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Republic of the Philippines

Congress of the Philippines
Metro Manila
Eighth Congress

Republic Act No. 6969

1990

October 26,

AN ACT TO CONTROL TOXIC SUBSTANCES

AND HAZARDOUS AND NUCLEAR WASTES,
PROVIDING PENALTIES FOR VIOLATIONS
THEREOF, AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled::
Section 1. Short title. This Act shall be known
as the "Toxic Substances and Hazardous and
Nuclear Wastes Control Act of 1990."
Section 2. Declaration of Policy. It is the
policy of the State to regulate, restrict or prohibit
the importation, manufacture, processing, sale,
distribution, use and disposal of chemical
substances
and
mixtures
that
present
unreasonable risk and/or injury to health or the
environment; to prohibit the entry, even in transit,
of hazardous and nuclear wastes and their
disposal into the Philippine territorial limits for
whatever purpose; and to provide advancement
and facilitate research and studies on toxic
chemicals.
Section 3. Scope. This Act shall cover the
importation, manufacture, processing, handling,
storage, transportation, sale, distribution, use and
disposal of all unregulated chemical substances
and mixtures in the Philippines, including the
entry, even in transit as well as the keeping or
storage and disposal of hazardous and nuclear
wastes into the country for whatever purpose.

Section 4. Objectives. The objectives of this Act

are:
a) To keep an inventory of chemicals that
are
presently
being
imported,
manufactured, or used, indicating, among
others, their existing and possible uses, test
data, names of firms manufacturing or
using them, and such other information as
may be considered relevant to the protection
of health and the environment;
b) To monitor and regulate the importation,
manufacture, processing, handling, storage,
transportation, sale, distribution, use and
disposal of chemical substances and
mixtures that present unreasonable risk or
injury to health or to the environment in
accordance with national policies and
international commitments;
c) To inform and educate the populace
regarding the hazards and risks attendant
to the manufacture, handling, storage,
transportation, processing, distribution,
use and disposal of toxic chemicals and
other substances and mixture; and
d) To prevent the entry, even in transit, as
well as the keeping or storage and disposal
of hazardous and nuclear wastes into the
country for whatever purpose.
Section 5. Definition. As used in this Act:
a) Chemical substance means any organic
or inorganic substance of a particular
molecular identity, including:
i)
Any
combination
of
such
substances occurring in whole or in
part as a result of chemical reaction
or occurring in nature; and
ii) Any element
chemical.

or

uncombined

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b)
Chemical
mixture
means
any
combination of two or more chemical
substances if the combination does not
occur in nature and is not, in whole or in
part, the result of a chemical reaction, if
none
of
the
chemical
substances
comprising the combination is a new
chemical substance and if the combination
could
have
been
manufactured
for
commercial purposes without a chemical
reaction at the time the chemical
substances comprising the combination
were
combined.
This
shall
include
nonbiodegradable mixtures.
c) Process means the preparation of a
chemical substance or mixture after its
manufacture for commercial distribution:
i) In the same form or physical state
or in a different form or physical
state from that which it was received
by the person so preparing such
substance or mixture; or
ii) As part of an article containing a
chemical substance or mixture.
d) Importation means the entry of a
products or substances into the Philippines
(through the seaports or airports of entry)
after having been properly cleared through
or still remaining under customs control,
the product or substance of which is
intended
for
direct
consumption,
merchandising, warehousing, or for further
processing.
e) Manufacture means the mechanical or
chemical transformation of substances into
new products whether work is performed by
power-driven machines or by hand, whether
it is done in a factory or in the worker's
home, and whether the products are sold at
wholesale or retail.
f) Unreasonable risk means expected
frequency of undesirable effects or adverse

responses arising from a given exposure to

a substance.
g) Hazardous substances are substances
which present either:
1) short-term acute hazards, such as
acute toxicity by ingestion, inhalation
or skin absorption, corrosivity or
other skin or eye contact hazards or
the risk of fire or explosion; or
2) long-term environmental hazards,
including chronic toxicity upon
repeated exposure, carcinogenicity
(which may in some cases result from
acute exposure but with a long latent
period), resistance to detoxification
process such as biodegradation, the
potential to pollute underground or
surface waters, or aesthetically
objectionable properties such as
offensive odors.
h) Hazardous wastes are hereby defined as
substances that are without any safe
commercial, industrial, agricultural or
economic
usage
and
are
shipped,
transported or brought from the country of
origin for dumping or disposal into or in
transit through any part of the territory of
the Philippines.
Hazardous wastes shall also refer to byproducts, side-products, process residues,
spent reaction media, contaminated plant
or equipment or other substances from
manufacturing
operations,
and
as
consumer
discards
of
manufacture
products.
i) Nuclear wastes are hazardous wastes
made radioactive by exposure to the
radiation incidental to the production or
utilization of nuclear fuels but does not
include nuclear fuel, or radioisotopes which
have reached the final stage of fabrication
so as to be usable for any scientific,

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medical,
agricultural,
industrial purpose.

commercial,

or

Section
6. Function,
Powers
and
Responsibilities
of
the
Department
of
Environment and Natural Resources. The
Department
of
Environment
and
Natural
Resources shall be the implementing agency
tasked with the following functions, powers, and
responsibilities:
a) To keep an updated inventory of
chemicals
that
are
presently
being
manufactured or used, indicating, among
others, their existing and possible uses,
quality, test data, names of firms
manufacturing or using them, and such
other information as the Secretary may
consider relevant to the protection of health
and the environment;
b) To require chemical substances and
mixtures that present unreasonable risk or
injury to health or to the environment to be
tested before they are manufactured or
imported for the first time;
c) To require chemical substances and
mixtures which are presently being
manufactured or processed to be tested if
there is a reason to believe that they pose
unreasonable risk or injury to health or the
environment;
d) To evaluate the characteristics of
chemicals that have been tested to
determine their toxicity and the extent of
their effects on health and the environment;
e) To enter into contracts and make grants
for research, development, and monitoring
of chemical substances and mixtures;
f)
To
conduct
inspection
of
any
establishment in which chemicals are
manufactured, processed, stored or held
before or after their commercial distribution

and to make recommendations

proper authorities concerned;

to

the

g) To confiscate or impound chemicals

found not falling within said acts cannot be
enjoined except after the chemicals have
been impounded;
h) To monitor and prevent the entry, even in
transit, of hazardous and nuclear wastes
and their disposal into the country;
i) To subpoena witnesses and documents
and to require other information if
necessary to carry out the provisions of this
Act;
j) To call on any department, bureau, office,
agency, state university or college, and other
instrumentalities of the Government for
assistance in the form of personnel,
facilities, and other resources as the need
arises in the discharge of its functions;
k) To disseminate information and conduct
educational awareness campaigns on the
effects of chemical substances, mixtures
and wastes on health and environment; and
l) To exercise such powers and perform such
other functions as may be necessary to
carry out its duties and responsibilities
under this Act.
Section 7. Inter-Agency Technical Advisory
Council. There is hereby created an Inter-Agency
Technical Advisory Council attached to the
Department
of
Environment
and
Natural
Resources which shall be composed of the
following officials or their duly authorized
representatives:

Secretary of Environment and Natural Resource

Secretary of Health

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Director of the Philippine Nuclear Research Institute

Secretary of Trade and Industry

Secretary of Science and Technology

Secretary of National Defense

c) To conduct preliminary evaluation of the

characteristics of chemical substances and
mixtures to determine their toxicity and
effects on health and the environment and
make the necessary recommendations to
the Department of Environment and
Natural Resources; and
d) To perform such other functions as the
Secretary of Environment and Natural
Resources may, from time to time, require.

Section
8. Pre-Manufacture
and
PreImportation Requirements. Before any new
Secretary of Foreign Affairs
chemical
substance
or
mixture
can
be
manufactured, processed or imported for the first
time as determined by the Department of
Environment
and
Natural
Resources,
the
Secretary of Labor and Employment
manufacturer, processor or importer shall submit
the following information: the name of the
chemical substance or mixture; its chemical
Secretary of Finance
identity and molecular structure; proposed
categories of use; an estimate of the amount to be
manufactured, processed or imported; processing
Secretary of Agriculture
and disposal thereof; and any test data related to
health and environmental effects which the
manufacturer, processor or importer has.
Representative from a non-governmental organization
on health and safety
Section 9. Chemicals Subject to Testing.
Testing shall be required in all cases where:
The representative from the non-governmental
organization shall be appointed by the President
for a term of three (3) years.
The Council shall have the following functions:
a) To assist the Department of Environment
and Natural Resources in the formulation of
the pertinent rules and regulations for the
effective implementation of this Act;
b) To assist the Department of Environment
and Natural Resources in the preparation
and updating of the inventory of chemical
substances and mixtures that fall within
the coverage of this Act;

a) There is a reason to believe that the

chemical substances or mixture may
present an unreasonable risk to health or
the environment or there may be
substantial
human
or
environmental
exposure thereto;
b) There are insufficient data and
experience for determining or predicting the
health and environmental effects of the
chemical substance or mixture; and
c) The testing of the chemical substance or
mixture is necessary to develop such data.
The manufacturers, processors or importers shall
shoulder the costs of testing the chemical

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substance or mixture that will be manufactured,
processed, or imported.
Section 10. Action by the Secretary of
Environment and Natural Resources of his
Duly Authorized Representative. The Secretary
of Environment and Natural Resources or his duly
authorized representative shall, within ninety (90)
days from the date of filing of the notice of
manufacture, processing or importation of a
chemical substance or mixture, decide whether or
not to regulate or prohibit its importation,
manufacture, processing, sale, distribution, use or
disposal. The Secretary may, for justifiable
reasons, extend the ninety-day pre-manufacture
period within a reasonable time.
Section 11. Chemical Substances Exempt from
Pre-Manufacture
Notification.
The
manufacture of the following chemical substances
or mixtures shall be exempt from pre-manufacture
notification:
a) Those included in the categories of
chemical substances and mixtures already
listed in the inventory of existing chemicals;
b) Those to be produced in small quantities
solely for experimental or research and
developmental purposes;
c) Chemical substances and mixtures that
will not present an unreasonable risk to
health and the environment; and
d) Chemical substances and mixtures that
exist temporarily and which have no human
or environmental exposure such as those
which exist as a result of chemical reaction
in the manufacture or processing of a
mixture of another chemical substance.
Section 12. Public Access to Records, Reports
or Notification. The public shall have access to
records, reports, or information concerning
chemical substances and mixtures including
safety data submitted, data on emission or

discharge into the environment, and such

documents shall be available for inspection or
reproduction during normal business hours except
that the Department of Environment and Natural
resources may consider a record, report or
information or particular portions thereof
confidential and may not be made public when
such would divulge trade secrets, production or
sales figures or methods, production or processes
unique to such manufacturer, processor or
distributor, or would otherwise tend to affect
adversely the competitive position of such
manufacturer, processor or distributor. The
Department
of
Environment
and
Natural
Resources, however, may release information
subject to claim of confidentiality to a medical
research or scientific institution where the
information is needed for the purpose of medical
diagnosis or treatment of a person exposed to the
chemical substance or mixture.
Section 13. Prohibited Acts. The following acts
and omissions shall be considered unlawful:
a) Knowingly use a chemical substance or
mixture which is imported, manufactured,
processed or distributed in violation of this
Act or implementing rules and regulations
or orders;
b) Failure or refusal to submit reports,
notices or other information, access to
records, as required by this Act, or permit
inspection
of
establishment
where
chemicals are manufactured, processed,
stored or otherwise held;
c) Failure or refusal to comply with the premanufacture
and
pre-importation
requirements; and
d) Cause, aid or facilitate, directly or
indirectly, in the storage, importation, or
bringing into Philippines territory, including
its maritime economic zones, even in
transit, either by means of land, air or sea
transportation or otherwise keeping in
storage any amount of hazardous and

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nuclear wastes
Philippines.

in

any

part

of

the

Section 14. Criminal Offenses and Penalties.

a) (i) The penalty of imprisonment of six (6)
months and one day to six (6) years and one
day and a fine ranging from Six hundred
pesos (P600.00) to Four thousand pesos
(P4,000.00) shall be imposed upon any
person who shall violate section 13 (a) to (c)
of this Act and shall not be covered by the
Probation Law.f the offender is a foreigner,
he or she shall be deported and barred from
any subsequent entry into the Philippines
after serving his or her sentence;
ii) In case any violation of this Act is
committed by a partnership, corporation,
association or any juridical person, the
partner, president, director or manager who
shall consent to or shall knowingly tolerate
such violation shall be directly liable and
responsible for the act of the employee and
shall be criminally liable as a co-principal;
(iii) In case the offender is a government
official or employee, he or she shall, in
addition to the above penalties, be deemed
automatically dismissed from office and
permanently disqualified from holding any
elective or appointive position.
b) (i) The penalty of imprisonment of twelve
(12) years and one day to twenty (20) years,
shall be imposed upon any person who
shall violate section 13 (d) of this Act.f the
offender is a foreigner, he or she shall be
deported and barred from any subsequent
entry into the Philippines after serving his
or her sentence;
(ii) In the case of corporations or other
associations, the above penalty shall be
imposed upon the managing partner,
president or chief executive in addition to
an exemplary damage of at least Five
hundred thousand pesos (P500,000.00).f it

is a foreign firm, the director and all officers

of such foreign firm shall be barred from
entry into the Philippines, in addition to the
cancellation of its license to do business in
the Philippines;
(iii) In case the offender is a government
official or employee, he or she in addition to
the
above
penalties
be
deemed
automatically dismissed from office and
permanently disqualified from holding any
elective or appointive position.
c) Every penalty imposed for the unlawful
importation, entry, transport, manufacture,
processing, sale or distribution of chemical
substances or mixtures into or within the
Philippines shall carry with it the
confiscation and forfeiture in favor of the
Government of the proceeds of the unlawful
act and instruments, tools or other
improvements including vehicles, sea
vessels, and aircrafts used in or with which
the offense was committed. Chemical
substances so confiscated and forfeited by
the Government at its option shall be
turned over to the Department of
Environment and Natural resources for
safekeeping and proper disposal.
d) The person or firm responsible or
connected with the bringing or importation
into the country of hazardous or nuclear
wastes shall be under obligation to
transport or send back said prohibited
wastes;
Any and all means of transportation,
including all facilities and appurtenances
that may have been used in transporting to
or in the storage in the Philippines of any
significant amount of hazardous or nuclear
wastes shall at the option of the government
be forfeited in its favor.
Section 15. Administrative Fines. In all cases
of violations of this Act, including violations of
implementing rules and regulations which have

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been duly promulgated and published in
accordance with Section 16 of this Act, the
Secretary of Environment and Natural Resources
is hereby authorized to impose a fine of not less
than Ten thousand pesos (P10,000.00), but not
more than Fifty thousand pesos (P50,000.00)
upon any person or entity found guilty thereof.
The administrative fines imposed and collected by
the Department of Environment and Natural
Resources shall accrue to a special fund to be
administered by the Department exclusively for
projects and research activities relative to toxic
substances and mixtures.
Section 16. Promulgation of Rules and
Regulations. The Department of Environment
and Natural Resources, in coordination with the
member agencies of the Inter-Agency Technical
Advisory Council, shall prepare and publish the
rules and regulations implementing this Act within
six months from the date of its effectivity.
Section 17. Appropriations. Such amount as
may be necessary to implement the provisions of
this Act is hereby annually appropriated and
included in the budget of the Department of
Environment and Natural Resources.
Section 18. Separability Clause. If any
provision of this Act is declared void or
unconstitutional, the remaining provisions thereof
not affected thereby shall remain in full force and
effect.
Section 19. Repealing Clause. All laws,
presidential decrees, executive orders and
issuances, and rules and regulations which are
inconsistent with this Act are hereby repealed or
modified accordingly.
Section 20. Effectivity. This Act shall take
effect after fifteen (15) days following its
publication in the Official Gazette or in any
newspaper of general circulation.
Approved: October 26, 1990

FIRST DIVISION
[G.R. No. 129792. December 21, 1999.]
JARCO
MARKETING
CORPORATION,
LEONARDO KONG, JOSE TIOPE and ELISA
PANELO, petitioners, vs. HONORABLE COURT
OF APPEALS, CONRADO C. AGUILAR and
CRISELDA R. AGUILAR, respondents.
Estrella & Virtudazo Law Firm for petitioners.
Florante A. Bautista for private respondents.
SYNOPSIS
Petitioner Jarco Marketing Corporation is the
owner of Syvel's Department Store, Makati City
(Syvel's), while the private respondents are
spouses and the parents of Zhieneth Aguilar.
While Criselda and her child Zhieneth were at the
2nd floor of Syvel's, a terrible accident happened,
which caused the life of the six-year old Zhieneth.
She was pinned by the bulk of the store's giftwrapping counter structure which collapsed.
Fourteen days later, Zhieneth died at the hospital,
which was attributed to the injuries she
sustained. Private respondents filed a complaint
for damages wherein they sought the payment of
P157,522.86 for actual damages, P300,000.00 for
moral damages, P20,000.00 for attorney's fees and
an unspecified amount for loss income and
exemplary damages. Petitioners, however, denied
any liability for the injuries and consequent death
of Zhieneth. They sought the dismissal of the
complaint and an award of moral and exemplary
damages and attorney's fees in their favor. The
trial court dismissed the complaint, finding that
the preponderance of the evidence favored
petitioners. The Court of Appeals decided in favor
of private respondents and reversed the appealed
judgment. It found that petitioners were negligent
in maintaining a structurally dangerous counter. It
also declared Zhieneth, who was below seven at
the time, was absolutely incapable of negligence or

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other tort. The appellate court then awarded
private respondents P99,420.86 as actual
damages, representing hospitalization expenses. It
denied the award for funeral expenses for lack of
proof. Instead, compensatory damages were
awarded for the death of Zhieneth. Petitioners
sought the reversal of the Court of Appeals'
decision and the reinstatement of the judgment of
the trial court. EHTSCD
The Supreme Court ruled that the tragedy which
befell Zhieneth was no accident and her death
could only be attributed to negligence. The
physical analysis of the counter by both the trial
court and the Court of Appeals and a scrutiny of
the evidence on record revealed that it was not
durable. Criselda should be absolved from any
contributory negligence. The petition was denied
and the decision of the Court of Appeals was
affirmed.
SYLLABUS
1.
CIVIL LAW; DAMAGES. ACCIDENT AND
NEGLIGENCE; DISTINGUISHED. An accident
pertains to an unforeseen event in which no fault
or negligence attaches to the defendant. It is "a
fortuitous circumstance, event or happening; an
event happening without any human agency, or if
happening wholly or partly through human
agency, an event which under the circumstances is
unusual or unexpected by the person to whom it
happens." On the other hand, negligence is the
omission to do something which a reasonable
man, guided by those considerations which
ordinarily regulate the conduct of human affairs,
would do, or the doing of something which a
prudent and reasonable man would not do.
Negligence is "the failure to observe, for the
protection of the interest of another person, that
degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other
person suffers injury."
2.
ID.; ID.; ID.; TEST TO DETERMINE
NEGLIGENCE. The test in determining the
existence of negligence is enunciated in the
landmark case of Picart v. Smith, (37 Phil. 809

