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G.R. No. L-2075 November 29, 1949

MARGARITA AFIALDA,plaintiff-appellant,vs.BASILIO HISOL !"# FRAN$IS$O HISOL,defendants-appellees.

Nicolas P. Nonato for appellant.

Gellada, Mirasol and Ravena for appellees.

R%S, J.:

This is an action for damages arising from injur caused ! an animal. Thecomplaint alleges that the no" deceased, #oreto $fialda, "as emploed !the defendant spouses as careta%er of their cara!aos at a fi&edcompensation' that "hile tending the animals he "as, on March (1, 1)*+,gored ! one of them and later died as a conseuence of his injuries' thatthe mishap "as due neither to his o"n fault nor toforce majeure' and thatplaintiff is his elder sister and heir depending upon him for support.

efore filing their ans"er, defendants moved for the dismissal of thecomplaint for lac% of a cause of action, and the motion having !eengranted ! the lo"er court, plaintiff has ta%en this appeal.

laintiff see%s to hold defendants lia!le under article 1)/0 of the ivilode, "hich reads2

The possessor of an animal, or the one "ho uses the same, islia!le for an damages it ma cause, even if such animal shouldescape from him or stra a"a.

This lia!ilit shall cease onl in case, the damage should arisefromforce majeure or from the fault of the person "ho ma have

suffered it.

The uestion presented is "hether the o"ner of the animal is lia!le "hendamage is caused to its careta%er.

The lo"er court too% the vie" that under the a!ove-uoted provision of theivil ode, the o"ner of an animal is ans"era!le onl for damages causedto a stranger, and that for damage caused to the careta%er of the animalthe o"ner "ould !e lia!le onl if he had !een negligent or at fault underarticle 1)/( of the same code. laiming that the lo"er court "as in error,counsel for plaintiff contends that the article 1)/0 does not distinguish!et"een damage caused to the careta%er and ma%es the o"ner lia!le"hether or not he has !een negligent or at fault. 3or authorit counselcites the follo"ing opinion "hich Manresa uotes from a decision of the

Spanish Supreme ourt2

4l articulo 1)/0 del codigo ivil no consienta otra interpretacionue la ue, clara evidentemente, se deriva de sus terminosliterales, !astando, segun el mismo, ue un animal causeperjuicio para ue nasca la responsi!ilidad del dueno, aun noimputandose a este ninguna clase de culpa o negligencia,ha!ida,sin duda, cuenta por el lgislador de ue tal concepto dedueno es suficiente para ue arrastre las consecuenciasfavora!les o adversas de esta clase de propiedad, salvo lae&ception en el mismo contenida. 51( Manresa, ommentarieson the Spanish ivilode, 0+6.7

This opinion, ho"ever, appears to have !een rendered in a case "here an

animal caused injur to a stranger or third person. It is therefore noauthorit for a case li%e the present "here the person injured "as thecareta%er of the animal. The distinction is important. 3or the statute namesthepossessor or userof the animal as the person lia!le for 8an damagesit ma cause,8 and this for the o!vious reason that the possessor or userhas the custod and control of the animal and is therefore the one in aposition to prevent it from causing damage.

In the present case, the animal "as in custod and under the control of thecareta%er, "ho "as paid for his "or% as such. O!viousl, it "as thecareta%er9s !usiness to tr to prevent the animal from causing injur ordamage to anone, including himself. $nd !eing injured ! the animalunder those circumstances, "as one of the ris%s of the occupation "hichhe had voluntaril assumed and for "hich he must ta%e the conseuences.

In a decision of the Spanish Supreme ourt, cited ! Manresa in hisommentaries 5:ol. 1(, p. 0+;7, the death of an emploee "ho "as !itten

! a feline "hich his master had as%ed him to ta%e to his esta!lishment"as ! said tri!unal declared to !e 8a verita!le accident of la!or8 "hichshould come under the la!or la"s rather than under article 1)/0 of theivil ode. The present action, ho"ever, is not !rought under the

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4#O to cut off the electriccurrent. Then the part "aded to the house on Cuerrero Street. Theflood"ater "as receding and the lights inside the house "ere out

indicating that the electric current had !een cut off in Cuerrero.a!es instructed his !os to fish for the !od of the deceased. The!od "as recovered a!out t"o meters from an electric post.

In another place, at a!out *2// $.M. on that fateful date, Aune (),1)B+, 4ngineer $ntonio Auan, o"er lant 4ngineer of the >ationalo"er orporation at the #aoag Diesel-4lectric lant, noticedcertain fluctuations in their electric meter "hich indicated sucha!normalities as grounded or short-circuited lines. et"een B2//and B26/ $.M., he set out of the #aoag > ompound on aninspection. On the "a, he sa" grounded and disconnected lines.4lectric lines "ere hanging from the posts to the ground. Since hecould not see an I>4#O lineman, he decided to go to the I>4#OOffice at the #ife Theatre on Ri@al Street ! "a of Cuerrero. $s heturned right at the intersection of Cuerrero and Ri@al, he sa" an

electric "ire a!out 6/ meters long strung across the street 8and theother end "as seeming to pla "ith the current of the "ater.8 5p. B*,TS>, Oct. (*, 1)+(7 3inding the Office of the I>4#O still closed,and seeing no lineman therein, he returned to the > ompound.

$t a!out ;21/ $.M., 4ngr. Auan "ent out of the compound again onanother inspection trip. ?aving learned of the death of Isa!el #aoAuan, he passed ! the house of the deceased at the corner ofCuerrero and M.?. del ilar streets to "hich the !od had !eenta%en. Esing the resuscitator "hich "as a standard euipment in hisjeep and emploing the s%ill he acuired from an in service trainingon resuscitation, he tried to revive the deceased. ?is efforts provedfutile. Rigor mortis"as setting in. On the left palm of the deceased,4ngr. Auan noticed a hollo" "ound. roceeding to the I>4#OOffice, he met t"o linemen on the "a. ?e told them a!out the

grounded lines of the I>4#O In the afternoon of the same da, he"ent on a third inspection trip preparator to the restoration ofpo"er. The dangling "ire he sa" on Cuerrero earl in the morningof Aune (), 1)B+ "as no longer there.

Man people came to the house at the corner of Cuerrero and M.?.del ilar after learning that the deceased had !een electrocuted.$mong the smpathi@ers "as Dr. Aovencio astro, Municipal ?ealthOfficer of Sarrat, Ilocos >orte. Epon the reuest of the relatives ofthe deceased, Dr. astro e&amined the !od at a!out ;2// $.M. onAune (), 1)B+. The s%in "as graish or, in medical parlance,canotic, "hich indicated death ! electrocution. On the left palm,the doctor found an 8electricall charged "ound8 54&h. -12 p. 1/1,TS>, >ov. (;, 1)+(7 or a first degree !urn. $!out the !ase of thethum! on the left hand "as a !urned "ound. 54&h. -(, pp. 1/(-1/6, !id

.7 The certificate of death prepared ! Dr. astro stated thecause of9 death as ,9circulator shoc% electrocution8 54&h. I' p.1/6, !id.7.

In defense and e&culpation, defendant presented the testimonies ofits officers and emploees, namel, onrado $sis, electric engineer'#oreto $!ijero, collector-inspector' 3a!ico $!ijero, lineman' and Aulio$gcaoili, president-manager of I>4#O Through the testimonies ofthese "itnesses, defendant sought to prove that on and even !eforeAune (), 1)B+ the electric service sstem of the I>4#O in the"hole franchise area, including $rea >o. ) "hich covered theresidence of $ntonio a!es at >o. 1; Cuerrero Street, did not sufferfrom an defect that might constitute a ha@ard to life and propert.The service lines, devices and other I>4#O euipment in $rea >o.

) had !een ne"l-installed prior to the date in uestion. $s a pu!licservice operator and in line "ith its !usiness of suppling electriccurrent to the pu!lic, defendant had installed safet devices toprevent and avoid injuries to persons and damage to propert incase of natural calamities such as floods, tphoons, fire and others.Defendant had 1( linesmen charged "ith the dut of ma%ing around-the-cloc% chec%-up of the areas respectivel assigned tothem.

Defendant asserts that although a strong tphoon struc% theprovince of Ilocos >orte on Aune (), 1)B+, putting to streets of#aoag it under "ater, onl a fe" %no"n places in #aoag "erereported to have suffered damaged electric lines, namel, at thesouthern approach of the Marcos ridge "hich "as "ashed a"aand "here the I>4#O lines and posts collapsed' in the eastern

part near the residence of the late Covernor Simeon Mandac' in thefar north near the defendant9s po"er plant at the corner of Segundo

and astro Streets, #aoag it and at the far north"est side, nearthe premises of the Ilocos >orte >ational ?igh School. 3a!ico$!ijero, testified that in the earl morning !efore B o9cloc% on Aune(), 1)B+ he passed ! the intersection of Ri@al and CuerreroStreets to s"itch off the street lights in $rea >o. ). ?e did not seean cut or !ro%en "ires in or near the vicinit. orte on Aune (), 1)B+ and theflood and deluge it !rought in its "a%e "ere not fortuitous eventsand did not e&onerate petitioner-compan from lia!ilit for the deathof Isa!el #ao Auan.

6. The respondent ourt of $ppeals gravel a!used its discretionand erred in not appling the legal principle of 8assumption of ris%8 inthe present case to !ar private respondents from collectingdamages from petitioner compan.

*. That the respondent ourt of $ppeals gravel erred and a!usedits discretion in completel reversing the findings of fact of the trialcourt.

0. The findings of fact of the respondent ourt of $ppeals arereversi!le under the recogni@ed e&ceptions.

B. The trial court did not err in a"arding moral damages andattorne9s fees to defendant corporation, no" petitioner compan.

+. $ssuming arguendothat petitioner compan ma !e held lia!lefrom the death of the late Isa!el #ao Auan, the damages granted !respondent ourt of $ppeals are improper and e&hor!itant.5etitioners Memorandum, p. 166, Rollo7

asicall, three main issues are apparent2 517 "hether or not the deceaseddied of electrocution' 5(7 "hether or not petitioner ma !e held lia!le forthe deceased9s death' and 567 "hether or not the respondent $9s

su!stitution of the trial court9s factual findings for its o"n "as proper.

