Gat Chali An

8/10/2019 Gat Chali An

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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-35615 February 17, 1977

FRANCSCA GATC!ALAN, petitioner,vs.!ON. "ESUS P. ARLEGU, "u#$e, Cour% o& F'r(% )(%a)*e, +ra)* , +ayobo)$, Nuea/'0*aya MGUEL GUE/ARA, Pro')*'a2 Ser'&&, Nuea /'0*aya a)# PATAN4ANGCO, respondents.

G.R. No. L-136 February 17, 1977

TANG TEE a)# TU T C!A8, petitioners,vs.

!ON. "ESUS P. ARLEU ') '( *a:a*'%y a( Pre('#')$ "u#$e o& %e Cour% o& F'r(% )(%a)*e o&Nuea /'0*aya, +ra)* , a)# FLORANTE TUPAS re:re(e)%e# by '( $ra)#&a%er. /CENTEM. TUPASrespondents.

Dominador S. la Madrid for petitioner Francisca Gatchalian.

Jesus E. Mendoza for petitioners Tang Tee and Tiu Tik Chay.

Eleodoro M. enitez for respondent !az Tan"angco.

Delano #. Europa for respondent Florante Tupasi.

AUNO, J.:

hese t!o related cases have a co""on factual bac#$round.

$%&'()'. % &efore the !ar 'rancisca (atchalian )*lin$ +i#a- and Pa an!an$co )!ho are no!both over ei$ht/seven ears old- !ere $ood friends !ho lived to$ether in the sa"e house located atSolano, Nueva Vicaa. 0hether the !ere partners and ac1uired properties !ith co""on funds isa "atter of controvers. he !ere separated because of the !ar. Pa an!an$co evacuated toPan$asinan. 'rancisca (atchalian presu"abl re"ained at Solano.

In 2345 Pa an!an$co sued 'rancisca (atchalian in the Court of 'irst Instance of Nueva Vicaafor the recover of her alle$ed share in 6ots 75 and 78 !hich !ere re$istered in 'rancisca9s na"e)Civil Case No. 2:5:-.

;ud$e ;ose D. Parano in a decision dated *u$ust


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to Pa, !ith le$al rate of interest fro" the date of the finalit of the @ud$"ent, plus /P7,=== asattorne9s fees.

'rancisca (atchalian appealed to the Court of *ppeals. Aer appeal !as dis"issed because she didnot file her brief on ti"e )an!an$co vs. (atchalian, C*/(.R. No. :5=5:/R, Resolutions of October24, 23?= and *u$ust !rit of possession>,co""andin$ the provincial sheriff >to re1uire> 'rancisca (atchalian >to reconve one/half)27-undi*idedportion of 6ots 75 and 78> and >to place> Pa an!an$co >in possession of said one/half )27- undi*ided share> 9 )6ot 75 appears to belon$ to a third person. See p. 7 of Re1uest for Oral

*r$u"ent dated Nove"ber 2?,23?2 in 6/ta#e co$niance> of the parties9 co"pro"ise a$ree"ent and toter"inate the t!o cases.

In that "otion 'rancisca (atchalian 1uoted and anneBed Pa an!an$co9s letter of March 7=, 23?7to her counsel, Do"inador S. 6a Madrid, !herein Pa offered to co"pro"ise the @ud$"ent in CivilCase No. 2:5: b !aivin$ her clai" to the rentals and cancellin$ the auction sale if 'rancisca !ould!ithdra! her co"plaint in Civil Case No. 23::, cancel her notice of lis pendenson the title of 6ot 78/

* and a$ree that the !ould si"pl divide that lot e1uall as ad@ud$ed in Civil Case No. 2:5:. Saidletter reads as follo!s

37< R.PapaSt.


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Sa"palocManilaMarch7=,23?7

R*NS6*ION

Dr. Do"inador S. 6a Madrid.*bo$ado ni 'rancisca (atchalianCaso Civil No, 2:5: at Caso Civil No. 23::;u$ado de Pri"era Instancia Nueva VicaaNo. 744 E. Rodri$ue, Sr. &lvd., .C.

Dear Dr. 6a Madrid

I a" than#in$ ou for our $oodness and #indness !hen I !ent to our house

esterda !ith " nephe! Oscar an!an$co.

I received a cop of the ne! co"plaint of 'rancisca (atchalian a$ainst "e, ;ud$eParano and the Sheriff of Nueva Vicaa )Civil Case No. l3:: of the Court of 'irstInstance of Nueva Vicaa-, !hich ou si$ned as her la!er.

&ecause I !ant our case !ith 'rancisca (atchalian ter"inated so that this ne! CivilCase No. 23:: !ill not continue an "ore, both of us are alread old !ith *lin$+i#a, I have decided to a"icabl settle !ith 'rancisca (atchalian in the follo!in$"anner

2. She !ill !ithdra! fro" the Court her case and not continue the sa"e a$ainst "e,

!hat I "ean is that she !ill have the case dis"issed in CourtF

7. 'rancisca (atchalian !ill no lon$er co"plain a$ainst "e !ith respect to da"a$esbecause of our first case, Civil Case No. 2:5:F


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4. hat I !ill have discontinued the public auction sale under the direction of theSheriff of Nueva Vicaa !ith respect to the one/hill portion of the land under thesole o!nership of 'rancisca (atchalian C No. :a la!er should not in an !a co""unicate upon the sub@ect ofthe controvers !ith a part represented b counselF "uch less should he underta#e to ne$otiate orco"pro"ise the "atter !ith hi", but should deal onl !ith his counsel.>

Pa an!an$co9s la!er also contended that 'rancisca (atchalian9s notice of dis"issal andcancellation of the notice of lis pendens!ere unnecessar because of the lo!er court9s order ofdis"issal dated March 7?, 23?7.

he opposition of Pa an$!an$co9s counsel to 'rancisca (atchalian9s "otion to sta eBecutionprovo#ed 'rancisca to file in the lo!er court on ;une


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On *u$ust 77, 23?7, the last ti"e 'rancisca (atchalian9s "otion to sta eBecution !as set forhearin$, she and her counsel did not appear. In vie! of their non/appearance, ;ud$e ;esus P.

