TORTS CASES under ATTY.
GAVINO / FIRST WEEK COVERAGE
ELCANO vs. HILL
Appeal from the order of the Court of First Instance of Quezon City dated
January 29, 1965 in Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald
Hill et al. dismissing, upon motion to dismiss of defendants, the complaint of
plaintiffs for recovery of damages from defendant Reginald Hill, a minor,
married at the time of the occurrence, and his father, the defendant Marvin
Hill, with whom he was living and getting subsistence, for the killing by
Reginald of the son of the plaintiffs, named Agapito Elcano, of which, when
criminally prosecuted, the said accused was acquitted on the ground that his
act was not criminal, because of "lack of intent to kill, coupled with mistake."
Actually, the motion to dismiss based on the following grounds:
1. The present action is not only against but a violation of section 1,
Rule 107, which is now Rule III, of the Revised Rules of Court;
2. The action is barred by a prior judgment which is now final and or
in res-adjudicata;
3. The complaint had no cause of action against defendant Marvin Hill,
because he was relieved as guardian of the other defendant through
emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.]) was first denied by the trial court. It
was only upon motion for reconsideration of the defendants of such denial,
reiterating the above grounds that the following order was issued:
Considering the motion for reconsideration filed by the defendants on January
14, 1965 and after thoroughly examining the arguments therein contained, the
Court finds the same to be meritorious and well-founded.
1
WHEREFORE, the Order of this Court on December 8, 1964 is hereby
reconsidered by ordering the dismissal of the above entitled case.
SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on
Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are
presenting for Our resolution the following assignment of errors:
THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING
THE CLAIM OF DEFENDANTS THAT -
I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION
OF SECTION 1, RULE 107, NOW RULE 111, OF THE REVISED RULES OF
COURT, AND THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS
APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL
OR RES-ADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE
CIVIL CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and

IV
THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST
DEFENDANT MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN
OF THE OTHER DEFENDANT THROUGH EMANCIPATION BY
MARRIAGE. (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-appellants,
defendant- appellee Reginald Hill was prosecuted criminally in Criminal Case
No. 5102 of the Court of First Instance of Quezon City. After due trial, he was
acquitted on the ground that his act was not criminal because of "lack of intent
to kill, coupled with mistake." Parenthetically, none of the parties has favored
Us with a copy of the decision of acquittal, presumably because appellants do
not dispute that such indeed was the basis stated in the court's decision. And
so, when appellants filed their complaint against appellees Reginald and his
father, Atty. Marvin Hill, on account of the death of their son, the appellees
filed the motion to dismiss above-referred to.
As We view the foregoing background of this case, the two decisive issues
presented for.
Our resolution are:
1. Is the present civil action for damages barred by the acquittal of
Reginald in the criminal case wherein the action for civil liability, was
not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he
applied against Atty. Hill, notwithstanding the undisputed fact that at
the time of the occurrence complained of. Reginald, though a minor,
living with and getting subsistence from his father, was already
legally married?
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The first issue presents no more problem than the need for a reiteration and
further clarification of the dual character, criminal and civil, of fault or
negligence as a source of obligation which was firmly established in this
jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court
postulated, on the basis of a scholarly dissertation by Justice Bocobo on the
nature of culpa aquiliana in relation to culpa criminal or delito and
mere culpa or fault, with pertinent citation of decisions of the Supreme Court
of Spain, the works of recognized civilians, and earlier jurisprudence of our
own, that the same given act can result in civil liability not only under the Penal
Code but also under the Civil Code. Thus, the opinion holds:
The, above case is pertinent because it shows that the same act
machinist. come under both the Penal Code and the Civil Code. In
that case, the action of the agent killeth unjustified and fraudulent
and therefore could have been the subject of a criminal action. And
yet, it was held to be also a proper subject of a civil action under
article 1902 of the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued. (pp. 615-616,
73 Phil.)
It will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the death of
the child was punishable by the Penal Code. Here is therefore a clear instance
of the same act of negligence being a proper subject matter either of a criminal
action with its consequent civil liability arising from a crime or of an entirely
separate and independent civil action for fault or negligence under article 1902
of the Civil Code. Thus, in this jurisdiction, the separate individuality of a cuasi-
delito or culpa aquiliana, under the Civil Code has been fully and clearly
recognized, even with regard to a negligent act for which the wrongdoer could

have been prosecuted and convicted in a criminal case and for which, after
such a conviction, he could have been sued for this civil liability arising from
his crime. (p. 617, 73 Phil.)
It is most significant that in the case just cited, this Court specifically applied
article 1902 of the Civil Code. It is thus that although J. V. House could have
been criminally prosecuted for reckless or simple negligence and not only
punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for
fault or negligence under article 1902 of the Civil Code. (p. 618, 73 Phil.)
The legal provisions, authors, and cases already invoked should ordinarily be
sufficient to dispose of this case. But inasmuch as we are announcing
doctrines that have been little understood, in the past, it might not he
inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in articles 365 punishes not only reckless but
also simple negligence. If we were to hold that articles 1902 to 1910 of the
Civil Code refer only to fault or negligence not punished by law, accordingly to
the literal import of article 1093 of the Civil Code, the legal institution of culpa
aquiliana would have very little scope and application in actual life. Death or
injury to persons and damage to property- through any degree of negligence
- even the slightest - would have to be Idemnified only through the principle of
civil liability arising from a crime. In such a state of affairs, what sphere would
remain for cuasi-delito or culpa aquiliana? We are loath to impute to the
lawmaker any intention to bring about a situation so absurd and anomalous.
Nor are we, in the interpretation of the laws, disposed to uphold the letter that
killeth rather than the spirit that giveth life. We will not use the literal meaning
of the law to smother and render almost lifeless a principle of such ancient
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origin and such full-grown development as culpa aquiliana or cuasi-delito,
which is conserved and made enduring in articles 1902 to 1910 of the Spanish
Civil Code.
Secondary, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of evidence
is sufficient to make the defendant pay in damages. There are numerous
cases of criminal negligence which can not be shown beyond reasonable
doubt, but can be proved by a preponderance of evidence. In such cases, the
defendant can and should be made responsible in a civil action under articles
1902 to 1910 of the Civil Code. Otherwise. there would be many instances of
unvindicated civil wrongs. "Ubi jus Idemnified remedium." (p. 620,73 Phil.)
Fourthly, because of the broad sweep of the provisions of both the Penal Code
and the Civil Code on this subject, which has given rise to the overlapping or
concurrence of spheres already discussed, and for lack of understanding of
the character and efficacy of the action for culpa aquiliana, there has grown
up a common practice to seek damages only by virtue of the civil responsibility
arising from a crime, forgetting that there is another remedy, which is by
invoking articles 1902-1910 of the Civil Code. Although this habitual method
is allowed by, our laws, it has nevertheless rendered practically useless and
nugatory the more expeditious and effective remedy based on culpa aquiliana
or culpa extra-contractual. In the present case, we are asked to help
perpetuate this usual course. But we believe it is high time we pointed out to
the harms done by such practice and to restore the principle of responsibility
for fault or negligence under articles 1902 et seq. of the Civil Code to its full
rigor. It is high time we caused the stream of quasi-delict or culpa aquiliana to
flow on its own natural channel, so that its waters may no longer be diverted
into that of a crime under the Penal Code. This will, it is believed, make for the

better safeguarding or private rights because it realtor, an ancient and
additional remedy, and for the further reason that an independent civil action,
not depending on the issues, limitations and results of a criminal prosecution,
and entirely directed by the party wronged or his counsel, is more likely to
secure adequate and efficacious redress. (p. 621, 73 Phil.)
Contrary to an immediate impression one might get upon a reading of the
foregoing excerpts from the opinion in Garcia that the concurrence of the
Penal Code and the Civil Code therein referred to contemplate only acts of
negligence and not intentional voluntary acts - deeper reflection would reveal
that the thrust of the pronouncements therein is not so limited, but that in fact
it actually extends to fault or culpa. This can be seen in the reference made
therein to the Sentence of the Supreme Court of Spain of February 14, 1919,
supra, which involved a case of fraud or estafa, not a negligent act. Indeed,
Article 1093 of the Civil Code of Spain, in force here at the time of Garcia,
provided textually that obligations "which are derived from acts or omissions
in which fault or negligence, not punishable by law, intervene shall be the
subject of Chapter II, Title XV of this book (which refers to quasi-delicts.)" And
it is precisely the underline qualification, "not punishable by law", that Justice
Bocobo emphasized could lead to an ultimo construction or interpretation of
the letter of the law that "killeth, rather than the spirit that giveth lift- hence, the
ruling that "(W)e will not use the literal meaning of the law to smother and
render almost lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or quasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil Code." And so, because
Justice Bacobo was Chairman of the Code Commission that drafted the
original text of the new Civil Code, it is to be noted that the said Code, which
was enacted after the Garcia doctrine, no longer uses the term, 11 not
punishable by law," thereby making it clear that the concept of culpa
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aquiliana includes acts which are criminal in character or in violation of the
penal law, whether voluntary or matter. Thus, the corresponding provisions to
said Article 1093 in the new code, which is Article 1162, simply says,
"Obligations derived from quasi-delicto shall be governed by the provisions of
Chapter 2, Title XVII of this Book, (on quasi-delicts) and by special laws." More
precisely, a new provision, Article 2177 of the new code provides:
ART. 2177. Responsibility for fault or negligence under the preceding
article is entirely separate and distinct from the civil liability arising
from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the
defendant.
According to the Code Commission: "The foregoing provision (Article 2177)
through at first sight startling, is not so novel or extraordinary when we
consider the exact nature of criminal and civil negligence. The former is a
violation of the criminal law, while the latter is a "culpa aquiliana" or quasi-
delict, of ancient origin, having always had its own foundation and individuality,
separate from criminal negligence. Such distinction between criminal
negligence and "culpa extracontractual" or "cuasi-delito" has been sustained
by decision of the Supreme Court of Spain and maintained as clear, sound
and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore,
under the proposed Article 2177, acquittal from an accusation of criminal
negligence, whether on reasonable doubt or not, shall not be a bar to a
subsequent civil action, not for civil liability arising from criminal negligence,
but for damages due to a quasi-delict or 'culpa aquiliana'. But said article
forestalls a double recovery.", (Report of the Code) Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of
negligence, the same argument of Justice Bacobo about construction that
upholds "the spirit that giveth lift- rather than that which is literal that killeth the
intent of the lawmaker should be observed in applying the same. And
considering that the preliminary chapter on human relations of the new Civil
Code definitely establishes the separability and independence of liability in a
civil action for acts criminal in character (under Articles 29 to 32) from the civil
responsibility arising from crime fixed by Article 100 of the Revised Penal
Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule
111, contemplate also the same separability, it is "more congruent with the
spirit of law, equity and justice, and more in harmony with modern progress"-
to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and
Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it
refers to "fault or negligencia covers not only acts "not punishable by law" but
also acts criminal in character, whether intentional and voluntary or negligent.
Consequently, a separate civil action lies against the offender in a criminal act,
whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is actually charged also
criminally, to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards made in
the two cases vary. In other words, the extinction of civil liability referred to in
Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on
Article 100 of the Revised Penal Code, whereas the civil liability for the same
act considered as a quasi-delict only and not as a crime is not estinguished
even by a declaration in the criminal case that the criminal act charged has
not happened or has not been committed by the accused. Briefly stated, We
here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and
negligent acts which may be punishable by law.
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It results, therefore, that the acquittal of Reginal Hill in the criminal case has
not extinguished his liability for quasi-delict, hence that acquittal is not a bar
to the instant action against him.
Coming now to the second issue about the effect of Reginald's emancipation
by marriage on the possible civil liability of Atty. Hill, his father, it is also Our
considered opinion that the conclusion of appellees that Atty. Hill is already
free from responsibility cannot be upheld.
While it is true that parental authority is terminated upon emancipation of the
child (Article 327, Civil Code), and under Article 397, emancipation takes place
"by the marriage of the minor (child)", it is, however, also clear that pursuant
to Article 399, emancipation by marriage of the minor is not really full or
absolute. Thus "(E)mancipation by marriage or by voluntary concession shall
terminate parental authority over the child's person. It shall enable the minor
to administer his property as though he were of age, but he cannot borrow
money or alienate or encumber real property without the consent of his father
or mother, or guardian. He can sue and be sued in court only with the
assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by article 2176 is
demandable not only for one's own acts or omissions, but also for those of
persons for whom one is responsible. The father and, in case of his death or
incapacity, the mother, are responsible. The father and, in case of his death
or incapacity, the mother, are responsible for the damages caused by the
minor children who live in their company." In the instant case, it is not
controverted that Reginald, although married, was living with his father and
getting subsistence from him at the time of the occurrence in question.
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Factually, therefore, Reginald was still subservient to and dependent on his

father, a situation which is not unusual.

