TORTS 22 Petitioner thereafter filed an Omnibus Motion13 alleging that it was error to declare her "as in default" for
Petitioner thereafter filed an Omnibus Motion13 alleging that it was error to declare her "as in default" for the declaration "as in
G.R NO. 172238 SEPTEMBER 17, 2008
MA. LIZA FRANCO-CRUZ, Petitioner,
VS.
THE COURT OF APPEALS, VICTORY LINER, INC., MARITES M. GANELO, CATHERINE C. SANTOS, MA.
THERESA FABIAN, Respondent.
DECISION
CARPIO MORALES, J.:
On January 4, 1998, a Franco Transit bus bearing license plate number AVC 228 collided with the rear portions of a bus and
truck wrecker both owned by respondent Victory Liner, Inc. (Victory Liner) which were stalled "along kilometer 63, North
Expressway, San Felipe, San Fernando, Pampanga." The collision damaged both vehicles of Victory Liner and killed Manuel
Fabian, Rodel Ganelo, Caesar Santos, and Michael Figueroa. The driver of the Franco Transit bus likewise died in the accident.
On February 11, 1998, Victory Liner and respondents Marites M. Ganelo, Catherine C. Santos, and Ma. Theresa Q. Fabian (Ma.
Theresa) – the surviving spouses of Rodel Ganelo, Caesar Santos, and Manuel Fabian, respectively – filed before the Regional
Trial Court (RTC) of Caloocan City a complaint (Civil Case No. C-18212),1 for damages against Maria2 Liza Franco-Cruz
(petitioner), alleged to be "the registered owner and operator of public transportation utilities and whose bus is known as and by
the name of FRANCO TRANSIT and which she has been operating prior to January 4, 1998." 3
Respondents claimed that petitioner failed to exercise the diligence of a good father of a family in the selection and supervision
of the driver of the Franco Transit bus.4
In her Answer,5 petitioner, after denying the material allegations of the Complaint, alleged as among her Affirmative Defenses
that she is not the real party-in-interest and, therefore, the complaint stated no cause of action against her, hence, must be
dismissed; that the owner and the management of the bus involved in the case have always exercised the due diligence of a good
father of a family in the selection and supervision of their employees; and that the proximate cause of the collision was the
negligence and recklessness of a third party, the driver of a Philippine Rabbit bus.6
Petitioner and her counsel failed to appear during the pre-trial scheduled on June 5, 1998 despite due notice thereof, albeit her
counsel filed on even date an urgent motion to postpone. The motion was denied, however, and petitioner was declared "as in
default" [sic]. Respondents at once started presenting evidence ex-parte.7
On June 23, 1998, petitioner filed a Motion for Reconsideration8 of the June 5, 1998 order declaring her "as in default,"
alleging that, inter alia, she had meritorious defenses that included her not being the real party-in-interest as she is not the
registered owner of the Franco Transit bus9 but Felicisima R. Franco, in support of which she attached a Certificate of
Registration issued on October 28, 1988 in the name of Felicisima R. Franco.10
Petitioner’s Motion for Reconsideration was denied by the trial court by Order 11 of July 20, 1998 in this wise:
Indeed, a cursory examination of the instant motion will readily show that it was filed in patent violation of the provision of the
rules.
While the movant alleged that [she] has a meritorious defense which would justify the granting of [her] motion, [she]
nevertheless failed to submit an Affidavit of Merit. Worst, the motion was not even verified.12 (Emphasis and underscoring
supplied)
Page 1 of 45 TORTS MEETING 3
default" of a defendant who fails to attend pre-trial had been eliminated in the 1997 Rules of Civil Procedure. She thus prayed
that she be allowed to participate in the proceedings and to present evidence on her affirmative defenses. The Omnibus
Motion was denied for failure of petitioner’s counsel to appear at the hearing thereon.14
After respondents rested their case, Branch 121 of the Caloocan City RTC, by Decision 15 dated March 30, 1999, found that, inter
alia, the negligence of the driver of the Franco Transit bus resulted in the accident which "the defendant [-herein petitioner]
failed to rebut" and that, moreover, "the defendant [-herein petitioner] totally failed to present evidence to overthrow the
presumption of negligence against her pursuant to Article 2180 of the Civil Code."16 It thus rendered judgment in favor of
respondents, disposing as follows:
WHEREFORE, premises considered, judgment is hereby rendered against MARIA LIZA FRANCO-CRUZ, operator of
FRANCO TRANSIT, ordering her:
1) To pay P50,000.00 each by way of actual damages and lost income to plaintiffs Marites M. Ganelo, Catherine C. Santos and
Ma. Theresa Q. Fabian;
2) To pay moral damages to the above-named plaintiffs in the amount of P100,000.00;
3) To pay actual damages in the amount of P515,631.00 to plaintiff Victory Liner, Inc., and lost income in the amount of
P50,000.00;
4) To pay attorney’s fees of P50,000.00 and the costs of the suit.
SO ORDERED.17
Respondent Ma. Theresa filed a Motion for Partial Reconsideration and Clarification. 18 Petitioner filed a Motion for
Reconsideration19 of the trial court’s decision reiterating her plea that she is not the real party-in-interest against whom the action
should be brought, she again submitting the Certification of Registration of the bus in the name of Felicisima R. Franco, together
with an Official Receipt of payment as Annex "A" to the motion.
By Order20 dated June 25, 1999, the trial court denied Ma. Theresa’s partial motion for reconsideration but clarified that the
attorney’s fees "should be divided according to the following proportion: three-fourths (3/4) for Atty. Atilano Huaben B. Lim
who represented three of the plaintiffs and one-fourth (1/4) for Atty. Roberto A. Unciano who represented plaintiff Ma. Theresa
Q. Fabian."21
Respecting petitioner’s Motion for Reconsideration of the decision, the trial court denied the same for having been filed beyond
the 15-day reglementary period, it having been filed only on the 18th day (May 17, 1999) following the receipt by petitioner’s
counsel of a copy of the decision on April 29, 1999.22
On petitioner’s appeal,23 the Court of Appeals, by Decision24 of September 22, 2005, dismissed the same after noting that her
motion for reconsideration of the trial court’s decision was filed only on the 18th day following receipt by her counsel of a copy
of the decision. The appellate court thus held that the trial court’s decision had become final and executory. 25
Her Motion for Reconsideration26 of the appellate court’s Decision having been denied,27 petitioner filed the present Petition for
Certiorari.28
One of the requirements for certiorari to lie is that there is no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law.29 Any judgment which finally disposes of a case, leaving nothing more for the court to do in respect thereto – such
as the judgment of the Court of Appeals dismissing petitioner’s appeal as she had lost the right thereto – is
appealable.30 Petitioner’s remedy is, therefore, appeal, not certiorari.
As a general rule, the requirements for perfecting an appeal within the reglementary period specified in law must be strictly
followed,31 appeal not being a constitutional right but a mere statutory privilege. 32 The perfection of an appeal in the manner and
within the period permitted by law is thus not only mandatory, but also jurisdictional. 33
Petitioner argues, however, that:
Compounding petitioner’s plight is the trial court’s procedural error which precluded petitioner from presenting evidence in her
behalf.42 The trial court denied her motion for reconsideration of its order declaring her "as in default" on the ground that she
failed to submit an affidavit of merit respecting her claim that she had meritorious defenses. This ratio is, of course, erroneous,
for an affidavit of merit is not required to support a motion for reconsideration of an order allowing the ex-parte presentation of
evidence by the plaintiff, the defenses having already been laid down in the answer43as in petitioner’s case.

Petitioner, early on in the Affirmative Defenses segment of her Answer, already disclaimed the allegation in respondents’
The ruling of the respondent Court of Appeals contained in its questioned Decision dated March 30, 1999 that the Petitioner had
complaint that she is the registered owner of the bus, hence, not a real party-in-interest-ground to dismiss the complaint for lack
lost her right to appeal is a patent nullity. What the respondent Court of Appeals missed is the fact that before the period to
of cause of action. She raised it again in her Motion for Reconsideration from the order declaring her "as in default," to which
appeal or file a Motion for Reconsideration expire[d], respondent Ma. Theresa Q. Fabian filed a Partial Motion for
motion she in fact attached the Certificate of Registration showing that the bus was registered in the name of Felicisima R.
Reconsideration of the Decision of the lower court dated March 30, 1999, which motion asserted that the lower court erred in not
Franco. Thus, petitioner had alleged and shown her meritorious defense by submitting the Certificate of Registration of the bus,
awarding indemnity for the death of each victims [sic] to the plaintiffs and that it failed to clarify the award of attorney’s fees of
which is evidence that she is not the registered owner of the bus, or that something would be gained by setting aside the order
P50,000.00 as to its awardees and its division. With the filing of such Partial Motion for Reconsideration by respondent Ma.
declaring her "as in default."44
Theresa Q. Fabian which prayed for the modification and clarification of the Decision dated March 30, 1999, then, the said
decision did not become final.34 (Underscoring supplied)
On the merits of the case, a review of the evidence for respondents shows that individual respondents took the witness stand to
testify on the damages they suffered.45 And they presented the Victory Liner bus inspector;46 SPO2 Edgardo F. Balajadia
In the case at bar, the records show that petitioner’s counsel indeed received notice of the trial court’s decision on April 29,
(Balajadia) who investigated the site of the accident right after it happened; 47 the Victory Liner maintenance foreman regarding
1999.35 Following Rule 37, Section 1 vis-à-vis Rule 41, Section 3 of the Rules of Court, petitioner had 15 days or until May 14,
the damage sustained by the Victory Liner vehicles; 48 the death certificates of Rodel Ganelo and Caesar Santos;49 the marriage
1999 to file a motion for reconsideration or notice of appeal. She filed a motion for reconsideration on May 17, 1999, thus
certificate of respondent Marites Ganelo;50 Balajadia’s Traffic Accident Report;51 photographs of the damaged vehicles;52 and
rendering the trial court’s decision as to her final and executory. Testate Estate of Manuel v. Biascan36 so teaches:
the damage report showing the expenses incurred in repairing both damaged vehicles. 53

It is well-settled that judgments or orders become final and executory by operation of law and not by judicial declaration. Thus,
There was no attempt, however, on the part of any of the witnesses for respondents,
finality of a judgment becomes a fact upon the lapse of the reglementary period of appeal if no appeal is perfected or [no] motion
to controvertpetitioner’s affirmative defense that there is no cause of action against her, she not being the registered owner of the
for reconsideration or new trial is filed. The trial court need not even pronounce the finality of the order as the same becomes
Franco Transit bus, even despite her submission of the bus’ Certificate of Registration in the name of Felicisima R.
final by operation of law. In fact, the trial court could not even validly entertain a motion for reconsideration after the lapse of
Franco which is conclusive proof of ownership.
the period for taking an appeal. x x x The subsequent filing of a motion for reconsideration cannot disturb the finality of the
judgment or order.37 (Emphasis and underscoring supplied)
Respondents, in maintaining their cause of action against petitioner, relied on the January 4, 1998 Traffic Accident Report 54 of
Balajadia, who conducted a spot investigation after the occurrence of the accident, 55 wherein he stated that the Franco Transit
The filing of a motion for reconsideration by respondent Ma. Theresa within the reglementary period prevented, with respect to
bus was "[r]egistered under the name of Marializa Franco-Cruz of Batac, Ilocos Norte." (Emphasis supplied) How Balajadia
her, the decision from becoming final, but not with respect to petitioner.
arrived at such statement, he did not indicate in his Report. Neither did he pass on it when he took the witness stand on February
11, 1999.56
In Bank of the Philippine Islands v. Far East Molasses Corporation,38 this Court, passing on Section 3, Rule 41 of the Rules of
Court which provides that "[t]he appeal shall be taken within fifteen (15) days from notice of the judgment or final order
Rule 130, Section 44 of the Rules of Court, provides:
appealed from" (underscoring supplied), held:

SEC. 44. Entries in official records. – Entries in official records made in the performance of his duty by a public officer of the
x x x the commencement of the period to appeal x x x should x x x be reckoned x x x from the respective dates each of the
Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein
parties received a copy of the decision. Therefore, each party has a different period within which to appeal, unless, of course, all
stated. (Italics in the original)
of them received their copies on the same date and none filed a motion for reconsideration. 39 (Emphasis and underscoring
supplied)
For the entries in Balajadia’s Report to qualify as prima facie evidence of the facts therein stated, the following conditions must
be present:
Since each party has a different period within which to appeal, the timely filing of a motion for reconsideration by one party does
not interrupt the other or another party’s period of appeal.
x x x (a) that the entry was made by a public officer, or by another person specially enjoined by the law to do so; (b) that it was
made by the public officer in the performance of his duties or by such other person in the performance of a duty enjoined by law;
In petitioner’s case, her Motion for Reconsideration of the trial court’s decision was filed three days after the expiration of the
and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been
reglementary period for the purpose, hence, the Court of Appeals’ dismissal of her appeal was in order.
acquired by him personally or through official information.57 (Underscoring supplied)

The faux pas or negligence of petitioner’s counsel, however, in failing to file a timely motion for reconsideration should not be
Balajadia’s statement that the Franco Transit bus was "[r]egistered under the name of Marializa Franco-Cruz of Batac, Ilocos
taken against her. Ordinarily, the negligence of counsel binds the client.40 However, this Court has recognized the following
Norte" was not shown, however, to have been based on his personal knowledge or that he had sufficient knowledge thereof
exceptions to this rule: (1) where reckless or gross negligence of counsel deprives the client of due process of law; (2) when its
acquired by him personally or officially.
application will result in outright deprivation of the client’s liberty or property; or (3) where the interests of justice require. 41 In
the case at bar, the application of the rule would result in petitioner being held liable for the damages suffered by respondents
even without them having established the basis of her liability, thus depriving her of due process of law. It bears emphasis that the presentation by respondents of evidence ex-parte did not relieve them of the burden of proving their
claims against petitioner.

Page 2 of 45 TORTS MEETING 3

As in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings or nature of the case, asserts
an affirmative issue. Contentions must be proved by competent evidence and reliance must be had on the strength of the party’s
own evidence and not upon the weakness of the opponent’s defense. This applies with more vigor where, as in the instant case,
the plaintiff was allowed to present evidence ex parte. The plaintiff is not automatically entitled to the relief prayed for. The law
gives the defendant some measure of protection as the plaintiff must still prove the allegations in the complaint. Favorable relief
can be granted only after the court is convinced that the facts proven by the plaintiff warrant such relief. Indeed, the party
alleging a fact has the burden of proving it and a mere allegation is not evidence.58 (Emphasis and underscoring supplied)

Respondents having failed to discharge the onus of proving that petitioner was, at the time of the accident, the registered owner
of the bus, it was error for the trial court to credit respondents’ evidence.

Just as it was error for it to hold that "the defendant [-herein petitioner] failed 1) to rebut" the evidence showing the accident was
the result of the negligence of the Franco Transit bus driver and 2) to present evidence to overthrow the presumption of
negligence against her pursuant to Article 2180 of the Civil Code in light of its order allowing respondents to present
evidence ex-parte and denying petitioner’s pleas to be allowed to participate in the proceedings and present evidence on her
affirmative defenses.

The trial court’s decision in favor of respondents must thus be set aside.

Given the attendant facts and circumstances, in the interest of justice, this Court resolves to remand the case to the trial court to
afford petitioner her right to due process.

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated September 22, 2005 dismissing
petitioner’s appeal from the decision of Branch 121 of the Caloocan City Regional Trial Court is SET ASIDE. The decision of
the trial court is vacated. Civil Case No. C-18212 is REMANDED to Branch 121 of the Regional Trial Court of Caloocan City
which is hereby directed to allow petitioner to present evidence on her affirmative defenses and/or rebut respondents’ evidence
and to allow respondents to submit additional evidence if necessary and/or they so desire. SO ORDERED.

Page 3 of 45 TORTS MEETING 3

TORTS 23
G.R. No. 179848 November 27, 2008
NESTOR A. JACOT, petitioner,
vs.
ROGEN T. DAL and COMMISSION ON ELECTIONS, respondents.
DECISION
CHICO-NAZARIO, J.:
Petitioner Nestor A. Jacot assails the Resolution1 dated 28 September 2007 of the Commission on Elections (COMELEC) En
Banc in SPA No. 07-361, affirming the Resolution dated 12 June 2007 of the COMELEC Second Division 2 disqualifying him
from running for the position of Vice-Mayor of Catarman, Camiguin, in the 14 May 2007 National and Local Elections, on the
ground that he failed to make a personal renouncement of his United States (US) citizenship.
Petitioner was a natural born citizen of the Philippines, who became a naturalized citizen of the US on 13 December 1989. 3
Petitioner sought to reacquire his Philippine citizenship under Republic Act No. 9225, otherwise known as the Citizenship
Retention and Re-Acquisition Act. He filed a request for the administration of his Oath of Allegiance to the Republic of the
Philippines with the Philippine Consulate General (PCG) of Los Angeles, California. The Los Angeles PCG issued on 19 June
2006 an Order of Approval4 of petitioner’s request, and on the same day, petitioner took his Oath of Allegiance to the Republic
of the Philippines before Vice Consul Edward C. Yulo. 5 On 27 September 2006, the Bureau of Immigration issued Identification
Certificate No. 06-12019 recognizing petitioner as a citizen of the Philippines.6
Six months after, on 26 March 2007, petitioner filed his Certificate of Candidacy for the Position of Vice-Mayor of the
Municipality of Catarman, Camiguin. 7
8
On 2 May 2007, respondent Rogen T. Dal filed a Petition for Disqualification before the COMELEC Provincial Office in
Camiguin against petitioner, arguing that the latter failed to renounce his US citizenship, as required under Section 5(2) of
Republic Act No. 9225, which reads as follows:
Section 5. Civil and Political Rights and Liabilities.–Those who retain or reacquire Philippine citizenship under this Act
shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.
9 10
In his Answer dated 6 May 2007 and Position Paper dated 8 May 2007, petitioner countered that his Oath of Allegiance to the
Republic of the Philippines made before the Los Angeles PCG and the oath contained in his Certificate of Candidacy operated as
an effective renunciation of his foreign citizenship.
In the meantime, the 14 May 2007 National and Local Elections were held. Petitioner garnered the highest number of votes for
the position of Vice Mayor.
Page 4 of 45 TORTS MEETING 3
On 12 June 2007, the COMELEC Second Division finally issued its Resolution11 disqualifying the petitioner from running for
the position of Vice-Mayor of Catarman, Camiguin, for failure to make the requisite renunciation of his US citizenship. The
COMELEC Second Division explained that the reacquisition of Philippine citizenship under Republic Act No. 9225 does not
automatically bestow upon any person the privilege to run for any elective public office. It additionally ruled that the filing of a
Certificate of Candidacy cannot be considered as a renunciation of foreign citizenship. The COMELEC Second Division did not
consider Valles v. COMELEC12 and Mercado v. Manzano13 applicable to the instant case, since Valles and Mercado were dual
citizens since birth, unlike the petitioner who lost his Filipino citizenship by means of naturalization. The COMELEC, thus,
decreed in the aforementioned Resolution that:
ACCORDINGLY, NESTOR ARES JACOT is DISQUALIFIED to run for the position of Vice-Mayor of Catarman,
Camiguin for the May 14, 2007 National and Local Elections. If proclaimed, respondent cannot thus assume the Office of
Vice-Mayor of said municipality by virtue of such disqualification. 14
Petitioner filed a Motion for Reconsideration on 29 June 2007 reiterating his position that his Oath of Allegiance to the Republic
of the Philippines before the Los Angeles PCG and his oath in his Certificate of Candidacy sufficed as an effective renunciation
of his US citizenship. Attached to the said Motion was an "Oath of Renunciation of Allegiance to the United States and
Renunciation of Any and All Foreign Citizenship" dated 27 June 2007, wherein petitioner explicitly renounced his US
citizenship.15 The COMELEC en banc dismissed petitioner’s Motion in a Resolution16 dated 28 September 2007 for lack of
merit.
Petitioner sought remedy from this Court via the present Special Civil Action for Certiorari under Rule 65 of the Revised Rules
of Court, where he presented for the first time an "Affidavit of Renunciation of Allegiance to the United States and Any and All
Foreign Citizenship"17 dated 7 February 2007. He avers that he executed an act of renunciation of his US citizenship, separate
from the Oath of Allegiance to the Republic of the Philippines he took before the Los Angeles PCG and his filing of his
Certificate of Candidacy, thereby changing his theory of the case during the appeal. He attributes the delay in the presentation of
the affidavit to his former counsel, Atty. Marciano Aparte, who allegedly advised him that said piece of evidence was
unnecessary but who, nevertheless, made him execute an identical document entitled "Oath of Renunciation of Allegiance to the
United States and Renunciation of Any and All Foreign Citizenship" on 27 June 2007 after he had already filed his Certificate of
Candidacy.18
Petitioner raises the following issues for resolution of this Court:
I WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF DISCRETION WHEN IT HELD
THAT PETITIONER FAILED TO COMPLY WITH THE PROVISIONS OF R.A. 9225, OTHERWISE KNOWN AS THE
"CITIZENSHIP RETENTION AND RE-ACQUISITION ACT OF 2003," SPECIFICALLY SECTION 5(2) AS TO THE
REQUIREMENTS FOR THOSE SEEKING ELECTIVE PUBLIC OFFICE;
II WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF DISCRETION WHEN IT HELD
THAT PETITIONER FAILED TO COMPLY WITH THE PROVISIONS OF THE COMELEC RULES OF PROCEDURE
AS REGARDS THE PAYMENT OF THE NECESSARY MOTION FEES; AND
III WHETHER OR NOT UPHOLDING THE DECISION OF PUBLIC RESPONDENT WOULD RESULT IN THE
FRUSTRATION OF THE WILL OF THE PEOPLE OF CATARMAN, CAMIGUIN. 19
The Court determines that the only fundamental issue in this case is whether petitioner is disqualified from running as a
candidate in the 14 May 2007 local elections for his failure to make a personal and sworn renunciation of his US citizenship.
This Court finds that petitioner should indeed be disqualified.
Contrary to the assertions made by petitioner, his oath of allegiance to the Republic of the Philippines made before the Los
Angeles PCG and his Certificate of Candidacy do not substantially comply with the requirement of a personal and sworn
renunciation of foreign citizenship because these are distinct requirements to be complied with for different purposes.
Section 3 of Republic Act No. 9225 requires that natural-born citizens of the Philippines, who are already naturalized citizens
of a foreign country, must take the following oath of allegiance to the Republic of the Philippines to reacquire or retain their
Philippine citizenship:
SEC. 3. Retention of Philippine Citizenship.–Any provision of law to the contrary notwithstanding, natural-born citizens of
the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are
hereby deemed to have reacquired Philippine citizenship upon taking the following oath of allegiance to the Republic:
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign
citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking other
than that which they have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of the
Philippines). This is made clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House
Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon.
Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that the
oath of allegiance is different from the renunciation of foreign citizenship:

CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the Philippines shall meet the
"I __________ solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines
qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of
and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare
the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public
that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and
officer authorized to administer an oath." I think it’s very good, ha? No problem?
that I impose this obligation upon myself voluntarily, without mental reservation or purpose of evasion."

REP. JAVIER. … I think it’s already covered by the oath.

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall
retain their Philippine citizenship upon taking the aforesaid oath.
CHAIRMAN DRILON. Renouncing foreign citizenship.
By the oath dictated in the afore-quoted provision, the Filipino swears allegiance to the Philippines, but there is nothing therein
on his renunciation of foreign citizenship. Precisely, a situation might arise under Republic Act No. 9225 wherein said Filipino REP. JAVIER. Ah… but he has taken his oath already.
has dual citizenship by also reacquiring or retaining his Philippine citizenship, despite his foreign citizenship.
CHAIRMAN DRILON. No…no, renouncing foreign citizenship.
The afore-quoted oath of allegiance is substantially similar to the one contained in the Certificate of Candidacy which must be
executed by any person who wishes to run for public office in Philippine elections. Such an oath reads:
xxxx

I am eligible for the office I seek to be elected. I will support and defend the Constitution of the Philippines and will
CHAIRMAN DRILON. Can I go back to No. 2. What’s your problem, Boy? Those seeking elective office in the
maintain true faith and allegiance thereto; that I will obey the laws, legal orders and decrees promulgated by the duly
Philippines.
constituted authorities of the Republic of the Philippines; and that I impose this obligation upon myself voluntarily, without
mental reservation or purpose of evasion. I hereby certify that the facts stated herein are true and correct of my own personal
knowledge. REP. JAVIER. They are trying to make him renounce his citizenship thinking that ano…

Now, Section 5(2) of Republic Act No. 9225 specifically provides that: CHAIRMAN DRILON. His American citizenship.

Section 5. Civil and Political Rights and Liabilities.–Those who retain or reacquire Philippine citizenship under this Act REP. JAVIER. To discourage him from running?
shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
CHAIRMAN DRILON. No.

xxxx
(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.
The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those
who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized
to administer an oath simultaneous with or before the filing of the certificate of candidacy. 20
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a
foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under
Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally
execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections.
REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship. When he runs for office, he will have
only one. (Emphasis ours.)
There is little doubt, therefore, that the intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine
citizenship under Republic Act No. 9225 to take their oath of allegiance to the Republic of the Philippines, but also to explicitly
renounce their foreign citizenship if they wish to run for elective posts in the Philippines. To qualify as a candidate in Philippine
elections, Filipinos must only have one citizenship, namely, Philippine citizenship.
By the same token, the oath of allegiance contained in the Certificate of Candidacy, which is substantially similar to the one
contained in Section 3 of Republic Act No. 9225, does not constitute the personal and sworn renunciation sought under Section
5(2) of Republic Act No. 9225. It bears to emphasize that the said oath of allegiance is a general requirement for all those who
wish to run as candidates in Philippine elections; while the renunciation of foreign citizenship is an additional requisite only for
those who have retained or reacquired Philippine citizenship under Republic Act No. 9225 and who seek elective public posts,
considering their special circumstance of having more than one citizenship.