*rle$ui denied the "otion. Ae directed that the auction sale should be held.

'rancisca (atchalian "oved for the reconsideration of the order of denial. She alle$ed that she andher counsel never received an notice settin$ their "otion for hearin$ on *u$ust 77,23?7.

;ud$e *rle$ui denied the "otion in his order of Septe"ber 78, 23?7. Ae reasoned out that theauction sale could no lon$er be suspended because the !rit of eBecution had alread beenenforced. Ae inti"ated that the effect of the co"pro"ise on the @ud$"ent should have been raisedin Civil Case No. )011.

On October 27, 23?7, 'rancisca (atchalian filed the instant special civil actions of certiorari andprohibition in order to annul ;ud$e *rle$ui9s orders of *u$ust 77 and Septe"ber 78, 23?7.

* te"porar restrainin$ order !as issued. he auction sale !as suspended. he respondentsans!ered the petition.

4uling% he issue is !hether the @ud$"ent in Civil Case No. 2:5: !as novated and superseded bthe alle$ed co"pro"ise.

Should 6ot 78 be divided e1uall bet!een the t!o octo$enarian fe"ale adversaries, as ori$inallintended b the trial courtH Should Pa an!an$co9s clai" for P


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one/half portion of 6ot 78 of the Solano cadastre )!ith an area of


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he issues are !hether an$ ee and iu i# Cha could be ad@ud$ed in conte"pt of court in CivilCase No. 2:5:, althou$h the !ere not parties therein, and !hether the lo!er court could orderthe" to vacate the portions of 6ot 78/* alle$edl occupied b their fa"ilies and co"pel thede"olition of their alle$ed i"prove"ents.

0e hold that in civil Case No. 2:5: the lo!er court has no @urisdiction to ad@ud$e petitioners an$

ee and iu i# Cha in conte"pt of court and to e@ect the" fro" 6ot 78/*.

he 2343 @ud$"ent of ;ud$e Parano is a @ud$"ent inpersonam, re1uirin$ Francisca Gatchaliantodeliver to Pa an!an$co the possession of >one/half undivided portion of> 6ot 78. It is not a

@ud$"ent in re" It is conclusive, not a$ainst the !hole !orld, but onl >bet!een the parties and theirsuccesors in interest b title subse1uent to the co""ence"ent of the action>, liti$atin$ for the sa"ethin$ and under the sa"e title and in the sa"e capacit> )Sec. :3, Rule


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*s a $eneral rule, persons !ho are not parties to an action or proceedin$ are not sub@ect to the@urisdiction of a court trin$ a case, are not supposed to be a!are of the court9s order and cannot,therefore, be declared $uilt of conte"pt for violatin$ its orders )'errer vs. Rodri$ue, 224 Phil. 2.5-.

he >!rit of possession> !as addressed to the sheriff, not to pan$ ee and iu i# Cha. It !as aprocess intended to enforce a @ud$"ent >for the deliver of the possession of real or personal

propert as conte"plated insection 8KdL, Rule !rit of possession> !asnot intended to enforce a special @ud$"ent for the deliver of real propert as conte"plated insection 3 of Rule !rit of possession> to e@ect the adverseoccupants. Mere disobedience to the !rit of possession, "hich "as addressed to the sheriffand notto the adverse occupants, did not render the adverse occupants $uilt of conte"pt of court Goyenade 8uizon *s. !hilippine /ational ank85 Phil. :53F 9. S. *s. 4amayrat77 Phil. 28 and not fro" third persons !ho !ere not parties to the case.

upasi9s contention that, to re1uire hi" to file an accionpu7licianaa$ainst an$ ee and iu i#Cha !ould onl result in "ultiplicit of suits, is not tenable. Due process re1uires the filin$ of suchan action.


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0AERE'ORE, in $%&'()', the lo!er court9s orders of *u$ust 77 and Septe"ber 78,23?7 are setaside.

he co"pro"ise a$ree"ent, !hereb Pa an!an$co and 'rancisca (atchalian a$reed to dividee1uall 6ot 78 )6ot 78/* as Pa an!an$co9s share and 6ot 78/& as 'rancisco (atchalian share-and Pa an!an$co !aived her clai" to the rentals, is hereb approved sub@ect to the condition that

'rancisca (atchalian should pa to Pa an!an$co the attorne9s fees a"ountin$ to P7,===, asad@ud$ed in the final and eBecutor @ud$"ent in Civil Case No. 2:5:. No costs.

;n $%1)&(


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0AERE'ORE, @ud$"ent is hereb rendered orderin$ the respondent torefund to the petitioner the a"ount of P7,37


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of the Philippine 0ood Products *ssociation, and three disinterested persons, allattestin$ that the said "anufactured diesel and fuel oils !ere actuall used in theeBploitation and operation of its forest concession.

On ;anuar 7=, 238


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$asoline and fuel purchased b "inin$ and lu"ber concessionaires are used !ithintheir o!n co"pounds and roads, and their vehicles seldo" use the national hi$h!as,the do not directl benefit fro" the 'und and its use. Aence, the taB refund $ives the"inin$ and the lo$$in$ co"panies a "easure of relief in li$ht of their peculiar situation.K2


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SEC. 2:7. Specific ta? on manufactured oils and other fuels. %% On refinedand "anufactured "ineral oils and "otor fuels, there shall be collected thefollo!in$ taBes

)a- +erosene or petroleu", per liter of volu"e capacit, t!o and one/half

centavosF

)b- 6ubricatin$ oils, per liter of volu"e capacit, seven centavosF

)c- Naptha, $asoline, and all other si"ilar products of distillation, per liter ofvolu"e capacit, ei$ht centavosF and

)d- On denatured alcohol to be used for "otive po!er, per liter of volu"ecapacit, one centavo !ro*ided hat if the denatured alcohol is "iBed !ith$asoline, the specific taB on !hich has alread been paid, onl the alcohol

content shall be sub@ect to the taB herein prescribed. 'or the purpose of thissubsection, the re"oval of denatured alcohol of not less than one hundredei$ht de$rees proof )ninetper centum absolute alcohol- shall be dee"ed tohave been re"oved for "otive po!er, unless sho!n to the contrar.