It must be borne in mind that, according to Manresa, the reason behind the
joint and solidary liability of presuncion with their offending child under Article
2180 is that is the obligation of the parent to supervise their minor children in
order to prevent them from causing damage to third persons. 5 On the other
hand, the clear implication of Article 399, in providing that a minor
emancipated by marriage may not, nevertheless, sue or be sued without the
assistance of the parents, is that such emancipation does not carry with it
freedom to enter into transactions or do any act that can give rise to judicial
litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing
someone else invites judicial action. Otherwise stated, the marriage of a minor
child does not relieve the parents of the duty to see to it that the child, while
still a minor, does not give answerable for the borrowings of money and
alienation or encumbering of real property which cannot be done by their minor
married child without their consent. (Art. 399; Manresa, supra.)

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill

notwithstanding the emancipation by marriage of Reginald. However,
inasmuch as it is evident that Reginald is now of age, as a matter of equity,
the liability of Atty. Hill has become milling, subsidiary to that of his son.

WHEREFORE, the order appealed from is reversed and the trial court is
ordered to proceed in accordance with the foregoing opinion. Costs against
appellees.

6

CANGO vs. MANILA RAILROAD
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose
Cangco, was in the employment of Manila Railroad Company in the capacity
of clerk, with a monthly wage of P25. He lived in the pueblo of San Mateo, in
the province of Rizal, which is located upon the line of the defendant railroad
company; and in coming daily by train to the company's office in the city of
Manila where he worked, he used a pass, supplied by the company, which
entitled him to ride upon the company's trains free of charge. Upon the
occasion in question, January 20, 1915, the plaintiff arose from his seat in the
second class-car where he was riding and, making, his exit through the door,
took his position upon the steps of the coach, seizing the upright guardrail with
his right hand for support.
On the side of the train where passengers alight at the San Mateo station there
is a cement platform which begins to rise with a moderate gradient some
distance away from the company's office and extends along in front of said
office for a distance sufficient to cover the length of several coaches. As the
train slowed down another passenger, named Emilio Zuñiga, also an
employee of the railroad company, got off the same car, alighting safely at the
point where the platform begins to rise from the level of the ground. When the
train had proceeded a little farther the plaintiff Jose Cangco stepped off also,
but one or both of his feet came in contact with a sack of watermelons with
the result that his feet slipped from under him and he fell violently on the
platform. His body at once rolled from the platform and was drawn under the
moving car, where his right arm was badly crushed and lacerated. It appears
that after the plaintiff alighted from the train the car moved forward possibly
six meters before it came to a full stop.
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The accident occurred between 7 and 8 o'clock on a dark night, and as the
railroad station was lighted dimly by a single light located some distance away,
objects on the platform where the accident occurred were difficult to discern
especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where
the plaintiff alighted is found in the fact that it was the customary season for
harvesting these melons and a large lot had been brought to the station for
the shipment to the market. They were contained in numerous sacks which
has been piled on the platform in a row one upon another. The testimony
shows that this row of sacks was so placed of melons and the edge of platform;
and it is clear that the fall of the plaintiff was due to the fact that his foot alighted
upon one of these melons at the moment he stepped upon the platform. His
statement that he failed to see these objects in the darkness is readily to be
credited.
The plaintiff was drawn from under the car in an unconscious condition, and it
appeared that the injuries which he had received were very serious. He was
therefore brought at once to a certain hospital in the city of Manila where an
examination was made and his arm was amputated. The result of this
operation was unsatisfactory, and the plaintiff was then carried to another
hospital where a second operation was performed and the member was again
amputated higher up near the shoulder. It appears in evidence that the plaintiff
expended the sum of P790.25 in the form of medical and surgical fees and for
other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First
Instance of the city of Manila to recover damages of the defendant company,
founding his action upon the negligence of the servants and employees of the

defendant in placing the sacks of melons upon the platform and leaving them
so placed as to be a menace to the security of passenger alighting from the
company's trains. At the hearing in the Court of First Instance, his Honor, the
trial judge, found the facts substantially as above stated, and drew therefrom
his conclusion to the effect that, although negligence was attributable to the
defendant by reason of the fact that the sacks of melons were so placed as to
obstruct passengers passing to and from the cars, nevertheless, the plaintiff
himself had failed to use due caution in alighting from the coach and was
therefore precluded form recovering. Judgment was accordingly entered in
favor of the defendant company, and the plaintiff appealed.
It cannot be doubted that the employees of the railroad company were guilty
of negligence in piling these sacks on the platform in the manner above stated;
that their presence caused the plaintiff to fall as he alighted from the train; and
that they therefore constituted an effective legal cause of the injuries sustained
by the plaintiff. It necessarily follows that the defendant company is liable for
the damage thereby occasioned unless recovery is barred by the plaintiff's
own contributory negligence. In resolving this problem it is necessary that
each of these conceptions of liability, to-wit, the primary responsibility of the
defendant company and the contributory negligence of the plaintiff should be
separately examined.
It is important to note that the foundation of the legal liability of the defendant
is the contract of carriage, and that the obligation to respond for the damage
which plaintiff has suffered arises, if at all, from the breach of that contract by
reason of the failure of defendant to exercise due care in its performance. That
is to say, its liability is direct and immediate, differing essentially, in legal
viewpoint from that presumptive responsibility for the negligence of its
servants, imposed by article 1903 of the Civil Code, which can be rebutted by
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proof of the exercise of due care in their selection and supervision. Article
1903 of the Civil Code is not applicable to obligations arising ex contractu, but
only to extra-contractual obligations — or to use the technical form of
expression, that article relates only to culpa aquiliana and not to culpa
contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of
the Civil Code, clearly points out this distinction, which was also recognized
by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly points
out the difference between "culpa, substantive and independent, which of itself
constitutes the source of an obligation between persons not formerly
connected by any legal tie" and culpa considered as an accident in the
performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely
upon the proposition that article 1903 of the Civil Code is not applicable to acts
of negligence which constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are
applicable are understood to be those not growing out of pre-existing duties
of the parties to one another. But where relations already formed give rise to
duties, whether springing from contract or quasi-contract, then breaches of
those duties are subject to article 1101, 1103, and 1104 of the same code.
(Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)

This distinction is of the utmost importance. The liability, which, under the
Spanish law, is, in certain cases imposed upon employers with respect to
damages occasioned by the negligence of their employees to persons to
whom they are not bound by contract, is not based, as in the English Common
Law, upon the principle of respondeat superior — if it were, the master would
be liable in every case and unconditionally — but upon the principle
announced in article 1902 of the Civil Code, which imposes upon all persons
who by their fault or negligence, do injury to another, the obligation of making
good the damage caused. One who places a powerful automobile in the hands
of a servant whom he knows to be ignorant of the method of managing such
a vehicle, is himself guilty of an act of negligence which makes him liable for
all the consequences of his imprudence. The obligation to make good the
damage arises at the very instant that the unskillful servant, while acting within
the scope of his employment causes the injury. The liability of the master is
personal and direct. But, if the master has not been guilty of any negligence
whatever in the selection and direction of the servant, he is not liable for the
acts of the latter, whatever done within the scope of his employment or not, if
the damage done by the servant does not amount to a breach of the contract
between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection and
control of the servant relieves the master from liability for the latter's acts —
on the contrary, that proof shows that the responsibility has never existed. As
Manresa says (vol. 8, p. 68) the liability arising from extra-contractual culpa is
always based upon a voluntary act or omission which, without willful intent,
but by mere negligence or inattention, has caused damage to another. A
master who exercises all possible care in the selection of his servant, taking
into consideration the qualifications they should possess for the discharge of
the duties which it is his purpose to confide to them, and directs them with
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equal diligence, thereby performs his duty to third persons to whom he is
bound by no contractual ties, and he incurs no liability whatever if, by reason
of the negligence of his servants, even within the scope of their employment,
such third person suffer damage. True it is that under article 1903 of the Civil
Code the law creates a presumption that he has been negligent in the
selection or direction of his servant, but the presumption is rebuttable and yield
to proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found
in the Porto Rico Code, has held that these articles are applicable to cases of
extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico
Reports, 215.)
This distinction was again made patent by this Court in its decision in the case
of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action
brought upon the theory of the extra-contractual liability of the defendant to
respond for the damage caused by the carelessness of his employee while
acting within the scope of his employment. The Court, after citing the last
paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by
the negligence of a servant or employee there instantly arises a presumption
of law that there was negligence on the part of the master or employer either
in selection of the servant or employee, or in supervision over him after the
selection, or both; and (2) that that presumption is juris tantum and not juris et
de jure, and consequently, may be rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved from liability.

This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the notable
peculiarity of the Spanish law of negligence. It is, of course, in striking contrast
to the American doctrine that, in relations with strangers, the negligence of the
servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-
contractual culpa based upon negligence, it is necessary that there shall have
been some fault attributable to the defendant personally, and that the last
paragraph of article 1903 merely establishes a rebuttable presumption, is in
complete accord with the authoritative opinion of Manresa, who says (vol. 12,
p. 611) that the liability created by article 1903 is imposed by reason of the
breach of the duties inherent in the special relations of authority or superiority
existing between the person called upon to repair the damage and the one
who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts
or omissions of their servants or agents, when such acts or omissions cause
damages which amount to the breach of a contact, is not based upon a mere
presumption of the master's negligence in their selection or control, and proof
of exercise of the utmost diligence and care in this regard does not relieve the
master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual.
Extra-contractual obligation has its source in the breach or omission of those
mutual duties which civilized society imposes upon it members, or which arise
from these relations, other than contractual, of certain members of society to
others, generally embraced in the concept of status. The legal rights of each
member of society constitute the measure of the corresponding legal duties,
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mainly negative in character, which the existence of those rights imposes upon
all other members of society. The breach of these general duties whether due
to willful intent or to mere inattention, if productive of injury, give rise to an
obligation to indemnify the injured party. The fundamental distinction between
obligations of this character and those which arise from contract, rests upon
the fact that in cases of non-contractual obligation it is the wrongful or
negligent act or omission itself which creates the vinculum juris, whereas in
contractual relations the vinculum exists independently of the breach of the
voluntary duty assumed by the parties when entering into the contractual
relation.
With respect to extra-contractual obligation arising from negligence, whether
of act or omission, it is competent for the legislature to elect — and our
Legislature has so elected — whom such an obligation is imposed is morally
culpable, or, on the contrary, for reasons of public policy, to extend that
liability, without regard to the lack of moral culpability, so as to include
responsibility for the negligence of those person who acts or mission are
imputable, by a legal fiction, to others who are in a position to exercise an
absolute or limited control over them. The legislature which adopted our Civil
Code has elected to limit extra-contractual liability — with certain well-defined
exceptions — to cases in which moral culpability can be directly imputed to
the persons to be charged. This moral responsibility may consist in having
failed to exercise due care in the selection and control of one's agents or
servants, or in the control of persons who, by reason of their status, occupy a
position of dependency with respect to the person made liable for their
conduct.
The position of a natural or juridical person who has undertaken by contract
to render service to another, is wholly different from that to which article 1903

relates. When the sources of the obligation upon which plaintiff's cause of
action depends is a negligent act or omission, the burden of proof rests upon
plaintiff to prove the negligence — if he does not his action fails. But when the
facts averred show a contractual undertaking by defendant for the benefit of
plaintiff, and it is alleged that plaintiff has failed or refused to perform the
contract, it is not necessary for plaintiff to specify in his pleadings whether the
breach of the contract is due to willful fault or to negligence on the part of the
defendant, or of his servants or agents. Proof of the contract and of its
nonperformance is sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing
creditor should assume the burden of proof of its existence, as the only fact
upon which his action is based; while on the contrary, in a case of negligence
which presupposes the existence of a contractual obligation, if the creditor
shows that it exists and that it has been broken, it is not necessary for him to
prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract
to show that the breach was due to the negligent conduct of defendant or of
his servants, even though such be in fact the actual cause of the breach, it is
obvious that proof on the part of defendant that the negligence or omission of
his servants or agents caused the breach of the contract would not constitute
a defense to the action. If the negligence of servants or agents could be
invoked as a means of discharging the liability arising from contract, the
anomalous result would be that person acting through the medium of agents
or servants in the performance of their contracts, would be in a better position
than those acting in person. If one delivers a valuable watch to watchmaker
who contract to repair it, and the bailee, by a personal negligent act causes its
destruction, he is unquestionably liable. Would it be logical to free him from
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
his liability for the breach of his contract, which involves the duty to exercise
due care in the preservation of the watch, if he shows that it was his servant
whose negligence caused the injury? If such a theory could be accepted,
juridical persons would enjoy practically complete immunity from damages
arising from the breach of their contracts if caused by negligent acts as such
juridical persons can of necessity only act through agents or servants, and it
would no doubt be true in most instances that reasonable care had been taken
in selection and direction of such servants. If one delivers securities to a
banking corporation as collateral, and they are lost by reason of the
negligence of some clerk employed by the bank, would it be just and
reasonable to permit the bank to relieve itself of liability for the breach of its
contract to return the collateral upon the payment of the debt by proving that
due care had been exercised in the selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation,
and culpa contractual as a mere incident to the performance of a contract has
frequently been recognized by the supreme court of Spain. (Sentencias of
June 27, 1894; November 20, 1896; and December 13, 1896.) In the decisions
of November 20, 1896, it appeared that plaintiff's action arose ex contractu,
but that defendant sought to avail himself of the provisions of article 1902 of
the Civil Code as a defense. The Spanish Supreme Court rejected defendant's
contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by
fault or negligence, such as those to which article 1902 of the Civil Code
relates, but of damages caused by the defendant's failure to carry out the
undertakings imposed by the contracts . . . .