[1918]) thus: 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.
3.
REMEDIAL LAW; EVIDENCE; TESTIMONY;
EXCEPTION TO HEARSAY RULE; PART OF RES
GESTAE, DEFINED. The testimony of witness
Gonzales pertaining to ZHIENETH's statement
formed (and should be admitted as) part of the res
gestae under Section 42, Rule 130 of the Rules of
Court, thus: Part of res gestae. Statements made
by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto
with respect to the circumstances thereof, may be
given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act
material to the issue, and giving it a legal
significance, may be received as part of the res
gestae. It is axiomatic that matters relating to
declarations of pain or suffering and statements
made to a physician are generally considered
declarations and admissions.
4.
ID.; ID.; ID.; ID.; REQUIREMENTS FOR
ADMISSIBILITY; PRESENT IN CASE AT BAR. All
that is required for their admissibility as part of
the res gestae is that they be made or uttered
under the influence of a startling event before the
declarant had the time to think and concoct a
falsehood as witnessed by the person who testified
in court. Under the circumstances, it is
unthinkable for ZHIENETH, a child of such tender
age and in extreme pain, to have lied to a doctor
whom she trusted with her life. We accord
credence to Gonzales' testimony on the matter, i.e.,
ZHIENETH performed no act that facilitated her
tragic death.
5.
ID.; ID.; ID.; CREDIBILITY OF WITNESSES;
FINDINGS OF THE TRIAL COURT GENERALLY
NOT DISTURBED ON APPEAL; EXCEPTIONS; NOT
PRESENT IN CASE AT BAR. It is settled that
when the issue concerns the credibility of
witnesses, the appellate courts will not as a
general rule disturb the findings of the trial court,
which is in a better position to determine the

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same. The trial court has the distinct advantage of
actually hearing the testimony of and observing
the deportment of the witnesses. However, the rule
admits of exceptions such as when its evaluation
was reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight
and substance which could affect the result of the
case. In the instant case, petitioners failed to bring
their claim within the exception.
6.
ID.;
ID.;
PRESUMPTION;
CHILDREN
BELOW NINE YEARS OLD, CONCLUSIVELY
PRESUMED
TO
BE
INCAPABLE
OF
CONTRIBUTORY NEGLIGENCE; CASE AT BAR.
Anent the negligence imputed to ZHIENETH, we
apply the conclusive presumption that favors
children below nine (9) years old incapable of
contributory negligence. In his book, (I Philippine
Law on Torts and Damages, 70-71 [1993]), former
Judge Cezar S. Sangco stated: In our jurisdiction,
a person under nine years of age is conclusively
presumed to have acted without discernment, and
is, on that account, exempt from criminal liability.
The same presumption and a like exemption from
criminal liability obtains in a case of a person over
nine and under fifteen years of age, unless it is
shown that he has acted with discernment. Since
negligence may be a felony and a quasi-delict and
required discernment as a condition of liability,
either criminal or civil, a child under nine years of
age is, by analogy, conclusively presumed to be
incapable of negligence; and that the presumption
of lack of discernment or incapacity for negligence
in the case of a child over nine but under fifteen
years of age is a rebuttable one, under our law.
The rule, therefore, is that a child under nine
years of age must be conclusively presumed
incapable of contributory negligence as a matter of
law. SDIACc
DECISION
DAVIDE, JR., C.J p:
In this petition for review on certiorari under Rule
45 of the Rules of Court, petitioners seek the
reversal of the 17 June 1996 decision 1 of the
Court of Appeals in C.A. G.R. No. CV 37937 and

the resolution 2 denying their motion for

reconsideration. The assailed decision set aside
the 15 January 1992 judgment of the Regional
Trial Court (RTC), Makati City, Branch 60 in Civil
Case No. 7119 and ordered petitioners to pay
damages
and
attorney's
fees
to
private
respondents Conrado and Criselda (CRISELDA)
Aguilar. cdasia
Petitioner Jarco Marketing Corporation is the
owner of Syvel's Department Store, Makati City.
Petitioners Leonardo Kong, Jose Tiope and Elisa
Panelo are the store's branch manager, operations
manager, and supervisor, respectively. Private
respondents are spouses and the parents of
Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and
ZHIENETH were at the 2nd floor of Syvel's
Department Store, Makati City. CRISELDA was
signing her credit card slip at the payment and
verification counter when she felt a sudden gust of
wind and heard a loud thud. She looked behind
her. She then beheld her daughter ZHIENETH on
the floor, her young body pinned by the bulk of the
store's
gift-wrapping
counter/structure.
ZHIENETH was crying and screaming for help.
Although shocked, CRISELDA was quick to ask
the assistance of the people around in lifting the
counter and retrieving ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati
Medical Center where she was operated on. The
next day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a
magic slate. The injuries she sustained took their
toil on her young body. She died fourteen (14) days
after the accident or on 22 May 1983, on the
hospital bed. She was six years old. 4
The cause of her death was attributed to the
injuries she sustained. The provisional medical
certificate 5 issued by ZHIENETH's attending
doctor described the extent of her injuries:
Diagnoses:

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1.
Shock, severe, sec.
injuries due to blunt injury

to

intra-abdominal

2.
Hemorrhage, massive, intraperitoneal sec.
to laceration, (L) lobe liver
3.
Rupture, stomach, anterior & posterior
walls
4.
Complete
duodenum

transection,

4th

position,

5.

Hematoma, extensive, retroperitoneal

6.

Contusion, lungs, severe

CRITICAL
After the burial of their daughter, private
respondents demanded upon petitioners the
reimbursement of the hospitalization, medical bills
and wake and funeral expenses 6 which they had
incurred. Petitioners refused to pay. Consequently,
private respondents filed a complaint for damages,
docketed as Civil Case No. 7119 wherein they
sought the payment of P157,522.86 for actual
damages, P300,000 for moral damages, P20,000
for attorney's fees and an unspecified amount for
loss of income and exemplary damages.
In their answer with counterclaim, petitioners
denied any liability for the injuries and consequent
death of ZHIENETH. They claimed that CRISELDA
was negligent in exercising care and diligence over
her daughter by allowing her to freely roam
around in a store filled with glassware and
appliances. ZHIENETH too, was guilty of
contributory negligence since she climbed the
counter, triggering its eventual collapse on her.
Petitioners also emphasized that the counter was
made of sturdy wood with a strong support; it
never fell nor collapsed for the past fifteen years
since its construction.
Additionally,
petitioner
Jarco
Marketing
Corporation maintained that it observed the
diligence of a good father of a family in the
selection, supervision and control of its employees.

The other petitioners likewise raised due care and

diligence in the performance of their duties and
countered that the complaint was malicious for
which they suffered besmirched reputation and
mental anguish. They sought the dismissal of the
complaint and an award of moral and exemplary
damages and attorney's fees in their favor. Cdpr
In its decision 7 the trial court dismissed the
complaint and counterclaim after finding that the
preponderance of the evidence favored petitioners.
It ruled that the proximate cause of the fall of the
counter on ZHIENETH was her act of clinging to it.
It believed petitioners' witnesses who testified that
ZHIENETH clung to the counter, afterwhich the
structure and the girl fell with the structure falling
on top of her, pinning her stomach. In contrast,
none of private respondents' witnesses testified on
how the counter fell. The trial court also held that
CRISELDA's
negligence
contributed
to
ZHIENETH's accident.
In absolving petitioners from any liability, the trial
court reasoned that the counter was situated at
the end or corner of the 2nd floor as a
precautionary measure hence, it could not be
considered as an attractive nuisance. 8 The
counter was higher than ZHIENETH. It has been
in existence for fifteen years. Its structure was safe
and well-balanced. ZHIENETH, therefore, had no
business climbing on and clinging to it.
Private respondents appealed the decision,
attributing as errors of the trial court its findings
that: (1) the proximate cause of the fall of the
counter was ZHIENETH's misbehavior; (2)
CRISELDA was negligent in her care of
ZHIENETH; (3) petitioners were not negligent in
the maintenance of the counter; and (4) petitioners
were not liable for the death of ZHIENETH.
Further, private respondents asserted that
ZHIENETH should be entitled to the conclusive
presumption that a child below nine (9) years is
incapable of contributory negligence. And even if
ZHIENETH, at six (6) years old, was already
capable of contributory negligence, still it was
physically impossible for her to have propped

Page 11 of 51
herself on the counter. She had a small frame (four
feet high and seventy pounds) and the counter was
much higher and heavier than she was. Also, the
testimony of one of the store's former employees,
Gerardo Gonzales, who accompanied ZHIENETH
when she was brought to the emergency room of
the Makati Medical Center belied petitioners'
theory that ZHIENETH climbed the counter.
Gonzales claimed that when ZHIENETH was asked
by the doctor what she did, ZHIENETH replied,
"[N]othing, I did not come near the counter and
the counter just fell on me." 9 Accordingly,
Gonzales' testimony on ZHIENETH's spontaneous
declaration should not only be considered as part
of res gestae but also accorded credit.
Moreover, negligence could not be imputed to
CRISELDA for it was reasonable for her to have let
go of ZHIENETH at the precise moment that she
was signing the credit card slip.
Finally, private respondents vigorously maintained
that the proximate cause of ZHIENETH's death,
was petitioners' negligence in failing to institute
measures to have the counter permanently nailed.

The Court of Appeals, however, decided in favor of

private respondents and reversed the appealed
judgment. It found that petitioners were negligent
in maintaining a structurally dangerous counter.
The counter was shaped like an inverted "L" 11
with a top wider than the base. It was top heavy
and the weight of the upper portion was neither
evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable
and dangerous; a downward pressure on the
overhanging portion or a push from the front
could cause the counter to fall. Two former
employees of petitioners had already previously
brought to the attention of the management the
danger the counter could cause. But the latter
ignored their concern. The Court of Appeals
faulted the petitioners for this omission, and
concluded that the incident that befell ZHIENETH
could have been avoided had petitioners repaired
the defective counter. It was inconsequential that
the counter had been in use for some time without
a prior incident.

On the other hand, petitioners argued that private

respondents raised purely factual issues which
could no longer be disturbed. They explained that
ZHIENETH's death while unfortunate and tragic,
was an accident for which neither CRISELDA nor
even ZHIENETH could entirely be held faultless
and blameless. Further, petitioners adverted to the
trial court's rejection of Gonzales' testimony as
unworthy of credence.

The Court of Appeals declared that ZHIENETH,

who was below seven (7) years old at the time of
the incident, was absolutely incapable of
negligence or other tort. It reasoned that since a
child under nine (9) years could not be held liable
even for an intentional wrong, then the six-year
old ZHIENETH could not be made to account for a
mere mischief or reckless act. It also absolved
CRISELDA of any negligence, finding nothing
wrong or out of the ordinary in momentarily
allowing ZHIENETH to walk while she signed the
document at the nearby counter. LLjur

As to private respondent's claim that the counter

should have been nailed to the ground, petitioners
justified that it was not necessary. The counter
had been in existence for several years without any
prior accident and was deliberately placed at a
corner to avoid such accidents. Truth to tell, they
acted without fault or negligence for they had
exercised due diligence on the matter. In fact, the
criminal case 10 for homicide through simple
negligence filed by private respondents against the
individual petitioners was dismissed; a verdict of
acquittal was rendered in their favor.

The Court of Appeals also rejected the testimonies

of the witnesses of petitioners. It found them
biased and prejudiced. It instead gave credit to the
testimony of disinterested witness Gonzales. The
Court of Appeals then awarded P99,420.86 as
actual damages, the amount representing the
hospitalization expenses incurred by private
respondents as evidenced by the hospital's
statement of account. 12 It denied an award for
funeral expenses for lack of proof to substantiate
the same. Instead, a compensatory damage of
P50,000 was awarded for the death of ZHIENETH.

Page 12 of 51
We quote the dispositive portion of the assailed
decision, 13 thus:
WHEREFORE, premises considered, the judgment
of the lower court is SET ASIDE and another one
is entered against [petitioners], ordering them to
pay
jointly
and
severally
unto
[private
respondents] the following:
1.
P50,000.00 by way of compensatory
damages for the death of Zhieneth Aguilar, with
legal interest (6% p.a.) from 27 April 1984;
2.
P99,420.86
as
reimbursement
hospitalization expenses incurred; with
interest (6% p.a.) from 27 April 1984;
3.
P100,000.00
damages;

as

moral

and

for
legal

exemplary

4.
and

P20,000.00 in the concept of attorney's fees;

5.

Costs.

Private respondents sought a reconsideration of

the decision but the same was denied in the Court
of Appeals' resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of
Appeals' decision and the reinstatement of the
judgment of the trial court. Petitioners primarily
argue that the Court of Appeals erred in
disregarding the factual findings and conclusions
of the trial court. They stress that since the action
was based on tort, any finding of negligence on the
part of the private respondents would necessarily
negate their claim for damages, where said
negligence was the proximate cause of the injury
sustained. The injury in the instant case was the
death of ZHIENETH. The proximate cause was
ZHIENETH's act of clinging to the counter. This act
in turn caused the counter to fall on her. This and
CRISELDA's contributory negligence, through her
failure to provide the proper care and attention to
her child while inside the store, nullified private
respondents' claim for damages. It is also for these
reasons that parents are made accountable for the

damage or injury inflicted on others by their minor

children. Under these circumstances, petitioners
could not be held responsible for the accident that
befell ZHIENETH.
Petitioners also assail the credibility of Gonzales
who was already separated from Syvel's at the
time he testified; hence, his testimony might have
been tarnished by ill-feelings against them.
For their part, private respondents principally
reiterated their arguments that neither ZHIENETH
nor CRISELDA was negligent at any time while
inside the store; the findings and conclusions of
the Court of Appeals are substantiated by the
evidence on record; the testimony of Gonzales,
who heard ZHIENETH comment on the incident
while she was in the hospital's emergency room
should receive credence; and finally, ZHIENETH's
part of the res gestae declaration "that she did
nothing to cause the heavy structure to fall on her"
should be considered as the correct version of the
gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the
death of ZHIENETH was accidental or attributable
to negligence; and (2) in case of a finding of
negligence, whether the same was attributable to
private respondents for maintaining a defective
counter or to CRISELDA and ZHIENETH for failing
to exercise due and reasonable care while inside
the store premises.
An accident pertains to an unforeseen event in
which no fault or negligence attaches to the
defendant. 15 It is "a fortuitous circumstance,
event or happening; an event happening without
any human agency, or if happening wholly or
partly through human agency, an event which
under the circumstances is unusual or
unexpected by the person to whom it happens." 16
On the other hand, negligence is the omission to
do something which a reasonable man, guided by
those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing

Page 13 of 51
of something which a prudent and reasonable
man would not do. 17 Negligence is "the failure to
observe, for the protection of the interest of
another person, that degree of care, precaution
and vigilance which the circumstances justly
demand, whereby such other person suffers
injury." 18
Accident
and
negligence
are
intrinsically
contradictory; one cannot exist with the other.
Accident occurs when the person concerned is
exercising ordinary care, which is not caused by
fault of any person and which could not have been
prevented by any means suggested by common
prudence. 19
The test in determining the existence of negligence
is enunciated in the landmark case of Picart v.
Smith, 20 thus: Did the defendant in doing the
alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would
have used in the same situation? If not, then he is
guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH
was no accident and that ZHIENETH's death could
only be attributable to negligence. LLjur
We quote the testimony of Gerardo Gonzales who
was at the scene of the incident and accompanied
CRISELDA and ZHIENETH to the hospital:
Q
While at the Makati Medical Center, did you
hear or notice anything while the child was being
treated?
A
At the emergency room we were all
surrounding the child. And when the doctor asked
the child "what did you do," the child said
"nothing, I did not come near the counter and the
counter just fell on me."
Q

(COURT TO ATTY. BELTRAN)

You want the words in Tagalog to be

translated?
ATTY. BELTRAN

Yes, your Honor.

COURT
Granted. Intercalate "wala po, hindi po ako
lumapit doon. Basta bumagsak." 22
This testimony of Gonzales pertaining to
ZHIENETH's statement formed (and should be
admitted as) part of the res gestae under Section
42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person
while a startling occurrence is taking place or
immediately prior or subsequent thereto with
respect to the circumstances thereof, may be given
in evidence as part of the res gestae. So, also,
statements accompanying an equivocal act
material to the issue, and giving it a legal
significance, may be received as part of the res
gestae.
It is axiomatic that matters relating to declarations
of pain or suffering and statements made to a
physician are generally considered declarations
and admissions. 23 All that is required for their
admissibility as part of the res gestae is that they
be made or uttered under the influence of a
startling event before the declarant had the time to
think and concoct a falsehood as witnessed by the
person who testified in court. Under the
circumstances thus described, it is unthinkable
for ZHIENETH, a child of such tender age and in
extreme pain, to have lied to a doctor whom she
trusted with her life. We therefore accord credence
to Gonzales' testimony on the matter, i.e.,
ZHIENETH performed no act that facilitated her
tragic death. Sadly, petitioners did, through their
negligence or omission to secure or make stable
the counter's base.
Gonzales' earlier testimony on petitioners'
insistence to keep and maintain the structurally
unstable gift-wrapping counter proved their
negligence, thus:
Q
When you assumed the position as gift
wrapper at the second floor, will you please

Page 14 of 51
describe the gift wrapping counter, were you able
to examine?
A
Because every morning before I start
working I used to clean that counter and since it is
not nailed and it was only standing on the floor, it
was shaky.
xxx

xxx

xxx

Q
Will you please describe the counter at 5:00
o'clock [sic] in the afternoon on [sic] May 9, 1983?
A
At that hour on May 9, 1983, that counter
was standing beside the verification counter. And
since the top of it was heavy and considering that
it was not nailed, it can collapsed at anytime,
since the top is heavy.
xxx
Q

xxx

xxx

And what did you do?

A
I informed Mr. Maat about that counter
which is [sic] shaky and since Mr. Maat is fond of
putting display decorations on tables, he even told
me that I would put some decorations. But since I
told him that it not [sic] nailed and it is shaky he
told me "better inform also the company about it."
And since the company did not do anything about
the counter, so I also did not do anything about
the counter. 24 [Emphasis supplied]
Ramon Guevarra, another former employee,
corroborated the testimony of Gonzales, thus:
Q
Will you please described [sic] to the
Honorable Court the counter where you were
assigned in January 1983?
xxx

xxx

xxx

A
That counter assigned to me was when my
supervisor ordered me to carry that counter to
another place. I told him that the counter needs
nailing and it has to be nailed because it might
cause injury or accident to another since it was
shaky. LibLex

Q
When that gift wrapping counter was
transferred at the second floor on February 12,
1983, will you please describe that to the
honorable Court?
A
I told her that the counter wrapper [sic] is
really in good [sic] condition; it was shaky. I told
her that we had to nail it.
Q
When you said she, to whom are you
referring to [sic]?
A

I am referring to Ms. Panelo, sir.

Q
And what was the answer of Ms. Panelo
when you told her that the counter was shaky?
A
She told me "Why do you have to teach me.
You are only my subordinate and you are to teach
me? And she even got angry at me when I told her
that.
xxx

xxx

xxx

Q
From February 12, 1983 up to May 9, 1983,
what if any, did Ms. Panelo or any employee of the
management do to that [sic]
xxx

xxx

xxx

Witness:
None, sir. They never nailed the counter.
They only nailed the counter after the accident
happened. 25 [Emphasis supplied]
Without doubt, petitioner Panelo and another store
supervisor were personally informed of the danger
posed by the unstable counter. Yet, neither
initiated any concrete action to remedy the
situation nor ensure the safety of the store's
employees and patrons as a reasonable and
ordinary prudent man would have done. Thus, as
confronted by the situation petitioners miserably
failed to discharge the due diligence required of a
good father of a family.