Page 5 of 45 TORTS MEETING 3

Petitioner erroneously invokes the doctrine in Valles21 and Mercado,22 wherein the filing by a person with dual citizenship of a
certificate of candidacy, containing an oath of allegiance, was already considered a renunciation of foreign citizenship. The
ruling of this Court in Valles and Mercado is not applicable to the present case, which is now specially governed by Republic
Act No. 9225, promulgated on 29 August 2003.
In Mercado, which was cited in Valles, the disqualification of therein private respondent Manzano was sought under another
law, Section 40(d) of the Local Government Code, which reads:
SECTION 40. Disqualifications. The following persons are disqualified from running for any elective local position:
xxxx
(d) Those with dual citizenship.
The Court in the aforesaid cases sought to define the term "dual citizenship" vis-à-vis the concept of "dual allegiance." At the
time this Court decided the cases of Valles and Mercado on 26 May 1999 and 9 August 2000, respectively, the more explicitly
worded requirements of Section 5(2) of Republic Act No. 9225 were not yet enacted by our legislature. 23
Lopez v. Commission on Elections24 is the more fitting precedent for this case since they both share the same factual milieu. In
Lopez, therein petitioner Lopez was a natural-born Filipino who lost his Philippine citizenship after he became a naturalized US
citizen. He later reacquired his Philippine citizenship by virtue of Republic Act No. 9225. Thereafter, Lopez filed his candidacy
for a local elective position, but failed to make a personal and sworn renunciation of his foreign citizenship. This Court
unequivocally declared that despite having garnered the highest number of votes in the election, Lopez is nonetheless
disqualified as a candidate for a local elective position due to his failure to comply with the requirements of Section 5(2) of
Republic Act No. 9225.
Petitioner presents before this Court for the first time, in the instant Petition for Certiorari, an "Affidavit of Renunciation of
Allegiance to the United States and Any and All Foreign Citizenship,"25 which he supposedly executed on 7 February 2007, even
before he filed his Certificate of Candidacy on 26 March 2007. With the said Affidavit, petitioner puts forward in the Petition at
bar a new theory of his case–that he complied with the requirement of making a personal and sworn renunciation of his foreign
citizenship before filing his Certificate of Candidacy. This new theory constitutes a radical change from the earlier position he
took before the COMELEC–that he complied with the requirement of renunciation by his oaths of allegiance to the Republic of
the Philippines made before the Los Angeles PCG and in his Certificate of Candidacy, and that there was no more need for a
separate act of renunciation.
As a rule, no question will be entertained on appeal unless it has been raised in the proceedings below. Points of law, theories,
issues and arguments not brought to the attention of the lower court, administrative agency or quasi-judicial body need not be
considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of fairness and
due process impel this rule.26 Courts have neither the time nor the resources to accommodate parties who chose to go to trial
haphazardly.27
Likewise, this Court does not countenance the late submission of evidence. 28 Petitioner should have offered the Affidavit dated 7
February 2007 during the proceedings before the COMELEC.
Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that "In the absence of any applicable provisions of these
Rules, the pertinent provisions of the Rules of Court in the Philippines shall be applicable by analogy or in suppletory character
and effect." Section 34 of Rule 132 of the Revised Rules of Court categorically enjoins the admission of evidence not formally
presented:
SEC. 34. Offer of evidence. - The court shall consider no evidence which has not been formally offered. The purpose for
which the evidence is offered must be specified.
Page 6 of 45 TORTS MEETING 3
Since the said Affidavit was not formally offered before the COMELEC, respondent had no opportunity to examine and
controvert it. To admit this document would be contrary to due process. 29 Additionally, the piecemeal presentation of evidence
is not in accord with orderly justice.30
The Court further notes that petitioner had already presented before the COMELEC an identical document, "Oath of
Renunciation of Allegiance to the United States and Renunciation of Any and All Foreign Citizenship" executed on 27 June
2007, subsequent to his filing of his Certificate of Candidacy on 26 March 2007. Petitioner attached the said Oath of 27 June
2007 to his Motion for Reconsideration with the COMELEC en banc. The COMELEC en banc eventually refused to reconsider
said document for being belatedly executed. What was extremely perplexing, not to mention suspect, was that petitioner did not
submit the Affidavit of 7 February 2007 or mention it at all in the proceedings before the COMELEC, considering that it could
have easily won his case if it was actually executed on and in existence before the filing of his Certificate of Candidacy, in
compliance with law.
The justification offered by petitioner, that his counsel had advised him against presenting this crucial piece of evidence, is lame
and unconvincing. If the Affidavit of 7 February 2007 was in existence all along, petitioner’s counsel, and even petitioner
himself, could have easily adduced it to be a crucial piece of evidence to prove compliance with the requirements of Section 5(2)
of Republic Act No. 9225. There was no apparent danger for petitioner to submit as much evidence as possible in support of his
case, than the risk of presenting too little for which he could lose.
And even if it were true, petitioner’s excuse for the late presentation of the Affidavit of 7 February 2007 will not change the
outcome of petitioner’s case.
It is a well-settled rule that a client is bound by his counsel’s conduct, negligence, and mistakes in handling the case, and the
client cannot be heard to complain that the result might have been different had his lawyer proceeded differently.31 The only
exceptions to the general rule -- that a client is bound by the mistakes of his counsel -- which this Court finds acceptable are
when the reckless or gross negligence of counsel deprives the client of due process of law, or when the application of the rule
results in the outright deprivation of one’s property through a technicality. 32 These exceptions are not attendant in this case.
The Court cannot sustain petitioner’s averment that his counsel was grossly negligent in deciding against the presentation of the
Affidavit of 7 February 2007 during the proceedings before the COMELEC. Mistakes of attorneys as to the competency of a
witness; the sufficiency, relevancy or irrelevancy of certain evidence; the proper defense or the burden of proof, failure to
introduce evidence, to summon witnesses and to argue the case -- unless they prejudice the client and prevent him from properly
presenting his case -- do not constitute gross incompetence or negligence, such that clients may no longer be bound by the acts of
their counsel.33
Also belying petitioner’s claim that his former counsel was grossly negligent was the fact that petitioner continuously used his
former counsel’s theory of the case. Even when the COMELEC already rendered an adverse decision, he persistently argues
even to this Court that his oaths of allegiance to the Republic of the Philippines before the Los Angeles PCG and in his
Certificate of Candidacy amount to the renunciation of foreign citizenship which the law requires. Having asserted the same
defense in the instant Petition, petitioner only demonstrates his continued reliance on and complete belief in the position taken
by his former counsel, despite the former’s incongruous allegations that the latter has been grossly negligent.
Petitioner himself is also guilty of negligence. If indeed he believed that his counsel was inept, petitioner should have promptly
taken action, such as discharging his counsel earlier and/or insisting on the submission of his Affidavit of 7 February 2007 to the
COMELEC, instead of waiting until a decision was rendered disqualifying him and a resolution issued dismissing his motion for
reconsideration; and, thereupon, he could have heaped the blame on his former counsel. Petitioner could not be so easily allowed
to escape the consequences of his former counsel’s acts, because, otherwise, it would render court proceedings indefinite,
tentative, and subject to reopening at any time by the mere subterfuge of replacing counsel. 34
Petitioner cites De Guzman v. Sandiganbayan,35 where therein petitioner De Guzman was unable to present a piece of evidence
because his lawyer proceeded to file a demurrer to evidence, despite the Sandiganbayan’s denial of his prior leave to do so. The
wrongful insistence of the lawyer in filing a demurrer to evidence had totally deprived De Guzman of any chance to present
documentary evidence in his defense. This was certainly not the case in the Petition at bar.
Herein, petitioner was in no way deprived of due process. His counsel actively defended his suit by attending the hearings, filing
the pleadings, and presenting evidence on petitioner’s behalf. Moreover, petitioner’s cause was not defeated by a mere
technicality, but because of a mistaken reliance on a doctrine which is not applicable to his case. A case lost due to an untenable
legal position does not justify a deviation from the rule that clients are bound by the acts and mistakes of their counsel. 36

Petitioner also makes much of the fact that he received the highest number of votes for the position of Vice-Mayor of Catarman
during the 2007 local elections. The fact that a candidate, who must comply with the election requirements applicable to dual
citizens and failed to do so, received the highest number of votes for an elective position does not dispense with, or amount to a
waiver of, such requirement.37 The will of the people as expressed through the ballot cannot cure the vice of ineligibility,
especially if they mistakenly believed that the candidate was qualified. The rules on citizenship qualifications of a candidate
must be strictly applied. If a person seeks to serve the Republic of the Philippines, he must owe his loyalty to this country only,
abjuring and renouncing all fealty and fidelity to any other state.38 The application of the constitutional and statutory provisions
on disqualification is not a matter of popularity.39

WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28 September 2007 of the COMELEC en banc in
SPA No. 07-361, affirming the Resolution dated 12 June 2007 of the COMELEC Second Division, is AFFIRMED. Petitioner
is DISQUALIFIED to run for the position of Vice-Mayor of Catarman, Camiguin in the 14 May 2007 National and Local
Elections, and if proclaimed, cannot assume the Office of Vice-Mayor of said municipality by virtue of such disqualification.
Costs against petitioner.

SO ORDERED.

Page 7 of 45 TORTS MEETING 3

TORTS 24, 56 Upon discovery of the loss of its funds, RMC demanded from petitioner bank the return of its money, but as its demand went
unheeded, it filed a collection suit before the Regional Trial Court of Pasig, Branch 160. The trial court found petitioner bank
negligent and ruled as follows:
G.R. No. 97626 March 14, 1997

WHEREFORE, judgment is hereby rendered sentencing defendant Philippine Bank of Commerce, now absorbed by
PHILIPPINE BANK OF COMMERCE, now absorbed by PHILIPPINE COMMERCIAL INTERNATIONAL BANK,
defendant Philippine Commercial & Industrial Bank, and defendant Azucena Mabayad to pay the plaintiff, jointly and
ROGELIO LACSON, DIGNA DE LEON, MARIA ANGELITA PASCUAL, et al., petitioners,
severally, and without prejudice to any criminal action which may be instituted if found warranted:
vs.
THE COURT OF APPEALS, ROMMEL'S MARKETING CORP., represented by ROMEO LIPANA, its President &
General Manager, respondents. 1. The sum of P304,979.72, representing plaintiffs lost deposit, plus interest thereon at the legal rate from the filing of the
complaint;
HERMOSISIMA, JR., J.:
2. A sum equivalent to 14% thereof, as exemplary damages;
1
Challenged in this petition for review is the Decision dated February 28, 1991 rendered by public respondent Court of Appeals
which affirmed the Decision dated November 15, 1985 of the Regional Trial Court, National Capital Judicial Region, Branch 3. A sum equivalent to 25% of the total amount due, as and for attorney's fees; and
CLX (160), Pasig City, in Civil Case No. 27288 entitled "Rommel's Marketing Corporation, etc. v. Philippine Bank of
Commerce, now absorbed by Philippine Commercial and Industrial Bank."
4. Costs.

The case stemmed from a complaint filed by the private respondent Rommel's Marketing Corporation (RMC for brevity),
Defendants' counterclaim is hereby dismissed for lack of merit.2
represented by its President and General Manager Romeo Lipana, to recover from the former Philippine Bank of Commerce
(PBC for brevity), now absorbed by the Philippine Commercial International Bank, the sum of P304,979.74 representing various
deposits it had made in its current account with said bank but which were not credited to its account, and were instead deposited On appeal, the appellate court affirmed the foregoing decision with modifications, viz:
to the account of one Bienvenido Cotas, allegedly due to the gross and inexcusable negligence of the petitioner bank.
WHEREFORE, the decision appealed from herein is MODIFIED in the sense that the awards of exemplary damages and
RMC maintained two (2) separate current accounts, Current Account Nos. 53-01980-3 and 53-01748-7, with the Pasig Branch of attorney's fees specified therein are eliminated and instead, appellants are ordered to pay plaintiff, in addition to the principal
PBC in connection with its business of selling appliances. sum of P304,979.74 representing plaintiff's lost deposit plus legal interest thereon from the filing of the complaint,
P25,000.00 attorney's fees and costs in the lower court as well as in this Court. 3
In the ordinary and usual course of banking operations, current account deposits are accepted by the bank on the basis of deposit
slips prepared and signed by the depositor, or the latter's agent or representative, who indicates therein the current account Hence, this petition anchored on the following grounds:
number to which the deposit is to be credited, the name of the depositor or current account holder, the date of the deposit, and the
amount of the deposit either in cash or checks. The deposit slip has an upper portion or stub, which is detached and given to the
depositor or his agent; the lower portion is retained by the bank. In some instances, however, the deposit slips are prepared in 1) The proximate cause of the loss is the negligence of respondent Rommel Marketing Corporation and Romeo Lipana in
entrusting cash to a dishonest employee.
duplicate by the depositor. The original of the deposit slip is retained by the bank, while the duplicate copy is returned or given
to the depositor.
2) The failure of respondent Rommel Marketing Corporation to cross-check the bank's statements of account with its own
From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to have entrusted RMC funds in the form of cash totalling records during the entire period of more than one (1) year is the proximate cause of the commission of subsequent frauds
P304,979.74 to his secretary, Irene Yabut, for the purpose of depositing said funds in the current accounts of RMC with PBC. It and misappropriation committed by Ms. Irene Yabut.
turned out, however, that these deposits, on all occasions, were not credited to RMC's account but were instead deposited to
Account No. 53-01734-7 of Yabut's husband, Bienvenido Cotas who likewise maintains an account with the same bank. During 3) The duplicate copies of the deposit slips presented by respondent Rommel Marketing Corporation are falsified and are
this period, petitioner bank had, however, been regularly furnishing private respondent with monthly statements showing its not proof that the amounts appearing thereon were deposited to respondent Rommel Marketing Corporation's account with
current accounts balances. Unfortunately, it had never been the practice of Romeo Lipana to check these monthly statements of the bank,
account reposing complete trust and confidence on petitioner bank.
4) The duplicate copies of the deposit slips were used by Ms. Irene Yabut to cover up her fraudulent acts against respondent
Irene Yabut's modus operandi is far from complicated. She would accomplish two (2) copies of the deposit slip, an original and Rommel Marketing Corporation, and not as records of deposits she made with the bank. 4
a duplicate. The original showed the name of her husband as depositor and his current account number. On the duplicate copy
was written the account number of her husband but the name of the account holder was left blank. PBC's teller, Azucena
Mabayad, would, however, validate and stamp both the original and the duplicate of these deposit slips retaining only the The petition has no merit.
original copy despite the lack of information on the duplicate slip. The second copy was kept by Irene Yabut allegedly for record
purposes. After validation, Yabut would then fill up the name of RMC in the space left blank in the duplicate copy and change Simply put, the main issue posited before us is: What is the proximate cause of the loss, to the tune of P304,979.74, suffered by
the account number written thereon, which is that of her husband's, and make it appear to be RMC's account number, i.e., C.A. the private respondent RMC — petitioner bank's negligence or that of private respondent's?
No. 53-01980-3. With the daily remittance records also prepared by Ms. Yabut and submitted to private respondent RMC
together with the validated duplicate slips with the latter's name and account number, she made her company believe that all the
while the amounts she deposited were being credited to its account when, in truth and in fact, they were being deposited by her Petitioners submit that the proximate cause of the loss is the negligence of respondent RMC and Romeo Lipana in entrusting
and credited by the petitioner bank in the account of Cotas. This went on in a span of more than one (1) year without private cash to a dishonest employee in the person of Ms. Irene Yabut. 5 According to them, it was impossible for the bank to know that
respondent's knowledge. the money deposited by Ms. Irene Yabut belong to RMC; neither was the bank forewarned by RMC that Yabut will be
Page 8 of 45 TORTS MEETING 3
depositing cash to its account. Thus, it was impossible for the bank to know the fraudulent design of Yabut considering that her
husband, Bienvenido Cotas, also maintained an account with the bank. For the bank to inquire into the ownership of the cash
deposited by Ms. Irene Yabut would be irregular. Otherwise stated, it was RMC's negligence in entrusting cash to a dishonest
employee which provided Ms. Irene Yabut the opportunity to defraud RMC. 6
Private respondent, on the other hand, maintains that the proximate cause of the loss was the negligent act of the bank, thru its
teller Ms. Azucena Mabayad, in validating the deposit slips, both original and duplicate, presented by Ms. Yabut to Ms.
Mabayad, notwithstanding the fact that one of the deposit slips was not completely accomplished.
We sustain the private respondent.
Our law on quasi-delicts states:
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.
There are three elements of a quasi-delict: (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some
other person for whose acts he must respond; and (c) the connection of cause and effect between the fault or negligence of the
defendant and the damages incurred by the plaintiff.7
In the case at bench, there is no dispute as to the damage suffered by the private respondent (plaintiff in the trial court) RMC in
the amount of P304,979.74. It is in ascribing fault or negligence which caused the damage where the parties point to each other
as the culprit.
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 do. The seventy-
eight (78)-year-old, yet still relevant, case of Picart v. Smith,8 provides the test by which to determine the existence of negligence
in a particular case which may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care
and caution which an ordinarily prudent 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.
Applying the above test, it appears that the bank's teller, Ms. Azucena Mabayad, was negligent in validating, officially stamping
and signing all the deposit slips prepared and presented by Ms. Yabut, despite the glaring fact that the duplicate copy was not
completely accomplished contrary to the self-imposed procedure of the bank with respect to the proper validation of deposit
slips, original or duplicate, as testified to by Ms. Mabayad herself, thus:
Q: Now, as teller of PCIB, Pasig Branch, will you please tell us Mrs. Mabayad your important duties and functions?
A: I accept current and savings deposits from depositors and encashments.
Q: Now in the handling of current account deposits of bank clients, could you tell us the procedure you follow?
A: The client or depositor or the authorized representative prepares a deposit slip by filling up the deposit slip with the
name, the account number, the date, the cash breakdown, if it is deposited for cash, and the check number, the amount
and then he signs the deposit slip.
Q: Now, how many deposit slips do you normally require in accomplishing current account deposit, Mrs. Mabayad?
A: The bank requires only one copy of the deposit although some of our clients prepare the deposit slip in duplicate.
Q: Now in accomplishing current account deposits from your clients, what do you issue to the depositor to evidence the
deposit made?
A: We issue or we give to the clients the depositor's stub as a receipt of the deposit.
Q: And who prepares the deposit slip?
A: The depositor or the authorized representative sir?
Q: Where does the depositor's stub comes (sic) from Mrs. Mabayad, is it with the deposit slip?
Page 9 of 45 TORTS MEETING 3
A: The depositor's stub is connected with the deposit slip or the bank's copy. In a deposit slip, the upper portion is the
depositor's stub and the lower portion is the bank's copy, and you can detach the bank's copy from the depositor's stub
by tearing it sir.
Q: Now what do you do upon presentment of the deposit slip by the depositor or the depositor's authorized
representative?
A: We see to it that the deposit slip9 is properly accomplished and then we count the money and then we tally it with the
deposit slip sir.
Q: Now is the depositor's stub which you issued to your clients validated?
A: Yes, sir. 10 [Emphasis ours]
Clearly, Ms. Mabayad failed to observe this very important procedure. The fact that the duplicate slip was not compulsorily
required by the bank in accepting deposits should not relieve the petitioner bank of responsibility. The odd circumstance
alone that such duplicate copy lacked one vital information — that of the name of the account holder — should have already
put Ms. Mabayad on guard. Rather than readily validating the incomplete duplicate copy, she should have proceeded more
cautiously by being more probing as to the true reason why the name of the account holder in the duplicate slip was left
blank while that in the original was filled up. She should not have been so naive in accepting hook, line and sinker the too
shallow excuse of Ms. Irene Yabut to the effect that since the duplicate copy was only for her personal record, she would
simply fill up the blank space later on. 11 A "reasonable man of ordinary prudence" 12 would not have given credence to such
explanation and would have insisted that the space left blank be filled up as a condition for validation. Unfortunately, this
was not how bank teller Mabayad proceeded thus resulting in huge losses to the private respondent.
Negligence here lies not only on the part of Ms. Mabayad but also on the part of the bank itself in its lackadaisical selection and
supervision of Ms. Mabayad. This was exemplified in the testimony of Mr. Romeo Bonifacio, then Manager of the Pasig Branch
of the petitioner bank and now its Vice-President, to the effect that, while he ordered the investigation of the incident, he never
came to know that blank deposit slips were validated in total disregard of the bank's validation procedures, viz:
Q: Did he ever tell you that one of your cashiers affixed the stamp mark of the bank on the deposit slips and they
validated the same with the machine, the fact that those deposit slips were unfilled up, is there any report similar to that?
A: No, it was not the cashier but the teller.
Q: The teller validated the blank deposit slip?
A: No it was not reported.
Q: You did not know that any one in the bank tellers or cashiers validated the blank deposit slip?
A: I am not aware of that.
Q: It is only now that you are aware of that?
A: Yes, sir. 13
Prescinding from the above, public respondent Court of Appeals aptly observed:
xxx xxx xxx
It was in fact only when he testified in this case in February, 1983, or after the lapse of more than seven (7) years counted
from the period when the funds in question were deposited in plaintiff's accounts (May, 1975 to July, 1976) that bank
manager Bonifacio admittedly became aware of the practice of his teller Mabayad of validating blank deposit slips.
Undoubtedly, this is gross, wanton, and inexcusable negligence in the appellant bank's supervision of its employees. 14
It was this negligence of Ms. Azucena Mabayad, coupled by the negligence of the petitioner bank in the selection and
supervision of its bank teller, which was the proximate cause of the loss suffered by the private respondent, and not the latter's
act of entrusting cash to a dishonest employee, as insisted by the petitioners.
Proximate cause is determined on the facts of each case upon mixed considerations of logic, common sense, policy and
precedent. 15 Vda. de Bataclan v. Medina, 16 reiterated in the case of Bank of the Phil. Islands v. Court of Appeals, 17 defines
proximate cause as "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. . . ." In this case, absent the act of Ms. Mabayad in
negligently validating the incomplete duplicate copy of the deposit slip, Ms. Irene Yabut would not have the facility with which
to perpetrate her fraudulent scheme with impunity. Apropos, once again, is the pronouncement made by the respondent appellate
court, to wit:
. . . . Even if Yabut had the fraudulent intention to misappropriate the funds entrusted to her by plaintiff, she would not have
been able to deposit those funds in her husband's current account, and then make plaintiff believe that it was in the latter's
accounts wherein she had deposited them, had it not been for bank teller Mabayad's aforesaid gross and reckless negligence.
The latter's negligence was thus the proximate, immediate and efficient cause that brought about the loss claimed by plaintiff
in this case, and the failure of plaintiff to discover the same soon enough by failing to scrutinize the monthly statements of
account being sent to it by appellant bank could not have prevented the fraud and misappropriation which Irene Yabut had
already completed when she deposited plaintiff's money to the account of her husband instead of to the latter's accounts. 18
We do not agree.
While it is true that had private respondent checked the monthly statements of account sent by the petitioner bank to RMC, the
latter would have discovered the loss early on, such cannot be used by the petitioners to escape liability. This omission on the
part of the private respondent does not change the fact that were it not for the wanton and reckless negligence of the petitioners'
employee in validating the incomplete duplicate deposit slips presented by Ms. Irene Yabut, the loss would not have occurred.
Considering, however, that the fraud was committed in a span of more than one (1) year covering various deposits, common
human experience dictates that the same would not have been possible without any form of collusion between Ms. Yabut and
bank teller Mabayad. Ms. Mabayad was negligent in the performance of her duties as bank teller nonetheless. Thus, the
petitioners are entitled to claim reimbursement from her for whatever they shall be ordered to pay in this case.

Furthermore, under the doctrine of "last clear chance" (also referred to, at times as "supervening negligence" or as "discovered
peril"), petitioner bank was indeed the culpable party. This doctrine, in essence, states that where both parties are negligent, but
the negligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whose fault or
negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impending harm and
failed to do so is chargeable with the consequences thereof. 19Stated differently, the rule would also mean that an antecedent
negligence of a person does not preclude the recovery of damages for the supervening negligence of, or bar a defense against
liability sought by another, if the latter, who had the last fair chance, could have avoided the impending harm by the exercise of
due diligence. 20Here, assuming that private respondent RMC was negligent in entrusting cash to a dishonest employee, thus
providing the latter with the opportunity to defraud the company, as advanced by the petitioner, yet it cannot be denied that the
petitioner bank, thru its teller, had the last clear opportunity to avert the injury incurred by its client, simply by faithfully
observing their self-imposed validation procedure.
The foregoing notwithstanding, it cannot be denied that, indeed, private respondent was likewise negligent in not checking its
monthly statements of account. Had it done so, the company would have been alerted to the series of frauds being committed
against RMC by its secretary. The damage would definitely not have ballooned to such an amount if only RMC, particularly
Romeo Lipana, had exercised even a little vigilance in their financial affairs. This omission by RMC amounts to contributory
negligence which shall mitigate the damages that may be awarded to the private respondent 23 under Article 2179 of the New
Civil Code, to wit:
. . . When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the
defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be
awarded.

At this juncture, it is worth to discuss the degree of diligence ought to be exercised by banks in dealing with their clients.
The New Civil Code provides:
Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of
the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows
bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of
a good father of a family shall be required. (1104a)
In the case of banks, however, the degree of diligence required is more than that of a good father of a family. Considering the
fiduciary nature of their relationship with their depositors, banks are duty bound to treat the accounts of their clients with
the highest degree of care. 21
In view of this, we believe that the demands of substantial justice are satisfied by allocating the damage on a 60-40 ratio.
Thus, 40% of the damage awarded by the respondent appellate court, except the award of P25,000.00 attorney's fees, shall
be borne by private respondent RMC; only the balance of 60% needs to be paid by the petitioners. The award of attorney's
fees shall be borne exclusively by the petitioners.
WHEREFORE, the decision of the respondent Court of Appeals is modified by reducing the amount of actual damages private
respondent is entitled to by 40%. Petitioners may recover from Ms. Azucena Mabayad the amount they would pay the private
respondent. Private respondent shall have recourse against Ms. Irene Yabut. In all other respects, the appellate court's decision is
AFFIRMED.
Proportionate costs.
SO ORDERED.

As elucidated in Simex International (Manila), Inc. v. Court of Appeals, 22 in every case, the depositor expects the bank to treat
his account with the utmost fidelity, whether such account consists only of a few hundred pesos or of millions. The bank must
record every single transaction accurately, down to the last centavo, and as promptly as possible. This has to be done if the
account is to reflect at any given time the amount of money the depositor can dispose as he sees fit, confident that the bank will
deliver it as and to whomever he directs. A blunder on the part of the bank, such as the failure to duly credit him his deposits as
soon as they are made, can cause the depositor not a little embarrassment if not financial loss and perhaps even civil and criminal
litigation.

The point is that as a business affected with public interest and because of the nature of its functions, the bank is under obligation
to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationship. In
the case before us, it is apparent that the petitioner bank was remiss in that duty and violated that relationship.

Petitioners nevertheless aver that the failure of respondent RMC to cross-check the bank's statements of account with its own
records during the entire period of more than one (1) year is the proximate cause of the commission of subsequent frauds and
misappropriation committed by Ms. Irene Yabut.