A brief review of the earlier decision of this court involving the liability of
employers for damage done by the negligent acts of their servants will show
that in no case has the court ever decided that the negligence of the
defendant's servants has been held to constitute a defense to an action for
damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the
owner of a carriage was not liable for the damages caused by the negligence
of his driver. In that case the court commented on the fact that no evidence
had been adduced in the trial court that the defendant had been negligent in
the employment of the driver, or that he had any knowledge of his lack of skill
or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil.
Rep., 215), the plaintiff sued the defendant for damages caused by the loss of
a barge belonging to plaintiff which was allowed to get adrift by the negligence
of defendant's servants in the course of the performance of a contract of
towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation
of the defendant grew out of a contract made between it and the plaintiff . . .
we do not think that the provisions of articles 1902 and 1903 are applicable to
the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the
defendant to recover damages for the personal injuries caused by the
negligence of defendant's chauffeur while driving defendant's automobile in
which defendant was riding at the time. The court found that the damages
were caused by the negligence of the driver of the automobile, but held that
the master was not liable, although he was present at the time, saying:
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
. . . unless the negligent acts of the driver are continued for a length of time as
to give the owner a reasonable opportunity to observe them and to direct the
driver to desist therefrom. . . . The act complained of must be continued in the
presence of the owner for such length of time that the owner by his
acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage &
Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its conclusion as
to the liability of the defendant upon article 1903, although the facts disclosed
that the injury complaint of by plaintiff constituted a breach of the duty to him
arising out of the contract of transportation. The express ground of the
decision in this case was that article 1903, in dealing with the liability of a
master for the negligent acts of his servants "makes the distinction between
private individuals and public enterprise;" that as to the latter the law creates
a rebuttable presumption of negligence in the selection or direction of
servants; and that in the particular case the presumption of negligence had
not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated
plaintiff's action as though founded in tort rather than as based upon the
breach of the contract of carriage, and an examination of the pleadings and of
the briefs shows that the questions of law were in fact discussed upon this
theory. Viewed from the standpoint of the defendant the practical result must
have been the same in any event. The proof disclosed beyond doubt that the
defendant's servant was grossly negligent and that his negligence was the
proximate cause of plaintiff's injury. It also affirmatively appeared that
defendant had been guilty of negligence in its failure to exercise proper
discretion in the direction of the servant. Defendant was, therefore, liable for
the injury suffered by plaintiff, whether the breach of the duty were to be

regarded as constituting culpa aquiliana or culpa contractual. As Manresa
points out (vol. 8, pp. 29 and 69) whether negligence occurs an incident in the
course of the performance of a contractual undertaking or its itself the source
of an extra-contractual undertaking obligation, its essential characteristics are
identical. There is always an act or omission productive of damage due to
carelessness or inattention on the part of the defendant. Consequently, when
the court holds that a defendant is liable in damages for having failed to
exercise due care, either directly, or in failing to exercise proper care in the
selection and direction of his servants, the practical result is identical in either
case. Therefore, it follows that it is not to be inferred, because the court held
in the Yamada case that defendant was liable for the damages negligently
caused by its servants to a person to whom it was bound by contract, and
made reference to the fact that the defendant was negligent in the selection
and control of its servants, that in such a case the court would have held that
it would have been a good defense to the action, if presented squarely upon
the theory of the breach of the contract, for defendant to have proved that it
did in fact exercise care in the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention to
the relative spheres of contractual and extra-contractual obligations. The field
of non- contractual obligation is much more broader than that of contractual
obligations, comprising, as it does, the whole extent of juridical human
relations. These two fields, figuratively speaking, concentric; that is to say, the
mere fact that a person is bound to another by contract does not relieve him
from extra-contractual liability to such person. When such a contractual
relation exists the obligor may break the contract under such conditions that
the same act which constitutes the source of an extra-contractual obligation
had no contract existed between the parties.
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The contract of defendant to transport plaintiff carried with it, by implication,
the duty to carry him in safety and to provide safe means of entering and
leaving its trains (civil code, article 1258). That duty, being contractual, was
direct and immediate, and its non-performance could not be excused by proof
that the fault was morally imputable to defendant's servants.
The railroad company's defense involves the assumption that even granting
that the negligent conduct of its servants in placing an obstruction upon the
platform was a breach of its contractual obligation to maintain safe means of
approaching and leaving its trains, the direct and proximate cause of the injury
suffered by plaintiff was his own contributory negligence in failing to wait until
the train had come to a complete stop before alighting. Under the doctrine of
comparative negligence announced in the Rakes case (supra), if the accident
was caused by plaintiff's own negligence, no liability is imposed upon
defendant's negligence and plaintiff's negligence merely contributed to his
injury, the damages should be apportioned. It is, therefore, important to
ascertain if defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full
stop before alighting, the particular injury suffered by him could not have
occurred. Defendant contends, and cites many authorities in support of the
contention, that it is negligence per se for a passenger to alight from a moving
train. We are not disposed to subscribe to this doctrine in its absolute form.
We are of the opinion that this proposition is too badly stated and is at variance
with the experience of every-day life. In this particular instance, that the train
was barely moving when plaintiff alighted is shown conclusively by the fact
that it came to stop within six meters from the place where he stepped from it.
Thousands of person alight from trains under these conditions every day of
the year, and sustain no injury where the company has kept its platform free

from dangerous obstructions. There is no reason to believe that plaintiff would
have suffered any injury whatever in alighting as he did had it not been for
defendant's negligent failure to perform its duty to provide a safe alighting
place.
We are of the opinion that the correct doctrine relating to this subject is that
expressed in Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of
negligence in attempting to alight from a moving railway train, is that of
ordinary or reasonable care. It is to be considered whether an ordinarily
prudent person, of the age, sex and condition of the passenger, would have
acted as the passenger acted under the circumstances disclosed by the
evidence. This care has been defined to be, not the care which may or should
be used by the prudent man generally, but the care which a man of ordinary
prudence would use under similar circumstances, to avoid injury." (Thompson,
Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in
Picart vs. Smith (37 Phil. rep., 809), we may say that the test is this; Was there
anything in the circumstances surrounding the plaintiff at the time he alighted
from the train which would have admonished a person of average prudence
that to get off the train under the conditions then existing was dangerous? If
so, the plaintiff should have desisted from alighting; and his failure so to desist
was contributory negligence.
As the case now before us presents itself, the only fact from which a
conclusion can be drawn to the effect that plaintiff was guilty of contributory
negligence is that he stepped off the car without being able to discern clearly
the condition of the platform and while the train was yet slowly moving. In
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
considering the situation thus presented, it should not be overlooked that the
plaintiff was, as we find, ignorant of the fact that the obstruction which was
caused by the sacks of melons piled on the platform existed; and as the
defendant was bound by reason of its duty as a public carrier to afford to its
passengers facilities for safe egress from its trains, the plaintiff had a right to
assume, in the absence of some circumstance to warn him to the contrary,
that the platform was clear. The place, as we have already stated, was dark,
or dimly lighted, and this also is proof of a failure upon the part of the defendant
in the performance of a duty owing by it to the plaintiff; for if it were by any
possibility concede that it had right to pile these sacks in the path of alighting
passengers, the placing of them adequately so that their presence would be
revealed.
As pertinent to the question of contributory negligence on the part of the
plaintiff in this case the following circumstances are to be noted: The
company's platform was constructed upon a level higher than that of the
roadbed and the surrounding ground. The distance from the steps of the car
to the spot where the alighting passenger would place his feet on the platform
was thus reduced, thereby decreasing the risk incident to stepping off. The
nature of the platform, constructed as it was of cement material, also assured
to the passenger a stable and even surface on which to alight. Furthermore,
the plaintiff was possessed of the vigor and agility of young manhood, and it
was by no means so risky for him to get off while the train was yet moving as
the same act would have been in an aged or feeble person. In determining the
question of contributory negligence in performing such act — that is to say,
whether the passenger acted prudently or recklessly — the age, sex, and
physical condition of the passenger are circumstances necessarily affecting
the safety of the passenger, and should be considered. Women, it has been
observed, as a general rule are less capable than men of alighting with safety
 TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE

under such conditions, as the nature of their wearing apparel obstructs the
free movement of the limbs. Again, it may be noted that the place was perfectly
familiar to the plaintiff as it was his daily custom to get on and of the train at
this station. There could, therefore, be no uncertainty in his mind with regard
either to the length of the step which he was required to take or the character
of the platform where he was alighting. Our conclusion is that the conduct of
the plaintiff in undertaking to alight while the train was yet slightly under way
was not characterized by imprudence and that therefore he was not guilty of
contributory negligence.

The evidence shows that the plaintiff, at the time of the accident, was earning
P25 a month as a copyist clerk, and that the injuries he has suffered have
permanently disabled him from continuing that employment. Defendant has
not shown that any other gainful occupation is open to plaintiff. His expectancy
of life, according to the standard mortality tables, is approximately thirty-three
years. We are of the opinion that a fair compensation for the damage suffered
by him for his permanent disability is the sum of P2,500, and that he is also
entitled to recover of defendant the additional sum of P790.25 for medical
attention, hospital services, and other incidental expenditures connected with
the treatment of his injuries.

The decision of lower court is reversed, and judgment is hereby rendered

plaintiff for the sum of P3,290.25, and for the costs of both instances. So
ordered.

15

GREGORIO vs. CA
This is a petition1 for certiorari under Rule 45 of the Rules of Court assailing
the Decision2 of the Court of Appeals (CA) dated January 31, 2007 and its
Resolution3 dated September 12, 2007 in CA-G.R. SP No. 63602, entitled
"Sansio Philippines, Inc., et al. v. Hon. Romulo SG. Villanueva, et al."
The case arose from the filing of an Affidavit of Complaint4 for violation of
Batas Pambansa Bilang (B.P. Blg.) 22 (Bouncing Checks Law) by respondent
Emma J. Datuin (Datuin), as Officer-in-Charge of the Accounts Receivables
Department, and upon authority of petitioner Sansio Philippines, Inc. (Sansio),
against petitioner Zenaida R. Gregorio (Gregorio) and one Vito Belarmino, as
proprietors of Alvi Marketing, allegedly for delivering insufficiently funded bank
checks as payment for the numerous appliances bought by Alvi Marketing
from Sansio.
As the address stated in the complaint was incorrect, Gregorio was unable to
controvert the charges against her. Consequently, she was indicted for three
(3) counts of violation of B.P. Blg. 22, docketed as Criminal Case Nos. 236544,
236545, and 236546, before the Metropolitan Trial Court (MeTC), Branch 3,
Manila.
The MeTC issued a warrant5 for her arrest, and it was served upon her by the
armed operatives of the Public Assistance and Reaction Against Crime
(PARAC) of the Department of Interior and Local Government (DILG) on
October 17, 1997, Friday, at around 9:30 a.m. in Quezon City while she was
visiting her husband and their two (2) daughters at their city residence.
Gregorio was brought to the PARAC-DILG Office where she was subjected to
fingerprinting and mug shots, and was detained. She was released in the
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
afternoon of the same day when her husband posted a bond for her temporary
liberty.
On December 5, 1997, Gregorio filed before the MeTC a Motion6 for
Deferment of Arraignment and Reinvestigation, alleging that she could not
have issued the bounced checks, since she did not even have a checking
account with the bank on which the checks were drawn, as certified by the
branch manager of the Philippine National Bank, Sorsogon Branch. She also
alleged that her signature was patently and radically different from the
signatures appearing on the bounced checks.
The MeTC granted the Motion and a reinvestigation was conducted. In the
course of the reinvestigation, Datuin submitted an Affidavit of
Desistance7 dated August 18, 1998, stating, among others, that Gregorio was
not one of the signatories of the bounced checks subject of prosecution.
Subsequently, the assistant city prosecutor filed a Motion to Dismiss8 dated
November 12, 1998 with respect to Criminal Case Nos. 236544-46. The MeTC
granted the motion and ordered the B.P. Blg. 22 cases dismissed.9
On August 18, 2000, Gregorio filed a complaint10 for damages against Sansio
and Datuin before the Regional Trial Court (RTC), Branch 12, Ligao, Albay.
The complaint, in part, reads —
4. That on or about December 15, 1995, defendant Emma J. Datuin filed with
the Office of the City Prosecutor of Manila an "Affidavit of Complaint" wherein,
among others, she alleged under oath that as an Officer In-charge of the
Accounts Receivables Department of SANSIO PHILIPPINES, INC., she was