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In considering the first issue, it is Our vie" that the same !e resolved inthe affirmative. a preponderance of evidence, private respondents "erea!le to sho" that the deceased died of electrocution, a conclusion "hichcan !e primaril derived from the photographed !urnt "ounds 54&hi!its88, 8-18, 8-(87 on the left palm of the former. Such "ounds undou!tedlpoint to the fact that the deceased had clutched a live "ire of the petitioner.This "as corro!orated ! the testimon of Dr. Aovencio astro "ho

actuall e&amined the !od of the deceased a fe" hours after the deathand descri!ed the said !urnt "ounds as a 8first degree !urn8 5p. 1**, TS>,Decem!er 11, 1)+(7 and that the "ere 8electricall charged8 5p. 1/(,TS>, >ovem!er (;, 1)+(7. 3urthermore, "itnesses #inda $lon@o 4stavilloand $ida ulong added that after the deceased screamed 8$8 and san%into the "ater, the tried to render some help !ut "ere overcome "ith fear! the sight of an electric "ire dangling from an electric post, moving in the"ater in a sna%e-li%e fashion 5supra7. The foregoing therefore justifies therespondent $ in concluding that 85t7he nature of the "ounds as descri!ed! the "itnesses "ho sa" them can lead to no other conclusion than thatthe "ere 8!urns,8 and there "as nothing else in the street "here thevictim "as "ading thru "hich could cause a !urn e&cept the dangling live"ire of defendant compan8 5$ Decision, p. ((, Rollo7.

ut in order to escape lia!ilit, petitioner ventures into the theor that the

deceased "as electrocuted, if such "as reall the case "hen she tried toopen her steel gate, "hich "as electricall charged ! an electric "ire sheherself caused to install to serve as a !urglar deterrent. etitionersuggests that the s"itch to said !urglar alarm "as left on. ut this is merespeculation, not !ac%ed up "ith evidence. $s reuired ! the Rules, 8eachpart must prove his o"n affirmative allegations.8 5Rule 161, Sec. 17.>evertheless, the $ significantl noted that 8during the trial, this theor"as a!andoned8 ! the petitioner 5$ Decision, p. (6, Rollo7.

3urthermore the $ properl applied the principle of res gestae. The $said2

#inda $lon@o 4stavillo, a tic%et seller, and $ida ulong, a salesgirl,"ere "ith the deceased during that fateful morning of Aune (),

1)B+. This ourt has not !een offered an sufficient reason todiscredit the testimonies of these t"o oung ladies. The "ere onein the affirmation that the deceased, "hile "ading in the "aist-deepflood on Cuerrero Street five or si& meters ahead of them,suddenl screamed 8$8 and uic%l san% into the "ater. er, (; SR$ 1101' eople vs. al!as, 1(( SR$ )0)7. ational o"er orporationaffirmed that "hen he first set out on an inspection trip !et"een B2//and B26/ $.M. on Aune (), 1)B+, he sa" grounded and disconnectedelectric lines of the defendant !ut $e sa" noN%&C' lineman. TheI>4#O Office at the #ife theatre on Ri@al Street "as still closed. 5pp.B6-B*, TS>, Oct. (*, 1)+(7 4ven the "itnesses of defendantcontradict the finding of the lo"er court. onrado $sis, defendant9selectrical engineer, testified that he conducted a general inspection ofthe franchise area of the I>4#O onl on (une )*, +-, the dafollo"ing the tphoon. The reason he gave for the dela "as that alltheir vehicles "ere su!merged. 5p. 66+, TS>, Aul (/, 1)+67$ccording to $sis, he arrived at his office at ;2// $.M. on(une )* andafter !riefing his men on "hat to do the started out. 5p. 66;, l!id

7One or t"o das after the tphoon, the I>4#O people heard 8rumorsthat someone "as electrocuted8 so he sent one of his men to theplace !ut his man reported !ac% that there "as no damaged "ire. 5p.6;0, d

.7 #oreto $!ijero, chief lineman of defendant, corro!orated

4ngr. Auan. ?e testified that at a!out ;2// $.M. on Aune (), 1)B+4ngr. Auan came to the I>4#O plant and as%ed the I>4#O people

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to inspect their lines. ?e "ent "ith 4ngr. Auan and their inspectionlasted from ;2// $.M. to 1(2// noon. 5pp. *B/, *B0, TS>, Aan. (;,1)+07 3a!ico $!ijero lineman of defendant, testified that at a!out B2//on Aune (), 1)B+ the tphoon ceased. $t that time, he "as at themain !uilding of the Divine , p. 0, (B Sept. 1)+(7 and $ida ulong 5see TS>, p. *6, (B Sept.1)+(7, the deceased, accompanied ! the former t"o, "ere on their "a tothe latter9s grocer store 8to see to it that the goods "ere not flooded.8 $s

such, shall egligence51+*507, p. 6/17, or "hen he see%s to rescue hisendangered propert 5?arper and Aames, 8The #a" of Torts.8 #ittle, ro"nand o., 1)0B, v. (, p. 11B+7. learl, an emergenc "as at hand as thedeceased9s propert, a source of her livelihood, "as faced "ith animpending loss. 3urthermore, the deceased, at the time the fatal incidentoccurred, "as at a place "here she had a right to !e "ithout regard topetitioner9s consent as she "as on her "a to protect her merchandise.?ence, private respondents, as heirs, ma not !e !arred from recoveringdamages as a result of the death caused ! petitioner9s negligence 5 i!id

.,p. 11B0, 11BB7.

ut petitioner assails the $ for having a!used its discretion in completelreversing the trial court9s findings of fact, pointing to the testimonies ofthree of its emploees its electrical engineer, collector-inspector, lineman,and president-manager to the effect that it had e&ercised the degree ofdiligence reuired of it in %eeping its electric lines free from defects thatma imperil life and lim!. #i%e"ise, the said emploees of petitionercategoricall diso"ned the fatal "ires as the appear in t"o photographsta%en on the afternoon of Aune (), 1)B+ 54&hs. 8D8 and 8487, suggestingthat said "ires "ere just hoo%ed to the electric post 5petitioner9sMemorandum, p. 1+/, Rollo7. ?o"ever, as the $ properl held, 85t7hefinding of the lo"er court ... "as !ased on "hat the defendant9s emploees"ere supposed to do, not on "hat the actuall did or failed to do on t$edate in uestion, and not on the occasion of the emergenc#

situation!rought a!out ! the tphoon8 5$ Decision, p. (0, Rollo7. $nd asfound ! the $, "hich , March 16, 1)+07 $t the I>4#Oirregularities in the flo" of electric current "ere noted !ecause8amperes of the s"itch volts "ere moving8. $nd et, despite thesedanger signals, I>4#O had to "ait for 4ngr. Auan to reuest thatdefendant9s s"itch !e cut off !ut the harm "as done. $s%ed "hthe dela, #oreto $!ijero ans"ered that he 8"as not the machinetender of the electric plant to s"itch off the current.8 5pp. *B+-*B;, !id.7 ?o" ver characteristic of gross inefficiencH 5$Decision, p. (B, Rollo7

3rom the preceding,

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On the "a to o!lacion Si!ulan, >egros Occidental, the jeepne stoppedto let a passenger off. $s she "as seated at the rear of the vehicle, Sungagave "a to the outgoing passenger. Aust as she "as doing so, an Isu@utruc% driven ! Iglecerio :erena and o"ned ! 3rancisco Salva !umpedthe left rear portion of the jeepne. $s a result, Sunga "as injured. Shesustained a fracture of the 8distal third of the left ti!ia-fi!ula "ith severenecrosis of the underling s%in.8 losed reduction of the fracture, long legcircular casting, and case "edging "ere done under sedation. ?er

confinement in the hospital lasted from $ugust (6 to Septem!er +, 1);).?er attending phsician, Dr. Danilo :. Oligario, an orthopedic surgeon,certified she "ould remain on a cast for a period of three months and"ould have to am!ulate in crutches during said period.

On Octo!er ), 1);), Sunga filed a complaint for damages against alalas,alleging violation of the contract of carriage ! the former in failing toe&ercise the diligence reuired of him as a common carrier. alalas, on theother hand, filed a third-part complaint against 3rancisco Salva, theo"ner of the Isu@u truc%.

The lo"er court rendered judgment against Salva as third-part defendantand a!solved alalas of lia!ilit, holding that it "as the driver of the Isu@utruc% "ho "as responsi!le for the accident. It too% cogni@ance of anothercase 5ivil ase >o. 6*)/7, filed ! alalas against Salva and :erena, for

uasi-delict, in "hich ranch 6+ of the same court held Salva and hisdriver :erena jointl lia!le to alalas for the damage to his jeepne.

On appeal to the ourt of $ppeals, the ruling of the lo"er court "asreversed on the ground that Sunga9s cause of action "as !ased on acontract of carriage, not uasi-delict, and that the common carrier failed toe&ercise the diligence reuired under the ivil ode. The appellate courtdismissed the third-part complaint against Salva and adjudged alalaslia!le for damages to Sunga. The dispositive portion of its decision reads2

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!eing !umped "hile it "as improperl par%ed constitutes caso fortuito.$ caso fortuitois an event "hich could not !e foreseen, or "hich, thoughforeseen, "as inevita!le.6This reuires that the follo"ing reuirements !epresent2 5a7 the cause of the !reach is independent of the de!tor9s "ill' 5!7the event is unforeseea!le or unavoida!le' 5c7 the event is such as torender it impossi!le for the de!tor to fulfill his o!ligation in a normalmanner, and 5d7 the de!tor did not ta%e part in causing the injur to thecreditor.*etitioner should have foreseen the danger of par%ing his

jeepne "ith its !od protruding t"o meters into the high"a.

