.J.:

WHEREFORE, the decision of the lower court of November 2, 1965 insofar as it orders defendant
Federico Laureano to pay plaintiff the amount of P30,000.00 as damages plus the payment of
costs, is hereby reversed. It is affirmed insofar as it dismissed the case against the other two
defendants, Juanita Laureano and Aida de Laureano, and declared that no moral damages should
be awarded the parties. Without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Teehankee, Barredo and Villamor,
JJ., concur.
Castro. J., is on leave.
In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek
the reversal of the 17 June 1996 decision[1] of the Court of Appeals in C.A. G.R. No. CV 37937 and
the resolution[2]denying their motion for reconsideration. The assailed decision set aside the 15
January 1992 judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No.
7119 and ordered petitioners to pay damages and attorneys fees to private respondents Conrado and
Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store, Makati
City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the stores branch manager,
operations manager, and supervisor, respectively. Private respondents are spouses and the parents of
Zhieneth Aguilar (ZHIENETH).
 In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvels
Department Store, Makati City. CRISELDA was signing her credit card slip at the payment and
verification counter when she felt a sudden gust of wind and heard a loud thud. She looked behind
her. She then beheld her daughter ZHIENETH on the floor, her young body pinned by the bulk of the
stores gift-wrapping counter/structure. ZHIENETH was crying and screaming for help. Although
shocked, CRISELDA was quick to ask the assistance of the people around in lifting the counter and
retrieving ZHIENETH from the floor.[3]
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated
on. The next day ZHIENETH lost her speech and thereafter communicated with CRISELDA by
writing on a magic slate. The injuries she sustained took their toil on her young body. She died
fourteen (14) days after the accident or on 22 May 1983, on the hospital bed. She was six years old.[4]
The cause of her death was attributed to the injuries she sustained. The provisional medical
certificate[5] issued by ZHIENETHs attending doctor described the extent of her injuries:
Diagnoses:
1.Shock,severe,sec.tointraabdominalinjuriesduetobluntinjury
2.Hemorrhage,massive,intraperitonealsec.tolaceration,(L)lobeliver that: (1) the proximate cause of the fall of the counter was ZHIENETHs misbehavior; (2) CRISELDA
3.Rupture,stomach,anterior&posteriorwalls
4.Completetransection,4thposition,duodenum
5.Hematoma,extensive,retroperitoneal
6.Contusion,lungs,severe
CRITICAL
After the burial of their daughter, private respondents demanded upon petitioners the
reimbursement of the hospitalization, medical bills and wake and funeral expenses [6] which they had
incurred. Petitioners refused to pay. Consequently, private respondents filed a complaint for damages,
docketed as Civil Case No. 7119 wherein they sought the payment of P157,522.86 for actual
damages, P300,000 for moral damages, P20,000 for attorneys fees and an unspecified amount for loss
of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries and
consequent death of ZHIENETH. They claimed that CRISELDA was negligent in exercising care and
diligence over her daughter by allowing her to freely roam around in a store filled with glassware and
appliances. ZHIENETH too, was guilty of contributory negligence since she climbed the counter,
triggering its eventual collapse on her. Petitioners also emphasized that the counter was made of
sturdy wood with a strong support; it never fell nor collapsed for the past fifteen years since its
construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence
of a good father of a family in the selection, supervision and control of its employees. The other
petitioners likewise raised due care and diligence in the performance of their duties and countered
that the complaint was malicious for which they suffered besmirched reputation and mental
anguish. They sought the dismissal of the complaint and an award of moral and exemplary damages
and attorneys fees in their favor.
In its decision[7] the trial court dismissed the complaint and counterclaim after finding that the
preponderance of the evidence favored petitioners. It ruled that the proximate cause of the fall of the
counter on ZHIENETH was her act of clinging to it. It believed petitioners witnesses who testified
that ZHIENETH clung to the counter, afterwhich the structure and the girl fell with the structure
falling on top of her, pinning her stomach. In contrast, none of private respondents witnesses testified
on how the counter fell. The trial court also held that CRISELDAs negligence contributed to
ZHIENETHs accident.
In absolving petitioners from any liability, the trial court reasoned that the counter was
situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not be
considered as an attractive nuisance. [8] The counter was higher than ZHIENETH. It has been in
existence for fifteen years. Its structure was safe and well-balanced. ZHIENETH, therefore, had no
business climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court its findings
was negligent in her care of ZHIENETH; (3) petitioners were not negligent in the maintenance of the
counter; and (4) petitioners were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to the conclusive
presumption that a child below nine (9) years is incapable of contributory negligence. And even if
ZHIENETH, at six (6) years old, was already capable of contributory negligence, still it was
physically impossible for her to have propped herself on the counter. She had a small frame (four feet
high and seventy pounds) and the counter was much higher and heavier than she was. Also, the
testimony of one of the stores former employees, Gerardo Gonzales, who accompanied ZHIENETH
when she was brought to the emergency room of the Makati Medical Center belied petitioners theory
that ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was asked by the
doctor what she did, ZHIENETH replied, [N]othing, I did not come near the counter and the counter
just fell on me.[9] Accordingly, Gonzales testimony on ZHIENETHs spontaneous declaration should
not only be considered as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to
have let go of ZHIENETH at the precise moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of ZHIENETHs
death, was petitioners negligence in failing to institute measures to have the counter permanently
nailed.
On the other hand, petitioners argued that private respondents raised purely factual issues
which could no longer be disturbed. They explained that ZHIENETHs death while unfortunate and
tragic, was an accident for which neither CRISELDA nor even ZHIENETH could entirely be held
faultless and blameless. Further, petitioners adverted to the trial courts rejection of Gonzales
testimony as unworthy of credence.
As to private respondents claim that the counter should have been nailed to the ground,
petitioners justified that it was not necessary. The counter had been in existence for several years
without any prior accident and was deliberately placed at a corner to avoid such accidents. Truth to
tell, they acted without fault or negligence for they had exercised due diligence on the matter. In fact,
the criminal case[10] for homicide through simple negligence filed by private respondents against the
individual petitioners was dismissed; a verdict of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and reversed the
appealed judgment. It found that petitioners were negligent in maintaining a structurally dangerous
counter. The counter was shaped like an inverted L[11] with a top wider than the base. It was top heavy
and the weight of the upper portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a downward pressure on the
overhanging portion or a push from the front could cause the counter to fall. Two former employees
of petitioners had already previously brought to the attention of the management the danger the
counter could cause. But the latter ignored their concern. The Court of Appeals faulted the petitioners
for this omission, and concluded that the incident that befell ZHIENETH could have been avoided
had petitioners repaired the defective counter. It was inconsequential that the counter had been in use
for some time without a prior incident.
Petitioners now seek the reversal of the Court of Appeals decision and the reinstatement of
the judgment of the trial court. Petitioners primarily argue that the Court of Appeals erred in
disregarding the factual findings and conclusions of the trial court. They stress that since the action
was based on tort, any finding of negligence on the part of the private respondents would necessarily
negate their claim for damages, where said negligence was the proximate cause of the injury
sustained. The injury in the instant case was the death of ZHIENETH. The proximate cause was
ZHIENETHs act of clinging to the counter. This act in turn caused the counter to fall on her. This and
CRISELDAs contributory negligence, through her failure to provide the proper care and attention to
her child while inside the store, nullified private respondents claim for damages.It is also for these
reasons that parents are made accountable for the damage or injury inflicted on others by their minor
children. Under these circumstances, petitioners could not be held responsible for the accident that
befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated from Syvels at
the time he testified; hence, his testimony might have been tarnished by ill-feelings against them.

The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the
time of the incident, was absolutely incapable of negligence or other tort. It reasoned that since a
child under nine (9) years could not be held liable even for an intentional wrong, then the six-year old
ZHIENETH could not be made to account for a mere mischief or reckless act. It also absolved
CRISELDA of any negligence, finding nothing wrong or out of the ordinary in momentarily allowing
ZHIENETH to walk while she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found
them biased and prejudiced. It instead gave credit to the testimony of disinterested witness
Gonzales. The Court of Appeals then awarded P99,420.86 as actual damages, the amount
representing the hospitalization expenses incurred by private respondents as evidenced by the
hospital's statement of account.[12] It denied an award for funeral expenses for lack of proof to
substantiate the same. Instead, a compensatory damage of P50,000 was awarded for the death of
ZHIENETH.
For their part, private respondents principally reiterated their arguments that neither
ZHIENETH nor CRISELDA was negligent at any time while inside the store; the findings and
conclusions of the Court of Appeals are substantiated by the evidence on record; the testimony of
Gonzales, who heard ZHIENETH comment on the incident while she was in the hospitals emergency
room should receive credence; and finally, ZHIENETHs part of the res gestae declaration that she did
nothing to cause the heavy structure to fall on her should be considered as the correct version of the
gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or
attributable to negligence; and (2) in case of a finding of negligence, whether the same was
attributable to private respondents for maintaining a defective counter or to CRISELDA and
ZHIENETH for failing to exercise due and reasonable care while inside the store premises.

We quote the dispositive portion of the assailed decision,[13] thus:
WHEREFORE,premisesconsidered,thejudgmentofthelowercourtisSETASIDEandanotherone
isenteredagainst[petitioners],orderingthemtopayjointlyandseverallyunto[privaterespondents]
thefollowing:
1.P50,000.00bywayofcompensatorydamagesforthedeathofZhienethAguilar,withlegal
interest(6%p.a.)from27April1984;
An accident pertains to an unforeseen event in which no fault or negligence attaches to the
defendant.[15] It is a fortuitous circumstance, event or happening; an event happening without any
human agency, or if happening wholly or partly through human agency, an event which under the
circumstances is unusual or unexpected by the person to whom it happens.[16]
On the other hand, negligence is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or
the doing of something which a prudent and reasonable man would not do. [17] Negligence is the
failure to observe, for the protection of the interest of another person, that degree of care, precaution
and vigilance which the circumstances justly demand, whereby such other person suffers injury.[18]

2.P99,420.86asreimbursementforhospitalizationexpensesincurred;withlegalinterest(6% Accident and negligence are intrinsically contradictory; one cannot exist with the
p.a.)from27April1984; other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by
fault of any person and which could not have been prevented by any means suggested by common
3.P100,000.00asmoralandexemplarydamages; prudence.[19]