0henever an of the oils "entioned above are, durin$ the five ears fro";une ei$hteen, nineteen hundred and fift t!o, used in a$riculture andaviation, fiftper centumof the specific taB paid thereon shall be refunded bthe Collector of Internal Revenue upon the sub"ission of the follo!in$

)2- * s!orn affidavit of the producer and t!o disinterested personsprovin$ that the said oils !ere actuall used in a$riculture, or in lieu thereof

)7- Should the producer belon$ to an producers association orfederation, dul re$istered !ith the Securities and EBchan$e Co""ission, theaffidavit of the president of the association or federation, attestin$ to the factthat the oils !ere actuall used in a$riculture.

)


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SEC. 2:5. Specific Ta? on Diesel fuel oil. %% On fuel oil, co""erciall #no!nas diesel fuel oil, and on all si"ilar fuel oils, havin$ "ore or less the sa"e$eneratin$ po!er, there shall be collected, per "etric ton, one peso.

B B B B B B B B B

Section 5. he proceeds of the additional taB on "anufactured oils shallaccrue to the road and brid$e funds of the political subdivision for !hosebenefit the taB is collected !ro*ided ho"e*er, hat !henever an oils"entioned above are used b "iners or forest concessionaires in theiroperations, t!ent/five per centu" of the specific taB paid thereon shall berefunded b the Collector of Internal Revenue upon sub"ission of proof ofactual use of oils and under si"ilar conditions enu"erated in subpara$raphsone and t!o of section one hereof, a"endin$ section one hundred fort/t!o ofthe Internal Revenue Code !ro*ided further, hat no ne! road shall be

constructed unless the route or location thereof shall have been approved bthe Co""issioner of Public Ai$h!as after a deter"ination that such roadcan be "ade part of an inte$ral and articulated route in the PhilippineAi$h!a Sste", as re1uired in section t!ent/siB of the Philippine Ai$h!a

*ct of 235


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)d- On denatured alcohol to be used for "otive po!er, per liter ofvolu"e capacit, one centavo !ro*ided That unless other!ise provided forb special la!s, if the denatured alcohol is "iBed !ith $asoline, the specifictaB on !hich has alread been paid, onl the alcohol content shall be sub@ectto the taB herein prescribed. 'or the purposes of this subsection, the re"ovalof denatured alcohol of not less than one hundred ei$ht de$rees proof)ninet per centu" absolute alcohol- shall be dee"ed to have been re"ovedfor "otive po!er, unless sho!n to the contrarF

)e- Processed $as, per liter of volu"e capacit, three centavosF

)f- hinners and solvents, per liter of volu"e capacit, fift/sevencentavosF

)$- 6i1uefied petroleu" $as, per #ilo$ra", fourteen centavos !ro*ided

That li1uefied petroleu" $as used for "otive po!er shall be taBed at thee1uivalent rate as the specific taB on diesel fuel oilF

)h- *sphalts, per #ilo$ra", ei$ht centavosF

)i- (reases, !aBes and petrolatu", per #ilo$ra", fift centavosF

)@- *viation turbo @et fuel, per liter of volu"e capacit, fift/five centavos.)*s a"ended b Sec. 2, P.D. No. 24?7.-

B B B B B B B B B

SEC. 254. Specific ta? on diesel fuel oil. %% On fuel oil, co""erciall #no!nas diesel fuel oil, and on all si"ilar fuel oils, havin$ "ore or less the sa"e$eneratin$ po!er, per liter of volu"e capacit, seventeen and one/halfcentavos, !hich taB shall attach to this fuel oil as soon as it is in eBistence assuch.>

hen on March 72, 2382, these provisions !ere a"ended b EO 4?7 to read

SEC. 25


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)c- Naphtha, $asoline and all other si"ilar products of distillation, perliter of volu"e capacit, one peso and siB centavos !ro*ided hat onpre"iu" and aviation $asoline, the taB shall be one peso and ten centavosand one peso, respectivel, per liter of volu"e capacitF

)d- On denatured alcohol to be used for "otive po!er, per liter ofvolu"e capacit, one centavoF !ro*ided hatunless other!ise provided forb special la!s, if the denatured alcohol is "iBed !ith $asoline, the specifictaB on !hich has alread been paid, onl the alcohol content shall be sub@ectto the taB herein prescribed. 'or the purpose of this subsection, the re"ovalof denatured alcohol of not less than one hundred ei$ht de$rees proof)ninetper centum absolute alcohol- shall be dee"ed to have been re"ovedfor "otive po!er, unless sho!n to the contrarF

)e- Processed $as, per liter of volu"e capacit, three centavosF

)f- hinners and solvents, per liter of volu"e capacit, siBt/onecentavosF

)$- 6i1uefied petroleu" $as, per #ilo$ra", t!ent/onecentavos !ro*ided hat, li1uified petroleu" $as used for "otive po!er shallbe taBed at the e1uivalent rate as the specific taB on diesel fuel oilF

)h- *sphalts, per #ilo$ra", t!elve centavosF

)i- (reases, !aBes and petrolatu", per #ilo$ra", fift centavosF

)@- *viation turbo/@et fuel, per liter of volu"e capacit, siBt/fourcentavos.

B B B B B B B B B

SEC. 254. Specific ta? on diesel fuel oil. %% On fuel oil, co""erciall #no!nas diesel fuel oil, and all si"ilar fuel oils, havin$ "ore or less the sa"e$eneratin$ po!er, per liter of volu"e capacit, t!ent/five and one/half

centavos, !hich taB shall attach to this fuel oil as soon as it is in eBistence assuch.