Page 15 of 51
On the issue of the credibility of Gonzales and
Guevarra, petitioners failed to establish that the
former's testimonies were biased and tainted with
partiality. Therefore, the allegation that Gonzales
and Guevarra's testimonies were blemished by "ill
feelings" against petitioners since they
(Gonzales and Guevarra) were already separated
from the Company at the time their testimonies
were offered in court was but mere speculation
and deserved scant consideration.
It is settled that when the issue concerns the
credibility of witnesses, the appellate courts will
not as a general rule disturb the findings of the
trial court, which is in a better position to
determine the same. The trial court has the
distinct advantage of actually hearing the
testimony of and observing the deportment of the
witnesses. 26 However, the rule admits of
exceptions such as when its evaluation was
reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight
and substance which could affect the result of the
case. 27 In the instant case, petitioners failed to
bring their claim within the exception.
Anent the negligence ZHIENETH, we apply the
conclusive presumption that favors children below
nine (9) years old in that they are incapable of
contributory negligence. In his book, 28 former
Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of
age is conclusively presumed to have acted
without discernment, and is, on that account,
exempt from criminal liability. The same
presumption and a like exemption from criminal
liability obtains in a case of a person over nine and
under fifteen years of age, unless it is shown that
he has acted with discernment. Since negligence
may be a felony and a quasi-delict and required
discernment as a condition of liability, either
criminal or civil, a child under nine years of age is,
by analogy, conclusively presumed to be incapable
of negligence; and that the presumption of lack of
discernment or incapacity for negligence in the
case of a child over nine but under fifteen years of
age is a rebuttable one, under our law. The rule,

therefore, is that a child under nine years of age

must be conclusively presumed incapable of
contributory negligence as a matter of law.
[Emphasis supplied]
Even if we attribute contributory negligence to
ZHIENETH and assume that she climbed over the
counter, no injury should have occurred if we
accept petitioners' theory that the counter was
stable and sturdy. For if that was the truth, a frail
six-year old could not have caused the counter to
collapse. The physical analysis of the counter by
both the trial court and Court of Appeals and a
scrutiny of the evidence 29 on record reveal
otherwise, i.e., it was not durable after all. Shaped
like an inverted "L," the counter was heavy, huge,
and its top laden with formica. It protruded
towards the customer waiting area and its base
was not secured. 30
CRISELDA too, should be absolved from any
contributory negligence. Initially, ZHIENETH held
on to CRISELDA's waist, later to the latter's hand.
31 CRISELDA momentarily released the child's
hand from her clutch when she signed her credit
card slip. At this precise moment, it was
reasonable and usual for CRISELDA to let go of
her child. Further, at the time ZHIENETH was
pinned down by the counter, she was just a foot
away from her mother; and the gift-wrapping
counter was just four meters away from
CRISELDA. 32 The time and distance were both
significant. ZHIENETH was near her mother and
did not loiter as petitioners would want to impress
upon us. She even admitted to the doctor who
treated her at the hospital that she did not do
anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the
instant petition is DENIED and the challenged
decision of the Court of Appeals of 17 June 1996
in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED. LibLex

Page 16 of 51
Puno, Kapunan, Pardo and Ynares-Santiago, JJ.,
concur.
FIRST DIVISION
[G.R. No. 89880. February 6, 1991.]
EMMA ADRIANO BUSTAMANTE, in her own
behalf as Guardian-Ad-Litem of minors:
ROSSEL, GLORIA, YOLANDA, ERICSON and
EDERIC, all surnamed BUSTAMANTE, Spouses
SALVADOR JOCSON and PATRIA BONEJOCSON,
Spouses
JOSE
RAMOS
and
ENRIQUETA CEBU-RAMOS, Spouses NARCISO
HIMAYA and ADORACION MARQUEZ-HIMAYA,
and Spouses JOSE BERSAMINA AND MA.
COMMEMORACION
PEREA-BUSTAMANTE,
petitioners, vs. THE HONORABLE COURT OF
APPEALS,
FEDERICO
DEL
PILAR
AND
EDILBERTO MONTESIANO, respondents.
Dolorfino and
petitioners.

Dominguez

J . C . Baldoz
respondents.

&

Law

Associates

"Due to the impact, several passengers of the bus

were thrown out and died as a result of the
injuries they sustained, Among those killed were
the following:
"1.
Rogelio Bustamante, 40, husband of
plaintiff Emma Adriano Bustamante and father of
plaintiffs Rossel, Gloria, Yolanda, Ericson, and
Ederic, all surnamed Bustamante;

for

"2.
Maria Corazon Jocson, 16, daughter of
plaintiffs spouses Salvador and Patria Jocson;

private

"3.
Jolet C. Ramos, 16, daughter of plaintiffs
spouses Jose and Enriqueta Ramos;

Offices

for

"At about 6:30 in the morning of April 20, 1983, a

collision occurred between a gravel and sand
truck, with Plate No. DAP 717, and a Mazda
passenger bus with Motor No. Y2231 and Plate No.
DVT 259 along the national road at Calibuyo,
Tanza, Cavite. The front left side portion
(barandilla) of the body of the truck sideswiped the
left side wall of the passenger bus, ripping off the
said wall from the driver's seat to the last rear
seat.

DECISION
MEDIALDEA, J p:
This is a petition for review on certiorari seeking
the reversal of the decision of the respondent
Court of Appeals dated February 15, 1989 which
reversed and set aside the decision of the Regional
Trial Court of Cavite, Branch XV ordering the
defendants to pay jointly and severally the
plaintiffs indemnity for death and damages; and in
further dismissing the complaint insofar as
defendants-appellants Federico del Pilar and
Edilberto Montesiano are concerned; and its
resolution dated August 17, 1989 denying the
motion for reconsideration for lack of merit.
The facts giving rise to the controversy at bar are
recounted by the trial court as follows:

"4.
Enrico Himaya, 18, son of plaintiffs spouses
Narciso and Adoracion Himaya; and
"5.
Noel Bersamina, 17, son of plaintiffs
spouses
Jose
and
Ma.
Commemoracion
Bersamina." (Rollo, p. 48)
During the incident, the cargo truck was driven by
defendant Montesiano and owned by defendant
Del Pilar; while the passenger bus was driven by
defendant Susulin. The vehicle was registered in
the name of defendant Novelo but was owned and
or operated as a passenger bus jointly by
defendants Magtibay and Serrado, under a
franchise, with a line from Naic, Cavite, to
Baclaran, Paraaque, Metro Manila, and vice
versa, which Novelo sold to Magtibay on November
8, 1981, and which the latter transferred to
Serrado (Cerrado) on January 18, 1983. LLjur

Page 17 of 51
Immediately before the collision, the cargo truck
and the passenger bus were approaching each
other, coming from the opposite directions of the
highway. While the truck was still about 30 meters
away, Susulin, the bus driver, saw the front wheels
of the vehicle wiggling. He also observed that the
truck was heading towards his lane. Not minding
this circumstance due to his belief that the driver
of the truck was merely joking, Susulin shifted
from fourth to third gear in order to give more
power and speed to the bus, which was ascending
the inclined part of the road, in order to overtake
or pass a Kubota hand tractor being pushed by a
person along the shoulder of the highway. While
the bus was in the process of overtaking or
passing the hand tractor and the truck was
approaching the bus, the two vehicles sideswiped
each other at each other's left side. After the
impact, the truck skidded towards the other side
of the road and landed on a nearby residential lot,
hitting a coconut tree and felling it." (Rollo, pp. 4850)
After a careful perusal of the circumstances of the
case, the trial court reached the conclusion "that
the negligent acts of both drivers contributed to or
combined with each other in directly causing the
accident which led to the death of the
aforementioned persons. It could not be
determined from the evidence that it was only the
negligent act of one of them which was the
proximate cause of the collision. In view of this,
the liability of the two drivers for their negligence
must be solidary. (Rollo, pp. 50-51) Accordingly,
the trial court rendered a decision on March 7,
1986, the dispositive portion is hereunder quoted
as follows:
"WHEREFORE, defendants Valeriano Magtibay,
Simplicio Serrado, Ricardo Susulin, Efren Novelo,
Federico del Pilar and Edilberto Montesiano are
hereby ordered to pay jointly and severally to the
plaintiffs, as follows:
"1.
To plaintiffs Emma Adriano Bustamante
and her minor children, the sum of P30,000.00 as
indemnity for the death of Rogelio Bustamante;
U.S. $127,680.00 as indemnity for the loss of the

earning capacity of the said deceased, at its

prevailing rate in pesos at the time this decision
shall have become final and executory; P10,000.00
as moral damages; and P5,000.00 as exemplary
damages;
"2.
To plaintiffs Salvador and Patria Jocson,
the sum of P30,000.00 as indemnity for the death
of their daughter, Maria Corazon Jocson;
P10,000.00 as moral damages; and P5,000.00 as
exemplary damages;
"3.
To plaintiffs Jose and Enriqueta Ramos, the
sum of P30,000.00 as indemnity for the death of
their daughter, Jolet Ramos; P10,000.00 as moral
damages; and P5,000.00 as exemplary damages;
and
"4.
To plaintiffs Narciso and Adoracion Himaya,
the amount of P30,000.00 as indemnity for the
death of their son, Enrico Himaya, P10,000.00 as
moral damages; and P5,000.00 as exemplary
damages; and
"5.
To plaintiffs Jose and Ma. Commemoracion
Bersamina, the sum of P30,000.00 as indemnity
for the death of their son, Noel Bersamina,
P10,000.00 as moral damages; and P5,000.00 as
exemplary damages.
"The defendants are also required to pay the
plaintiffs the sum of P10,000.00 as attorney's fees
and to pay the costs of the suit.
"The cross-claim of defendant Novelo is hereby
allowed, and defendants Magtibay and Serrado,
the actual owners and or operators of the
passenger bus concerned, are hereby ordered to
indemnify Novelo in such amount as he may be
required to pay as damages to the plaintiffs.
"The cross-claims and counter-claims of the other
defendants are hereby dismissed for lack of merit.
prLL
"SO ORDERED." (pp. 55-57, Rollo)

Page 18 of 51
From said decision, only defendants Federico del
Mar and Edilberto Montesiano, owner and driver,
respectively, of the sand and gravel truck have
interposed an appeal before the respondent Court
of Appeals. The Court of Appeals decided the
appeal on a different light. It rendered judgment
on February 15, 1989, to wit:
"WHEREFORE, the appealed judgment is hereby
REVERSED and SET ASIDE and the complaint
dismissed
insofar
as
defendants-appellants
Federico del Pilar and Edilberto Montesiano are
concerned. No costs in this instance."
"SO ORDERED." (p. 96, Rollo)
On March 9, 1989, the plaintiffs-appellees filed a
motion for reconsideration of the aforementioned
Court of Appeals' decision. However, respondent
Court of Appeals in a resolution dated August 17,
1989 denied the motion for lack of merit. Hence,
this petition.
Petitioners raised the following questions of law,
namely:
"First. Whether the respondent Court can legally
and validly absolve defendants-appellants from
liability despite its own finding, as well as that of
the trial court that defendant-appellant Edilberto
Montesiano, the cargo truck driver, was driving an
old vehicle very fast, with its wheels already
wiggling, such that he had no more control of his
truck.
"Second. Whether the respondent court can validly
and legally disregard the findings of fact made by
the trial court which was in a better position to
observe the conduct and demeanor of the
witnesses,
particularly
appellant
Edilberto
Montesiano, cargo truck driver, and which
conclusively found appellant Montesiano as jointly
and severally negligent in driving his truck very
fast and had lost control of his truck.
"Third. Whether the respondent court has properly
and legally applied the doctrine of 'last clear
chance' in the present case despite its own finding

that appellant cargo truck driver Edilberto

Montesiano was admittedly negligent in driving his
cargo truck very fast on a descending road and in
the presence of the bus driver coming from the
opposite direction.
"Fourth. Whether the respondent court has
applied the correct law and the correct doctrine so
as to reverse and set aside the judgment with
respect to defendants-appellants." (Rollo, pp. 133134)
As a rule, findings of fact of the Court of Appeals
are final and conclusive and cannot be reviewed on
appeal, provided, they are borne out by the record
or are based on substantial evidence. However,
this rule admits of certain exceptions, as when the
findings of facts are conclusions without citation
of specific evidence on which they are based; or
the appellate court's findings are contrary to those
of the trial court. (Sese v. Intermediate Appellate
Court, G.R. 66168, 31 July 1987, 152 SCRA 585).
Furthermore, only questions of law may be raised
in a petition for review on certiorari under Rule 45
of the Revised Rules of Court. The jurisdiction of
the Supreme Court in cases brought to it from the
Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings
of fact being conclusive. It is not the function of
the Supreme Court to analyze or weigh such
evidence all over again, its jurisdiction being
limited to reviewing errors of law that might have
been committed. Barring, therefore, a showing
that the findings complained of are totally devoid
of support in the records, or that they are so
glaringly erroneous as to constitute serious abuse
of discretion, such findings must stand for the
Supreme Court is not expected or required to
examine or contrast the oral and documentary
evidence submitted by the parties. (Andres v.
Manufacturers Hanover and Trust Corp., G.R.
82670, 15 September 1989, 177 SCRA 618).
Bearing in mind these basic principles, We have
opted to re-examine the findings of fact mainly
because the appellate court's findings are contrary
to those of the trial court. cdphil

Page 19 of 51
The trial court, in declaring that the negligent acts
of both drivers directly caused the accident which
led to the death of the aforementioned persons,
considered the following:
"It was negligent on the part of driver Montesiano
to have driven his truck fast, considering that it
was an old vehicle, being a 1947 model as
admitted by its owner, defendant Del Pilar; that its
front wheels were wiggling; that the road was
descending; and that there was a passenger bus
approaching it. Likewise, driver Susulin was also
guilty of negligence in not taking the necessary
precaution to avoid the collision, in the light of his
admission that, at a distance of 30 meters, he
already saw the front wheels of the truck wiggling
and that the vehicle was usurping his lane coming
towards his direction. Had he exercised ordinary
prudence, he could have stopped his bus or
swerved it to the side of the road even down to its
shoulder. And yet, Susulin shifted to third gear so
as to, as claimed by him, give more power and
speed to his bus in overtaking or passing a hand
tractor which was being pushed along the
shoulder of the road." (Rollo, p. 50)
The respondent Court of Appeals ruling on the
contrary, opined that "the bus driver had the last
clear chance to avoid the collision and his reckless
negligence in proceeding to overtake the hand
tractor was the proximate cause of the collision."
(Rollo, p. 95). Said court also noted that "the
record also discloses that the bus driver was not a
competent and responsible driver. His driver's
license was confiscated for a traffic violation on
April 17, 1983 and he was using a ticket for said
traffic violation on the day of the accident in
question (pp. 16-18, TSN, July 23, 1984). He also
admitted that he was not a regular driver of the
bus that figured in the mishap and was not given
any practical examination. (pp. 11, 96, TSN,
supra)." (Rollo, p. 96)
The respondent Court quoting People v. Vender,
CA-G.R. 11114-41-CR, August 28, 1975 held that
"We are not prepared to uphold the trial court's
finding that the truck was running fast before the
impact. The national road, from its direction, was

descending. Courts can take judicial notice of the

fact that a motor vehicle going down or descending
is more liable to get out of control than one that is
going up or ascending for the simple reason that
the one which is going down gains added
momentum while that which is going up loses its
initial speeding in so doing."
On the other hand, the trial court found and We
are convinced that the cargo truck was running
fast. It did not overlook the fact that the road was
descending as in fact it mentioned this
circumstance as one of the factors disregarded by
the cargo truck driver along with the fact that he
was driving an old 1947 cargo truck whose front
wheels are already wiggling and the fact that there
is a passenger bus approaching it. In holding that
the driver of the cargo truck was negligent, the
trial court certainly took into account all these
factors so it was incorrect for the respondent court
to disturb the factual findings of the trial court,
which is in a better position to decide the
question, having heard the witnesses themselves
and observed their deportment. Cdpr
The respondent court adopted the doctrine of "last
clear chance." The doctrine, stated broadly, is that
the negligence of the plaintiff does not preclude a
recovery for the negligence of the defendant where
it appears that the defendant, by exercising
reasonable care and prudence, might have avoided
injurious
consequences
to
the
plaintiff
notwithstanding the plaintiff's negligence. In other
words, the doctrine of last clear chance means
that even though a person's own acts may have
placed him in a position of peril, and an injury
results, the injured person is entitled to recovery.
As the doctrine is usually stated, a person who
has the last clear chance or opportunity of
avoiding an accident, notwithstanding the
negligent acts of his opponent or that of a third
person imputed to the opponent is considered in
law solely responsible for the consequences of the
accident. (Sangco, Torts and Damages, 4th Ed.,
1986, p. 165).
The practical import of the doctrine is that a
negligent defendant is held liable to a negligent

Page 20 of 51
plaintiff, or even to a plaintiff who has been
grossly negligent in placing himself in peril, if he,
aware of the plaintiffs peril, or according to some
authorities, should have been aware of it in the
reasonable exercise of due care, had in fact an
opportunity later than that of the plaintiff to avoid
an accident (57 Am. Jur., 2d, pp. 798-799).
In the recent case of Philippine Rabbit Bus Lines,
Inc. v. Intermediate Appellate Court, et al. (G.R.
Nos. 66102-04, August 30, 1990), the Court citing
the landmark decision held in the case of Anuran,
et al. v. Buno, et al. (123 Phil. 1073) ruled that the
principle of "last clear chance" applies "in a suit
between the owners and drivers of colliding
vehicles. It does not arise where a passenger
demands responsibility from the carrier to enforce
its contractual obligations. For it would be
inequitable to exempt the negligent driver of the
jeepney and its owners on the ground that the
other driver was likewise guilty of negligence."
Furthermore, "as between defendants: The
doctrine cannot be extended into the field of joint
tortfeasors as a test of whether only one of them
should be held liable to the injured person by
reason of his discovery of the latter's peril, and it
cannot be invoked as between defendants
concurrently negligent. As against third persons, a
negligent actor cannot defend by pleading that
another had negligently failed to take action which
could have avoided the injury." (57 Am. Jur. 2d,
pp. 806-807).
All premises considered, the Court is convinced
that the respondent Court committed an error of
law in applying the doctrine of last clear chance as
between the defendants, since the case at bar is
not a suit between the owners and drivers of the
colliding vehicles but a suit brought by the heirs of
the deceased passengers against both owners and
drivers of the colliding vehicles. Therefore, the
respondent court erred in absolving the owner and
driver of the cargo truck from liability.
Pursuant to the new policy of this Court to grant
an increased death indemnity to the heirs of the

deceased, their respective awards of P30,000.00

are hereby increased to P50,000.00. cdll
ACCORDINGLY, the petition is GRANTED; the
appealed judgment and resolution of the Court of
Appeals are hereby REVERSED and SET ASIDE
and the judgment of the lower court is
REINSTATED with the modification on the
indemnity for death of each of the victims which is
hereby increased to P50,000.00 each. No
pronouncement as to costs.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ.,
concur.
THIRD DIVISION
[G.R. No. 68102. July 16, 1992.]
GEORGE MCKEE and ARACELI KOH MCKEE,
petitioners, vs. INTERMEDIATE APPELLATE
COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.
[G.R. No. 68103. July 16, 1992.]
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA
KOH TUQUERO, ARACELI KOH MCKEE,
ANTONIO KOH and ELIZABETH KOH TURLA,
petitioners, vs. INTERMEDIATE APPELLATE
COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.
SYLLABUS
1.
REMEDIAL LAW; CIVIL PROCEDURE;
CONSOLIDATION OF ACTIONS; OBJECTIVES.
Section 1, Rule 31 of the Rules of Court, which
seeks to avoid a multiplicity of suits, guard against
oppression and abuse, prevent delays, clear
congested dockets to simplify the work of the trial
court, or in short, attain justice with the least
expense to the parties litigants, would have easily
sustained a consolidation, thereby preventing the
unseeming, if not ludicrous, spectacle of two (2)

