JARCO MARKETING CORP V CA (AGUILAR)

DAVIDE; December 21, 1999

FACTS
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City.
Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's branch manager, operations
manager, and supervisor, respectively. Private respondents are spouses and the parents of Zhieneth
Aguilar.
On May 9, 1983, Criselda and Zhieneth were at the 2
nd
flr or Syvels Dept. Store. Criselda momentarily
let go of her daughters hand to sign her credit card slip at the payment and verification counter. She
suddenly felt a gust of wind and heard a loud thud. She looked behind her and saw her daughter on the
floor, pinned by the gift-wrapping counter. Zhieneth was crying and screaming for help. Criselda was
able to ask people to help her and bring her daughter to the hospital.
She was operated on immediately at the hospital. Gonzales, a former employee of Syvels Dept Store
who helped bring Zhieneth to the hospital, heard her tell the doctor that she nothing. I did not come
near the counter and the counter just fell on me, when asked what did you do? She died 14 days later,
on the hospital bed. She was 6 years old. The cause of her death was attributed to the injuries she
sustained.
After the burial of their daughter, the Aguilars demanded from the petitioners the reimbursement of
hospital and medical bills, and wake and funeral expenses. Petitioners refused to pay. So the Aguilars
filed a complaint for damages wherein they sought the payment of P157,522.86 for actual damages,
P300,000 for moral damages, P20,000 for attorney's fees and an unspecified amount for loss of income
and exemplary damages.
Jarco Mktg Corp, et als side Contention: Criselda was negligent in taking care of her daughter for
allowing her to roam freely. Zhieneth was guilty of contributory negligence because she tried to climb the
counter. The counter was made of sturdy wood with a strong base and was used without incident for the
past 15 years. It was deliberately placed at a corner to avoid such accidents. Jarco Marketing Corporation
maintained that it observed the diligence of a good father of a family in the selection, supervision and control
of its employees. The other petitioners likewise raised due care and diligence in the performance of their
duties The testimony of two former employees, Gonzales and Guevarra, should not be believed because he
might have ill feelings towards petitioners. The testimony of the present employees (that Zhieneth climbed
the counter so it fell) should instead be believed.
The Aguilars Contention: While in the dept store, Criselda never let go of her daughter except to sign the
credit card slip. Gonzales testified that the gift wrapping counter was right beside the verification counter
where Criselda was signing. Both Gonzales and Guevarra testified to the structural instability and shakiness
of the counter which is in the shape of and inverted L, with a base smaller than the top. The protruding part
of the counter was at the costumer side. They both had informed management (while they were still working
there) that the counter should be nailed to the floor. The management did nothing.

RTC It ruled that the proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it.
It believed petitioners' witnesses who testified that ZHIENETH clung to the counter, afterwhich the structure
and the girl fell with the structure falling on top of her, pinning her stomach. In contrast, none of private
respondents' witnesses testified on how the counter fell. The trial court also held that CRISELDA's
negligence contributed to ZHIENETH's accident. In absolving petitioners from any liability, the trial court
reasoned that the counter was situated at the end or corner of the 2nd floor as a precautionary measure
hence, it could not be considered as an attractive nuisance.
8
The counter was higher than ZHIENETH. It
has been in existence for fifteen years. Its structure was safe and well-balanced. ZHIENETH, therefore, had
no business climbing on and clinging to it.

CA - It found that petitioners were negligent in maintaining a structurally dangerous counter. The counter
was shaped like an inverted "L"
11
with a top wider than the base. It was top heavy and the weight of the
upper portion was neither evenly distributed nor supported by its narrow base. Thus, the counter was
defective, unstable and dangerous; a downward pressure on the overhanging portion or a push from the
front could cause the counter to fall. Two former employees of petitioners had already previously brought to
the attention of the management the danger the counter could cause. But the latter ignored their concern.
The Court of Appeals faulted the petitioners for this omission, and concluded that the incident that befell
ZHIENETH could have been avoided had petitioners repaired the defective counter. It was inconsequential
that the counter had been in use for some time without a prior incident. The Court of Appeals declared that
ZHIENETH, who was below seven (7) years old at the time of the incident, was absolutely incapable of
negligence or other tort. It reasoned that since a child under nine (9) years could not be held liable even for
an intentional wrong, then the six-year old ZHIENETH could not be made to account for a mere mischief or
reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of the ordinary in
momentarily allowing ZHIENETH to walk while she signed the document at the nearby counter.