4.P20,000.00intheconceptofattorneysfees;and The test in determining the existence of negligence is enunciated in the landmark case
of Picart v. Smith,[20] thus: Did the defendant in doing the alleged negligent act use that reasonable
5.Costs. care and caution which an ordinarily prudent person would have used in the same situation? If not,
then he is guilty of negligence.[21]
Private respondents sought a reconsideration of the decision but the same was denied in the
Court of Appeals resolution[14] of 16 July 1997. We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETHs
death could only be attributed to negligence.
 We quote the testimony of Gerardo Gonzales who was at the scene of the incident and
accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice anything while the child was
being treated?
A At the emergency room we were all surrounding the child. And when the doctor asked the
child what did you do, the child said nothing, I did not come near the counter and the
counter just fell on me.
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate wala po, hindi po ako lumapit doon. Basta bumagsak.[22]
This testimony of Gonzales pertaining to ZHIENETHs statement formed (and should be
admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of Court, thus:
Partofresgestae.Statementsmadebyapersonwhileastartlingoccurrenceistakingplaceor might cause injury or accident to another since it was shaky.
immediatelypriororsubsequenttheretowithrespecttothecircumstancesthereof,maybegivenin
evidenceaspartoftheresgestae.So,also,statementsaccompanyinganequivocalactmaterialtothe Q When that gift wrapping counter was transferred at the second floor on February 12, 1983,
issue,andgivingitalegalsignificance,maybereceivedaspartoftheresgestae. will you please describe that to the honorable Court?
It is axiomatic that matters relating to declarations of pain or suffering and statements made to
a physician are generally considered declarations and admissions. [23] All that is required for their
admissibility as part of the res gestae is that they be made or uttered under the influence of a startling
event before the declarant had the time to think and concoct a falsehood as witnessed by the person
who testified in court. Under the circumstances thus described, it is unthinkable for ZHIENETH, a
child of such tender age and in extreme pain, to have lied to a doctor whom she trusted with her
life. We therefore accord credence to Gonzales testimony on the matter, i.e., ZHIENETH performed
no act that facilitated her tragic death. Sadly, petitioners did, through their negligence or omission to
secure or make stable the counters base.
Gonzales earlier testimony on petitioners insistence to keep and maintain the structurally
unstable gift-wrapping counter proved their negligence, thus:
QWhenyouassumedthepositionasgiftwrapperatthesecondfloor,willyoupleasedescribethe the management do to that (sic)
giftwrappingcounter,wereyouabletoexamine?
ABecauseeverymorningbeforeIstartworkingIusedtocleanthatcounterandsinceitisnotnailed Witness:
anditwasonlystandingonthefloor,itwasshaky.
xxx
Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon on [sic] May 9
1983?
A At that hour on May 9, 1983, that counter was standing beside the verification counter. And
since the top of it was heavy and considering that it was not nailed, it can collapse at
anytime, since the top is heavy.
xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond of
putting display decorations on tables, he even told me that I would put some
decorations. But since I told him that it not[sic] nailed and it is shaky he told me better
inform also the company about it. And since the company did not do anything about the
counter, so I also did not do anything about the counter.[24] [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:
Q Will you please described [sic] to the honorable Court the counter where you were assigned in
January 1983?
xxx
A That counter assigned to me was when my supervisor ordered me to carry that counter to
another place. I told him that the counter needs nailing and it has to be nailed because it
A I told her that the counter wrapper [sic] is really in good [sic] condition; it was shaky. I told
her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?
A She told me Why do you have to teach me. You are only my subordinate and you are to teach
me? And she even got angry at me when I told her that.
xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of
xxx
None, sir. They never nailed the counter. They only nailed the counter after the accident
happened.[25] [Emphasis supplied]
 Without doubt, petitioner Panelo and another store supervisor were personally informed of the WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the
danger posed by the unstable counter. Yet, neither initiated any concrete action to remedy the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby
situation nor ensure the safety of the stores employees and patrons as a reasonable and ordinary AFFIRMED.
prudent man would have done. Thus, as confronted by the situation petitioners miserably failed to
discharge the due diligence required of a good father of a family. Costs against petitioners.

On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that SO ORDERED.
the formers testimonies were biased and tainted with partiality. Therefore, the allegation that
Gonzales and Guevarras testimonies were blemished by ill feelings against petitioners since they Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.
(Gonzales and Guevarra) were already separated from the company at the time their testimonies were
offered in court was but mere speculation and deserved scant consideration.

It is settled that when the issue concerns the credibility of witnesses, the appellate courts will
not as a general rule disturb the findings of the trial court, which is in a better position to determine
the same. The trial court has the distinct advantage of actually hearing the testimony of and observing
the deportment of the witnesses. [26] However, the rule admits of exceptions such as when its
evaluation was reached arbitrarily or it overlooked or failed to appreciate some facts or circumstances
of weight and substance which could affect the result of the case. [27] In the instant case, petitioners
failed to bring their claim within the exception.

Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that
favors children below nine (9) years old in that they are incapable of contributory negligence. In his
book,[28] former Judge Cezar S. Sangco stated: Republic of the Philippines
SUPREME COURT
Manila
Inourjurisdiction,apersonundernineyearsofageisconclusivelypresumedtohaveactedwithout
discernment,andis,onthataccount,exemptfromcriminalliability.Thesamepresumptionandalike
exemptionfromcriminalliabilityobtainsinacaseofapersonovernineandunderfifteenyearsof EN BANC
age,unlessitisshownthathehasactedwithdiscernment.Sincenegligencemaybeafelonyanda
quasidelictandrequireddiscernmentasaconditionofliability,eithercriminalorcivil,achildunder
G.R. No. 137347 March 4, 2004
nineyearsofageis,byanalogy,conclusivelypresumedtobeincapableofnegligence;andthatthe
presumptionoflackofdiscernmentorincapacityfornegligenceinthecaseofachildoverninebut
underfifteenyearsofageisarebuttableone,underourlaw.Therule,therefore,isthatachildunder PEOPLE OF THE PHILIPPINES, appellee,
nineyearsofagemustbeconclusivelypresumedincapableofcontributorynegligenceasamatterof vs.
law.[Emphasissupplied] PO3 FERDINAND FALLORINA Y FERNANDO, appellant.

Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over
the counter, no injury should have occurred if we accept petitioners theory that the counter was stable
and sturdy. For if that was the truth, a frail six-year old could not have caused the counter to
collapse. The physical analysis of the counter by both the trial court and Court of Appeals and a
scrutiny of the evidence[29]on record reveal otherwise, i.e., it was not durable after all. Shaped like an DECISION
inverted L, the counter was heavy, huge, and its top laden with formica. It protruded towards the
customer waiting area and its base was not secured.[30]

CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH
held on to CRISELDAs waist, later to the latters hand. [31] CRISELDA momentarily released the
childs hand from her clutch when she signed her credit card slip. At this precise moment, it was
reasonable and usual for CRISELDA to let go of her child. Further, at the time ZHIENETH was
pinned down by the counter, she was just a foot away from her mother; and the gift-wrapping counter CALLEJO, SR., J.:
was just four meters away from CRISELDA. [32] The time and distance were both
significant. ZHIENETH was near her mother and did not loiter as petitioners would want to impress For automatic review is the Decision1 of the Regional Trial Court of Quezon City, Branch 95,
upon us. She even admitted to the doctor who treated her at the hospital that she did not do anything;
convicting appellant PO3 Ferdinand Fallorina y Fernando of murder for the killing of eleven-year-
the counter just fell on her.
old Vincent Jorojoro, Jr. while the latter was flying his kite on top of a roof. The court a quo
sentenced the appellant to suffer the death penalty.
The accusatory portion of the Information charging the appellant with murder reads:
That on or about the 26th day of September 1998, in Quezon City, Philippines, the said
accused, with intent to kill, by means of treachery and taking advantage of superior
strength, did then and there, wilfully, unlawfully and feloniously attack, assault and
employ personal violence upon the person of VINCENT JOROJORO, JR. y
MORADAS, a minor, eleven (11) years of age, by then and there, shooting him with a
gun, hitting him on the head, thereby inflicting upon him serious and mortal wound
which was the direct and immediate cause of his death, to the damage and prejudice of
the heirs of the said offended party.
CONTRARY TO LAW.2
Upon arraignment on October 20, 1998, the appellant, with the assistance of counsel, pleaded not
guilty. Thereafter, trial ensued.
Case for the Prosecution3
Eleven-year-old Vincent Jorojoro, Jr. was the third child of Vicente and Felicisima Jorojoro. The
family lived at Sitio Militar, Barangay Bahay Toro, Project 8, Quezon City. Vincent, nicknamed
"Hataw," was a grade three pupil whose education was sponsored by the Spouses Petinato, an
American couple, through an educational foundation. 4
The appellant was an officer of the Philippine National Police detailed in the Traffic Management
Group (TMG) based in Camp Crame, Quezon City, but was on detached service with the
Motorcycle Unit of the Metropolitan Manila Development Authority (MMDA).
At about 2:30 p.m. of September 26, 1998, Vincent asked permission from his mother Felicisima if
he could play outside. She agreed. 5 Together with his playmate Whilcon "Buddha" Rodriguez,
Vincent played with his kite on top of the roof of an abandoned carinderia beside the road in Sitio
Militar, Barangay Bahay Toro. Beside this carinderiawas a basketball court, where fourteen-year-
old Ricardo Salvo and his three friends, nicknamed L.A., Nono and Puti, were playing backan, a
game of basketball.
Ricardo heard the familiar sound of a motorcycle coming from the main road across the basketball
court. He was nonplussed when he looked at the person driving the motorcycle and recognized the
appellant. Ricardo knew that the appellant abhorred children playing on the roof of
the carinderia and berated them for it. His friend Ong-ong had previously been scolded by the
appellant for playing on the roof.
Ricardo called on Vincent and Whilcon to come down from the roof. When the appellant saw
Vincent and Whilcon, the former stopped his motorcycle and shouted at them, "Putang inang mga
batang ito, hindi kayo magsibaba d'yan!" After hearing the shouts of the appellant, Whilcon
immediately jumped down from the roof.6 Vincent, meanwhile, was lying on his stomach on the
roof flying his kite. When he heard the appellant's shouts, Vincent stood up and looked at the latter.
Vincent turned his back, ready to get down from the roof. Suddenly, the appellant pointed his .45
caliber pistol7 towards the direction of Vincent and fired a shot. Vincent was hit on the left parietal
area. He fell from the roof, lying prostrate near the canal beside the abandoned carinderia and the
basketball court.8
Whilcon rushed to help Vincent up but was shocked when he saw blood on the latter's head.
Whilcon retreated and left his friend.9 The appellant approached Vincent and carried the latter's
hapless body in a waiting tricycle and brought him to the Quezon City General Hospital. Vincent
was pronounced dead on arrival.
Meantime, word reached Vincent's parents that their son was shot and brought to the hospital.
They rushed to the hospital, only to see their son's already lifeless body. The appellant was
nowhere to be found.
Dr. Ravell Ronald R. Baluyot of the Medico-Legal Division of the National Bureau of Investigation
(NBI) conducted an autopsy where he made the following findings:
Cyanosis, lips and nailbeds.
Abrasion, 7.0 x 2.0 cms., right arm, middle third, postero-lateral aspect.
Contused-abrasion, 14.5 x 2.5 cms., postero-lateral chest wall, right side.
Gunshot Wound, Entrance, 3.0 x 0.8 cms., roughly ovaloid, with irregular edges,
abrasion collar widest postero-inferiorly, located at the head, left parietal area, 9.0 cms.
above and 8.0 cms. behind the left external auditory meatus, directed forward upward
and from left to right, involving the scalp, fracturing the left parietal bone (punched-in),
lacerating the left and right cerebral hemispheres of the brain, fracturing the right
parietal bone (punched-out), lacerating the scalp, making an Exit wound, 3.3 x 1.0
cms., stellate with everted and irregular edges, 12.0 cms. above and 2.0 cms. in front
of the right external auditory meatus.
Intracranial hemorrhage, subdural and subarachnoid, extensive, bilateral.
Scalp hematoma, fronto-parietal areas, bilateral.
Visceral organs, congested.
Stomach, one-fourth (1/4) filled with partially digested food particles.
CAUSE OF DEATH: GUNSHOT WOUND, HEAD.10
Dr. Baluyot testified that the victim died from a single gunshot wound in the head. The bullet
entered the left upper back portion of the head (above the level of the left ear) 11 and exited to the
right side.12 Dr. Baluyot signed Vincent's certificate of death. 13
At about 3:00 p.m., SPO2 Felix Pajarillo and Police Inspector Abelardo P. Aquino proceeded to the
scene of the shooting but failed to find the victim and the appellant. They proceeded to the Quezon
City General Hospital where they heard that the victim had died. They returned to the crime scene
and recovered an empty shell from a .45 caliber gun.14
On September 28, 1998, Major Isidro Suyo, the Chief of the MMDA Motorcycle Unit to which the
appellant was assigned on detached service, reported to the Sangandaan Police Station that the
appellant had not reported for duty.15 At 2:10 p.m. of September 29, 1998, Police Senior
Superintendent Alfonso Nalangan, the Regional Director of the PNP-TMG, NCR, surrendered the
appellant to the Sangandaan Police Station together with his .45 caliber pistol bearing Serial No.
AOC-38701.16
Meantime, upon the urging of Vicente Jorojoro, Ricardo was brought to the Department of Justice
where he was enrolled under its Witness Protection Program. He gave his sworn statement to NBI
Special Agent Roberto Divinagracia on September 29, 1998. 17 On the same date, P/Insp. Abelardo
Aquino wrote the Chief of the PNP Crime Laboratory Examination Unit requesting for the ballistic
examination of the .45 caliber pistol with Serial No. AOC-38701 and the empty shell of a .45 caliber
gun found at the scene of the shooting.18 Before noon on September 30, 1998, Divinagracia
arrived at the station and turned over two witnesses, Raymond Castro and Ricardo Salvo. He also
turned over the witnesses' sworn statements. 19 On October 2, 1998, on orders of the police station
commander,20 Pajarillo took pictures of the crime scene, including the carinderia and the roof with a
bullet hole as part of the office filing.21 He did not inform the prosecution that he took such pictures,
nor did he furnish it with copies thereof. However, the appellant's counsel learned of the existence
of the said pictures.
On October 5, 1998, P/Insp. Mario Prado signed Firearms Identification Report No. FAIB-124-98
stating that:
FINDINGS:
Microscopic examination and comparison of the specimen marked "FAP"
revealed the same individual characteristics with cartridge cases fired from
the above-mentioned firearm.
CONCLUSION:
The specimen marked "FAP" was fired from the above-mentioned caliber .
45 Thompson Auto Ordnance pistol with serial number AOC-38701. 22
Vincent's family suffered mental anguish as a result of his death. As evidenced by receipts, they
spent P49,174 for the funeral.23
Case for the Appellant
The appellant denied shooting Vincent. He testified that at about 1:30 p.m. of September 26, 1998,
Macario Ortiz, a resident of Sitio San Jose, Quezon City, asked for police assistance; Macario's
brother-in-law was drunk and armed with a knife, and was creating trouble in their house. The
appellant's house was located along a narrow alley (eskinita) perpendicular to the main road. It
was 200 meters away from Macario's house.24 Responding to the call, the appellant took his .45
service revolver, cocked it, put the safety lock in place and tucked the gun at his right waistline. He
brought out his motorcycle from the garage and slowly negotiated the bumpy alley leading to the
main road. Macario, who was waiting for him at the main road, called his attention to his revolver
which was about to fall off from his waist. The appellant got distracted and brought his motorcycle
to the right side of the road, near the abandoned carinderia where he stopped. As he stepped his
right foot on the ground to keep himself from falling, the appellant lost his balance and slipped to
the right. At this point, the revolver fell to the ground near his foot and suddenly went off.
Bystanders shouted, "Ano yon, ano yon, mukhang may tinamaan." He picked up his gun and
examined it. He put the safety latch back on and tucked it at his right waistline. He then told
Macario to wait for a while to check if somebody was really hit. He went near the
abandoned carinderia and saw Vincent sprawled to the ground. He picked up the bloodied child,
boarded him on a tricycle on queue and instructed its driver, Boy Candaje, to bring the boy to the
hospital.25 On board the tricycle were Jeffrey Dalansay and Milbert Doring.
The appellant rode his motorcycle and proceeded to his mother's house in Caloocan City but did
not inform her of the incident. He then called his superior officer, Major Isidro Suyo, at the Base
103, located at Roces Avenue, Quezon City. The appellant informed Major Suyo that he met an
accident; that his gun fell and fired; and, that the bullet accidentally hit a child. He also told his
superior that he might not be able to report for work that day and the following day. He assured his
superior that he would surrender later. He then went to Valenzuela City to the house of his friend
PO3 Angelito Lam, who was a motorcycle unit cop. The appellant stayed there for three days. He
also visited friends during that time.
On September 29, 1998, he went to the office of Major Suyo and surrendered his .45 caliber pistol.
Major Suyo accompanied and turned over the appellant to the commanding officer at Camp
Crame, Quezon City. The appellant was subjected to a neuro and drug test. He stated that the
results of the drug test were negative. The appellant was then referred to the Sangandaan Police
Station for investigation.26 The pictures27 of the crime scene were given to him by Barangay Tanod
Johnny Yaket, shown in one of the pictures pointing to a bullet hole. The appellant's testimony was
corroborated in pari materia by Macario Ortiz.
Leonel Angelo Balaoro, Vincent's thirteen-year-old playmate, testified that at 1:30 p.m. of
September 26, 1998, he was playing basketball at Barangay Bahay Toro, at the basketball court
along the road beside the chapel. With him were Ricardo, Puti and Nono. Vincent was on the
rooftop of the carinderia with Whilcon. While Puti was shooting the ball, an explosion ensued. He
and Ricardo ran beside the chapel near the basketball court. He looked back towards the
basketball court and saw the appellant, about 15 meters away from the canal, holding the prostrate
and bloodied Vincent. He did not see the appellant shoot Vincent. He did not report what he saw to
the police authorities. He was ordered by his father to testify for the appellant. He also testified that
his mother was related to Daniel, the appellant's brother.
On January 19, 1999, the trial court rendered judgment convicting the appellant of murder,
qualified by treachery and aggravated by abuse of public position. The trial court did not appreciate
in favor of the appellant the mitigating circumstance of voluntary surrender. The decretal portion of
the decision reads:
WHEREFORE, judgment is hereby rendered finding the accused PO3 Ferdinand
Fallorina y Fernando GUILTY beyond reasonable doubt of the crime of Murder defined
in and penalized by Article 248 of the Revised Penal Code, as amended by Republic
Act No. 7659, and in view of the presence of the aggravating circumstance of taking
advantage by the accused of his public position (par. 1, Art. 14, Revised Penal Code),
is hereby sentenced to suffer the penalty of DEATH.
The accused is hereby ordered to indemnify the heirs of the late Vincent Jorojoro, Jr.
the amounts of P49,174.00, as actual damages; P50,000.00, as moral damages;
P25,000.00, as exemplary damages; and, P50,000.00, as death indemnity.
The accused is to pay the costs.
The .45 caliber pistol, service firearm (Exh. "R") of the accused, shall remain under the
custody of the Court and shall be disposed of in accordance with the existing rules and
regulations upon the finality of this decision.28
The appellant assigned the following errors for resolution:
1. THE COURT A QUO SERIOUSLY ERRED IN NOT GIVING DUE CREDENCE TO
RELEVANT PHYSICAL EVIDENCE, WHICH IF CONSIDERED COULD HAVE
ALTERED THE CONCLUSIONS ARRIVED AT BY THE COURT AND THE OUTCOME
OF THE CASE.
2. THE COURT A QUO SERIOUSLY ERRED BY OVERSTEPPING THE LINE OF
JUDGING AND ADVOCACY, AND GOING INTO THE REALM OF SPECULATION,
PATENTLY DEMONSTRATING BIAS AND PARTIALITY.
3. THE COURT A QUO ERRED IN GIVING UNDUE CREDENCE TO THE
TESTIMONY OF RICARDO SALVO, ALLEGED PROSECUTION EYEWITNESS,
WHOSE TESTIMONY IS WANTING IN PROBABILITY, AS IT IS CONTRARY TO THE
COMMON EXPERIENCE OF MANKIND.
4. THE COURT A QUO GRAVELY ERRED IN INEQUITABLY APPRECIATING
EXCULPATORY AND INCULPATORY FACTS AND CIRCUMSTANCES WHICH
SHOULD HAVE BEEN CONSIDERED IN FAVOR OF THE ACCUSED.
5. THE COURT A QUO ERRED IN FAILING TO APPRECIATE THE MITIGATING
CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR OF THE ACCUSED.
6. THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE AGGRAVATING
CIRCUMSTANCE OF TAKING ADVANTAGE OF HIS POSITION BY ACCUSED. 29
The appellant asserts that the trial court failed to appreciate in his favor the physical evidence, viz.,
the hole found on the rooftop of the carinderia where Vincent was when he was shot. The
appellant contends that the picture30taken on October 2, 1998 by no less than SPO2 Felix Pajarillo,
one of the principal witnesses of the prosecution, and the pictures 31 showing Barangay Tanod
Yaket pointing to a hole on the roof buttress the defense of the appellant that the shooting was
accidental. The appellant maintains that his service revolver fell to the ground, hit a hard object,
and as the barrel of the gun was pointed to an oblique direction, it fired, hitting the victim who was
on the rooftop. The bullet hit the back portion of the victim's head, before exiting and hitting the
rooftop. The appellant posits that the pictures belie Ricardo's testimony that he deliberately shot
the victim, and, instead, complements Dr. Baluyot's testimony that the gunshot wound came from
somewhere behind the victim, somewhere lower than the point of entrance. The appellant invokes
P/Insp. Mario Prado's testimony that if a gun hits the ground in an oblique position, the gun will fire
and the bullet will exit in the same position as the gun, that is, also in an oblique position.
The Office of the Solicitor General, for its part, asserts that the contention of the appellant is based
on speculations and surmises, the factual basis for his conclusion not having been proven by
competent and credible evidence. There is no evidence on record that the hole shown in the
pictures32 was caused by a bullet from a .45 caliber pistol. The appellant did not present Barangay
Tanod Johnny Yaket, who was shown in the pictures, to testify on the matter. The appellant failed
to prove that any slug was found on the rooftop or under the roof which came from the appellant's .
45 caliber pistol. According to the Solicitor General, the pictures relied upon by the appellant
cannot overcome the positive and straightforward testimony of the young eyewitness Ricardo
Salvo.
We agree with the Office of the Solicitor General. Whether or not the appellant is exempt from
criminal liability is a factual issue. The appellant was burdened to prove, with clear and convincing
evidence, his affirmative defense that the victim's death was caused by his gun accidentally going
off, the bullet hitting the victim without his fault or intention of causing it; hence, is exempt from
criminal liability under Article 12, paragraph 4 of the Revised Penal Code which reads
The following are exempt from criminal liability:
4. Any person who, while performing a lawful act with due care, causes an injury by
mere accident without fault or intention of causing it.
The basis for the exemption is the complete absence of intent and negligence on the part of the
accused. For the accused to be guilty of a felony, it must be committed either with criminal intent or
with fault or negligence.33
The elements of this exempting circumstance are (1) a person is performing a lawful act; (2) with
due care; (3) he causes an injury to another by mere accident; and (4) without any fault or intention
of causing it.34 An accident is an occurrence that "happens outside the sway of our will, and
although it comes about through some act of our will, lies beyond the bounds of humanly A Yes, Your Honor.
foreseeable consequences." If the consequences are plainly foreseeable, it will be a case of
negligence.
Q What about the hammer, how was the hammer at that time when you tucked the
gun in your waistline?
In Jarco Marketing Corporation v. Court of Appeals,35 this Court held that an accident is a fortuitive
circumstance, event or happening; an event happening without any human agency, or if happening
wholly or partly through human agency, an event which under the circumstance is unusual or A The hammer was cocked like this.
unexpected by the person to whom it happens. Negligence, on the other hand, is the failure to
observe, for the protection of the interest of another person, that degree of care, precaution and
COURT:
vigilance which the circumstances justly demand without which such other person suffers injury.
Accident and negligence are intrinsically contradictory; one cannot exist with the other. 36 In criminal
negligence, the injury caused to another should be unintentional, it being simply the incident of Can you not stipulate that the hammer is moved backwards near the safety grip.
another act performed without malice.37 The appellant must rely on the strength of his evidence
and not on the weakness of that of the prosecution because by admitting having caused the death
of the victim, he can no longer be acquitted. ATTY. AND PROS. SINTAY:

In this case, the appellant failed to prove, with clear and convincing evidence, his defense. Admitted, Your Honor.