* taB cannot be i"posed unless it is supported b the clear and eBpress lan$ua$eof a statuteFK23Lon the other hand, once the taB is un1uestionabl i"posed, KaL clai" ofeBe"ption fro" taB pa"ents "ust be clearl sho!n and based on lan$ua$e in the la!too plain to be "ista#en. K7=LSince the partial refund authoried under Section 5, R*2:


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the $rantee. Aence, petitioners clai" of refund on the basis of the specific taBes itactuall paid "ust eBpressl be $ranted in a statute stated in a lan$ua$e too clear to be"ista#en.

0e have carefull scrutinied R* 2:


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co"puted on the basis of the a"ounts dee"ed paid under Sections 2 and 7 of R*2:


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"2. On or about March 29th, 1950, at about 6:25 o'clock, p.m., the plaintiff was a lawful

paying guest of the Harman Villa Hotel, 354 Washington Avenue, Miami Beach, Dade

County, Florida, leased and operated by the defendant, Nathan Lipkind; at said time,

plaintiff was lawfully in and about said premises, and had entered said premises through

the stairway at the Washington Avenue entrance of said hotel, leading from the outsideto the second storey. Upon arriving at the second floor, the plaintiff walked down a

hallway, which was unlighted and dark, at the time, despite the fact that evening had set

in. The plaintiff was compelled to walk through the said hallway in order to reach her

room at the end of said hallway. As the direct and proximate result of the defendant's

negligence in failing to provide proper lighting, and as the direct and proximate result of

the defendant's negligence in leaving a bed mattress in said hallway, the plaintiff

suddenly tripped and fell over said mattress, which the defendant had negligently left in

said hallway, and which was lying, at said time, across the floor of the said hallway.

"3. As the direct and proximate result of the defendant's failure to provide proper lighting

at said time, and as the direct and proximate result of the defendant's negligence *540

in leaving the mattress in said hallway, the plaintiff, Bessie Goldin, was greatly and

severely injured, sustaining great and excruciating pain and suffering, a complete

comminuted, fractured right radius, lower third, with displacements of the fragments.


at said time, and as the direct and proximate result of the defendant's negligence in

leaving the mattress in said hallway, the plaintiff, Bessie Goldin, has continued to suffer

excruciating pains throughout the length of her entire right arm and right shoulder, has

been forced to have her right forearm in an uncomfortable and bulky cast, and will be

forced to wear this cast for an approximate period of six (6) weeks, and said plaintiff

further says that her condition is permanent and that she has been gravely and

permanently damaged, and that her nervous system was severely shocked and injured.



leaving the mattress in said hallway, the plaintiff, Bessie Goldin, has been hindered and

prevented from performing and carrying on the duties of her lawful employment for a

long period of time, and, in fact, is still prevented and hindered from performing and

carrying on the duties of her lawful employment, and may be so prevented and hindered

for the rest of her natural life, to her great monetary loss.


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leaving the mattress in said hallway, the plaintiff, Bessie Goldin, has in the past, and will

in the future, expend large sums of money for doctors' bills, hospital bills, nursing, drugs,

x-rays, and other related medical needs and services in and about the care of saidinjuries to herself.

"Wherefore, the plaintiff demands judgment against the defendant in the amount of Ten

Thousand Dollars ($10,000.00), and the plaintiff furthermore demands a trial by jury in

this action."

In the case of Kasanof v. Embry-Riddle Co., 157 Fla. 677, 26 So.2d 889, 891, the legal

sufficiency of a declaration was before the Court, and, in sustaining the declaration, we

in part said:

"It is established law that a declaration need not set out specific facts constituting

negligence but allegations of sufficient acts or omissions causing injury, coupled with

averments that they were negligently done or omitted, will be sufficient. See American

Dist. Electric Protective Co. v. Seaboard Airline R. Co., 129 Fla. 518, 177 So. 294. A

declaration based on a charge of simple negligence is sufficient if it alleges an act or

omission causing the injury and further alleges that such act or omission was

negligently done or omitted to be done. Jackson v. Edwards, 144 Fla. 187, 197 So. 833;

Dunn Bus Service, Inc., v. Wise, 140 Fla. 341, 191 So. 509; Potts v. Mulligan, 141 Fla.

685, 193 So. 767."

Section 511.13, F.S.A., requires that every hotel, rooming house, apartment house,

tenement house, restaurant, lunch or sandwich stand or counter in the State of Florida

shall be properly plumbed, lighted, heated and ventilated and shall be conducted in

every department with strict regard to health, comfort and safety of the guests or

tenants: Provided that such proper lighting shall be construed to apply to both daylight

and illumination. Further and additional regulations of hotels, etc., are provided for by

statutory enactments. See Chapter 511, F.S.A.

It will be observed that Section 511.13, supra, requires that hotels, rooming houses,

apartments, etc., must be properly lighted and each department of the hotels, rooming

houses and apartments in the State of Florida "shall be conducted * * * with strict regard

to health, comfort and safety of the guests or tenants * * *." (Emphasis supplied.)


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Paragraph 2 of the complaint alleged that the plaintiff, about 6:25 P.M., March 29, 1950,

was walking down the hallway of the second floor "which was unlighted and dark" and

as a result of defendant's *541 negligence the plaintiff tripped and fell over a mattress

left in the hallway. The plaintiff sustained permanent injuries as a result of the fall, which

was due to the negligent failure to provide proper lighting at the time and placeaforesaid, coupled with the negligent leaving in the hallway of the hotel of the mattress

that the proximate cause of the plaintiff's injuries was the improper lighting of the hallway

and the negligent leaving of a mattress therein.