3inall, petitioner challenges the a"ard of moral damages alleging that it ise&cessive and "ithout !asis in la".

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$fter trial on the merits, the court a /uodismissed the complaint,*1givingmore credence to the testimon of Ms. #im that she "as discreet in as%ingMr. Rees to leave the part. The trial court li%e"ise ratiocinated that Mr.Rees assumed the ris% of !eing thro"n out of the part as he "asuninvited2

laintiff had no !usiness !eing at the part !ecause he "as not a guest of

Mr. Tsuruo%a, the !irthda cele!rant. ?e assumed the ris% of !eing as%edto leave for attending a part to "hich he "as not invited ! the host.Damages are pecuniar conseuences "hich the la" imposes for the!reach of some dut or the violation of some right. Thus, no recover can!e had against defendants >i%%o ?otel and Ru! #im !ecause he himself"as at fault 5Carciano v. ourt of $ppeals, (1( SR$ *6B7. ?e %ne" that it"as not the part of defendant :ioleta 3ilart even if she allo"ed him to joinher and too% responsi!ilit for his attendance at the part. ?is actionagainst defendants >i%%o ?otel and Ru! #im must therefore fail.*(

On appeal, the ourt of $ppeals reversed the ruling of the trial court as itfound more commanding of !elief the testimon of Mr. Rees that Ms. #imordered him to leave in a loud voice "ithin hearing distance of severalguests2

In putting appellant in a ver em!arrassing situation, telling him that heshould not finish his food and to leave the place "ithin the hearingdistance of other guests is an act "hich is contrar to morals, goodcustoms . . ., for "hich appellees should compensate the appellant for thedamage suffered ! the latter as a conseuence therefore 5$rt. (1, >e"ivil ode7. The lia!ilit arises from the acts "hich are in themselves legalor not prohi!ited, !ut contrar to morals or good customs. onversel,even in the e&ercise of a formal right, None cannot "ith impunitintentionall cause damage to another in a manner contrar to morals orgood customs.*6

The ourt of $ppeals li%e"ise ruled that the actuation of Ms. #im inapproaching several people to inuire into the presence of Mr. Reese&posed the latter to ridicule and "as uncalled for as she should have

approached Dr. 3ilart first and !oth of them should have tal%ed to Mr.Rees in private2

Said acts of appellee #im are uncalled for. e" ivil ode, "ere still under o!ligationto treat him fairl in order not to e&pose him to unnecessar ridicule andshame.

Thus, the threshold issue is "hether or not Ru! #im acted a!usivel inas%ing Ro!erto Rees, a.%.a. 8$ma isaa,8 to leave the part "here he"as not invited ! the cele!rant thereof there! !ecoming lia!le under$rticles 1) and (1 of the ivil ode. arentheticall, and if Ru! #im "ereso lia!le, "hether or not ?otel >i%%o, as her emploer, is solidaril lia!le"ith her.

$s the trial court and the appellate court reached divergent andirreconcila!le conclusions concerning the same facts and evidence of thecase, this ourt is left "ithout choice !ut to use its latent po"er to revie"such findings of facts. Indeed, the general rule is that "e are not a trier offacts as our jurisdiction is limited to revie"ing and revising errors ofla".01One of the e&ceptions to this general rule, ho"ever, o!tains hereinas the findings of the ourt of $ppeals are contrar to those of the trialcourt.0(The lo"er court ruled that Ms. #im did not a!use her right to as%Mr. Rees to leave the part as she tal%ed to him politel and discreetl.The appellate court, on the other hand, held that Ms. #im is lia!le fordamages as she needlessl em!arrassed Mr. Rees ! telling him not tofinish his food and to leave the place "ithin hearing distance of the otherguests. oth courts, ho"ever, "ere in agreement that it "as Dr. 3ilartKsinvitation that !rought Mr. Rees to the part.

The conseuential uestion then is2

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attention to the presence of Mr. Rees "ould certainl reflect !adl on Ms.#imKs a!ilit to follo" the instructions of the cele!rant to invite onl hisclose friends and some of the hotelKs personnel. Mr. Rees, upon "homthe !urden rests to prove that indeed Ms. #im loudl and rudel orderedhim to leave, could not offer an satisfactor e&planation "h Ms. #im"ould do that and ris% ruining a formal and intimate affair. On the contrar,Mr. Rees, on cross-e&amination, had un"ittingl sealed his fate !

admitting that "hen Ms. #im tal%ed to him, she "as ver close. loseenough for him to %iss2

F2 $nd, Mr. Rees, ou testified that Miss #im approached ou"hile ou "ere at the !uffet ta!leG ?o" close "as she "hen sheapproached ouG

$2 :er close !ecause "e nearl %issed each other.

F2 $nd et, she shouted for ou to go do"nG She "as that closeand she shoutedG

$2 es. She said, 8"ag 2ang 2umain, $indi 2a im!itado dito,!uma!a 2a na lang.8

F2 So, ou are testifing that she did this in a loud voiceG

. . .

$2 es. If it is not loud, it "ill not !e heard ! man.00

In the a!sence of an proof of motive on the part of Ms. #im to humiliateMr. Rees and e&pose him to ridicule and shame, it is highl unli%el thatshe "ould shout at him from a ver close distance. Ms. #im having !een inthe hotel !usiness for t"ent ears "herein !eing polite and discreet arevirtues to !e emulated, the testimon of Mr. Rees that she acted to thecontrar does not inspire !elief and is indeed incredi!le. Thus, the lo"er

court "as correct in o!serving that P

onsidering the closeness of defendant #im to plaintiff "hen the reuestfor the latter to leave the part "as made such that the nearl %issedeach other, the reuest "as meant to !e heard ! him onl and therecould have !een no intention on her part to cause em!arrassment to him.It "as plaintiffKs reaction to the reuest that must have made the otherguests a"are of "hat transpired !et"een them. . .

?ad plaintiff simpl left the part as reuested, there "as no need for thepolice to ta%e him out.0B

Moreover, another pro!lem "ith Mr. ReesKs version of the stor is that it isunsupported. It is a !asic rule in civil cases that he "ho alleges proves. Mr.

Rees, ho"ever, had not presented an "itness to !ac% his stor up. $llhis "itnesses P Dann Rodinas, epito Cuerrero and $le&ander Silva -proved onl that it "as Dr. 3ilart "ho invited him to the part.0+

Ms. #im, not having a!used her right to as% Mr. Rees to leave the part to"hich he "as not invited, cannot !e made lia!le to pa for damages under$rticles 1) and (1 of the ivil ode. >ecessaril, neither can her emploer,?otel >i%%o, !e held lia!le as its lia!ilit springs from that of its emploee.0;

$rticle 1), %no"n to contain "hat is commonl referred to as the principleof a!use of rights,0)is not a panacea for all human hurts and socialgrievances. $rticle 1) states2

$rt. 1). 4ver person must, in the e&ercise of his rights and in the

performance of his duties, act "ith justice, give everone his due, ando!serve honest and good faith.+a"p$i+.n3t

4lse"here, "e e&plained that "hen 8a right is e&ercised in a manner "hichdoes not conform "ith the norms enshrined in $rticle 1) and results indamage to another, a legal "rong is there! committed for "hich the"rongdoer must !e responsi!le.8B/The o!ject of this article, therefore, is toset certain standards "hich must !e o!served not onl in the e&ercise ofoneKs rights !ut also in the performance of oneKs duties.B1These standardsare the follo"ing2 act "ith justice, give everone his due and o!servehonest and good faith.B(Its antithesis, necessaril, is an act evincing !adfaith or intent to injure. Its elements are the follo"ing2 517 There is a legalright or dut' 5(7 "hich is e&ercised in !ad faith' 567 for the sole intent ofprejudicing or injuring another.B6ot !eing lia!le for !oth actual and moral damages, neither can petitioners#im and ?otel >i%%o !e made ans"era!le for e&emplardamages+(especiall for the reason stated ! the ourt of $ppeals. Theourt of $ppeals held P

>ot a fe" of the rich people treat the poor "ith contempt !ecause of thelatterKs lo"l station in life.l7vvp$i+.netThis has to !e limited some"here.In a democrac, such a limit must !e esta!lished. Social eualit is notsought ! the legal provisions under consideration, !ut due regard fordecenc and propriet 5ode ommission, pp. 66-6*7. $nd ! "a of

e&ample or correction for pu!lic good and to avert further commission ofsuch acts, e&emplar damages should !e imposed upon appellees.+6

The fundamental fallac in the a!ove-uoted findings is that it runs counter"ith the ver facts of the case and the evidence on hand. l7vvp$i+.netIt isnot disputed that at the time of the incident in uestion, Mr. Rees "as 8anactor of long standing' a co-host of a radio program over DR?' a oardMem!er of the Music Singer omposer 5MESIO7 chaired ! popularsinger Imelda apin' a sho"!i@ oordinator of iti@en rime

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SO ORD4R4D.

G.R. No. 1742'9 M! (, 2009

)OLO S. )ANTALON,etitioner,vs.AMRI$AN :)RSS INTRNATIONAL, IN$.,Respondent.

D 4 I S I O >

TINGA, J.:

The petitioner, la"er olo antaleon, his "ife Aulialinda, daughter $nnaRegina and son $drian Ro!erto, joined an escorted tour of ovem!er 1))(. otice of $ppeal, "hileantaleon moved for partial reconsideration, praing that the trial courta"ard the increased amount of moral and e&emplar damages he hadpraed for.1*The RT denied antaleonKs motion for partialreconsideration, and thereafter gave due course to respondentKs >otice of$ppeal.10

On 1; $ugust (//B, the ourt of $ppeals rendered a decision 1Breversingthe a"ard of damages in favor of antaleon, holding that respondent had

not !reached its o!ligations to petitioner. ?ence, this petition.

The %e uestion is "hether respondent, in connection "ith theaforementioned transactions, had committed a !reach of its o!ligations toantaleon. In addition, antaleon su!mits that even assuming thatrespondent had not !een in !reach of its o!ligations, it still remained lia!lefor damages under $rticle (1 of the ivil ode.