First. The appellant appended to his counter-affidavit in the Office of the Quezon City Prosecutor ATTY. PEREZ:
the pictures showing the hole on the roof of the carinderia38 to prove that he shot the victim
accidentally. However, when the investigating prosecutor propounded clarificatory questions on the
appellant relating to the pictures, the latter refused to answer. This can be gleaned from the Yes, Your Honor.
resolution of the investigating prosecutor, thus:
COURT: (to the witness)
Classificatory questions were propounded on the respondent but were refused to be
answered. This certainly led the undersigned to cast doubt on respondent's allegations. Q You are a policeman, if there is a bullet inside the barrel of the gun and then the
The defenses set forth by the respondent are evidentiary in character and best hammer is moved backwards and therefore it is open, that means that if you pull the
appreciated in a full-blown trial; and that the same is not sufficient to overcome trigger, the bullet will fire because the hammer will move forward and then hit the base
probable cause.39 of the bullet?

Second. The appellant did not see what part of the gun hit the victim. 40 There is no evidence A Yes, Your Honor.
showing that the gun hit a hard object when it fell to the ground, what part of the gun hit the ground
and the position of the gun when it fell from the appellant's waist.
Q Therefore, the gun was cocked when you came out?
Third. In answer to the clarificatory questions of the court, the appellant testified that the chamber
of his pistol was loaded with bullets and was cocked when he placed it on his right waistline. 41 He A Yes, Your Honor.
also testified that the gun's safety lock was on. He was asked if the gun would fire if the hammer is
moved backward with the safety lock in place, and the appellant admitted that even if he pulled
hard on the trigger, the gun would not fire: Q You did not place the safety lock before you went out of your house?

Q Is this your service firearm? A I safety (sic) it, sir.

A Yes, Your Honor. Q So when you boarded the motorcycle, the gun was on a safety lock?

Q So the chamber might have been loaded when you went out of the house? A Yes, Your Honor.
Q Will you please place the safety lock of that gun, point it upwards. Q That even if I pushed the safety grip forward, like this.

(witness did as instructed) The Court gave the gun to the accused for him to demonstrate.

It is now on a safety locked (sic)? (to the witness)

A Yes, Your Honor. You push it forward in order to push the hammer. Hard if you want but do not remove
the safety lock.

Q Pull the trigger if the hammer will move forward?

(witness did as instructed)

(witness did as instructed)

The witness tried to push the safety grip and it does not touch the hammer even if the
hammer is cocked.42
A It will not, Your Honor.

Fourth. The trial court was witness as the appellant's counsel himself proved that the defense
COURT: (to the parties) proffered by the appellant was incredible. This can be gleaned from the decision of the trial court:

Q Can you not admit that at this position, the accused pulled the trigger, the 3. More importantly, and which the Court considers it as providential, when the counsel
hammer did not move forward? of the accused was holding the gun in a cocked position and the safety lock put in
place, the gun accidentally dropped on the cemented floor of the courtroom and the
gun did not fire and neither was the safety lock moved to its unlock position to cause
PROS. SINTAY AND ATTY. PRINCIPE:
the hammer of the gun to move forward. The safety lock of the gun remained in the
same position as it was when it dropped on the floor.43
Admitted, Your Honor.
Fifth. After the shooting, the appellant refused to surrender himself and his service firearm. He hid
COURT: (to the witness) from the investigating police officers and concealed himself in the house of his friend SPO3
Angelito Lam in Valenzuela City, and transferred from one house to another for three days to
prevent his arrest:
Q And therefore at this position, even if I pull the trigger many times, a bullet will not
come out from the muzzle of the gun because the hammer is on a safety locked (sic)?
Q So did you surrender that afternoon of September 26, 1998?

A Yes, Your Honor.

A No, Your Honor.

Q Even if I pushed it very hard, it will not fire the gun?

Q I thought you were surrendering to Major Suyo?

A Yes, Your Honor.

A I was but I was not able to surrender to Major Suyo, Your Honor.

Q Alright, I will ask you again a question. If the hammer of the gun is like this and
therefore it is open but it is on a safety lock, there is space between the safety grip
which is found below the hammer, there is a space, is it not?
A Yes, Your Honor.
Q Why, you were already able to talk to Major Suyo?
A Because at that time I was already confused and did not know what to do, Your
Honor.
ATTY. PRINCIPE: (to the witness)
Q What is your relation with PO3 Angelito Lam of Valenzuela?
A Just my co-motorcycle unit cop in the TMG, sir.
Q Did I hear you right that you slept at the residence of PO3 Lam for three days?
A Yes, sir.
Q Why instead of going home to your residence at Bahay Toro?
A Because I am worried, sir.
COURT: (to the witness)
Q So what did you do for three days in the house of PO3 Lam?
A During daytime, I go to my friends, other friends and in the evening, I go back to
the house of PO3 Lam, Your Honor.
Q So if you were able to visit your friends on September 27 or 28, 1998 and then
returned to the house of PO3 Lam in the evening, why did you not go to Major Suyo or
to your 103 Base?
A Your Honor, during those days I am really calling Major Suyo.
Q Why did you not go to your office at Camp Crame, Quezon City?
A At that time, I did not have money, Your Honor.
Q What is the connection of you having money to that of informing your officer that
you will surrender?
A What I know, Your Honor, is that if I do that I will already be detained and that I
will have no money to spend.
ATTY. PRINCIPE: (to the witness)
Q Mr. Witness, from the time of the incident up to Sept. 29, 1998, you did not even
visit your family in Barangay Bahay Toro?
A No, sir.
COURT: (to the witness)
Q Did you send somebody to visit your family?
A No, Your Honor.
ATTY. PRINCIPE: (to the witness)
Q Did you cause to blotter the shooting incident of Vincent?
A I was not able to do that, sir.
Q You did not even talk to the Bgy. Officials in Bgy. Bahay Toro?
A No sir, because I already brought the child to the hospital. 44
The conduct of the appellant after the shooting belies his claim that the death of the victim was
accidental and that he was not negligent.
We agree with the encompassing disquisitions of the trial court in its decision on this matter:
The coup de grace against the claim of the accused, a policeman, that the victim was
accidentally shot was his failure to surrender himself and his gun immediately after the
incident. As a police officer, it is hard to believe that he would choose to flee and keep
himself out of sight for about three (3) days if he indeed was not at fault. It is beyond
human comprehension that a policeman, who professes innocence would come out
into the open only three (3) days from the incident and claim that the victim was
accidentally shot. Human behavior dictates, especially when the accused is a
policeman, that when one is innocent of some acts or when one is in the performance
of a lawful act but causes injury to another without fault or negligence, he would, at the
first moment, surrender to the authorities and give an account of the accident. His
failure to do so would invite suspicion and whatever account or statement he would
give later on becomes doubtful.
For the accused, therefore, to claim that Vincent was accidentally shot is odious, if not,
an insult to human intelligence; it is incredible and unbelievable, and more of a fantasy
than a reality. It was a deliberate and intentional act, contrary to accused's claim, that it
happened outside the sway of his will.45
It is a well-entrenched rule that findings of facts of the trial court, its calibration of the testimonies of
the witnesses, its assessment of the credibility of the said witnesses and the probative weight of
their testimonies are accorded high respect, if not conclusive effect by the appellate court, as the
trial judge was in a better position to observe the demeanor and conduct of the witnesses as they Q: You included in this Exhibit O your drawing the figure of a certain Jeffrey and
testified.46 We have carefully reviewed the records of the case and found no reason to deviate from you and his tricycle? Why did you include this drawing?
the findings of the trial court.

A: Because it was in the tricycle where Vincent was boarded to and brought to the
The testimony of prosecution witness Ricardo Salvo deserves credence. He testified in a positive hospital.
and straightforward manner, which testimony had the earmarks of truth and sincerity. Even as he
was subjected to a grueling cross-examination by the appellant's counsel, he never wavered in his
testimony. He positively identified the appellant as the assailant and narrated in detail how the (Witness referring to Exhibit O-11)
latter deliberately aimed his gun and shot the victim. The relevant portions of his testimony are
quoted:
Q: And who was the driver of that tricycle?

Q: While playing basketball with Nono, LA and Puti, do you remember of any
A: It was Jeffrey who drove the tricycle, sir.
unusual incident which took place?

Q: You also drew here a motorcycle already marked as Exhibit O-7. Why did you
A: Yes, sir.
include the motorcycle?

Q: What was that unusual incident?

A: Because Fallorina was riding on that motorcycle at that time.

A: When Vincent was shot, sir.

COURT: (to the witness)

Q: Who shot Vincent?

Q: So when Ferdinand Fallorina shot the boy, the motorcycle was moving?

A: Ferdinand Fallorina, sir.

A: It was stationary, your Honor.

Q: Did you see where he came from, I am referring to Fallorina before you saw him
shot the boy?
Q: And in what place that Vincent was shot by Fallorina?

A: He was at the roof of the karinderia, sir.
A: He came from their house, Your Honor.
Q: Was there any companion of Vincent?
Q: What was his attire, I am referring to Ferdinand Fallorina?
A: Yes, sir.
A: He was wearing white shirt and blue pants, Your Honor.
Q: What was the position of Vincent at that time that you saw him and Fallorina
shot him?

A: "Nakatalikod po siya."
ATTY. PRINCIPE: (to the witness)

Q: At that time that Fallorina shot the victim, was Buddha still there?
A: He ran, sir. He jumped in this place, sir. A: Only one, sir.

(Witness is pointing to a place near the canal already marked as Exhibit O-14). Q: Do you recognize the gun used by Fallorina?