The law imposes on hotels, apartments, innkeepers, etc., the duty to keep their

buildings, premises and appliances in a condition reasonably safe for the use of their

guests, or at least those parts of the buildings and premises to which the guests are

invited or may reasonably be expected to use. The duty of maintaining safe premises

and appliances cannot be delegated to another. There is a duty to exercise ordinary or

reasonable care to keep the hallways and passageways reasonably well lighted and free

of obstructions or hazards. An innkeeper is not an insurer of the personal safety of his

guests arising out of the condition of the buildings and premises. See 43 C.J.S.,

Innkeepers, 22, pages 1176-1180; 28 Am.Jur. 579, par. 57; 32 C.J. 562-563, par. 70;

14 R.C.L. 508-509, par. 14.

The facts involved in the case of Burgauer v. McClellan, 205 Ky. 51, 265 S.W. 439, are

similar to the case at bar. Mrs. Burgauer, it appears, was a guest of Hotel Palmer of

Paducah. She was walking along the hallway of the hotel on the way to her room and

tripped and fell over some linoleum and carpeting removed from a room and left in the

hallway. The rolls of linoleum and carpeting were placed in the hallway of the hotel by its

servants and Mrs. Burgauer, in passing to her room along the hallway, stumbled and fell

over the obstruction because the hallway was not sufficiently lighted and she could not

see the obstruction. The Court held that it was the legal duty of the hotel to exercise

ordinary care to have and keep the hallways and passageways of the hotel reasonably

well lighted and free from obstructions so that guests may pass to and from their rooms

and other places about the hotel in safety. The hotel was not an insurer of the safety ofthe guests and its responsibility was limited to the exercise of reasonable care. The rule

enunciated in the Kentucky case, supra, has been cited with approval in other

jurisdictions. See Picard v. Waggoner, 204 Miss. 366, 37 So.2d 567; Early v. Lowe, 119

W. Va. 690, 195 S.E. 852; Keeran v. Spurgeon Mercantile Co., 194 Iowa 1240, 191 N.W.


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99, 27 A.L.R. 579; 33 A.L.R. 181; Law v. Morris, 102 N.J.L. 650, 133 A. 427, 46 A.L.R.

1111; J.C. Penny Co. v. Robison, 128 Ohio St. 626, 193 N.E. 401, 100 A.L.R. 710.

It is contend that the amended complaint on its face shows that the plaintiff-appellant

was guilty of contributory negligence and is precluded from recovery as a matter of law.Likewise, it is argued that the law requires that in order to charge actionable negligence

the complaint must allege and the evidence must show that the defendant-appellee

knew or should have known of the insufficient light and obstruction in the hallway of the

hotel and that the condition complained of must have existed for a reasonable period of

time in order to state a cause of action. The answer to the contention is, first, that

Section 511.13, F.S.A., makes it the statutory duty of the hotel to "properly light" the

hallways of the hotel "with a strict regard to health, comfort and safety of the guests";

second, in personal injury suits contributory negligence is generally a question for the

jury. It is an affirmative defense and should be specially pleaded. It is a question of fact

to be submitted to the jury under appropriate instructions. Hart v. Held, 149 Fla. 33, 5

So.2d 878; Dunn Bus Service v. McKinley, 130 Fla. 778, 178 So. 865; Ferlita & Sons v.

Beck, 143 Fla. 509, 197 So. 340.

It is our conclusion that the amended complaint states a cause of action and accordingly

the judgment below is reversed with directions to enter an order fixing the time for the

defendant-appellee to answer the complaint.

ADAMS, C.J., and HOBSON and ROBERTS, JJ., concur.


Manila

'IRS DIVISION

G.R. No. L-6179 "a)uary 31, 197=

CAN??A /RATA, TOMAS /RATA, MANOLTO /RATA, E?ERLN?A /RATA, NAPOLEON/RATA, ARACEL8 /RATA, ENA?A /RATA, LUMN?A /RATA, PACTA /RATA, a)#E/ANGELNA /RATA, petitioners,vs./CTORO OC!OA, MAMO +ORLLA a)# T!E COURT OF FRST NSTANCE OF CA/TE, 7%"U?CAL ?STRCT, +RANC! /, (%a%'o)e# a% +ACOOR, CA/TE, respondents.

4emulla Estrella B -ssociates for petitioners


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E?e6uil C. Masangkay for respondents.

FERNAN?E, J.:

his is an appeal b certiorari, fro" the order of the Court of 'irst Instance of Cavite, &ranch V, inCivil Case No. &/2


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civil action, not for civil liabilit arisin$ fro" cri"inal ne$li$ence, but for da"a$es dueto a 1uasi/delict or 9culpa a1uiliana9. &ut said article forestalls a double recover.)Report of the Code Co""ission, p. 247.-

*lthou$h, a$ain, this *rticle 72?? does see" to literall refer to onl acts ofne$li$ence, the sa"e ar$u"ent of ;ustice &ocobo about construction that upholds

9the spirit that $iven life9 rather than that !hich is literal that #illeth the intent of thela!"a#er should be observed in applin$ the sa"e. *nd considerin$ that thepreli"inar chapter on hu"an relations of the ne! Civil Code definitel establishesthe separabilit and independence of liabilit in a civil action for acts cri"inal incharacter )under *rticles 73 to Makasiar Muoz !alma and Guerrero JJ. concur.


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Manila

SECOND DIVISION

G.R. No. L-66


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plaintiffs in behalf of the "ana$e"ent for the inconvenience caused to the", "eanin$ that the"ana$e"ent !as sorr for !hat happened to Mrs. Seta )


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)4- Ille$al searchF

)?- 6ibel, slander or an other for" of defa"ationF

)8- Malicious prosecutionF

)3- *cts "entioned in article


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>nder Ohio la!, da"a$es for e"otional distress consistin$ of e"barrass"ent and "ental sufferin$and dire threats, are not recoverable unlessintentionally caused> )Par"elee vs. E.*. *c#er"an 757'ed. 7nd ?72-.

In Chicago 4.;. B !. 4y Co. *s. Caple , 2?3 S.0. 7nd 252, it !as held that !here the act is "anton or"illfulthere "a be a recover for hu"iliation and "ental sufferin$ !ithout an phsical in@ur. It !as

further held that in ne$li$ence cases, !here there is no !illful or !anton !ron$, there can be norecover for "ental sufferin$ unless there is also phsical in@ur.