Page 10 of 45 TORTS MEETING 3

TORTS 25
G.R. No. 177780 January 25, 2012
METROPOLITAN BANK & TRUST CO. (METROBANK), represented by ROSELLA A. SANTIAGO, Petitioner,
vs.
ANTONINO O. TOBIAS III, Respondent.
DECISION
BERSAMIN, J.:
This appeal assails the adverse decision of the Court of Appeals (CA) 1 that dismissed the petition for certioraribrought by the
petitioner to nullify and set aside the resolutions issued by the Secretary of Justice on July 20, 2004 2 and November 18,
20053 directing the City Prosecutor of Malabon City to withdraw the information in Criminal Case No. 27020 entitled People v.
Antonino O. Tobias III.
We affirm the CA in keeping with the principle of non-interference with the prerogative of the Secretary of Justice to review the
resolutions of the public prosecutor in the latter’s determination of the existence of probable cause, absent any showing that the
Secretary of Justice thereby commits grave abuse of his discretion.
Antecedents
In 1997, Rosella A. Santiago, then the OIC-Branch Head of Metropolitan Bank & Trust Company (METROBANK) in Valero
Street, Makati City, was introduced to respondent Antonino O. Tobias III (Tobias) by one Jose Eduardo Gonzales, a valued
client of METROBANK. Subsequently, Tobias opened a savings/current account for and in the name of Adam Merchandising,
his frozen meat business. Six months later, Tobias applied for a loan from METROBANK, which in due course conducted trade
and credit verification of Tobias that resulted in negative findings. METROBANK next proceeded to appraise the property
Tobias offered as collateral by asking him for a photocopy of the title and other related documents. 4 The property consisted of
four parcels of land located in Malabon City, Metro Manila with a total area of 6,080 square meters and covered by Transfer
Certificate of Title (TCT) No. M-16751.5 Based on the financial statements submitted by Tobias, METROBANK approved a
credit line for ₱40,000,000.00. On August 15, 1997, Joselito Bermeo Moreno, Lead Internal Affairs Investigator of
METROBANK, proceeded to the Registry of Deeds of Malabon to cause the annotation of the deed of real estate mortgage on
TCT No. M-16751. The annotation was Entry No. 26897.6
Thereafter, Tobias initially availed himself of ₱20,000,000, but took out the balance within six months.7 He paid the interest on
the loan for about a year before defaulting. His loan was restructured to 5-years upon his request. Yet, after two months, he again
defaulted. Thus, the mortgage was foreclosed, and the property was sold to METROBANK as the lone bidder. 8 On June 11,
1999, the certificate of sale was issued in favor of METROBANK.9
When the certificate of sale was presented for registration to the Registry of Deeds of Malabon, no corresponding original copy
of TCT No. M-16751 was found in the registry vault. Atty. Sarah Principe-Bido, Deputy Register of Deeds of Malabon, went on
to verify TCT No. M-16751 and learned that Serial No. 4348590 appearing therein had been issued for TCT No. M-15363 in the
name of one Alberto Cruz; while TCT No. 16751 (now TCT No. 390146) appeared to have been issued in the name of Eugenio
S. Cruz and Co. for a parcel of land located in Navotas.10
Given such findings, METROBANK requested the Presidential Anti-Organized Crime Task Force (PAOCTF) to investigate.11 In
its report dated May 29, 2000,12 PAOCTF concluded that TCT No. M-16751 and the tax declarations submitted by Tobias were
fictitious. PAOCTF recommended the filing against Tobias of a criminal complaint for estafa through falsification of public
documents under paragraph 2 (a) of Article 315, in relation to Articles 172(1) and 171(7) of the Revised Penal Code.13
Page 11 of 45 TORTS MEETING 3
The Office of the City Prosecutor of Malabon ultimately charged Tobias with estafa through falsification of public
documents through the following information,14 viz:
xxx
That on or about the 15th day of August, 1997 in the Municipality of Malabon, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, by means of deceit, false pretense, fraudulent acts and misrepresentation executed
prior to or simultaneous with the commission of fraud, represented to METROBANK, as represented by MS. ROSELLA S.
SANTIAGO, that he is the registered owner of a parcel of land covered by TCT No. M-16751 which he represented to be true
and genuine when he knew the Certificate of Title No. M-16751 is fake and spurious and executed a Real Estate Mortgage in
favor of Metrobank and offered the same as collateral for a loan and Rosella S. Santiago relying on said misrepresentation gave
to accused, the amount of ₱20,000,000.00 and once in possession of the amount, with intent to defraud, willfully, unlawfully and
feloniously failed to deliver the land covered by spurious title and misappropriate, misapply and converted the said amount of
₱20,000,000.00 to his own personal use and benefit and despite repeated demands accused failed and refused and still fails and
refuses to return the amount to complainant METROBANK, and/or delivered the land covered in the spurious title in the
aforementioned amount of ₱20,000,000.00.
CONTRARY TO LAW.15
Tobias filed a motion for re-investigation,16 which was granted.
In his counter-affidavit submitted during the re-investigation,17 Tobias averred that he had bought the property from one
Leonardo Fajardo through real estate brokers Augusto Munsuyac and Carmelito Pilapil; that Natalio Bartolome, his financial
consultant from Carwin International, had convinced him to purchase the property due to its being an ideal site for his meat
processing plant and cold storage business; that the actual inspection of the property as well as the verification made in the
Registry of Deeds of Malabon City had ascertained the veracity of TCT No. 106083 under the name of Leonardo Fajardo; that
he had applied for the loan from METROBANK to pay the purchase price by offering the property as collateral; that in order for
the final application to be processed and the loan proceeds to be released, METROBANK had advised him to have the title first
transferred to his name; that he had executed a deed of absolute sale with Fajardo covering the property, and that said instrument
had been properly registered in the Registry of Deeds; that the transfer of the title, being under the account of the seller, had been
processed by seller Fajardo and his brokers Munsuyac and Pilapil; that his title and the property had been inspected and verified
by METROBANK’s personnel; and that he did not have any intention to defraud METROBANK.
Nonetheless, on December 27, 2002, the City Prosecutor of Malabon still found probable cause against Tobias, and
recommended his being charged with estafa through falsification of public document.18
Tobias appealed to the Department of Justice (DOJ).
On July 20, 2004, then Acting Secretary of Justice Ma. Merceditas N. Gutierrez issued a resolution directing the withdrawal of
the information filed against Tobias,19 to wit:
WHEREFORE, the assailed resolution is hereby REVERSED and SET ASIDE. The City Prosecutor of Malabon City is directed
to cause the withdrawal of the Information in Crim. Case No. 27020 against respondent Antonino O. Tobias III, and report the
action taken thereon within ten (10) days from receipt hereof.
SO ORDERED.
Acting Secretary of Justice Gutierrez opined that Tobias had sufficiently established his good faith in purchasing the property;
that he had even used part of the proceeds of the loan to pay the seller; that it was METROBANK that had caused the annotation
of the mortgage on the TCT, thereby creating an impression that the title had been existing in the Registry of Deeds at that time;
that, accordingly, the presumption that the possessor of a falsified document was the author of the falsification did not apply
because it was always subject to the qualification or reference as to the approximate time of the commission of the falsification.
METROBANK moved to reconsider,20 arguing that Tobias had employed deceit or false pretense in offering the property as
collateral by using a fake title; and that the presumption that the possessor of the document was the author of the falsification
applied because no other person could have falsified the TCT and would have benefitted therefrom except Tobias himself.
On November 18, 2005, Secretary of Justice Raul M. Gonzalez denied METROBANK’s motion for reconsideration. 21
Ruling of the CA
METROBANK challenged the adverse resolutions through certiorari.
On December 29, 2006, the CA promulgated its decision,22 dismissing METROBANK’s petition for certiorari by holding that
the presumption of authorship might be disputed through a satisfactory explanation, viz:
We are not unaware of the established presumption and rule that when it is proved that a person has in his possession a falsified
document and makes use of the same, the presumption or inference is that such person is the forger (Serrano vs. Court of
Appeals, 404 SCRA 639, 651 [2003]), citing Koh Tieck Heng vs. People, 192 SCRA 533, 546-547 [1990]). Yet, the Supreme
Court declared that in the absence of satisfactory explanation, one who is found in possession of a forged document and who
used it is presumed to be the forger (citing People vs. Sendaydiego, 81 SCRA 120, 141 [1978]). Very clearly then, a satisfactory
explanation could render ineffective the presumption which, after all, is merely a disputable one.
It is in this score that We affirm the resolution of the Department of Justice finding no probable cause against private respondent
Tobias for estafa thru falsification of public document. The record speaks well of Tobias’ good faith and lack of criminal
intention and liability. Consider:
(a) Tobias has in his favor a similar presumption that good faith is always presumed. Therefore, he who claims bad faith
must prove it (Prinsipio vs. The Honorable Oscar Barrientos, G.R. 167025, December 19, 2005). No such evidence of bad
faith of Tobias appears on record;
(b) Tobias’ actuation in securing the loan belies any criminal intent on his part to deceive petitioner Bank. He was not in a
hurry to obtain the loan. He had to undergo the usual process of the investigative arm or machine of the Bank not only on
the location and the physical appearance of the property but likewise the veracity of its title. Out of the approved
₱40,000,000.00 loan he only availed of ₱20,000,000.00, for his frozen meat business which upon investigation of the Bank
failed to give negative results;
(c) Tobias paid the necessary interests for one (1) year on the loan and two (2) installments on the restructured loan; and
(d) More importantly, the loan was not released to him until after the mortgage was duly registered with the Registry of
Deeds of Malabon City and even paid the amount of ₱90,000.00 for the registration fees therefor.
These actuations, for sure, can only foretell that Tobias has the least intention to deceive the Bank in obtaining the loan. It may
not be surprising to find that Tobias could even be a victim himself by another person in purchasing the properties he offered as
security for the loan.23
The CA stressed that the determination of probable cause was an executive function within the discretion of the public
prosecutor and, ultimately, of the Secretary of Justice, and the courts of law could not interfere with such determination; 24 that
the private complainant in a criminal action was only concerned with its civil aspect; that should the State choose not to file the
criminal action, the private complainant might initiate a civil action based on Article 35 of the Civil Code, to wit:
In the eventuality that the Secretary of Justice refuses to file the criminal complaint, the complainant, whose only interest is the
civil aspect of the case and not the criminal aspect thereof, is not left without a remedy. In Vda. De Jacob vs. Puno, 131 SCRA
144, 149 [1984], the Supreme Court has this for an answer:
Page 12 of 45 TORTS MEETING 3
"The remedy of complainant in a case where the Minister of Justice would not allow the filing of a criminal complaint against an
accused because it is his opinion that the evidence is not sufficient to sustain an information for the complaint with which the
respondents are charged of, is to file a civil action as indicated in Article 35 of the Civil Code, which provides:
‘Art. 35. When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent
civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a
crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complainant may
bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of
evidence. Upon the defendant’s motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the
complainant should be found to be malicious.
‘If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall
be suspended until the termination of the criminal proceedings.’"25
METROBANK sought reconsideration, but the CA denied its motion for that purpose, emphasizing that the presumption that
METROBANK firmly relied upon was overcome by Tobias sufficiently establishing his good faith and lack of criminal intent.
The CA relevantly held:
Petitioner should be minded that the subject presumption that the possessor and user of a forged or falsified document is
presumed to be the falsifier or forger is a mere disputable presumption and not a conclusive one. Under the law on evidence,
presumptions are divided into two (2) classes: conclusive and rebuttable. Conclusive or absolute presumptions are rules
determining the quantity of evidence requisite for the support of any particular averment which is not permitted to be overcome
by any proof that the fact is otherwise, if the basis facts are established (1 Greenleaf, Ev 44; 29 Am Jur 2d, Evidence 164; 1
Jones on Evidence 6 ed, page 132). Upon the other hand, a disputable presumption has been defined as species of evidence that
may be accepted and acted on when there is no other evidence to uphold the contention for which it stands, or one which may be
overcome by other evidence (31A C.J.S., p. 197; People v. de Guzman, G.R. No. 106025, Feb. 9, 1994; Herrera, Remedial Law,
Vol. VI, 1999 Edition, pp. 40-41). In fact, Section 3 of Rule 131 provides that the disputable presumptions therein enumerated
are satisfactory if uncontradicted but may be contradicted and overcome by other evidence. Thus, as declared in Our decision in
this case, private respondent had shown evidence of good faith and lack of criminal intention and liability that can overthrow the
controversial disputable presumption.26
Issue
In this appeal, METROBANK raises the lone issue of—
WHETHER OR NOT THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE
PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THIS HONORABLE COURT
AND THUS, COMMITTED PATENT ERROR IN RENDERING THE ASSAILED DECISION DATED 29 DECEMBER
2006, DISMISSING METROBANK’S PETITION FOR CERTIORARI AND AFFIRMING THE RESOLUTIONS DATED 20
JULY 2004 AND 18 NOVEMBER 2005 OF THE HON. SECRETARY OF JUDTICE AND IN DENYING METROBANK’S
MOTION FOR RECONSIDERATION.
METROBANK submits that the presumption of authorship was sufficient to establish probable cause to hold Tobias for trial;
that the presumption applies when a person is found in possession of the forged instrument, makes use of it, and benefits from it;
that contrary to the ruling of the CA, there is no requirement that the legal presumption shall only apply in the absence of a valid
explanation from the person found to have possessed, used and benefited from the forged document; that the CA erred in
declaring that Tobias was in good faith, because good faith was merely evidentiary and best raised in the trial on the merits; and
that Tobias was heavily involved in a modus operandi of using fake titles because he was also being tried for a similar crime in
the RTC, Branch 133, in Makati City.
METROBANK maintains that what the Secretary of Justice did was to determine the innocence of the accused, which should not
be done during the preliminary investigation; and that the CA disregarded such lapse.
On the other hand, Tobias posits that the core function of the Department of Justice is to prosecute the guilty in criminal cases,
not to persecute; that although the prosecutors are given latitude to determine the existence of probable cause, the review power
of the Secretary of Justice prevents overzealous prosecutors from persecuting the innocent; that in reversing the resolution of
Malabon City Assistant Prosecutor Ojer Pacis, the Secretary of Justice only acted within his authority; that, indeed, the Secretary
of Justice was correct in finding that there was lack of evidence to prove that the purported fake title was the very cause that had
induced the petitioner to grant the loan; and that the Secretary likewise appropriately found that Tobias dealt with the petitioner
in good faith because of lack of proof that he had employed fraud and deceit in securing the loan.
Lastly, Tobias argues that the presumption of forgery could not be applied in his case because it was METROBANK, through a
representative, who had annotated the real estate mortgage with the Registry of Deeds; and that he had no access to and contact
with the Registry of Deeds, and whatever went wrong after the annotation was beyond his control.
in a preliminary investigation, where the investigating prosecutor only determines the existence of a prima facie case that
warrants the prosecution of a criminal case in court.41
Secondly, the presumption of authorship, being disputable, may be accepted and acted upon where no evidence upholds the
contention for which it stands.42 It is not correct to say, consequently, that the investigating prosecutor will try to determine the
existence of the presumption during preliminary investigation, and then to disregard the evidence offered by the respondent. The
fact that the finding of probable cause during a preliminary investigation is an executive function does not excuse the
investigating prosecutor or the Secretary of Justice from discharging the duty to weigh the evidence submitted by the parties.
Towards that end, the investigating prosecutor, and, ultimately, the Secretary of Justice have ample discretion to determine the
existence of probable cause,43 a discretion that must be used to file only a criminal charge that the evidence and inferences can
properly warrant.

Ruling The presumption that whoever possesses or uses a spurious document is its forger applies only in the absence of a satisfactory
explanation.44 Accordingly, we cannot hold that the Secretary of Justice erred in dismissing the information in the face of the
controverting explanation by Tobias showing how he came to possess the spurious document. Much less can we consider the
The appeal has no merit.
dismissal as done with abuse of discretion, least of all grave. We concur with the erudite exposition of the CA on the matter, to
wit:
Under the doctrine of separation of powers, the courts have no right to directly decide matters over which full discretionary
authority has been delegated to the Executive Branch of the Government, 27 or to substitute their own judgments for that of the
It would seem that under the above proposition of the petitioner, the moment a person has in his possession a falsified document
Executive Branch,28 represented in this case by the Department of Justice. The settled policy is that the courts will not interfere
and has made use of it, probable cause or prima facie is already established and that no amount of satisfactory explanation will
with the executive determination of probable cause for the purpose of filing an information, in the absence of grave abuse of
prevent the filing of the case in court by the investigating officer, for any such good explanation or defense can only be threshed
discretion.29 That abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal
out in the trial on the merit. We are not to be persuaded. To give meaning to such argumentation will surely defeat the very
to perform a duty enjoined by law or to act at all in contemplation of law, such as where the power is exercised in an arbitrary
purpose for which preliminary investigation is required in this jurisdiction.1avvphi1
and despotic manner by reason of passion or hostility.30 For instance, in Balanganan v. Court of Appeals, Special Nineteenth
Division, Cebu City,31 the Court ruled that the Secretary of Justice exceeded his jurisdiction when he required "hard facts and
solid evidence" in order to hold the defendant liable for criminal prosecution when such requirement should have been left to the A preliminary investigation is designed to secure the respondent involved against hasty, malicious and oppressive prosecution. A
court after the conduct of a trial. preliminary investigation is an inquiry to determine whether (a) a crime has been committed, and (b) whether there is probable
cause to believe that the accused is guilty thereof (De Ocampo vs. Secretary of Justice, 480 SCRA 71 [2006]). It is a means of
discovering the person or persons who may be reasonably charged with a crime (Preferred Home Specialties, Inc. vs. Court of
In this regard, we stress that a preliminary investigation for the purpose of determining the existence of probable cause is not part
Appeals, 478 SCRA 387, 410 [2005]). Prescindingly, under Section 3 of Rule 112 of the Rules of Criminal Procedure, the
of a trial.32 At a preliminary investigation, the investigating prosecutor or the Secretary of Justice only determines whether the act
respondent must be informed of the accusation against him and shall have the right to examine the evidence against him and
or omission complained of constitutes the offense charged. 33 Probable cause refers to facts and circumstances that engender a
submit his counter-affidavit to disprove criminal liability. By far, respondent in a criminal preliminary investigation is legally
well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. 34 There is no definitive
entitled to explain his side of the accusation.
standard by which probable cause is determined except to consider the attendant conditions; the existence of probable cause
depends upon the finding of the public prosecutor conducting the examination, who is called upon not to disregard the facts
presented, and to ensure that his finding should not run counter to the clear dictates of reason. 35 We are not unaware of the established presumption and rule that when it is proved that a person has in his possession a falsified
document and makes use of the same the presumption or inference is that such person is the forger (Serrano vs. Court of
Appeals, 404 SCRA 639, 651 [2003]), citing Koh Tieck Heng vs. People, 192 SCRA 533, 546-547 [1990]). Yet, the Supreme
Tobias was charged with estafa through falsification of public document the elements of which are: (a) the accused uses a
Court declared that in the absence of satisfactory explanation, one who is found in possession of a forged document and who
fictitious name, or falsely pretends to possess power, influence, qualifications, property, credit, agency, business or imaginary
used it is presumed to be the forger (citing People vs. Sendaydiego, 81 SCRA 120, 141 [1978]). Very clearly then, a satisfactory
transactions, or employs other similar deceits; (b) such false pretense, fraudulent act or fraudulent means must be made or
explanation could render ineffective the presumption which, after all, is merely a disputable one.45
executed prior to or simultaneously with the commission of the fraud; (c) the offended party must have relied on the false
pretense, fraudulent act or fraudulent means, that is, he was induced to part with his money or property because of the false
pretense, fraudulent act or fraudulent means; and (d) as a result thereof, the offended party suffered damage.36 It is required that We do not lose sight of the fact that METROBANK, a commercial bank dealing in real property, had the duty to observe due
the false statement or fraudulent representation constitutes the very cause or the only motive that induced the complainant to part diligence to ascertain the existence and condition of the realty as well as the validity and integrity of the documents bearing on
with the thing.37 the realty.46 Its duty included the responsibility of dispatching its competent and experience representatives to the realty to assess
its actual location and condition, and of investigating who was its real owner.47 Yet, it is evident that METROBANK did not
diligently perform a thorough check on Tobias and the circumstances surrounding the realty he had offered as collateral. As
METROBANK urges the application of the presumption of authorship against Tobias based on his having offered the duplicate
such, it had no one to blame but itself. Verily, banks are expected to exercise greater care and prudence than others in their
copy of the spurious title to secure the loan; and posits that there is no requirement that the presumption shall apply only when
dealings because their business is impressed with public interest.48 Their failure to do so constitutes negligence on its part.49
there is absence of a valid explanation from the person found to have possessed, used and benefited from the forged document.

WHEREFORE, the Court DENIES the petition for review on certiorari, and AFFIRMS the decision of the Court of Appeals
We cannot sustain METROBANK’s urging.
promulgated on December 29, 2006. The petitioner shall pay the costs of suit.

Firstly, a presumption affects the burden of proof that is normally lodged in the State. 38 The effect is to create the need of
SO ORDERED.
presenting evidence to overcome the prima facie case that shall prevail in the absence of proof to the contrary. 39 As such, a
presumption of law is material during the actual trial of the criminal case where in the establishment thereof the party against
whom the inference is made should adduce evidence to rebut the presumption and demolish the prima facie case.40 This is not so
Page 13 of 45 TORTS MEETING 3
TORTS 26 forcing her to quit her profession. She also bore ugly scars on several parts of her body, and she suffered anxiety of a possible
miscarriage being then five (5) months pregnant at the time of the accident.
G.R. No. L-29889 May 31, 1979
The defense is centered on the proposition that the gross negligence of Victorino Cusi was the proximate cause of the collision;
that had he made a full stop before traversing the crossing as required by section 56(a) of Act 3992 (Motor Vehicle Law), he
VICTORINO CUSI and PILAR POBRE, plaintiffs-appellees,
could have seen and heard the approach of the train, and thus, there would have been no collision.
vs.
PHILIPPINE NATIONAL RAILWAYS, defendant-appellant.
After a protracted trial, the lower court rendered the decision now subject of the appeal. Defendant-appellant seeks the reversal
of said decision; but should we affirm the same, that the award be reduced to a reasonable amount.
GUERRERO, J.:

As the action is predicated on negligence, the New Civil Code 1 making clear that "whoever by act or omission causes damage to
Direct appeal from the decision of the Court of First Instance of Rizal ordering defendant-appellant to indemnify the plaintiffs-
another, there being fault or negligence, is obliged to pay for the damage done the crucial question posed in the petition at bar is
appellees in the total amount of Two Hundred Thirty-Nine Thousand and Six Hundred Forty-Eight Pesos, and Seventy-Two
the existence of negligence on the part of defendant-appellant as found by the lower court.
Centavos (P239,648.72) for injuries received in a collision caused by the gross negligence of defendant-appellant, plus Ten
Thousand Pesos (P10,000.00) as attorney's fees and expenses of litigation.
1. The question of negligence being one of fact, the lower court's finding of negligence on the part of the defendant-appellant
deserves serious consideration by the Court. It commands great respect and weight, the reason being that the trial judge, having
Upon the amended and supplemental complaints for damages filed by plaintiffs-appellees, the spouses Victorino Cusi and Pilar
the advantage of hearing the parties testify and of observing their demeanor on the witness stand, is better situated to make
Pobre before the Court of First Instance of Rizal against the Manila Railroad Company, now the Philippine National Railways
conclusions of facts. Thus, it has been the standing practice of appellate courts to accord lower court's judgments the
and duly answered by the latter and after due hearing. the following facts appear as undisputed: On the night of October 5, 1963,
presumption of correctness. And unless it can be shown that error or errors, substantial in character, be shown in the conclusion
plaintiffs-appellees attended a birthday party inside the United Housing Subdivision in Paranaque, Rizal. After the party which
arrived at, or that there was abuse in judicial scrutiny, We are bound by their judgments. On this ground alone We can rest the
broke up at about 11 o'clock that evening, the plaintiffs-appellees proceeded home in their Vauxhall car with Victorino Cusi at
affirmance of the judgment appealed from.2
the wheel. Upon reaching the railroad tracks, finding that the level crossing bar was raised and seeing that there was no flashing
red light, and hearing no whistle from any coming train, Cusi merely slack ened his speed and proceeded to cross the tracks. At
the same time, a train bound for Lucena traversed the crossing, resulting in a collision between the two. The impact threw the 2. Nor is the result different even if no such presumption were indulged in, that is, even if We were to resolve whether or not
plaintiffs-appellees out of their car which was smashed. One Benjamin Franco, who came from the same party and was driving a there exist compelling reasons for an ultimate reversal.
vehicle right behind them, rushed to their aid and brought them. to San Juan de Dios Hospital for emergency treatment. Later,
the plaintiffs-appellees were transferred to the Philippine General Hospital. A week later, Mrs. Cusi transferred to the Manila
The judicial pronouncement below that the gross negligence of defendant-appellant was the proximate cause of the collision has
Doctors Hospital where Dr. Manuel Rivera, head of the Orthopedic and Fracture Service of the Philippine General Hospital
been thoroughly reviewed by this Court and we fully affirm the same.
performed on her a second operation and continued to treat her until her discharge from the hospital on November 2, 1963.
Thereafter, Dr. Rivera treated her as an out-patient until the end of February, 1964 although by that time the fractured bones had
not yet healed. Mrs. Cusi was also operated on by Dr. Francisco Aguilar, Director of the National Orthopedic Hospital, in May, Negligence has been defined by Judge Cooley in his work on Torts 3d ed sec. 13243 as "the failure to observe for the protection
1964 and in August, 1965, after another operation in her upper body from the chest to the abdomen, she was placed in cast for of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby
some three (3) months and her right arm immobilized by reason of the past such other person suffers injury." By such a test, it can readily be seen that there is no hard and fast rule whereby such degree of
care and vigilance is measured, it is dependent upon the circumstances in which a person finds himself so situated. All that the
law requires is that it is always incumbent upon a person to use that care and diligence expected of reasonable men under similar
As enumerated in the Medical Certificate (Exh. "J"), Mrs. Cusi suffered the following:
circumstances.

(1) Fracture open middle third humerus right

(2) Fracture mandible right paramedian
(3) Fracture fibula left distal
(4) Concussion, cerebral
(5) Abrasions, multiple (face, head, lumbosacral and extremities)
(6) Lacerations (2) right temporal
(7) Contusions with hematoma left forehead and parieto occipital right.
For these injuries, she underwent a total of four surgical opera. petitions in a period of two years. As a result of the fracture on
her right arm, there was a shortening of about 1 cm. of that arm. She lost the flexibility of her wrist, elbow and shoulder. Up to
the time she took the witness stand in August, 1966, she still had an intermedullary nail in the bone of her right arm Likewise,
Victorino Cusi suffered brain injuries which affected his speech, memory, sense of hearing and neck movement. For a long
period, he also felt pain all over his body.
Victorino Cusi claimed that prior to the accident he was a successful businessman — the Special Assistant to the Dolor Lopez
Enterprises, the managing partner of Cusi and Rivera Partnership, the manager of his ricemill, and with substantial investments
in other business enterprises. As a result of his injuries, he was unable to properly attend to his various business undertakings.
On the other hand, his wife, Pilar, was a skilled music and piano teacher. After the accident, she lost the dexterity of her fingers
Page 14 of 45 TORTS MEETING 3
These are the circumstances attendant to the collision. Undisputably, the warning devices installed at the railroad crossing were
manually operated; there were only 2 shifts of guards provided for the operation thereof — one, the 7:00 A.M. to 3:00 P. M.
shift, and the other, the 3:00 P.M. to 11:00 P.M. shift. On the night of the accident, the train for Lucena was on an unscheduled
trip after 11:00 P.M. During that precise hour, the warning devices were not operating for no one attended to them. Also, as
observed by the lower court, the locomotive driver did not blow his whistle, thus: "... he simply sped on without taking an extra
precaution of blowing his whistle from a distance of 50 to 10 meters from the crossing. That the train was running at full speed is
attested to by the fact that notwithstanding the application of the emergency brakes, the train did not stop until it reached a
distance of around 100 meters."
These facts assessed together show the inadequacy, nay, the absence, of precautions taken by the defendant-appellant to warn the
travelling public of the impending danger. It is clear to Us that as the signal devices were wholly manually-operated, there was
an urgent need for a flagman or guard to man the crossing at all times. As it was, the crossing was left unattended to after eleven
o'clock every night and on the night of the accident. We cannot in all reason justify or condone the act of the defendant-appellant
allowing the subject locomotive to travel through the unattended crossing with inoperative signal devices, but without sending
any of its employees to operate said signal devices so as to warn oncoming motorists of the approach of one of its locomotives. It
is not surprising therefore that the in operation of the warning devices created a situation which was misunderstood by the riding
public to mean safe passage. Jurisprudence recognizes that if warning devices are installed in railroad crossings, the travelling
public has the right to rely on such warning devices to put them on their guard and take the necessary precautions before
crossing the tracks. A need, therefore, exists for the railroad company to use reasonable care to keep such devices in good
condition and in working order, or to give notice that they are not operating, since if such a signal is misunderstood it is a (a) Hospital bills of Mrs. Cusi from October, 1963 to May, 1964 in the amount of Thirteen Thousand Five Hundred Fifty
menace. 4 Thus, it has been held that if a railroad company maintains a signalling device at a crossing to give warning of the Pesos and Five Centavos (P13,550.05);
approach of a train, the failure of the device to operate is generally held to be evidence of negligence, which maybe considered
with all the circumstances of the case in determining whether the railroad company was negligent as a matter of fact. 5
(b) Another hospital bill of Mrs. Cusi in 1965 in the amount of Three Thousand and One Pesos and Ninety Centavos
(P3,001.90);
The set of circumstances surrounding the collision subject of this case is very much similar to that of Lilius v. Manila Railroad
Company, 59 Phil. 758 (1934), where this Court upheld the lower court's finding of negligence on the part of defendant
(c) Doctor's fees for two surgical operations performed on Mrs. Cusi by one Dr. Manuel Rivera in the amount of One
locomotive company upon the following facts —
Thousand and Five Hundred Pesos (Pl,500.00);

... on the part of the defendant company, for not having had on that occasion any semaphore at the crossing at Dayap to
(d) Loss of Victorino's wrist watch valued at Two Hundred and Fifty Pesos (P250.00);
serve as a warning to passersby of its existence in order that they might take the necessary precautions before crossing the
railroad; and, on the part of its employees — the flagman and switchman, for not having remained at his post at the crossing
in question to warn passersby of the approaching train; the station master, for failure to send the said flagman and (e) Loss of Pilar's half of her pair of demand earrings(l-½carrats) valued at Two Thousand Seven Hundred and Fifty Pesos
switchman to his post on time; and the engineer, for not having taken the necessary precautions to avoid an accident, in view (P2,750,00);
of the absence of said flagman and switchman, by slackening his speed and continuously ringing the bell and blowing the
whistle before arriving at the crossing.
(f) Repair of the damaged Vauxhall car in the amount of Two Thousand Eight Hundred and Ninety Four Pesos and Seventy-
Seven Centavos (P2,894.77).
Defendant-appellant rests its defense mainly on Section 56(a) of the Motor Vehicle Law. Thus:
The total award of actual damages in the amount of Twenty Three Thousand Nine Hundred Forty-Six Pesos and Seventy-Two
Section 56(a) — Traversing through streets and railroad crossing, etc, — All vehicles moving on the public highways shall Centavos (P23,946.72) is, therefore, correct.
be brought to a full stop before traversing any 'through street' or railroad crossing. Whenever any such 'through street' or
crossing is so designated and signposted, it shall be unlawful for the driver of any vehicle to fail to stop within twenty
The lower court awarded Twenty-One Thousand Six Hundred Pesos (P21,600.00) to Mrs. Cusi for loss of income for the three
meters but not less than two and one-half meters from such through street or railroad crossing.
years that she was under constant medical treatment, and Fourteen Thousand Pesos (P14,000.00) for impairment of her earning
capacity; and Forty Thousand Pesos (P 40,000.00) to Mr. Cusi for loss of income for the eight months that he was disabled and
The defense presupposes that the failure of plaintiffs-appellees to stop before proceeding to traverse the crossing constitutes impairment of his earning capacity. We find the award reasonable. The records show that Mrs. Cusi, previously a skilled piano
contributory negligence, thereby precluding them from recovering indemnity for their injuries and damages. teacher averaging a monthly income of Six Hundred Pesos (P600.00), cannot now teach nor play the piano since the accident
which resulted in the loss of the dexterity of her fingers; likewise, Mr. Cusi cannot now vigorously attend to his businesses
which previously netted him a monthly average income of Five Thousand Pesos (P5,000.00).
The candor of defendant-appellant in interposing such a defense is doubtful. As seemingly observed by the lower court, the
defense, through inadvertence or deliberateness, did not pursue further the excepting clause of the same section thus to go on:
As regards the award of Twenty Thousand Pesos (P20,000.00) for profits which Victorino Cusi failed to realize from a certain
real estate transaction with the Dolor Lopez Enterprises, we affirm the same as the defendant-appellant has failed to present an
Provided, however, that the driver of a passenger automobile or motorcycle may instead of coming to a full stop, slow down
iota of evidence to overcome plaintiffs-appellees' evidence credited by the lower court as to the certainty of the materialization of
to not more than ten kilometers per hour whenever it is apparent that no hazard exists.
the stated transaction.

After a thorough perusal of the facts attendant to the case, this Court is in fun accord with the lower court. Plaintiff-appellee
The award of Seventy Thousand Pesos (P70,000.00) to Mrs. Cusi and Fifty Thousand Pesos (P50,000.00) to Victorino Cusi as
Victorino Cusi had exercised all the necessary precautions required of him as to avoid injury to -himself and to others. We find
moral damages is not excessive. In their own respective fields of endeavor, both were successful. Now they have to bear
no need for him to have made a full stop; relying on his faculties of sight and hearing, Victorino Cusi had no reason to anticipate
throughout their whole lifetime the humiliation wrought by their physical deformities which no doubt affected, and will continue
the impending danger. The record shows that the spouses Cusi previously knew of the existence of the railroad crossing, having
to do so, their social lives, their financial undertakings, and even their mental attitudes.
stopped at the guardhouse to ask for directions before proceeding to the party. At the crossing, they found the level bar raised, no
warning lights flashing nor warning bells ringing, nor whistle from an oncoming train. They safely traversed the crossing. On
their return home, the situation at the crossing did not in the least change, except for the absence of the guard or flagman. Hence, Likewise, the amount of Ten Thousand Pesos (P10,000.00) given as attorney's fees and expenses of litigation is not
on the same impression that the crossing was safe for passage as before, plaintiff-appellee Victorino Cusi merely slackened his unreasonable. The total amount of damages awarded by the trial court should bear legal interest at 6% from the rendition of the j
speed and proceeded to cross the tracks, driving at the proper rate of speed for going over railroad crossings. Had defendant- judgment, which was on March 26, 1968.
appellant been successful in establishing that its locomotive driver blew his whistle to warn motorists of his approach to
compensate for the absence of the warning signals, and that Victorino Cusi, instead of stopping or slackening his speed,
proceeded with reckless speed and regardless of possible or threatened danger, then We would have been put in doubt as to the WHEREFORE, the judgment of the lower court is hereby AFFIRMED with the modification that the total amount of damages
shall bear legal interest at six per cent (6%) from the rendition of the decision dated March 26, 1968.
degree of prudence exercised by him and would have, in all probability, declared him negligent. 6 But as the contrary was
established, we remain convinced that Victorino Cusi had not, through his own negligence, contributed to the accident so as to
deny him damages from the defendant-appellant. SO ORDERED.

The only question that now remains to be resolved is the reasonableness of the amount awarded as damages to the plaintiffs-
appellees.

The following actual expenses and losses are fully substantiated:

Page 15 of 45 TORTS MEETING 3

TORTS 27 lights". Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming vehicle, and bumped
plaintiff's car, which he did not see because it was midnight blue in color, with no parking lights or early warning device,
and the area was poorly lighted. He alleged in his defense that the left rear portion of plaintiff's car was protruding as it was
G.R. No. 115024 February 7, 1996
then "at a standstill diagonally" on the outer portion of the right lane towards Araneta Avenue (par. 18, Answer). He
confirmed the testimony of plaintiff's witness that after being bumped the car of the plaintiff swerved to the right and hit
MA. LOURDES VALENZUELA, petitioner, another car parked on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was reckless or
vs. negligent, as she was not a licensed driver.
COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL, INC., respondents.
The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the sketch of the three cars
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x involved in the accident, testified that the plaintiff's car was "near the sidewalk"; this witness did not remember whether the
hazard lights of plaintiff's car were on, and did not notice if there was an early warning device; there was a street light at the
corner of Aurora Blvd. and F. Roman, about 100 meters away. It was not mostly dark, i.e. "things can be seen" (p. 16, tsn,
G.R. No. 117944 February 7, 1996 Oct. 28, 1991).