Q: Now from the witness stand that you are now seated. Can you tell the Court how A: Yes, sir.
far where (sic) you from Fallorina at that time of the shooting?

Q: What was that gun?

COURT:

A: .45 cal., sir.

Can the prosecution and the accused stipulate that the distance pointed to by the
witness is more or less 7 meters.
Q: Are you familiar with .45 cal.?

A: No, sir.

ATTY. PRINCIPE: (to the witness)

Q: Why do you know that it was .45 cal.?

Q: How about the distance of Fallorina from Vincent, can you tell that?
A: Because that kind of gun, I usually see that in the movies, sir.

COURT: (to the witness)

Q: Ricardo, you said that you have known Fallorina for two (2) years and you saw
him shot Vincent on September 26, 1998 at around 2:30 in the afternoon. Please look
Can you point a distance between Fallorina and the boy at that time the body (sic) was around the courtroom now and point at the person of PO3 Ferdinand Fallorina?
shot?

CT. INTERPRETER:
COURT:

Witness is pointing to a male person the one seated at the back of the lady and
10 meters more or less? wearing a yellow shirt and maong pants and when asked of his name, he stated his
name as Ferdinand Fallorina.

ATTY. PRINCIPE: (to the witness)

Q: How long have you known Ferdinand Fallorina before the incident?
Q: Can you tell to the Court whether you heard utterances at that time that he shot
the victim?
A: More or less two years, sir.

Q: Why do you know him?

A: Yes, sir.
A: I usually see him in that place at Sitio Militar, especially on Sundays, sir.

Q: What was that?

A: "Putang inang mga batang ito, hindi kayo magsisibaba diyan!"

Q: How many shots did you hear?

Q: After Fallorina shot Vincent Jorojoro, you saw Vincent Jorojoro falling from the
roof, what about Fallorina, what did he do?
A: He was still on board his motorcycle and then he went at the back of the
karinderia where Vincent fell, Your Honor.
Q: And after he went at the back of the karinderia and looked at Vincent Jorojoro,
what did he do?
A: He carried Vincent, Your Honor.
Q: And after carrying Vincent, what did he do?
A: He boarded Vincent in the tricycle.
Q: What about the gun, what did he do with the gun?
A: I do not know anymore.47
The appellant even uttered invectives at the victim and Whilcon before he shot the victim. In fine,
his act was deliberate and intentional.
It bears stressing that of the eyewitnesses listed in the Information as witnesses for the
prosecution, only Ricardo Salvo remained steadfast after he was brought under the Witness
Protection Program of the Department of Justice. He explained that the reason why he testified for
the prosecution, despite the fact that the appellant was a policeman, was because he pitied the
victim's mother who was always crying,48 unable to obtain justice for her son. We find no ill motive
why Ricardo would falsely testify against the appellant. It was only his purest intention of ferreting
out the truth in this incident and that justice be done to the victim. 49 Hence, the testimony of
Ricardo is entitled to full faith and credence.
The Crime Committed by the Appellant
We agree with the trial court that the appellant committed murder under Article 248 of the Revised
Penal Code qualified by treachery. As the trial court correctly pointed out, Vincent was shot
intentionally while his back was turned against the appellant. The little boy was merely flying his
kite and was ready to get down from the roof when the appellant fired a shot directed at him. The
essence of treachery is the sudden and unexpected attack on an unsuspecting victim without the
slightest provocation on his part. 50 Nonetheless, Vincent was an eleven-year-old boy. He could not
possibly put up a defense against the appellant, a police officer who was armed with a gun. It is not
so much as to put emphasis on the age of the victim, rather it is more of a description of the young
victim's state of helplessness.51 Minor children, who by reason of their tender years, cannot be
expected to put up a defense. When an adult person illegally attacks a child, treachery
exists.52 The abuse of superior strength as alleged in the Information is already absorbed by
treachery and need not be considered as a separate aggravating circumstance. 53
We, however, note that the trial court appreciated the aggravating circumstance of abuse of public
position in this case. We reverse the trial court on this score.
There is no dispute that the appellant is a policeman and that he used his service firearm, the .45
caliber pistol, in shooting the victim. However, there is no evidence on record that the appellant
took advantage of his position as a policeman when he shot the victim. 54 The shooting occurred
only when the appellant saw the victim on the rooftop playing with his kite. The trial court erred in
appreciating abuse of public position against the appellant.
The trial court did not, however, err in ruling that the appellant is not entitled to the mitigating
circumstance of voluntary surrender. Surrender is said to be voluntary when it is done by the
accused spontaneously and made in such a manner that it shows the intent of the accused to
surrender unconditionally to the authorities, either because he acknowledges his guilt or he wishes
to save them the trouble and expense necessarily incurred in his search and capture. 55
In this case, the appellant deliberately evaded arrest, hid in the house of PO3 Lam in Valenzuela
City, and even moved from one house to another for three days. The appellant was a policeman
who swore to obey the law. He made it difficult for his brother-officers to arrest him and terminate
their investigation. It was only after the lapse of three days that the appellant gave himself up and
surrendered his service firearm.
Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to
death. Since there is no modifying circumstance in the commission of the crime, the appellant
should be sentenced to suffer the penalty of reclusion perpetua, conformably to Article 63 of the
Revised Penal Code.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Quezon City,
Branch 95, is AFFIRMED WITH MODIFICATION. The appellant PO3 Ferdinand Fallorina y
Fernando is found guilty beyond reasonable doubt of the crime of murder under Article 248 of the
Revised Penal Code and, there being no modifying circumstances in the commission of the crime,
is hereby sentenced to suffer the penalty of reclusion perpetua. He is also ordered to pay the heirs
of the victim Vincent Jorojoro, Jr. the amount of P49,174 as actual damages; P50,000 as moral
damages; P50,000 as civil indemnity; and P25,000 as exemplary damages.
SO ORDERED.
Davide, Jr., C.J., Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.
Puno, J., on leave.
Panganiban, J., on official leave.
 FIRST DIVISION

[G.R. No. L-46558 : July 31, 1981.]

PHILIPPINE AIR LINES, INC., Petitioner, vs. THE COURT OF APPEALS and
JESUS V. SAMSON, Respondents.

DECISION

GUERRERO, J.:

This is a petition for review on Certiorari of the decision of the Court of Appeals 1
dated April 18, 1977, affirming with modification the decision of the Court of First
Instance of Albay in Civil Case No. 1279, entitled Jesus V. Samson, plaintiff, vs.
Philippine Air Lines, Inc., defendant, for damages.
The dispositive portion of the trial courts decision reads:
WHEREFORE, for all the foregoing considerations, judgment is hereby rendered in
favor of the plaintiff and against the defendant ordering the defendant to pay the
plaintiff, the following sums: P1988,000.00 as unearned income or damages;
P50,000.00 for moral damages; P20,000.00 as attorneys fees and P5,000.00 as
expenses of litigation, or a total of P273,000.00. Costs against the defendant.
The appellate court modified the above decision, to wit:
However, Plaintiff-Appellee, who has been deprived of his job since 1954,
is entitled to the legal rate of interest on the P198,000.00 unearned income
from the filing of the complaint cranad(Sec. 8, Rule 51, Rules of Court).
WHEREFORE, with the modification indicated above, the judgment appealed
from is affirmed, with costs against defendant-appellant.
The complaint filed on July 1, 1954 by plaintiff Jesus V. Samson, private respondent
herein, averred that on January 8, 1951, he flew as co-pilot on a regular flight from
Manila to Legaspi with stops at Daet, Camarines Norte and Pili, Camarines Sur, with
Captain Delfin Bustamante as commanding pilot of a C-47 plane belonging to
defendant Philippine Air Lines, Inc., now the herein petitioner; that on attempting to
land the plane at Daet airport, Captain Delfin Bustamante due to his very slow
reaction and poor judgment overshot the airfield and as a result, notwithstanding the
diligent efforts of the plaintiff co-pilot to avert an accident, the airplane crashlanded
beyond the runway; that the jolt caused the head of the plaintiff to hit and break
through the thick front windshield of the airplane causing him severe brain
concussion, wounds and abrasions on the forehead with intense pain and
suffering cranad(par. 6, complaint).:onad
The complaint further alleged that instead of giving plaintiff expert and proper medical
treatment called for by the nature and severity of his injuries, defendant simply
referred him to a company physician, a general medical practitioner, who limited the
treatment to the exterior injuries without examining the severe brain concussion of
plaintiff cranad(par. 7, complaint); that several days after the accident, defendant
Philippine Air Lines called back the plaintiff to active duty as co-pilot, and inspite of
the latters repeated request for expert medical assistance, defendant had not given
him anycranad(par. 8, complaint); that as a consequence of the brain injury sustained
by plaintiff from the crash, he had been having periodic dizzy spells and had been
suffering from general debility and nervousness cranad(par. 9, complaint); that
defendant airline company instead of submitting the plaintiff to expert medical
treatment, discharged the latter from its employ on December 21, 1953 on grounds of
physical disability, thereby causing plaintiff not only to lose his job but to become
physically unfit to continue as aviator due to defendants negligence in not giving him
the proper medical attentioncranad(pars. 10-11, complaint). Plaintiff prayed for
damages in the amount of P180,000.00 representing his unearned income,
P50,000.00 as moral damages, P20,000.00 as attorneys fees and P5,000.00 as
expenses, or a total of P255,000.00.
In its answer filed on July 28, 1954, defendant PAL denied the substantial averments
in the complaint, alleging among others, that the accident was due solely and
exclusively to inevitable unforeseen circumstances whereby plaintiff sustained only
superficial wounds and minor injuries which were promptly treated by defendants
medical personnel cranad(par. 5, answer); that plaintiff did not sustain brain injury or
cerebral concussion from the accident since he passed the annual physical and
medical examination given thereafter on April 24, 1951; that the headaches and
dizziness experienced by plaintiff were due to emotional disturbance over his inability
to pass the required up-grading or promotional course given by defendant
company cranad(par. 6, answer), and that, as confirmed by an expert neuro-surgeon,
plaintiff was suffering-from neurosis and in view of this unfitness and disqualification
from continuing as a pilot, defendant had to terminate plaintiffs
employment cranad(pars. 7, 9, answer).
Further, defendant alleged that by the very nature of its business as a common
carrier, it is bound to employ only pilots who are proficient and in good mental,
emotional and physical condition; that the pilot, Captain Delfin Bustamante, was a
competent and proficient pilot, and although he was already afflicted with a tumor of
the nasopharynx even before the accident of January 8, 1951, the Civil Aeronautics
Administration, in passing upon the fitness of pilots, gave Capt. Bustamante a waiver
of physical standards to enable him to retain his first class airman certificate since the
affliction had not in the least affected his proficiency cranad(pars. 16-17, answer). By
way of counterclaim, defendant prayed for P10,000.00 as expenses for the litigation.
On March 25, 1958, defendant filed a Motion to Dismiss on the ground that the
complaint is essentially a Workmens Compensation claim, stating a cause of action
not cognizable within the general jurisdiction of the court. The Motion to Dismiss was
denied in the order of April 14, 1958. After the reception of evidence, the trial court
rendered on January 15, 1973 the decision, the dispositive portion of which has been
earlier cited.
The defendant Philippine Air Lines, Inc. appealed the decision to the Court of Appeals
as being contrary to law and unsupported by the evidence. It raised as errors of the
trial court cranad(a) the holding that the damages allegedly suffered by plaintiff are
attributable to the accident of January 8, 1951 which was due to the negligence of
defendant in having allowed Capt. Delfin Bustamante to continue flying despite his
alleged slow reaction and poor judgment; cranad(b) the finding that defendant was
negligent in not having given plaintiff proper and adequate expert medical treatment
and assistance for the injuries allegedly sustained in the accident of January 8, 1951;
andcranad(c) in ordering defendant to pay actual or compensatory damages, moral
damages and attorneys fees to the plaintiff.
On April 18, 1977, the Court of Appeals rendered its decision affirming the judgment
of the lower court but modified the award of damages by imposing legal rate of
interest on the P198,000.00 unearned income from the filing of the complaint, citing
Sec. 8, Rule 51 of the Rules of Court.
Its motion for reconsideration of the above judgment having been denied, Philippine
Air Lines, Inc. filed this instant petition for Certiorari on the ground that the decision is
not in accord with law or with the applicable jurisprudence, aside from its being
replete with findings in the nature of speculation, surmises and conjectures not borne
out by the evidence on record thereby resulting to misapprehension of facts and
amounting to a grave abuse of discretion cranad(p. 7, Petition).
Petitioner raises the fundamental question in the case at bar as follows: Is there a
causal connection between the injuries suffered by private respondent during the
accident on 8 January 1951 and the subsequent periodic dizzy spells, headache and
general debility of which private respondent complained every now and then, on the
one hand, and such periodic dizzy spells, headache and general debility allegedly
caused by the accident and private respondents eventual discharge from
employment, on the other? PAL submits that respondent courts award of damages to
private respondent is anchored on findings in the nature of speculations, surmises and
conjectures and not borne out by the evidence on record, thereby resulting in a
misapprehension of facts and amounting to a grave abuse of discretion.
Petitioners submission is without merit.
As found by the respondent court, the following are the essential facts of the case:
It appears that plaintiff, a licensee aviator, was employed by defendant a
few years prior to January 8, 1951 as a regular co-pilot on a guaranteed
basic salary of P750.00 a month. He was assigned to and/or paired with
pilot Delfin Bustamante.
Sometime in December 1950, he complained to defendant through its
authorized official about the slow reaction and poor judgment of pilot Delfin
Bustamante. Notwithstanding said complaint, defendant allowed the pilot to
continue flying.
On January 8, 1951, the two manned the regular afternoon flight of
defendants plane from Manila to Legaspi, with stops at Daet, Camarines
Norte, and Pili, Camarines Sur. Upon making a landing at Daet, the pilot,
with his slow reaction and poor judgment, overshot the airfield and, as a
result of and notwithstanding diligent efforts of plaintiff to avert an accident,
the airplane crash-landed beyond the runway into a mangrove. The jolt and
impact caused plaintiff to hit his head upon the front windshield of the plane
thereby causing his brain concussions and wounds on the forehead, with
concomittant intense pain.
Plaintiff was not given proper medical attention and treatment demanded by
the nature and severity of his injuries. Defendant merely referred him to its
clinic attended by general practitioners on his external injuries. His brain
injury was never examined, much less treated. On top of that negligence,
defendant recalled plaintiff to active duty as a co-pilot, completely ignoring
his plea for expert medical assistance.
Suffering periodic dizzy spells, headache and general debility, plaintiff every
now and then complained to defendant. To make matters worst for plaintiff,
defendant discharged him from his employment on December 21, 1953. In
consequence, plaintiff has been beset with additional worries, basically
financial. He is now a liability instead of a provider, of his family.
On July 1, 1954, plaintiff filed a complaint for damages. Defendant vainly
sought to dismiss the complaint after filing an answer. Then, the judgment
and this appeal.
Continuing, the respondent Court of Appeals further held:
There is no question about the employment of plaintiff by defendant, his
age and salary, the overshooting by pilot Bustamante of the airfield and
crashlanding in a mangrove, his hitting his head on the front windshield of
the plane, his intermittent dizzy spells, headache and general debility for
which he was discharged from his employment on December 21, 1953. As
the lower court aptly stated:
From the evidence adduced by the parties, the Court finds the
following facts to be uncontroverted: That the plaintiff Jesus V.
Samson, on January 8, 1951 and a few years prior thereto,
December 21, 1953, was a duly licensed pilot employed as a
regular co-pilot of the defendant with assignment in its domestic
air service in the Philippines; that on January 8, 1951, the
defendants airplane met an accident in crashlanding at the Daet
Airport, Camarines Norte by overshooting the runway and
reaching the mangroves at the edge of the landing strip; that the
jolt caused plaintiffs head to hit the front windshield of the
airplane causing him to suffer wounds and abrasion on the
forehead; that the defendant, instead of giving the plaintiff expert
and proper medical treatment called for by the nature and
severity of the injuries of the plaintiff, simply referred him to the
clinic of the defendants physicians who are only general medical
practitioners and not brain specialists; that the defendants
physicians limited their treatment to the exterior injuries on the
forehead of the plaintiff and made no examination of the severe
concussion of the brain of the plaintiff; that the Medical Director
and Flight Surgeon of the defendant were not able to definitely
determine the cause of the complaint of the plaintiff as to the
periodic attack of dizziness, spells and headache; that due to this
laxity of the defendants physician and the continuous suffering of
the ailment of the plaintiff complained of, he demanded for expert
medical assistance for his brain injury and to send him to the
United States, which demand was turned down and in effect
denied by the defendant; that instead the defendant referred the
plaintiff to a neurologist, Dr. Victor Reyes; that from the time that
said accident occurred on January 21, 1953, he was ordered
grounded on several occasions because of his complaint of dizzy
spells and headache; that instead of submitting the plaintiff to
expert medical treatment as demanded by him and denied by the
defendant, he was discharged from its employment on December
21, 1953 on the ground of physical disability, and that the
plaintiff, at the time when the defendants plane met the accident,
up to the time he was discharged, was regularly employed as a
co-pilot and receiving a basic salary of P750.00 a month plus
extra pay for flying time, and bonuses amounting to P300.00 a
month.
Even defendant-appellant itself admits as not controverted the following
facts which generally admit what have been stated above as not
controverted.
 In the case at bar, the following facts are not the subject of controversy:
(1) First, that from July 1950 to 21 December 1953, plaintiff was
employed with defendant company as a first officer or co-pilot
and served in that capacity in defendants domestic services.
(2) Second, that on January 1951, plaintiff did fly on defendants
PI-C 94, as first officer or co-pilot, with the late Capt. Delfin
Bustamante in command as pilot; that while making a landing at
the Daet airport on that date, PI-C 94 did meet an accident as
stated above.
(3) Third, that at or about the time of the discharge from
defendant company, plaintiff had complained of spells of
dizziness, headaches and nervousness, by reason of which he
was grounded from flight duty. In short, that at that time, or
approximately from November 1953 up to the date of his
discharge on 21 December 1953, plaintiff was actually physically
unfit to discharge his duties as pilot.
(4) Fourth, that plaintiffs unfitness for flight duty was properly
established after a thorough medical examination by competent
medical experts.cralaw cranad(pp. 11-12, appellants brief)
hence, there can hardly be an issue, factual, legal or medical.
Taking exception from the rest of the essential facts of the case as found by the
respondent court PAL claims said facts are not fully borne out by the evidence on
record and insists that the injuries suffered by private respondent during the accident
on January 8, 1951 were superficial in nature; that the periodic spells, headache, and
general debility complaint of every now and then by private respondent subsequent
to the Jan. 8, 1951 incident were due to emotional disturbances and that no
negligence can be attributed to Capt. Delfin Bustamante much less to PAL for the
occurrence on January 8, 1951, hence PAL cannot be held liable for damages.
Petitioner claims absence of any causal connection between private respondents
superficial injuries and his alleged subsequent periodic spells, headache and general
debility, pointing out that these subsequent ailments were found by competent
physician, including an expert neuro-surgeon, to be due to emotional disturbances
insights the conclusions of Dr. Trajano V. Bernardo that respondents complaints were
psychosomatic symptoms on the basis of declarations made by respondent himself,
which conclusions are supported by similar diagnosis made by Drs. Damaceno J. Ago
and Villaraza stating that respondent Samson was suffering from neurosis as well as
the report of Dr. Victor Reyes, a neurological specialist, indicating that the symptoms
were probably, most probably due to psychogenic factors and have no organic basis.
In claiming that there is no factual basis for the finding of the respondent court that
the crash-landing caused respondents brain concussion . cra ., with concomittant
intense pain, for on the contrary, testimonial evidence establish the superficiality of
the injuries sustained by respondent during the accident of January 8, 1951,
petitioner quotes portions of the testimony of Dr. Manuel S. Sayas, who declared that
he removed the band-aid on the forehead of respondent and that he found out after
removal that the latter had two contussed superficial wounds over the supra orbiter
regions or just above the eyes measuring one centimeter long and one millimeter
deep. He examined and found his blood pressure normal, no discharges from the nose
and ears. Dr. Trajano V. Bernardo also testified that when he examined respondent
Samson three days after the accident, the wound was already healed and found
nothing wrong with his ears, nose and throat so that he was declared fit for duty after
the sixth day.
Petitioner goes further. It contends that there is no causal connection between
respondents superficial injuries sustained during the accident on January 8, 1951 and
plaintiffs discharge from employment with PAL on December 21, 1953. According to
PAL, it was the repeated recurrence of respondents neurasthenic
symptoms cranad(dizzy spells, headache, nervousness) which prompted PALs Flight
Surgeon, Dr. Bernardo, to recommend that plaintiff be grounded permanently as
respondent was psychologically unfit to resume his duties as pilot. PAL concludes
that respondents eventual discharge from employment with PAL was effected for
absolutely valid reasons, and only after he was thoroughly examined and found unfit
to carry out his responsibilities and duties as a pilot.:onad
We agree with the respondent court in finding that the dizzy spells, headache and
general debility of private respondent Samson was an after-effect of the crash-landing
and We find that such holding is supported by substantial evidence, which We quote
from the courts decision, to wit:
Defendant would imply that plaintiff suffered only superficial wounds which
were treated and not brain injury. It would, by the opinion of its company
doctors, Dr. Bernardo and Dr. Reyes, attribute the dizzy spells and headache
to organic or as phychosomatic, neurasthenic or psychogenic, which we find
outlandishly exaggerated.
That plaintiffs condition as psychosomatic rather than organic in nature is
allegedly confirmed by the fact that on six cranad(6) separate occasions
after the accident he passed the required CAA physical examination for
airmans certificate. cranad(Exhs. 78, 79, 80, 81, 83 and 92). We noticed,
however, that there were other similar physical examinations conducted by
the CAA on the person of plaintiff the report on which were not presented in
evidence. Obviously, only those which suited defendants cause were hand-
picked and offered in evidence.
We hesitate to accept the opinion of the defendants two physicians,
considering that Dr. Bernardo admittedly referred to Dr. Reyes because he
could not determine the cause of the dizzy spells and headache and the
latter admitted that it is extremely hard to be certain of the cause of his
dizzy spells, and suggested a possibility that it was due to postraumatic
syndrome, evidently due to the injuries suffered by the plaintiff in hitting
the forehead against the windshield of the plane during the accident.
Judgment are not based on possibilities.
The admitted difficulty of defendants doctors in determining the cause of
the dizzy spells and headache cannot be a sound basis for finding against
the plaintiff and in favor of defendant. Whatever it might be, the fact is that
such dizzy spells, headache and general debility was an after-effect of the
crash-landing. Be it brain injury or psychosomatic, neurasthenic or
 psychogenic, there is no gainsaying the fact that it was caused by the
crash-landing. As an effect of the cause, not fabricated or concocted,
plaintiff has to be indemnified. The fact is that such effect caused his