Page 21 of 51
judges appreciating, according to their respective
orientation,
perception
and
perhaps
even
prejudice, the same facts differently, and
thereafter rendering conflicting decisions.
2.
ID.;
CRIMINAL
PROCEDURE;
PROSECUTION
OF
CIVIL
ACTION;
CONSOLIDATION
OF
INDEPENDENT
CIVIL
ACTION WITH CRIMINAL ACTION; REQUISITE.
In the recent case of Cojuangco vs. Court of
Appeals, this Court held that the present
provisions of Rule 111 of the Revised Rules of
Court allow a consolidation of an independent civil
action for the recovery of civil liability authorized
under Articles 32, 33, 34 or 2176 of the Civil Code
with the criminal action subject, however, to the
condition that no final judgment has been
rendered in that criminal case.
3.
ID.; ID.; APPEALS; SUPREME COURT NOT
A TRIER OF FACTS; ONLY QUESTIONS OF LAW
MAY BE RAISED IN APPEAL BY CERTIORARI
UNDER RULE 45; FACTUAL FINDINGS OF LOWER
COURTS GENERALLY BINDING ON SUPREME
COURT; EXCEPTIONS; CASE AT BAR. 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 Revised 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. The foregoing rule, however, is not
without exceptions. Findings of facts of the trial
courts and the Court of Appeals may be set aside
when such findings are not supported by the
evidence or when the trial court failed to consider
the material facts which would have led to a
conclusion different from what was stated in its
judgment. The same is true where the appellate
court's conclusions are grounded entirely on
conjectures, speculations and surmises or where
the conclusions of the lower courts are based on a
misapprehension of facts. It is at once obvious to
this Court that the instant case qualifies as one of
the aforementioned exceptions as the findings and
conclusions of the trial court and the respondent
Court in its challenged resolution are not

supported by the evidence, are based on a

misapprehension of facts and the inferences made
therefrom
are
manifestly
mistaken.
The
respondent Court's decision of 29 November 1983
makes the correct findings of fact.
4.
ID.; EVIDENCE; PRESUMPTION THAT
OFFICIAL DUTY HAD BEEN REGULARLY
PERFORMED; CASE AT BAR. We cannot give
credence to private respondents' claim that there
was an error in the translation by the investigating
officer of the truck driver's response in Pampango
as to whether the speed cited was in kilometers
per hour or miles per hour. The law presumes that
official duty has been regularly performed; unless
there is proof to the contrary, this presumption
holds. In the instant case, private respondents'
claim is based on mere conjecture.
5.
CIVIL
LAW;
QUASI-DELICTS;
INDEPENDENT CIVIL ACTIONS; RESPONSIBILITY
FOR FAULT OR NEGLIGENCE IN QUASI-DELICT
SEPARATE AND DISTINCT FROM CIVIL LIABILITY
ARISING FROM NEGLIGENCE UNDER THE
PENAL CODE; ACQUITTAL OR CONVICTION IN
CRIMINAL ACTION ENTIRELY IRRELEVANT TO
INDEPENDENT CIVIL ACTION; CASE AT BAR.
As We held in Dionisio vs. Alvendia, the
responsibility arising from fault or negligence in a
quasi-delict is entirely separate and distinct from
the civil liability arising from negligence under the
Penal Code. And, as more concretely stated in the
concurring opinion of Justice J.B.L. Reyes, "in the
case of independent civil actions under the new
Civil Code, the result of the criminal case, whether
acquittal or conviction, would be entirely irrelevant
to the civil action." In Salta vs. De Veyra and PNB
vs. Purisima, this Court stated: ". . . It seems
perfectly reasonable to conclude that the civil
actions mentioned in Article 33, permitted in the
same manner to be filed separately from the
criminal case, may proceed similarly regardless of
the result of the criminal case. Indeed, when the
law has allowed a civil case related to a criminal
case, to be filed separately and to proceed
independently even during the pendency of the
latter case, the intention is patent to make the
court's disposition of the criminal case of no effect

Page 22 of 51
whatsoever on the separate civil case. This must
be so because the offenses specified in Article 33
are of such a nature, unlike other offenses not
mentioned, that they may be made the subject of a
separate civil action because of the distinct
separability of their respective juridical cause or
basis of action . . . ." What remains to be the most
important consideration as to why the decision in
the criminal case should not be considered in this
appeal is the fact that private respondents were
not parties therein. It would have been entirely
different if the petitioners' cause of action was for
damages arising from a delict, in which case
private respondents' liability could only be
subsidiary pursuant to Article 103 of the Revised
Penal Code. In the absence of any collusion, the
judgment of conviction in the criminal case
against Galang would have been conclusive in the
civil cases for the subsidiary liability of the private
respondents.
6.
ID.; ID.; LIABILITY OF EMPLOYERS FOR
ACTS OR OMISSIONS OF EMPLOYEES; BASIS;
DEFENSE AVAILABLE TO EMPLOYER. As
employers of the truck driver, the private
respondents are, under Article 2180 of the Civil
Code, directly and primarily liable for the resulting
damages. The presumption that they are negligent
flows from the negligence of their employee. That
presumption, however, is only juris tantum, not
juris et de jure. Their only possible defense is that
they exercised all the diligence of a good father of a
family to prevent the damage. Article 2180 reads
as follows: "The obligation imposed by Article 2176
is demandable not only for one's own acts or
omissions, but also for those of persons for whom
one is responsible. . . . 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. . . . 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." The diligence of a good
father referred to means the diligence in the
selection and supervision of employees. The
answers of the private respondents in Civil Cases

Nos. 4477 and 4478 did not interpose this

defense. Neither did they attempt to prove it.
7.
ID.; ID.; INDEMNITY FOR DEATH. In the
light of recent decisions of this Court, the
indemnity for death must, however, be increased
from P12,000.00 to P50,000.00.
8.
ID.; ID.; NEGLIGENCE; DEFINED; TEST BY
WHICH
EXISTENCE
OF
NEGLIGENCE
DETERMINED. Negligence was defined and
described by this Court in Layugan vs.
Intermediate Appellate Court, thus: ". . .
Negligence is the omission to do something which
a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which
a prudent and reasonable man would not do
(Black's Law Dictionary, Fifth Edition, 930), or as
Judge Cooley defines it, '(T)he 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.' (Cooley on Torts,
Fourth Edition, vol. 3, 265) In Picart vs. Smith (37
Phil. 809, 813), decided more than seventy years
ago but still a sound rule, (W)e held: The test by
which to determine the existence of negligence in a
particular case may be stated as follows: Did the
defendant in doing the alleged negligent act use
that (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. . . ." In Corliss vs. Manila Railroad
Company, We held: ". . . 'Negligence is want of the
care required by the circumstances. It is a relative
or comparative, not an absolute, term and its
application depends upon the situation of the
parties and the degree of care and vigilance which
the circumstances reasonably require. Where the
danger is great, a high degree of care is necessary,
and the failure to observe it is a want of ordinary
care under the circumstances. (citing Ahern v.
Oregon Telephone Co., 35 Pac. 549 (1894).'"

Page 23 of 51
9.
ID.;
ID.;
ID.;
EMERGENCY
RULE;
EXPLAINED; CASE AT BAR. On the basis of the
foregoing definition, the test of negligence and the
facts obtaining in this case, it is manifest that no
negligence could be imputed to Jose Koh. Any
reasonable and ordinary prudent man would have
tried to avoid running over the two boys by
swerving the car away from where they were even
if this would mean entering the opposite lane.
Avoiding such immediate peril would be the
natural course to take particularly where the
vehicle in the opposite lane would be several
meters away and could very well slow down, move
to the side of the road and give way to the
oncoming car. Moreover, under what is known as
the emergency 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 emergency
in which he finds himself is brought about by his
own negligence. Considering the sudden intrusion
of the two (2) boys into the lane of the car, We find
that Jose Koh adopted the best means possible in
the given situation to avoid hitting them. Applying
the above test, therefore, it is clear that he was not
guilty of negligence.
10.
ID.;
ID.;
ID.;
PROXIMATE
CAUSE;
DEFINED; CASE AT BAR. Proximate cause has
been defined 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.' And more comprehensively, the
proximate legal cause is that acting first and
producing the injury, either immediately or by
setting 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 effecting 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
ordinary 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." Applying the above
definition, although it may be said that the act of
Jose Koh, if at all negligent, was the initial act in
the chain of events, it cannot be said that the
same caused the eventual injuries and deaths
because of the occurrence of a sufficient
intervening event, the negligent act of the truck
driver, which was the actual cause of the tragedy.
The entry of the car into the lane of the truck
would not have resulted in the collision had the
latter heeded the emergency signals given by the
former to slow down and give the car an
opportunity to go back into its proper lane. Instead
of slowing down and swerving to the far right of
the road, which was the proper precautionary
measure under the given circumstances, the truck
driver continued at full speed towards the car. The
truck driver's negligence becomes more apparent
in view of the fact that the road is 7.50 meters
wide while the car measures 1.598 meters and the
truck, 2.286 meters, in width. This would mean
that both car and truck could pass side by side
with a clearance of 3.661 meters to spare.
Furthermore, the bridge has a level sidewalk
which could have partially accommodated the
truck. Any reasonable man finding himself in the
given situation would have tried to avoid the car
instead of meeting it head-on.
11.
ID.; ID.; ID.; PRESUMPTION THAT DRIVER
OF MOTOR VEHICLE NEGLIGENT; CASE AT BAR.
The truck driver's negligence is apparent in the
records. He himself said that his truck was
running at 30 miles (48 kilometers) per hour along
the bridge while the maximum speed allowed by
law on a bridge is only 30 kilometers per hour.
Under Article 2185 of the Civil Code, a person
driving a vehicle is presumed negligent if at the
time of the mishap, he was violating any traffic
regulation.
12.
ID.; ID.; ID.; DOCTRINE OF LAST CLEAR
CHANCE; EXPLAINED. Last clear chance is a
doctrine in the law of torts which states that the
contributory negligence of the party injured will
not defeat the claim for damages if it is shown that

Page 24 of 51
the defendant might, by the exercise of reasonable
care
and
prudence,
have
avoided
the
consequences of the negligence of the injured
party. In such cases, the person who had the last
clear chance to avoid the mishap is considered in
law solely responsible for the consequences
thereof. In Bustamante vs. Court of Appeals, We
held: "The respondent court adopted the doctrine
of 'last clear chance.' The doctrine, stated broadly,
is that the negligence of the plaintiff does not
preclude a recovery for the negligence of the
defendant where it appears that the defendant, by
exercising reasonable care and prudence, might
have avoided injurious consequences to the
plaintiff notwithstanding the plaintiff's negligence.
In other words, the doctrine of last clear chance
means that even though a person's own acts may
have placed him in a position of peril, and an
injury results, the injured person is entitled to
recovery (sic). As the doctrine is usually stated, a
person who has the last clear chance or
opportunity
of
avoiding
an
accident,
notwithstanding the negligent acts of his opponent
or that of a third person imputed to the opponent
is considered in law solely responsible for the
consequences of the accident. (Sangco, Torts and
Damages, 4th Ed., 1986, p. 165). The practical
import of the doctrine is that a negligent
defendant is held liable to a negligent plaintiff, or
even to a plaintiff who has been grossly negligent
in placing himself in peril, if he, aware of the
plaintiff's peril, or according to some authorities,
should have been aware of it in the reasonable
exercise of due care, had in fact an opportunity
later than that of the plaintiff to avoid an accident
(57 Am. Jur., 2d, pp. 798-799)." In Pantranco
North Express, Inc. vs. Baesa, We ruled: "The
doctrine of last clear chance was defined by this
Court in the case of Ong v. Metropolitan Water
District, 104 Phil. 397 (1958), in this wise: The
doctrine of the last clear chance simply, means
that the negligence of a claimant does not
preclude a recovery for the negligence of defendant
where it appears that the latter, by exercising
reasonable care and prudence, might have avoided
injurious
consequences
to
claimant
notwithstanding his negligence. The doctrine
applies only in a situation where the plaintiff was

guilty of prior or antecedent negligence but the

defendant, who had the last fair chance to avoid
the impending harm and failed to do so, is made
liable for all the consequences of the accident
notwithstanding the prior negligence of the
plaintiff [Picart v. Smith, 37 Phil. 809 {1918}; Glan
People's Lumber and Hardware, et al. v.
Intermediate Appellate Court, Cecilia Alferez Vda.
de Calibo, et al., G.R. No. 70493, May 18, 1989].
The subsequent negligence of the defendant in
failing to exercise ordinary care to avoid injury to
plaintiff becomes the immediate or proximate
cause of the accident which intervenes between
the accident and the more remote negligence of
the plaintiff, thus making the defendant liable to
the plaintiff [Picart v. Smith, supra]. Generally, the
last clear chance doctrine is invoked for the
purpose of making a defendant liable to a plaintiff
who was guilty of prior or antecedent negligence,
although it may also be raised as a defense to
defeat claim (sic) for damages."
DECISION
DAVIDE, JR., J p:
Petitioners urge this Court to review and reverse
the Resolution of the Court of Appeals in C.A.-G.R.
CV Nos. 69040-41, promulgated on 3 April 1984,
which set aside its previous Decision dated 29
November 1983 reversing the Decision of the trial
court which dismissed petitioners' complaints in
Civil Case No. 4477 and Civil Case No. 4478 of the
then Court of First Instance (now Regional Trial
Court) of Pampanga entitled "Carmen Dayrit Koh,
Leticia Koh, Julieta Koh Tuquero, Araceli Koh
McKee and Elizabeth Koh Turla vs. Jaime Tayag
and Rosalinda Manalo", and "George McKee and
Araceli Koh McKee vs. Jaime Tayag and Rosalinda
Manalo", respectively, and granted the private
respondents' counterclaim for moral damages,
attorney's fees and litigation expenses.
The said civil cases for damages based on quasidelict were filed as a result of a vehicular accident
which led to the deaths of Jose Koh, Kim Koh
McKee and Loida Bondoc and caused physical

Page 25 of 51
injuries to George Koh McKee, Christopher Koh
McKee and petitioner Araceli Koh McKee.
Petitioners in G.R. No. 68102, parents of the
minors George Koh McKee, Christopher Koh
McKee and the deceased Kim Koh McKee, were the
plaintiffs in Civil Case No. 4478, while petitioner
Carmen Dayrit Koh and her co-petitioners in G.R.
No. 68103, who are the wife and children,
respectively, of the late Jose Koh, were the
plaintiffs in Civil Case No. 4477. Upon the other
hand, private respondents are the owners of the
cargo truck which figured in the mishap; a certain
Ruben Galang was the driver of the truck at the
time of the accident. LLpr
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8
January 1977, in Pulong Pulo Bridge along Mac
Arthur Highway, between Angeles City and San
Fernando, Pampanga, a head-on-collision took
place between an International cargo truck,
Loadstar, with Plate No. RF912-T Philippines `76
owned by private respondents, and driven by
Ruben Galang, and a Ford Escort car bearing
Plate No. S2-850 Pampanga '76 driven by Jose
Koh. The collision resulted in the deaths of Jose
Koh, Kim Koh McKee and Loida Bondoc, and
physical injuries to
George Koh
McKee,
Christopher Koh McKee and Araceli Koh McKee,
all passengers of the Ford Escort.
Jose Koh was the father of petitioner Araceli Koh
McKee, the mother of minors George, Christopher
and Kim Koh McKee. Loida Bondoc, on the other
hand, was the baby sitter of one and a half year
old Kim. At the time of the collision, Kim was
seated on the lap of Loida Bondoc who was at the
front passenger's seat of the car while Araceli and
her two (2) sons were seated at the car's back seat.
Immediately before the collision, the cargo truck,
which was loaded with two hundred (200) cavans
of rice weighing about 10,000 kilos, was traveling
southward from Angeles City to San Fernando
Pampanga, and was bound for Manila. The Ford
Escort, on the other hand, was on its way to

Angeles City from San Fernando. When the

northbound car was about ten (10) meters away
from the southern approach of the bridge, two (2)
boys suddenly darted from the right side of the
road and into the lane of the car. The boys were
moving back and forth, unsure of whether to cross
all the way to the other side or turn back. Jose
Koh blew the horn of the car, swerved to the left
and entered the lane of the truck; he then
switched on the headlights of the car, applied the
brakes and thereafter attempted to return to his
lane. Before he could do so, his car collided with
the truck. The collision occurred in the lane of the
truck, which was the opposite lane, on the said
bridge.
The incident was immediately reported to the
police station in Angeles City; consequently, a
team of police officers was forthwith dispatched to
conduct an on the spot investigation. In the sketch
1 prepared by the investigating officers, the bridge
is described to be sixty (60) "footsteps" long and
fourteen (14) "footsteps" wide seven (7)
"footsteps" from the center line to the inner edge of
the side walk on both sides. 2 Pulong Pulo Bridge,
which spans a dry brook, is made of concrete with
soft shoulders and concrete railings on both sides
about three (3) feet high.
The sketch of the investigating officer discloses
that the right rear portion of the cargo truck was
two (2) "footsteps" from the edge of the right
sidewalk, while its left front portion was touching
the center line of the bridge, with the smashed
front side of the car resting on its front bumper.
The truck was about sixteen (16) "footsteps" away
from the northern end of the bridge while the car
was about thirty-six (36) "footsteps" from the
opposite end. Skid marks produced by the right
front tire of the truck measured nine (9)
"footsteps", while skid marks produced by the left
front tire measured five (5) "footsteps". The two (2)
rear tires of the truck, however, produced no skid
marks. llcd
In his statement to the investigating police officers
immediately after the accident, Galang admitted

Page 26 of 51
that he was traveling at thirty (30) miles (48
kilometers) per hour.

the same Branch where Civil Case No. 4478 was

assigned. 5

As a consequence of the collision, two (2) cases,

Civil Case No. 4477 and No. 4478, were filed on 31
January 1977 before the then Court of First
Instance of Pampanga and were raffled to Branch
III and Branch V of the said court, respectively. In
the first, herein petitioners in G.R. No. 68103
prayed for the award of P12,000.00 as indemnity
for the death of Jose Koh, P150,000.00 as moral
damages, P60,000.00 as exemplary damages,
P10,000.00 for litigation expenses, P6,000.00 for
burial expenses, P3,650.00 for the burial lot and
P9,500.00 for the tomb, plus attorney's fees. 3 In
the second case, petitioners in G.R. No. 68102
prayed for the following: (a) in connection with the
death of Kim McKee, the sum of P12,000.00 as
death benefit, P3,150.00 for funeral services,
P3,650.00 for the cemetery lot, P3,000.00 for the
tomb, P50,000.00 as moral damages, P10,000.00
as exemplary damages and P2,000.00 as
miscellaneous damages, (b) in the case of Araceli
Koh McKee, in connection with the serious
physical injuries suffered, the sum of P100,000.00
as moral damages, P20,000.00 as exemplary
damages, P12,000.00 for loss of earnings,
P5,000.00 for the hospitalization expenses up to
the date of the filing of the complaint; and (c) with
respect to George McKee, Jr., in connection with
the serious physical injuries suffered, the sum of
P50,000.00 as moral damages, P20,000.00 as
exemplary damages and the following medical
expenses: P3,400 payable to the Medical Center,
P3,500.00 payable to the St. Francis Medical
Center, P5,175.00 payable to the Clark Air Base
hospital, and miscellaneous expenses amounting
to P5,000.00. They also sought an award of
attorney's fees amounting to 25% of the total
award plus traveling and hotel expenses, with
costs. 4

In their Answer with Counterclaim in Civil Case

No. 4477, private respondents asserted that it was
the Ford Escort car which "invaded and bumped
(sic) the lane of the truck driven by Ruben Galang"
and, as counterclaim, prayed for the award of
P15,000.00 as attorney's fees, P20,000.00 as
actual and liquidated damages, P100,000.00 as
moral damages and P30,000.00 as business
losses. 6 In Civil Case No. 4478, private
respondents first filed a motion to dismiss on
grounds of pendency of another action (Civil Case
No. 4477) and failure to implead an indispensable
party, Ruben Galang, the truck driver; they also
filed a motion to consolidate the case with Civil
Case No. 4477 pending before Branch III of the
same court, which was opposed by the plaintiffs. 7
Both motions were denied by Branch V, then
presided over by Judge Ignacio Capulong.
Thereupon, private respondents filed their Answer
with Counterclaim 8 wherein they alleged that
Jose Koh was the person "at fault having
approached the lane of the truck driven by Ruben
Galang, . . . which was on the right lane going
towards Manila and at a moderate speed observing
all traffic rules and regulations applicable under
the circumstances then prevailing;" in their
counterclaim, they prayed for an award of
damages as may be determined by the court after
due hearing, and the sums of P10,000.00 as
attorney's fees and P5,000.00 as expenses of
litigation. cdll

On 1 March 1977, an Information charging Ruben

Galang with the crime of "Reckless Imprudence
Resulting to (sic) Multiple Homicide and Physical
Injuries and Damage to Property" was filed with
the trial court. It was docketed as Criminal Case
No. 3751 and was raffled to Branch V of the court,