RICHARD LI, petitioner, A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car and opened the trunk
vs. compartment, defendant's car came approaching very fast ten meters from the scene; the car was "zigzagging". The rear left
COURT OF APPEALS and LOURDES VALENZUELA, respondents.
side of plaintiff's car was bumped by the front right portion of defendant's car; as a consequence, the plaintiff's car swerved
to the right and hit the parked car on the sidewalk. Plaintiff was thrown to the windshield of defendant's car, which was
DECISION destroyed, and landed under the car. He stated that defendant was under the influence of liquor as he could "smell it very
well" (pp. 43, 79, tsn, June 17, 1991).
KAPUNAN, J.:
After trial, the lower court sustained the plaintiff's submissions and found defendant Richard Li guilty of gross negligence and
liable for damages under Article 2176 of the Civil Code. The trial court likewise held Alexander Commercial, Inc., Li's
These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem from an action to recover employer, jointly and severally liable for damages pursuant to Article 2180. It ordered the defendants to jointly and severally pay
damages by petitioner Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuries sustained by her in a vehicular the following amounts:
accident in the early morning of June 24, 1990. The facts found by the trial court are succinctly summarized by the Court of
Appeals below:
1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff as a result of her severed left leg;
This is an action to recover damages based on quasi-delict, for serious physical injuries sustained in a vehicular accident.
2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiff's Bistro La Conga restaurant
three (3) weeks after the accident on June 24, 1990; (b) P20,000.00, a month, as unrealized profits of the plaintiff in her
Plaintiff's version of the accident is as follows: At around 2:00 in the morning of June 24, 1990, plaintiff Ma. Lourdes Bistro La Conga restaurant, from August, 1990 until the date of this judgment and (c) P30,000.00, a month for unrealized
Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542 from her restaurant at Marcos highway to her profits in plaintiff's two (2) beauty salons from July, 1990 until the date of this decision;
home at Palanza Street, Araneta Avenue. She was travelling along Aurora Blvd. with a companion, Cecilia Ramon, heading
towards the direction of Manila. Before reaching A. Lake Street, she noticed something wrong with her tires; she stopped at
a lighted place where there were people, to verify whether she had a flat tire and to solicit help if needed. Having been told 3. P1,000,000.00, in moral damages;
by the people present that her rear right tire was flat and that she cannot reach her home in that car's condition, she parked
along the sidewalk, about 1-1/2 feet away, put on her emergency lights, alighted from the car, and went to the rear to open 4. P50,000.00, as exemplary damages;
the trunk. She was standing at the left side of the rear of her car pointing to the tools to a man who will help her fix the tire
when she was suddenly bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li and registered in the name of
defendant Alexander Commercial, Inc. Because of the impact plaintiff was thrown against the windshield of the car of the 5. P60,000.00, as reasonable attorney's fees; and
defendant, which was destroyed, and then fell to the ground. She was pulled out from under defendant's car. Plaintiff's left
leg was severed up to the middle of her thigh, with only some skin and sucle connected to the rest of the body. She was
6. Costs.
brought to the UERM Medical Memorial Center where she was found to have a "traumatic amputation, leg, left up to distal
thigh (above knee)". She was confined in the hospital for twenty (20) days and was eventually fitted with an artificial leg.
The expenses for the hospital confinement (P120,000.00) and the cost of the artificial leg (P27,000.00) were paid by As a result of the trial court's decision, defendants filed an Omnibus Motion for New Trial and for Reconsideration, citing
defendants from the car insurance. testimony in Criminal Case O.C. No. 804367 (People vs. Richard Li), tending to show that the point of impact, as depicted by
the pieces of glass/debris from the parties' cars, appeared to be at the center of the right lane of Aurora Blvd. The trial court
denied the motion. Defendants forthwith filed an appeal with the respondent Court of Appeals. In a Decision rendered March 30,
In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary damages in the amount of
1994, the Court of Appeals found that there was "ample basis from the evidence of record for the trial court's finding that the
P100,000.00 and other medical and related expenses amounting to a total of P180,000.00, including loss of expected
plaintiff's car was properly parked at the right, beside the sidewalk when it was bumped by defendant's car." 1 Dismissing the
earnings.
defendants' argument that the plaintiff's car was improperly parked, almost at the center of the road, the respondent court noted
that evidence which was supposed to prove that the car was at or near center of the right lane was never presented during the trial
Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph; considering that it was of the case.2 The respondent court furthermore observed that:
raining, visibility was affected and the road was wet. Traffic was light. He testified that he was driving along the inner
portion of the right lane of Aurora Blvd. towards the direction of Araneta Avenue, when he was suddenly confronted, in the
vicinity of A. Lake Street, San Juan, with a car coming from the opposite direction, travelling at 80 kph, with "full bright

Page 16 of 45 TORTS MEETING 3

 Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is self serving; it was not corroborated. It was in
fact contradicted by eyewitness Rodriguez who stated that he was outside his beerhouse located at Aurora Boulevard after
A. Lake Street, at or about 2:00 a.m. of June 24, 1990 when his attention was caught by a beautiful lady (referring to the
plaintiff) alighting from her car and opening the trunk compartment; he noticed the car of Richard Li "approaching very fast
ten (10) meters away from the scene"; defendant's car was zigzagging", although there were no holes and hazards on the
street, and "bumped the leg of the plaintiff" who was thrown against the windshield of defendant's care, causing its
destruction. He came to the rescue of the plaintiff, who was pulled out from under defendant's car and was able to say
"hurting words" to Richard Li because he noticed that the latter was under the influence of liquor, because he "could smell it
very well" (p. 36, et. seq., tsn, June 17, 1991). He knew that plaintiff owned a beerhouse in Sta. Mesa in the 1970's, but did
not know either plaintiff or defendant Li before the accident.
In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the plaintiff, the Court of Appeals, in
its decision, however, absolved the Li's employer, Alexander Commercial, Inc. from any liability towards petitioner Lourdes
Valenzuela and reduced the amount of moral damages to P500,000.00. Finding justification for exemplary damages, the
respondent court allowed an award of P50,000.00 for the same, in addition to costs, attorney's fees and the other damages. The
Court of Appeals, likewise, dismissed the defendants' counterclaims.3
Consequently, both parties assail the respondent court's decision by filing two separate petitions before this Court. Richard Li, in
G.R. No. 117944, contends that he should not be held liable for damages because the proximate cause of the accident was Ma.
Lourdes Valenzuela's own negligence. Alternatively, he argues that in the event that this Court finds him negligent, such
negligence ought to be mitigated by the contributory negligence of Valenzuela.
On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent court's decision insofar as it absolves
Alexander Commercial, Inc. from liability as the owner of the car driven by Richard Li and insofar as it reduces the amount of
the actual and moral damages awarded by the trial court.4
As the issues are intimately related, both petitions are hereby consolidated.
It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial questions of law. What it, in effect,
attempts to have this Court review are factual findings of the trial court, as sustained by the Court of Appeals finding Richard Li
grossly negligent in driving the Mitsubishi Lancer provided by his company in the early morning hours of June 24, 1990. This
we will not do. As a general rule, findings of fact of the Court of Appeals are binding and conclusive upon us, and this Court will
not normally disturb such factual findings unless the findings of fact of the said court are palpably unsupported by the evidence
on record or unless the judgment itself is based on a misapprehension of facts. 5
In the first place, Valenzuela's version of the incident was fully corroborated by an uninterested witness, Rogelio Rodriguez, the
owner-operator of an establishment located just across the scene of the accident. On trial, he testified that he observed a car
being driven at a "very fast" speed, racing towards the general direction of Araneta Avenue.6 Rodriguez further added that he was
standing in front of his establishment, just ten to twenty feet away from the scene of the accident, when he saw the car hit
Valenzuela, hurtling her against the windshield of the defendant's Mitsubishi Lancer, from where she eventually fell under the
defendant's car. Spontaneously reacting to the incident, he crossed the street, noting that a man reeking with the smell of liquor
had alighted from the offending vehicle in order to survey the incident. 7 Equally important, Rodriguez declared that he observed
Valenzuela's car parked parallel and very near the sidewalk,8 contrary to Li's allegation that Valenzuela's car was close to the
center of the right lane. We agree that as between Li's "self-serving" asseverations and the observations of a witness who did not
even know the accident victim personally and who immediately gave a statement of the incident similar to his testimony to the
investigator immediately after the incident, the latter's testimony deserves greater weight. As the court emphasized:
The issue is one of credibility and from Our own examination of the transcript, We are not prepared to set aside the trial
court's reliance on the testimony of Rodriguez negating defendant's assertion that he was driving at a safe speed. While
Rodriguez drives only a motorcycle, his perception of speed is not necessarily impaired. He was subjected to cross-
examination and no attempt was made to question .his competence or the accuracy of his statement that defendant was
driving "very fast". This was the same statement he gave to the police investigator after the incident, as told to a newspaper
report (Exh. "P"). We see no compelling basis for disregarding his testimony.
Page 17 of 45 TORTS MEETING 3
The alleged inconsistencies in Rodriguez' testimony are not borne out by an examination of the testimony. Rodriguez
testified that the scene of the accident was across the street where his beerhouse is located about ten to twenty feet away (pp.
35-36, tsn, June 17, 1991). He did not state that the accident transpired immediately in front of his establishment. The
ownership of the Lambingan se Kambingan is not material; the business is registered in the name of his mother, but he
explained that he owns the establishment (p. 5, tsn, June 20, 1991). Moreover, the testimony that the streetlights on his side
of Aurora Boulevard were on the night the accident transpired (p. 8) is not necessarily contradictory to the testimony of Pfc.
Ramos that there was a streetlight at the corner of Aurora Boulevard and F. Roman Street (p. 45, tsn, Oct. 20, 1991).
With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a heavy rain and the rain has
stopped and he was outside his establishment at the time the accident transpired (pp. 64-65, tsn, June 17, 1991). This was
consistent with plaintiff's testimony that it was no longer raining when she left Bistro La Conga (pp. 10-11, tsn, April 29,
1991). It was defendant Li who stated that it was raining all the way in an attempt to explain why he was travelling at only
50-55 kph. (p. 11, tsn, Oct. 14, 1991). As to the testimony of Pfc. Ramos that it was raining, he arrived at the scene only in
response to a telephone call after the accident had transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no substantial
inconsistencies in Rodriguez's testimony that would impair the essential integrity of his testimony or reflect on his honesty.
We are compelled to affirm the trial court's acceptance of the testimony of said eyewitness.
Against the unassailable testimony of witness Rodriguez we note that Li's testimony was peppered with so many inconsistencies
leading us to conclude that his version of the accident was merely adroitly crafted to provide a version, obviously self-serving,
which would exculpate him from any and all liability in the incident. Against Valenzuela's corroborated claims, his allegations
were neither backed up by other witnesses nor by the circumstances proven in the course of trial. He claimed that he was driving
merely at a speed of 55 kph. when "out of nowhere he saw a dark maroon lancer right in front of him, which was (the) plaintiff's
car". He alleged that upon seeing this sudden "apparition" he put on his brakes to no avail as the road was slippery. 9
One will have to suspend disbelief in order to give credence to Li's disingenuous and patently self-serving asseverations. The
average motorist alert to road conditions will have no difficulty applying the brakes to a car traveling at the speed claimed by Li.
Given a light rainfall, the visibility of the street, and the road conditions on a principal metropolitan thoroughfare like Aurora
Boulevard, Li would have had ample time to react to the changing conditions of the road if he were alert - as every driver should
be - to those conditions. Driving exacts a more than usual toll on the senses. Physiological "fight or flight" 10 mechanisms are at
work, provided such mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness, etc. 11 Li's failure to react in a
manner which would have avoided the accident could therefore have been only due to either or both of the two factors: 1) that he
was driving at a "very fast" speed as testified by Rodriguez; and 2) that he was under the influence of alcohol.12 Either factor
working independently would have diminished his responsiveness to road conditions, since normally he would have slowed
down prior to reaching Valenzuela's car, rather than be in a situation forcing him to suddenly apply his brakes. As the trial court
noted (quoted with approval by respondent court):
Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the incident, he said that while
driving along Aurora Blvd., out of nowhere he saw a dark maroon lancer right in front of him which was plaintiff's car,
indicating, again, thereby that, indeed, he was driving very fast, oblivious of his surroundings and the road ahead of him,
because if he was not, then he could not have missed noticing at a still far distance the parked car of the plaintiff at the right
side near the sidewalk which had its emergency lights on, thereby avoiding forcefully bumping at the plaintiff who was then
standing at the left rear edge of her car.
Since, according to him, in his narration to the San Juan Police, he put on his brakes when he saw the plaintiff's car in front
of him, but that it failed as the road was wet and slippery, this goes to show again, that, contrary to his claim, he was,
indeed, running very fast. For, were it otherwise, he could have easily completely stopped his car, thereby avoiding the
bumping of the plaintiff, notwithstanding that the road was wet and slippery. Verily, since, if, indeed, he was running slow,
as he claimed, at only about 55 kilometers per hour, then, inspite of the wet and slippery road, he could have avoided hitting
the plaintiff by the mere expedient or applying his brakes at the proper time and distance.
It could not be true, therefore, as he now claims during his testimony, which is contrary to what he told the police
immediately after the accident and is, therefore, more believable, that he did not actually step on his brakes but simply
swerved a little to the right when he saw the on-coming car with glaring headlights, from the opposite direction, in order to
avoid it.
 For, had this been what he did, he would not have bumped the car of the plaintiff which was properly parked at the right
beside the sidewalk. And, it was not even necessary for him to swerve a little to the right in order to safely avoid a collision
with the on-coming car, considering that Aurora Blvd. is a double lane avenue separated at the center by a dotted white
paint, and there is plenty of space for both cars, since her car was running at the right lane going towards Manila on the on-
coming car was also on its right lane going to Cubao.13
Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi Lancer, the next question for us
to determine is whether or not Valenzuela was likewise guilty of contributory negligence in parking her car alongside Aurora
Boulevard, which entire area Li points out, is a no parking zone.
We agree with the respondent court that Valenzuela was not guilty of contributory negligence.
Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered,
which falls below the standard to which he is required to conform for his own protection. 14 Based on the foregoing definition, the
standard or act to which, according to petitioner Li, Valenzuela ought to have conformed for her own protection was not to park
at all at any point of Aurora Boulevard, a no parking zone. We cannot agree.
Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not to be held up to
the standard of conduct normally applied to an individual who is in no such situation. The law takes stock of impulses of
humanity when placed in threatening or dangerous situations and does not require the same standard of thoughtful and reflective
care from persons confronted by unusual and oftentimes threatening conditions. 15
Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,16 an individual who suddenly finds himself in a
situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a
better solution, unless the emergency was brought by his own negligence.17
Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to avoid hitting two
children suddenly darting into the street, we held, in Mc Kee vs. Intermediate Appellate Court,18 that the driver therein, Jose Koh,
"adopted the best means possible in the given situation" to avoid hitting the children. Using the "emergency rule" the Court
concluded that Koh, in spite of the fact that he was in the wrong lane when the collision with an oncoming truck occurred, was
not guilty of negligence.19
While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately weigh a threatening
situation is absent, the conduct which is required of an individual in such cases is dictated not exclusively by the suddenness of
the event which absolutely negates thoroughful care, but by the over-all nature of the circumstances. A woman driving a vehicle
suddenly crippled by a flat tire on a rainy night will not be faulted for stopping at a point which is both convenient for her to do
so and which is not a hazard to other motorists. She is not expected to run the entire boulevard in search for a parking zone or
turn on a dark street or alley where she would likely find no one to help her. It would be hazardous for her not to stop and assess
the emergency (simply because the entire length of Aurora Boulevard is a no-parking zone) because the hobbling vehicle would
be both a threat to her safety and to other motorists. In the instant case, Valenzuela, upon reaching that portion of Aurora
Boulevard close to A. Lake St., noticed that she had a flat tire. To avoid putting herself and other motorists in danger, she did
what was best under the situation. As narrated by respondent court: "She stopped at a lighted place where there were people, to
verify whether she had a flat tire and to solicit help if needed. Having been told by the people present that her rear right tire was
flat and that she cannot reach her home she parked along the sidewalk, about 1 1/2 feet away, behind a Toyota Corona Car." 20 In
fact, respondent court noted, Pfc. Felix Ramos, the investigator on the scene of the accident confirmed that Valenzuela's car was
parked very close to the sidewalk.21 The sketch which he prepared after the incident showed Valenzuela's car partly straddling
the sidewalk, clear and at a convenient distance from motorists passing the right lane of Aurora Boulevard. This fact was itself
corroborated by the testimony of witness Rodriguez.22
Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by the emergency and could not be
considered to have contributed to the unfortunate circumstances which eventually led to the amputation of one of her lower
extremities. The emergency which led her to park her car on a sidewalk in Aurora Boulevard was not of her own making, and it
was evident that she had taken all reasonable precautions.
Page 18 of 45 TORTS MEETING 3
Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the night of the accident.
"Negligence, as it is commonly understood is conduct which creates an undue risk of harm to others." 23 It is the failure to observe
that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers
injury.24 We stressed, in Corliss vs. Manila Railroad Company,25 that negligence is the want of care required by the
circumstances.
The circumstances established by the evidence adduced in the court below plainly demonstrate that Li was grossly negligent in
driving his Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at about 2:00 A.M. after a heavy downpour
had settled into a drizzle rendering the street slippery. There is ample testimonial evidence on record to show that he was under
the influence of liquor. Under these conditions, his chances of effectively dealing with changing conditions on the road were
significantly lessened. As Presser and Keaton emphasize:
[U]nder present day traffic conditions, any driver of an automobile must be prepared for the sudden appearance of obstacles
and persons on the highway, and of other vehicles at intersections, such as one who sees a child on the curb may be required
to anticipate its sudden dash into the street, and his failure to act properly when they appear may be found to amount to
negligence.26
Li's obvious unpreparedness to cope with the situation confronting him on the night of the accident was clearly of his own
making.
We now come to the question of the liability of Alexander Commercial, Inc. Li's employer. In denying liability on the part of
Alexander Commercial, the respondent court held that:
There is no evidence, not even defendant Li's testimony, that the visit was in connection with official matters. His functions
as assistant manager sometimes required him to perform work outside the office as he has to visit buyers and company
clients, but he admitted that on the night of the accident he came from BF Homes Paranaque he did not have "business from
the company" (pp. 25-26, ten, Sept. 23, 1991). The use of the company car was partly required by the nature of his work, but
the privilege of using it for non-official business is a "benefit", apparently referring to the fringe benefits attaching to his
position.
Under the civil law, an employer is liable for the negligence of his employees in the discharge of their respective duties, the
basis of which liability is not respondeat superior, but the relationship of pater familias, which theory bases the liability of
the master ultimately on his own negligence and not on that of his servant (Cuison v. Norton and Harrison Co., 55 Phil. 18).
Before an employer may be held liable for the negligence of his employee, the act or omission which caused damage must
have occurred while an employee was in the actual performance of his assigned tasks or duties (Francis High School vs.
Court of Appeals, 194 SCRA 341). In defining an employer's liability for the acts done within the scope of the employee's
assigned tasks, the Supreme Court has held that this includes any act done by an employee, in furtherance of the interests of
the employer or for the account of the employer at the time of the infliction of the injury or damage (Filamer Christian
Institute vs. Intermediate Appellate Court, 212 SCRA 637). An employer is expected to impose upon its employees the
necessary discipline called for in the performance of any act "indispensable to the business and beneficial to their employer"
(at p. 645).
In light of the foregoing, We are unable to sustain the trial court's finding that since defendant Li was authorized by the
company to use the company car "either officially or socially or even bring it home", he can be considered as using the
company car in the service of his employer or on the occasion of his functions. Driving the company car was not among his
functions as assistant manager; using it for non-official purposes would appear to be a fringe benefit, one of the perks
attached to his position. But to impose liability upon the employer under Article 2180 of the Civil Code, earlier quoted, there
must be a showing that the damage was caused by their employees in the service of the employer or on the occasion of their
functions. There is no evidence that Richard Li was at the time of the accident performing any act in furtherance of the
company's business or its interests, or at least for its benefit. The imposition of solidary liability against defendant Alexander
Commercial Corporation must therefore fail.27
We agree with the respondent court that the relationship in question is not based on the principle of respondeat superior, which
holds the master liable for acts of the servant, but that of pater familias, in which the liability ultimately falls upon the employer,
for his failure to exercise the diligence of a good father of the family in the selection and supervision of his employees. It is up to In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his testimony before the trial court, he
this point, however, that our agreement with the respondent court ends. Utilizing the bonus pater familias standard expressed in admitted that his functions as Assistant Manager did not require him to scrupulously keep normal office hours as he was required
Article 2180 of the Civil Code, 28 we are of the opinion that Li's employer, Alexander Commercial, Inc. is jointly and solidarily quite often to perform work outside the office, visiting prospective buyers and contacting and meeting with company
liable for the damage caused by the accident of June 24, 1990. clients. 30 These meetings, clearly, were not strictly confined to routine hours because, as a managerial employee tasked with the
job of representing his company with its clients, meetings with clients were both social as well as work-related functions. The
service car assigned to Li by Alexander Commercial, Inc. therefore enabled both Li - as well as the corporation - to put up the
First, the case of St. Francis High School vs. Court of Appeals29 upon which respondent court has placed undue reliance, dealt
front of a highly successful entity, increasing the latter's goodwill before its clientele. It also facilitated meeting between Li and
with the subject of a school and its teacher's supervision of students during an extracurricular activity. These cases now fall
its clients by providing the former with a convenient mode of travel.
under the provision on special parental authority found in Art. 218 of the Family Code which generally encompasses all
authorized school activities, whether inside or outside school premises.
Moreover, Li's claim that he happened to be on the road on the night of the accident because he was coming from a social visit
with an officemate in Paranaque was a bare allegation which was never corroborated in the court below. It was obviously self-
Second, the employer's primary liability under the concept of pater familias embodied by Art 2180 (in relation to Art. 2176) of
serving. Assuming he really came from his officemate's place, the same could give rise to speculation that he and his officemate
the Civil Code is quasi-delictual or tortious in character. His liability is relieved on a showing that he exercised the diligence of a
had just been from a work-related function, or they were together to discuss sales and other work related strategies.
good father of the family in the selection and supervision of its employees. Once evidence is introduced showing that the
employer exercised the required amount of care in selecting its employees, half of the employer's burden is overcome. The
question of diligent supervision, however, depends on the circumstances of employment. In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it exercised the care and diligence of a good
father of the family in entrusting its company car to Li. No allegations were made as to whether or not the company took the
steps necessary to determine or ascertain the driving proficiency and history of Li, to whom it gave full and unlimited use of a
Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee during the performance
company car.31 Not having been able to overcome the burden of demonstrating that it should be absolved of liability for
of the latter's assigned tasks would be enough to relieve him of the liability imposed by Article 2180 in relation to Article 2176
entrusting its company car to Li, said company, based on the principle of bonus pater familias, ought to be jointly and severally
of the Civil Code. The employer is not expected to exercise supervision over either the employee's private activities or during the
liable with the former for the injuries sustained by Ma. Lourdes Valenzuela during the accident.
performance of tasks either unsanctioned by the former or unrelated to the employee's tasks. The case at bench presents a
situation of a different character, involving a practice utilized by large companies with either their employees of managerial rank
or their representatives. Finally, we find no reason to overturn the amount of damages awarded by the respondent court, except as to the amount of moral
damages. In the case of moral damages, while the said damages are not intended to enrich the plaintiff at the expense of a
defendant, the award should nonetheless be commensurate to the suffering inflicted. In the instant case we are of the opinion that
It is customary for large companies to provide certain classes of their employees with courtesy vehicles. These company cars are
the reduction in moral damages from an amount of P1,000,000.00 to P800,000,00 by the Court of Appeals was not justified
either wholly owned and maintained by the company itself or are subject to various plans through which employees eventually
considering the nature of the resulting damage and the predictable sequelae of the injury.
acquire their vehicles after a given period of service, or after paying a token amount. Many companies provide liberal "car plans"
to enable their managerial or other employees of rank to purchase cars, which, given the cost of vehicles these days, they would
not otherwise be able to purchase on their own. As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at the distal
left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory functions of her left
extremity, even with the use of state of the art prosthetic technology. Well beyond the period of hospitalization (which was paid
Under the first example, the company actually owns and maintains the car up to the point of turnover of ownership to the
for by Li), she will be required to undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the
employee; in the second example, the car is really owned and maintained by the employee himself. In furnishing vehicles to such
process of healing.
employees, are companies totally absolved of responsibility when an accident involving a company-issued car occurs during
private use after normal office hours?
These adjustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation and therapy.
During her lifetime, the prosthetic devise will have to be replaced and re-adjusted to changes in the size of her lower limb
Most pharmaceutical companies, for instance, which provide cars under the first plan, require rigorous tests of road worthiness
effected by the biological changes of middle-age, menopause and aging. Assuming she reaches menopause, for example, the
from their agents prior to turning over the car (subject of company maintenance) to their representatives. In other words, like a
prosthetic will have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels
good father of a family, they entrust the company vehicle only after they are satisfied that the employee to whom the car has
observed in the bones of all post-menopausal women. In other words, the damage done to her would not only be permanent and
been given full use of the said company car for company or private purposes will not be a threat or menace to himself, the
lasting, it would also be permanently changing and adjusting to the physiologic changes which her body
company or to others. When a company gives full use and enjoyment of a company car to its employee, it in effect guarantees
would normally undergo through the years. The replacements, changes, and adjustments will require corresponding adjustive
that it is, like every good father, satisfied that its employee will use the privilege reasonably and responsively.
physical and occupational therapy. All of these adjustments, it has been documented, are painful.

In the ordinary course of business, not all company employees are given the privilege of using a company-issued car. For large
The foregoing discussion does not even scratch the surface of the nature of the resulting damage because it would be highly
companies other than those cited in the example of the preceding paragraph, the privilege serves important business purposes
speculative to estimate the amount of psychological pain, damage and injury which goes with the sudden severing of a vital
either related to the image of success an entity intends to present to its clients and to the public in general, or - for practical and
portion of the human body. A prosthetic device, however technologically advanced, will only allow a reasonable amount of
utilitarian reasons - to enable its managerial and other employees of rank or its sales agents to reach clients conveniently. In most
functional restoration of the motor functions of the lower limb. The sensory functions are forever lost. The resultant anxiety,
cases, providing a company car serves both purposes. Since important business transactions and decisions may occur at all hours
sleeplessness, psychological injury, mental and physical pain are inestimable.
in all sorts of situations and under all kinds of guises, the provision for the unlimited use of a company car
therefore principally serves the business and goodwill of a company and only incidentally the private purposes of the individual
who actually uses the car, the managerial employee or company sales agent. As such, in providing for a company car for As the amount of moral damages are subject to this Court's discretion, we are of the opinion that the amount of P1,000,000.00
business use and/or for the purpose of furthering the company's image, a company owes a responsibility to the public to see to it granted by the trial court is in greater accord with the extent and nature of the injury - physical and psychological - suffered by
that the managerial or other employees to whom it entrusts virtually unlimited use of a company issued car are able to use the Valenzuela as a result of Li's grossly negligent driving of his Mitsubishi Lancer in the early morning hours of the accident.
company issue capably and responsibly.
WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals is modified with the effect of REINSTATING
the judgment of the Regional Trial Court.

Page 19 of 45 TORTS MEETING 3

SO ORDERED.