The RT had concluded, !ased on the testimonial representations ofantaleon and respondentKs credit authori@er, 4dgardo Aaurigue, that thenormal approval time for purchases "as 8a matter of seconds.8 ased onthat standard, respondent had !een in clear dela "ith respect to the threesu!ject transactions. $s it appears, the ourt of $ppeals conceded thatthere had !een dela on the part of respondent in approving thepurchases. ?o"ever, it made t"o critical conclusions in favor ofrespondent. 3irst, the appellate court ruled that the dela "as not attended! !ad faith, malice, or gross negligence. Second, it ruled that respondent8had e&ercised diligent efforts to effect the approval8 of the purchases,"hich "ere 8not in accordance "ith the charge pattern8 petitioner hadesta!lished for himself, as e&emplified ! the fact that at oster, he "as8ma%ing his ver first single charge purchase of ES16,;(B,8 and 8therecord of NpetitionerKs past spending "ith Nrespondent at the time does notfavora!l support his a!ilit to pa for such purchase.81+

On the premise that there "as an o!ligation on the part of respondent 8toapprove or disapprove "ith dispatch the charge purchase,8 petitionerargues that the failure to timel approve or disapprove the purchaseconstituted mora solvendi on the part of respondent in the performance ofits o!ligation. 3or its part, respondent characteri@es the depiction !

petitioner of its o!ligation to him as 8to approve purchases instantaneouslor in a matter of seconds.8

etitioner correctl cites that under mora solvendi, the three reuisites fora finding of default are that the o!ligation is demanda!le and liuidated'the de!tor delas performance' and the creditor judiciall or e&trajudiciallreuires the de!torKs performance.1;etitioner asserts that the ourt of$ppeals had "rongl applied the principle of mora accipiendi, "hichrelates to dela on the part of the o!ligee in accepting the performance ofthe o!ligation ! the o!ligor. The reuisites of mora accipiendi are2 an offerof performance ! the de!tor "ho has the reuired capacit' the offer must!e to compl "ith the prestation as it should !e performed' and the creditorrefuses the performance "ithout just cause.1)The error of the appellatecourt, argues petitioner, is in reling on the invocation ! respondent of8just cause8 for the dela, since "hile just cause is determinative of mora

accipiendi, it is not so "ith the case of mora solvendi.

http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt1http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt1http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt2http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt2http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt2http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt3http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt3http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt4http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt4http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt5http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt5http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt6http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt6http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt7http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt8http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt8http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt9http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt9http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt10http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt10http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt11http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt11http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt11http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt12http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt12http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt13http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt13http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt14http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt14http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt15http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt15http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt16http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt17http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt18http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt18http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt19http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt1http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt2http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt3http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt4http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt5http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt6http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt7http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt8http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt9http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt10http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt11http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt12http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt13http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt14http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt15http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt16http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt17http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt18http://www.lawphil.net/judjuris/juri2009/may2009/gr_174269_2009.html#fnt19

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etherlands vie"ed the delaas unusuall frustrating. In seuence e&pressed in hoeni& time from/12(/ "hen the charge purchased "as referred for authori@ation,defendants o"n record sho"s2

/12(( P the authori@ation is referred to Manila $me&co

/126( P >etherlands gives information that the identification ofthe cardmem!er has !een presented and he is !uing je"elries"orth ES 16,;(B.

/1266 P >etherlands as%s 8?o" long "ill this ta%eG8

/(2/; P >etherlands is still as%ing 8?o" long "ill this ta%eG8

The ourt is convinced that defendants dela constituteNs !reach of itscontractual o!ligation to act on his use of the card a!road 8"ith specialhandling.8((5itations omitted7

&&&

>ot"ithstanding the popular notion that credit card purchases areapproved 8"ithin seconds,8 there reall is no strict, legall determinativepoint of demarcation on ho" long must it ta%e for a credit card compan toapprove or disapprove a customerKs purchase, much less one specificallcontracted upon ! the parties. et this is one of those instances "hen8ouKd %no" it "hen ouKd see it,8 and one hour appears to !e an a"fulllong, patentl unreasona!le length of time to approve or disapprove acredit card purchase. It is long enough time for the customer to "al% to a!an% a %ilometer a"a, "ithdra" mone over the counter, and return to thestore.

>ota!l, petitioner frames the o!ligation of respondent as 8to approve or

disapprove8 the purchase 8in timel dispatch,8 and not 8to approve thepurchase instantaneousl or "ithin seconds.8 ertainl, had respondentdisapproved petitionerKs purchase 8"ithin seconds8 or "ithin a timelmanner, this particular action "ould have never seen the light of da.etitioner and his famil "ould have returned to the !us "ithout dela Pinternall humiliated perhaps over the rejection of his card P et spared theshame of !eing held accounta!le ! ne"l-made friends for ma%ing themmiss the chance to tour the cit of $msterdam.

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& & &

The dela committed ! defendant "as clearl attended ! unjustifiedneglect and !ad faith, since it alleges to have consumed more than onehour to simpl go over plaintiffKs past credit histor "ith defendant, hispament record and his credit and !an% references, "hen all such data arealread stored and readil availa!le from its computer. This ourt also

ta%es note of the fact that there is nothing in plaintiffKs !illing histor that"ould "arrant the imprudent suspension of action ! defendant inprocessing the purchase. DefendantKs "itness Aauriue admits2

F. P ut did ou discover that he did not have an outstandingaccountG

$. P >othing in arrears at that time.

F. P ou "ere "ell a"are of this fact on this ver dateG

$. P es, sir.

Mr. Aauriue further testified that there "ere no 8delinuencies8 in plaintiffKsaccount.(0

It should !e emphasi@ed that the reason "h petitioner is entitled todamages is not simpl !ecause respondent incurred dela, !ut !ecausethe dela, for "hich culpa!ilit lies under $rticle 11+/, led to the particularinjuries under $rticle ((1+ of the ivil ode for "hich moral damages areremunerative.(BMoral damages do not avail to soothe the plaints of thesimpl impatient, so this decision should not !e cause for relief for those"ho time the length of their credit card transactions "ith a stop"atch. Thesome"hat unusual attending circumstances to the purchase at oster Pthat there "as a deadline for the completion of that purchase ! petitioner!efore an dela "ould redound to the injur of his several travelingcompanions P gave rise to the moral shoc%, mental anguish, seriousan&iet, "ounded feelings and social humiliation sustained ! thepetitioner, as concluded ! the RT.(+Those circumstances are fairlunusual, and should not give rise to a general entitlement for damagesunder a more mundane set of facts.

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6. The a"ard of 1//,///.// as moral damages "as held ! theappellate court as e&cessive and unconsciona!le and hencereduced to P9*,***.**.

The a"ard of P+*,***.**as e&emplar damages and P8,9**.**asattorne9s fees and costs remained untouched.

This decision of the Intermediate $ppellate ourt is no" !efore us on apetition for revie".

oth the trial court and the appellate court had made fairl e&plicit findingsof fact relating to the manner in "hich the dump truc% "as par%ed alongCeneral #acuna Street on the !asis of "hich !oth courts dre" theinference that there "as negligence on the part of ar!onel, the dumptruc% driver, and that this negligence "as the pro&imate cause of theaccident and Dionisio9s injuries. . #i!arnes of the one Integrated olice Intelligence Enit ofamp Olivas, San 3ernando, ampanga, "hich "as said to have authoritto issue curfe" passes for ampanga and Metro Manila. This certification"as to the effect that private respondent Dionisio had a valid curfe" pass.This certification did not, ho"ever, specif an pass serial num!er or dateor period of effectivit of the supposed curfe" pass.

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Dionisio9s negligence "as an 8efficient intervening cause and thatconseuentl Dionisio9s negligence must !e regarded as the legal andpro&imate cause of the accident rather than the earlier negligence ofar!onel.

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premises, is an affirmative sho"ing of culpa in vigilandoon the part ofhoeni&.

Turning to the a"ard of damages and ta%ing into account the comparativenegligence of private respondent Dionisio on one hand and petitionersar!onel and hoeni& upon the other hand, 17"e !elieve that thedemands of su!stantial justice are satisfied ! allocating most of the

damages on a (/-;/ ratio. Thus, (/ of the damages a"arded ! therespondent appellate court, e&cept the a"ard of 1/,///.// as e&emplardamages and *,0//.// as attorne9s fees and costs, shall !e !orne !private respondent Dionisio' onl the !alance of ;/ needs to !e paid !petitioners ar!onel and hoeni& "ho shall !e solidarit lia!le therefor tothe former. The a"ard of e&emplar damages and attorne9s fees andcosts shall !e !orne e&clusivel ! the petitioners. hoeni& is of courseentitled to reim!ursement from ar!onel. 1(

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5d7 Aanuar (*, 1);/, a resolution "as issued dening said motionfor reconsideration'

5e7 3e!ruar ((, 1);/, a cop of said denial resolution "as received! private respondents'

5f7 3e!ruar (), 1);/, a motion for leave to file a second motion forreconsideration "as filed ! private respondents

5g7 March +, 1);/, a second motion for reconsideration "as filed !private respondents'

5h7 March 11, 1);/, a resolution "as issued allo"ing respondents tofile a second motion for reconsideration "ithin ten 51/7 das fromreceipt' and

5i7 Septem!er 6, 1);/, a resolution "as issued, penned ! Austiceosa, reversing the original decision dated Septem!er (0, 1)+) andsetting aside the resolution dated Aanuar (*, 1);/.

3rom the foregoing chronolog, "e are convinced that !oth the motion forleave to file a second motion for reconsideration and, conseuentl, saidsecond motion for reconsideration itself "ere filed out of time.