Petitioners
filed
their
Answers
Counterclaims in both cases.

to

the

To expedite the proceedings, the plaintiffs in Civil

Case No. 4478 filed on 27 March 1978 a motion to
adopt the testimonies of witnesses taken during
the hearing of Criminal Case No. 3751, which
private respondents opposed and which the court
denied. 9 Petitioners subsequently moved to
reconsider the order denying the motion for
consolidation, 10 which Judge Capulong granted
in the Order of 5 September 1978; he then
directed that Civil Case No. 4478 be consolidated

Page 27 of 51
with Civil Case No. 4477 in Branch III of the court
then presided over by Judge Mario Castaeda, Jr.
Left then with Branch V of the trial court was
Criminal Case No. 3751.
In the civil cases, the plaintiffs presented as
witnesses Araceli Koh McKee, Fernando Nuag,
Col. Robert Fitzgerald, Primitivo Parel, Eugenio
Tanhueco, Carmen Koh and Antonio Koh, 11 and
offered several documentary exhibits. Upon the
other hand, private respondents presented as
witnesses Ruben Galang, Zenaida Soliman, Jaime
Tayag and Roman Dayrit. 12
In the criminal case, the prosecution presented as
witnesses Mrs. Araceli McKee, Salud Samia, Pfc.
Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert
Fitzgerald, Dr. Roberto Yuson, Dr. Hector Ulanday,
Pfc. Benigno de Leon, Marina Bolos, Primitivo
Parel, Rogelio Pineda, Benito Caraan and Eugenio
Tanhueco, and offered several documentary
exhibits. 13 Upon the other hand, the defense
presented the accused Ruben Galang, Luciano
Punzalan, Zenaida Soliman and Roman Dayrit,
and offered documentary exhibits. 14
On 1 October 1980, Judge Capulong rendered a
decision against the accused Ruben Galang in the
aforesaid criminal case. The dispositive portion of
the decision reads as follows:
"WHEREFORE, in view of the foregoing, judgment
is hereby rendered finding the accused Ruben
Galang guilty beyond reasonable doubt of the
crime charged in the information and after
applying the provisions of Article 365 of the
Revised Penal Code and indeterminate sentence
law, this Court, imposes upon said accused Ruben
Galang the penalty of six (6) months of arresto
mayor as minimum to two (2) years, four (4)
months and one (1) day of prision correccional as
maximum; the accused is further sentenced to pay
and indemnify the heirs of Loida Bondoc the
amount of P12,000.00 as indemnity for her death,
to reimburse the heirs of Loida Bondoc the
amount of P2,000.00 representing the funeral
expenses; to pay the heirs of Loida Bondoc the

amount of P20,000.00 representing her loss of

income; to indemnify and pay the heirs of the
deceased Jose Koh the value of the car in the
amount of P53,910.95, and to pay the costs." 15
The aforecited decision was promulgated only on
17 November 1980; on the same day, counsel for
petitioners filed with Branch III of the court
where the two (2) civil cases were pending a
manifestation to that effect and attached thereto a
copy of the decision. 16
Upon the other hand, Judge Mario Castaeda, Jr.
dismissed the two (2) civil cases on 12 November
1980 and awarded the private respondents moral
damages, exemplary damages and attorney's fees.
17 The dispositive portion of the said decision
reads as follows:
"WHEREFORE, finding the preponderance of
evidence to be in favor of the defendants and
against the plaintiffs, these cases are hereby
ordered DISMISSED with costs against the
plaintiffs. The defendants had proven their
counter-claim, thru evidences (sic) presented and
unrebutted. Hence, they are hereby awarded moral
and exemplary damages in the amount of
P100,000.00 plus attorney's fee of P15,000.00 and
litigation expenses for (sic) P2,000.00. The actual
damages claimed for (sic) by the defendants is (sic)
hereby dismissed for lack of proof to that effect
(sic)." 18
A copy of the decision was sent by registered mail
to the petitioners on 28 November 1980 and was
received on 2 December 1980. 19
Accused Ruben Galang appealed the judgment of
conviction to the Court of Appeals. The appeal was
docketed as C.A.-G.R. Blg. 24764-CR and was
assigned to the court's Third Division. Plaintiffs in
Civil Cases Nos. 4477 and 4478 likewise
separately appealed the 12 November 1980
decision to the appellate court. The appeals were
docketed as C.A.-G.R. No. 69041-R and C.A.-G.R.
No. 69040-R, respectively, and were assigned to
the Fourth Civil Cases Division.

Page 28 of 51
On 4 October 1982, the respondent Court
promulgated its decision 20 in C.A.-G.R. Blg.
24764-CR affirming the conviction of Galang. 21
The dispositive portion of the decision reads:

P1,000.00 for the purchase of the burial lot ( Exh.

M)

"DAHIL DITO, ang hatol na paksa ng naritong

paghahabol ay Aming pinagtitibay sa kanyang
kabuuan.
Ang
naghahabol
pa
rin
ang
pinagbabayad ng gugol ng paghahabol." cdphil

P375.00 for vault services (Exhs. V and V-1)

A motion for reconsideration of the decision was

denied by the respondent Court in its
Kapasiyahan promulgated on 25 November 1982.
22 A petition for its review 23 was filed with this
Court; said petition was subsequently denied. A
motion for its reconsideration was denied with
finality in the Resolution of 20 April 1983. 24

P25,000.00 as moral damages

On 29 November 1983, respondent Court, by then

known as the Intermediate Appellate Court,
promulgated its consolidated decision in A.C.-G.R.
CV Nos. 69040 and 69041, 25 the dispositive
portion of which reads:
"WHEREFORE, the decision appealed from is
hereby reversed and set aside and another one is
rendered, ordering defendants-appellees to pay
plaintiffs-appellants as follows:

P950.00 for funeral services (Exh. M-1)

For the physical injuries suffered by George Koh

McKee:

P672.00 for Clark Field Hospital (Exh. E)

P4,384.00 paid to Angeles Medical Clinic (Exhs. D,
D-1 and D-2)
P1,555.00 paid to St. Francis Medical Center
(Exhs. B and B-1)
For the physical injuries suffered by Araceli Koh
McKee:
P25,000.00 as moral damages
P1,055.00 paid to St. Francis Medical Center
(Exhs. G and G-1)

For the death of Jose Koh:

P75.00 paid to St. Francis Medical Center (Exhs

G-2 and G-3)

P50,000.00 as moral damages

P428.00 to Carmelite General Hospital (Exh. F)

P12,000.00 as death indemnity

P114.20 to Muoz Clinic (Exh. MM)

P16,000.00 for the lot and tomb (Exhs. U and U-1)

For the physical injuries suffered by Christopher

Koh McKee:

P4,000.00 expenses for holding a wake (p. 9, tsn

April 19, 1979)

P10,000.00 as moral damages

P950.00 for the casket (Exh. M)

P1,231.10 to St. Francis Medical Center (Exhs. L

and L-1)

P375.00 for the vault services (Exhs. V and V-1)

For the death of Kim Koh McKee:
P50,000.00 as moral damages
P12,000.00 as death indemnity

P321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

In addition, We award P10,000.00 as counsel (sic)
fees in Civil Case No. 4477 and another
P10,000.00 as counsel (sic) fees in Civil Case No.
4478.

Page 29 of 51
No pronouncement as to costs.

Did the truck slow down? Cdpr

SO ORDERED." 26

A
way.

No, sir, it did not, just (sic) continued on its

What happened after that?

The decision is anchored principally on the

respondent Court's findings that it was Ruben
Galang's inattentiveness or reckless imprudence
which caused the accident. The appellate court
further said that the law presumes negligence on
the part of the defendants (private respondents),
as employers of Galang, in the selection and
supervision of the latter; it was further asserted
that these defendants did not allege in their
Answers the defense of having exercised the
diligence of a good father of a family in selecting
and supervising the said employee. 27 This
conclusion of reckless imprudence is based on the
following findings of fact:
"In the face of these diametrically opposed judicial
positions, the determinative issue in this appeal is
posited in the fourth assigned error as follows:
'IV
THE TRIAL COURT ERRED WHEN IT HELD
(sic) DRIVER OF THE TRUCK STOPPED
TRUCK BLEW HIS HORN SWITCHED ON
HEADLIGHTS AND COULD NOT SWERVE TO
RIGHT.'

THE
HIS
HIS
THE

Supportive of plaintiffs' version, principal witness

Araceli Koh McKee testified thus:
'Q
What happened
approached the bridge?

after

that,

as

you

A
When we were approaching the bridge, two
(2) boys tried to cross the right lane on the right
side of the highway going to San Fernando. My
father, who is (sic) the driver of the car tried to
avoid the two (2) boys who were crossing, he blew
his horn and swerved to the left to avoid hitting
the two (2) boys. We noticed the truck, he switched
on the headlights to warn the truck driver, to slow
down to give us the right of way to come back to
our right lane.

A
After avoiding the two (2) boys, the car tried
to go back to the right lane since the truck is (sic)
coming, my father stepped on the brakes and all
what (sic) I heard is the sound of impact (sic), sir.'
(tsn, pp. 5-6, July 22, 1977); or (Exhibit 'O' in
these Civil Cases).
xxx

xxx

xxx

Q
Mrs. how did you know that the truck
driven by the herein accused, Ruben Galang did
not reduce its speed before the actual impact of
collision (sic) as you narrated in this Exhibit '1',
how did you know (sic)?
A
It just kept on coming, sir. If only he
reduced his speed, we could have got (sic) back to
our right lane on side (sic) of the highway, sir.'
(tsn. pp. 33-34, July 22, 1977) or (Exhibit `O' in
these Civil Cases)' (pp. 30-31, Appellants' Brief).
Plaintiffs' version was successfully corroborated to
Our satisfaction by the following facts and
circumstances:
1.
An impartial eye-witness to the mishap,
Eugenio Tanhueco, declared that the truck
stopped only when it had already collided with the
car:
xxx

xxx

xxx

Tanhueco repeated the same testimony during the

hearing in the criminal case:
xxx

xxx

xxx

Tanhueco could (sic) not be tagged as an

accommodation witness because he was one of the
first to arrive at the scene of the accident. As a

Page 30 of 51
matter of fact, he brought one of the injured
passengers to the hospital.
We are not prepared to accord faith and credit to
defendants' witnesses, Zenaida Soliman, a
passenger of the truck, and Roman Dayrit, who
supposedly lived across the street.
Regarding Soliman, experience has shown that in
the ordinary course of events people usually take
the side of the person with whom they are
associated at the time of the accident, because, as
a general rule, they do not wish to be identified
with the person who was at fault. Thus an
imaginary bond is unconsciously created among
the several persons within the same group (People
vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31,
1962).

Q
Do I understand from your testimony that
inspite of the fact that you admitted that the road
is straight and you may be able to (sic) see 5001000 meters away from you any vehicle, you first
saw that car only about ten (10) meters away from
you for the first time?
xxx

xxx

xxx

A
I noticed it, sir, that it was about ten (10)
meters away.
ATTY. SOTTO:
Q
So, for clarification, you clarify and state
under your oath that you have (sic) not noticed it
before that ten (10) meters? (Tsn. 3 to 5, Sept. 18,
1979).' (p. 16, Appellants' Brief)'

With respect to Dayrit, We can not help suspecting

(sic) that he is an accommodation witness. He did
not go to the succor of the injured persons. He
said he wanted to call the police authorities about
the mishap, but his phone had no dial tone. Be
this (sic) as it may, the trial court in the criminal
case acted correctly in refusing to believe Dayrit.

Galang's testimony substantiate (sic) Tanhueco's

statement that Galang stopped only because of the
impact. At ten (10) meters away, with the truck
running at 30 miles per hour, as revealed in
Galang's affidavit (Exh. 2; p. 25, Appellants' Brief),
it is well-nigh impossible to avoid a collision on a
bridge.

2.
Exhibit 2, the statement of Galang, does not
include the claim that Galang stopped his truck at
a safe distance from the car, according to plaintiffs
(p. 25, Appellants' Brief). This contention of
appellants was completely passed sub-silencio or
was not refuted by appellees in their brief. Exhibit
2 is one of the exhibits not included in the record.
According to the Table of Contents submitted by
the court below, said Exhibit 2 was not submitted
by defendants-appellees. In this light, it is not farfetched to surmise that Galang's claim that he
stopped was an eleventh-hour desperate attempt
to exculpate himself from imprisonment and
damages.

5.
Galang's truck stopped because of the
collision, and not because he waited for Jose Koh
to return to his proper lane. The police
investigator, Pfc. Fernando L. Nunag, stated that
he found skid marks under the truck but there
were not (sic) skid marks behind the truck (pp. 1920, t.s.n., Nov. 3, 1978). The presence of skid
marks show (sic) that the truck was speeding.
Since the skid marks were found under the truck
and none were found at the rear of the truck, the
reasonable conclusion is that the skid marks
under the truck were caused by the truck's front
wheels when the trucks (sic) suddenly stopped
seconds before the mishap in an endeavor to avoid
the same. But, as aforesaid, Galang saw the car at
barely 10 meters away, a very short distance to
avoid a collision, and in his futile endeavor to avoid
the collision he abruptly stepped on his brakes but
the smashup happened just the same.

3.
Galang divulged that he stopped after
seeing the car about 10 meters away:
ATTY. SOTTO:

Page 31 of 51
For the inattentiveness or reckless imprudence of
Galang, the law presumes negligence on the part
of the defendants in the selection of their driver or
in the supervision over him. Appellees did not
allege such defense of having exercised the duties
of a good father of a family in the selection and
supervision of their employees in their answers.
They did not even adduce evidence that they did in
fact have methods of selection and programs of
supervision. The inattentiveness or negligence of
Galang was the proximate cause of the mishap. If
Galang's attention was on the highway, he would
have sighted the car earlier or at a very safe
distance than (sic) 10 meters. He proceeded to
cross the bridge, and tried to stop when a collision
was already inevitable, because at the time that he
entered the bridge his attention was not riveted to
the road in front of him. LibLex
On the question of damages, the claims of
appellants were amply proven, but the items must
be reduced." 28
A motion for reconsideration alleging improper
appreciation of the facts was subsequently filed by
private respondents on the basis of which the
respondent Court, in its Resolution of 3 April
1984,
29 reconsidered and set aside its 29
November 1983 decision and affirmed in toto the
trial court's judgment of 12 November 1980. A
motion to reconsider this Resolution was denied
by the respondent Court on 4 July 1984. 30
Hence, this petition.
Petitioners allege that respondent Court:
"I
. . . COMMITTED A VERY SERIOUS AND GRAVE
ERROR WHEN IT TOTALLY REVERSED ITS
DECISION BY MERELY BASING IT FROM (sic) A
MERE
`PRESUMPTION,'
TOTALLY
DISREGARDING THE PRIVATE RESPONDENTS'
DRIVER'S ADMISSIONS AND CONFESSIONS,
WHO
EXCLUSIVELY
COMMITTED
THE
PROXIMATE CAUSE OF THE ACCIDENT (sic),
FURTHER, IT ALSO DISREGARDED THE

EVIDENCE ADDUCED AND FOUND IN THE

RECORDS; THEREFORE, RESPONDENT COURT'S
RESOLUTIONS (ANNEXES A and B, PETITION)
ARE CLEARLY ERRONEOUS, PURELY BASED ON
SPECULATIONS, CONJECTURES AND WITHOUT
SURE FOUNDATION IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND
ERRED WHEN IN EFFECT IT DISREGARDED A
DOCTRINE LAID DOWN BY THIS HONORABLE
COURT BY STATING AMONG OTHERS, `IT
CANNOT CATEGORICALLY ADOPT THE FINDINGS
OF GUILT IN THE CRIMINAL CASE WHERE THE
DRIVER OF THE TRUCK INVOLVED IN THE
ACCIDENT WAS INDICTED.'
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF
DISCRETION AND MADE A MISLEADING
PRONOUNCEMENT, WHEN IT HELD: `IT IS THUS
INCUMBENT
UPON
THE
PLAINTIFFSAPPELLANTS
(APPELLEES
WRONGLY
MENTIONED IN THE RESOLUTION) TO PROVE
THEIR ALLEGATIONS THAT THE PROXIMATE
CAUSE
OF
THE
ACCIDENT
WAS
THE
NEGLIGENCE OF PRIVATE RESPONDENTS'
DRIVER..'
IV
. . . COMMITTED ANOTHER GRIEVIOUS (sic)
ERROR, COMMITTED GRAVE ABUSE OF
DISCRETION AND CITED ANOTHER CASE
WHICH IS CLEARLY INAPPLICABLE TO THESE
CASES.
V
. . . COMMITTED A PATENT ERROR AND
GRAVELY
ABUSED
ITS
DISCRETION
IN
ADOPTING THE FINDINGS OF THE TRIAL COURT
WHICH ARE CLEARLY ERRONEOUS AND
CONTRARY TO THE EVIDENCE FOUND IN THE
RECORDS,
SPECIALLY
THEY
(sic)
ARE
CONTRARY TO THE ADMITTED FACTS AND

Page 32 of 51
JUDICIAL ADMISSIONS MADE BY THE PRIVATE
RESPONDENTS' DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED
GRAVE ABUSE OF DISCRETION AND GRAVELY
ERRED WHEN IT AWARDED DAMAGES TO THE
PRIVATE RESPONDENTS WHEN SAID AWARD IS
NOT SUPPORTED BY EVIDENCE, IN THE
RECORDS, AND SAID AWARD IS NOT ALLOWED
BY LAW AND THE CONSISTENT DECISIONS OF
THIS HONORABLE COURT.
VII
. . . EXCEEDED ITS JURISDICTION,
COMMITTED GRAVE ABUSE OF DISCRETION
AND GRAVELY ERRED WHEN IT ERRONEOUSLY
SET ASIDE ITS DECISION AWARDING DAMAGES
TO PETITIONERS WHICH IS CLEARLY IN
ACCORDANCE WITH THE EVIDENCE, THE LAW
AND JURISPRUDENCE RELATIVE TO THE
AWARD OF DAMAGES." 31
In the Resolution of 12 September 1984, we
required private respondents to Comment on the
petition. 32 After the said Comment 33 was filed,
petitioners submitted a Reply 34 thereto; this
Court then gave due course to the instant
petitions and required petitioners to file their Brief,
35 which they accordingly complied with.
There is merit in the petition. Before We take on
the main task of dissecting the arguments and
counter-arguments, some observations on the
procedural vicissitudes of these cases are in order.
Civil Cases Nos. 4477 and 4478, which were for
the recovery of civil liability arising from a quasidelict under Article 2176 in relation to Article
2180 of the Civil Code, were filed ahead of
Criminal Case No. 3751. Civil Case No. 4478 was
eventually consolidated with Civil Case No. 4477
for joint trial in Branch III of the trial court. The
records do not indicate any attempt on the part of
the parties, and it may therefore be reasonably
concluded that none was made, to consolidate

Criminal Case No. 3751 with the civil cases, or

vice-versa. The parties may have then believed,
and understandably so, since by then no specific
provision of law or ruling of this Court expressly
allowed such a consolidation, that an independent
civil action, authorized under Article 33 in relation
to Article 2177 of the Civil Code, such as the civil
cases in this case, cannot be consolidated with the
criminal case. Indeed, such consolidation could
have been farthest from their minds as Article 33
itself expressly provides that the "civil action shall
proceed independently of the criminal prosecution,
and shall require only a preponderance of
evidence." Be that as it may, there was then no
legal impediment against such consolidation.
Section 1, Rule 31 of the Rules of Court, which
seeks to avoid a multiplicity of suits, guard against
oppression and abuse, prevent delays, clear
congested dockets to simplify the work of the trial
court, or in short, attain justice with the least
expense to the parties litigants, 36 would have
easily
sustained
a
consolidation,
thereby
preventing the unseeming, if not ludicrous,
spectacle of two (2) judges appreciating, according
to their respective orientation, perception and
perhaps even prejudice, the same facts differently,
and thereafter rendering conflicting decisions.
Such was what happened in this case. It should
not, hopefully, happen anymore. In the recent case
of Cojuangco vs. Court of Appeals, 37 this Court
held that the present provisions of Rule 111 of the
Revised Rules of Court allow a consolidation of an
independent civil action for the recovery of civil
liability authorized under Articles 32, 33, 34 or
2176 of the Civil Code with the criminal action
subject, however, to the condition that no final
judgment has been rendered in that criminal case.
Cdpr
Let it be stressed, however, that the judgment in
Criminal Case No. 3751 finding Galang guilty of
reckless imprudence, although already final by
virtue of the denial by no less than this Court of
his last attempt to set aside the respondent
Court's affirmance of the verdict of conviction, has
no relevance or importance to this case.