Page 20 of 45 TORTS MEETING 3

TORTS 28
G.R. No. 156034 October 1, 2003
DELSAN TRANSPORT LINES, INC., petitioner,
vs.
C & A construction, inc., respondent.
DECISION
YNARES-SANTIAGO, J.:
Assailed in this petition for review under Rule 45 of the Revised Rules of Court are the June 14, 2002 decision 1 of the Court of
Appeals in CA-G.R. CV No. 59034, which reversed the decision 2 of the Regional Trial Court of Manila, Branch 46, in Civil
Case No. 95-75565, and its November 7, 2002 resolution3 denying petitioner’s motion for reconsideration.
The undisputed facts reveal that respondent C & A Construction, Inc. was engaged by the National Housing Authority (NHA) to
construct a deflector wall at the Vitas Reclamation Area in Vitas, Tondo, Manila.4 The project was completed in 1994 but it was
not formally turned over to NHA.
On October 9, 1994, M/V Delsan Express, a ship owned and operated by petitioner Delsan Transport Lines, Inc., anchored at the
Navotas Fish Port for the purpose of installing a cargo pump and clearing the cargo oil tank. At around 12:00 midnight of
October 20, 1994, Captain Demetrio T. Jusep of M/V Delsan Express received a report from his radio head operator in
Japan5 that a typhoon was going to hit Manila6 in about eight (8) hours.7 At approximately 8:35 in the morning of October 21,
1994, Capt. Jusep tried to seek shelter at the North Harbor but could not enter the area because it was already congested. 8 At
10:00 a.m., Capt. Jusep decided to drop anchor at the vicinity of Vitas mouth, 4 miles away from a Napocor power barge. At that
time, the waves were already reaching 8 to 10 feet high. Capt. Jusep ordered his crew to go full ahead to counter the wind which
was dragging the ship towards the Napocor power barge. To avoid collision, Capt. Jusep ordered a full stop of the vessel. 9 He
succeeded in avoiding the power barge, but when the engine was re-started and the ship was maneuvered full astern, it hit the
deflector wall constructed by respondent.10 The damage caused by the incident amounted to P456,198.24.11
Respondent demanded payment of the damage from petitioner but the latter refused to pay. Consequently, respondent filed a
complaint for damages with the Regional Trial Court of Manila, Branch 46, which was docketed as Civil Case No. 95-75565. In
its answer, petitioner claimed that the damage was caused by a fortuitous event. 12
On February 13, 1998, the complaint filed by respondent was dismissed. The trial court ruled that petitioner was not guilty of
negligence because it had taken all the necessary precautions to avoid the accident. Applying the "emergency rule", it absolved
petitioner of liability because the latter had no opportunity to adequately weigh the best solution to a threatening situation. It
further held that even if the maneuver chosen by petitioner was a wrong move, it cannot be held liable as the cause of the
damage sustained by respondent was typhoon "Katring", which is an act of God. 13
On appeal to the Court of Appeals, the decision of the trial court was reversed and set aside. 14 It found Capt. Jusep guilty of
negligence in deciding to transfer the vessel to the North Harbor only at 8:35 a.m. of October 21, 1994 and thus held petitioner
liable for damages.
Hence, petitioner filed the instant petition contending that Capt. Jusep was not negligent in waiting until 8:35 in the morning of
October 21, 1994 before transferring the vessel to the North Harbor inasmuch as it was not shown that had the transfer been
made earlier, the vessel could have sought shelter.15 It further claimed that it cannot be held vicariously liable under Article 2180
of the Civil Code because respondent failed to allege in the complaint that petitioner was negligent in the selection and
supervision of its employees.16 Granting that Capt. Jusep was indeed guilty of negligence, petitioner is not liable because it
exercised due diligence in the selection of Capt. Jusep who is a duly licensed and competent Master Mariner. 17
Page 21 of 45 TORTS MEETING 3
The issues to be resolved in this petition are as follows – (1) Whether or not Capt. Jusep was negligent; (2) If yes, whether or not
petitioner is solidarily liable under Article 2180 of the Civil Code for the quasi-delict committed by Capt. Jusep?
Article 2176 of the Civil Code provides that 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. The test for determining the existence of negligence in a particular case may be
stated as follows: Did the defendant in doing the alleged negligent act use the reasonable care and caution which an ordinary
prudent person would have used in the same situation? If not, then he is guilty of negligence. 18
In the case at bar, the Court of Appeals was correct in holding that Capt. Jusep was negligent in deciding to transfer the vessel
only at 8:35 in the morning of October 21, 1994. As early as 12:00 midnight of October 20, 1994, he received a report from his
radio head operator in Japan19 that a typhoon was going to hit Manila20 after 8 hours.21 This, notwithstanding, he did nothing,
until 8:35 in the morning of October 21, 1994, when he decided to seek shelter at the North Harbor, which unfortunately was
already congested. The finding of negligence cannot be rebutted upon proof that the ship could not have sought refuge at the
North Harbor even if the transfer was done earlier. It is not the speculative success or failure of a decision that determines the
existence of negligence in the present case, but the failure to take immediate and appropriate action under the circumstances.
Capt. Jusep, despite knowledge that the typhoon was to hit Manila in 8 hours, complacently waited for the lapse of more than 8
hours thinking that the typhoon might change direction.22 He cannot claim that he waited for the sun to rise instead of moving the
vessel at midnight immediately after receiving the report because of the difficulty of traveling at night. The hour of 8:35 a.m. is
way past sunrise. Furthermore, he did not transfer as soon as the sun rose because, according to him, it was not very cloudy23 and
there was no weather disturbance yet.24
When he ignored the weather report notwithstanding reasonable foresight of harm, Capt. Jusep showed an inexcusable lack of
care and caution which an ordinary prudent person would have observed in the same situation. 25 Had he moved the vessel earlier,
he could have had greater chances of finding a space at the North Harbor considering that the Navotas Port where they docked
was very near North Harbor.26 Even if the latter was already congested, he would still have time to seek refuge in other ports.
The trial court erred in applying the emergency rule. Under this rule, one who suddenly finds himself in a place of danger, and is
required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the
danger in which he finds himself is brought about by his own negligence.27 Clearly, the emergency rule is not applicable to the
instant case because the danger where Capt. Jusep found himself was caused by his own negligence.
Anent the second issue, we find petitioner vicariously liable for the negligent act of Capt. Jusep.1awphi1.nét Under Article 2180
of the Civil Code an employer may be held solidarily liable for the negligent act of his employee. Thus –
Art. 2180. The obligation imposed in Article 2176 is demandable not only for one’s own acts or omissions, but also for those of
persons for whom one is responsible.
xxxxxxxxx
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any business or industry.
xxxxxxxxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
Whenever an employee’s negligence causes damage or injury to another, there instantly arises a presumption juris tantum that
the employer failed to exercise diligentissimi patris families in the selection (culpa in eligiendo) or supervision (culpa in
vigilando) of its employees. To avoid liability for a quasi-delict committed by his employee, an employer must overcome the
presumption by presenting convincing proof that he exercised the care and diligence of a good father of a family in the selection
and supervision of his employee. 28

There is no question that petitioner, who is the owner/operator of M/V Delsan Express, is also the employer of Capt. Jusep who
at the time of the incident acted within the scope of his duty. The defense raised by petitioner was that it exercised due diligence
in the selection of Capt. Jusep because the latter is a licensed and competent Master Mariner. It should be stressed, however, that
the required diligence of a good father of a family pertains not only to the selection, but also to the supervision of employees. It
is not enough that the employees chosen be competent and qualified, inasmuch as the employer is still required to exercise due
diligence in supervising its employees.

In Fabre, Jr. v. Court of Appeals,29 it was held that due diligence in supervision requires the formulation of rules and regulations
for the guidance of employees and the issuance of proper instructions as well as actual implementation and monitoring of
consistent compliance with the rules. Corollarily, in Ramos v. Court of Appeals,30 the Court stressed that once negligence on the
part of the employees is shown, the burden of proving that he observed the diligence in the selection and supervision of its
employees shifts to the employer.

In the case at bar, however, petitioner presented no evidence that it formulated rules/guidelines for the proper performance of
functions of its employees and that it strictly implemented and monitored compliance therewith. Failing to discharge the burden,
petitioner should therefore be held liable for the negligent act of Capt. Jusep.

So also, petitioner cannot disclaim liability on the basis of respondent’s failure to allege in its complaint that the former did not
exercise due diligence in the selection and supervision of its employees. In Viron Transportation Co., Inc. v. Delos Santos,31 it
was held that it is not necessary to state that petitioner was negligent in the supervision or selection of its employees, inasmuch
as its negligence is presumed by operation of law. Allegations of negligence against the employee and that of an employer-
employee relation in the complaint are enough to make out a case of quasi-delict under Article 2180 of the Civil Code.32

Considering that petitioner did not assail the damages awarded by the trial court, we find no reason to alter the same. The interest
imposed should, however, be modified. In Eastern Shipping Lines, Inc. v. Court of Appeals,33 it was held that the rate of interest
on obligations not constituting a loan or forbearance of money is six percent (6%) per annum. If the purchase price can be
established with certainty at the time of the filing of the complaint, the six percent (6%) interest should be computed from the
date the complaint was filed until finality of the decision. After the judgment becomes final and executory until the obligation is
satisfied, the amount due shall earn interest at 12% per year, the interim period being deemed equivalent to a forbearance of
credit.34

Accordingly, the amount of P456,198.27 due the respondent shall earn 6% interest per annum from October 3, 1995 until the
finality of this decision. If the adjudged principal and the interest (or any part thereof) remain unpaid thereafter, the interest rate
shall be twelve percent (12%) per annum computed from the time the judgment becomes final and executory until it is fully
satisfied.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED.1awphi1.nét The June 14, 2002 decision of the
Court of Appeals in CA-G.R. CV No. 59034 ordering petitioner Delsan Transport Lines, Inc., to pay respondent C & A
Construction, Inc., damages in the amount of P456,198.27, plus P30,000.00 as attorney’s fees, is AFFIRMED with the
MODIFICATION that the award of P456,198.27 shall earn interest at the rate of 6% per annum from October 3, 1995, until
finality of this decision, and 12% per annum thereafter on the principal and interest (or any part thereof) until full payment.

SO ORDERED.

Page 22 of 45 TORTS MEETING 3

TORTS 29
G.R. No. L-29745 June 4, 1973
MERCEDES M. TEAGUE, petitioner,
vs.
ELENA FERNANDEZ, et al., respondent.
MAKALINTAL, J.:
The facts are stated in the decision of the Court of Appeals as follows:
The Realistic Institute, admittedly owned and operated by defendant-appellee Mercedes M. Teague was a vocational school
for hair and beauty culture situated on the second floor of the Gil-Armi Building, a two-storey, semi-concrete edifice (Exhs.
"C", "C-1" to "C-5" and "4") located at the corner of Quezon Boulevard and Soler Street, Quiapo, Manila. The said second
floor was unpartitioned, had a total area of about 400 square meters, and although it had only one stairway, of about 1.50
meters in width, it had eight windows, each of which was provided with two fire-escape ladders (Exh. "4"), and the presence
of each of said fire-exits was indicated on the wall (Exh. "5").
At about four o'clock in the afternoon of October 24, 1955, a fire broke out in a store for surplus materials located about ten
meters away from the institute. Soler Street lay between that store and the institute. Upon seeing the fire, some of the
students in the Realistic Institute shouted 'Fire! Fire!' and thereafter, a panic ensued. Four instructresses and six assistant
instructress of the Institute were present and they, together with the registrar, tried to calm down the students, who
numbered about 180 at the time, telling them not to be afraid because the Gil-Armi Building would not get burned as it is
made of concrete, and that the fire was anyway, across the street. They told the students not to rush out but just to go down
the stairway two by two, or to use the fire-escapes. Mrs. Justitia Prieto, one of the instructresses, took to the microphone so
as to convey to the students the above admonitions more effectively, and she even slapped three students in order to quiet
them down. Miss Frino Meliton, the registrar, whose desk was near the stairway, stood up and tried with outstretched arms
to stop the students from rushing and pushing their way to the stairs. The panic, however, could not be subdued and the
students, with the exception of the few who made use of fire-escapes kept on rushing and pushing their way through the
stairs, thereby causing stampede therein.
Indeed, no part of the Gil-Armi Building caught fire. But, after the panic was over, four students, including Lourdes
Fernandez, a sister of plaintiffs-appellants, were found dead and several others injured on account of the stampede.
xxx xxx xxx
The injuries sustained by Lourdes Fernandez consisted of lacerations in both eyes and on the upper lip, contused abrasions in
different parts of the body, internal hemorrhage and fractures in the second and third right ribs. The cause of death, according to
the autopsy report, was "Shock due to traumatic fractures of the ribs with perinephric hematoma and lacerations of the
conjunctiva of both eyes."
The deceased's five brothers and sisters filed an action for damages against Mercedes M. Teague as owner and operator of
Realistic Institute. The Court of First Instance of Manila found for the defendant and dismissed the case. The plaintiffs thereupon
appealed to the Court of Appeals, which by a divided vote of 3 to 2 (a special division of five members having been constituted)
rendered a judgment of reversal and sentenced the defendant to pay damages to the plaintiffs in the sum of P11,000.00, plus
interest at the legal rate from the date the complaint was filed.
The case came up to this Court on a petition for review filed by the defendant below.
The decision of the appellate court declared that the defendant, hereinafter to be referred to as the petitioner, was negligent and
that such negligence was the proximate cause of the death of Lourdes Fernandez. This finding of negligence is based primarily
Page 23 of 45 TORTS MEETING 3
on the fact that the provision of Section 491 Of the Revised Ordinances of the City of Manila had not been complied with in
connection with the construction and use of the Gil-Armi building where the petitioner's vocational school was housed. This
provision reads as follows:
Sec. 491. Firepro of partitions, exits and stairways. — ... All buildings and separate sections of buildings or buildings
otherwise known as accessorias having less than three stories, having one or more persons domiciled therein either
temporarily or permanently, and all public or quasi-public buildings having less than three stories, such as hospitals,
sanitarium, schools, reformatories, places of human detention, assembly halls, clubs, restaurants or panciterias, and the like,
shall be provided with at least two unobstructed stairways of not less than one meter and twenty centimeters in width and an
inclination of not less than forty degrees from the perpendicular, in case of large buildings more than two stairways shall
likewise be provided when required by the chief of the fire department, said stairways shall be placed as far apart as
possible.
The alleged violation of the ordinance above-quoted consisted in the fact that the second storey of the Gil-Armi building had
only one stairway, 1.5 meters wide, instead of two of at least 1.2 meters each, although at the time of the fire the owner of the
building had a second stairway under construction.
In ruling that such non-compliance with the City Ordinances was an act of negligence and that such negligence was the
proximate cause of the death of Lourdes Fernandez, reliance is based on a number of authorities in the American jurisdiction,
thus: .
The mere fact of violation of a statute is not sufficient basis for an inference that such violation was the proximate cause of
the injury complained. However, if the very injury has happened which was intended to be prevented by the statute, it has
been held that violation of the statute will be deemed to be proximate cause of the injury. (65 C.J.S. 1156).
The generally accepted view is that violation of a statutory duty constitutes negligence, negligence as a matter or law, or,
according to the decisions on the question, negligence per se for the reason that non-observance of what the legislature has
prescribed as a suitable precaution is failure to observe that care which an ordinarily prudent man would observe, and, when
the state regards certain acts as so liable to injure others as to justify their absolute prohibition, doing the forbidden act is a
breach of duty with respect to those who may be injured thereby; or, as it has been otherwise expressed, when the standard
of care is fixed by law, failure to conform to such standard is negligence, negligence per se or negligence in and of itself, in
the absence of a legal excuse. According to this view it is immaterial, where a statute has been violated, whether the act or
omission constituting such violation would have been regarded as negligence in the absence of any statute on the subject or
whether there was, as a matter of fact, any reason to anticipate that injury would result from such violation. .... (65 C.J.S.
pp. 623-628).
But the existence of an ordinance changes the situation. If a driver causes an accident by exceeding the speed limit, for
example, do not inquire whether his prohibited conduct was unreasonably dangerous. It is enough that it was prohibited.
Violation of an ordinance intended to promote safety is negligence. If by creating the hazard which the ordinance was
intended to avoid it brings about the harm which the ordinance was intended to prevent, it is a legal cause of the harm. This
comes only to saying that in such circumstances the law has no reason to ignore the causal relation which obviously exists in
fact. The law has excellent reason to recognize it, since it is the very relation which the makers of the ordinance anticipated.
This court has applied these principles to speed limits and other regulations of the manner of driving. (Ross vs. Hartman,
139 Fed. 2d 14 at 15).
... However, the fact that other happenings causing or contributing toward an injury intervened between the violation of a
statute or ordinance and the injury does not necessarily make the result so remote that no action can be maintained. The test
is to be found not in the number of intervening events or agents, but in their character and in the natural and probable
connection between the wrong done and the injurious consequence. The general principle is that the violation of a statute or
ordinance is not rendered remote as the cause of an injury by the intervention of another agency if the occurrence of the
accident, in the manner in which it happened, was the very thing which the statute or ordinance was intended to Prevent. (38
Am Jur 841).
The petitioner has raised a number of issues. The first is that Section 491 of the Revised Ordinances of the City of Manila refers of another agency if the occurrence of the accident, in the manner in which it happened, was the very thing which the statute or
to public buildings and hence did not apply to the Gil-Armi building which was of private ownership. It will be noted from the ordinance was intended to prevent." To consider the violation of the ordinance as the proximate cause of the injury does not
text of the ordinance, however, that it is not ownership which determines the character of buildings subject to its requirements, portray the situation in its true perspective; it would be more accurate to say that the overcrowding at the stairway was the
but rather the use or the purpose for which a particular building is utilized. Thus the same may be privately owned, but if it is proximate cause and that it was precisely what the ordinance intended to prevent by requiring that there be two stairways instead
devoted to any one of the purposes mentioned in the ordinance — for instance as a school, which the Realistic Institute precisely of only one. Under the doctrine of the cases cited by the respondents, the principle of proximate cause applies to such violation.
was — then the building is within the coverage of the ordinance. Indeed the requirement that such a building should have two (2)
separate stairways instead of only one (1) has no relevance or reasonable relation to the fact of ownership, but does have such
A procedural point mentioned by the petitioner is that the complaint did not specifically allege that the ordinance in question had
relation to the use or purpose for which the building is devoted.
been violated. The violation, however, as an act of negligence which gave rise to liability, was sufficiently comprehended within
paragraph 7 of the complaint, which reads: .
It is next contended that the obligation to comply with the ordinance devolved upon the owners of the building and therefore it is
they and not the petitioner herein, who is a mere lessee, who should be liable for the violation. The contention ignores the fact
Par. 7. That the death of Lourdes Fernandez was due to the gross negligence of the defendant who failed to exercise due care
that it was the use of the building for school purposes which brought the same within the coverage of the ordinance; and it was
and diligence for the safety of its students in not providing the building with adequate fire exits and in not practicing fire
the petitioner and not the owners who was responsible for such use.
drill exercises to avoid the stampede, aside from the fact that the defendant did not have a permit to use the building as a
school-house.
The next issue, indeed the basic one, raised by the petitioner is whether or not the failure to comply with the requirement of the
ordinance was the proximate cause of the death of Lourdes Fernandez. The case of Villanueva Vda. de Bataclan, et al. vs.
The decision appealed from is affirmed, with costs.
Medina, G. R. No. L-10126, October 22, 1957, is cited in support of the contention that such failure was not the proximate
cause. It is there stated by this Court:

The proximate legal cause is that acting first and producing the injury, either immediately or by settling other events in
motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately affecting the injury as a natural and probable result of the cause which
first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might
probably result therefrom.

Having in view the decision just quoted, the petitioner relates the chain of events that resulted in the death of Lourdes Fernandez
as follows: (1) violation of ordinance; (2) fire at a neighboring place; (3) shouts of "Fire!, Fire!"; (4) panic in the Institute; (5)
stampede; and (6) injuries and death.

As thus projected the violation of the ordinance, it is argued, was only a remote cause, if at all, and cannot be the basis of
liability since there intervened a number of independent causes which produced the injury complained of. A statement of the
doctrine relied upon is found in Manila Electric Co. vs. Remoquillo, L-8328, May 18, 1956, wherein this Court, citing Corpus
Juris said:

A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the
condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or
remote cause and the injury a distinct, successive unrelated, and efficient cause of the injury, even though such injury would
not have happened but for such condition or occasion. If no danger existed in the condition except because of the
independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition
sets into operation the circumstances which result in injury because of the prior defective condition, such subsequent act or
condition is the proximate cause. (45 C.J. p. 931.)

According to the petitioner "the events of fire, panic and stampede were independent causes with no causal connection at all with
the violation of the ordinance." The weakness in the argument springs from a faulty juxtaposition of the events which formed a
chain and resulted in the injury. It is true that the petitioner's non-compliance with the ordinance in question was ahead of and
prior to the other events in point of time, in the sense that it was coetaneous with its occupancy of the building. But the violation
was a continuing one, since the ordinance was a measure of safety designed to prevent a specific situation which would pose a
danger to the occupants of the building. That situation was undue overcrowding in case it should become necessary to evacuate
the building, which, it could be reasonably foreseen, was bound to happen under emergency conditions if there was only one
stairway available. It is true that in this particular case there would have been no overcrowding in the single stairway if there had
not been a fire in the neighborhood which caused the students to panic and rush headlong for the stairs in order to go down. But
it was precisely such contingencies or event that the authors of the ordinance had in mind, for under normal conditions one
stairway would be adequate for the occupants of the building. Thus, as stated in 38 American Jurisprudence, page 841: "The
general principle is that the violation of a statute or ordinance is not rendered remote as the cause of an injury by the intervention
Page 24 of 45 TORTS MEETING 3
TORTS 30 2. The sum of ₱50,000.00 for the death of Antero Guillang plus ₱185,000.00 for his burial expenses, to the heirs of Antero
Guillang.
G.R. No. 162987 May 21, 2009
3. For hospital and medical expenses as reflected in Exhibits E, E-1 to E-30 to plaintiffs Genaro M. Guillang, Jose
Dignadice and Alvin Llanillo.
SOFIA M. GUILLANG, represented by SUSAN GUILLANG-CABATBAT, REYNALDO, GERARDO, BIENVENIDO,
DAWNA, and NELLIE, all surnamed GUILLANG, GENARO GUILLANG, JOSE DIGNADICE, and ALVIN
LLANILLO, Petitioners, 4. The sum of ₱50,000.00 as moral damages for the heirs of the deceased Antero Guillang.
vs.
RODOLFO BEDANIA and RODOLFO DE SILVA, Respondents.
5. The sum of ₱50,000.00 as moral damages each to plaintiffs Jose Dignadice, Alvin Llanillo and Genaro Guillang.

DECISION
6. The sum of ₱50,000.00 as exemplary damages.

CARPIO, J.:
7. The sum of ₱100,000.00 as and for attorney’s fess.

The Case
8. The costs of the suit.

This is a petition for review1 of the 3 June 2003 Decision2 and the 23 March 2004 Resolution3 of the Court of Appeals in CA-
SO ORDERED.6
G.R. CV No. 69289. The 3 June 2003 Decision set aside the 5 December 2000 Decision 4 of the Regional Trial Court, Branch 30,
Manila (trial court). The 23 March 2004 Resolution denied the motion for reconsideration.
Respondents appealed to the Court of Appeals.
The Facts
On 3 June 2003, the Court of Appeals rendered its decision in favor of respondents. The dispositive portion of the decision
provides:
On 25 October 1994, at about 5:45 in the afternoon, petitioner Genaro M. Guillang (Genaro) was driving his brand new Toyota
Corolla GLI sedan with conduction sticker no. 54-DFT (car) along Emilio Aguinaldo Highway (highway) in Cavite. Genaro,
Antero Guillang (Antero), Felipe Jurilla, Jose Dignadice (Dignadice), and Alvin Llanillo (Llanillo) had all just left from Golden IN VIEW OF ALL THE FOREGOING, the appealed decision is REVERSED and SET ASIDE. The complaint of the herein
City, Dasmariñas, Cavite, and were on their way to Manila. At the other side of the highway, respondent Rodolfo A. Bedania appellees in Civil Case No. 95-73666 is DISMISSED, for lack of merit. The appellants’ counterclaims in the instant case are
(Bedania) was driving a ten-wheeler Isuzu cargo truck with plate no. CAC-923 (truck) towards Tagaytay City. The truck was likewise DISMISSED. No pronouncement as to cost.
owned by respondent Rodolfo de Silva (de Silva).
SO ORDERED.7
Along the highway and the road leading to the Orchard Golf Course, Bedania negotiated a U-turn. When the truck entered the
opposite lane of the highway, Genaro’s car hit the right portion of the truck. The truck dragged Genaro’s car some five meters to
Petitioners filed a motion for reconsideration. On 23 March 2004, the Court of Appeals denied the motion.
the right of the road.

As a consequence, all the passengers of the car were rushed to the De La Salle University Medical Center in Dasmariñas, Cavite
for treatment. Because of severe injuries, Antero was later transferred to the Philippine General Hospital. However, on 3
November 1994, Antero died due to the injuries he sustained from the collision. The car was a total wreck while the truck
sustained minor damage.
On 24 April 1995, petitioners Genaro, Llanillo, Dignadice, and the heirs of Antero5 instituted a complaint for damages based on
quasi-delict against respondents Bedania and de Silva.
On 5 December 2000, the trial court rendered a decision in favor of petitioners. The trial court found Bedania grossly negligent
for recklessly maneuvering the truck by making a sudden U-turn in the highway without due regard to traffic rules and the safety
of other motorists. The trial court also declared de Silva grossly negligent in the selection and supervision of his driver, Bedania.
The dispositive portion of the decision provides:
WHEREFORE, judgment is hereby rendered ordering defendants Rodolfo A. Bedania and Rodolfo de Silva, jointly and
severally, to pay plaintiffs, as follows:
Hence, this petition.
The Ruling of the Regional Trial Court
According to the trial court, there is a presumption that a person driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation.8 In this case, the trial court found that the Traffic Accident Investigation Report
(report),9 corroborated by the testimonies of the witnesses, showed that the truck committed a traffic violation by executing a U-
turn without signal lights. The trial court also declared that Bedania violated Sections 45(b), 10 48,11 and 5412 of Republic Act No.
413613 when he executed the sudden U-turn. The trial court added that Bedania violated another traffic rule when he abandoned
the victims after the collision.14 The trial court concluded that Bedania was grossly negligent in his driving and held him liable
for damages.
Moreover, the trial court found that Bedania did not make the U-turn at an intersection. According to the trial court, vehicles
trying to maneuver to change directions must seek an intersection where it is safer to maneuver and not recklessly make a U-turn
in a highway. The trial court said Bedania should have observed extreme caution in making a U-turn because it was unexpected
that a long cargo truck would execute a U-turn along the highway.

1. The sum of ₱508,566.03 representing the damage/repair costs of the Toyota to plaintiff Genaro M. Guillang.

Page 25 of 45 TORTS MEETING 3

The trial court also said that Bedania’s gross negligence raised the legal presumption that de Silva, as Bedania’s employer, was
negligent in the selection and supervision of his employees. The trial court said that, under Articles 217615 and 218016 of the
Civil Code, de Silva’s liability was based on culpa aquiliana which holds the employer primarily liable for tortious acts of his
employees, subject to the defense that he exercised all the diligence of a good father of a family in the selection and supervision
of his employees. The trial court ruled that de Silva failed to prove this defense and, consequently, held him liable for damages.
The Ruling of the Court of Appeals
The Court of Appeals reversed the trial court’s decision and said that the trial court overlooked substantial facts and
circumstances which, if properly considered, would justify a different conclusion and alter the results of the case.
The Court of Appeals dismissed the testimonies of the witnesses and declared that they were "contrary to human observation,
knowledge and experience." The Court of Appeals also said that the following were the physical evidences in the case:
1. It was not yet dark when the incident transpired;
2. The four-lane highway the appellees were cruising on was wide, straight, dry, relatively plain and with no obstructions to
the driver’s vision;
3. The point of impact of the collision is on the lane where the car was cruising and the car hit the gas tank of the truck
located at its right middle portion, which indicates that the truck had already properly positioned itself and had already
executed the U-turn before the impact occurred;
4. Genaro Guillang was not able to stop the car in time and the car’s front portion was totally wrecked. This negates
appellees’ contention that they were traveling at a moderate speed; and
5. The sheer size of the truck makes it improbable for the said vehicle to negotiate a U-turn at a sudden and fast speed – as
appellees vigorously suggest – without toppling over on its side.17 (Citations omitted)
The Court of Appeals concluded that the collision was caused by Genaro’s negligence. The Court of Appeals declared that the
truck arrived at the intersection way ahead of the car and had already executed the U-turn when the car, traveling at a fast speed,
hit the truck’s side. The Court of Appeals added that considering the time and the favorable visibility of the road and the road
conditions, Genaro, if he was alert, had ample time to react to the changing conditions of the road. The Court of Appeals found
no reason for Genaro not to be prudent because he was approaching an intersection and there was a great possibility that vehicles
would be traversing the intersection either going to or from Orchard Golf Course. The Court of Appeals said Genaro should have
slowed down upon reaching the intersection. The Court of Appeals concluded that Genaro’s failure to observe the necessary
precautions was the proximate cause of Antero’s death and the injuries of the petitioners.
The Court of Appeals also relied on the testimony of Police Traffic Investigator Efren Videna (Videna) that the car was running
at a fast speed and overtook another vehicle just before the collision occurred.18 The Court of Appeals concluded that Genaro did
not see the truck as the other vehicle temporarily blocked his view of the intersection. The Court of Appeals also gave weight to
Videna’s testimony that it was normal for a ten-wheeler truck to make a U-turn on that part of the highway because the entrance
to Orchard Golf Course was spacious.19
The Issues
Petitioners raise the following issues:
1. Did the Court of Appeals decide a question of substance in this case in a way probably not in accord with law or with the
applicable decisions of the Honorable Supreme Court?
Page 26 of 45 TORTS MEETING 3
2. Did the Court of Appeals depart from the accepted and usual course of judicial proceedings particularly when it revised,
and recast the findings of facts of the trial court pertaining to credibility of witnesses of which the trial court was at the
vantage point to evaluate?
3. Did the Court of Appeals act with grave abuse of discretion amounting to lack of jurisdiction when it rendered the
palpably questionable Court of Appeals’ Decision that tampered with the findings of fact of the trial court for no justifiable
reason?
4. Is the Court of Appeals’ judgment and resolution reversing the decision of the trial court supported by the evidence and
the law and jurisprudence applicable?20
The issue in this case is who is liable for the damages suffered by petitioners. The trial court held Bedania and de Silva, as
Bedania’s employer, liable because the proximate cause of the collision was the sudden U-turn executed by Bedania without any
signal lights. On the other hand, the Court of Appeals reversed the trial court’s decision and held Genaro liable because the
proximate cause of the collision was Genaro’s failure to stop the car despite seeing that Bedania was making a U-turn.
The Ruling of the Court
The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal by certiorari under Rule 45 of the
Rules of Court, only questions of law may be raised. The resolution of factual issues is the function of the lower courts whose
findings on these matters are received with respect and are, as a rule, binding on this Court. 21
However, this rule is subject to certain exceptions. One of these is when the findings of the appellate court are contrary to those
of the trial court.22 Findings of fact of the trial court and the Court of Appeals may also be set aside when such findings are not
supported by the evidence or where the lower courts’ conclusions are based on a misapprehension of facts.23 Such is the situation
in this case and we shall re-examine the facts and evidence presented before the lower courts.
Article 2176 of the Civil Code provides that 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 relations
between the parties, is called a quasi-delict. To sustain a claim based on quasi-delict, the following requisites must concur: (a)
damage suffered by the plaintiff; (b) fault or negligence of defendant; and (c) connection of cause and effect between the fault or
negligence of defendant and the damage incurred by the plaintiff. 24
There is no dispute that petitioners suffered damages because of the collision. However, the issues on negligence and proximate
cause are disputed.
On the Presumption of Negligence and Proximate Cause
Negligence is defined as 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. In Picart v. Smith,25 we held that
the test of negligence is whether the defendant in doing the alleged negligent act used that reasonable care and caution which an
ordinary person would have used in the same situation.
The conclusion of the Court of Appeals that Genaro was negligent is not supported by the evidence on record. In ruling that
Genaro was negligent, the Court of Appeals gave weight and credence to Videna’s testimony. However, we find that Videna’s
testimony was inconsistent with the police records and report that he made on the day of the collision. First, Videna testified that
the car was running fast and overtook another vehicle that already gave way to the truck. 26 But this was not indicated in either
the report or the police records. Moreover, if the car was speeding, there should have been skid marks on the road when Genaro
stepped on the brakes to avoid the collision. But the sketch of the accident showed no skid marks made by the car. 27 Second,
Videna testified that the petitioners came from a drinking spree because he was able to smell liquor. 28 But in the report,29 Videna
indicated that the condition of Genaro was "normal." Videna did not indicate in the report that Genaro "had been drinking
liquor" or that Genaro "was obviously drunk." Third, Videna testified that when he arrived at the scene, Bedania was inside his
truck.30This contradicts the police records where Videna stated that after the collision Bedania escaped and abandoned the
victims.31 The police records also showed that Bedania was arrested by the police at his barracks in Anabu, Imus, Cavite and was
turned over to the police only on 26 October 1994.32
Under Article 2185 of the Civil Code, unless there is proof to the contrary, a person driving a vehicle is presumed negligent if at
the time of the mishap, he was violating any traffic regulation.
According to prevailing jurisprudence, civil indemnity for death caused by a quasi-delict is pegged at ₱50,000.41Moral damages
in the amount of ₱50,000 is also awarded to the heirs of the deceased taking into consideration the pain and anguish they
suffered.42 Bienvenido Guillang (Bienvenido), Antero’s son, testified that Sofia, Antero’s wife and his mother, became depressed
after Antero’s death and that Sofia died a year after.43 Bienvenido also testified on the pain and anguish their family suffered as a
consequence of their father’s death.44 We sustain the trial court’s award of ₱50,000 as indemnity for death and ₱50,000 as moral
damages to the heirs of Antero.