duly authorized and empowered by said company to file cases against
debtors, customers and dealers of the company;
xxxx
5. That while acting under authority of her employer namely the defendant
SANSIO PHILIPPINES, INC., defendant EMMA J. DATUIN falsely stated in
the "Affidavit of Complaint" (Annex "A"), among others, that plaintiff Zenaida
R. Gregorio issued and delivered to their office the following checks, to wit:
a. PNB Check No. C-347108 dated November 30, 1992 in the amount
of ₱9,564.00;
b. PNB Check No. C-347109 dated November 30, 1992 in the amount
of ₱19,194.48; and
c. PNB Check No. C-347104 dated December 2, 1992 in the amount of
₱10,000.00
and that the above-mentioned PNB Checks bounced when deposited upon
maturity;
6. That as a result of the filing of the "Affidavit of Complaint" (Annex "A")
wherein defendant Emma J. Datuin falsely charged the plaintiff with offenses
of Estafa and/or violation of B.P. Blg. 22 on three (3) counts, the Office of the
City Prosecutor of Manila issued a Resolution dated April 1, 1996 finding the
existence of a probable cause against the plaintiff for violation of Batas
Pambansa Blg. 22 on three counts;
xxxx
7. That in the "MEMO OF PRELIMINARY INVESTIGATION" attached hereto
as Annex "C," signed by defendant Emma J. Datuin she falsely indicated the
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
address of plaintiff to be at No. 76 Peñaranda Street, Legaspi City when the
truth of the matter is that the latter’s correct address is at Barangay Rizal, Oas,
Albay;
8. That as a consequence of the aforegoing false and misleading indication of
address, plaintiff was therefore not duly notified of the charges filed against
her by defendant Emma J. Datuin; and more, she was not able to controvert
them before the investigating prosecutor, finally resulting in the filing in court
of three (3) informations accusing her of violating B.P. 22;
xxxx
9. That as pernicious result of the unwarranted and baseless accusation by
the defendants which culminated in the filing of three (3) informations in the
Metropolitan Trial Court of Manila, Branch 3 indicting the plaintiff on three
counts of the offense of violating B.P. 22, the said court issued a Warrant of
Arrest on July 22, 1996 ordering the arrest of the plaintiff;
xxxx
10. That taking extra effort to expedite the apprehension of plaintiff,
defendants’ retained private prosecutor managed to obtain the Warrant for the
Arrest of said plaintiff from the Court as evidenced by the copy of the letter of
lawyer Alquin B. Manguerra of Chua and Associates Law Office (Annex "H")
so much so that in the morning of October 17, 1997, while plaintiff was visiting
her husband Jose Gregorio and their two daughters at their city residence at
78 K-2 Street, Kamuning, Quezon City, and without the slightest premonition
that she was wanted by the law, armed operatives of the Public Assistance
and Reaction Against Crime (PARAC) of DILG suddenly swooped down on

their residence, arrested the plaintiff and brought her to the PARAC DILG
Office in Quezon City where she was fingerprinted and detained like an
ordinary criminal;
xxxx
11. That feeling distraught, helpless and hungry (not having eaten for a whole
day) the plaintiff languished in her place of confinement until the late afternoon
of October 17, 1997 when her husband was able to post a bond for her
temporary liberty and secure an order of release (Annex "J") from the court. It
was providential that a city judge was available in the late afternoon of October
17, 1997 which was a Friday, otherwise plaintiff would have remained in
confinement for the entire weekend;
12. That because of her desire to prove and establish her innocence of the
unjustified charges lodged against her by the defendants, the plaintiff was thus
compelled to retain the services of counsel resulting in the filing of a Motion
for Deferment of Arraignment and Reinvestigation (Annex "K") which was
granted by the court; the filing of a Request for Reinvestigation with the
prosecutor’s office (Annex "L"); and the submission of a Counter-Affidavit to
the investigating prosecutor. All of these culminated in the filing by the
investigating prosecutor of a Motion to Dismiss (Annex "M") the three criminal
cases as a consequence of which the Court issued an Order dated June 1,
1999 (Annex "N") dismissing Criminal Cases No. 236544, No. 236545 and No.
236546, copy of which was received by plaintiff only on July 7, 2000;
13. That previous to the filing of the above-mentioned Motion to Dismiss by
the prosecutor and having been faced with the truth and righteousness of
plaintiff’s avowal of innocence which was irrefutable, defendants had no
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
recourse but to concede and recognize the verity that they had wrongly
accused an innocent person, in itself a brazen travesty of justice, so much so
that defendant Emma J. Datuin had to execute an Affidavit of Desistance
(Annex "O") admitting that plaintiff is not a signatory to the three bouncing
checks in question, rationalizing, albeit lamely, that the filing of the cases
against the plaintiff was by virtue of an honest mistake or inadvertence on her
(Datuin’s) part;
14. Be that as it may, incalculable damage has been inflicted on the plaintiff
on account of the defendants’ wanton, callous and reckless disregard of the
fundamental legal precept that "every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons"
(Art. 26, Civil Code of the Philippines);
15. That the plaintiff, being completely innocent of the charges against her as
adverted to in the preceding paragraphs, was socially humiliated,
embarrassed, suffered physical discomfort, mental anguish, fright, and
serious anxiety as a proximate result of her unjustified indictment, arrest and
detention at the PARAC headquarters – all of these ordeals having been
exacerbated by the fact that plaintiff is a woman who comes from a respected
family in Oas, Albay, being the wife of an executive of the Philippine National
Construction Corporation, the mother of two college students studying in
Manila, a pharmacist by profession, a businesswoman by occupation, and an
incumbent Municipal Councilor (Kagawad) of Oas, Albay, at the time of her
arrest and detention; and that she previously held the following positions:
(a). President, Philippine Pharmaceutical Association (Albay
Chapter);

(b). Chairman of the Board, Albay Pharmaceutical Marketing
Cooperative (ALPHAMAC);
(c). Charter Secretary, Kiwanis Club of Oas;
(d). Chairman, Polangui Ladies Multi-Purpose Cooperative,
Polangui, Albay;
(e). Vicarial Regent, Daughters of Mary Immaculate International,
District IX;
(f). Chapter President and Municipal Coordinator, Albay Women
Volunteers Association, Inc., Legaspi City;
(g). Regent, Daughters of Mary Immaculate International Virgo
Clemens Circle, Oas, Albay;
(h). Secretary, Girl Scout of the Philippines District Association; and
(i). Director, Albay Electric Cooperative (ALECO),
not to mention the undue aspersion cast upon her social, professional and
business reputation because of defendants’ tortious act of accusing her of
Estafa and/or issuing bouncing checks – even without a scintilla of evidence;
16. That to compound the aforegoing travails and sufferings of the plaintiff she
had to devote and spend much of her time, money and efforts trying to clear
her tarnished name and reputation, including traveling to and from Manila to
confer with her lawyer, attend the hearings at the prosecutor’s office and at
the Metropolitan Trial Court;
17. By and large, defendants’ fault or, at the very least, their reckless
imprudence or negligence, in filing the three (3) criminal cases against the
plaintiff unequivocally caused damage to the latter and because of
defendants’ baseless and unjustified accusations, plaintiff was constrained to
retain the services of a lawyer to represent her at the Metropolitan Trial Court
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
and at the Office of the City Prosecutor at Manila in order to establish her
innocence and cause the dismissal of the three (3) criminal cases filed against
her, reason for which she spent ₱20,000.00; and in order to institute this
instant action for the redress of her grievances, plaintiff have to pay the sum
of ₱50,000.00 as attorney’s fees and incur litigation expenses in the amount
of ₱35,000.00;
18. That by reason of all the aforegoing and pursuant to the provision of law
that "whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done," (Article 2176, Civil Code
of the Philippines), the plaintiff is entitled to and hereby claims the following
items of damages:
a. ₱3,000,000.00 as moral damages
b. ₱50,000.00 as actual damages
c. ₱50,000.00 as nominal damages
d. ₱70,000.00 as attorney’s fees
e. ₱35,000.00 as litigation expenses
19. That defendants herein are jointly and solidarily liable for the payment of
the above items of damages being co-tortfeasors. Moreover, defendant
SANSIO PHILIPPINES, INC. is vicariously liable as the employer of defendant
Emma J. Datuin who patently acted within the scope of her assigned tasks
(Vide: Art. 2180, Civil Code of the Philippines).11
Sansio and Datuin filed a Motion to Dismiss12 on the ground that the
complaint, being one for damages arising from malicious prosecution, failed
to state a cause of action, as the ultimate facts constituting the elements
thereof were not alleged in the complaint. Gregorio opposed13 the Motion.

Sansio and Datuin filed their Reply14 to the Opposition. Gregorio, in turn, filed
her Rejoinder.15
On October 10, 2000, the RTC issued an Order16 denying the Motion to
Dismiss. Sansio and Datuin filed a Motion for Reconsideration17 of the
October 10, 2000 Order, but the RTC denied the same in its Order18 dated
January 5, 2001.
Sansio and Datuin went to the CA via a petition19 for certiorari under Rule 65
of the Rules of Court alleging grave abuse of discretion on the part of the
presiding judge of the RTC in denying their motions to dismiss and for
reconsideration.
Meanwhile, on March 20, 2003, the RTC rendered its Decision in the civil case
for damages instituted by Gregorio, directing Sansio and Datuin, jointly and
solidarily, to pay Gregorio ₱200,000.00 as moral damages; ₱10,000.00 as
nominal damages; ₱35,000.00 as litigation expenses; ₱30,000.00 as
attorney’s fees; and costs of the suit. The RTC expressly stated in its Decision
that the complaint was one for damages based on quasi-delict and not on
malicious prosecution.
Aggrieved by the March 20, 2003 Decision, Sansio and Datuin appealed to
the CA, and the same is now pending resolution.
On January 31, 2007, the CA rendered a Decision on the certiorari case
granting the petition and ordering the dismissal of the damage suit of Gregorio.
The latter moved to reconsider the said Decision but the same was denied in
the appellate court’s Resolution dated September 12, 2007.
Hence, this petition.
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
The core issue to be resolved, as culled from the factual circumstances of this
case, is whether the complaint, a civil suit filed by Gregorio, is based on quasi-
delict or malicious prosecution.
It is the position of Sansio and Datuin that the complaint for damages filed by
Gregorio before the RTC was for malicious prosecution, but it failed to allege
the elements thereof, such that it was aptly dismissed on appeal by the CA on
the ground of lack of cause of action. In their comment, citing Albenson
Enterprise Corporation v. Court of Appeals,20 they posit that Article 26 of the
Civil Code, cited by Gregorio as one of the bases for her complaint, and
Articles 19, 20, and 21 of the same Code, mentioned by the RTC as bases for
sustaining the complaint, are the very same provisions upon which malicious
prosecution is grounded. And in order to further buttress their position that
Gregorio’s complaint was indeed one for malicious prosecution, they even
pointed out the fact that Gregorio prayed for moral damages, which may be
awarded only in case of malicious prosecution or, if the case is for quasi-delict,
only if physical injury results therefrom.
We disagree.
A perusal of the allegations of Gregorio’s complaint for damages readily shows
that she filed a civil suit against Sansio and Datuin for filing against her criminal
charges for violation of B.P. Blg. 22; that respondents did not exercise diligent
efforts to ascertain the true identity of the person who delivered to them
insufficiently funded checks as payment for the various appliances purchased;
and that respondents never gave her the opportunity to controvert the charges
against her, because they stated an incorrect address in the criminal
complaint. Gregorio claimed damages for the embarrassment and humiliation
she suffered when she was suddenly arrested at her city residence in Quezon