discharge.
We are prone to believe the testimony of the plaintiffs doctors.
Dr. Morales, a surgeon, found that blood was coming from plaintiffs ears
and nose. He testified that plaintiff was suffering from cerebral concussion
as a result of traumatic injury to the brain caused by his head hitting on the
windshield of the plane during the crash-landing cranad(Exhibit G).
Dr. Conrado Aramil, a neurologist and psychiatrist with experience in two
hospitals abroad, found abnormality reflected by the electroencephalogram
examination in the frontal area on both sides of plaintiffs
head cranad(Exhibits K, K-1).
The opinion of these two specialist renders unnecessary that of plaintiffs
wife who is a physician in her own right and because of her relation to the
plaintiff, her testimony and opinion may not be discussed here, although her
testimony is crystallized by the opinions of Dr. Ador Dionisio, Dr. Marquez,
Dr. Jose O. Chan, Dr. Yambao and Dr. Sandico.
Even the doctors presented by defendant admit vital facts about plaintiffs
brain injury. Dr. Bernardo admits that due to the incident, the plaintiff
continuously complained of his fainting spells, dizziness and headache
everytime he flew as a co-pilot and everytime he went to defendants clinic
no less than 25 timescranad(Exhibits 15 to 36), that he complained of Mayon Volcano had not plaintiff warned him. These more than prove what plaintiff had
the same to Dr. Reyes; that he promised to help send plaintiff to the United
States for expert medical assistance provided that whatever finding thereat
should not be attributed to the crash-landing incident to which plaintiff did
not agree and that plaintiff was completely ignored by the defendant in his
plea for expert medical assistance. They admitted that they could not
determine definitely the cause of the fainting spells, dizziness and
headache, which justifies the demand for expert medical assistance.
We also find the imputation of gross negligence by respondent court to PAL for having
allowed Capt. Delfin Bustamante to fly on that fateful day of the accident on January
8, 1951 to be correct, and We affirm the same, duly supported as it is by substantial
evidence, clearly established and cited in the decision of said court which states as
follows:
The pilot was sick. He admittedly had tumor of the
nasopharynx cranad(nose). He is now in the Great Beyond. The spot is very
near the brain and the eyes. Tumor on the spot will affect the sinus, the
breathing, the eyes which are very near it. No one will certify the fitness to
fly a plane of one suffering from the disease.
. cra . The fact First Pilot Bustamante has a long standing tumor of the
Nasopharynx for which reason he was grounded since November 1947 is
admitted in the letter cranad(Exh. 69-A) of Dr. Bernardo to the Medical
Director of the CAA requesting waiver of physical standards. The request for
waiver of physical standards is itself a positive proof that the physical
condition of Capt. Bustamante is short of the standard set by the CAA. The
Deputy Administrator of the CAA granted the request relying on the
representation and recommendation made by Dr. Bernardo cranad(See Exh.
69). We noted, however, that the request cranad(Exh. 69-A) says that it is
believed that his continuing to fly as a co-pilot does not involve any
hazard.cralaw cranad(Italics supplied). Flying as a First Officer entails a
very different responsibility than flying as a mere co-pilot. Defendant
requested the CAA to allow Capt. Bustamante to fly merely as a co-pilot and
it is safe to conclude that the CAA approved the request thus allowing
Bustamante to fly only as a co-pilot. For having allowed Bustamante to fly
as a First Officer on January 8, 1951, defendant is guilty of gross negligence
and therefore should be made liable for the resulting accident.
As established by the evidence, the pilot used to get treatments from Dr. Sycangco.
He used to complain of pain in the face more particularly in the nose which caused
him to have sleepless nights. Plaintiffs observation of the pilot was reported to the
Chief Pilot who did nothing about it. Captain Carbonel of the defendant corroborated
plaintiff of this matter. The complaint against the slow reaction of the pilot at least
proved the observation. The observation could be disregarded. The fact that the
complaint was not in writing does not detract anything from the seriousness thereof,
considering that a miscalculation would not only cause the death of the crew but also
of the passengers.
One month prior to the crash-landing, when the pilot was preparing to land in Daet,
plaintiff warned him that they were not in the vicinity of Daet but above the town of
Ligao. The plane hit outside the airstrip. In another instance, the pilot would hit the
complained of. Disregard thereof by defendant is condemnable.
To bolster the claim that Capt. Bustamante has not suffered from any kind of sickness
which hampered his flying ability, appellant contends that for at least one or more
years following the accident of January 8, 1951, Capt. Bustamante continued to fly for
defendant company as a pilot, and did so with great skill and proficiency, and without
any further accident or mishap, citing tsn. pp. 756-765, January 20, 1965. We have
painstakingly perused the records, particularly the transcript of stenographic notes
cited, but found nothing therein to substantiate appellants contention. Instead, We
discovered that the citation covers the testimony of Dr. Bernardo on the physical
condition of Bustamante and nothing about his skills or proficiency to fly nor on the
mishaps or accidents, matters which are beyond Dr. Bernardos competence anyway.
Assuming that the pilot was not sick or that the tumor did not affect the pilot in
managing the plane, the evidence shows that the overshooting of the runway and
crash-landing at the mangrove was caused by the pilot for which acts the defendant
must answer for damages caused thereby. And for this negligence of defendants
employee, it is liable cranad(Joaquin vs. Aniceto, 12 SCRA 308). At least, the law
presumes the employer negligent imposing upon it the burden of proving that it
exercised the diligence of a good father of a family in the supervision of its
employees.
Defendant would want to tie plaintiff to the report he signed about the crash-landing.
The report was prepared by his pilot and because the latter pleaded that he had a
family too and would have nowhere to go if he lost his job, plaintiffs compassion
would not upturn the truth about the crash-landing. We are for the truth not logic of
any argumentation.
At any rate, it is incorrect to say that the Accident Report cranad(Exh. 12 & 12-A),
signed by plaintiff, exculpated Capt. Bustamante from any fault. We observed that the
Report does not categorically state that Capt. Bustamante was not at fault. It merely
relates in chronological sequence what Capt. Bustamante and plaintiff did from the
take-off from Manila to the landing in Daet which resulted in an accident. On the
contrary, we may infer the negligence of Bustamante from the following portion of the
Report, to wit:
. cra . I felt his brakes strong but as we neared the intersection of the NE-
SW runway, the brakes were not as strong and I glanced at the system
pressure which indicated 900 lbs. per sq. m.
It was during the above precise instance that Capt. Bustamante lost his bearing and
disposition. Had he maintained the pressure on the brakes the plane would not have
overshot the runway. Verily, Bustamante displayed slow reaction and poor
judgment.cranad(CA decision, pp. 8-12).
This Court is not impressed by, much less can We accept petitioners invocation to
calibrate once again the evidence testified to in detail and plucked from the
voluminous transcript to support petitioners own conclusion. It is not the task of this
Court to discharge the functions of a trier of facts much less to enter into a calibration
of the evidence, notwithstanding petitioners wail that the judgment of the respondent
court is based entirely on speculations, surmises and conjectures. We are convinced
that respondent courts judgment is supported by strong, clear and substantial
evidence.:onad
Petitioner is a common carrier engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air, for compensation, offering their
services to the public, as defined in Art. 1732, New Civil Code. The law is clear in
requiring a common carrier to exercise the highest degree of care in the discharge of
its duty and business of carriage and transportation under Arts. 1733, 1755 and 1756
of the New Civil Code. These Articles provide:
Art. 1733. Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by them, according to all the
circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in
Articles 1734, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the
safety of the passengers is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passenger safely as far as human
care and foresight can provide, using the utmost diligence of very cautious persons,
with a due regard for all the circumstances.
Art. 1756. In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove that
they observed extraordinary diligence as prescribed in Articles 1733 and 1755.
The duty to exercise the utmost diligence on the part of common carriers is for the
safety of passengers as well as for the members of the crew or the complement
operating the carrier, the airplane in the case at bar. And this must be so for any
omission, lapse or neglect thereof will certainly result to the damage, prejudice, nay
injuries and even death to all aboard the plane, passengers and crew members alike.
Now to the damages. The Court of Appeals affirmed the award of damages made by
the trial court, stating that the damages awarded plaintiff by the lower court are in
accordance with the facts, law and jurisprudence. The court further observed that
defendant-appellant is still fortunate, considering that the unearned income was
reckoned with only up to 1968 and not up to the present as plaintiff-appellee is still
living. Whatever mathematical error defendant-appellant could show by abstract
argumentation, the same must be compensated by such deficiency of the damages
awarded to plaintiff-appellee.
As awarded by the trial court, private respondent was entitled to P198,000.00 as
unearned income or compensatory damages; P50,000.00 for moral damages,
P20,000.00 as attorneys fees and P5,000.00 as expenses of litigation, or a total of
P273,000.00.
The trial court arrived at the sum of P198,000.00 as unearned income or damages by
considering that respondent Samson could have continued to work as airline pilot for
fifteen more years, he being only 38 years at the time the services were terminated
by the defendant cranad(PAL) and he would have earned P120,000.00 from 1954 to
1963 or a period of ten cranad(10) years at the rate of one thousand per
month cranad(P750.00 basic salary plus P300.00 extra pay for extra flying time and
bonuses; and considering further that in 1964 the basic pay of defendants pilot was
increased to P12,000.00 annually, the plaintiff could have earned from 1964 to 1968
the sum of P60,000.00 in the form of salaries and another P18,000.00 as bonuses and
extra pay for extra flying time at the same rate of P300 a month, or a grand total of
P198,000.00 for the entire period. This claim of the plaintiff for loss or impairment of
earning capacity is based on the provision of Article 2205 of the New Civil Code of the
Philippines which provides that damages may be recovered for loss or impairment of
earning capacity in cases of temporary or permanent personal injury. This provision
of law has been construed and interpreted in the case of Aureliano Ropato, et al. vs.
La Mallorca General Partnership, 56 O.G., 7812, which rules that law allows the
recovery of damages for loss or impairment of earning capacity in cases of temporary
or permanent personal injury. chanroblesvirtualawlibrary(Decision, CFI, pp. 98-99,
Record on Appeal)
The respondent appellate court modified the above award by ordering payment of
legal interest on the P198,000.00 unearned income from the filing of the claim, citing
Sec. 8, Rule 51 of the Rules of Court.
Petitioner assails the award of the total sum of P198,000.00 as unearned income up to
1968 as being tenuous because firstly, the trial courts finding affirmed by the
respondent court is allegedly based on pure speculation and conjecture and secondly,
the award of P300.00 a month as extra pay for extra flying time from 1954 to 1968 is
likewise speculative. PAL likewise rejects the award of moral damages in the amount
of P50,000.00 on the ground that private respondents action before the trial court
does not fall under any of the cases enumerated in the law cranad(Art. 2219 of the
New Civil Code) for which moral damages are recoverable and that although private
respondents action gives the appearance that it is covered under quasi-delict as
provided in Art. 21 of the New Civil Code, the definition of quasi-delict in Art. 2176 of
the New Civil Code expressly excludes cases where there is a pre-existing contractual
relation between the parties, as in the case under consideration, where an employer-
employee relationship existed between PAL and private respondent. It is further
argued that private respondents action cannot be deemed to be covered by Art. 21,
inasmuch as there is no evidence on record to show that PAL wilfully cause(d) loss or
injury to cranad(private respondent) in a manner that is contrary to morals, good
customs or public policy . cra . Nor can private respondents action be considered
analogous to either of the foregoing, for the reasons are obvious that it is
not. chanroblesvirtualawlibrary(Memorandum of petitioner, pp. 418-421, Records)
Having affirmed the gross negligence of PAL in allowing Capt. Delfin Bustamante to fly
the plane to Daet on January 8, 1951 whose slow reaction and poor judgment was the
cause of the crash-landing of the plane which resulted in private respondent Samson
hitting his head against the windshield and causing him injuries for which reason PAL
terminated his services and employment as pilot after refusing to provide him with the
necessary medical treatment of respondents periodic spells, headache and general
debility produced from said injuries, We must necessarily affirm likewise the award of
damages or compensation under the provisions of Art. 1711 and Art. 1712 of the New
Civil Code which provide:
Art. 1711. Owners of enterprises and other employers are obliged to pay
compensation for the death or injuries to their laborers, workmen, mechanics or other
employees, even though the event may have been purely accidental or entirely due to
a fortuitous cause, if the death or personal injury arose out of and in the course of the
employment. The employer is also liable for compensation if the employee contracts
any illness or disease caused by such employment or as the result of the nature of the
employment. If the mishap was due to the employees own notorious negligence, or
voluntary act, or drunkenness, the employer shall not be liable for compensation.
When the employees lack of due care contributed to his death or injury, the
compensation shall be equitably reduced.
Art. 1712. If the death or injury is due to the negligence of a fellow-worker, the latter
and the employer shall be solidarily liable for compensation. If a fellow-workers
intentional or malicious act is the only cause of the death or injury, the employer shall
not be answerable, unless it should be shown that the latter did not exercise due
diligence in the selection or supervision of the plaintiffs fellow-worker.
The grant of compensatory damages to the private respondent made by the trial court
and affirmed by the appellate court by computing his basic salary per annum at
P750.00 a month as basic salary and P300.00 a month for extra pay for extra flying
time including bonus given in December every year is justified. The correct
computation however should be P750 plus P300 x 12 months = P12,600 per annum x
10 years = P126,000.00 cranad(not P120,000.00 as computed by the court a quo).
The further grant of increase in the basic pay of the pilots to P12,000 annually for
1964 to 1968 totalling P60,000.00 and another P18,000.00 as bonuses and extra pay
for extra flying time at the same rate of P300.00 a month totals P78,000.00. Adding
P126,000.00 cranad(1964 to 1968 compensation) makes a grand total of
P204,000.00 cranad(not P198,000.00 as originally computed).
As to the grant of moral damages in the sum of P50,000.00 We also approve the
same. We have noted and considered the holding of the appellate court in the matter
of bad faith on the part of PAL, stated hereunder, this wise:
None of the essential facts material to the determination of the case have
been seriously assailed: the overshooting of runway and crash-landing into
the mangroves; the hitting of plaintiffs head to the front windshield of the
plane; the oozing of blood out of his ears, nose and mouth; the intermittent
dizzy spells, headaches and general debility thereafter for which he was
discharged from his employment; the condition of not to attribute the cause
of the ailment to the crash-landing imposed in bad faith for a demanded
special medical service abroad; and the resultant brain injury which
defendants doctors could not understand nor diagnose.
xxx
The act of defendant-appellant in unjustly refusing plaintiff-appellees
demand for special medical service abroad for the reason that plaintiff-
appellees deteriorating physical condition was not due to the accident
violates the provisions of Article 19 of the Civil Code on human relations to
act with justice, give everyone his due, and observe honesty and good
faith. chanroblesvirtualawlibrary(CA Resolution, pp. 151-152, Records)
We reject the theory of petitioner that private respondent is not entitled to moral
damages. Under the facts found by the trial court and affirmed by the appellate court
and under the law and jurisprudence cited and applied, the grant of moral damages in
the amount of P50,000.00 is proper and justified.
The fact that private respondent suffered physical injuries in the head when the plane
crash-landed due to the negligence of Capt. Bustamante is undeniable. The negligence
of the latter is clearly a quasi-delict and therefore Article 2219, cranad(2) New Civil
Code is applicable, justifying the recovery of moral damages.
Even from the standpoint of the petitioner that there is an employer-employee
relationship between it and private respondent arising from the contract of
employment, private respondent is still entitled to moral damages in view of the
finding of bad faith or malice by the appellate court, which finding We hereby affirm,
applying the provisions of Art. 2220, New Civil Code which provides that willful injury
to property may be a legal ground for awarding moral damages if the court should
find that, under the circumstances, such damages are justly due. The same rule
applies to breaches of contract where the defendant acted fraudulently or in bad faith.
The justification in the award of moral damages under Art. 19 of the New Civil Code
on Human Relations which requires that 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, as applied by respondent court is also well-taken
and We hereby give Our affirmance thereto.
With respect to the award of attorneys fees in the sum of P20,000.00 the same is
likewise correct. As pointed out in the decision of the Court of Appeals, the plaintiff is
entitled to attorneys fees because he was forced to litigate in order to enforce his
valid claim cranad(Ganaban vs. Bayle, 30 SCRA 365; De la Cruz vs. De la Cruz, 22
SCRA 33; and many others); defendant acted in bad faith in refusing plaintiffs valid
claim cranad(Filipino Pipe Foundry Corporation vs. Central Bank, 23 SCRA 1044); and
plaintiff was dismissed and was forced to go to court to vindicate his
right cranad(Nadura vs. Benguet Consolidated, Inc., 5 SCRA 879).