As to funeral and burial expenses, the court can only award such amount as are supported by proper receipts. 45 In this case,
In this case, the report33 showed that the truck, while making the U-turn, failed to signal, a violation of traffic rules. The police
petitioners proved funeral and burial expenses of ₱55,000 as evidenced by Receipt No. 1082, 46 ₱65,000 as evidenced by Receipt
records also stated that, after the collision, Bedania escaped and abandoned the petitioners and his truck. 34 This is another
No. 114647 and ₱15,000 as evidenced by Receipt No. 1064,48 all issued by the Manila South Cemetery Association, Inc.,
violation of a traffic regulation.35 Therefore, the presumption arises that Bedania was negligent at the time of the mishap.
aggregating ₱135,000. We reduce the trial court’s award of funeral and burial expenses from ₱185,000 to ₱135,000.

The evidence presented in this case also does not support the conclusion of the Court of Appeals that the truck had already
As to hospitalization expenses, only substantiated and proven expenses, or those that appear to have been genuinely incurred in
executed the U-turn before the impact occurred. If the truck had fully made the U-turn, it should have been hit on its rear.36 If the
connection with the hospitalization of the victims will be recognized in court. 49 In this case, the trial court did not specify the
truck had already negotiated even half of the turn and is almost on the other side of the highway, then the truck should have been
amount of hospitalization expenses to be awarded to the petitioners. Since petitioners presented receipts for hospitalization
hit in the middle portion of the trailer or cargo compartment. But the evidence clearly shows, and the Court of Appeals even
expenses during the trial, we will determine the proper amounts to be awarded to each of them. We award hospitalization
declared, that the car hit the truck’s gas tank, located at the truck’s right middle portion, which disproves the conclusion of the
expenses of ₱27,000.98 to the heirs of Antero,50 ₱10,881.60 to Llanillo,51 ₱5,436.77 to Dignadice,52 and ₱300 to
Court of Appeals that the truck had already executed the U-turn when it was hit by the car.
Genaro53 because these are the amounts duly substantiated by receipts.

Moreover, the Court of Appeals said that the point of impact was on the lane where the car was cruising. Therefore, the car had
We affirm the trial court’s award of ₱508,566.03 for the repair of the car. The Court notes that there is no dispute that Genaro
every right to be on that road and the car had the right of way over the truck that was making a U-turn. Clearly, the truck
was driving a brand new Toyota Corolla GLI sedan and that, after the collision, the car was a total wreck. In this case, the repair
encroached upon the car’s lane when it suddenly made the U-turn.
order presented by Genaro is sufficient proof of the damages sustained by the car.541avvphi1.zw+

The Court of Appeals also concluded that Bedania made the U-turn at an intersection. Again, this is not supported by the
Moral damages may be recovered in quasi-delicts causing physical injuries.55 However, in accordance with prevailing
evidence on record. The police sketch37 does not indicate an intersection and only shows that there was a road leading to the
jurisprudence, we reduce the award of moral damages from ₱50,000 to ₱30,000 each to Llanillo, Dignadice, and Genaro since
Orchard Golf Course near the place of the collision. Furthermore, U-turns are generally not advisable particularly on major
they only suffered physical injuries brought about by the collision.56
streets.38 Contrary to Videna’s testimony, it is not normal for a truck to make a U-turn on a highway. We agree with the trial
court that if Bedania wanted to change direction, he should seek an intersection where it is safer to maneuver the truck. Bedania
should have also turned on his signal lights and made sure that the highway was clear of vehicles from the opposite direction In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. 57 While the amount of
before executing the U-turn. exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages
before the court may consider the question of whether or not exemplary damages should be awarded. 58 In this case, Bedania was
grossly negligent in suddenly making a U-turn in the highway without signal lights. To serve as an example for the public good,
The finding of the Court of Appeals that it was not yet dark when the collision occurred is also not supported by the evidence on
we affirm the trial court’s award of exemplary damages in the amount of ₱50,000.
record. The report stated that the daylight condition at the time of the collision was "darkness." 39

Finally, we affirm the trial court’s award of attorney’s fees in the amount of ₱100,000. Under Article 2208 of the Civil Code,
Contrary to the conclusion of the Court of Appeals, the sheer size of the truck does not make it improbable for the truck to
attorney’s fees may be recovered when, as in this case, exemplary damages are awarded.
execute a sudden U-turn. The trial court’s decision did not state that the truck was traveling at a fast speed when it made the U-
turn. The trial court said the truck made a "sudden" U-turn, meaning the U-turn was made unexpectedly and with no warning, as
shown by the fact that the truck’s signal lights were not turned on. WHEREFORE, we REVERSE the 3 June 2003 Decision and 23 March 2004 Resolution of the Court of Appeals in CA-G.R.
CV No. 69289. We REINSTATE with MODIFICATIONS the 5 December 2000 Decision of the Regional Trial Court, Branch
30, Manila. We ORDER Rodolfo Bedania and Rodolfo de Silva, jointly and severally, to pay the following amounts:
Clearly, Bedania’s negligence was the proximate cause of the collision which claimed the life of Antero and injured the
petitioners. Proximate cause is that which, in the natural and continuous sequence, unbroken by any efficient, intervening cause,
produces the injury, and without which the result would not have occurred. 40 The cause of the collision is traceable to the 1. Funeral and Burial Expenses of ₱135,000 to the heirs of Antero Guillang;
negligent act of Bedania for if the U-turn was executed with the proper precaution, the mishap in all probability would not have
happened. The sudden U-turn of the truck without signal lights posed a serious risk to oncoming motorists. Bedania failed to
2. Hospitalization Expenses of ₱27,000.98 to the heirs of Antero Guillang, ₱10,881.60 to Alvin Llanillo, ₱5,436.77 to Jose
prevent or minimize that risk. The truck’s sudden U-turn triggered a series of events that led to the collision and, ultimately, to
Dignadice, and ₱300 to Genaro Guillang; and
the death of Antero and the injuries of petitioners.

3. Moral damages of ₱30,000 each to Alvin Llanillo, Jose Dignadice, and Genaro Guillang.
We agree with the trial court that de Silva, as Bedania’s employer, is also liable for the damages suffered by petitioners. De Silva
failed to prove that he exercised all the diligence of a good father of a family in the selection and supervision of his employees.
SO ORDERED.
On the Award of Damages and Attorney’s Fees

Page 27 of 45 TORTS MEETING 3

TORTS 31
G.R. No. 173180 August 24, 2011
ALBERT TISON and CLAUDIO L. JABON, Petitioners,
vs.
SPS. GREGORIO POMASIN and CONSORCIA PONCE POMASIN, DIANNE POMASIN PAGUNSAN, CYNTHIA
POMASIN, SONIA PEROL, ANTONIO SESISTA, GINA SESISTA, and REYNALDO SESISTA, Respondents.
DECISION
PEREZ, J.:
Two vehicles, a tractor-trailer and a jitney,1 figured in a vehicular mishap along Maharlika Highway in Barangay Agos,
Polangui, Albay last 12 August 1994. Laarni Pomasin (Laarni) was driving the jitney towards the direction of Legaspi City while
the tractor-trailer, driven by Claudio Jabon (Jabon), was traversing the opposite lane going towards Naga City.2
The opposing parties gave two different versions of the incident.
Gregorio Pomasin (Gregorio), Laarni’s father, was on board the jitney and seated on the passenger’s side. He testified that while
the jitney was passing through a curve going downward, he saw a tractor-trailer coming from the opposite direction and
encroaching on the jitney’s lane. The jitney was hit by the tractor-trailer and it was dragged further causing death and injuries to
its passengers.3
On the other hand, Jabon recounted that while he was driving the tractor-trailer, he noticed a jitney on the opposite lane falling
off the shoulder of the road. Thereafter, it began running in a zigzag manner and heading towards the direction of the truck. To
avoid collision, Jabon immediately swerved the tractor-trailer to the right where it hit a tree and sacks of palay. Unfortunately,
the jitney still hit the left fender of the tractor-trailer before it was thrown a few meters away. The tractor-trailer was likewise
damaged.4
Multiple death and injuries to those in the jitney resulted.
Gregorio was injured and brought to the Albay Provincial Hospital in Legaspi City. His daughter, Andrea Pomasin Pagunsan,
sister Narcisa Pomasin Roncales and Abraham Dionisio Perol died on the spot. His other daughter Laarni, the jitney driver, and
granddaughter Annie Jane Pomasin Pagunsan expired at the hospital. His wife, Consorcia Pomasin, another granddaughter
Dianne Pomasin Pagunsan, Ricky Ponce, Vicente Pomasin, Gina Sesista, Reynaldo Sesista, Antonio Sesista and Sonia Perol
sustained injuries.5 On the other hand, Jabon and one of the passengers in the tractor-trailer were injured.6
Albert Tison (Tison), the owner of the truck, extended financial assistance to respondents by giving them ₱1,000.00 each
immediately after the accident and ₱200,000.00 to Cynthia Pomasin (Cynthia), one of Gregorio’s daughters. Cynthia, in turn,
executed an Affidavit of Desistance.
On 14 November 1994, respondents filed a complaint for damages against petitioners before the Regional Trial Court (RTC) of
Antipolo. They alleged that the proximate cause of the accident was the negligence, imprudence and carelessness of petitioners.
Respondents prayed for indemnification for the heirs of those who perished in the accident at ₱50,000.00 each; ₱500,000.00 for
hospitalization, medical and burial expenses; ₱350,000.00 for continuous hospitalization and medical expenses of Spouses
Pomasin; ₱1,000,000.00 as moral damages; ₱250,000.00 as exemplary damages; ₱30,000.00 for loss of income of Cynthia;
₱100,000.00 as attorney’s fees plus ₱1,000.00 per court appearance; ₱50,000.00 for litigation expenses; and cost of suit. 7
In their Answer, petitioners countered that it was Laarni’s negligence which proximately caused the accident. They further
claimed that Cynthia was authorized by Spouses Pomasin to enter into an amicable settlement by executing an Affidavit of
Page 28 of 45 TORTS MEETING 3
Desistance. Notwithstanding the affidavit, petitioners complained that respondents filed the instant complaint to harass them and
profit from the recklessness of Laarni. Petitioners counterclaimed for damages.
Petitioners subsequently filed a motion to dismiss the complaint in view of the Affidavit of Desistance executed by Cynthia. The
motion was denied for lack of merit.8
On 7 February 2000, the Regional Trial Court rendered judgment in favor of petitioners dismissing the complaint for damages,
the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the defendants and against plaintiffs hereby DISMISSING the instant
complaint considering that plaintiffs have authorized Cynthia Pomasin to settle the case amicably for ₱200,000.00; and that the
proximate cause of the accident did not arise from the fault or negligence of defendants’ driver/employee but from plaintiff’s
driver.9
The trial court considered the testimony of Jabon regarding the incident more convincing and reliable than that of Gregorio’s, a
mere passenger, whose observation and attention to the road is not as focused as that of the driver. The trial court concluded that
Laarni caused the collision of the jitney and the tractor-trailer. The trial court likewise upheld the Affidavit of Desistance as
having been executed with the tacit consent of respondents.
The Court of Appeals disagreed with the trial court and ruled that the reckless driving of Jabon caused the vehicular collision. In
support of such finding, the Court of Appeals relied heavily on Gregorio’s testimony that Jabon was driving the tractor-trailer
downward too fast and it encroached the lane of the jitney. Based on the gravity of the impact and the damage caused to the
jitney resulting in the death of some passengers, the Court of Appeals inferred that Jabon must be speeding. The appellate court
noted that the restriction in Jabon’s driver’s license was violated, thus, giving rise to the presumption that he was negligent at the
time of the accident. Tison was likewise held liable for damages for his failure to prove due diligence in supervising Jabon after
he was hired as driver of the truck. Finally, the appellate court disregarded the Affidavit of Desistance executed by Cynthia
because the latter had no written power of attorney from respondents and that she was so confused at the time when she signed
the affidavit that she did not read its content.
The dispositive portion of the assailed Decision states:
WHEREFORE, the present appeal is granted, and the trial court’s Decision dated February 7, 2003 is set aside. Defendants-
appellees are ordered to pay plaintiffs-appellants or their heirs the following:
a) Actual damages of ₱136,000.00 as above computed, to be offset with the ₱200,000.00 received by plaintiff-
appellant Cynthia Pomasin;
b) Civil indemnity of ₱50,000.00 for the death of each victim, to be offset with the balance of ₱64,000.00 from the
aforementioned ₱200,000.00 of civil indemnity received by plaintiff-appellant Cynthia Pomasin. Hence, the net
amount is computed at ₱37,200.00 each, as follows:
Narcisa Pomasin ₱37,200.00
Laarni Pomasin ₱37,200.00
Andrea P. Pagunsan ₱37,200.00
Dionisio Perol ₱37,200.00
Annie Jane P. Pagunsan ₱37,200.00
 c) Moral damages of ₱50,000.00 to each of the victims; and
d) Attorney’s fees of 10% of the total award.10
Petitioners filed a Motion for Reconsideration, which was, however, denied by the Court of Appeals in a Resolution 11dated 19
July 2006.
The petition for review raises mixed questions of fact and law which lead back to the very issue litigated by the trial court: Who
is the negligent party or the party at fault?
The issue of negligence is factual in nature.12 And the rule, and the exceptions, is that factual findings of the Court of Appeals
are generally conclusive but may be reviewed when: (1) the factual findings of the Court of Appeals and the trial court are
contradictory; (2) the findings are grounded entirely on speculation, surmises or conjectures; (3) the inference made by the Court
of Appeals from its findings of fact is manifestly mistaken, absurd or impossible; (4) there is grave abuse of discretion in the
appreciation of facts; (5) the appellate court, in making its findings, goes beyond the issues of the case and such findings are
contrary to the admissions of both appellant and appellee; (6) the judgment of the Court of Appeals is premised on a
misapprehension of facts; (7) the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify
a different conclusion; and (8) the findings of fact of the Court of Appeals are contrary to those of the trial court or are mere
conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by respondent, or
where the findings of fact of the Court of Appeals are premised on the absence of evidence but are contradicted by the evidence
on record.13
The exceptions to the rule underscore the substance and weight of the findings of the trial court. They render inconclusive
contrary findings by the appellate court. The reason is now a fundamental principle:
[A]ppellate courts do not disturb the findings of the trial courts with regard to the assessment of the credibility of witnesses. The
reason for this is that trial courts have the ‘unique opportunity to observe the witneses first hand and note their demeanor,
conduct and attitude under grilling examination.
The exceptions to this rule are when the trial court’s findings of facts and conclusions are not supported by the evidence on
record, or when certain facts of substance and value, likely to change the outcome of the case, have been overlooked by the trial
court, or when the assailed decision is based on a misapprehension of facts. 14
This interplay of rules and exceptions is more pronounced in this case of quasi-delict in which, according to Article 2176 of the
Civil Code, whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. To sustain a claim based on quasi-delict, the following requisites must concur: (a) damage suffered by the
plaintiff; (b) fault or negligence of defendant; and (c) connection of cause and effect between the fault or negligence of
defendant and the damage incurred by the plaintiff.15 These requisites must be proved by a preponderance of evidence. 16 The
claimants, respondents in this case, must, therefore, establish their claim or cause of action by preponderance of evidence,
evidence which is of greater weight, or more convincing than that which is offered in opposition to it.17
The trial court found that the jitney driver was negligent. We give weight to this finding greater than the opposite conclusion
reached by the appellate court that the driver of the tractor-trailer caused the vehicular collision.
One reason why the trial court found credible the version of Jabon was because his concentration as driver is more focused than
that of a mere passenger. The trial court expounded, thus:
In the appreciation of the testimony of eye-witnesses, one overriding consideration is their opportunity for observation in getting
to know or actually seeing or observing the matter they testify to. This most particularly holds true in vehicular collision or
accident cases which oftentimes happen merely momentarily or in the split of a second. In the case of a running or travelling
vehicle, especially in highway travel which doubtless involves faster speed than in ordinary roads, the driver is concentrated on
his driving continuously from moment to moment even in long trips. While in the case of a mere passenger, he does not have to
Page 29 of 45 TORTS MEETING 3
direct his attention to the safe conduct of the travelling vehicle, as in fact he may converse with other passengers and pay no
attention to the driving or safe conduct of the travelling vehicle, as he may even doze off to sleep if he wants to, rendering his
opportunity for observation on the precise cause of the accident or collision or immediately preceding thereto not as much as that
of the driver whose attention is continuously focused on his driving. So that as between the respective versions of the plaintiffs
thru their passenger and that of the defendants thru their driver as to the cause or antecedent causes that led to the vehicular
collision in this case, the version of the driver of defendant should ordinarily be more reliable than the version of a mere
passenger of Plaintiffs’ vehicle, simply because the attention of the passenger is not as much concentrated on the driving as that
of the driver, consequently the capacity for observation of the latter of the latter on the matter testified to which is the precise
point of inquiry --- the proximate cause of the accident --- is more reasonably reliable. Moreover, the passenger’s vision is not as
good as that of the driver from the vantage point of the driver’s seat especially in nighttime, thus rendering a passenger’s
opportunity for observation on the antecedent causes of the collision lesser than that of the driver. This being so, this Court is
more inclined to believe the story of defendant’s driver Claudio Jabon that the jitney driven by Laarni Pomasin fell off the
shoulder of the curved road causing it to run thereafter in a zigzag manner and in the process the two vehicles approaching each
other from opposite directions at highway speed came in contact with each other, the zigzagging jeep hitting the left fender of
the truck all the way to the fuel tank, the violent impact resulting in the lighter vehicle, the jitney, being thrown away due to the
disparate size of the truck.18
The appellate court labelled the trial court’s rationalization as a "sweeping conjecture"19 and countered that Gregorio was
actually occupying the front seat of the jitney and had actually a clear view of the incident despite the fact that he was not
driving.
While it is logical that a driver’s attention to the road travelled is keener than that of a mere passenger, it should also be
considered that the logic will hold only if the two are similarly circumstanced, and only as a general rule, so that, it does not
necessarily follow that between the opposing testimonies of a driver and a passenger, the former is more credible. The factual
setting of the event testified on must certainly be considered.
The trial court did just that in the instant case. Contrary to the observation of the Court of Appeals, the relative positions of a
driver and a passenger in a vehicle was not the only basis of analysis of the trial court. Notably, aside from Jabon’s alleged
vantage point to clearly observe the incident, the trial court also took into consideration Gregorio’s admission that prior to the
accident, the jitney was running on the "curving and downward" portion of the highway. The appellate court, however, took into
account the other and opposite testimony of Gregorio that it was their jitney that was going uphill and when it was about to reach
a curve, he saw the incoming truck running very fast and encroaching the jitney’s lane.
We perused the transcript of stenographic notes and found that the truck was actually ascending the highway when it collided
with the descending jitney.
During the direct examination, Jabon narrated that the tractor-trailer was ascending at a speed of 35 to 40 kilometers per hour
when he saw the jitney on the opposite lane running in a zigzag manner, thus:
Q: Now, when you passed by the municipality of Polangui, Albay at about 5:00 of August 12, 1994, could you tell the Court if
there was any untoward incident that happened?
A: There was sir.
Q: Could you please tell the Court?
A: While on my way to Liboro coming from Sorsogon, I met on my way a vehicle going on a zigzag direction and it even fell on
the shoulder and proceeded going on its way on a zigzag direction.
Q: Could you describe to the Court what was the kind of vehicle you saw running in zigzag direction?
A: A Toyota-jitney loaded with passengers with top-load.
Q: You said that the top[-]load of the jeep is loaded? Significantly, this is a confirmation of the testimony of Jabon.

A: Yes, sir. However, on rebuttal, Gregorio turned around and stated that the jitney was going uphill when he saw the tractor-trailer running
down very fact and encroaching on their lane, to wit:
Q: Could you please tell the Court what was your speed at the time when you saw that jeepney with top[-]load running on a
zigzag manner? Q: Mr. Claudio Jabon, the driver of the trailer truck that collided with your owner jeepney that you were riding testified in open
Court on July 24, 1997 which I quote, ‘while on my way to Liboro coming to Sorsogon I met a vehicle going on a zig-zag
direction and it even fell on the shoulder and proceeded going on its way on zig-zag direction’, what can you say about this
A: I was running 35 to 40 kilometers per hour because I was ascending plain. (Emphasis supplied).20
statement of this witness?

In that same direct examination, Jabon confirmed that he was ascending, viz:
A: We were no[t] zigzagging but because we were going uphill and about to reach a curved (sic) we saw the on-coming vehicle
going down very fast and encroaching on our lane so our driver swerved our vehicle to the right but still we were hit by the on-
Q: Could you please describe the condition in the area at the time of the incident, was it dark or day time? coming vehicle.23 (Emphasis supplied).

A: It was still bright. The declaration of Jabon with respect to the road condition was straightforward and consistent.1awp The recollection of
Gregorio veered from "curving and downward" to uphill.24 On this point, Jabon and his testimony is more credible.
COURT: But it was not approaching sunset?
The fact that the jitney easily fell into the road shoulder, an undebated fact, supports the trial court’s conclusion that the jitney
was indeed going downhill which, it may be repeated, was the original testimony of Gregorio that the road was "curving and
A: Yes, sir.
downward."25 It is this conclusion, prodded by the inconsistency of Gregorio’s testimony, that gives credence to the further
testimony of Jabon that the herein respondent’s jitney, "loaded with passengers with top-load" "was running in a zigzag
Q: Was there any rain at that time? manner."26

A: None sir. Going downward, the jitney had the tendency to accelerate. The fall into the shoulder of the road can result in the loss of control
of the jitney, which explains why it was running in a zigzag manner before it hit the tractor-trailer.
Q: So the road was dry?
There was no showing that the tractor-trailer was speeding. There is a preponderance of evidence that the tractor-trailer was in
fact ascending. Considering its size and the weight of the tractor-trailer, its speed could not be more than that of a fully loaded
A: Yes sir. jitney which was running downhill in a zigzagging manner.

Q: You said you were ascending towards the direction of Liboro, Camarines Sur, is that correct at the time the incident Neither can it be inferred that Jabon was negligent. In hindsight, it can be argued that Jabon should have swerved to the right
happened? upon seeing the jitney zigzagging before it collided with the tractor-trailer. Accidents, though, happen in an instant, and,
understandably in this case, leaving the driver without sufficient time and space to maneuver a vehicle the size of a tractor-trailer
A: Yes sir.21 (Emphasis supplied). uphill and away from collision with the jitney oncoming downhill.

Upon the other hand, Gregorio, during his direct examination described the road condition where the collision took place as
"curving and downward," thus:
Q: Could you please describe the place where the incident happened in so far as the road condition is concerned?
A: The road was curving and downward.
Clearly, the negligence of Gregorio’s daughter, Laarni was the proximate cause of the accident.
We did not lose sight of the fact that at the time of the incident, Jabon was prohibited from driving the truck due to the restriction
imposed on his driver’s license, i.e., restriction code 2 and 3. As a matter of fact, Jabon even asked the Land Transportation
Office to reinstate his articulated license containing restriction code 8 which would allow him to drive a tractor-trailer. The Court
of Appeals concluded therefrom that Jabon was violating a traffic regulation at the time of the collision.

Driving without a proper license is a violation of traffic regulation. Under Article 2185 of the Civil Code, the legal presumption
Q: And the road was of course clear from traffic, is that correct? of negligence arises if at the time of the mishap, a person was violating any traffic regulation. However, in Sanitary Steam
Laundry, Inc. v. Court of Appeals,27 we held that a causal connection must exist between the injury received and the violation of
A: Yes sir. the traffic regulation. It must be proven that the violation of the traffic regulation was the proximate or legal cause of the injury
or that it substantially contributed thereto. Negligence, consisting in whole or in part, of violation of law, like any other
negligence, is without legal consequence unless it is a contributing cause of the injury.28 Likewise controlling is our ruling in
Q: And practically, your jitney was the only car running at that time? Añonuevo v. Court of Appeals29 where we reiterated that negligence per se, arising from the mere violation of a traffic statute,
need not be sufficient in itself in establishing liability for damages. In said case, Añonuevo, who was driving a car, did not
A: Yes sir.22 (Emphasis supplied). attempt "to establish a causal connection between the safety violations imputed to the injured cyclist, and the accident itself.
Instead, he relied on a putative presumption that these violations in themselves sufficiently established negligence appreciable

Page 30 of 45 TORTS MEETING 3

against the cyclist. Since the onus on Añonuevo is to conclusively prove the link between the violations and the accident, we can
deem him as having failed to discharge his necessary burden of proving the cyclist’s own liability."30 We took the occasion to
state that:

The rule on negligence per se must admit qualifications that may arise from the logical consequences of the facts leading to the
mishap. The doctrine (and Article 2185, for that matter) is undeniably useful as a judicial guide in adjudging liability, for it seeks
to impute culpability arising from the failure of the actor to perform up to a standard established by a legal fiat. But the doctrine
should not be rendered inflexible so as to deny relief when in fact there is no causal relation between the statutory violation and
the injury sustained. Presumptions in law, while convenient, are not intractable so as to forbid rebuttal rooted in fact. After all,
tort law is remunerative in spirit, aiming to provide compensation for the harm suffered by those whose interests have been
invaded owing to the conduct of other.31

In the instant case, no causal connection was established between the tractor-trailer driver’s restrictions on his license to the
vehicular collision. Furthermore, Jabon was able to sufficiently explain that the Land Transportation Office merely erred in not
including restriction code 8 in his license.

Petitioners presented the Affidavit of Desistance executed by Cynthia to exonerate them from any liability. An affidavit of
desistance is usually frowned upon by courts. Little or no persuasive value is often attached to a desistance. 32 The subject
affidavit does not deserve a second look more so that it appears that Cynthia was not armed with a special power of attorney to
enter into a settlement with petitioners. At any rate, it is an exercise of futility to delve into the effects of the affidavit of
desistance executed by one of the respondents since it has already been established that petitioners are not negligent.

WHEREFORE, the petition is GRANTED. The challenged Decision and Resolution of the Court of Appeals are REVERSED
and SET ASIDE. Civil Case No. 94-3418 lodged before the Regional Trial Court of Antipolo City, Branch 74, is DISMISSED
for lack of merit.

SO ORDERED.