Page 33 of 51
As We held in Dionisio vs. Alvendia, 38 the
responsibility arising from fault or negligence in a
quasi-delict is entirely separate and distinct from
the civil liability arising from negligence under the
Penal Code. And, as more concretely stated in the
concurring opinion of Justice J.B.L. Reyes, "in the
case of independent civil actions under the new
Civil Code, the result of the criminal case, whether
acquittal or conviction, would be entirely irrelevant
to the civil action." 39 In Salta vs. De Veyra and
PNB vs. Purisima, 40 this Court stated:
". . . It seems perfectly reasonable to conclude that
the civil actions mentioned in Article 33, permitted
in the same manner to be filed separately from the
criminal case, may proceed similarly regardless of
the result of the criminal case.
Indeed, when the law has allowed a civil case
related to a criminal case, to be filed separately
and to proceed independently even during the
pendency of the latter case, the intention is patent
to make the court's disposition of the criminal
case of no effect whatsoever on the separate civil
case. This must be so because the offenses
specified in Article 33 are of such a nature, unlike
other offenses not mentioned, that they may be
made the subject of a separate civil action because
of the distinct separability of their respective
juridical cause or basis of action . . . ."
What remains to be the most important
consideration as to why the decision in the
criminal case should not be considered in this
appeal is the fact that private respondents were
not parties therein. It would have been entirely
different if the petitioners' cause of action was for
damages arising from a delict, in which case
private respondents' liability could only be
subsidiary pursuant to Article 103 of the Revised
Penal Code. In the absence of any collusion, the
judgment of conviction in the criminal case
against Galang would have been conclusive in the
civil cases for the subsidiary liability of the private
respondents. 41
And now to the merits of the petition.

It is readily apparent from the pleadings that the

principal issue raised in this petition is whether or
not respondent Court's findings in its challenged
resolution are supported by evidence or are based
on
mere
speculations,
conjectures
and
presumptions. 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
Revised 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. 42
The foregoing rule, however, is not without
exceptions. Findings of facts of the trial courts and
the Court of Appeals may be set aside when such
findings are not supported by the evidence or
when the trial court failed to consider the material
facts which would have led to a conclusion
different from what was stated in its judgment. 43
The same is true where the appellate court's
conclusions are grounded entirely on conjectures,
speculations and surmises 44 or where the
conclusions of the lower courts are based on a
misapprehension of facts. 45
It is at once obvious to this Court that the instant
case qualifies as one of the aforementioned
exceptions as the findings and conclusions of the
trial court and the respondent Court in its
challenged resolution are not supported by the
evidence, are based on a misapprehension of facts
and the inferences made therefrom are manifestly
mistaken. The respondent Court's decision of 29
November 1983 makes the correct findings of fact.
In the assailed resolution, the respondent Court
held that the fact that the car improperly invaded
the lane of the truck and that the collision
occurred in said lane gave rise to the presumption
that the driver of the car, Jose Koh, was negligent.
On the basis of this presumed negligence, the
appellate court immediately concluded that it was
Jose Koh's negligence that was the immediate and
proximate cause of the collision. This is an
unwarranted deduction as the evidence for the
petitioners convincingly shows that the car

Page 34 of 51
swerved into the truck's lane because as it
approached the southern end of the bridge, two (2)
boys darted across the road from the right
sidewalk into the lane of the car. As testified to by
petitioner Araceli Koh McKee:
"Q
What happened
approached the bridge?

after

that,

as

you

A
When we were approaching the bridge, two
(2) boys tried to cross the right lane on the right
side of the highway going to San Fernando. My
father, who is (sic) the driver of the car tried to
avoid the two (2) boys who were crossing, he blew
his horn and swerved to the left to avoid hitting
the two (2) boys. We noticed the truck, he switched
on the headlights to warn the truck driver, to slow
down to give us the right of way to come back to
our right lane.
Q

Did the truck slow down?

A
way.

No, sir, it did not, just (sic) continued on its

What happened after that?

A
After avoiding the two (2) boys, the car tried
to go back to the right lane since the truck is (sic)
coming, my father stepped on the brakes and all
what (sic) I heard is the sound of impact (sic), sir."
46
Her credibility and testimony remained intact even
during cross examination. Jose Koh's entry into
the lane of the truck was necessary in order to
avoid what was, in his mind at that time, a greater
peril death or injury to the two (2) boys. Such
act can hardly be classified as negligent.
Negligence was defined and described by this
Court in Layugan vs. Intermediate Appellate
Court, 47 thus:
". . . Negligence is the omission to do something
which a reasonable man, guided by those
considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing

of something which a prudent and reasonable

man would not do (Black's Law Dictionary, Fifth
Edition, 930), or as Judge Cooley defines it, '(T)he
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.' (Cooley on Torts, Fourth Edition, vol. 3,
265).
In Picart vs. Smith (87 Phil 809, 813), decided
more than seventy years ago but still a sound rule,
(W)e held: LLphil
The test by which to determine the existence of
negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged
negligent act use that (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. . . ."
In Corliss vs. Manila Railroad Company,
held:

48 We

". . . 'Negligence is want of the care required by the

circumstances. It is a relative or comparative, not
an absolute, term and its application depends
upon the situation of the parties and the degree of
care and vigilance which the circumstances
reasonably require. Where the danger is great, a
high degree of care is necessary, and the failure to
observe it is a want of ordinary care under the
circumstances. (citing Ahern v. Oregon Telephone
Co., 35 Pac. 549 (1894)'."
On the basis of the foregoing definition, the test of
negligence and the facts obtaining in this case, it
is manifest that no negligence could be imputed to
Jose Koh. Any reasonable and ordinary prudent
man would have tried to avoid running over the
two boys by swerving the car away from where
they were even if this would mean entering the
opposite lane. Avoiding such immediate peril
would be the natural course to take particularly

Page 35 of 51
where the vehicle in the opposite lane would be
several meters away and could very well slow
down, move to the side of the road and give way to
the oncoming car. Moreover, under what is known
as the emergency 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 emergency
in which he finds himself is brought about by his
own negligence." 49
Considering the sudden intrusion of the two (2)
boys into the lane of the car, We find that Jose Koh
adopted the best means possible in the given
situation to avoid hitting them. Applying the above
test, therefore, it is clear that he was not guilty of
negligence.
In any case, assuming, arguendo that Jose Koh is
negligent, it cannot be said that his negligence was
the proximate cause of the collision. Proximate
cause has been defined 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.' And more
comprehensively, the proximate legal cause is that
acting first and producing the injury, either
immediately or by setting 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 effecting 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
ordinary 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." 50
Applying the above definition, although it may be
said that the act of Jose Koh, if at all negligent,
was the initial act in the chain of events, it cannot

be said that the same caused the eventual injuries

and deaths because of the occurrence of a
sufficient intervening event, the negligent act of
the truck driver, which was the actual cause of the
tragedy. The entry of the car into the lane of the
truck would not have resulted in the collision had
the latter heeded the emergency signals given by
the former to slow down and give the car an
opportunity to go back into its proper lane. Instead
of slowing down and swerving to the far right of
the road, which was the proper precautionary
measure under the given circumstances, the truck
driver continued at full speed towards the car. The
truck driver's negligence becomes more apparent
in view of the fact that the road is 7.50 meters
wide while the car measures 1.598 meters and the
truck, 2.286 meters, in width. This would mean
that both car and truck could pass side by side
with a clearance of 3.661 meters to spare.
51
Furthermore, the bridge has a level sidewalk
which could have partially accommodated the
truck. Any reasonable man finding himself in the
given situation would have tried to avoid the car
instead of meeting it head-on.
The truck driver's negligence is apparent in the
records. He himself said that his truck was
running at 30 miles (48 kilometers) per hour along
the bridge while the maximum speed allowed by
law on a bridge 52 is only 30 kilometers per hour.
Under Article 2185 of the Civil Code, a person
driving a vehicle is presumed negligent if at the
time of the mishap, he was violating any traffic
regulation. We cannot give credence to private
respondents' claim that there was an error in the
translation by the investigating officer of the truck
driver's response in Pampango as to whether the
speed cited was in kilometers per hour or miles
per hour. The law presumes that official duty has
been regularly performed;
53 unless there is
proof to the contrary, this presumption holds. In
the instant case, private respondents' claim is
based on mere conjecture.
The truck driver's negligence was likewise duly
established through the earlier quoted testimony
of petitioner Araceli Koh McKee which was duly

Page 36 of 51
corroborated by the testimony of Eugenio
Tanhueco, an impartial eyewitness to the mishap.

the collision which was the proximate cause of the

resulting accident.

Araceli Koh McKee testified further, thus: prLL

Even if Jose Koh was indeed negligent, the

doctrine of last clear chance finds application
here. Last clear chance is a doctrine in the law of
torts which states that the contributory negligence
of the party injured will not defeat the claim for
damages if it is shown that the defendant might,
by the exercise of reasonable care and prudence,
have avoided the consequences of the negligence of
the injured party. In such cases, the person who
had the last clear chance to avoid the mishap is
considered in law solely responsible for the
consequences thereof. 56

xxx

xxx

xxx

"Q
Mrs. how did you know that the truck
driven by the herein accused, Ruben Galang did
not reduce its speed before the actual impact of
collision as you narrated in this Exhibit '1', how
did you know?
A
It just kept on coming, sir. If only he
reduced his speed, we could have got (sic) back to
our right lane on side (sic) of the highway, sir.'
(tsn, pp. 33-34, July 22, 1977) or (Exhibit `O' in
these Civil Cases) (pp. 30-31, Appellants' Brief)"
54
while Eugenio Tanhueco testified thus:
"Q
When you saw the truck, how was it
moving?
A
sir.

It was moving 50 to 60 kilometers per hour,

Q
Immediately after you saw this truck, do
you know what happened?
A
I saw the truck and a car collided (sic), sir,
and I went to the place to help the victims.' (tsn.
28, April 19, 1979)
xxx

xxx

xxx

Q
From the time you saw the truck to the time
of the impact, will you tell us if the said truck ever
stopped?
A
I saw it stopped (sic) when it has (sic)
already collided with the car and it was already
motionless.' (tsn. 31, April 19, 1979; Underlining
supplied). (p. 27, Appellants' Brief)." 55
Clearly, therefore, it was the truck driver's
subsequent negligence in failing to take the proper
measures and degree of care necessary to avoid

In Bustamante vs. Court of Appeals, 57 We held:

"The respondent court adopted the doctrine of
`last clear chance.' The doctrine, stated broadly, is
that the negligence of the plaintiff does not
preclude a recovery for the negligence of the
defendant where it appears that the defendant, by
exercising reasonable care and prudence, might
have avoided injurious consequences to the
plaintiff notwithstanding the plaintiff's negligence.
In other words, the doctrine of last clear chance
means that even though a person's own acts may
have placed him in a position of peril, and an
injury results, the injured person is entitled to
recovery (sic). As the doctrine is usually stated, a
person who has the last clear chance or
opportunity
of
avoiding
an
accident,
notwithstanding the negligent acts of his opponent
or that of a third person imputed to the opponent
is considered in law solely responsible for the
consequences of the accident. (Sangco, Torts and
Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a
negligent defendant is held liable to a negligent
plaintiff, or even to a plaintiff who has been
grossly negligent in placing himself in peril, if he,
aware of the plaintiff's peril, or according to some
authorities, should have been aware of it in the
reasonable exercise of due care, had in fact an
opportunity later than that of the plaintiff to avoid
an accident (57 Am. Jur., 2d, pp. 798-799)."

Page 37 of 51
In Pantranco North Express, Inc., vs. Baesa,
We ruled:

58

"The doctrine of last clear chance was defined by

this Court in the case of Ong v. Metropolitan Water
District, 104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply,
means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant
where it appears that the latter, by exercising
reasonable care and prudence, might have avoided
injurious
consequences
to
claimant
notwithstanding his negligence.
The doctrine applies only in a situation where the
plaintiff was guilty of prior or antecedent
negligence but the defendant, who had the last fair
chance to avoid the impending harm and failed to
do so, is made liable for all the consequences of
the accident notwithstanding the prior negligence
of the plaintiff [Picart v. Smith, 37 Phil. 809
(1918); Glan People's Lumber and Hardware, et al.
v. Intermediate Appellate Court, Cecilia Alferez
Vda. de Calibo, et al., G.R. No. 70493, May 18,
1989]. The subsequent negligence of the defendant
in failing to exercise ordinary care to avoid injury
to plaintiff becomes the immediate or proximate
cause of the accident which intervenes between
the accident and the more remote negligence of
the plaintiff, thus making the defendant liable to
the plaintiff [Picart v. Smith, supra]. Cdpr
Generally, the last clear chance doctrine is invoked
for the purpose of making a defendant liable to a
plaintiff who was guilty of prior or antecedent
negligence, although it may also be raised as a
defense to defeat claim (sic) for damages."
Applying the foregoing doctrine, it is not difficult
to rule, as We now rule, that it was the truck
driver's negligence in failing to exert ordinary care
to avoid the collision which was, in law, the
proximate cause of the collision. As employers of
the truck driver, the private respondents are,
under Article 2180 of the Civil Code, directly and
primarily liable for the resulting damages. The
presumption that they are negligent flows from the

negligence of their employee. That presumption,

however, is only juris tantum, not juris et de jure.
59 Their only possible defense is that they
exercised all the diligence of a good father of a
family to prevent the damage. Article 2180 reads
as follows:
"The obligation imposed by Article 2176 is
demandable not only for one's own acts or
omissions, but also for those of persons for whom
one is responsible.
xxx

xxx

xxx

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.
xxx

xxx

xxx

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."
The diligence of a good father referred to means
the diligence in the selection and supervision of
employees.
60 The answers of the private
respondents in Civil Cases Nos. 4477 and 4478
did not interpose this defense. Neither did they
attempt to prove it.
The respondent Court was then correct in its
Decision of 29 November 1983 in reversing the
decision of the trial court which dismissed Civil
Cases Nos. 4477 and 4478. Its assailed Resolution
of 3 April 1984 finds no sufficient legal and factual
moorings.
In the light of recent decisions of this Court, 61
the indemnity for death must, however, be
increased from P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED.
The assailed Resolution of the respondent Court of
3 April 1984 is SET ASIDE while its Decision of 29

Page 38 of 51
November 1983 in C.A.-G.R. CV Nos. 69040-41 is
REINSTATED, subject to the modification that the
indemnity for death is increased from P12,000.00
to P50,000.00 each for the death of Jose Koh and
Kim Koh McKee.

The Solicitor General for petitioner.

creditor. (Vasquez v. Court of Appeals, 138 SCRA

553; Estrada v. Consolacion, 71 SCRA 423;
Austria v. Court of Appeals, 39 SCRA 527;
Republic of the Phil. v. Luzon Stevedoring Corp. 21
SCRA 279; Lasam v. Smith, 45 Phil. 657). Thus, if
upon the happening of a fortuitous event or an act
of God, there concurs a corresponding fraud,
negligence, delay or violation or contravention in
any manner of the tenor of the obligation as
provided for in Article 1170 of the Civil Code,
which results in loss or damage, the obligor
cannot escape liability. The principle embodied in
the act of God doctrine strictly requires that the
act must be one occasioned exclusively by the
violence of nature and all human agencies are to
be excluded from creating or entering into the
cause of the mischief. When the effect, the cause
of which is to be considered, is found to be in part
the result of the participation of man, whether it
be from active intervention or neglect, or failure to
act, the whole occurrence is thereby humanized,
as it were, and removed from the rules applicable
to the acts of God.

Ponciano G. Hernandez for private respondents.

DECISION

SYLLABUS

DAVIDE, JR., J p:

CIVIL LAW; OBLIGATION AND CONTRACTS;

FORCE MAJEURE (ACT OF GOD); RULES
APPLICABLE; PETITIONERS CANNOT ESCAPE
LIABILITY BY INVOKING FORCE MAJEURE
BECAUSE OF THEIR NEGLIGENCE.
We
reiterate here Our pronouncement in the latter
case that Juan F. Nakpil & Sons vs. Court of
Appeals is still good law as far as the concurrent
liability of an obligor in the case of force majeure is
concerned. In the Nakpil case, We held: "To exempt
the obligor from liability under Article 1174 of the
Civil Code, for a breach of an obligation due to an
'act of God,' the following must concur: (a) the
cause of the breach of the obligation must be
independent of the will of the debtor; (b) the event
must be either unforeseeable or unavoidable; (c)
the event must be such as to render it impossible
for the debtor to fulfill his obligation in a normal
manner; and (d) the debtor must be free from any
participation in, or aggravation of the injury to the

This is a petition for review on certiorari under

Rule 45 of the Revised Rules of Court urging this
Court to set aside the 19 August 1991
consolidated Decision of the Court of Appeals in
CA-G.R. CV Nos. 27290-93 1 which reversed the
Decision of Branch 5 of the then Court of First
Instance (now Regional Trial Court) of Bulacan,
and held petitioners National Power Corporation
(NPC) and Benjamin Chavez jointly and severally
liable to the private respondents for actual and
moral damages, litigation expenses and attorney's
fees.

Costs against private respondents.

SO ORDERED.
Gutierrez, Jr., Feliciano and Romero, JJ ., concur.
Bidin, J., took no part.
THIRD DIVISION
[G.R. Nos. 103442-45. May 21, 1993.]
NATIONAL POWER CORPORATION, ET AL.,
petitioners, vs. THE COURT OF APPEALS,
GAUDENCIO C. RAYO, ET AL., respondents.

This present controversy traces its beginnings to

four (4) separate complaints 2 for damages filed
against the NPC and Benjamin Chavez before the
trial court. The plaintiffs therein, now private
respondents, sought to recover actual and other
damages for the loss of lives and the destruction to
property caused by the inundation of the town of

Page 39 of 51
Norzagaray, Bulacan on 26-27 October 1978. The
flooding was purportedly caused by the negligent
release by the defendants of water through the
spillways of the Angat Dam (Hydroelectric Plant).
In said complaints, the plaintiffs alleged, inter alia,
that: 1) defendant NPC operated and maintained a
multi-purpose hydroelectric plant in the Angat
River at Hilltop, Norzagaray, Bulacan; 2) defendant
Benjamin Chavez was the plant supervisor at the
time of the incident in question; 3) despite the
defendants' knowledge, as early as 24 October
1978, of the impending entry of typhoon "Kading,"
they failed to exercise due diligence in monitoring
the water level at the dam; 4) when the said water
level went beyond the maximum allowable limit at
the height of the typhoon, the defendants
suddenly, negligently and recklessly opened three
(3) of the dam's spillways, thereby releasing a large
amount of water which inundated the banks of the
Angat River; and 5) as a consequence, members of
the household of the plaintiffs, together with their
animals, drowned, and their properties were
washed away in the evening of 26 October and the
early hours of 27 October 1978. 3

In their Answers, the defendants, now petitioners,

alleged that: 1) the NPC exercised due care,
diligence and prudence in the operation and
maintenance of the hydroelectric plant; 2) the NPC
exercised the diligence of a good father in the
selection of its employees; 3) written notices were
sent to the different municipalities of Bulacan
warning the residents therein about the
impending release of a large volume of water with
the onset of typhoon "Kading" and advising them
to take the necessary precautions; 4) the water
released during the typhoon was needed to
prevent the collapse of the dam and avoid greater
damage to people and property; 5) in spite of the
precautions undertaken and the diligence
exercised, they could still not contain or control
the flood that resulted and; 6) the damages
incurred by the private respondents were caused
by a fortuitous event or force majeure and are in
the nature and character of damnum absque
injuria. By way of a special affirmative defense, the
defendants averred that the NPC cannot be sued
because it performs a purely governmental
function. 4
Upon motion of the defendants, a preliminary
hearing on the special defense was conducted. As
a result thereof, the trial court dismissed the
complaints as against the NPC on the ground that
the provision of its charter allowing it to sue and
be sued does not contemplate actions based on
tort. The parties do not, however, dispute the fact
that this Court overruled the trial court and
ordered the reinstatement of the complaints as
against the NPC. 5
Being closely interrelated, the cases were
consolidated and trial thereafter ensued. LibLex
The lower court rendered its decision on 30 April
1990 dismissing the complaints "for lack of
sufficient and credible evidence." 6 Consequently,
the private respondents seasonably appealed
therefrom to the respondent Court which then
docketed the cases as CA-G.R. CV Nos. 27290-93.
In its joint decision promulgated on 19 August
1991, the Court of Appeals reversed the appealed

Page 40 of 51
decision and awarded damages in favor of the
private respondents. The dispositive portion of the
decision reads:
"CONFORMABLY TO THE FOREGOING, the joint
decision appealed from is hereby REVERSED and
SET ASIDE, and a new one is hereby rendered:
1.
In Civil Case No. SM-950, ordering
defendants-appellees to pay, jointly and severally,
plaintiffs-defendants, with legal interest from the
date when this decision shall become final and
executory, the following:
A.