Section 1, Rule 0( of the Rules of ourt, "hich had proceduralgovernance at the time, provided that a second motion for reconsiderationma !e presented "ithin fifteen 5107 das from notice of the order orjudgment deducting the time in "hich the first motion has !eenpending. 20rivate respondents having filed their first motion forreconsideration on the last da of the reglementar period of fifteen 5107das "ithin "hich to do so, the had onl one 517 da from receipt of theorder dening said motion to file, "ith leave of court, a second motion forreconsideration. 21In the present case, after their receipt on 3e!ruar ((,1);/ of the resolution dening their first motion for reconsideration, privaterespondents had t"o remedial options. On 3e!ruar (6, 1);/, theremaining one 517 da of the aforesaid reglementar period, the couldhave filed a motion for leave of court to file a second motion forreconsideration, conceiva!l "ith a praer for the e&tension of the period"ithin "hich to do so. On the other hand, the could have appealedthrough a petition for revie" on certiorari to this ourt "ithin fifteen 5107das from 3e!ruar (6, 1);/. 22Instead, the filed a motion for leave to filea second motion 9for reconsideration on 3e!ruar (), 1);/, and saidsecond motion for reconsideration on March +, 1);/, !oth of "hichmotions "ere ! then time-!arred.

onseuentl, after the e&piration on 3e!ruar (*, 1);/ of the originalfifteen 5107 da period, the running of "hich "as suspended during thependenc of the first motion for reconsideration, the ourt of $ppeals couldno longer validl ta%e further proceedings on the merits of the case, much

less to alter, modif or reconsider its aforesaid decision andLor resolution.The filing of the motion for leave to file a second motion for reconsideration! herein respondents on 3e!ruar (), 1);/ and the su!seuent filing ofthe motion itself on March +, 1);/, after the e&piration of the reglementarperiod to file the same, produced no legal effects. Onl a motion for re-hearing or reconsideration filed in time shall sta the final order orjudgment sought to !e re-e&amined. 2&

The conseuential result is that the resolution of respondent court ofMarch 11, 1);/ granting private respondents9 aforesaid motion for leaveand, giving them an e&tension of ten 51/7 das to file a second motion forreconsideration, is null and void. The period for filing a second motion forreconsideration had alread e&pired "hen private respondents soughtleave to file the same, and respondent court no longer had the po"er toentertain or grant the said motion. The aforesaid e&tension of ten 51/7 das

for private respondents to file their second motion for reconsideration "asof no legal conseuence since it "as given "hen there "as no moreperiod to e&tend. It is an elementar rule that an application for e&tensionof time must !e filed prior to the e&piration of the period sought to !ee&tended. 24>ecessaril, the discretion of respondent court to grant saide&tension for filing a second motion for reconsideration is conditioned uponthe timeliness of the motion see%ing the same.

>o appeal having !een ta%en seasona!l, the respondent court9s decision,dated Septem!er (0, 1)+), !ecame final and e&ecutor on March ), 1);/.The su!seuent resolutions of respondent court, dated March 11, 1);/and Septem!er 6, 1);/, allo"ing private respondents to file a secondmotion for reconsideration and reversing the original decision are null andvoid and cannot distur! the finalit of the judgment nor restore jurisdictionto respondent court. This is !ut in line "ith the accepted rule that once a

decision has !ecome final and e&ecutor it is removed from the po"er andjurisdiction of the court "hich rendered it to further alter or amend, much

less revo%e it.25The decision rendered ane" is null and void.2'The court9sinherent po"er to correct its o"n errors should !e e&ercised !efore thefinalit of the decision or order sought to !e corrected, other"ise litigation"ill !e endless and no uestion could !e considered finall settled.$lthough the granting or denial of a motion for reconsideration involves thee&ercise of discretion,27the same should not !e e&ercised "himsicall,capriciousl or ar!itraril, !ut prudentl in conformit "ith la", justice,

reason and euit.2(

rescinding from the aforesaid procedural lapses into the su!stantivemerits of the case, "e find no error in the findings of the respondent courtin its original decision that the accident "hich !efell private respondents"as due to the lac% of diligence of respondent $ntonio 4ste!an and "asnot imputa!le to negligent omission on the part of petitioner #DT. Suchfindings "ere reached after an e&haustive assessment and evaluation ofthe evidence on record, as evidenced ! the respondent court9s resolutionof Aanuar (*, 1);/ "hich "e uote "ith approval2

First. laintiff9s jeep "as running along the inside lane of #acsonStreet. If it had remained on that inside lane, it "ould not have hitthe $ID4>T MOE>D.

4&hi!it sho"s, through the tiremar%s, that the $ID4>TMOE>D "as hit ! the jeep s"erving from the left that is, s"ervingfrom the inside lane. TMOE>D for "hich reason he ran into it.

Second. That plaintiff9s jeep "as on the inside lane !efore its"erved to hit the $ID4>T MOE>D could have !eencorro!orated ! a picture sho"ing #acson Street to the south of the$ID4>T MOE>D.

It has !een stated that the ditches along #acson Street had alread!een covered e&cept the 6 or * meters "here the $ID4>TMOE>D "as located. 4&hi!it -1 sho"s that the ditches on #acsonStreet north of the $ID4>T MOE>D had alread !een covered,!ut not in such a "a as to allo" the outer lane to !e freel andconvenientl passa!le to vehicles. The situation could have !een"orse to the south of the $ID4>T MOE>D for "hich reason nopicture of the $ID4>T MOE>D facing south "as ta%en.

1$ird. laintiff9s jeep "as not running at (0 %ilometers an hour asplaintiff-hus!and claimed. $t that speed, he could have !ra%ed thevehicle the moment it struc% the $ID4>T MOE>D. The jeep"ould not have clim!ed the $ID4>T MOE>D several feet as

indicated ! the tiremar%s in 4&hi!it . The jeep must have !eenrunning uite fast. If the jeep had !een !ra%ed at (0 %ilometers anhour, plaintiff9s "ould not have !een thro"n against the "indshieldand the "ould not have suffered their injuries.

Fourt$. If the accident did not happen !ecause the jeep "asrunning uite fast on the inside lane and for some reason or other ithad to s"erve suddenl to the right and had to clim! over the$ID4>T MOE>D, then plaintiff-hus!and had not e&ercised thediligence of a good father of a famil to avoid the accident. T MOE>D in time to !ra%e the car "as negligence on his

part. The $ID4>T MOE>D "as relativel !ig and visi!le, !eing( to 6 feet high and 1-1L( feet "ide. If he did not see the$ID4>T MOE>D in time, he "ould not have seen an "arningsign either. ?e %ne" of the e&istence and location of the$ID4>T MOE>D, having seen it man previous times. T MOE>D.29

The a!ove findings clearl sho" that the negligence of respondent $ntonio4ste!an "as not onl contri!utor to his injuries and those of his "ife !utgoes to the ver cause of the occurrence of the accident, as one of itsdetermining factors, and there! precludes their right to recoverdamages.&0The perils of the road "ere %no"n to, hence appreciated andassumed !, private respondents. e&ercising reasona!le care andprudence, respondent $ntonio 4ste!an could have avoided the injurious

conseuences of his act, even assuming arguendothat there "as somealleged negligence on the part of petitioner.

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The presence of "arning signs could not have completel prevented theaccident' the onl purpose of said signs "as to inform and "arn the pu!licof the presence of e&cavations on the site. The private respondentsalread %ne" of the presence of said e&cavations. It "as not the lac% of%no"ledge of these e&cavations "hich caused the jeep of respondents tofall into the e&cavation !ut the une&plained sudden s"erving of the jeepfrom the inside lane to"ards the accident mound. $s opined in some

uarters, the omission to perform a dut, such as the placing of "arningsigns on the site of the e&cavation, constitutes the pro&imate cause onl"hen the doing of the said omitted act "ould have prevented the injur.&1Itis !asic that private respondents cannot charge #DT for their injuries"here their o"n failure to e&ercise due and reasona!le care "as thecause thereof. It is !oth a societal norm and necessit that one shoulde&ercise a reasona!le degree of caution for his o"n protection.3urthermore, respondent $ntonio 4ste!an had the last clear chance oropportunit to avoid the accident, not"ithstanding the negligence heimputes to petitioner #DT. $s a resident of #acson Street, he passed onthat street almost everda and had %no"ledge of the presence andlocation of the e&cavations there. It "as his negligence that e&posed himand his "ife to danger, hence he is solel responsi!le for theconseuences of his imprudence.

Moreover, "e also sustain the findings of respondent ourt of $ppeals inits original decision that there "as insufficient evidence to prove annegligence on the part of #DT.

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V crala" The "ire "as an e&posed, high tension "ire carring a load of

6,B// volts. There "as, according to $ppellant, no insulation that could

have rendered it safe, first, !ecause there is no insulation material in

commercial use for such %ind of "ire' chan ro!lesvirtuala"li!rarand

secondl, !ecause the onl insulation material that ma !e effective is still

in the e&perimental stage of development and, an"a, its costs "ould !e

prohi!itiveQ W

The theor follo"ed ! the appellate court in finding for the laintiff is that

although the o"ner of the house in constructing the Vmedia aguaW in

uestion e&ceeded the limits fi&ed in the permit, still, after ma%ing that

Vmedia aguaW, its construction though illegal, "as finall approved !ecause

he "as given a final permit to occup the house' chan

ro!lesvirtuala"li!rarthat it "as the compan that "as at fault and "as

guilt of negligence !ecause although the electric "ire in uestion had

!een installed long !efore the construction of the house and in accordance

"ith the ordinance fi&ing a minimum of 6 feet, mere compliance "ith the

regulations does not satisf the reuirement of due diligence nor avoid the

need for adopting such other precautionar measures as ma !e

"arranted' chan ro!lesvirtuala"li!rarthat negligence cannot !edetermined ! a simple matter of inches' chan ro!lesvirtuala"li!rarthat all

that the cit did "as to prescri!e certain minimum conditions and that just

!ecause the ordinance reuired that primar electric "ires should !e not

less than 6 feet from an house, the o!ligation of due diligence is not

fulfilled ! placing such "ires at a distance of 6 feet and one inch,

regardless of other factors. The appellate court, ho"ever, refrained from

stating or suggesting "hat other precautionar measures could and should

have !een adopted.