Page 31 of 45 TORTS MEETING 3

TORTS 32 After the termination of the pre-trial proceedings, trial ensued. Malayan Insurance presented the testimony of its lone witness, a
motor car claim adjuster, who attested that he processed the insurance claim of the assured and verified the documents submitted
to him. Respondents, on the other hand, failed to present any evidence.
G.R. No. 194320 February 1, 2012

In its Decision dated February 2, 2009, the trial court, in Civil Case No. 99-95885, ruled in favor of Malayan Insurance and
MALAYAN INSURANCE CO., INC., Petitioner,
declared respondents liable for damages. The dispositive portion reads:
vs.
RODELIO ALBERTO and ENRICO ALBERTO REYES, Respondents.
WHEREFORE, judgment is hereby rendered in favor of the plaintiff against defendants jointly and severally to pay plaintiff the
following:
DECISION

1. The amount of P700,000.00 with legal interest from the time of the filing of the complaint;
VELASCO, JR., J.:

2. Attorney’s fees of P10,000.00 and;

The Case

3. Cost of suit.
Before Us is a Petition for Review on Certiorari under Rule 45, seeking to reverse and set aside the July 28, 2010 Decision 1 of
the Court of Appeals (CA) and its October 29, 2010 Resolution2 denying the motion for reconsideration filed by petitioner
Malayan Insurance Co., Inc. (Malayan Insurance). The July 28, 2010 CA Decision reversed and set aside the Decision3 dated SO ORDERED.9
February 2, 2009 of the Regional Trial Court, Branch 51 in Manila.
Dissatisfied, respondents filed an appeal with the CA, docketed as CA-G.R. CV No. 93112. In its Decision dated July 28, 2010,
The Facts the CA reversed and set aside the Decision of the trial court and ruled in favor of respondents, disposing:

At around 5 o’clock in the morning of December 17, 1995, an accident occurred at the corner of EDSA and Ayala Avenue,
Makati City, involving four (4) vehicles, to wit: (1) a Nissan Bus operated by Aladdin Transit with plate number NYS 381; (2)
an Isuzu Tanker with plate number PLR 684; (3) a Fuzo Cargo Truck with plate number PDL 297; and (4) a Mitsubishi Galant
with plate number TLM 732.4
WHEREFORE, the foregoing considered, the instant appeal is hereby GRANTED and the assailed Decision dated 2 February
2009 REVERSED and SET ASIDE. The Complaint dated 18 October 1999 is hereby DISMISSED for lack of merit. No costs.
SO ORDERED.10

Based on the Police Report issued by the on-the-spot investigator, Senior Police Officer 1 Alfredo M. Dungga (SPO1 Dungga),
The CA held that the evidence on record has failed to establish not only negligence on the part of respondents, but also
the Isuzu Tanker was in front of the Mitsubishi Galant with the Nissan Bus on their right side shortly before the vehicular
compliance with the other requisites and the consequent right of Malayan Insurance to subrogation. 11 It noted that the police
incident. All three (3) vehicles were at a halt along EDSA facing the south direction when the Fuzo Cargo Truck simultaneously
report, which has been made part of the records of the trial court, was not properly identified by the police officer who conducted
bumped the rear portion of the Mitsubishi Galant and the rear left portion of the Nissan Bus. Due to the strong impact, these two
the on-the-spot investigation of the subject collision. It, thus, held that an appellate court, as a reviewing body, cannot rightly
vehicles were shoved forward and the front left portion of the Mitsubishi Galant rammed into the rear right portion of the Isuzu
appreciate firsthand the genuineness of an unverified and unidentified document, much less accord it evidentiary value.12
Tanker.5

Subsequently, Malayan Insurance filed its Motion for Reconsideration, arguing that a police report is a prima facie evidence of
Previously, particularly on December 15, 1994, Malayan Insurance issued Car Insurance Policy No. PV-025-00220 in favor of
the facts stated in it. And inasmuch as they never questioned the presentation of the report in evidence, respondents are deemed
First Malayan Leasing and Finance Corporation (the assured), insuring the aforementioned Mitsubishi Galant against third party
to have waived their right to question its authenticity and due execution. 13
liability, own damage and theft, among others. Having insured the vehicle against such risks, Malayan Insurance claimed in its
Complaint dated October 18, 1999 that it paid the damages sustained by the assured amounting to PhP 700,000. 6
In its Resolution dated October 29, 2010, the CA denied the motion for reconsideration. Hence, Malayan Insurance filed the
instant petition.
Maintaining that it has been subrogated to the rights and interests of the assured by operation of law upon its payment to the
latter, Malayan Insurance sent several demand letters to respondents Rodelio Alberto (Alberto) and Enrico Alberto Reyes
(Reyes), the registered owner and the driver, respectively, of the Fuzo Cargo Truck, requiring them to pay the amount it had paid The Issues
to the assured. When respondents refused to settle their liability, Malayan Insurance was constrained to file a complaint for
damages for gross negligence against respondents.7
In its Memorandum14 dated June 27, 2011, Malayan Insurance raises the following issues for Our consideration:

In their Answer, respondents asserted that they cannot be held liable for the vehicular accident, since its proximate cause was the
I WHETHER THE CA ERRED IN REFUSING ADMISSIBILITY OF THE POLICE REPORT SINCE THE POLICE
reckless driving of the Nissan Bus driver. They alleged that the speeding bus, coming from the service road of EDSA,
maneuvered its way towards the middle lane without due regard to Reyes’ right of way. When the Nissan Bus abruptly stopped, INVESTIGATOR WHO PREPARED THE SAME DID NOT ACTUALLY TESTIFY IN COURT THEREON.
Reyes stepped hard on the brakes but the braking action could not cope with the inertia and failed to gain sufficient traction. As a
consequence, the Fuzo Cargo Truck hit the rear end of the Mitsubishi Galant, which, in turn, hit the rear end of the vehicle in II WHETHER THE SUBROGATION OF MALAYAN INSURANCE IS IMPAIRED AND/OR DEFICIENT.
front of it. The Nissan Bus, on the other hand, sideswiped the Fuzo Cargo Truck, causing damage to the latter in the amount of
PhP 20,000. Respondents also controverted the results of the Police Report, asserting that it was based solely on the biased
narration of the Nissan Bus driver.8 On the other hand, respondents submit the following issues in its Memorandum15 dated July 7, 2011:

Page 32 of 45 TORTS MEETING 3

 I WHETHER THE CA IS CORRECT IN DISMISSING THE COMPLAINT FOR FAILURE OF MALAYAN
INSURANCE TO OVERCOME THE BURDEN OF PROOF REQUIRED TO ESTABLISH THE NEGLIGENCE OF
RESPONDENTS.
II WHETHER THE PIECES OF EVIDENCE PRESENTED BY MALAYAN INSURANCE ARE SUFFICIENT TO
CLAIM FOR THE AMOUNT OF DAMAGES.
III WHETHER THE SUBROGATION OF MALAYAN INSURANCE HAS PASSED COMPLIANCE AND REQUISITES
AS PROVIDED UNDER PERTINENT LAWS.
Essentially, the issues boil down to the following: (1) the admissibility of the police report; (2) the sufficiency of the evidence to
support a claim for gross negligence; and (3) the validity of subrogation in the instant case.
Our Ruling
The petition has merit.
Admissibility of the Police Report
Malayan Insurance contends that, even without the presentation of the police investigator who prepared the police report, said
report is still admissible in evidence, especially since respondents failed to make a timely objection to its presentation in
evidence.16 Respondents counter that since the police report was never confirmed by the investigating police officer, it cannot be
considered as part of the evidence on record.17
Indeed, under the rules of evidence, a witness can testify only to those facts which the witness knows of his or her personal
knowledge, that is, which are derived from the witness’ own perception. 18 Concomitantly, a witness may not testify on matters
which he or she merely learned from others either because said witness was told or read or heard those matters. 19 Such testimony
is considered hearsay and may not be received as proof of the truth of what the witness has learned. This is known as the hearsay
rule.20
As discussed in D.M. Consunji, Inc. v. CA,21 "Hearsay is not limited to oral testimony or statements; the general rule that
excludes hearsay as evidence applies to written, as well as oral statements."
22
There are several exceptions to the hearsay rule under the Rules of Court, among which are entries in official records. Section
44, Rule 130 provides:
Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated.
In Alvarez v. PICOP Resources,23 this Court reiterated the requisites for the admissibility in evidence, as an exception to the
hearsay rule of entries in official records, thus: (a) that the entry was made by a public officer or by another person specially
enjoined by law to do so; (b) that it was made by the public officer in the performance of his or her duties, or by such other
person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient
knowledge of the facts by him or her stated, which must have been acquired by the public officer or other person personally or
through official information.
Notably, the presentation of the police report itself is admissible as an exception to the hearsay rule even if the police
investigator who prepared it was not presented in court, as long as the above requisites could be adequately proved. 24
Page 33 of 45 TORTS MEETING 3
Here, there is no dispute that SPO1 Dungga, the on-the-spot investigator, prepared the report, and he did so in the performance
of his duty. However, what is not clear is whether SPO1 Dungga had sufficient personal knowledge of the facts contained in his
report. Thus, the third requisite is lacking.
Respondents failed to make a timely objection to the police report’s presentation in evidence; thus, they are deemed to have
waived their right to do so.25 As a result, the police report is still admissible in evidence.
Sufficiency of Evidence
Malayan Insurance contends that since Reyes, the driver of the Fuzo Cargo truck, bumped the rear of the Mitsubishi Galant, he is
presumed to be negligent unless proved otherwise. It further contends that respondents failed to present any evidence to overturn
the presumption of negligence.26 Contrarily, respondents claim that since Malayan Insurance did not present any witness who
shall affirm any negligent act of Reyes in driving the Fuzo Cargo truck before and after the incident, there is no evidence which
would show negligence on the part of respondents.27
We agree with Malayan Insurance. Even if We consider the inadmissibility of the police report in evidence, still, respondents
cannot evade liability by virtue of the res ipsa loquitur doctrine. The D.M. Consunji, Inc. case is quite elucidating:
Petitioner’s contention, however, loses relevance in the face of the application of res ipsa loquitur by the CA. The effect of the
doctrine is to warrant a presumption or inference that the mere fall of the elevator was a result of the person having charge of the
instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of
negligence.
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or injury will not generally
give rise to an inference or presumption that it was due to negligence on defendant’s part, under the doctrine of res ipsa loquitur,
which means, literally, the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for
itself, the facts or circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference of
negligence on the part of the defendant, or some other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of was under the control or
management of the defendant, and that the occurrence resulting in the injury was such as in the ordinary course of things would
not happen if those who had its control or management used proper care, there is sufficient evidence, or, as sometimes stated,
reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendant’s
want of care.
One of the theoretical bases for the doctrine is its necessity, i.e., that necessary evidence is absent or not available.
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes
the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff has no such
knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the happening of the
accident in order to establish negligence. The inference which the doctrine permits is grounded upon the fact that the chief
evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured
person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without knowledge of the cause,
reaches over to defendant who knows or should know the cause, for any explanation of care exercised by the defendant in
respect of the matter of which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule of necessity,
in that it proceeds on the theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power
of the defendant to show that there was no negligence on his part, and direct proof of defendant’s negligence is beyond
plaintiff’s power. Accordingly, some courts add to the three prerequisites for the application of the res ipsa loquitur doctrine the In the instant case, the Fuzo Cargo Truck would not have had hit the rear end of the Mitsubishi Galant unless someone is
further requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured party had no knowledge or negligent. Also, the Fuzo Cargo Truck was under the exclusive control of its driver, Reyes. Even if respondents avert liability by
means of knowledge as to the cause of the accident, or that the party to be charged with negligence has superior knowledge or putting the blame on the Nissan Bus driver, still, this allegation was self-serving and totally unfounded. Finally, no contributory
opportunity for explanation of the accident. negligence was attributed to the driver of the Mitsubishi Galant. Consequently, all the requisites for the application of the
doctrine of res ipsa loquitur are present, thereby creating a reasonable presumption of negligence on the part of respondents.
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
It is worth mentioning that just like any other disputable presumptions or inferences, the presumption of negligence may be
rebutted or overcome by other evidence to the contrary. It is unfortunate, however, that respondents failed to present any
There is no dispute that appellee’s husband fell down from the 14th floor of a building to the basement while he was working
evidence before the trial court. Thus, the presumption of negligence remains. Consequently, the CA erred in dismissing the
with appellant’s construction project, resulting to his death. The construction site is within the exclusive control and management
complaint for Malayan Insurance’s adverted failure to prove negligence on the part of respondents.
of appellant. It has a safety engineer, a project superintendent, a carpenter leadman and others who are in complete control of the
situation therein. The circumstances of any accident that would occur therein are peculiarly within the knowledge of the
appellant or its employees. On the other hand, the appellee is not in a position to know what caused the accident. Res ipsa Validity of Subrogation
loquitur is a rule of necessity and it applies where evidence is absent or not readily available, provided the following requisites
are present: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or
Malayan Insurance contends that there was a valid subrogation in the instant case, as evidenced by the claim check voucher 30 and
agency which caused the injury was under the exclusive control of the person charged with negligence; and (3) the injury
the Release of Claim and Subrogation Receipt31 presented by it before the trial court. Respondents, however, claim that the
suffered must not have been due to any voluntary action or contribution on the part of the person injured. x x x.
documents presented by Malayan Insurance do not indicate certain important details that would show proper subrogation.

No worker is going to fall from the 14th floor of a building to the basement while performing work in a construction site unless
As noted by Malayan Insurance, respondents had all the opportunity, but failed to object to the presentation of its evidence.
someone is negligent[;] thus, the first requisite for the application of the rule of res ipsa loquitur is present. As explained earlier,
Thus, and as We have mentioned earlier, respondents are deemed to have waived their right to make an objection. As this Court
the construction site with all its paraphernalia and human resources that likely caused the injury is under the exclusive control
held in Asian Construction and Development Corporation v. COMFAC Corporation:
and management of appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed to the
appellee’s deceased husband[;] thus[,] the last requisite is also present. All the requisites for the application of the rule of res ipsa
loquitur are present, thus a reasonable presumption or inference of appellant’s negligence arises. x x x. The rule is that failure to object to the offered evidence renders it admissible, and the court cannot, on its own, disregard
such evidence. We note that ASIAKONSTRUCT’s counsel of record before the trial court, Atty. Bernard Dy, who actively
participated in the initial stages of the case stopped attending the hearings when COMFAC was about to end its presentation.
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues that the presumption
Thus, ASIAKONSTRUCT could not object to COMFAC’s offer of evidence nor present evidence in its defense;
or inference that it was negligent did not arise since it "proved that it exercised due care to avoid the accident which befell
ASIAKONSTRUCT was deemed by the trial court to have waived its chance to do so.
respondent’s husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendant’s negligence is
presumed or inferred when the plaintiff establishes the requisites for the application of res ipsa loquitur. Once the plaintiff makes
out a prima facie case of all the elements, the burden then shifts to defendant to explain. The presumption or inference may be
rebutted or overcome by other evidence and, under appropriate circumstances a disputable presumption, such as that of due care
or innocence, may outweigh the inference. It is not for the defendant to explain or prove its defense to prevent the presumption
or inference from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances for the
application of the doctrine has been established.28
In the case at bar, aside from the statement in the police report, none of the parties disputes the fact that the Fuzo Cargo Truck hit
the rear end of the Mitsubishi Galant, which, in turn, hit the rear end of the vehicle in front of it. Respondents, however, point to
the reckless driving of the Nissan Bus driver as the proximate cause of the collision, which allegation is totally unsupported by
any evidence on record. And assuming that this allegation is, indeed, true, it is astonishing that respondents never even bothered
to file a cross-claim against the owner or driver of the Nissan Bus.
What is at once evident from the instant case, however, is the presence of all the requisites for the application of the rule of res
ipsa loquitur. To reiterate, res ipsa loquitur is a rule of necessity which applies where evidence is absent or not readily available.
As explained in D.M. Consunji, Inc., it is partly based upon the theory that the defendant in charge of the instrumentality which
causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff has no
such knowledge, and, therefore, is compelled to allege negligence in general terms and to rely upon the proof of the happening
of the accident in order to establish negligence.
As mentioned above, the requisites for the application of the res ipsa loquitur rule are the following: (1) the accident was of a
kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was
under the exclusive control of the person charged with negligence; and (3) the injury suffered must not have been due to any
voluntary action or contribution on the part of the person injured.29
Note also that when a party desires the court to reject the evidence offered, it must so state in the form of a timely
objection and it cannot raise the objection to the evidence for the first time on appeal. Because of a party’s failure to
timely object, the evidence becomes part of the evidence in the case. Thereafter, all the parties are considered bound by
any outcome arising from the offer of evidence properly presented.32 (Emphasis supplied.)
Bearing in mind that the claim check voucher and the Release of Claim and Subrogation Receipt presented by Malayan
Insurance are already part of the evidence on record, and since it is not disputed that the insurance company, indeed, paid PhP
700,000 to the assured, then there is a valid subrogation in the case at bar. As explained in Keppel Cebu Shipyard, Inc. v. Pioneer
Insurance and Surety Corporation:
Subrogation is the substitution of one person by another with reference to a lawful claim or right, so that he who is substituted
succeeds to the rights of the other in relation to a debt or claim, including its remedies or securities. The principle covers a
situation wherein an insurer has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the
insured against a third party with respect to any loss covered by the policy. It contemplates full substitution such that it places the
party subrogated in the shoes of the creditor, and he may use all means that the creditor could employ to enforce
payment.1âwphi1
We have held that payment by the insurer to the insured operates as an equitable assignment to the insurer of all the remedies
that the insured may have against the third party whose negligence or wrongful act caused the loss. The right of subrogation is
not dependent upon, nor does it grow out of, any privity of contract. It accrues simply upon payment by the insurance company
of the insurance claim. The doctrine of subrogation has its roots in equity. It is designed to promote and to accomplish justice;
and is the mode that equity adopts to compel the ultimate payment of a debt by one who, in justice, equity, and good conscience,
ought to pay.33
Considering the above ruling, it is only but proper that Malayan Insurance be subrogated to the rights of the assured.

Page 34 of 45 TORTS MEETING 3

WHEREFORE, the petition is hereby GRANTED. The CA’s July 28, 2010 Decision and October 29, 2010 Resolution in CA-
G.R. CV No. 93112 are hereby REVERSED and SET ASIDE. The Decision dated February 2, 2009 issued by the trial court in
Civil Case No. 99-95885 is hereby REINSTATED.

No pronouncement as to cost.

SO ORDERED.

Page 35 of 45 TORTS MEETING 3

TORTS 33
G.R. No. 137873 April 20, 2001
D. M. CONSUNJI, INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell 14 floors from the
Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated November 25, 1990,
stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he was pronounced dead on
arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together with Jessie Jaluag and
Delso Destajo [were] performing their work as carpenter[s] at the elevator core of the 14 th floor of the Tower D, Renaissance
Tower Building on board a [p]latform made of channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid
plywood flooring and cable wires attached to its four corners and hooked at the 5 ton chain block, when suddenly, the bolt
or pin which was merely inserted to connect the chain block with the [p]latform, got loose xxx causing the whole [p]latform
assembly and the victim to fall down to the basement of the elevator core, Tower D of the building under construction
thereby crushing the victim of death, save his two (2) companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on board and performing work,
fell. And the falling of the [p]latform was due to the removal or getting loose of the pin which was merely inserted to the
connecting points of the chain block and [p]latform but without a safety lock. 1
On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint for damages against
the deceased’s employer, D.M. Consunji, Inc. The employer raised, among other defenses, the widow’s prior availment of the
benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorney’s fees, plus the costs of suit.
Page 36 of 45 TORTS MEETING 3
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:
 THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE EVIDENCE
OF THE ALLEGED NEGLIGENCE OF PETITIONER.
 THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA LOQUITOR[sic] IS
APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER.
 THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT UNDER
ARTICLE 2180 OF THE CIVIL CODE, AND
 THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED FROM
RECOVERING DAMAGES UNDER THE CIVIL CODE.3
Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible. The CA ruled otherwise. It
held that said report, being an entry in official records, is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of his personal knowledge, that is,
which are derived from his perception.4 A witness, therefore, may not testify as what he merely learned from others either
because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the
truth of what he has learned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to written, as
well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which
lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-
examiantion.7 The hearsay rule, therefore, excludes evidence that cannot be tested by cross-examination.8
The Rules of Court allow several exceptions to the rule,9 among which are entries in official records. Section 44, Rule 130
provides:
Entries in official records made in the performance of his duty made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially enjoined by law are prima facieevidence of the facts
therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran, enumerated the requisites for
admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a
duty specially enjoined by law; and
 (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been
acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the last requisite is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial court. In Rodriguez vs.
Court of Appeals,11 which involved a Fire Investigation Report, the officer who signed the fire report also testified before the trial
court. This Court held that the report was inadmissible for the purpose of proving the truth of the statements contained in the
report but admissible insofar as it constitutes part of the testimony of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available for cross-examination, the portions of the
report which were of his personal knowledge or which consisted of his perceptions and conclusions were not hearsay. The
rest of the report, such as the summary of the statements of the parties based on their sworn statements (which were annexed
to the Report) as well as the latter, having been included in the first purpose of the offer [as part of the testimony of Major
Enriquez], may then be considered as independently relevant statements which were gathered in the course of the
investigation and may thus be admitted as such, but not necessarily to prove the truth thereof. It has been said that:
"Where regardless of the truth or falsity of a statement, the fact that it has been made is relevant, the hearsay rule does
not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary but primary,
for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself available for cross-
examination by the adverse party, the Report, insofar as it proved that certain utterances were made (but not their truth), was
effectively removed from the ambit of the aforementioned Section 44 of Rule 130. Properly understood, this section does
away with the testimony in open court of the officer who made the official record, considers the matter as an exception to
the hearsay rule and makes the entries in said official record admissible in evidence as prima facie evidence of the facts
therein stated. The underlying reasons for this exceptionary rule are necessity and trustworthiness, as explained in Antillon v.
Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; the occasions in which the officials would be
summoned from his ordinary duties to declare as a witness are numberless. The public officers are few in whose daily
work something is not done in which testimony is not needed from official sources. Were there no exception for official
statements, hosts of officials would be found devoting the greater part of their time to attending as witnesses in court or
delivering deposition before an officer. The work of administration of government and the interest of the public having
business with officials would alike suffer in consequence. For these reasons, and for many others, a certain verity is
accorded such documents, which is not extended to private documents. (3 Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge their several trusts with
accuracy and fidelity; and, therefore, whatever acts they do in discharge of their duty may be given in evidence and
shall be taken to be true under such a degree of caution as to the nature and circumstances of each case may appear to
require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on his report. In that case the
applicability of Section 44 of Rule 143 would have been ripe for determination, and this Court would have agreed with the
Court of Appeals that said report was inadmissible since the aforementioned third requisite was not satisfied. The statements
given by the sources of information of Major Enriquez failed to qualify as "official information," there being no showing
that, at the very least, they were under a duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the statements contained therein
but is admissible insofar as it constitutes part of the testimony of PO3 Villanueva.
In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his personal knowledge suffice to prove
that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva had seen Juego’s remains at the morgue, 12 making
Page 37 of 45 TORTS MEETING 3
the latter’s death beyond dispute. PO3 Villanueva also conducted an ocular inspection of the premises of the building the day
after the incident13 and saw the platform for himself.14 He observed that the platform was crushed15 and that it was totally
damaged.16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to the police headquarters. Upon inspection,
he noticed that the chain was detached from the lifting machine, without any pin or bolt. 17
What petitioner takes particular exception to is PO3 Villanueva’s testimony that the cause of the fall of the platform was the
loosening of the bolt from the chain block. It is claimed that such portion of the testimony is mere opinion. Subject to certain
exceptions,18 the opinion of a witness is generally not admissible.19
Petitioner’s contention, however, loses relevance in the face of the application of res ipsa loquitur by the CA. The effect of the
doctrine is to warrant a presumption or inference that the mere fall of the elevator was a result of the person having charge of the
instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of
negligence.20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or injury will not
generally give rise to an inference or presumption that it was due to negligence on defendant’s part, under the doctrine of res
ipsa loquitur, which means, literally, the thing or transaction speaks for itself, or in one jurisdiction, that the thing or
instrumentality speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption,
or at least permit an inference of negligence on the part of the defendant, or some other person who is charged with
negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of was under the control or
management of the defendant, and that the occurrence resulting in the injury was such as in the ordinary course of things
would not happen if those who had its control or management used proper care, there is sufficient evidence, or, as
sometimes stated, reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was
caused by the defendant’s want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent or not available. 22
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which
causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff
has no such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the
happening of the accident in order to establish negligence. The inference which the doctrine permits is grounded upon the
fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but
inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without knowledge of the cause,
reaches over to defendant who knows or should know the cause, for any explanation of care exercised by the defendant in
respect of the matter of which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule of
necessity, in that it proceeds on the theory that under the peculiar circumstances in which the doctrine is applicable, it is
within the power of the defendant to show that there was no negligence on his part, and direct proof of defendant’s
negligence is beyond plaintiff’s power. Accordingly, some court add to the three prerequisites for the application of the res
ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured
party had no knowledge or means of knowledge as to the cause of the accident, or that the party to be charged with
negligence has superior knowledge or opportunity for explanation of the accident.23
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellee’s husband fell down from the 14 th floor of a building to the basement while he was working
with appellant’s construction project, resulting to his death. The construction site is within the exclusive control and
 management of appellant. It has a safety engineer, a project superintendent, a carpenter leadman and others who are in
complete control of the situation therein. The circumstances of any accident that would occur therein are peculiarly within the
knowledge of the appellant or its employees. On the other hand, the appellee is not in a position to know what caused the
accident. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily available, provided the
following requisites are present: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent;
(2) the instrumentality or agency which caused the injury was under the exclusive control of the person charged with
negligence; and (3) the injury suffered must not have been due to any voluntary action or contribution on the part of the person
injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement while performing work in a construction site unless
someone is negligent[;] thus, the first requisite for the application of the rule of res ipsa loquitur is present. As explained
earlier, the construction site with all its paraphernalia and human resources that likely caused the injury is under the exclusive
control and management of appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed
to the appellee’s deceased husband[;] thus[,] the last requisite is also present. All the requisites for the application of the rule
of res ipsa loquitur are present, thus a reasonable presumption or inference of appellant’s negligence arises. x x x.24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues that the presumption
or inference that it was negligent did not arise since it "proved that it exercised due care to avoid the accident which befell
respondent’s husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendant’s negligence is
presumed or inferred25 when the plaintiff establishes the requisites for the application of res ipsa loquitur. Once the plaintiff
makes out a prima facie case of all the elements, the burden then shifts to defendant to explain.26 The presumption or inference
may be rebutted or overcome by other evidence and, under appropriate circumstances disputable presumption, such as that of
due care or innocence, may outweigh the inference. 27 It is not for the defendant to explain or prove its defense to prevent the
presumption or inference from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances
for the application of the doctrine has been established.1âwphi1.nêt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the police investigator as
evidence of its due care. According to Fabro’s sworn statement, the company enacted rules and regulations for the safety and
security of its workers. Moreover, the leadman and the bodegero inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due care but, in arguing that private respondent failed
to prove negligence on the part of petitioner’s employees, also assails the same statement for being hearsay.
Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits are inadmissible as evidence under the
hearsay rule, unless the affiant is placed on the witness stand to testify thereon. 28 The inadmissibility of this sort of evidence is
based not only on the lack of opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly
known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses his own language in
writing the affiant’s statements which may either be omitted or misunderstood by the one writing them. 29 Petitioner, therefore,
cannot use said statement as proof of its due care any more than private respondent can use it to prove the cause of her husband’s
death. Regrettably, petitioner does not cite any other evidence to rebut the inference or presumption of negligence arising from
the application of res ipsa loquitur, or to establish any defense relating to the incident.
Next, petitioner argues that private respondent had previously availed of the death benefits provided under the Labor Code and
is, therefore, precluded from claiming from the deceased’s employer damages under the Civil Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. – Unless otherwise provided, the liability of the State Insurance Fund under this Title shall
be exclusive and in place of all other liabilities of the employer to the employee, his dependents or anyone otherwise entitled
to receive damages on behalf of the employee or his dependents. The payment of compensation under this Title shall not bar
the recovery of benefits as provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven
hundred sixty-one, as amended, Republic Act Numbered Six hundred ten, as amended, Republic Act Numbered Forty-eight
Page 38 of 45 TORTS MEETING 3
hundred sixty-four as amended, and other laws whose benefits are administered by the System or by other agencies of the
government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation Act, provided that:
Section 5. Exclusive right to compensation. – The rights and remedies granted by this Act to an employee by reason of a
personal injury entitling him to compensation shall exclude all other rights and remedies accruing to the employee, his
personal representatives, dependents or nearest of kin against the employer under the Civil Code and other laws because of
said injury x x x.
Whether Section 5 of the Workmen’s Compensation Act allowed recovery under said Act as well as under the Civil Code used
to be the subject of conflicting decisions. The Court finally settled the matter in Floresca vs.Philex Mining Corporation,30 which
involved a cave-in resulting in the death of the employees of the Philex Mining Corporation. Alleging that the mining
corporation, in violation of government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court of First Instance (CFI).
Upon motion of Philex Mining, the CFI dismissed the complaint for lack of jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc,31 following the rule
in Pacaña vs. Cebu Autobus Company, held in the affirmative.
WE now come to the query as to whether or not the injured employee or his heirs in case of death have a right of selection
or choice of action between availing themselves of the worker’s right under the Workmen’s Compensation Act and suing in
the regular courts under the Civil Code for higher damages (actual, moral and exemplary) from the employers by virtue of
the negligence or fault of the employers or whether they may avail themselves cumulatively of both actions, i.e., collect the
limited compensation under the Workmen’s Compensation Act and sue in addition for damages in the regular courts.
In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company, 32 SCRA 442, ruled that an injured worker
has a choice of either to recover from the employer the fixed amounts set by the Workmen’s Compensation Act or to
prosecute an ordinary civil action against the tortfeasor for higher damages but he cannot pursue both courses of action
simultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the Civil Code despite
having availed of the benefits provided under the Workmen’s Compensation Act. The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14, 1968 before the court a
quo, that the heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and
Saturnino submitted notices and claims for compensation to the Regional Office No. 1 of the then Department of Labor and
all of them have been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid in
installments x x x. Such allegation was admitted by herein petitioners in their opposition to the motion to dismiss dated may
27, 1968 x x x in the lower court, but they set up the defense that the claims were filed under the Workmen’s Compensation
Act before they learned of the official report of the committee created to investigate the accident which established the
criminal negligence and violation of law by Philex, and which report was forwarded by the Director of Mines to then
Executive Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits under the Workmen’s Compensation Act, such my not
preclude them from bringing an action before the regular court because they became cognizant of the fact that Philex has
been remiss in its contractual obligations with the deceased miners only after receiving compensation under the Act. Had
petitioners been aware of said violation of government rules and regulations by Philex, and of its negligence, they would not
have sought redress under the Workmen’s Compensation Commission which awarded a lesser amount for compensation.
The choice of the first remedy was based on ignorance or a mistake of fact, which nullifies the choice as it was not an
intelligent choice. The case should therefore be remanded to the lower court for further proceedings. However, should the
petitioners be successful in their bid before the lower court, the payments made under the Workmen’s Compensation Act
should be deducted from the damages that may be decreed in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime Corporation vs.
Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs. Abeleda.34 In the last case, the Court again
recognized that a claimant who had been paid under the Act could still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course of their employment could be
filed only under the Workmen’s Compensation Law, to the exclusion of all further claims under other laws. In Floresca, this
doctrine was abrogated in favor of the new rule that the claimants may invoke either the Workmen’s Compensation Act or
the provisions of the Civil Code, subject to the consequence that the choice of one remedy will exclude the other and that the
acceptance of compensation under the remedy chosen will preclude a claim for additional benefits under the other
remedy. The exception is where a claimant who has already been paid under the Workmen’s Compensation Act may still
sue for damages under the Civil Code on the basis of supervening facts or developments occurring after he opted for the first
remedy. (Underscoring supplied.)
Here, the CA held that private respondent’s case came under the exception because private respondent was unaware of
petitioner’s negligence when she filed her claim for death benefits from the State Insurance Fund. Private respondent filed the
civil complaint for damages after she received a copy of the police investigation report and the Prosecutor’s Memorandum
dismissing the criminal complaint against petitioner’s personnel. While stating that there was no negligence attributable to the
respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at all," the "case is civil in nature."
The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as early as November 25, 1990,
the date of the police investigator’s report. The appellee merely executed her sworn statement before the police investigator
concerning her personal circumstances, her relation to the victim, and her knowledge of the accident. She did not file the
complaint for "Simple Negligence Resulting to Homicide" against appellant’s employees. It was the investigator who
recommended the filing of said case and his supervisor referred the same to the prosecutor’s office. This is a standard
operating procedure for police investigators which appellee may not have even known. This may explain why no
complainant is mentioned in the preliminary statement of the public prosecutor in her memorandum dated February 6, 1991,
to wit: "Respondent Ferdinand Fabro x x x are being charged by complainant of "Simple Negligence Resulting to
Homicide." It is also possible that the appellee did not have a chance to appear before the public prosecutor as can be
inferred from the following statement in said memorandum: "Respondents who were notified pursuant to Law waived their
rights to present controverting evidence," thus there was no reason for the public prosecutor to summon the appellee. Hence,
notice of appellant’s negligence cannot be imputed on appellee before she applied for death benefits under ECC or before
she received the first payment therefrom. Her using the police investigation report to support her complaint filed on May 9,
1991 may just be an afterthought after receiving a copy of the February 6, 1991 Memorandum of the Prosecutor’s Office
dismissing the criminal complaint for insufficiency of evidence, stating therein that: "The death of the victim is not
attributable to any negligence on the part of the respondents. If at all and as shown by the records this case is civil in nature."
(Underscoring supplied.) Considering the foregoing, We are more inclined to believe appellee’s allegation that she learned
about appellant’s negligence only after she applied for and received the benefits under ECC. This is a mistake of fact that
will make this case fall under the exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts, but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her educational attainment; that she
did not know what damages could be recovered from the death of her husband; and that she did not know that she may also
recover more from the Civil Code than from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her complaint that her
application and receipt of benefits from the ECC were attended by ignorance or mistake of fact. Not being an issue submitted
during the trial, the trial court had no authority to hear or adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because as early as November 28, 1990,
private respondent was the complainant in a criminal complaint for "Simple Negligence Resulting to Homicide" against
petitioner’s employees. On February 6, 1991, two months before the filing of the action in the lower court, Prosecutor Lorna Lee
issued a resolution finding that, although there was insufficient evidence against petitioner’s employees, the case was "civil in
nature." These purportedly show that prior to her receipt of death benefits from the ECC on January 2, 1991 and every month
Page 39 of 45 TORTS MEETING 3
thereafter, private respondent also knew of the two choices of remedies available to her and yet she chose to claim and receive
the benefits from the ECC.
When a party having knowledge of the facts makes an election between inconsistent remedies, the election is final and bars any
action, suit, or proceeding inconsistent with the elected remedy, in the absence of fraud by the other party. The first act of
election acts as a bar.37 Equitable in nature, the doctrine of election of remedies is designed to mitigate possible unfairness to
both parties. It rests on the moral premise that it is fair to hold people responsible for their choices. The purpose of the doctrine is
not to prevent any recourse to any remedy, but to prevent a double redress for a single wrong.38
The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule in Floresca that a claimant
cannot simultaneously pursue recovery under the Labor Code and prosecute an ordinary course of action under the Civil Code.
The claimant, by his choice of one remedy, is deemed to have waived the other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not to assert them. It
must be generally shown by the party claiming a waiver that the person against whom the waiver is asserted had at the time
knowledge, actual or constructive, of the existence of the party’s rights or of all material facts upon which they depended.
Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a material fact
negates waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right exists and has adequate knowledge
upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an awareness of its consequences.
That a waiver is made knowingly and intelligently must be illustrated on the record or by the evidence. 40
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception in Floresca.
It is in light of the foregoing principles that we address petitioner’s contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her complaint that she had
availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden private respondent with raising waiver as an
issue. On the contrary, it is the defendant who ought to plead waiver, as petitioner did in pages 2-3 of its Answer;41 otherwise, the
defense is waived. It is, therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction over the issue
when petitioner itself pleaded waiver in the proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her husband’s death and the rights pertaining to a
choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the "fact" that served as a basis
for nullifying the waiver is the negligence of petitioner’s employees, of which private respondent purportedly learned only after
the prosecutor issued a resolution stating that there may be civil liability. In Floresca, it was the negligence of the mining
corporation and its violation of government rules and regulations. Negligence, or violation of government rules and regulations,
for that matter, however, is not a fact, but a conclusion of law, over which only the courts have the final say. Such a conclusion
binds no one until the courts have decreed so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies a
waiver has been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the elevator crash when on November 15,
1990 she accomplished her application for benefits from the ECC. The police investigation report is dated November 25, 1990,
10 days after the accomplishment of the form. Petitioner filed the application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her when the claim before the ECC was filed.
On the contrary, private respondent testified that she was not aware of her rights.