Actual damages, to wit:

1)
Gaudencio C. Rayo, Two Hundred Thirty
One Thousand Two Hundred Sixty Pesos
(P231,260.00);

date when this decision shall have become final

and executory, the following:
A.
Actual damages of Five Hundred Twenty
Thousand Pesos (P520,000.00);
B.
Moral Damages of Five Hundred Thousand
Pesos (P500,000.00); and
C.
Litigation expenses of Ten Thousand Pesos
(P10,000.00);
3.
In Civil Case No. SM-953, ordering
defendants-appellees to pay, jointly and severally,
with legal interest from the date when this
decision shall have become final and executory;
A.

Plaintiff-appellant Angel C. Torres:

2)
Bienvenido P. Pascual, Two Hundred Four
Thousand Five Hundred Pesos (P204,500.00);

1)
Actual damages of One Hundred Ninety
Nine Thousand One Hundred Twenty Pesos
(P199,120.00);

3)
Tomas Manuel, One Hundred Fifty Five
Thousand Pesos (P155,000.00);

2)
Moral Damages of One
Thousand Pesos (P150,000.00);

4)
Pedro C. Bartolome, One Hundred Forty
Seven Thousand Pesos (P147,000.00);

B.

5)
Bernardino Cruz, One Hundred Forty Three
Thousand Five Hundred Fifty Two Pesos and Fifty
Centavos (P143,552.50);

Hundred

Fifty

Plaintiff-defendant Norberto Torres:

1)
Actual damages of Fifty Thousand Pesos
(P50,000.00);
2)
Moral damages of Fifty Thousand Pesos
(P50,000.00);

6)
Jose Palad, Fifty Seven Thousand Five
Hundred Pesos (P57,500.);

C.

7)
Mariano S. Cruz, Forty Thousand Pesos
(P40,000.00);

1)
Actual damages of One Hundred Thousand
Pesos (P100,000.00);

8)
Lucio Fajardo, Twenty
Eighty Pesos (P29,080.00); and

thousand

2)
Moral damages of One Hundred Thousand
Pesos (P100,000.00); and

B.
Litigation expenses of Ten Thousand Pesos
(P10,000.00);

D.
Plaintiffs-appellants litigation expenses of
Ten Thousand Pesos (P10,000.00);

2.
In Civil Case No. SM-951, ordering
defendants-appellees to pay jointly and severally,
plaintiff-defendant, with legal interest from the

4.
In Civil Case No. SM-1247, ordering
defendants-appellees to pay, jointly and severally,
with legal interest from the date when this
decision shall have become final and executory:

Nine

Plaintiff-appellant Rodelio Joaquin:

Page 41 of 51
A.
Plaintiffs-appellants Presentacion Lorenzo
and Clodualdo Lorenzo:
1)
Actual damages of Two Hundred Fifty Six
Thousand Six Hundred Pesos (P256,600.00);
2)
Moral damages of Fifty Thousand Pesos
(P50,000.00);
B.

Plaintiff-appellant Consolacion Guzman:

1)
Actual damages of One Hundred Forty
Hundred Pesos (P140,000.00);
2)
Moral damages of Fifty Thousand Pesos
(P50,000.00);
C.

Plaintiff-appellant Virginia Guzman:

1)
Actual damages of Two Hundred Five
Thousand
Five
Hundred
Twenty
Pesos
(P205,520.00); and
2)
Moral damages of Fifty Thousand Pesos
(P50,000.00); and
D.
Plaintiffs-appellants litigation expenses of
Ten Thousand Pesos (P10,000.00).
In addition, in all the four (4) instant cases,
ordering defendants-appellees to pay, jointly and
severally, plaintiffs-appellants, attorneys fees in an
amount equivalent to 15% of the total amount
awarded.
No pronouncement as to costs." 7
The foregoing judgment is based on the public
respondent's conclusion that the petitioners were
guilty of:
". . . a patent gross and evident lack of foresight,
imprudence and negligence . . . in the
management and operation of Angat Dam. The
unholiness of the hour, the extent of the opening
of the spillways, and the magnitude of the water
released, are all but products of defendantsappellees'
headlessness,
slovenliness,
and
carelessness. The resulting flash flood and

inundation of even areas (sic) one (1) kilometer

away from the Angat River bank would have been
avoided had defendants-appellees prepared the
Angat Dam by maintaining in the first place, a
water elevation which would allow room for the
expected torrential rains." 8
This conclusion, in turn, is anchored on its
findings of fact, to wit:
"As early as October 21, 1978, defendantsappellees knew of the impending onslaught of and
imminent danger posed by typhoon 'Kading.' For
as alleged by defendants-appellees themselves, the
coming of said super typhoon was bannered by
Bulletin Today, a newspaper of national
circulation, on October 25, 1978, as 'Super Howler
to hit R.P.' The next day, October 26, 1978, said
typhoon once again merited a headline in said
newspaper as 'Kading's Big Blow expected this
afternoon' (Appellee's Brief, p. 6). Apart from the
newspapers, defendants-appellees learned of
typhoon 'Kading' through radio announcements
(Civil Case No. SM-950, TSN, Benjamin Chavez,
December 4, 1984, pp. 7-9).
Defendants-appellees doubly knew that the Angat
Dam can safely hold a normal maximum
headwater elevation of 217 meters (Appellees'
Brief, p. 12; Civil Case No. SM-951, Exhibit "I-6";
Civil Case No. SM-953, Exhibit "J-6"; Civil Case
No. SM-1247, Exhibit "G-6"). LLpr
Yet, despite such knowledge, defendants-appellees
maintained a reservoir water elevation even
beyond its maximum and safe level, thereby giving
no sufficient allowance for the reservoir to contain
the rain water that will inevitably be brought by
the coming typhoon.
On October 24, 1978, before typhoon 'Kading'
entered the Philippines area of responsibility,
water elevation ranged from 217.61 to 217.53,
with very little opening of the spillways, ranging
from 1/2 to 1 meter. On October 25, 1978, when
typhoon 'Kading' entered the Philippine area of
responsibility, and public storm signal number
one was hoisted over Bulacan at 10:45 a.m., later

Page 42 of 51
raised to number two at 4:45 p.m., and then to
number three at 10:45 p.m., water elevation
ranged from 217.47 to 217.57, with very little
opening of the spillways, ranging from 1/2 to 1
meter. On October 26, 1978, when public storm
signal number three remained hoisted over
Bulacan, the water elevation still remained at its
maximum level of 217.00 to 218.00 with very little
opening of the spillways ranging from 1/2 to 2
meters, until at or about midnight, the spillways
were suddenly opened at 5 meters, then increasing
swiftly to 8, 10, 12, 12.5, 13, 13.5, 14, 14.5 in the
early morning hours of October 27, 1978,
releasing water at the rate of 4,500 cubic meters
per second, more or less. On October 27, 1978,
water elevation remained at a range of 218.30 to
217.05 (Civil Case No. SM-950, Exhibits "D" and
series, "L", "M", "N", and "O" and Exhibits "3" and
"4"; Civil Case No. SM-951, Exhibits "H" and "H-1";
Civil Case No. SM-953, Exhibits "I" and "I-1"; Civil
Case No. SM-1247, Exhibits "F" and "F-1").

'With the coming of typhoon 'Rita' (Kading) we

expect to release greater (sic) volume of water, if it
pass (sic) over our place.

xxx

Said notice is ineffectual, insufficient and

inadequate for purposes of the opening of the
spillway gates at midnight of October 26, 1978 and
on October 27, 1978. It did not prepare or warn
the persons so served, for the volume of water to
be released, which turned out to be of such
magnitude, that residents near or along the Angat
River, even those one (1) kilometer away, should
have been advised to evacuate. Said notice,
addressed `TO ALL CONCERN (sic),' was delivered
to a policeman (Civil Case No. SM-950, TSN,
Leonardo Nepomuceno, March 7, 1985, pp. 10-12
and Exhibit "2-A") for the municipality of
Norzagaray. Said notice was not thus addressed
and delivered to the proper and responsible
municipal officials who could have disseminated
the warning to the residents directly affected. As
for the municipality of Sta. Maria, where plaintiffsdefendants in Civil Case No. SM-1246 reside, said
notice does not appear to have been served." 11

xxx

xxx

From the mass of evidence extant in the record,

We are convinced, and so hold that the flash flood
on October 27, 1978, was caused not by rain
waters (sic), but by stored waters (sic) suddenly
and simultaneously released from the Angat Dam
by
defendants-appellees,
particularly
from
midnight of October 26, 1978 up to the morning
hours of October 27, 1978." 9
The appellate court rejected the petitioners'
defense that they had sent "early warning written
notices" to the towns of Norzagaray, Angat, Bustos,
Plaridel, Baliwag and Calumpit dated 24 October
1978 and which read:
"TO ALL CONCERN (sic):
'Please be informed that at the present our
reservoir (dam) is full and that we have been
releasing water intermittently for the past several
days.

'In view of this kindly advise people residing along

Angat River to keep alert and stay in safe places.
'BENJAMIN L. CHAVEZ
'Power Plant Superintendent" 10
because:
"Said notice was delivered to the 'towns of
Bulacan' on October 26, 1978 by defendantsappellees' driver, Leonardo Nepomuceno (Civil
Case No. SM-950, TSN, Benjamin Chavez,
December 4, 1984, pp. 7-11 and TSN, Leonardo
Nepomuceno, March 7, 1985, pp. 10-12).

Relying on Juan F. Nakpil & Sons vs. Court of

Appeals, 12 public respondent rejected the
petitioners' plea that the incident in question was
caused by force majeure and that they are,
therefore, not liable to the private respondents for

Page 43 of 51
any kind of damage such damage being in the
nature of damnum absque injuria. cdrep
The motion for reconsideration filed by the
petitioners, as well as the motion to modify
judgment filed by the private respondents, 13 were
denied by the public respondent in its Resolution
of 27 December 1991. 14
Petitioners thus filed the instant petition on 21
February 1992.
After the Comment to the petition was filed by the
private respondents and the Reply thereto was
filed by the petitioners, We gave due course to the
petition on 17 June 1992 and directed the parties
to submit their respective Memoranda, 15 which
they subsequently complied with.
The petitioners raise the following errors allegedly
committed by the respondent Court:
"I.
THE COURT OF APPEALS ERRED IN
APPLYING THE RULING OF NAKPIL & SONS V.
COURT OF APPEALS AND HOLDING THAT
PETITIONERS WERE GUILTY OF NEGLIGENCE.
II.
THE COURT OF APPEALS ERRED IN
HOLDING THAT THE WRITTEN NOTICES OF
WARNING ISSUED BY PETITIONERS WERE
INSUFFICIENT.
III.
THE COURT OF APPEALS ERRED IN
HOLDING THAT THE DAMAGE SUFFERED BY
PRIVATE RESPONDENTS WAS NOT DAMNUM
ABSQUE INJURIA.
IV.
THE COURT OF APPEALS ERRED IN NOT
AWARDING
THE
COUNTERCLAIM
OF
PETITIONERS FOR ATTORNEY'S FEES AND
EXPENSES OF LITIGATION." 16
These same errors were raised by herein
petitioners in G.R. No. 96410, entitled National
Power Corporation, et al. vs. Court of Appeals, et
al., 17 which this Court decided on 3 July 1992.
The said case involved the very same incident
subject of the instant petition. In no uncertain

terms, We declared therein that the proximate

cause of the loss and damage sustained by the
plaintiffs therein who were similarly situated as
the private respondents herein was the
negligence of the petitioners, and that the 24
October 1978 "early warning notice" supposedly
sent to the affected municipalities, the same notice
involved in the case at bar, was insufficient. We
thus cannot now rule otherwise not only because
such a decision binds this Court with respect to
the cause of the inundation of the town of
Norzagaray, Bulacan on 26-27 October 1978 which
resulted in the loss of lives and the destruction to
property in both cases, but also because of the
fact that on the basis of its meticulous analysis
and evaluation of the evidence adduced by the
parties in the cases subject of CA-G.R. CV Nos.
27290-93,
public
respondent
found
as
conclusively
established
that
indeed,
the
petitioners were guilty of "patent gross and evident
lack of foresight, imprudence and negligence in the
management and operation of Angat Dam," and
that "the extent of the opening of the spillways,
and the magnitude of the water released, are all
but
products
of
defendants-appellees'
headlessness, slovenliness, and carelessness." 18
Its findings and conclusions are binding upon Us,
there being no showing of the existence of any of
the exceptions to the general rule that findings of
fact of the Court of Appeals are conclusive upon
this Court. 19 Elsewise stated, the challenged
decision can stand on its own merits
independently of Our decision in G.R. No. 96410.
In
any
event,
We
reiterate
here
Our
pronouncement in the latter case that Juan F.
Nakpil & Sons vs. Court of Appeals 20 is still good
law as far as the concurrent liability of an obligor
in the case of force majeure is concerned. In the
Nakpil case, We held:
"To exempt the obligor from liability under Article
1174 of the Civil Code, for a breach of an
obligation due to an 'act of God,' the following
must concur: (a) the cause of the breach of the
obligation must be independent of the will of the
debtor; (b) the event must be either unforeseeable
or unavoidable; (c) the event must be such as to
render it impossible for the debtor to fulfill his

Page 44 of 51
obligation in a normal manner; and (d) the debtor
must be free from any participation in, or
aggravation of the injury to the creditor. (Vasquez
v. Court of Appeals, 138 SCRA 553; Estrada v.
Consolacion, 71 SCRA 423; Austria v. Court of
Appeals, 39 SCRA 527; Republic of the Phil. v.
Luzon Stevedoring Corp. 21 SCRA 279; Lasam v.
Smith, 45 Phil. 657).

exclusively by an act of God or force majeure; a

human factor negligence or imprudence had
intervened. The effect then of the force majeure in
question may be deemed to have, even if only
partly, resulted from the participation of man.
Thus, the whole occurrence was thereby
humanized, as it were, and removed from the rules
applicable to acts of God.

Thus, if upon the happening of a fortuitous event

or an act of God, there concurs a corresponding
fraud,
negligence,
delay
or
violation
or
contravention in any manner of the tenor of the
obligation as provided for in Article 1170 of the
Civil Code, which results in loss or damage, the
obligor cannot escape liability.

WHEREFORE, for want of merit, the instant

petition
is
hereby
DISMISSED
and
the
Consolidated Decision of the Court of Appeals in
CA-G.R. CV Nos. 27290-93 is AFFIRMED, with
costs against the petitioners.

The principle embodied in the act of God doctrine

strictly requires that the act must be one
occasioned exclusively by the violence of nature
and all human agencies are to be excluded from
creating or entering into the cause of the mischief.
When the effect, the cause of which is to be
considered, is found to be in part the result of the
participation of man, whether it be from active
intervention or neglect, or failure to act, the whole
occurrence is thereby humanized, as it were, and
removed from the rules applicable to the acts of
God. (1 Corpus Juris, pp. 1174-1175). Cdpr

Feliciano, Bidin, Romero and Melo, JJ ., concur.

Thus it has been held that when the negligence of

a person concurs with an act of God in producing
a loss, such person is not exempt from liability by
showing that the immediate cause of the damage
was the act of God. To be exempt from liability for
loss because of an act of God, he must be free
from any previous negligence or misconduct by
which that loss or damage may have been
occasioned. (Fish & Elective Co. v. Phil. Motors, 55
Phil. 129; Tucker v. Milan, 49 O.G. 4379;
Limpangco & Sons v. Yangco Steamship Co., 34
Phil. 594, 604; Lasam v. Smith, 45 Phil. 657)." 21

Vicente J. Francisco for defendants-appellees.

Accordingly, petitioners cannot be heard to invoke

the act of God or force majeure to escape liability
for the loss or damage sustained by the private
respondents since they, the petitioners, were guilty
of negligence. The event then was not occasioned

SO ORDERED.

EN BANC
[G.R. No. L-19331. April 30, 1965.]
VICTORIA G. CAPUNO and JOSEPHINE G.
CAPUNO, plaintiffs-appellants, vs. PEPSI-COLA
BOTTLING COMPANY OF THE PHILIPPINES and
JON ELORDI, defendants-appellees.
Federico Andres for plaintiffs-appellants.

SYLLABUS
1.
DAMAGES; CIVIL ACTION BASED ON
QUASI-DELICT; PRESCRIBES IN FOUR YEARS.
An action for recovery of damages based on a
quasi-delict must be instituted within four years.
2.
ID.; ID.; PRESCRIPTIVE PERIOD STARTS
FROM DAY QUASI-DELICT OCCURRED. An
action based on a quasi-delict is governed by
Article 1150 of the Civil Code as to the question of
when the prescriptive period of four years shall
begin to run, that is, "from the day (the action)
may be brought," which means from the day the
quasi-delict occurred or was committed.