$fter a careful stud and discussion of the case and the circumstances

surrounding the same, "e are inclined to agree to the contention of

etitioner ompan that the death of Magno "as primaril caused ! hiso"n negligence and in some measure ! the too close pro&imit of the

Vmedia aguaW or rather its edge to the electric "ire of the compan !

reason of the violation of the original permit given ! the cit and the

su!seuent approval of said illegal construction of the Vmedia aguaW.

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V crala", so that "hile it ma !e true that these injuries "ould not have

!een incurred !ut for the negligent act of the Defendant in leaving the caps

e&posed on its premises, nevertheless laintiffKs o"n act "as the

pro&imate and principal cause of the accident "hich inflicted the injur.W

To us it is clear that the principal and pro&imate cause of the electrocution"as not the electric "ire, evidentl a remote cause, !ut rather the rec%less

and negligent act of Magno in turning around and s"inging the galvani@ed

iron sheet "ithout ta%ing an precaution, such as loo%ing !ac% to"ard the

street and at the "ire to avoid its contacting said iron sheet, considering

the latterKs length of B feet. 3or a !etter understanding of the rule on

remote and pro&imate cause "ith respect to injuries, "e find the follo"ing

citation helpful2chanro!lesvirtualla"li!rar

V$ prior and remote cause cannot !e made the !asis of an action if such

remote cause did nothing more than furnish the condition or give rise to

the occasion ! "hich the injur "as made possi!le, if there intervened

!et"een such prior or remote cause and the injur a distinct, successive,unrelated, and efficient cause of the injur, even though such injur "ould

not have happened !ut for such condition or occasion. If no danger e&isted

in the condition e&cept !ecause of the independent cause, such condition

"as not the pro&imate cause. $nd if an independent negligent act or

defective condition sets into operation the circumstances "hich result in

injur !ecause of the prior defective condition, such su!seuent act or

condition is the pro&imate cause.W 5*0 .A. pp. )61-66(.7.

o costs.

G.R. No. 1'59'9 November 27, 200(

NATIONAL )OR $OR)ORATION, petitioner,vs.HIRS OF NOBL $ASIONAN,respondents.

D $ I S I O N

R%S, R.T., J.

4TITIO>I>C po"er compan pleads for mitigation of a"arded damageson ground of contri!utor negligence. ut is the victim in this case partl to!lame for his electrocution and eventual demiseG

This is a revie" on certiorariof the Decision1of the ourt of $ppeals 5$7"hich found the >ational o"er orporation 5>7 lia!le for damages forthe death of >o!le asionan due to electrocution from the companKs hightension transmission lines.

Tovem!er ) of that ear. >o!le "as originallfrom ervantes, Ilocos Sur. ?e "or%ed as a poc%et miner in Dalicno,$mpucao, Itogon, enguet.

$ trail leading to Sangilo, Itogon, e&isted in Dalicno and this trail "as

regularl used ! mem!ers of the communit. Sometime in the 1)+/Ks,petitioner > installed high-tension electrical transmission lines of B)%ilovolts 5:7 traversing the trail. 4ventuall, some of the transmission linessagged and dangled reducing their distance from the ground to onl a!outeight to ten feet. This posed a great threat to passers! "ho "ere e&posedto the danger of electrocution especiall during the "et season.

$s earl as 1))1, the leaders of $mpucao, Itogon made ver!al and "rittenreuests for > to institute safet measures to protect users of the trailfrom their high tension "ires. On Aune 1;, 1))1 and 3e!ruar 11, 1))6,a!lo and edro >gaosie, elders of the communit, "rote 4ngr. aternoanaot, $rea Manager of >, to ma%e immediate and appropriaterepairs of the high tension "ires. The reiterated the danger it posed tosmall-scale miners especiall during the "et season. The related anincident "here one !o "as nearl electrocuted.

In a letter dated March 1, 1))0, 4ngr. anaot informed Itogon Maorresencio acalso that > had installed nine additional poles on theirec%el-hile& B/ : line. The li%e"ise identified a possi!le reroutingscheme "ith an estimated total cost of 1.+ million pesos to improve thedistance from its deteriorating lines to the ground.

On Aune (+, 1))0, >o!le and his co-poc%et miner, Melchor Aimene@, "ereat Dalicno. The cut t"o !am!oo poles for their poc%et mining. One "as1; to 1) feet long and the other "as 1* feet long. 4ach man carried onepole hori@ontall on his shoulder2 >o!le carried the shorter pole "hileMelchor carried the longer pole. >o!le "al%ed ahead as !oth passedthrough the trail underneath the > high tension transmission lines ontheir "a to their "or% place.

$s >o!le "as going uphill and turning left on a curve, the tip of the!am!oo pole he "as carring touched one of the dangling high tension"ires. Melchor, "ho "as "al%ing !ehind him, narrated that he heard a!u@@ing sound "hen the tip of >o!leKs pole touched the "ire for onl a!outone or t"o seconds. Thereafter, he sa" >o!le fall to the ground. Melchorrushed to >o!le and shoo% him !ut the latter "as alread dead. Their co-"or%ers heard MelchorKs shout for help and together the !rought the !odof >o!le to their camp.

$ post-mortem e&amination ! Dra. Ignacia Rees iriaco, Municipal?ealth Officer of Itogon, enguet, determined the cause of death to !ecardiac arrest, secondar to ventricular fi!ulation, secondar toelectrocution.(She also o!served a small !urned area in the middle right

finger of the victim.

olice investigators "ho visited the site of the incident confirmed thatportions of the high tension "ires a!ove the trail hung ver lo", just a!outeight to ten feet a!ove the ground. The noted that the residents, schoolchildren, and poc%et miners usuall used the trail and had to pass directlunderneath the "ires. The trail "as the onl via!le "a since the otherside "as a precipice. In addition, the did not see an danger "arningsigns installed in the trail.

The elders and leaders of the communit, through Maor resencioacalso, informed the Ceneral Manager of > in Itogon of the incident.$fter learning of the electrocution, > repaired the dangling and saggingtransmission lines and put up "arning signs around the area.

onseuentl, the heirs of the deceased >o!le filed a claim for damagesagainst the > !efore the Regional Trial ourt 5RT7 in enguet. In itsans"er, > denied !eing negligent in maintaining the safet of the hightension transmission lines. It averred that there "ere danger and "arningsigns installed !ut these "ere stolen ! children. 4&cavations "ere alsomade to increase the necessar clearance from the ground to a!out 1+ to1; feet !ut some to"ers or poles san% due to poc%et mining in the area.

$t the trial, > "itnesses testified that the cause of death could not have!een electrocution !ecause the victim did not suffer e&tensive !urnsdespite the strong B) : carried ! the transmission lines. > arguedthat if >o!le did die ! electrocution, it "as due to his o"n negligence. Thecompan counter-claimed for attorneKs fees and cost of litigation.

RT$ D=oo"

http://www.lawphil.net/judjuris/juri2008/nov2008/gr_165969_2008.html#fnt1http://www.lawphil.net/judjuris/juri2008/nov2008/gr_165969_2008.html#fnt2http://www.lawphil.net/judjuris/juri2008/nov2008/gr_165969_2008.html#fnt2http://www.lawphil.net/judjuris/juri2008/nov2008/gr_165969_2008.html#fnt1http://www.lawphil.net/judjuris/juri2008/nov2008/gr_165969_2008.html#fnt2

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On 3e!ruar 1+, 1));, the RT decided in favor of respondents.The falloof its decision reads2

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should have %ept the rails aligned could not !e found at thescene of the accident.

1$ere is no /uestion t$at t$e maintenance of t$e rails, for t$e

purpose, inter alia, of preventing derailments, "as t$e

responsi!ilit# of t$e petitioner, and t$at t$is responsi!ilit# "as

not disc$arged. $ccording to Aose Rees, its o"n "itness, "ho

"as in charge of the control and supervision of its trainoperations, cases of derailment in the milling district "erefreuent and there "ere even times "hen such derailments"ere reported ever hour. The petitioner should therefore haveta%en more prudent steps to prevent such accidents instead of"aiting until a life "as finall lost !ecause of its negligence.1/

Moreover, o!leKs part.

>egligence is the failure to o!serve, for the protection of the interest ofanother person, that degree of care, precaution, and vigilance "hich thecircumstances justl demand, "here! such other person suffersinjur.11On the other hand, ;o"rbor "e?>?e";e ;o"#; o"

The underling precept on contri!utor negligence is that a plaintiff "ho ispartl responsi!le for his o"n injur should not !e entitled to recoverdamages in full !ut must !ear the conseuences of his o"n negligence.10Ifindeed there "as contri!utor negligence on the part of the victim, then itis proper to reduce the a"ard for damages. This is in consonance "ith theivil ode provision that lia!ilit "ill !e mitigated in consideration of thecontri!utor negligence of the injured part. $rticle (1+) of the ivil ode

is e&plicit on this score2

o!le should not !e faulted for simpl doing"hat "as ordinar routine to other "or%ers in the area.

etitioner further faults the victim in engaging in poc%et mining, "hich isprohi!ited ! the D4>R in the area.

In6onuevo v. Court of 6ppeals,1+this ourt ruled that the violation of a

statute is not sufficient to hold that the violation "as the pro&imate cause ofthe injur, unless the ver injur that happened "as precisel "hat "asintended to !e prevented ! the statute. In said case, the allegation ofcontri!utor negligence on the part of the injured part "ho violated trafficregulations "hen he failed to register his !iccle or install safet gadgetsthereon "as struc% do"n. egligence is relative or comparative, dependent upon

the situation of the parties and the degree of care and vigilance"hich the particular circumstances reasona!l reuire. 1odetermine if 4illagracia "as negligent, it is not sufficient to rel#

solel# on t$e violations of t$e municipal ordinance, !ut

imperative to e0amine 4illagracias !e$avior in relation to t$e

contemporaneous circumstances of t$e accident.