City while visiting her family. She was, at the time of her arrest, a respected
Kagawad in Oas, Albay. Gregorio anchored her civil complaint on Articles
26,21 2176,22 and 218023 of the Civil Code. Noticeably, despite alleging either
fault or negligence on the part of Sansio and Datuin, Gregorio never imputed
to them any bad faith in her complaint.
Basic is the legal principle that the nature of an action is determined by the
material averments in the complaint and the character of the relief
sought.24 Undeniably, Gregorio’s civil complaint, read in its entirety, is a
complaint based on quasi-delict under Article 2176, in relation to Article 26 of
the Civil Code, rather than on malicious prosecution.
In every tort case filed under Article 2176 of the Civil Code, the plaintiff has to
prove by a preponderance of evidence: (1) the damages suffered by him; (2)
the fault or negligence of the defendant or some other person to whose act he
must respond; (3) the connection of cause and effect between the fault or
negligence and the damages incurred; and (4) that there must be no
preexisting contractual relation between the parties.25
On the other hand, Article 26 of the Civil Code grants a cause of action for
damages, prevention, and other relief in cases of breach, though not
necessarily constituting a criminal offense, of the following rights: (1) right to
personal dignity; (2) right to personal security; (3) right to family relations; (4)
right to social intercourse; (5) right to privacy; and (6) right to peace of mind.26
A scrutiny of Gregorio’s civil complaint reveals that the averments thereof,
taken together, fulfill the elements of Article 2176, in relation to Article 26 of
the Civil Code. It appears that Gregorio’s rights to personal dignity, personal
security, privacy, and peace of mind were infringed by Sansio and Datuin
when they failed to exercise the requisite diligence in determining the identity
of the person they should rightfully accuse of tendering insufficiently funded
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
checks. This fault was compounded when they failed to ascertain the correct
address of petitioner, thus depriving her of the opportunity to controvert the
charges, because she was not given proper notice. Because she was not able
to refute the charges against her, petitioner was falsely indicted for three (3)
counts of violation of B.P. Blg. 22. Although she was never found at No. 76
Peñaranda St., Legaspi City, the office address of Alvi Marketing as stated in
the criminal complaint, Gregorio was conveniently arrested by armed
operatives of the PARAC-DILG at her city residence at 78 K-2 St., Kamuning,
Quezon City, while visiting her family. She suffered embarrassment and
humiliation over her sudden arrest and detention and she had to spend time,
effort, and money to clear her tarnished name and reputation, considering that
she had held several honorable positions in different organizations and offices
in the public service, particularly her being a Kagawad in Oas, Albay at the
time of her arrest. There exists no contractual relation between Gregorio and
Sansio. On the other hand, Gregorio is prosecuting Sansio, under Article 2180
of the Civil Code, for its vicarious liability, as employer, arising from the act or
omission of its employee Datuin.
These allegations, assuming them to be true, sufficiently constituted a cause
of action against Sansio and Datuin. Thus, the RTC was correct when it denied
respondents’ motion to dismiss.
Sansio and Datuin are in error when they insist that Gregorio’s complaint is
based on malicious prosecution. In an action to recover damages for malicious
prosecution, it must be alleged and established that Sansio and Datuin were
impelled by legal malice or bad faith in deliberately initiating an action against
Gregorio, knowing that the charges were false and groundless, intending to
vex and humiliate her.27 As previously mentioned, Gregorio did not allege this
in her complaint. Moreover, the fact that she prayed for moral damages did
 TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE

not change the nature of her action based on quasi-delict. She might have
acted on the mistaken notion that she was entitled to moral damages,
considering that she suffered physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, and
social humiliation on account of her indictment and her sudden arrest.
Verily, Gregorio was only acting within her right when she instituted against
Sansio and Datuin an action she perceived to be proper, given the factual
antecedents of the case.

WHEREFORE, the petition is GRANTED. The Decision dated January 31,

2007 and the Resolution dated September 12, 2007 are REVERSED and SET
ASIDE. Costs against respondents.
SO ORDERED.

22

AMERICAN EXPRESS INTERNATIONAL vs. CORDERO
This is a petition for review on certiorari of the Decision[1] of the Court of
Appeals dated April 30, 1999 in CA-G.R. CV No. 51671, entitled, Noel
Cordero, Plaintiff-Appellee versus American Express International, Inc.,
Defendant-Appellant.
Petitioner is a foreign corporation that issues charge cards to its customers,
which the latter then use to purchase goods and services at accredited
merchants worldwide. Sometime in 1988, Nilda Cordero, wife of respondent
Noel Cordero, applied for and was issued an American Express charge card
with No. 3769-895901-010020. The issuance of the charge card was covered
by an Amex Cardmember Agreement. As cardholder, Nilda, upon signing the
back portion of the card, manifested her acceptance of the terms of the
Agreement.
An extension charge card, with No. 3769-895901-01010, was likewise issued
to respondent Noel Cordero which he also signed.[2]
On November 29, 1991, respondent, together with his wife, Nilda, daughter,
sisters-in-law and uncle-in-law, went on a three-day holiday trip to Hong Kong.
In the early evening of November 30, 1991, at about 7:00 oclock, the group
went to the Watsons Chemist Shop located at 277C Ocean Gallery, Kowloon,
Hong Kong. Noel picked up some chocolate candies and handed to the sales
clerk his American Express extension charge card to pay for his purchases.
The sales clerk verified the card by making a telephone call to the American
Express Office in Hong Kong. Moments later, Susan Chong, the store
manager, emerged from behind the counter and informed respondent that she
had to confiscate the card. Thereupon, she cut respondents American
Express card in half with a pair of scissors. This, according to respondent,
23
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
caused him embarrassment and humiliation considering that it was done in
front of his family and the other customers lined up at the check-out counter.
Hence, Nilda had to pay for the purchases using her own American Express
charge card.[3]
When they returned to the Excelsior Hotel, Nilda called up petitioners Office
in Hong Kong. She was able to talk to Senior Authorizer Johnny Chen, who
informed her that on November 1, 1991, a person in Hong Kong attempted to
use a charge card with the same number as respondents card. The Hong
Kong American Express Office called up respondent and after determining
that he was in Manila and not in Hong Kong, placed his card in the Inspect
Airwarn Support System. This is the system utilized by petitioner as a
protection both for the company and the cardholders against the fraudulent
use of their charge cards. Once a card suspected of unauthorized use is
placed in the system, the person to whom the card is tendered must verify the
identity of the holder. If the true identity of the card owner is established, the
card is honored and the charges are approved. Otherwise, the card is revoked
or confiscated.[4]
When the Watsons sales clerk called up petitioners Hong Kong Office, its
representative said he wants to talk to respondent in order to verify the latters
identity, pursuant to the procedure observed under the Inspect Airwarn
Support System. However, respondent refused. Consequently, petitioners
representative was unable to establish the identity of the cardholder.[5] This
led to the confiscation of respondents card.
On March 31, 1992, respondent filed with the Regional Trial Court, Branch V,
Manila, a complaint for damages against petitioner, docketed as Civil Case

No. 92-60807. He prayed for the award of moral damages and exemplary
damages, as well as attorneys fees as a result of the humiliation he suffered.
The trial court found that the inexcusable failure of defendant (petitioner
herein) to inform plaintiff (respondent herein) of the November 1, 1991 incident
despite sufficient time was the proximate cause of the confiscation and cutting
of plaintiffs extension card which exposed the latter to public humiliation for
which defendant should be held liable.[6] On February 20, 1995, the trial court
promulgated its Decision, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendant, ordering the latter to pay the former the following
amounts, namely:
a) The sum of P300,000.00 as and by way of moral damages;
b) The sum of P200,000.00 as exemplary damages;
c) The sum of P100,000.00 as and for reasonable attorneys fees; and
d) The costs of the suit.
SO ORDERED.[7]
Upon appeal, the Court of Appeals rendered the assailed Decision affirming
the trial courts Decision with modification in the sense that the amounts of
damages awarded were reduced, thus:
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
WHEREFORE, in view of the foregoing, the appealed decision dated February
20, 1995 of the Regional Trial Court of Manila, Branch V, in Civil Case No. 92-
60807 is hereby AFFIRMED, subject to modifications with respect to the
amount of damages awarded, which are reduced as follows:
(a) Moral damages from P300,000.00 to P150,000.00; and
(b) Exemplary damages from P200,000.00 to P100,000.00.
No pronouncement as to costs.
SO ORDERED.
Hence, the instant petition raising the following issues:
A. Whether the lower courts gravely erred in attributing the public humiliation
allegedly suffered by Cordero to Amex.
B. Whether the lower courts gravely erred in holding Amex liable to Cordero
for moral damages, exemplary damages and attorneys fees.[8]
Respondent filed his comment contending in the main that the petition raises
questions of fact beyond this Courts domain.
While it is true that under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, this Court may review only errors of law, however, this rule admits
of well-known recognized exceptions, thus:

. . . (1) the conclusion is a finding grounded entirely on speculation, surmise
and conjecture; (2) the inference made is manifestly mistaken; (3) there is
grave abuse of discretion; (4) the judgment is based on a misapprehension of
facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went
beyond the issues of the case and its findings are contrary to the admissions
of both parties; (7) the findings of fact of the Court of Appeals are contrary to
those of the trial court; (8) said findings of fact are conclusions without citation
of specific evidence on which they are based; (9) the facts set forth in the
petition are not disputed by the respondents; and (10) the findings of fact of
the Court of Appeals are premised on the supposed absence of evidence and
contradicted by the evidence on record.[9]
In this case, the inference made by the courts below is manifestly mistaken.
Therefore, we are justified in reviewing the records of this case and rendering
judgment based on our own findings.
In his complaint, respondent claimed that he suffered embarrassment and
humiliation because his card was unceremoniously confiscated and cut in half
by Susan Chong of Watsons Chemist Shop.
Respondent anchors his cause of action on the following provision of the Civil
Code:
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.[10]
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
In order that an obligation based on quasi-delict may arise, there must be no
pre-existing contractual relation between the parties. But there are exceptions.
There may be an action for quasi-delict notwithstanding that there is a
subsisting contract between the parties. A liability for tort may arise even under
a contract, where tort is that which breaches the contract. Stated differently,
when an act which constitutes a breach of contract would have itself
constituted the source of a quasi-delictual liability, the contract can be said to
have been breached by tort, thereby allowing the rules on tort to apply.[11]
Furthermore, to constitute quasi-delict, the fault or negligence must be the
proximate cause of the damage or injury suffered by the plaintiff. Proximate
cause is that cause which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury and without which the
result would not have occurred. Proximate cause is determined by the facts of
each case upon mixed considerations of logic, common sense, policy and
precedent.[12]
According to the trial court, petitioner should have informed respondent that
on November 1, 1991, a person in Hong Kong attempted to use a charge card
bearing similar number to that of respondents card; and that petitioners
inexcusable failure to do so is the proximate cause of the confiscation and
cutting of [respondents] extension card which exposed the latter to public
humiliation for which [petitioner] should be held liable.[13]
We cannot sustain the trial courts conclusion.
As explained by respondent himself, he could have used his card upon
verification by the sales clerk of Watson that indeed he is the authorized
cardholder. This could have been accomplished had respondent talked to

petitioners representative, enabling the latter to determine that respondent is
indeed the true holder of the card. Clearly, no negligence which breaches the
contract can be attributed to petitioner. If at all, the cause of respondents
humiliation and embarrassment was his refusal to talk to petitioners
representative.
That respondent refused to talk to petitioners representative can be gleaned
from the testimony of Mr. Chen Heng Kun a.k.a. Johnny Chen during the
deposition in Hong Kong,[14] thus:
Question No 9 : Was AEII required under its existing policies and/or
membership agreement with its cardholders to advise said cardholders of their
card have been put under the support INSPECT Strictly Question (for
identification) cardmembers before approving any charge?
Mr. Johnny Chen : Under the existing policies of AEII, we dont have to inform
the cardholders if they have to pass the INSPECT Strictly Questions (for
identification).
Question No 10 : If the answer to Q9 is in the negative, please explain why
not?
Mr. Johnny Chen : The reason why we dont have to are because, first, we are
not terminating the service to the cardholder. Second, it doesnt mean that we
are going to limit the service to the cardholder. Third, as long as the cardholder
can present an identification card of his membership, we allow him to use the
card. He can show this by telephoning the company or by presenting us his
passport or travel document. When Watson Company called AEII for
authorization, AEII representative requested that he talk to Mr. Cordero
but he refused to talk to any representative of AEII. AEII could not prove
then that he is really the real card holder.
26
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
Mr. Chen Heng Kun was briefly cross-examined by respondents counsel,
thus:
Question No 10 : Question 9 is objected to since the best evidence would be
the membership agreement between plaintiffs and AEII.
Significantly, paragraph 16 of the Cardmember Agreement signed by
respondent provides:
16. THE CARD REMAINS OUR PROPERTY
The Card remains our property and we can revoke your right and the right of
ay Additional Cardmember to use it at any time, we can do this with or without
giving you notice. If we have revoked the Card without cause, we will refund
a proportion of your annual Card Account fee. We may list revoked Cards in
our Cancellation Bulletin, or otherwise inform Establishments that the Card
issued to you and, if you are the basic Cardmember, any Additional Cards
have been revoked or cancelled.
If we revoke the card or it expires, you must return it to us if we request. Also,
if any Establishment asks you to surrender an expired or revoked Card, you
must do so. You may not use the Card after it has expired or after it has been
revoked.
The revocation, repossession or request for the return of the Card is not, and
shall not constitute any reflection of your character or credit-worthiness and
we shall not be liable in any way for any statement made by any person
requesting the return or surrender of the Card.[15]
 TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE

To be sure, pursuant to the above stipulation, petitioner can revoke

respondents card without notice, as was done here. It bears reiterating that
the subject card would not have been confiscated and cut had respondent
talked to petitioners representative and identified himself as the genuine
cardholder. It is thus safe to conclude that there was no negligence on the part
of petitioner and that, therefore, it cannot be held liable to respondent for
damages.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court

of Appeals in CA-G.R. CV No. 51671 is REVERSED. SO ORDERED.