0e hold that the >e"barrass"ent> to !hich Mrs. Sea !as eBposed b the incident is not the "entalan$uish conte"plated in article 772? for !hich "oral da"a$es can be recovered.

Parentheticall, the case of !eople *s. !laza, C* 57 O( 44=3, 4427, a case decided b ;usticeSanche, "a be cited. In that case, (enoveva de Soriano !as a passen$er in a riverboat !hich!as bu"ped b another boat "anned b &erch"an Plaa and caused the first boat to capsie andsin# but did not dro!n (enoveva. She did not #no! ho! to s!i" Aer life !as endan$ered. Shesuffered fri$ht and "ental an$uish durin$ those "o"ents !hen her fate !as uncertain. Aer clai" forP5== as "oral da"a$es !as not allo!ed.

In this case, it !ould not be @ust and proper to include "oral da"a$es in the corporation9s vicariousliabilit as e"ploer. he a!ard of P5,=== as eBe"plar or corrective da"a$es cannot also besustained because there !as no $ross ne$li$ence in this case.

0AERE'ORE, the decision of the *ppellate Court is "odified. he petitioner is ordered to pa6elisa Sea the su" of P5,=== to cover her actual da"a$es, liti$ation eBpenses and attorne9s fees.he a!ard of "oral and eBe"plar da"a$es is eli"inated. No costs.

SO ORDERED.

Makasiar =Chairman> Escolin and Cue*as JJ. concur.

Concepcion Jr. J. took no part.

Guerrero J. is on lea*e.

Se:ara%e O:')'o)(

A+A? SANTOS, J., concurrin$

he Sea9s clai" for eBcessive da"a$es could have been a"icabl settled b the trial @ud$e. herecord does not sho! !hether or not a pre/trial !as conducted. &ut it "ust be presu"ed that officialdut !as perfor"ed, that a pre/trial !as held. 0h then !as not a case li#e this abortedH Not onldid the case $o to trial but the court a!arded un!arranted da"a$es and the Inter"ediate *ppellateCourt !hich should have #no!n better co"pounded the error. ;ud$es and @ustices of inferior courtsare en@oined to revie! the la! on da"a$es so that decisions li#e those rendered b the trial andappellate courts shall not be repeated. 0ith this observation, I concur in the learned ponencia of Mr.;ustice Ra"on C. *1uino.


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Se:ara%e O:')'o)(

A+A? SANTOS, J., concurrin$

he Sea9s clai" for eBcessive da"a$es could have been a"icabl settled b the trial @ud$e. herecord does not sho! !hether or not a pre/trial !as conducted. &ut it "ust be presu"ed that officialdut !as perfor"ed, that a pre/trial !as held. 0h then !as not a case li#e this abortedH Not onldid the case $o to trial but the court a!arded un!arranted da"a$es and the Inter"ediate *ppellateCourt !hich should have #no!n better co"pounded the error. ;ud$es and @ustices of inferior courtsare en@oined to revie! the la! on da"a$es so that decisions li#e those rendered b the trial andappellate courts shall not be repeated. 0ith this observation, I concur in the learned ponencia of Mr.;ustice Ra"on C. *1uino.


Manila

EN &*NC

G.R. No. L-


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0hen an e"ploee shall have )a- Co"pleted Retire"ent *ccount>,

MER*6CO advised Aernande on Ma 8, 2353 that he !ill be retired on Dece"ber Retire"ent *ccount>. *t his o!n re1uest, ho!ever, Aernande !as retired on Nove"ber

75, 2353 and !as paid his retire"ent benefits. Ae !as then 43 ears old.

On March 2=, 234=, Aernande filed !ith the Depart"ent of 6abor a Notice of Sic#ness and Clai"for Co"pensation. Subse1uentl, this !as superseded b an *"ended Clai" filed on March ?,2342. he clai"ant alle$ed, in brief, that due to illness suffered in the course of his e"plo"ent he!as forced to retire due to disabilit to !or# but respondent MER*6CO did not pa hi"co"pensation as provided b la!.

*fter MER*6CO filed its ans!er controvertin$ the clai", the Depart"ent of 6abor, Re$ional OfficeNo. :, heard the case. On 'ebruar 2, 2347, the hearin$ officer decided that clai"ant !as entitled todisabilit co"pensation, thus

0AERE'ORE the Manila Electric Co"pan is hereb ad@ud$ed to pa Mr. CiriacoAernande, throu$h this Office, the su" of 'OR AOS*ND PESOS )P:,===.==- aste"porar total disabilit co"pensation pursuant to the instant clai".

Respondent is further ordered to pa to this Office the su" of 'OR ONE PESOS )P:2.==-as fees pursuant to Sec. 55 of *ct No. "ini"al P&, bilateral, fibroid.> here is, therefore, no denin$ the factthat petitioner9s aforesaid sic#ness contracted in the course of his e"plo"ent, and not "erel hisa$e, !as responsible for his unti"el retire"ent %


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arisen in the course of the e"plo"ent, it is presu"ed b la! , in the absence of substantialevidence to the contrar, that it arose out of it. Petitioner9s tuberculosis ad"ittedl arose in thecourse of his e"plo"ent. he fact alone that 7< ears had elapsed before the disease appeared isnot substantial evidence that it did not arise out of the e"plo"ent

he Co""ission does not refer to an evidence sho!in$ that the disease of the clai"ant

could not have been due to the conditions in !hich he had been !or#in$ for so "an ears.It "erel speculates that it could not have so ori$inated, because after 7< ears thetuberculosis !as found to be "ini"al. 0e find this speculation insufficient to rebut thestatutor presu"ption, since it does not eBclude the probabilit that the condition of !or#reduced the resistance of the laborer9s bod to the point that he !as unable to !ithstand theinfection. *lso, the Co""ission9s reasonin$ is fault, in that the nu"ber of ears that elapsedbefore the disease beca"e "anifest "erel tends to prove that the deterioration caused b!or#in$ conditions !as slo!, but not that the !or#in$ conditions did not cause suchdeterioration in the health of the laborer. )*$ustin vs. 0CC, supra.-

Since petitioner is entitled to co"pensation pa"ents due to his pul"onar tuberculosis, !e find itunnecessar and acade"ic to resolve !hether his in$uinal hernia and carcino"a of the prostate

li#e!ise entitled hi" to the sa"e.