We also agree with the modification made by the appellate court in ordering payment
of legal interest from the date judicial demand was made by Pilot Samson against PAL
with the filing of the complaint in the lower court. We affirm the ruling of the
respondent court which reads:

Lastly, the defendant-appellant claims that the legal rate of interest on the
unearned compensation should be computed from the date of the judgment
in the lower court, not from the filing of the complaint, citing a case where
the issue raised in the Supreme Court was limited to when the judgment
was rendered in the lower court or in the appellate court, which does not
mean that it should not be computed from the filing of the complaint.

Articles 1169, 2209 and 2212 of the Civil Code govern when interest shall
be computed. Thereunder interest begins to accrue upon demand,
extrajudicial or judicial. A complaint is a judicial
demand cranad(Cabarroguis vs. Vicente, 107 Phil. 340). Under Article 2212
of the Civil Code, interest due shall earn legal interest from the time it is
judicially demanded, although the obligation may be silent upon this
point. chanroblesvirtualawlibrary(CA Resolution, pp. 153-154, Records).

The correct amount of compensatory damages upon which legal interest shall accrue
from the filing of the complaint is P204,000.00 as herein computed and not
P198,000.00.

WHEREFORE, in view of all the foregoing, the judgment of the appellate court is
hereby affirmed with slight modification in that the correct amount of compensatory
damages is P204,000.00. With costs against petitioner.

SO ORDERED.

Makasiar and De Castro, JJ., concur.

Teehankee and Melencio-Herrera, JJ., concur in the result.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21486 May 14, 1966

LA MALLORCA and PAMPANGA BUS COMPANY, petitioner,

vs.
VALENTIN DE JESUS, MANOLO TOLENTINO and COURT OF APPEALS, respondents.
Manuel O. Chan for petitioners.
Sixto T. Antonio for respondents.
MAKALINTAL, J.:
La Mallorca and Pampanga Bus Company, Inc., commonly known as La Mallorca-Pambusco, filed
this appeal by certiorari from the decision of the Court of Appeals which affirmed that rendered by
the Court of First Instance of Bulacan in its civil case No. 2100, entitled "Valentin de Jesus and
Manolo Tolentino vs. La Mallorca-Pambusco." The court a quo sentenced the defendant, now
petitioner, "to pay to plaintiffs the amount of P2,132.50 for actual damages; P14,400.00 as
compensatory damages; P10,000.00 to each plaintiff by way of moral damages; and P3,000.00 as
counsel fees."
Two errors are attributed to the appellate Court: (1) "in sustaining the decision (of the court a quo)
holding that the petitioners were liable for the accident which was caused by a blow-out of one of
the tires of the bus and in not considering the same as caso fortuito," and (2) in holding petitioners
liable for moral damages.
The suit arose by reason of the death of Lolita de Jesus, 20-year old daughter of Valentin de Jesus
and wife of Manolo Tolentino, in a head-on collision between petitioner's bus, on which she was a
passenger, and a freight truck traveling in the opposite direction, in a barrio in Marilao Bulacan, in
the morning of October 8, 1959. The immediate cause of the collision was the fact that the driver of
the bus lost control of the wheel when its left front tire suddenly exploded.
Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for
negligence, citing the rulings of the Court of Appeals in Rodriguez vs. Red Line Transportation Co.,
CA-G.R. No. 8136, December 29, 1954, and People vs. Palapad, CA-G.R. No. 18480, June 27,
1958. These rulings, however, not only are not not binding on this Court but were based on
considerations quite different from those that obtain in the at bar. The appellate Court there made
no findings of any specified acts of negligence on the part of the defendants and confined itself to
the question of whether or not a tire blow-out, by itself alone and without a showing as to the
causative factors, would generate liability. In the present case, the cause of the blow-out was
known. The inner tube of the left front tire, according to petitioner's own evidence and as found by
the Court of Appeals "was pressed between the inner circle of the left wheel and the rim which had
slipped out of the wheel." This was, said Court correctly held, a mechanical defect of the
conveyance or a fault in its equipment which was easily discoverable if the bus had been subjected
to a more thorough, or rigid check-up before it took to the road that morning.
Then again both the trial court and the Court of Appeals found as a fact that the bus was running
quite fast immediately before the accident. Considering that the tire which exploded was not new
petitioner describes it as "hindi masyadong kalbo," or not so very worn out the plea of caso
fortuito cannot be entertained.1wph1.t
The second issue raised by petitioner is already a settled one. In this jurisdiction moral damages
are recoverable by reason of the death of a passenger caused by the breach of contract of a
common carrier, as provided in Article 1764, in relation to Article 2206, of the Civil Code. These
articles have been applied by this Court in a number of cases, among them Necesito, etc. vs.
Paras, et al., L-10605-06, June 30, 1958; Mercado vs. Lira, L-13328-29, Sept. 29, 1961; Villa-Rey
Transit vs. Bello, L-18957, April 23, 1963.
Wherefore, the judgment appealed from is affirmed, with costs against petitioners.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Bengzon,
J.P., Zaldivar and Sanchez, JJ., concur.