27

AIR FRANCE vs. CARRASCOSO
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent
Rafael Carrascoso P25,000.00 by way of moral damages; P10,000.00 as
exemplary damages; P393.20 representing the difference in fare between first
class and tourist class for the portion of the trip Bangkok-Rome, these various
amounts with interest at the legal rate, from the date of the filing of the
complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on
Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the
appealed decision "in all other respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence
of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that
left Manila for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent,
Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane
ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first
class", but at Bangkok, the Manager of the defendant airline forced plaintiff to
vacate the "first class" seat that he was occupying because, in the words of
the witness Ernesto G. Cuento, there was a "white man", who, the Manager
alleged, had a "better right" to the seat. When asked to vacate his "first class"
seat, the plaintiff, as was to be expected, refused, and told defendant's
Manager that his seat would be taken over his dead body; a commotion
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
ensued, and, according to said Ernesto G. Cuento, "many of the Filipino
passengers got nervous in the tourist class; when they found out that Mr.
Carrascoso was having a hot discussion with the white man [manager], they
came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his
seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and
plaintiff reluctantly gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all the
findings" 4 of respondent Court of Appeals. Petitioner charges that respondent
court failed to make complete findings of fact on all the issues properly laid
before it. We are asked to consider facts favorable to petitioner, and then, to
overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be
rendered by any court of record without expressing therein clearly and
distinctly the facts and the law on which it is based". 5 This is echoed in the
statutory demand that a judgment determining the merits of the case shall
state "clearly and distinctly the facts and the law on which it is based"; 6 and
that "Every decision of the Court of Appeals shall contain complete findings of
fact on all issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct
attack. 8 The law, however, solely insists that a decision state the "essential
ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice
is not hidebound to write in its decision every bit and piece of
evidence 10 presented by one party and the other upon the issues raised.
Neither is it to be burdened with the obligation "to specify in the sentence the
facts" which a party "considered as proved". 11 This is but a part of the mental
process from which the Court draws the essential ultimate facts. A decision is

not to be so clogged with details such that prolixity, if not confusion, may result.
So long as the decision of the Court of Appeals contains the necessary facts
to warrant its conclusions, it is no error for said court to withhold therefrom
"any specific finding of facts with respect to the evidence for the defense".
Because as this Court well observed, "There is no law that so
requires". 12 Indeed, "the mere failure to specify (in the decision) the
contentions of the appellant and the reasons for refusing to believe them is
not sufficient to hold the same contrary to the requirements of the provisions
of law and the Constitution". It is in this setting that in Manigque, it was held
that the mere fact that the findings "were based entirely on the evidence for
the prosecution without taking into consideration or even mentioning the
appellant's side in the controversy as shown by his own testimony", would not
vitiate the judgment. 13 If the court did not recite in the decision the testimony
of each witness for, or each item of evidence presented by, the defeated party,
it does not mean that the court has overlooked such testimony or such item of
evidence. 14 At any rate, the legal presumptions are that official duty has been
regularly performed, and that all the matters within an issue in a case were
laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe
defined as "the written statement of the ultimate facts as found by the court ...
and essential to support the decision and judgment rendered thereon". 16They
consist of the court's "conclusions" with respect to the determinative facts in
issue". 17 A question of law, upon the other hand, has been declared as "one
which does not call for an examination of the probative value of the evidence
presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari
from a judgment of the Court of Appeals. 19 That judgment is conclusive as to
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
the facts. It is not appropriately the business of this Court to alter the facts or
to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of
fact of the Court of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received
from petitioner a first class ticket. But petitioner asserts that said ticket did not
represent the true and complete intent and agreement of the parties; that said
respondent knew that he did not have confirmed reservations for first class on
any specific flight, although he had tourist class protection; that, accordingly,
the issuance of a first class ticket was no guarantee that he would have a first
class ride, but that such would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed
in its brief before the Court of Appeals under its third assignment of error,
which reads: "The trial court erred in finding that plaintiff had confirmed
reservations for, and a right to, first class seats on the "definite" segments of
his journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-
class ticket was no guarantee that the passenger to whom the same had been
issued, would be accommodated in the first-class compartment, for as in the
case of plaintiff he had yet to make arrangements upon arrival at every station
for the necessary first-class reservation. We are not impressed by such a
reasoning. We cannot understand how a reputable firm like defendant airplane

company could have the indiscretion to give out tickets it never meant to honor
at all. It received the corresponding amount in payment of first-class tickets
and yet it allowed the passenger to be at the mercy of its employees. It is more
in keeping with the ordinary course of business that the company should know
whether or riot the tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of
petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there
can be no question. Apart from his testimony, see plaintiff's Exhibits "A", "A-
1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael
Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does
this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and
Rafael Altonaga that although plaintiff paid for, and was issued a "first class"
airplane ticket, the ticket was subject to confirmation in Hongkong. The court
cannot give credit to the testimony of said witnesses. Oral evidence cannot
prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C"
and "C-1" belie the testimony of said witnesses, and clearly show that the
plaintiff was issued, and paid for, a first class ticket without any reservation
whatever.
30
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
Furthermore, as hereinabove shown, defendant's own witness Rafael
Altonaga testified that the reservation for a "first class" accommodation for the
plaintiff was confirmed. The court cannot believe that after such confirmation
defendant had a verbal understanding with plaintiff that the "first class" ticket
issued to him by defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a
few pesos in the amount refunded on Carrascoso's ticket, the decision of the
Court of First Instance was affirmed by the Court of Appeals in all other
respects. We hold the view that such a judgment of affirmance has merged
the judgment of the lower court. 24Implicit in that affirmance is a determination
by the Court of Appeals that the proceeding in the Court of First Instance was
free from prejudicial error and "all questions raised by the assignments of error
and all questions that might have been raised are to be regarded as finally
adjudicated against the appellant". So also, the judgment affirmed "must be
regarded as free from all error". 25 We reached this policy construction
because nothing in the decision of the Court of Appeals on this point would
suggest that its findings of fact are in any way at war with those of the trial
court. Nor was said affirmance by the Court of Appeals upon a ground or
grounds different from those which were made the basis of the conclusions of
the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first
class seat, notwithstanding the fact that seat availability in specific flights is
therein confirmed, then an air passenger is placed in the hollow of the hands
of an airline. What security then can a passenger have? It will always be an
easy matter for an airline aided by its employees, to strike out the very
stipulations in the ticket, and say that there was a verbal agreement to the
contrary. What if the passenger had a schedule to fulfill? We have long learned
that, as a rule, a written document speaks a uniform language; that spoken

word could be notoriously unreliable. If only to achieve stability in the relations
between passenger and air carrier, adherence to the ticket so issued is
desirable. Such is the case here. The lower courts refused to believe the oral
evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there
are facts upon which the Court of Appeals predicated the finding that
respondent Carrascoso had a first class ticket and was entitled to a first class
seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the
flight. 27 We perceive no "welter of distortions by the Court of Appeals of
petitioner's statement of its position", as charged by petitioner. 28 Nor do we
subscribe to petitioner's accusation that respondent Carrascoso
"surreptitiously took a first class seat to provoke an issue". 29And this because,
as petitioner states, Carrascoso went to see the Manager at his office in
Bangkok "to confirm my seat and because from Saigon I was told again to see
the Manager". 30 Why, then, was he allowed to take a first class seat in the
plane at Bangkok, if he had no seat? Or, if another had a better right to the
seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's
trenchant claim is that Carrascoso's action is planted upon breach of contract;
that to authorize an award for moral damages there must be an averment of
fraud or bad faith;31 and that the decision of the Court of Appeals fails to make
a finding of bad faith. The pivotal allegations in the complaint bearing on this
issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air
Lines for a valuable consideration, the latter acting as general agents for and
in behalf of the defendant, under which said contract, plaintiff was entitled to,
31
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
as defendant agreed to furnish plaintiff, First Class passage on defendant's
plane during the entire duration of plaintiff's tour of Europe with Hongkong as
starting point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from
Saigon to Bangkok, defendant furnished to the plaintiff First Class
accommodation but only after protestations, arguments and/or insistence
were made by the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead
furnished plaintiff only Tourist Class accommodations from Bangkok to
Teheran and/or Casablanca, ... the plaintiff has been compelled by
defendant's employees to leave the First Class accommodation berths at
Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience
and embarrassments brought by defendant's breach of contract was forced to
take a Pan American World Airways plane on his return trip from Madrid to
Manila.32
xxx xxx xxx
2. That likewise, as a result of defendant's failure to furnish First Class
accommodations aforesaid, plaintiff suffered inconveniences,
embarrassments, and humiliations, thereby causing plaintiff mental anguish,
serious anxiety, wounded feelings, social humiliation, and the like injury,
resulting in moral damages in the amount of P30,000.00. 33
xxx xxx xxx

The foregoing, in our opinion, substantially aver: First, That there was a
contract to furnish plaintiff a first class passage covering, amongst others, the
Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok; and Third, that
there was bad faith when petitioner's employee compelled Carrascoso to
leave his first class accommodation berth "after he was already, seated" and
to take a seat in the tourist class, by reason of which he suffered
inconvenience, embarrassments and humiliations, thereby causing him
mental anguish, serious anxiety, wounded feelings and social humiliation,
resulting in moral damages. It is true that there is no specific mention of the
term bad faith in the complaint. But, the inference of bad faith is there, it may
be drawn from the facts and circumstances set forth therein. 34 The contract
was averred to establish the relation between the parties. But the stress of the
action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's
counsel placed petitioner on guard on what Carrascoso intended to prove:
That while sitting in the plane in Bangkok, Carrascoso was ousted by
petitioner's manager who gave his seat to a white man; 35 and (b) evidence of
bad faith in the fulfillment of the contract was presented without objection on
the part of the petitioner. It is, therefore, unnecessary to inquire as to whether
or not there is sufficient averment in the complaint to justify an award for moral
damages. Deficiency in the complaint, if any, was cured by the evidence. An
amendment thereof to conform to the evidence is not even required. 36 On the
question of bad faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of
the plane belonging to the defendant Air France while at Bangkok, and was
transferred to the tourist class not only without his consent but against his will,
32
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
has been sufficiently established by plaintiff in his testimony before the court,
corroborated by the corresponding entry made by the purser of the plane in
his notebook which notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will,
and that the captain refused to intervene", and by the testimony of an eye-
witness, Ernesto G. Cuento, who was a co-passenger. The captain of the
plane who was asked by the manager of defendant company at Bangkok to
intervene even refused to do so. It is noteworthy that no one on behalf of
defendant ever contradicted or denied this evidence for the plaintiff. It could
have been easy for defendant to present its manager at Bangkok to testify at
the trial of the case, or yet to secure his disposition; but defendant did
neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior reservation was made
by the white man. Hence, if the employees of the defendant at Bangkok sold
a first-class ticket to him when all the seats had already been taken, surely the
plaintiff should not have been picked out as the one to suffer the
consequences and to be subjected to the humiliation and indignity of being
ejected from his seat in the presence of others. Instead of explaining to the
white man the improvidence committed by defendant's employees, the
manager adopted the more drastic step of ousting the plaintiff who was then
safely ensconsced in his rightful seat. We are strengthened in our belief that
this probably was what happened there, by the testimony of defendant's
witness Rafael Altonaga who, when asked to explain the meaning of the letters
"O.K." appearing on the tickets of plaintiff, said "that the space is confirmed

for first class. Likewise, Zenaida Faustino, another witness for defendant, who
was the chief of the Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the
passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June
19, 1959)
In this connection, we quote with approval what the trial Judge has said on
this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have
a "better right" to the seat occupied by Mr. Carrascoso? The record is silent.
The defendant airline did not prove "any better", nay, any right on the part of
the "white man" to the "First class" seat that the plaintiff was occupying and
for which he paid and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in
Bangkok, the defendant could have easily proven it by having taken the
testimony of the said Manager by deposition, but defendant did not do so; the
presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the
Court is constrained to find, as it does find, that the Manager of the defendant
airline in Bangkok not merely asked but threatened the plaintiff to throw him
out of the plane if he did not give up his "first class" seat because the said
Manager wanted to accommodate, using the words of the witness Ernesto G.
Cuento, the "white man".38
33
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
It is really correct to say that the Court of Appeals in the quoted portion first
transcribed did not use the term "bad faith". But can it be doubted that the
recital of facts therein points to bad faith? The manager not only prevented
Carrascoso from enjoying his right to a first class seat; worse, he imposed his
arbitrary will; he forcibly ejected him from his seat, made him suffer the
humiliation of having to go to the tourist class compartment - just to give way
to another passenger whose right thereto has not been established. Certainly,
this is bad faith. Unless, of course, bad faith has assumed a meaning different
from what is understood in law. For, "bad faith" contemplates a "state of mind
affirmatively operating with furtive design or with some motive of self-interest
or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad
faith in the judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation
with plaintiff in bad faith, with the aggravating circumstances that defendant's
Manager in Bangkok went to the extent of threatening the plaintiff in the
presence of many passengers to have him thrown out of the airplane to give
the "first class" seat that he was occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager)
wished to accommodate, and the defendant has not proven that this "white
man" had any "better right" to occupy the "first class" seat that the plaintiff was
occupying, duly paid for, and for which the corresponding "first class" ticket
was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need
not be essayed. It is well settled in law. 41 For the willful malevolent act of

petitioner's manager, petitioner, his employer, must answer. Article 21 of the
Civil Code says:
ART. 21. Any person who willfully 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.
In parallel circumstances, we applied the foregoing legal precept; and, we held
that upon the provisions of Article 2219 (10), Civil Code, moral damages are
recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from
any other contractual relation. 43 And this, because of the relation which an
air-carrier sustains with the public. Its business is mainly with the travelling
public. It invites people to avail of the comforts and advantages it offers. The
contract of air carriage, therefore, generates a relation attended with a public
duty. Neglect or malfeasance of the carrier's employees, naturally, could give
ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be
treated by the carrier's employees with kindness, respect, courtesy and due
consideration. They are entitled to be protected against personal misconduct,
injurious language, indignities and abuses from such employees. So it is, that
any rule or discourteous conduct on the part of employees towards a
passenger gives the latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it
was a breach of contract and a tort, giving a right of action for its agent in the
presence of third persons to falsely notify her that the check was worthless
34
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
and demand payment under threat of ejection, though the language used was
not insulting and she was not ejected." 46 And this, because, although the
relation of passenger and carrier is "contractual both in origin and nature"
nevertheless "the act that breaks the contract may be also a tort". 47 And in
another case, "Where a passenger on a railroad train, when the conductor
came to collect his fare tendered him the cash fare to a point where the train
was scheduled not to stop, and told him that as soon as the train reached such
point he would pay the cash fare from that point to destination, there was
nothing in the conduct of the passenger which justified the conductor in using
insulting language to him, as by calling him a lunatic," 48 and the Supreme
Court of South Carolina there held the carrier liable for the mental suffering of
said passenger.
Petitioner's contract with Carrascoso is one attended with public duty. The
stress of Carrascoso's action as we have said, is placed upon his wrongful
expulsion. This is a violation of public duty by the petitioner air carrier — a
case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus
—
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already — that was already in the trip — I could not help it. So
one of the flight attendants approached me and requested from me my ticket
and I said, What for? and she said, "We will note that you transferred to the
tourist class". I said, "Nothing of that kind. That is tantamount to accepting my
transfer." And I also said, "You are not going to note anything there because
I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.

Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't
have enough leg room, I stood up and I went to the pantry that was next to me
and the purser was there. He told me, "I have recorded the incident in my
notebook." He read it and translated it to me — because it was recorded in
French — "First class passenger was forced to go to the tourist class against
his will, and that the captain refused to intervene."
Mr. VALTE —
I move to strike out the last part of the testimony of the witness because the
best evidence would be the notes. Your Honor.
COURT —
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made
an entry in his notebook reading "First class passenger was forced to go to
the tourist class against his will, and that the captain refused to intervene" is
predicated upon evidence [Carrascoso's testimony above] which is
incompetent. We do not think so. The subject of inquiry is not the entry, but
the ouster incident. Testimony on the entry does not come within the
proscription of the best evidence rule. Such testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue
happened, the impact of the startling occurrence was still fresh and continued
to be felt. The excitement had not as yet died down. Statements then, in this
environment, are admissible as part of the res gestae. 50 For, they grow "out
of the nervous excitement and mental and physical condition of the
declarant". 51 The utterance of the purser regarding his entry in the notebook
was spontaneous, and related to the circumstances of the ouster incident. Its
35
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
trustworthiness has been guaranteed. 52 It thus escapes the operation of the
hearsay rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an
employee of petitioner. It would have been an easy matter for petitioner to
have contradicted Carrascoso's testimony. If it were really true that no such
entry was made, the deposition of the purser could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible
in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court
ample power to grant exemplary damages — in contracts and quasi-
contracts. The only condition is that defendant should have "acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of
ejectment of respondent Carrascoso from his first class seat fits into this legal
precept. And this, in addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of exemplary
damages justifies a similar judgment for attorneys' fees. The least that can be
said is that the courts below felt that it is but just and equitable that attorneys'
fees be given. 55 We do not intend to break faith with the tradition that
discretion well exercised — as it was here — should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court
and the Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00,
by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of
fixing these amounts is primarily with the trial court. 56 The Court of Appeals
did not interfere with the same. The dictates of good sense suggest that we
 TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE

give our imprimatur thereto. Because, the facts and circumstances point to the
reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer
from reversible error. We accordingly vote to affirm the same. Costs against
petitioner. So ordered.

36

FAR EAST BANK vs. CA
Sometime 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
37
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
tagging the card as hotlisted), as it is always our intention to protect our
cardholders.
An investigation of your case however, revealed that FAREASTCARD failed
to inform you about its security policy. Furthermore, an overzealous employee
of the Bank's 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. The Civil Code provides:
2 Article 22197 of the Civil Code to a contractual breach similar to the case at
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
presumed4 ) 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
38
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
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
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. Miranda8 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."
39
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
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 of the
obligation, and which the parties have foreseen or could have
reasonably foreseen at the time the obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be
responsible for all damages which may be reasonably attributed to the non-
performance of the obligation.
It is to be presumed, in the absence of statutory provision to the contrary, that
this difference was in the mind of the lawmakers when in Art. 2220 they limited
recovery of 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 was breached through negligence of the
carrier's employees.
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 tort9 even where there is a pre-existing
contract between the plaintiff and the defendant (Phil. Airlines vs. 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' case for it can aptly govern only where
the act or omission complained of would constitute an actionable tort
40
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
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).
 TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE

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).

Nevertheless, the bank's failure, even perhaps inadvertent, to honor its credit
card issued to private respondent Luis should entitle him to recover a measure
of damages sanctioned under Article 2221 of the Civil Code providing thusly:
Art. 2221. Nominal damages are adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of indemnifying the plaintiff
for any loss suffered by him.

Reasonable attorney's fees may be recovered where the court deems such
recovery to be just and equitable (Art. 2208, Civil Code). We see no issue of
sound discretion on the part of the appellate court in allowing the award
thereof by the trial court.

WHEREFORE, the petition for review is given due course. The appealed
decision is MODIFIED by 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.
SO ORDERED.

41

EQUITABLE LEASING CORPORATION vs. SUYOM
In an action based on quasi delict, the registered owner of a motor vehicle is
solidarily liable for the injuries and damages caused by the negligence of the
driver, in spite of the fact that the vehicle may have already been the subject
of an unregistered Deed of Sale in favor of another person. Unless registered
with the Land Transportation Office, the sale -- while valid and binding
between the parties -- does not affect third parties, especially the victims of
accidents involving the said transport equipment. Thus, in the present case,
petitioner, which is the registered owner, is liable for the acts of the driver
employed by its former lessee who has become the owner of that vehicle by
virtue of an unregistered Deed of Sale.
Statement of the Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
assailing the May 12, 2000 Decision[1] of the Court of Appeals[2] (CA) in CA-
GR CV No. 55474. The decretal portion of the Decision reads as follows:
WHEREFORE, premises considered, the instant appeal
hereby DISMISSED for lack of merit. The assailed decision, dated May 5,
1997, of the Regional Trial Court of Manila, Branch 14, in Civil Case No. 95-
73522, is hereby AFFIRMED with MODIFICATION that the award
attorneys fees is DELETED.[3]
On the other hand, in Civil Case No. 95-73522, the Regional Trial Court (RTC)
of Manila (Branch 14) had earlier disposed in this wise:
TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and
against the defendant Equitable Leasing Corporation ordering said defendant
to pay to the plaintiffs the following:
A. TO MYRNA TAMAYO
1. the sum of P50,000.00 for the death of Reniel Tamayo;
2. P50,000.00 as moral damages; and
3. P56,000.00 for the damage to the store and its contents, and funeral
expenses.
B. TO FELIX OLEDAN
1. the sum of P50,000.00 for the death of Felmarie Oledan;
2. P50,000.00 as moral damages; and
3. P30,000.00 for medical expenses, and funeral expenses.
C. TO MARISSA ENANO
1. P7,000.00 as actual damages
D. TO LUCITA SUYOM
1. The sum of P5,000.00 for the medical treatment of her two sons.
The sum of P120,000.00 as and for attorneys fees.[4]
is
The Facts
of On July 17, 1994, a Fuso Road Tractor driven by Raul Tutor rammed into the
house cum store of Myrna Tamayo located at Pier 18, Vitas, Tondo, Manila. A
portion of the house was destroyed. Pinned to death under the engine of the
tractor were Respondent Myrna Tamayos son, Reniel Tamayo, and
Respondent Felix Oledans daughter, Felmarie Oledan. Injured were
Respondent Oledan himself, Respondent Marissa Enano, and two sons of
Respondent Lucita Suyom.
42

Tutor was charged with and later convicted of reckless imprudence resulting
in multiple homicide and multiple physical injuries in Criminal Case No.
296094-SA, Metropolitan Trial Court of Manila, Branch 12.[5]
Upon verification with the Land Transportation Office, respondents were
furnished a copy of Official Receipt No. 62204139[6] and Certificate of
Registration No. 08262797,[7]showing that the registered owner of the tractor
was Equitable Leasing Corporation/leased to Edwin Lim. On April 15, 1995,
respondents filed against Raul Tutor, Ecatine Corporation (Ecatine) and
Equitable Leasing Corporation (Equitable) a Complaint[8] for damages
docketed as Civil Case No. 95-73522 in the RTC of Manila, Branch 14.
The trial court, upon motion of plaintiff’s counsel, issued an Order dropping
Raul Tutor, Ecatine and Edwin Lim from the Complaint, because they could
not be located and served with summonses.[9] On the other hand, in its Answer
with Counterclaim,[10] petitioner alleged that the vehicle had already been sold
to Ecatine and that the former was no longer in possession and control thereof
at the time of the incident. It also claimed that Tutor was an employee, not of
Equitable, but of Ecatine.
After trial on the merits, the RTC rendered its Decision ordering petitioner to
pay actual and moral damages and attorney’s fees to respondents. It held that
since the Deed of Sale between petitioner and Ecatine had not been
registered with the Land Transportation Office (LTO), the legal owner was still
Equitable.[11] Thus, petitioner was liable to respondents.[12]
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Ruling of the Court of Appeals
Sustaining the RTC, the CA held that petitioner was still to be legally deemed
the owner/operator of the tractor, even if that vehicle had been the subject of
a Deed of Sale in favor of Ecatine on December 9, 1992. The reason cited by
the CA was that the Certificate of Registration on file with the LTO still
remained in petitioners name.[13] In order that a transfer of ownership of a
motor vehicle can bind third persons, it must be duly recorded in the LTO.[14]
The CA likewise upheld respondents claim for moral damages against
petitioner because the appellate court considered Tutor, the driver of the
tractor, to be an agent of the registered owner/operator.[15]
Hence, this Petition.[16]
Issues
In its Memorandum, petitioner raises the following issues for the Courts
consideration:
I
Whether or not the Court of Appeals and the trial court gravely erred when
they decided and held that petitioner [was] liable for damages suffered by
private respondents in an action based on quasi delict for the negligent acts
of a driver who [was] not the employee of the petitioner.
II
Whether or not the Court of Appeals and the trial court gravely erred when
they awarded moral damages to private respondents despite their failure to
prove that the injuries they suffered were brought by petitioners wrongful
act.[17]

This Courts Ruling
The Petition has no merit.
First Issue:
Liability for Wrongful Acts
Petitioner contends that it should not be held liable for the damages sustained
by respondents and that arose from the negligence of the driver of the Fuso
Road Tractor, which it had already sold to Ecatine at the time of the
accident. Not having employed Raul Tutor, the driver of the vehicle, it could
not have controlled or supervised him.[18]
We are not persuaded. In negligence cases, the aggrieved party may sue the
negligent party under (1) Article 100[19] of the Revised Penal Code, for civil
liability ex delicto; or (2) under Article 2176[20] of the Civil Code, for civil
liability ex quasi delicto.[21]
Furthermore, under Article 103 of the Revised Penal Code, employers may be
held subsidiarily liable for felonies committed by their employees in the
discharge of the latters duties.[22] This liability attaches when the employees
who are convicted of crimes committed in the performance of their work are
found to be insolvent and are thus unable to satisfy the civil liability
adjudged.[23]
On the other hand, under Article 2176 in relation to Article 2180[24] of the Civil
Code, an action predicated on quasi delict may be instituted against the
employer for an employees act or omission. The liability for the negligent
conduct of the subordinate is direct and primary, but is subject to the defense
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of due diligence in the selection and supervision of the employee.[25] The
enforcement of the judgment against the employer for an action based on
Article 2176 does not require the employee to be insolvent, since the liability
of the former is solidary -- the latter being statutorily considered a joint
tortfeasor.[26] To sustain a claim based on quasi delict, the following requisites
must be proven: (a) damage suffered by the plaintiff, (b) fault or negligence of
the defendant, and (c) connection of cause and effect between the fault or
negligence of the defendant and the damage incurred by the plaintiff.[27]
These two causes of action (ex delicto or ex quasi delicto) may be availed
of, subject to the caveat[28] that the offended party cannot recover damages
twice for the same act or omission or under both causes.[29] Since these two
civil liabilities are distinct and independent of each other, the failure to recover
in one will not necessarily preclude recovery in the other.[30]
In the instant case, respondents -- having failed to recover anything in the
criminal case -- elected to file a separate civil action for damages, based on
quasi delict under Article 2176 of the Civil Code.[31] The evidence is clear that
the deaths and the injuries suffered by respondents and their kins were due
to the fault of the driver of the Fuso tractor.
Dated June 4, 1991, the Lease Agreement[32] between petitioner and Edwin
Lim stipulated that it is the intention of the parties to enter into a FINANCE
LEASE AGREEMENT.[33] Under such scheme, ownership of the subject
tractor was to be registered in the name of petitioner, until the value of the
vehicle has been fully paid by Edwin Lim.[34] Further, in the Lease
Schedule,[35] the monthly rental for the tractor was stipulated, and the term of
the Lease was scheduled to expire on December 4, 1992. After a few months,
Lim completed the payments to cover the full price of the tractor.[36] Thus, on