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one from compliance
therewith. As judicial decisions applying or interpreting the laws or the Constitution form part of the Philippine legal system
(Article 8, Civil Code), private respondent cannot claim ignorance of this Court’s ruling in Floresca allowing a choice of
remedies.

The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory laws.42 This may be deduced
from the language of the provision, which, notwithstanding a person’s ignorance, does not excuse his or her compliance with the
laws. The rule in Floresca allowing private respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly,
her ignorance thereof cannot be held against her.

Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the total amount private
respondent ought to receive from the ECC, although it appears from Exhibit "K" 43 that she received P3,581.85 as initial payment
representing the accrued pension from November 1990 to March 1991. Her initial monthly pension, according to the same
Exhibit "K," was P596.97 and present total monthly pension was P716.40. Whether the total amount she will eventually receive
from the ECC is less than the sum of P644,000.00 in total damages awarded by the trial court is subject to speculation, and the
case is remanded to the trial court for such determination. Should the trial court find that its award is greater than that of the
ECC, payments already received by private respondent under the Labor Code shall be deducted from the trial court'’ award of
damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double compensation.

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the award decreed in
its decision is more than that of the ECC. Should the award decreed by the trial court be greater than that awarded by the ECC,
payments already made to private respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the
Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Page 40 of 45 TORTS MEETING 3

TORTS 34 The RTC explained:

G.R. No. 187926 February 15, 2012 After a thorough and in depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the
evidence of the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the Court
that accused herein [are] criminally responsible. The Court believes that accused are negligent when both failed to exercise the
Dr. EMMANUEL JARCIA, Jr. and Dr. MARILOU BASTAN, Petitioners,
necessary and reasonable prudence in ascertaining the extent of injury of Alfonso Santiago, Jr.
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
However, the negligence exhibited by the two doctors does not approximate negligence of a reckless nature but merely amounts
to simple imprudence. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage
DECISION
impending to be caused is not the immediate nor the danger clearly manifest. The elements of simple imprudence are as follows.

MENDOZA, J.:
1. that there is lack of precaution on the part of the offender; and

Even early on, patients have consigned their lives to the skill of their doctors. Time and again, it can be said that the most
2. that the damage impending to be caused is not immediate of the danger is not clearly manifest.
important goal of the medical profession is the preservation of life and health of the people. Corollarily, when a physician
departs from his sacred duty and endangers instead the life of his patient, he must be made liable for the resulting injury. This
Court, as this case would show, cannot and will not let the act go unpunished. 1 Considering all the evidence on record, The Court finds the accused guilty for simple imprudence resulting to physical injuries.
Under Article 365 of the Revised Penal Code, the penalty provided for is arresto mayor in its minimum period. 7
This is a petition for review under Rule 45 of the Rules of Court challenging the August 29, 2008 Decision2 of the Court of
Appeals (CA), and its May 19, 2009 Resolution3 in CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto the June Dissatisfied, the petitioners appealed to the CA.
14, 2005 Decision4 of the Regional Trial Court, Branch 43, Manila (RTC), finding the accused guilty beyond reasonable doubt of
simple imprudence resulting to serious physical injuries.
As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008 Decision of the CA pertinently reads:

THE FACTS
Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of Investigation (NBI) against the petitioners, Dr.
Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect of professional duty which
caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical injuries. Upon investigation, the NBI found that Roy
Jr. was hit by a taxicab; that he was rushed to the Manila Doctors Hospital for an emergency medical treatment; that an X-ray of
the victim’s ankle was ordered; that the X-ray result showed no fracture as read by Dr. Jarcia; that Dr. Bastan entered the
emergency room (ER) and, after conducting her own examination of the victim, informed Mrs. Santiago that since it was only
the ankle that was hit, there was no need to examine the upper leg; that eleven (11) days later, Roy Jr. developed fever, swelling
of the right leg and misalignment of the right foot; that Mrs. Santiago brought him back to the hospital; and that the X-ray
revealed a right mid-tibial fracture and a linear hairline fracture in the shaft of the bone.
The NBI indorsed the matter to the Office of the City Prosecutor of Manila for preliminary investigation. Probable cause was
found and a criminal case for reckless imprudence resulting to serious physical injuries, was filed against Dr. Jarcia, Dr. Bastan
and Dr. Pamittan,5 before the RTC, docketed as Criminal Case No. 01-196646.
On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of the crime of Simple Imprudence Resulting to
Serious Physical Injuries. The decretal portion of the RTC decision reads:
WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL JARCIA, JR. and DR. MARILOU BASTAN
GUILTY beyond reasonable doubt of the crime of SIMPLE IMPRUDENCE RESULTING TO SERIOUS PHYSICAL
INJURIES and are hereby sentenced to suffer the penalty of ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to
indemnify MRS. BELINDA SANTIAGO the amount of ₱ 3,850.00 representing medical expenses without subsidiary
imprisonment in case of insolvency and to pay the costs.
It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered despite warrant issued for her arrest, let
warrant be issued for her arrest and the case against her be ARCHIVED, to be reinstated upon her apprehension.
This Court holds concurrently and finds the foregoing circumstances sufficient to sustain a judgment of conviction against the
accused-appellants for the crime of simple imprudence resulting in serious physical injuries. The elements of imprudence are: (1)
that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without
malice; (4) that material damage results from the imprudence; and (5) that there is inexcusable lack of precaution on the part of
the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other
circumstances regarding persons, time and place.
Whether or not Dr. Jarcia and Dr. Bastan had committed an "inexcusable lack of precaution" in the treatment of their patient is to
be determined according to the standard of care observed by other members of the profession in good standing under similar
circumstances, bearing in mind the advanced state of the profession at the time of treatment or the present state of medical
science. In the case of Leonila Garcia-Rueda v. Pascasio, the Supreme Court stated that, in accepting a case, a doctor in effect
represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will
employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care
that any other reasonably competent doctor would use to treat a condition under the same circumstances.
In litigations involving medical negligence, the plaintiff has the burden of establishing accused-appellants’ negligence, and for a
reasonable conclusion of negligence, there must be proof of breach of duty on the part of the physician as well as a causal
connection of such breach and the resulting injury of his patient. The connection between the negligence and the injury must be a
direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the
proximate cause of the injury. Negligence, no matter in what it consists, cannot create a right of action unless it is the proximate
cause of the injury complained of. The proximate cause of an injury is that cause which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.
In the case at bench, the accused-appellants questioned the imputation against them and argued that there is no causal connection
between their failure to diagnose the fracture and the injury sustained by Roy.
We are not convinced.

SO ORDERED.6

Page 41 of 45 TORTS MEETING 3

The prosecution is however after the cause which prolonged the pain and suffering of Roy and not on the failure of the accused- In the above requisites, the fundamental element is the "control of the instrumentality" which caused the damage. Such element
appellants to correctly diagnose the extent of the injury sustained by Roy. of control must be shown to be within the dominion of the accused-appellants. In order to have the benefit of the rule, a plaintiff,
in addition to proving injury or damage, must show a situation where it is applicable and must establish that the essential
elements of the doctrine were present in a particular incident. The early treatment of the leg of Roy would have lessen his
For a more logical presentation of the discussion, we shall first consider the applicability of the doctrine of res ipsa loquitur to
suffering if not entirely relieve him from the fracture. A boy of tender age whose leg was hit by a vehicle would engender a well-
the instant case. Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself. The
founded belief that his condition may worsen without proper medical attention. As junior residents who only practice general
doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the
surgery and without specialization with the case consulted before them, they should have referred the matter to a specialist. This
very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the
omission alone constitutes simple imprudence on their part. When Mrs. Santiago insisted on having another x-ray of her child on
instrumentality causing the injury in the absence of some explanation by the accused-appellant who is charged with negligence.
the upper part of his leg, they refused to do so. The mother would not have asked them if they had no exclusive control or
It is grounded in the superior logic of ordinary human experience and, on the basis of such experience or common knowledge,
prerogative to request an x-ray test. Such is a fact because a radiologist would only conduct the x-ray test upon request of a
negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction
physician.
with the doctrine of common knowledge.

The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He further testified based on his personal
The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son during the latter’s ordeal at the hospital.
knowledge, and not as an expert, as he examined himself the child Roy. He testified as follows:
She testified as follows:

Fiscal Macapagal:
Fiscal Formoso:

Q: And was that the correct respon[se] to the medical problem that was presented to Dr. Jarcia and Dra. Bastan?
Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan to confirm whether you should go home or
not?
A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go home and you don’t even clean the wounds A: I would say at that stage, yes. Because they have presented the patient and the history. "At sabi nila, nadaanan lang po ito."
of my son. And then, considering their year of residency they are still junior residents, and they are not also orthopedic residents but general
Q: And what did she [tell] you? surgery residents, it’s entirely different thing. Because if you are an orthopedic resident, I am not trying to say…but if I were an
A: They told me they will call a resident doctor, sir. orthopedic resident, there would be more precise and accurate decision compare to a general surgery resident in so far as
xxx xxx xxx involved.
Q: Was there a resident doctor [who] came?
A: Yes, Sir. Dra. Bastan arrived.
Q: You mean to say there is no supervisor attending the emergency room?
Q: Did you tell her what you want on you to be done?
A: Yes, sir.
Q: What did you [tell] her? A: At the emergency room, at the Manila Doctor’s Hospital, the supervisor there is a consultant that usually comes from a family
A: I told her, sir, while she was cleaning the wounds of my son, are you not going to x-ray up to the knee because my son was medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the consultant on duty.
complaining pain from his ankle up to the middle part of the right leg. Now at that time, I don’t [know] why they don’t….Because at that time, I think, it is the decision. Since the x-rays….
Q: And what did she tell you?
A: According to Dra. Bastan, there is no need to x-ray because it was the ankle part that was run over.
Q: What did you do or tell her? Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated
A: I told her, sir, why is it that they did not examine[x] the whole leg. They just lifted the pants of my son. or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians,
Q: So you mean to say there was no treatment made at all? external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in
cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to
A: None, sir.
xxx xxx xxx the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper
xxx xxx xxx standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient
if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa
A: I just listened to them, sir. And I just asked if I will still return my son.
xxx xxx xxx loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. In
xxx xxx xxx the case at bench, we give credence to the testimony of Mrs. Santiago by applying the doctrine of res ipsa loquitur.
Q: And you were present when they were called?
A: Yes, sir. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon
Q: And what was discussed then by Sis. Retoria? the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a
A: When they were there they admitted that they have mistakes, sir. matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily
have followed if due care had been exercised. A distinction must be made between the failure to secure results and the
Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure
of those skilled in that particular practice. The latter circumstance is the primordial issue that confronted this Court and we find
application of the doctrine of res ipsa loquitur to be in order.
1. The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;
WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and the assailed decision of the trial
2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and court finding accused-appellants guilty beyond reasonable doubt of simple imprudence resulting in serious physical injuries is
hereby AFFIRMED in toto.
3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.

Page 42 of 45 TORTS MEETING 3

SO ORDERED.8
The petitioners filed a motion for reconsideration, but it was denied by the CA in its May 19, 2009 Resolution.
Hence, this petition.
The petitioners pray for the reversal of the decision of both the RTC and the CA anchored on the following
GROUNDS-
1. IN AFFIRMING ACCUSED-PETITIONERS’ CONVICTION, THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICAL
INJURY OF THE PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH REQUIRED MEDICAL
ATTENDANCE FOR MORE THAN THIRTY (30) DAYS AND INCAPACITATED HIM FROM PERFORMING
HIS CUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS THE VEHICULAR ACCIDENT
WHERE THE PATIENT’S RIGHT LEG WAS HIT BY A TAXI, NOT THE FAILURE OF THE ACCUSED-
PETITIONERS TO SUBJECT THE PATIENT’S WHOLE LEG TO AN X-RAY EXAMINATION.
2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED FACTS CLEARLY NEGATING
PETITIONERS’ ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS
UNJUSTIFIABLY DISREGARDED THE OPINION OF THE PROSECUTION’S EXPERT WITNESS, DR.
CIRILO TACATA, THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE
COMPLAINED OF.
3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF PETITIONERS TO SUBJECT
THE PATIENT’S WHOLE LEG TO AN X-RAY EXAMINATION PROLONGED THE PAIN AND SUFFERING
OF THE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN CONTRARY TO, THE
EVIDENCE ON RECORD.
4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED PROLONGED PAIN AND SUFFERING,
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING
WERE DUE TO THE UNJUSTIFIED FAILURE OF THE PATIENT’S MOTHER, A NURSE HERSELF, TO
IMMEDIATELY BRING THE PATIENT BACK TO THE HOSPITAL, AS ADVISED BY THE PETITIONERS,
AFTER HE COMPLAINED OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTER HE
WAS SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE PATIENT’S ALLEGED INJURY
(PROLONGED PAIN AND SUFFERING) WAS DUE TO HIS OWN MOTHER’S ACT OR OMISSION.
5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO PHYSICIAN-PATIENT RELATIONSHIP
EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING
THE LATTER’S ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED BY THE EMERGENCY
ROOM (ER) NURSE TO SEE THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR THEIR
LUNCH.
6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING ACCUSED-PETITIONERS OF THE
CRIME CHARGED."9
The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine of res ipsa loquitur is applicable in this
case; and [2] whether or not the petitioners are liable for criminal negligence.
THE COURT’S RULING
Page 43 of 45 TORTS MEETING 3
The CA is correct in finding that there was negligence on the part of the petitioners. After a perusal of the records, however, the
Court is not convinced that the petitioners are guilty of criminal negligence complained of. The Court is also of the view that the
CA erred in applying the doctrine of res ipsa loquitur in this particular case.
As to the Application of The Doctrine of Res Ipsa Loquitur
This doctrine of res ipsa loquitur means "Where the thing which causes injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want
of care." The Black's Law Dictionary defines the said doctrine. Thus:
The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that the
instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not
happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be
inferred from the mere fact that the accident happened provided the character of the accident and circumstances attending it lead
reasonably to belief that in the absence of negligence it would not have occurred and that thing which caused injury is shown to
have been under the management and control of the alleged wrongdoer. Under this doctrine, the happening of an injury permits
an inference of negligence where plaintiff produces substantial evidence that the injury was caused by an agency or
instrumentality under the exclusive control and management of defendant, and that the occurrence was such that in the ordinary
course of things would not happen if reasonable care had been used. 10
The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of negligence which recognizes that prima
facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine,
however, is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule, when
applicable to the facts and circumstances of a given case, is not meant to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines and regulates what shall be prima facie evidence thereof and
helps the plaintiff in proving a breach of the duty. The doctrine can be invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily available.11
The requisites for the application of the doctrine of res ipsa loquitur are: (1) the accident was of a kind which does not ordinarily
occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of
the person in charge; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person
injured.12
In this case, the circumstances that caused patient Roy Jr.’s injury and the series of tests that were supposed to be undergone by
him to determine the extent of the injury suffered were not under the exclusive control of Drs. Jarcia and Bastan. It was
established that they are mere residents of the Manila Doctors Hospital at that time who attended to the victim at the emergency
room.13 While it may be true that the circumstances pointed out by the courts below seem doubtless to constitute reckless
imprudence on the part of the petitioners, this conclusion is still best achieved, not through the scholarly assumptions of a
layman like the patient’s mother, but by the unquestionable knowledge of expert witness/es. As to whether the petitioners have
exercised the requisite degree of skill and care in treating patient Roy, Jr. is generally a matter of expert opinion.
As to Dr. Jarcia and Dr. Bastan’s negligence
The totality of the evidence on record clearly points to the negligence of the petitioners. At the risk of being repetitious, the
Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this case.
Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care, precaution,
and vigilance which the circumstances justly demand, whereby such other person suffers injury. 14
Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage results by
reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act.15
The elements of simple negligence are: (1) that there is lack of precaution on the part of the offender, and (2) that the damage
impending to be caused is not immediate or the danger is not clearly manifest. 16
In this case, the Court is not convinced with moral certainty that the petitioners are guilty of reckless imprudence or simple
negligence. The elements thereof were not proved by the prosecution beyond reasonable doubt.
The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric orthopedic, although pointing to some medical
procedures that could have been done by Dr. Jarcia and Dr. Bastan, as physicians on duty, was not clear as to whether the
injuries suffered by patient Roy Jr. were indeed aggravated by the petitioners’ judgment call and their diagnosis or appreciation
of the condition of the victim at the time they assessed him. Thus:
Q: Will you please tell us, for the record, doctor, what is your specialization?
A: At present I am the chairman department of orthopedic in UP-PGH and I had special training in pediatric orthopedic for two
(2) years.
Q: In June 1998, doctor, what was your position and what was your specialization at that time?
A: Since 1980, I have been specialist in pediatric orthopedic.
Q: When Alfonso Santiago, Jr. was brought to you by his mother, what did you do by way of physicians as first step?
A: As usual, I examined the patient physically and, at that time as I have said, the patient could not walk so I [began] to suspect
that probably he sustained a fracture as a result of a vehicular accident. So I examined the patient at that time, the involved leg, I
don’t know if that is left or right, the involved leg then was swollen and the patient could not walk, so I requested for the x-ray of
[the] lower leg.
Q: What part of the leg, doctor, did you request to be examined?
A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal, middle or lebistal tinial, we usually x-ray the
entire extremity.
Q: And what was the result?
A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of the leg.
Q: And when you say spiral, doctor, how long was this fracture?
A: When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8) centimeters.
Q: Mid-tibial, will you please point to us, doctor, where the tibial is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the bigger one is the tibial and the smaller one is the fibula. The bigger one is the
one that get fractured.
Q: And in the course of your examination of Alfonso Santiago, Jr. did you ask for the history of such injury?
A: Yes, actually, that was a routine part of our examination that once a patient comes in, before we actually examine the patient,
we request for a detailed history. If it is an accident, then, we request for the exact mechanism of injuries.
Q: And as far as you can recall, Doctor, what was the history of that injury that was told to you?
A: The patient was sideswiped, I don’t know if it is a car, but it is a vehicular accident.
Q: Who did you interview?
A: The mother.
Q: How about the child himself, Alfonso Santiago, Jr.?
A: Normally, we do not interview the child because, usually, at his age, the answers are not accurate. So, it was the mother that I
interviewed.
Q: And were you informed also of his early medication that was administered on Alfonso Santiago, Jr.?
A: No, not actually medication. I was informed that this patient was seen initially at the emergency room by the two (2)
physicians that you just mentioned, Dr. Jarcia and Dra. Bastan, that time who happened to be my residents who were [on] duty at
the emergency room.
xxxx
A: At the emergency room, at the Manila Doctor’s Hospital, the supervisor there is a consultant that usually comes from a family
medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the consultant on duty.
Now at that time, I don’t why they don’t … Because at that time, I think, it is the decision. Since the x-rays…
xxx
Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic specialist.
A: They are general surgeon residents. You have to man[x] the emergency room, including neurology, orthopedic,
general surgery, they see everything at the emergency room.
xxxx
Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the emergency room, you would have subjected the
entire foot to x-ray even if the history that was given to Dr. Jarcia and Dra. Bastan is the same?
Page 44 of 45 TORTS MEETING 3
A: I could not directly say yes, because it would still depend on my examination, we cannot subject the whole body for x-ray if
we think that the damaged was only the leg.
Q: Not the entire body but the entire leg?
A: I think, if my examination requires it, I would.
Q: So, you would conduct first an examination?
A: Yes, sir.
Q: And do you think that with that examination that you would have conducted you would discover the necessity subjecting the
entire foot for x-ray?
A: It is also possible but according to them, the foot and the ankle were swollen and not the leg, which sometimes normally
happens that the actual fractured bone do not get swollen.
xxxx
Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the foot and the history that was told to
you is the region that was hit is the region of the foot, will the doctor subject the entire leg for x-ray?
A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you have to consider the kind of fracture
that the patient sustained would you say the exact mechanism of injury. For example spiral, "paikot yung bale nya," so it
was possible that the leg was run over, the patient fell, and it got twisted. That’s why the leg seems to be
fractured.17 [Emphases supplied]
It can be gleaned from the testimony of Dr. Tacata that a thorough examination was not performed on Roy Jr. As residents on
duty at the emergency room, Dr. Jarcia and Dr. Bastan were expected to know the medical protocol in treating leg fractures and
in attending to victims of car accidents. There was, however, no precise evidence and scientific explanation pointing to the fact
that the delay in the application of the cast to the patient’s fractured leg because of failure to immediately diagnose the specific
injury of the patient, prolonged the pain of the child or aggravated his condition or even caused further complications. Any
person may opine that had patient Roy Jr. been treated properly and given the extensive X-ray examination, the extent and
severity of the injury, spiral fracture of the mid-tibial part or the bigger bone of the leg, could have been detected early on and
the prolonged pain and suffering of Roy Jr. could have been prevented. But still, that opinion, even how logical it may seem
would not, and could not, be enough basis to hold one criminally liable; thus, a reasonable doubt as to the petitioners’ guilt.
Although the Court sympathizes with the plight of the mother and the child in this case, the Court is bound by the dictates of
justice which hold inviolable the right of the accused to be presumed innocent until proven guilty beyond reasonable doubt. The
Court, nevertheless, finds the petitioners civilly liable for their failure to sufficiently attend to Roy Jr.’s medical needs when the
latter was rushed to the ER, for while a criminal conviction requires proof beyond reasonable doubt, only a preponderance of
evidence is required to establish civil liability. Taken into account also was the fact that there was no bad faith on their part.
Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the victim. It may be true that the actual, direct,
immediate, and proximate cause of the injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident when he
was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone to excuse themselves from any liability. If this
would be so, doctors would have a ready defense should they fail to do their job in attending to victims of hit-and-run,
maltreatment, and other crimes of violence in which the actual, direct, immediate, and proximate cause of the injury is
indubitably the act of the perpetrator/s.
In failing to perform an extensive medical examination to determine the extent of Roy Jr.’s injuries, Dr. Jarcia and Dr. Bastan
were remiss of their duties as members of the medical profession. Assuming for the sake of argument that they did not have the
capacity to make such thorough evaluation at that stage, they should have referred the patient to another doctor with sufficient
training and experience instead of assuring him and his mother that everything was all right.
This Court cannot also stamp its imprimatur on the petitioners’ contention that no physician-patient relationship existed between
them and patient Roy Jr., since they were not his attending physicians at that time. They claim that they were merely requested
by the ER nurse to see the patient while they were passing by the ER for their lunch. Firstly, this issue was never raised during
the trial at the RTC or even before the CA. The petitioners, therefore, raise the want of doctor-patient relationship for the first
time on appeal with this Court. It has been settled that "issues raised for the first time on appeal cannot be considered because a
party is not permitted to change his theory on appeal. To allow him to do so is unfair to the other party and offensive to the rules
of fair play, justice and due process."18 Stated differently, basic considerations of due process dictate that theories, issues and
arguments not brought to the attention of the trial court need not be, and ordinarily will not be, considered by a reviewing
court.19
Assuming again for the sake of argument that the petitioners may still raise this issue of "no physician–patient relationship," the The Court, likewise, finds the petitioners also liable for exemplary damages in the said amount.1âwphi1 Article 2229 of the Civil
Court finds and so holds that there was a "physician–patient" relationship in this case. Code provides that exemplary damages may be imposed by way of example or correction for the public good.

In the case of Lucas v. Tuaño,20 the Court wrote that "[w]hen a patient engages the services of a physician, a physician-patient WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated August 29, 2008
relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the needed is REVERSED and SET ASIDE. A new judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan
training and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care, of the crime of reckless imprudence resulting to serious physical injuries but declaring them civilly liable in the amounts of:
and skill in the treatment of the patient. Thus, in treating his patient, a physician is under a duty to exercise that degree of care,
skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess
(1) ₱ 3,850.00 as actual damages;
and exercise in like cases. Stated otherwise, the physician has the obligation to use at least the same level of care that any other
reasonably competent physician would use to treat the condition under similar circumstances."
(2) ₱ 100,000.00 as moral damages;
Indubitably, a physician-patient relationship exists between the petitioners and patient Roy Jr. Notably, the latter and his mother
went to the ER for an immediate medical attention. The petitioners allegedly passed by and were requested to attend to the (3) ₱ 50,000.00 as exemplary damages; and
victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents on duty at the ER).21 They obliged and
examined the victim, and later assured the mother that everything was fine and that they could go home. Clearly, a physician-
patient relationship was established between the petitioners and the patient Roy Jr. (4) Costs of the suit.

To repeat for clarity and emphasis, if these doctors knew from the start that they were not in the position to attend to Roy Jr., a with interest at the rate of 6% per annum from the date of the filing of the Information. The rate shall be 12% interest per
vehicular accident victim, with the degree of diligence and commitment expected of every doctor in a case like this, they should annum from the finality of judgment until fully paid.
have not made a baseless assurance that everything was all right. By doing so, they deprived Roy Jr. of adequate medical
attention that placed him in a more dangerous situation than he was already in. What petitioners should have done, and could SO ORDERED.
have done, was to refer Roy Jr. to another doctor who could competently and thoroughly examine his injuries.

All told, the petitioners were, indeed, negligent but only civilly, and not criminally, liable as the facts show.

Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippines states:

A physician should attend to his patients faithfully and conscientiously. He should secure for them all possible benefits that may
depend upon his professional skill and care. As the sole tribunal to adjudge the physician’s failure to fulfill his obligation to his
patients is, in most cases, his own conscience, violation of this rule on his part is discreditable and inexcusable. 22

Established medical procedures and practices, though in constant instability, are devised for the purpose of preventing
complications. In this case, the petitioners failed to observe the most prudent medical procedure under the circumstances to
prevent the complications suffered by a child of tender age.

As to the Award of Damages

While no criminal negligence was found in the petitioners’ failure to administer the necessary medical attention to Roy Jr., the
Court holds them civilly liable for the resulting damages to their patient. While it was the taxi driver who ran over the foot or leg
of Roy Jr., their negligence was doubtless contributory.

It appears undisputed that the amount of ₱ 3,850.00, as expenses incurred by patient Roy Jr., was adequately supported by
receipts. The Court, therefore, finds the petitioners liable to pay this amount by way of actual damages.

The Court is aware that no amount of compassion can suffice to ease the sorrow felt by the family of the child at that time.
Certainly, the award of moral and exemplary damages in favor of Roy Jr. in the amount of ₱ 100,000.00 and ₱ 50,000.00,
respectively, is proper in this case.

It is settled that moral damages are not punitive in nature, but are designed to compensate 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 inflicted on a person. Intended for the restoration of the psychological or emotional status quo ante, the
award of moral damages is designed to compensate emotional injury suffered, not to impose a penalty on the wrongdoer. 23

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