Petitioner9s co"pensation, ho!ever, should be for his inabilit to !or# durin$ the re"ainin$


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period fro" Nove"ber 75, 2353 to Dece"ber


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for "aterial and "oral da"a$es suffered b the" throu$h the fault and ne$li$ence of the saiddefendant entit9s e"ploees, the su" of P5=,=== plus le$al interest thereon fro" the date of thefilin$ of the co"plaint, !ith costs.

he defendant the Manila Railroad Co"pan, ans!erin$ the co"plaint, denies each and everalle$ation thereof and, b !a of special defense, alle$es that the plaintiff *le#o E. 6ilius, !ith the

cooperation of his !ife and coplaintiff, ne$li$entl and rec#lessl drove his car, and pras that it beabsolved fro" the co"plaint.

he follo!in$ facts have been proven at the trial, so"e !ithout 1uestion and the others b apreponderance of evidence, to !it

he plaintiff *le#o E. 6ilius has, for "an ears, been a !ell/#no!n and reputed @ournalist, authorand photo$rapher. *t the ti"e of the collision in 1uestion, he !as a staff correspondent in the 'arEast of the "a$aines The -merican eeklyof Ne! or# and The Sphereof 6ondon.

So"e of his !or#s have been translated into various lan$ua$es. Ae had others in preparation !henthe accident occurred. *ccordin$ to hi", his !ritin$s netted hi" a "onthl inco"e of P2,5==. Ae

utilied the lin$uistic abilit of his !ife Son@a Maria 6ilius, !ho translated his articles and boo#s intoEn$lish, (er"an, and S!edish. 'urther"ore, she acted as his secretar.

*t about ? o9cloc# on the "ornin$ of Ma 2=, 23


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he plaintiff Son@a Maria 6ilius suffered fro" fractures of the pelvic bone, the tibia and fibula of theri$ht le$, belo! the #nee, and received a lar$e lacerated !ound on the forehead. She under!ent t!osur$ical operations on the left le$ for the purpose of @oinin$ the fractured bones but said operationsnot!ithstandin$, the le$ in 1uestion still continues defor"ed. In the opinion of Dr. 0aterous, thedefor"it is per"anent in character and as a result the plaintiff !ill have so"e difficult in !al#in$.he lacerated !ound, !hich she received on her forehead, has left a disfi$urin$ scar.

he child &rita Marianne 6ilius received t!o lacerated !ounds, one on the forehead and the other onthe left side of the face, in addition to fractures of both le$s, above and belo! the #nees. Aercondition !as serious and, for several das, she !as hoverin$ bet!een life and death. Due to ati"el and successful sur$ical operation, she survived her !ounds. he lacerations received b thechild have left deep scars !hich !ill per"anentl disfi$ure her face, and because of the fractures ofboth le$s, althou$h no! co"pletel cured, she !ill be forced to !al# !ith so"e difficult andcontinuous eBtre"e care in order to #eep her balance.

Prior to the accident, there had been no notice nor si$n of the eBistence of the crossin$, nor !asthere anbod to !arn the public of approachin$ trains. he fla$"an or s!itch"an arrived after thecollision, co"in$ fro" the station !ith a red fla$ in one hand and a $reen one in the other, both of

!hich !ere !ound on their respective stic#s. he said fla$"an and s!itch"an had "an ti"esabsented hi"self fro" his post at the crossin$ upon the arrival of a train. he train left &a station alittle late and therefore traveled at $reat speed.

pon eBa"ination of the oral as !ell as of the docu"entar evidence !hich the parties presented atthe trial in support of their respective contentions, and after ta#in$ into consideration all thecircu"stances of the case, this court is of the opinion that the accident !as due to ne$li$ence on thepart of the defendant/appellant co"pan, for not havin$ had on that occasion an se"aphore at thecrossin$ at Daap, to serve as a !arnin$ to passers/b of its eBistence in order that the "i$ht ta#ethe necessar precautions before crossin$ the railroadF and, on the part of its e"ploees % thefla$"an and s!itch"an, for not havin$ re"ained at his post at the crossin$ in 1uestion to !arnpassers/b of the approachin$ trainF the station"aster, for failure to send the said fla$"an ands!itch"an to his post on ti"eF and the en$ineer, for not havin$ ta#en the necessar precautions to

avoid an accident, in vie! of the absence of said fla$"an and s!itch"an, b slac#enin$ his speedand continuousl rin$in$ the bell and blo!in$ the !histle before arrivin$ at the crossin$. *lthou$h itis probable that the defendant/appellant entit e"ploed the dili$ence of a $ood father of a fa"il inselectin$ its aforesaid e"ploees, ho!ever, it did not e"plo such dili$ence in supervisin$ their !or#and the dischar$e of their duties because, other!ise, it !ould have had a se"aphore or si$n at thecrossin$ and, on previous occasions as !ell as on the ni$ht in 1uestion, the fla$"an and s!itch"an!ould have al!as been at his post at the crossin$ upon the arrival of a train. he dili$ence of a$ood father of a fa"il, !hich the la! re1uires in order to avoid da"a$e, is not confined to thecareful and prudent selection of subordinates or e"ploees but includes inspection of their !or# andsupervision of the dischar$e of their duties.