December 9, 1992, a Deed of Sale[37] over the tractor was executed by
petitioner in favor of Ecatine represented by Edwin Lim. However, the Deed
was not registered with the LTO.
We hold petitioner liable for the deaths and the injuries complained of,
because it was the registered owner of the tractor at the time of the accident
on July 17, 1994.[38] The Court has consistently ruled that, regardless of sales
made of a motor vehicle, the registered owner is the lawful operator insofar as
the public and third persons are concerned; consequently, it is directly and
primarily responsible for the consequences of its operation.[39] In
contemplation of law, the owner/operator of record is the employer of the
driver, the actual operator and employer being considered as merely
its agent.[40] The same principle applies even if the registered owner of any
vehicle does not use it for public service.[41]
Since Equitable remained the registered owner of the tractor, it could not
escape primary liability for the deaths and the injuries arising from the
negligence of the driver.[42]
The finance-lease agreement between Equitable on the one hand and Lim or
Ecatine on the other has already been superseded by the sale. In any event,
it does not bind third persons. The rationale for this rule has been aptly
explained in Erezo v. Jepte,[43] which we quote hereunder:
x x x. The main aim of motor vehicle registration is to identify the owner so
that if any accident happens, or that any damage or injury is caused by the
vehicle on the public highways, responsibility therefor can be fixed on a
definite individual, the registered owner. Instances are numerous where
vehicles running on public highways caused accidents or injuries to
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pedestrians or other vehicles without positive identification of the owner or
drivers, or with very scant means of identification. It is to forestall these
circumstances, so inconvenient or prejudicial to the public, that the motor
vehicle registration is primarily ordained, in the interest of the determination of
persons responsible for damages or injuries caused on public highways.[44]
Further, petitioners insistence on FGU Insurance Corp. v. Court of Appeals is
misplaced.[45] First, in FGU Insurance, the registered vehicle owner, which
was engaged in a rent-a-car business, rented out the car. In this case, the
registered owner of the truck, which is engaged in the business of financing
motor vehicle acquisitions, has actually sold the truck to Ecatine, which in turn
employed Tutor. Second, in FGU Insurance, the registered owner of the
vehicle was not held responsible for the negligent acts of the person who
rented one of its cars, because Article 2180 of the Civil Code was not
applicable. We held that no vinculum juris as employer and employee existed
between the owner and the driver.[46] In this case, the registered owner of the
tractor is considered under the law to be the employer of the driver, while the
actual operator is deemed to be its agent.[47]Thus, Equitable, the registered
owner of the tractor, is -- for purposes of the law on quasi delict -- the employer
of Raul Tutor, the driver of the tractor. Ecatine, Tutors actual employer, is
deemed as merely an agent of Equitable.[48]
True, the LTO Certificate of Registration, dated 5/31/91, qualifies the name of
the registered owner as EQUITABLE LEASING CORPORATION/Leased to
Edwin Lim. But the lease agreement between Equitable and Lim has been
overtaken by the Deed of Sale on December 9, 1992, between petitioner and
Ecatine. While this Deed does not affect respondents in this quasi delict suit,
it definitely binds petitioner because, unlike them, it is a party to it.

We must stress that the failure of Equitable and/or Ecatine to register the sale
with the LTO should not prejudice respondents, who have the legal right to
rely on the legal principle that the registered vehicle owner is liable for the
damages caused by the negligence of the driver. Petitioner cannot hide
behind its allegation that Tutor was the employee of Ecatine. This will
effectively prevent respondents from recovering their losses on the basis of
the inaction or fault of petitioner in failing to register the sale. The non-
registration is the fault of petitioner, which should thus face the legal
consequences thereof.
Second Issue:
Moral Damages
Petitioner further claims that it is not liable for moral damages, because
respondents failed to establish or show the causal connection or relation
between the factual basis of their claim and their wrongful act or omission, if
any. [49]
Moral damages are not punitive in nature, but are designed to
compensate[50] and alleviate in some way the physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury unjustly caused a
person.[51] Although incapable of pecuniary computation, moral damages
must nevertheless be somehow proportional to and in approximation of the
suffering inflicted.[52] This is so because moral damages are in the category of
an award designed to compensate the claimant for actual injury suffered, not
to impose a penalty on the wrongdoer.[53]
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Viewed as an action for quasi delict, the present case falls squarely within the
purview of Article 2219 (2),[54] which provides for the payment of moral
damages in cases of quasi delict.[55] Having established the liability of
petitioner as the registered owner of the vehicle,[56] respondents have
satisfactorily shown the existence of the factual basis for the award[57] and its
causal connection to the acts of Raul Tutor, who is deemed as petitioners
employee.[58] Indeed, the damages and injuries suffered by respondents were
the proximate result of petitioners tortious act or omission.[59]
Further, no proof of pecuniary loss is necessary in order that moral damages
may be awarded, the amount of indemnity being left to the discretion of the
court.[60] The evidence gives no ground for doubt that such discretion was
properly and judiciously exercised by the trial court.[61] The award is in fact
consistent with the rule that moral damages are not intended to enrich the
injured party, but to alleviate the moral suffering undergone by that party by
reason of the defendants culpable action.[62]
WHEREFORE, the Petition is DENIED and the assailed
Decision AFFIRMED. Costs against petitioner. SO ORDERED.

PICART vs. SMITH
In this action the plaintiff, Amado Picart, seeks to recover of the defendant,
Frank Smith, jr., the sum of P31,000, as damages alleged to have been
caused by an automobile driven by the defendant. From a judgment of the
Court of First Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It
appears that upon the occasion in question the plaintiff was riding on his pony
over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of
about ten or twelve miles per hour. As the defendant neared the bridge he saw
a horseman on it and blew his horn to give warning of his approach. He
continued his course and after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on horseback before
him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the apparition or the
rapidity of the approach, he pulled the pony closely up against the railing on
the right side of the bridge instead of going to the left. He says that the reason
he did this was that he thought he did not have sufficient time to get over to
the other side. The bridge is shown to have a length of about 75 meters and
a width of 4.80 meters. As the automobile approached, the defendant guided
it toward his left, that being the proper side of the road for the machine. In so
doing the defendant assumed that the horseman would move to the other side.
The pony had not as yet exhibited fright, and the rider had made no sign for
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
the automobile to stop. Seeing that the pony was apparently quiet, the
defendant, instead of veering to the right while yet some distance away or
slowing down, continued to approach directly toward the horse without
diminution of speed. When he had gotten quite near, there being then no
possibility of the horse getting across to the other side, the defendant quickly
turned his car sufficiently to the right to escape hitting the horse alongside of
the railing where it as then standing; but in so doing the automobile passed in
such close proximity to the animal that it became frightened and turned its
body across the bridge with its head toward the railing. In so doing, it has
struck on the hock of the left hind leg by the flange of the car and the limb was
broken.
The horse fell and its rider was thrown off with some violence. From the
evidence adduced in the case we believe that when the accident occurred the
free space where the pony stood between the automobile and the railing of
the bridge was probably less than one and one half meters. As a result of its
injuries the horse died. The plaintiff received contusions which caused
temporary unconsciousness and required medical attention for several days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of negligence
such as gives rise to a civil obligation to repair the damage done; and we are
of the opinion that he is so liable.
As the defendant started across the bridge, he had the right to assume that
the horse and the rider would pass over to the proper side; but as he moved
toward the center of the bridge it was demonstrated to his eyes that this would
not be done; and he must in a moment have perceived that it was too late for
the horse to cross with safety in front of the moving vehicle. In the nature of
things this change of situation occurred while the automobile was yet some

distance away; and from this moment it was no longer within the power of the
plaintiff to escape being run down by going to a place of greater safety.
The control of the situation had then passed entirely to the defendant; and it
was his duty either to bring his car to an immediate stop or, seeing that there
were no other persons on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid the danger of collision. Instead of
doing this, the defendant ran straight on until he was almost upon the horse.
He was, we think, deceived into doing this by the fact that the horse had not
yet exhibited fright. But in view of the known nature of horses, there was an
appreciable risk that, if the animal in question was unacquainted with
automobiles, he might get excited and jump under the conditions which here
confronted him. When the defendant exposed the horse and rider to this
danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case
may be stated as follows: Did the defendant in doing the alleged negligent act
use that person would have used in the same situation? If not, then he is guilty
of negligence. The law here in effect adopts the standard supposed to be
supplied by the imaginary conduct of the discreet paterfamilias of the Roman
law. The existence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the situation before him.
The law considers what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a
given situation must of course be always determined in the light of human
experience and in view of the facts involved in the particular case. Abstract
speculations cannot here be of much value but this much can be profitably
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
said: Reasonable men govern their conduct by the circumstances which are
before them or known to them. They are not, and are not supposed to be,
omniscient of the future. Hence they can be expected to take care only when
there is something before them to suggest or warn of danger. Could a prudent
man, in the case under consideration, foresee harm as a result of the course
actually pursued? If so, it was the duty of the actor to take precautions to guard
against that harm. Reasonable foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary before negligence can
be held to exist. Stated in these terms, the proper criterion for determining the
existence of negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have foreseen that
an effect harmful to another was sufficiently probable to warrant his foregoing
conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the present case we think
that negligence is clearly established. A prudent man, placed in the position
of the defendant, would in our opinion, have recognized that the course which
he was pursuing was fraught with risk, and would therefore have foreseen
harm to the horse and the rider as reasonable consequence of that course.
Under these circumstances the law imposed on the defendant the duty to
guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he
was guilty of antecedent negligence in planting himself on the wrong side of
the road. But as we have already stated, the defendant was also negligent;
and in such case the problem always is to discover which agent is immediately
and directly responsible. It will be noted that the negligent acts of the two
parties were not contemporaneous, since the negligence of the defendant
succeeded the negligence of the plaintiff by an appreciable interval. Under

these circumstances the law is that the person who has the last fair chance to
avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil.
Rep., 359) should perhaps be mentioned in this connection. This Court there
held that while contributory negligence on the part of the person injured did
not constitute a bar to recovery, it could be received in evidence to reduce the
damages which would otherwise have been assessed wholly against the other
party. The defendant company had there employed the plaintiff, as a laborer,
to assist in transporting iron rails from a barge in Manila harbor to the
company's yards located not far away. The rails were conveyed upon cars
which were hauled along a narrow track.
At certain spot near the water's edge the track gave way by reason of the
combined effect of the weight of the car and the insecurity of the road bed.
The car was in consequence upset; the rails slid off; and the plaintiff's leg was
caught and broken. It appeared in evidence that the accident was due to the
effects of the typhoon which had dislodged one of the supports of the track.
The court found that the defendant company was negligent in having failed to
repair the bed of the track and also that the plaintiff was, at the moment of the
accident, guilty of contributory negligence in walking at the side of the car
instead of being in front or behind.
It was held that while the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair nevertheless the
amount of the damages should be reduced on account of the contributory
negligence in the plaintiff. As will be seen the defendant's negligence in that
case consisted in an omission only. The liability of the company arose from its
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TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE
responsibility for the dangerous condition of its track. In a case like the one
now before us, where the defendant was actually present and operating the
automobile which caused the damage, we do not feel constrained to attempt
to weigh the negligence of the respective parties in order to apportion the
damage according to the degree of their relative fault. It is enough to say that
the negligence of the defendant was in this case the immediate and
determining cause of the accident and that the antecedent negligence of the
plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense
pleaded in the defendant's answer, to the effect that the subject matter of the
action had been previously adjudicated in the court of a justice of the peace.
In this connection it appears that soon after the accident in question occurred,
the plaintiff caused criminal proceedings to be instituted before a justice of the
peace charging the defendant with the infliction of serious injuries (lesiones
graves).
At the preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding that the acquittal
of the defendant at the trial upon the merits in a criminal prosecution for the
offense mentioned would be res adjudicata upon the question of his civil
liability arising from negligence -- a point upon which it is unnecessary to
express an opinion -- the action of the justice of the peace in dismissing the
criminal proceeding upon the preliminary hearing can have no effect. (See U.
S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must
be reversed, and judgment is her rendered that the plaintiff recover of the
defendant the sum of two hundred pesos (P200), with costs of other instances.
 TORTS CASES under ATTY. GAVINO / FIRST WEEK COVERAGE

The sum here awarded is estimated to include the value of the horse, medical
expenses of the plaintiff, the loss or damage occasioned to articles of his
apparel, and lawful interest on the whole to the date of this recovery. The other
damages claimed by the plaintiff are remote or otherwise of such character as
not to be recoverable. So ordered.

50