Page 45 of 51
3.
ID.; ID.; PRESCRIPTIVE PERIOD NOT
INTERRUPTED BY INSTITUTION OF CRIMINAL
ACTION. The institution of a criminal action
cannot have the effect of interrupting the
institution of a civil action based on a quasi-delict.
DECISION
MAKALINTAL, J p:
This appeal (in forma pauperis), certified here by
the Court of Appeals, is from the order of the
Court of First Instance of Tarlac dismissing
appellants' complaint in Civil Case No. 3315 for
recovery of damages for the death of Cipriano
Capuno.
The case arose from a vehicular collision which
occurred on January 3, 1953 in Apalit, Pampanga.
Involved were a Pepsi-Cola delivery truck driven by
Jon Elordi and a private car driven by Capuno.
The collision proved fatal to the latter as well as to
his passengers, the spouses Florencio Buan and
Rizalina Paras.
On January 5, 1953 Elordi was charged with triple
homicide through reckless imprudence in the
Court of First Instance of Pampanga (Criminal
Case No. 1591). The information was subsequently
amended to include claims for damages by the
heirs of the three victims.
On October 1, 1953, while the criminal case was
pending, the Intestate Estate of the Buan spouses
and their heirs filed a civil action, also for
damages, in the Court of First Instance of Tarlac
against the Pepsi-Cola Bottling Company of the
Philippines and Jon Elordi (Civil Case No. 838).
Included in the complaint was a claim for
indemnity in the sum of P2,623.00 allegedly paid
by the Estate to the heirs of Capuno under the
Workmen's Compensation Act.
In the criminal case both the heirs of Capuno and
the Estate of Buan the former being appellants
herein were represented by their respective
counsel as private prosecutors: Attorney Ricardo
Y. Navarro and Attorneys Jose W. Diokno and

Augusto M. Ilagan. In view of the filing of the civil

action, the accused Jon Elordi moved to strike out
the appearances of these private prosecutors in
the criminal case. Grounds for the motion were (1)
that as far as the Capuno heirs were concerned
they no longer had any interest to protect in the
criminal case since they had already claimed and
received compensation for the death of their
decedent; and (2) that on the part of the Estate of
Buan its right to intervene in said case had been
abated by the civil action.
The appearance and intervention of Attorneys
Diokno and Ilagan was disallowed by the Court in
an order dated September 23, 1953, and that of
Attorney Navarro was disallowed in an amending
order dated October 23, 1954. No appeal was
taken from either of the two orders.
On June 11, 1958 the parties in Civil Case No.
838 entered into a "Compromise and Settlement."
For P290,000.00 the Buan Estate gave up its
claims for damages, including the claim for
reimbursement of the sum of P2,623.00 previously
paid to the heirs of Capuno "under the Workmen's
Compensation Act." The Court approved the
compromise and accordingly dismissed the case
on the following June 17.
At that time the criminal case was still pending;
judgment was rendered only on April 15, 1959,
wherein the accused Elordi was acquitted of the
charges against him. Prior thereto, or on
September 26, 1958, however, herein appellants
commenced a civil action for damages against the
Pepsi-Cola, Bottling Company of the Philippines
and Jon Elordi. This is the action which, upon
appellees' motion, was dismissed by the Court a
quo in its order of February 29, 1960, from which
order the present appeal has been taken.
The grounds upon which appellees based their
motion for dismissal and which the Court found to
be "welltaken" were: (1) that the action had already
prescribed; and (2) that appellees had been
released from appellants' claim for damages by
virtue of the payment to the latter of the sure of
P2,623.00 by the Buan Estate under the

Page 46 of 51
Workmen's Compensation Act, which sum, in
turn, was sought to be recovered by the said
Estate from appellees in Civil Case No. 838 but
finally settled by them in their compromise.
The ruling of the court below on both points is
now assailed by appellants as erroneous. In our
opinion the question of prescription is decisive.
There can be no doubt that the present action is
one for recovery of damages based on a quasidelict, which action must be instituted within four
(4) years (Article 1146, Civil Code). Appellants
originally sought to enforce their claim ex-delicto,
that is, under the provisions of the Penal Code,
when they intervened in the criminal case against
Jon Elordi. The information therein, it may be
recalled, was amended precisely to include an
allegation concerning damages suffered by the
heirs of the victims of the accident for which Elordi
was being prosecuted. But appellants' intervention
was subsequently disallowed and they did not
appeal from the Court's order to that effect. And
when they commenced the civil action on
September 26, 1958 the criminal case was still
pending, showing that appellants then chose to
pursue the remedy afforded by the Civil Code, for
otherwise that action would have been premature
and in any event would have been concluded by
the subsequent judgment of acquittal in the
criminal case.
In filing the civil action as they did appellants
correctly considered it as entirely independent of
the criminal action, pursuant to Articles 31 and
33 of the Civil Code, which read:
"ART. 31.
When the civil action is based on an
obligation not arising from the act or omission
complained of as a felony, such civil action may
proceed independently of the criminal proceedings
and regardless of the result of the latter."

"ART. 33.
In cases of defamation, fraud, and
physical injuries, a civil action of damages,
entirely separate and distinct from the criminal
action may be brought by the injured party. Such
civil action shall proceed independently of the
criminal prosecution, and shall require only a
preponderance of evidence."
The term "physical injuries" in Article 33 includes
bodily injuries causing death (Dyogi vs. Yatco, G.R.
No. L-9623, Jan. 22, 1957, Vol. 22, L.J. p. 175). In
other words the civil action for damages could
have been commenced by appellants immediately
upon the death of their decedent, Cipriano
Capuno, on January 3, 1953 or thereabouts, and
the same would not have been stayed by the filing
of the criminal action for homicide through
reckless imprudence. But the complaint here was
filed only on September 26, 1958, or after the
lapse of more than five years.
In the case of Diocesa Paulan, et al. vs. Zacarias
Sarabia, et al., G. R. No. L-10542, promulgated
July 31, 1958, this Court held that an action
based on a quasi-delict is governed by Article 1150
of the Civil Code as to the question of when the
prescriptive period of four years shall begin to run,
that is, "from the day (the action) may be brought"
which means from the day the quasi-delict
occurred or was committed.
The foregoing considerations dispose of appellants'
contention that the four-year period of prescription
in this case was interrupted by the filing of the
criminal action against Jon Elordi inasmuch as
they had neither waived the civil action nor
reserved the right to institute it separately. Such
reservation was not then necessary; without
having made it they could file as in fact they did
a separate civil action even during the pendency
of the criminal case (Pachoco vs. Tumangday, L14500, May 25, 1960; Azucena vs. Potenciano, L14028, June 30, 1962); and consequently, as held
in Paulan vs. Sarabia, supra, "the institution of a
criminal action cannot have the effect of
interrupting the institution of a civil action based
on a quasi-delict."

Page 47 of 51
As to whether or not Rule III, Section 2, of the
Revised Rules of Court, which requires the
reservation of the right to institute a separate and
independent civil action in the cases provided for
in Articles 31, 32, 33, 34, and 2177 of the Civil
Code, affects the question of prescription, we do
not now decide. The said rule does not apply in
the present case.
Having found the action of appellants barred by
the statute of limitations, we do not consider it
necessary to pass upon the other issues raised in
their brief.
The order appealed from is affirmed, without
costs.
Bengzon, C.J., Bautista Angelo, Concepcion,
Reyes, J.B.L., Barrera, Paredes, Dizon, Regala,
Bengzon, J.P. and Zaldivar, JJ., concur.

them in their company, educating them and

instructing them in proportion to their means",
while, on the other hand, gives them the "right to
correct and punish them in moderation" (Articles
154 and 155, Spanish Civil Code). The only way by
which they can relieve themselves of such liability
is if they prove that they exercised all the diligence
of a good father of a family to prevent the damage
(Article 1903, last paragraph, Spanish Civil Code).
2.
ID.;
LIABILITY
OF
TEACHERS
OR
DIRECTOR; INSTITUTIONS AFFECTED. The
civil liability imposed by Article 1903 of the old
Civil Code on teachers or directors of arts and
trades for damages caused by pupils or
apprentices under their custody, only applies to an
institution of arts and trades and not to any
academic educational institution.
DECISION
BAUTISTA ANGELO, J p:

FIRST DIVISION
[G.R. No. L-10134. June 29, 1957.]
SABINA EXCONDE, plaintiff-appellant, vs.
DELFIN
CAPUNO
and
DANTE
CAPUNO,
defendants-appellees.
Magno T. Bueser for appellant.
Alvero Law Offices & Edon B. Brion and
Vencedor A. Alimario for appellees.
SYLLABUS
1.
CIVIL LIABILITY OF PARENTS FOR
DAMAGES
CAUSED
BY
THEIR
MINOR
CHILDREN; RELIEF FROM LIABILITY. The civil
liability which the law imposes upon the father,
and, in case of his death or incapacity, the mother,
for any damages that may be caused by the minor
children who live with them is a necessary
consequence of the parental authority they
exercise over them which imposes upon the
parents the "duty of supporting them, keeping

Dante Capuno, son of Delfin Capuno, was accused

of double homicide through reckless imprudence
for the death of Isidoro Caperia and Amado
Ticzon on March 31, 1949 in the Court of First
Instance of Laguna (Criminal Case No. 15001).
During the trial, Sabina Exconde, as mother of the
deceased Isidoro Caperia, reserved her right to
bring a separate civil action for damages against
the accused. After trial, Dante Capuno was found
guilty of the crime charged and, on appeal, the
Court of Appeals affirmed the decision. Dante
Capuno was only fifteen (15) years old when he
committed the crime.
In line with her reservation, Sabina Exconde filed
the present action against Delfin Capuno and his
son Dante Capuno asking for damages in the
aggregate amount of P2,959.00 for the death of
her son Isidoro Caperia. Defendants set up the
defense that if any one should be held liable for
the death of Isidoro Caperia, he is Dante Capuno
and not his father Delfin because at the time of
the accident, the former was not under the
control, supervision and custody of the latter. This
defense was sustained by the lower court and, as a

Page 48 of 51
consequence, it only convicted Dante Capuno to
pay the damages claimed in the complaint. From
this decision, plaintiff appealed to the Court of
Appeals but the case was certified to us on the
ground that the appeal only involves questions of
law.
It appears that Dante Capuno was a member of
the Boy Scouts Organization and a student of the
Balintawak Elementary School situated in a barrio
in the City of San Pablo and on March 31, 1949 he
attended a parade in honor of Dr. Jose Rizal in
said city upon instruction of the city school's
supervisor. From the school Dante, with other
students, boarded a jeep and when the same
started to run, he took hold of the wheel and drove
it while the driver sat on his left side. They have
not gone far when the jeep turned turtle and two
of its passengers, Amado Ticzon and Isidoro
Caperia, died as a consequence. It further
appears that Delfin Capuno, father of Dante, was
not with his son at the time of the accident, nor
did he know that his son was going to attend a
parade. He only came to know it when his son told
him after the accident that he attended the parade
upon instruction of his teacher.
The only issue involved in this appeal is whether
defendant Delfin Capuno can be held civilly liable,
jointly and severally with his son Dante, for
damages resulting from the death of Isidoro
Caperia caused by the negligent act of minor
Dante Capuno.
The case comes under Article 1903 of the Spanish
Civil Code, paragraph 1 and 5, which provides:
"ART. 1903. The obligation imposed by the next
preceding articles is enforceable not only for
personal acts and omissions, but also for those of
persons for whom another is responsible.
The father, and, in case of his death or incapacity,
the mother, are liable for any damages caused by
the minor children who live with them.
xxx

xxx

xxx

Finally, teachers or directors of arts and trades are

liable for any damages caused by their pupils or
apprentices while they are under their custody."
Plaintiff contends that defendant Delfin Capuno is
liable for the damages in question jointly and
severally with his son Dante because at the time
the latter committed the negligent act which
resulted in the death of the victim, he was a minor
and was then living with his father, and inasmuch
as these facts are not disputed, the civil liability of
the father is evident. And so, plaintiff contends,
the lower court erred in relieving the father from
liability.
We find merit in this claim. It is true that under
the law above quoted, "teachers or directors of arts
and trades are liable for any damages caused by
their pupils or apprentices while they are under
their custody", but this provision only applies to
an institution of arts and trades and not to any
academic educational institution (Padilla, Civil
Law, 1953, Ed., Vol. IV, p. 841; See 12 Manresa,
4th Ed., p. 557). Here Dante Capuno was then a
student of the Balintawak Elementary School and
as part of his extra-curricular activity, he attended
the parade in honor of Dr. Jose Rizal upon
instruction of the city school's supervisor. And it
was in connection with that parade that Dante
boarded a jeep with some companions and while
driving it, the accident occurred. In the
circumstances, it is clear that neither the head of
that school, nor the city school's supervisor, could
be held liable for the negligent act of Dante
because he was not then a student of an
institution of arts and trades as provided for by
law.
The civil liability which the law impose upon the
father, and, in case of his death or incapacity, the
mother, for any damages that may be caused by
the minor children who live with them, is obvious.
This is a necessary consequence of the parental
authority they exercise over them which imposes
upon the parents the "duty of supporting them,
keeping them in their company, educating them
and instructing them in proportion to their
means", while, on the other hand, gives them the

Page 49 of 51
"right to correct and punish them in moderation"
(Articles 154 and 155, Spanish Civil Code). The
only way by which they can relieve themselves of
this liability is if they prove that they exercised all
the diligence of a good father of a family to prevent
the damage (Article 1903, last paragraph, Spanish
Civil Code). This defendants failed to prove.
Wherefore, the decision appealed from is modified
in the sense that defendants Delfin Capuno and
Dante Capuno shall pay to plaintiff, jointly and
severally, the sum of P2,959.00 as damages, and
the costs of action.
Bengzon, Montemayor, Labrador and Endencia,
JJ., concur.
Paras, C.J., concurs in the result.
Separate Opinions
REYES, J.B.L., J., dissenting:
After mature consideration I believe we should
affirm the judgment relieving the father of liability.
I can see no sound reason for limiting Art. 1903 of
the old Civil Code to teachers of arts and trades
and not to academic ones. What substantial
difference is there between them in so far as
concerns the proper supervision and vigilance over
their pupils? It cannot be seriously contended that
an academic teacher is exempt from the duty of
watching that his pupils do not commit a tort to
the detriment of third persons, so long as they are
in a position to exercise authority and supervision
over the pupil. In my opinion, in the phrase
"teachers or heads of establishments of arts and
trades" used in Art. 1903 of the old Civil Code, the
words "arts and trades" does not qualify "teachers"
but only "heads of establishments". The phrase is
only an updated version of the equivalent terms
"preceptores y artesanos" used in the Italian and
French Civil Codes.
If, as conceded by all commentators, the basis of
the presumption of negligence of Art. 1903 in
some culpa in vigilando that the parents, teachers,
etc. are supposed to have incurred in the exercise

of their authority, it would seem clear that where

the parent places the child under the effective
authority of the teacher, the latter, and not the
parent, should be the one answerable for the torts
committed while under his custody, for the very
reason that the parent is not supposed to interfere
with the discipline of the school nor with the
authority and supervision of the teacher while the
child is under instruction. And if there is no
authority, there can be no responsibility.
In the case before us, there is no question that the
pupil, Dante Capuno, was instructed by the City
School Supervisor to attend the Rizal parade. His
father could not properly refuse to allow the child
to attend, in defiance of the school authorities.
The father had every reason to assume that in
ordering a minor to attend a parade with other
children, the school authorities would provide
adequate supervision over them. If a teacher or
scout master was present, then he should be the
one responsible for allowing the minor to drive the
jeep without being qualified to do so. On the other
hand, if no teacher or master was at hand to
watch over the pupils, the school authorities are
the ones answerable for that negligence, and not
the father.
At any rate, I submit that the father should not be
held liable for a tort that he was in no way able to
prevent, and which he had every right to assume
the school authorities would avoid. Having proved
that he entrusted his child to the custody of school
authorities that were competent to exercise
vigilance over him, the father has rebutted the
presumption of Art. 1903 and the burden of proof
shifted to the claimant to show actual negligence
on the part of the parent in order to render him
liable.
Padilla and Reyes, A., JJ., concur.

FIRST DIVISION
[G.R. No. L-24101. September 30, 1970.]

Page 50 of 51
MARIA TERESA Y. CUADRA, minor represented
by her father ULISES P. CUADRA, ET AL.,
plaintiffs-appellees, vs. ALFONSO MONFORT,
defendant-appellant.
Rodolfo J. Herman for plaintiffs-appellees.
Luis G. Torres & Abraham E. Tionko for defendant
appellant.
DECISION
MAKALINTAL, J p:
This is an action for damages based on quasidelict, decided by the Court of First Instance of
Negros Occidental favorably to the plaintiffs and
appealed by the defendant to the Court of Appeals,
which certified the same to us since the facts are
not in issue.
Maria Teresa Cuadra, 12, and Maria Teresa
Monfort, 13, were classmates in Grade Six at the
Mabini Elementary School in Bacolod City. On
July 9, 1962 their teacher assigned them, together
with three other classmates, to weed the grass in
the school premises. While thus engaged Maria
Teresa Monfort found a plastic headband, an
ornamental object commonly worn by young girls
over their hair. Jokingly she said aloud that she
had found an earthworm and, evidently to frighten
the Cuadra girl, tossed the object at her. At that
precise moment the latter turned around to face
her friend, and the object hit her right eye.
Smarting from the pain, she rubbed the injured
part and treated it with some powder. The next
day, July 10, the eye became swollen and it was
then that the girl related the incident to her
parents, who thereupon took her to a doctor for
treatment. She underwent surgical operation
twice, first on July 20 and again on August 4,
1962, and stayed in the hospital for a total of
twenty-three days, for all of which the parents
spent the sum of P1,703.75. Despite the medical
efforts, however, Maria Teresa Cuadra completely
lost the sight of her right eye.

In the civil suit subsequently instituted by the

parents in behalf of their minor daughter against
Alfonso Monfort, Maria Teresa Monfort's father, the
defendant was ordered to pay P1,703.00 as actual
damages; P20,000.00 as moral damages; and
P2,000.00 as attorney's fees, plus the costs of the
suit.
The legal issue posed in this appeal is the liability
of a parent for an act of his minor child which
causes damage to another under the specific facts
related above and the applicable provisions of the
Civil Code, particularly Articles 2176 and 2180
thereof, which read:
"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."
"ART. 2180. The obligation imposed by Article
2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom
one is responsible.
The father and, in case of his death or incapacity,
the mother, are responsible for the damages
caused by the minor children who live in their
company.
xxx

xxx

xxx

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."
The underlying basis of the liability imposed by
Article 2176 is the fault or negligence
accompanying the act or the omission, there being
no willfulness or intent to cause damage thereby.
When the act or omission is that of one person for
whom another is responsible, the latter then
becomes himself liable under Article 2180, in the
different cases enumerated therein, such as that

Page 51 of 51
of the father or the mother under the
circumstances above quoted. The basis of this
vicarious, although primary, liability is, as in
Article 2176, fault or negligence, which is
presumed from that which accompanied the
causative act or omission. The presumption is
merely prima facie and may therefore be rebutted.
This is the clear and logical inference that may be
drawn from the last paragraph of Article 2180,
which states "that 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."

character which would reflect unfavorably on her

upbringing and for which the blame could be
attributed to her parents.

Since the fact thus required to be proven is a

matter of defense, the burden of proof necessarily
rests on the defendant. But what is the exact
degree of diligence contemplated, and how does a
parent prove it in connection with a particular act
or omission of a minor child, especially when it
takes place in his absence or outside his
immediate company? Obviously there can be no
meticulously calibrated measure applicable; and
when the law simply refers to "all the diligence of a
good father of the family to prevent damage," it
implies a consideration of the attendant
circumstances in every individual case, to
determine whether or not by the exercise of such
diligence the damage could have been prevented.

Reyes, J.B.L., Actg. C.J., Dizon, Zaldivar, Castro,

Teehankee, Villamor and Makasiar, JJ., concur.

In the present case there is nothing from which it

may be inferred that the defendant could have
prevented the damage by the observance of due
care, or that he was in any way remiss in the
exercise of his parental authority in failing to
foresee such damage, or the act which caused it.
On the contrary, his child was at school, where it
was his duty to send her and where she was, as he
had the right to expect her to be, under the care
and supervision of the teacher. And as far as the
act which caused the injury was concerned, it was
an innocent prank not unusual among children at
play and which no parent, however careful, would
have any special reason to anticipate much less
guard against. Nor did it reveal any mischievous
propensity, or indeed any trait in the child's

The victim, no doubt, deserves no little

commiseration and sympathy for the tragedy that
befell her. But if the defendant is at all obligated to
compensate her suffering, the obligation has no
legal sanction enforceable in court, but only the
moral compulsion of good conscience.
The decision appealed from is reversed, and the
complaint is dismissed, without pronouncement
as to costs.

Concepcion, C.J., is on leave.

Fernando, J., did not take part.
Barredo, J., dissents in a separate opinion.
Separate Opinions
BARREDO, J., dissenting:
I am afraid I cannot go along with my esteemed
colleagues in holding that the act of appellant's
daughter does not constitute fault within the
contemplation of our law on torts. She was 13
years and should have known that by jokingly
saying "aloud that she had found an earthworm
and, evidently to frighten the Cuadra girl, tossed
the object at her," it was likely that something
would happen to her friend, as in fact, she was
hurt.
As to the liability of appellant as father, I prefer to
hold that there being no evidence that he had
properly advised his daughter to behave properly
and not to play dangerous jokes on her classmate
and playmates, he can be liable under Article 2180
of the Civil Code. There is nothing in the record to
show that he had done anything at all to even try
to minimize the damage caused upon plaintiff
child.