& & & &

Ender $merican case la", the failures imputed on :illagracia arenot grievous enough so as to negate monetar relief. In thea!sence of statutor reuirement, one is not negligent as amatter of la" for failing to euip a horn, !ell, or other "arningdevise onto a !iccle. In most cases, the a!sence of properlights on a !iccle does not constitute negligence as a matter ofla" !ut is a uestion for the jur "hether the a!sence of properlights plaed a causal part in producing a collision "ith amotorist. 1$e a!sence of proper lig$ts on a !ic#cle at nig$t, asre/uired !# statute or ordinance, ma# constitute negligence

!arring or diminis$ing recover# if t$e !ic#clist is struc2 !# a

motorist as long as t$e a!sence of suc$ lig$ts "as a pro0imate

cause of t$e collision< $o"ever, t$e a!sence of suc$ lig$ts "ill

not preclude or diminis$ recover# if t$e scene of t$e accident

"as "ell illuminated !# street lig$ts, if su!stitute lig$ts "ere

present "$ic$ clearl# rendered t$e !ic#clist visi!le, if t$e

motorist sa" t$e !ic#cle in spite of t$e a!sence of lig$ts t$ereon,

or if t$e motorist "ould $ave !een una!le to see t$e !ic#cle

even if it $ad !een e/uipped "it$ lig$ts. $ !iccle euipped "ithdefective or ineffective !ra%es ma support a finding ofnegligence !arring or diminishing recover ! an injured !icclist"here such condition "as a contri!uting cause of the accident.

The a!ove doctrines reveal a common thread. 1$e failure of t$e!ic#cle o"ner to compl# "it$ accepted safet# practices, "$et$er

or not imposed !# ordinance or statute, is not sufficient to

negate or mitigate recover# unless a causal connection is

esta!lis$ed !et"een suc$ failure and t$e injur# sustained. Theprinciple li%e"ise finds affirmation in Sanitar Steam, "herein "edeclared that the violation of a traffic statute must !e sho"n asthe pro&imate cause of the injur, or that it su!stantiallcontri!uted thereto. $Uonuevo had the !urden of clearl provingthat the alleged negligence of :illagracia "as the pro&imate orcontri!utor cause of the latterKs injur.1;54mphasis added7

That the poc%et miners "ere unlicensed "as not a justification forpetitioner to leave their transmission lines dangling. . 1$e poc2et miners, alt$oug$ t$e# $ave no

permit to do poc2et mining in t$e area, are also $uman !eings "$o

$ave to e2e out a living in t$e onl# "a# t$e# 2no" $o". 1$e fact t$at

t$e# "ere not issued a permit !# t$e D%NR to do poc2et mining is no

justification for NPC to simpl# leave t$eir transmission lines dangling

or $anging E to +* feet a!ove t$e ground posing danger to t$e life

and lim! of ever#one in said communit#. & & &1)54mphasis added7

In sum, the victim "as not guilt of contri!utor negligence. ?ence,petitioner is not entitled to a mitigation of its lia!ilit.

II

e "o #eerm"e !r #!m!?e.

3rom the testimon of the victimKs mother, it "as dul esta!lished duringtrial that he "as earning6,///.// a month. To determine thecompensa!le amount of lost earnings,

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earnings or income and less living and other incidental e&penses. The netearning is ordinaril computed at fift percent 50/7 of the gross earnings.Thus, the formula used ! this ourt in computing loss of earning capacitis2 >et 4arning apacit [ N(L6 & 5;/ P age at time of death7 & 5grossannual income P reasona!le and necessar living e&penses7.(/

o!le asionan, at the time ofhis death, "as (/ ears old and "as health and strong. $nd,therefore, his life e&pectanc "ould normall reach up to ;/ ears oldin accordance "ith the a!ove formula illustrated in the aforesaid cases.Thus, >o!le asionan had B/ more ears life e&pectanc since he "as(/ ears old at the time of his death on Aune (+, 1))0. T"o-thirds ofB/ ears times 6B,///.// since he "as earning a!out 6,///.// amonth of 6B,///.// a ear "ould !e 1,**/,///.//.

?o"ever, in determining the unearned income, the !asic concern is todetermine the damages sustained ! the heirs or dependents of the

deceased asionan. $nd here, the damages consist not of the fullamount of his earnings !ut the support the "ould have received fromthe deceased had he not died as a conseuence of the unla"ful act ofthe >. & & & The amount recovera!le is not the loss of the entireearnings !ut the loss of that portion of the earnings "hich the heirs"ould have received as support. ?ence, from the amountof 1,**/,///.//, a reasona!le amount for the necessar e&penses of>o!le asionan had he lived "ould !e deducted. 3ollo"ing the rulingin eople v. Fuilaton, (/0 SR$ (+), the ourt deems that 0/ percentof the gross earnings of the deceased of 1,**/,///.// should !ededucted for his necessar e&penses had he lived, thus leaving theother half of a!out +(/,///.// as the net earnings that "ould havegone for the support of his heirs. This is the unearned income of "hichthe heirs "ere deprived of.(1

In uasi delicts, e&emplar damages are a"arded "here the offender "asguilt of gross negligence.((Cross negligence has !een defined to !e the"ant or a!sence of even slight care or diligence as to amount to a rec%lessdisregard of the safet of person or propert. It evinces a thoughtlessdisregard of conseuences "ithout e&erting an effort to avoid them.(6

etitioner demonstrated its disregard for the safet of the mem!ers of thecommunit of Dalicno "ho used the trail regularl "hen it failed to addressthe sagging high tension "ires despite numerous previous reuests and"arnings. It onl e&erted efforts to rectif the danger it posed after a deathfrom electrocution alread occurred. Cross negligence "as thus apparent,"arranting the a"ard of e&emplar damages.

$s to the a"ard of moral damages, o. /))*)-R, dated Octo!er 1/, 1)+*, affirming the conviction of thepetitioner of the crime of homicide thru rec%less imprudence.

$s found ! the ourt of $ppeals, the facts of this case are2

On Decem!er 61,1)0), at a!out +26/ o9cloc% in the evening, a rigdriven ! appellant !umped an old "oman "ho "as crossing T.adilla St., e!u it, at the right side of T. adilla Mar%et. Theappellant9s rig "as follo"ing another at a distance of t"o meters. Theold "oman started to cross "hen the first rig "as approaching her,!ut as appellant9s vehicle "as going so fast not onl !ecause of thesteep do"n-grade of the road, !ut also !ecause he "as tring tooverta%e the rig ahead of him, the appellant9s rig !umped the old"oman, "ho as a conseuence, fell at the middle of the road. Theappellant continued to drive on, !ut a !-stander, one :icenteMangao, "ho just closed his store in mar%et in order to cele!rate the

coming of the >e" ear, and "ho sa" the incident right !efore him,shouted at the appellant to stop. ?e ran after appellant "hen thelatter refused to stop. Overta%ing the appellant, Mangao as%ed him"h he !umped the old "oman and his ans"er "as, 9it "as the old"oman that !umped him.9 The appellant "ent !ac% to the place"here the old "oman "as struc% ! his rig. The old "oman "asunconscious, and the food and viands she "as carring "erescattered on her !od. The victim "as then loaded in a jeep and!rought to the hospital "here she died three hours later 54&h. 7. Thefindings after an autops are as follo"s2

ontusion "ith ?ematoma #eft, 3rontal and Occipito-arietalRegionas 3racture Occipito-arietal one ere!ral?emorrhage.

The deceased "as an eight-one-ear old "oman named Rita .a!rera. 5pp. 61-6(, Rollo.7

etitioner "as charged "ith homicide thru rec%less imprudence in theourt of 3irst Instance of e!u 5rim. ase >o. :+;007. The trial courtfound petitioner guilt of the felon charged and sentenced him to 8sufferan indeterminate penalt of three 567 months of arresto ma#or

as minimumto one 517 ear, one 517 month and eleven 5117 das ofprision correccionalas ma&imum, to indemnif the heirs of Rita an@on a!rera the sum ofB,/// "ith su!sidiar imprisonment in case of insolvenc, not to e&ceed1L6 of the principal penalt and to pa the costs8 5p. 6, $ppellant9s rief, p.0B, Rollo7.

The petitioner appealed to the ourt of $ppeals 5$-C.R. /))*)-R7"hich,on Octo!er 1/,1)+*,conviction of the accused !ut increased hiscivil lia!ilit to 1(,///. The dispositive portion of its decision reads2

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vs. ernardo, 1/1 SR$ 601' :da. De Ro&as vs. I$, 1*6 SR$ ++'Repu!lic vs. I$, 1** SR$ +/07.

The alleged contri!utor negligence of the victim, if an, does note&onerate the accused. 8The defense of contri!utor negligence does notappl in criminal cases committed through rec%less imprudence, since onecannot allege the negligence of another to evade the effects of his o"n

negligence 5eople vs. Or!eta, $-C.R. >o. 6(1, March (),1)*+7.85eople vs. Fuinones, ** O.C. 10(/7.

The petitioner9s contention that the ourt of $ppeals unjustl increased hiscivil lia!ilit to 1(,///, is devoid of merit. The prevailing jurisprudence infact provides that indemnit for death in homicide or murder is 6/,///5eople vs. De la 3uente, N1);61(B SR$ 01;' eople vs. enteno, 16/SR$ 1);7. $ccordingl, the civil lia!ilit of the petitioner is increased to6/,///.

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O"ners or directors of an esta!lishment or enterprise areeuall lia!le for the damages caused ! their emploees in theservice of the !ranches in "hich the latter ma !e emploed orin the performance of their duties.

&&& &&& &&&

The lia!ilit referred to in this article shall cease "hen thepersons mentioned therein prove that the emploed all thediligence of a good father of a famil to avoid the damages.

$s an ans"er to the argument urged in this particular action it ma !esufficient to point out that no"here in our general statutes is the emploerpenali@ed for failure to provide or maintain safe appliances for his"or%men. ?is o!ligation therefore is one 8not punished ! the la" 8 andfalls under civil rather than criminal jurisprudence. ut the ans"er ma !ea !roader one.