ISSUE
WON the incident is accident or attributable to negligence
If negligence, who was negligent?

HELD
NEGLIGENCE.
An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. It is
"a fortuitous circumstance, event or happening; an event happening without any human agency, or if
happening wholly or partly through human agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens."
On the other hand, negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something
which a prudent and reasonable man would not do. Negligence is "the failure to observe, for the protection
of the interest of another person, that degree of care, precaution and vigilance which the circumstances
justly demand, whereby such other person suffers injury."
Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs
when the person concerned is exercising ordinary care, which is not caused by fault of any person and
which could not have been prevented by any means suggested by common prudence.
The test in determining the existence of negligence is enunciated in the landmark case of Picart v. Smith,
thus: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an
ordinary prudent person would have used in the same situation? If not, then he is guilty of negligence.
Gonzales testimony about what Zhieneth said to the doctor should be accepted because at the time she
said it, she was in so much pain and she answered right away. This means she wasnt making it up. It is
axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are
generally considered declarations and admissions. All that is required for their admissibility as part of the res
gestae is that they be made or uttered under the influence of a startling event before the declarant had the
time to think and concoct a falsehood as witnessed by the person who testified in court. Under the
circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme
pain, to have lied to a doctor whom she trusted with her life. We therefore accord credence to Gonzales'
testimony on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners
did, through their negligence or omission to secure or make stable the counter's base.
JARCO MKTG, ET AL.
Petitioner Panelo and another store supervisor were personally informed of the danger posed by the
unstable counter. Yet, neither initiated any concrete action to remedy the situation nor ensure the safety of
the store's employees and patrons as a reasonable and ordinary prudent man would have done. Thus, as
confronted by the situation petitioners miserably failed to discharge the due diligence required of a good
father of a family.
No contributory negligence from Zhieneth
- The conclusive presumption favors children below nine (9) years old in that they are incapable of
contributory negligence. In our jurisdiction, a person under nine years of age is conclusively presumed
to have acted without discernment, and is, on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains in a case of a person over nine and
under fifteen years of age, unless it is shown that he has acted with discernment. Since negligence
may be a felony and a quasi-delict and required discernment as a condition of liability, either criminal
or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of
negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of
a child over nine but under fifteen years of age is a rebuttable one, under our law. The rule, therefore,
is that a child under nine years of age must be conclusively presumed incapable of contributory
negligence as a matter of law. (Sangco)
- Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the
counter, no injury should have occurred if we accept petitioners' theory that the counter was stable and
sturdy. For if that was the truth, a frail six-year old could not have caused the counter to collapse. The
physical analysis of the counter by both the trial court and Court of Appeals and a scrutiny of the
evidence on record reveal that it was not durable after all. Shaped like an-inverted "L" the counter was
heavy, huge, and its top laden with formica. It protruded towards the customer waiting area and its
base was not secured.
No contributory negligence from Criselda
- CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to
CRISELDA's waist, later to the latter's hand. CRISELDA momentarily released the child's hand from
her clutch when she signed her credit card slip. At this precise moment, it was reasonable and usual
for CRISELDA to let go of her child. Further, at time ZHIENETH was pinned down by the counter, she
was just a foot away from her mother; and the gift-wrapping counter was just four meters away from
CRISELDA. The time and distance were both significant. ZHIENETH was near her mother and did not
loiter as petitioners would want to impress upon us. She even admitted to the doctor who treated her
at the hospital that she did not do anything; the counter just fell on her.
Disposition The instant petition is DENIED and the challenged decision of the Court of Appeals is hereby
AFFIRMED