Ao!ever, in order that a victi" of an accident "a recover inde"nit for da"a$es fro" the person

liable therefor, it is not enou$h that the latter has been $uilt of ne$li$ence, but it is also necessarthat the said victi" has not, throu$h his o!n ne$li$ence, contributed to the accident, inas"uch asnobod is a $uarantor of his nei$hbor9s personal safet and propert, but everbod should loo# afterthe", e"ploin$ the care and dili$ence that a $ood father of a fa"il should appl to his o!nperson, to the "e"bers of his fa"il and to his propert, in order to avoid an da"a$e. It appearsthat the herein plaintiff/appellant *le#o E. 6ilius too# all precautions !hich his s#ill and the presenceof his !ife and child su$$ested to hi" in order that his pleasure trip "i$ht be en@oable and have ahapp endin$, drivin$ his car at a speed !hich prudence de"anded accordin$ to the circu"stancesand conditions of the road, slac#enin$ his speed in the face of an obstacle and blo!in$ his horn


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upon seein$ persons on the road, in order to !arn the" of his approach and re1uest the" to $et outof the !a, as he did !hen he ca"e upon the truc# par#ed on the left hand side of the road seven orei$ht "eters fro" the place !here the accident occurred, and upon the persons !ho appeared tohave ali$hted fro" the said truc#. If he failed to stop, loo# and listen before $oin$ over the crossin$,in spite of the fact that he !as drivin$ at 27 "iles per hour after havin$ been free fro" obstacles, it!as because, his attention havin$ been occupied in atte"ptin$ to $o ahead, he did not see the

crossin$ in 1uestion, nor anthin$, nor anbod indicatin$ its eBistence, as he #ne! nothin$ about itbeforehand. he first and onl !arnin$, !hich he received of the i"pendin$ dan$er, !as t!o shortblo!s fro" the !histle of the loco"otive i""ediatel precedin$ the collision and !hen the accidenthad alread beco"e inevitable.

In vie! of the fore$oin$ considerations, this court is of the opinion that the defendant the ManilaRailroad Co"pan alone is liable for the accident b reason of its o!n ne$li$ence and that of itse"ploees, for not havin$ e"ploed the dili$ence of a $ood father of a fa"il in the supervision ofthe said e"ploees in the dischar$e of their duties.

he neBt 1uestion to be decided refers to the su"s of "one fiBed b the court a 6uoas inde"nitiesfor da"a$es !hich the defendant co"pan should pa to the plaintiffs/appellants.

0ith respect to the plaintiff/appellant *le#o E. 6ilius, althou$h this court believes his clai" of a netinco"e of P2,5== a "onth to be so"e!hat eBa$$erated, ho!ever, the su" of P5,===, ad@udicatedto hi" b the trial court as inde"nit for da"a$es, is reasonable.

*s to the su" of P2=,4, and ta#in$ into further consideration her socialstandin$, neither is the su" of P2=,===, ad@udicated to her b the said trial court b !a of inde"nitfor patri"onial and "oral da"a$es, eBcessive. In the case of Gutierrez*s. Gutierrez)54 Phil., 2??-,the ri$ht le$ of the plaintiff Narciso (utierre !as fractured as a result of a collision bet!een theautobus in !hich he !as ridin$ and the defendant9s car, !hich fractured re1uired "edical attendancefor a considerable period of ti"e. On the da of the trial the fracture had not et co"pletel healedbut it "i$ht cause hi" per"anent la"eness. he trial court sentenced the defendants to inde"nifhi" in the su" of P2=,=== !hich this court reduced to P5,===, in spite of the fact that the saidplaintiff therein !as neither oun$ nor $ood/loo#in$, nor had he suffered an facial defor"it, nor didhe have the social standin$ that the herein plaintiff/appellant Son@a Maria 6ilius en@os. )**phi).neK

*s to the inde"nit of P5,=== in favor of the child &rita Marianne 6ilius, dau$hter of *le#o E. 6iliusand Son@a Maria 6ilius, neither is the sa"e eBcessive, ta#in$ into consideration the fact that thelacerations received b her have left deep scars that per"anentl disfi$ure her face and that thefractures of both her le$s per"anentl render it difficult for her to !al# freel, continuous eBtre"ecare bein$ necessar in order to #eep her balance in addition to the fact that all of this unfavorabland to a $reat eBtent affect her "atri"onial future.

0ith respect to the plaintiffs9 appeal, the first 1uestion to be decided is that raised b the plaintiff*le#o E. 6ilius relative to the insufficienc of the su" of P5,=== !hich the trial court ad@udicated to


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hi" b !a of inde"nit for da"a$es consistin$ in the loss of his inco"e as @ournalist and author asa result of his illness. his 1uestion has i"pliedl been decided in the ne$ative !hen the defendant/appellant entit9s petition for the reduction of said inde"nit !as denied, declarin$ it to bereasonable.

*s to the a"ount of P2=,=== clai"ed b the plaintiff *le#o E. 6ilius as da"a$es for the loss of his

!ife9s services in his business as @ournalist and author, !hich services consisted in $oin$ over his!ritin$s, translatin$ the" into En$lish, (er"an and S!edish, and actin$ as his secretar, in additionto the fact that such services for"ed part of the !or# !hereb he realied a net "onthl inco"e ofP2,5==, there is no sufficient evidence of the true value of said services nor to the effect that heneeded the" durin$ her illness and had to e"plo a translator to act in her stead.

he plaintiff *le#o E. 6ilius also see#s to recover the su" of P7,5== for the loss of !hat is called*n$lo/SaBon co""on la! >consortiu"> of his !ife, that is, >her services, societ and con@u$alco"panionship>, as a result of personal in@uries !hich she had received fro" the accident no! underconsideration.

In the case of Goitia *s. Campos 4ueda )


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services to prove that the person obli$ed to render the" had done so before he !as in@ured and thathe !ould be !illin$ to continue renderin$ the" had he not been prevented fro" so doin$.

In vie! of the fore$oin$ considerations this court is of the opinion and so holds )2- hat a railroadco"pan !hich has not installed a se"aphore at a crossin$ an does not see to it that its fla$"anand s!itch"an faithfull co"plies !ith his dut of re"ainin$ at the crossin$ !hen a train arrives, is

$uilt of ne$li$ence and is civill liable for da"a$es suffered b a "otorist and his fa"il !ho crossits line !ithout ne$li$ence on their partF )7- that an inde"nit of P2=,=== for a per"anent defor"iton the face and on the left le$, suffered b a oun$ and beautiful societ !o"an, is not eBcessiveF)

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