DEL ROSARIO V MANILA ELECTRIC CO.
57 PHIL 478
STREET; November 5, 1932

FACTS
***This action was instituted by Julian del Rosario for the purpose of recovering damages from Meralco for the
death of his son, Alberto, resulting from a shock from a wire used by the defendant for the transmission of
electricity.
Aug 4, 1930 2pm: a wire used by the defendant on Dimas- Alang St for the purpose of conducting
electricity used in lighting the City of Manila and its suburbs. Jose Noguera saw that the wire was
burning and its connections smoking. One of the ends of the wire fell to the ground among some
shrubbery close to the way. As soon as Noguera took cognizance of the trouble, he stepped into a
garage which was located nearby and asked Jose Soco to telephone the Malabon station of MERALCO
that an electrical wire was burning at that place. Soco transmitted the message at 2.25 p.m. and
received answer from the station to the effect that they would send an inspector.
At the time that message was sent the wire had not yet parted, but from the testimony of Demetrio
Bingao, one of the witnesses for the defense, it is clear that the end of the wire was on the ground
shortly after 3 p.m. At 4 p. m. the neighborhood school was dismissed and the children went home.
Alberto del Rosario, 9 yrs old, who was a few paces ahead of his classmates, Jose Salvador and
Saturnino Endrina, all members of the second grade in the public school. As the three neared the place
where the wire was down, Saturnino made a motion as if it touch it. Jose, who happened to be the son
of an electrician, knew never to touch a broken electrical wire (as his dad told him so!)- stopped
Saturnino- telling him that the wire might be charged. Saturnino yielded to this admonition and stopped,
but Alberto, who was somewhat ahead, said, I have for some time been in the habit of touching wires.
Jose rejoined that he should into touch wires as they carry a current, but Alberto, no doubt feeling that
he was challenged in the matter, put out his index finger and touch the wire. He immediately fell face
downwards, exclaiming "Ay! madre". The end of the wire remained in contact with his body which fell
near the post.
A crowd soon collected, and some one cut the wire and disengaged the body. Upon being taken to St.
Luke's Hospital the child was pronounced dead. The wire was an ordinary number 6 triple braid weather
proof wire, such as is commonly used by the defendant company for the purpose of conducting
electricity for lighting. The wire was cased in the usual covering, but this had been burned off for some
distance from the point where the wire parted. The engineer of the company says that it was customary
for the company to make a special inspection of these wires at least once in six months, and that all of
the company's inspectors were required in their daily rounds to keep a lookout for trouble of this
kind. There is nothing in the record indicating any particular cause for the parting of the wire.l

ISSUE
WON Manila Electric is liable

HELD
YES
Reasoning
When notice was received at the Malabon station at 2.25 p. m., somebody should have been dispatched
to the scene of the trouble at once, or other measures taken to guard the point of danger; but more than
an 1 hours passed before anyone from MERALCO appeared on the scene, and in the meantime
Alberto had been claimed as a victim. The mere fact that the deceased ignored the caution of Jose (8
yrs old), doesnt alter the case.
But even supposing that contributory negligence could in some measure be properly imputed to the
deceased, such negligence would not be wholly fatal to the right of action in this case, not having been
the determining cause of the accident. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil., 359.) With
respect to the amount of damages recoverable, Julian is entitled to recover P250 for expenses incurred
in connection with the death and burial of the boy. Citing Astudillo vs. Manila Electric Company: Julian
should recover the sum of P1,000 as general damages for loss of service.
Disposition judgment reversed

SEPARATE OPINION

ABAD SANTOS [concur in part and dissent in part]
He concurs that MERALCO is held liable for the death of Alberto, but dissents in so far as the decision
allows the recovery of the father of the sum of P1,250 only as damages. It should be P 2250.
His reasoning: It is well settled in this jurisdiction that an action will lie to recover damages for death
caused by the wrongful act. (Manzanares vs. Moreta, 38 Phil., 821.) In criminal cases- indemnity to the
heirs of the deceased is equivalent to P1,000. Whatever may be the reasons for the rule followed in
criminal cases, I am of the opinion that those reasons do not obtain in fixing the amount of the damages
recoverable in the present case.
The indemnity allowed in criminal case is merely incidental to the main object sought, which is the
punishment of the guilty party. In a civil action, the principal object is the recovery of damages for
wrongful death; and where, as in this case, the defendant is a corporation, not subject to criminal
prosecution for the act complained of, the question assumes a vastly different aspect.
There should be a distinction between the civil liability of an ordinary person who, by wrongful act, has
caused the death of another; and the civil liability of a corporation, organized primarily for profit, which
has caused the death of a person by failure to exercise due care in the prosecution of its business. The
liability of such a corporation for damages must be regarded as a part of the risks which it assumes
when it undertakes to promote its own business; and just as it is entitled to earn adequate profits from its
business, so it should be made adequately to compensate those who have suffered damage by its
negligence.