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The 3rench Cour de Cassation clearl laid do"n the contrar principle inits judgment of Aune (;, 1;*1, in the case of Regasse, and has sinceadhered to it.

The most controverted uestion in the case is that of the negligence of theplaintiff, contri!uting to the accident, to "hat e&tent it e&isted in fact and"hat legal effect is to !e given it. In t"o particulars is he charged "ith

carelessness2

3irst. That having noticed the depression in the trac% he continued his"or%' and

Second. That he "al%ed on the ends of the ties at the side of the carinstead of along the !oards, either !efore or !ehind it.

$s to the first point, the depression in the trac% night indicate either aserious or a rival difficult. There is nothing in the evidence to sho" thatthe plaintiff did or could see the displaced tim!er underneath the sleeper.The claim that he must have done so is a conclusion dra"n from "hat isassumed to have !een a pro!a!le condition of things not !efore us, ratherthan a fair inference from the testimon. o. 17, in "hich the !rea%ing do"n of plaintiff9sdam ! the logs of the defendant impelled against it ! the Tajo River, "as

held due to a freshet as a fortuitous cause.

The decision of the +th of March, 1)/(, on "hich stress has !een laid,rested on t"o !ases, one, that the defendant "as not negligent, !ecausee&pressl relieved ! roal order from the common o!ligation imposed !the police la" of maintaining a guard at the road crossing' the other,!ecause the act of the deceased in driving over level ground "ithuno!structed vie" in front of a train running at speed, "ith the engine"histle !lo"ing "as the determining cause of the accident. It is plain thatthe train "as doing nothing !ut "hat it had a right to do and that the onlfault la "ith the injured man. ?is negligence "as not contri!utor, it "assole, and "as of such an efficient nature that "ithout it no catastrophecould have happened.

On the other hand, there are man cases reported in "hich it seems plainthat the plaintiff sustaining damages "as not free from contri!utornegligence' for instance, the decision of the 1*th of Decem!er, 1;)*5+B(urisprudencia Civil, >o. 16*7, in "hich the o"ner of a !uilding "asheld lia!le for not furnishing protection to "or%men engaged in hanging outflags, "hen the latter must have perceived !eforehand the dangerattending the "or%.

>one of those cases define the effect to !e given the negligence of aplaintiff "hich contri!uted to his injur as one of its causes, though not theprincipal one, and "e are left to see% the theor of the civil la" in thepractice of other countries.

In 3rance in the case of Maruant, $ugust (/, 1;+), the cour decassation held that the carelessness of the victim did not civill relieve theperson "ithout "hose fault the accident could not have happened, !ut thatthe contri!utor negligence of the injured man had the effect onl ofreducing the damages. The same principle "as applied in the case ofRecullet, >ovem!er 1/, 1;;;. and that of #augier of the 11th of >ovem!er,1;)B. 53u@ier-?erman, Title Responsi!ilite Cirile, *11, *1(.7 Of li%e tenorare citations in Dallo@ 5vol. 1;, 1;/B, Title Trail, 6B6, 6B*, and vol. 10,1;)0, 1itle Responsi!ilite, 1)6, 1);7.

In the anadian rovince of Fue!ee, "hich has retained for the most partthe 3rench ivil #a", no" em!odied in a code follo"ing the ode>apoleon, a practice in accord "ith that of 3rance is laid do"n in mancases collected in the annotations to article 1/06 of the code edited !eauchamps, 1)/*. One of these is #uttrell vs.Trottier, reported in &aRevue de (urisprudence, volume B, page )/, in "hich the court of ings

!ench, other"ise %no"n as the court of appeals, the highest authorit inthe Dominion of anada on points of 3rench la", held that contri!utor

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negligence did not e&onerate the defendants "hose fault had !een theimmediate cause of the accident, !ut entitled him to a reduction ofdamages. Other similar cases in the provincial courts have !een overruled! appellate tri!unals made up of common la" judges dra"n from otherprovinces, "ho have preferred to impose uniformall throughout theDominion the 4nglish theor of contri!utor negligence. Such decisionsthro" no light upon the doctrines of the civil la". 4lse"here "e find this

practice em!odied in legislation' for instance, section ( of article (6); ofthe ode of ortugal reads as follo"s2

If in the case of damage there "as fault or negligence on thepart of the person injured or in the part of some one else, theindemnification shall !e reduced in the first case, and in thesecond case it shall !e appropriated in proportion to such faultor negligence as provided in paragraphs 1 and ( of section(6+(.

$nd in article 16/* of the $ustrian ode provides that the victim "ho ispartl changea!le "ith the accident shall stand his damages in proportionto his fault, !ut "hen that proportion is incapa!le of ascertainment, he shallshare the lia!ilit euall "ith the person principall responsi!le. Theprinciple of proportional damages appears to !e also adopted in article 01of the S"iss ode. 4ven in the Enited States in admiralit jurisdictions,"hose principles are derived from the civil la", common fault in cases ofcollision have !een disposed of not on the ground of contradictornegligence, !ut on that of eual loss, the fault of the one part !eing offsetagainst that of the other. 5Ralli vs.Troop, 10+ E. S. 6;B' )+.7

The damage of !oth !eing added together and the sum euall divided, adecree is entered in favor of the vessel sustaining the greater loss againstthe other for the e&cess of her damages over one-half of the aggregatesum. 5The Manito!a, 1(( E. S., )+7

4&ceptional practice appears to prevail in maritime la" in otherjurisdictions. The Spanish ode of ommerce, article ;(+, ma%es eachvessel for its o"n damage "hen !oth are the fault' this provision restricted

to a single class of the maritime accidents, falls for short of a recognition ofthe principle of contri!utor negligence as understood in $merican #a","ith "hich, indeed, it has little in common. This is a plain from otherarticles of the same code' for instance, article ;(), referring to articles ;(B,;(+, and ;(;, "hich provides2 8In the cases a!ove mentioned the civilaction of the o"ner against the person lia!le for the damage is reserved,as "ell as the criminal lia!ilit "hich ma appear.8

The rule of the common la", a hard and fast one, not adjusta!le "ithrespects of the faults of the parties, appears to have gro"n out the originalmethod of trial ! jur, "hich rendered difficult a nice !alancing ofresponsi!ilities and "hich demanded an infle&i!le standard as a safeguardagainst too read smphat for the injured. It "as assumed that an e&actmeasure of several concurring faults "as unattaina!le.

The reason "h, in cases of mutual concurring negligence,neither part can maintain an action against the other, is, not the"rong of the one is set off against the "rong of the other' it thatthe la" can not measure ho" much of the damage suffered isattri!uta!le to the plaintiff9s o"n fault. If he "ere allo"ed torecover, it might !e that he "ould o!tain from the other partcompensation for hiss o"n misconduct. 5?eil vs.Clanding, *(enn. St. Rep., *)6, *)).7

The parties !eing mutuall in fault, there can !e no appointmentof damages. The la" has no scales to determine in such cases"hose "rongdoing "eighed most in the compound thatoccasioned the mischief. 5Railroad vs.>orton, (* enn. St. 0B0,*B).7

4&perience "ith jur trials in negligence cases has !rought $mericancourts to revie" to rela& the vigor of the rule ! freel e&ercising the po"erof setting aside verdicts deemed e&cessive, through the device of grantingne" trials, unless reduced damages are stipulated for, amounting to apartial revision of damages ! the courts. It appears to us that the control! the court of the su!ject matter ma !e secured on a moral logical !asisand its judgment adjusted "ith greater nicet to the merits of the litigantsthrough the practice of offsetting their respective responsi!ilities. In the civilla" sstem the desira!le end is not deemed !eond the capacit of itstri!unals.

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1. The sum of SIX ?E>DR4D T?IRT-T?R44 T?OES$>D$>D >I>4T-O>4 5B66,/)17 4SOS, representing loss ofsupport, death indemnit, funeral and related e&penses, moraldamages and attorneKs fees and

(. osts of the suit.

3or lac% of merit, defendantsK counterclaim is dismissed.

On the claim of Aoel astillon, the evidence sho"s that he is not the realo"ner of the motorccle. ?e is not the real part in interest. $ccordingl,his complaint is dismissed.

On the third-part complaint, the third-part defendant enith Insuranceorporation is ordered to pa the sum of 1B,0//.// directl to theplaintiffs. This sum, if paid, should !e deducted from the amount adjudgedin par. 1 a!ove.

SO ORD4R4D.B

The ourt of $ppeals affirmed the decision of the trial court.+?ence the

present petition, !ased on the follo"ing arguments2

1. The ?onora!le ourt of $ppeals committed serious error ofla" and grave a!use of discretion "hen it did not appl theruling of this ?onora!le ourt in the case of hilippine Ra!!itus #ines vs. The ?onora!le Intermediate $ppellate ourt andasiano ascua, 4t. $l., N1;) SR$ 1B;, $ugust 6/, 1))/, asreiterated recentl in the case of 4dna $. Ranera vs. 3reddie?iceta and Aimm OrpillaN6/B SR$ 1/(, $pril (1, 1))), in"hich this ?onora!le ourt enunciated that drivers of vehicles8"ho !ump the rear of another vehicle8 are presumed to !e thecause of the accident.

(. The erroneous conclusion of the ?onora!le Trial ourt asaffirmed ! the ?onora!le ourt of $ppeals that the act of

tailgating, at high speed, constitutes contri!utor negligenceonl, is contrar to the rulings of this ?onora!le ourt in the caseofSanitar Steam #aundr, I>. vs. The ?onora!le ourt of$ppealsN6// SR$ (/, Decem!er 1/, 1)); and the caseof4dna $. Ranera vs. 3reddie ?iceta and Aimm Orpilla N6/BSR$ 1/(, $pril (1, 1))).

6. The ?onora!le ourt of $ppeals grossl erred in itsconclusion that petitionerKs driver "as negligent, "ithout ta%inginto consideration the presumptions enunciated ! this?onora!le ourt in the case of hilippine Ra!!it us #ines vs.The ?onora!le Intermediate $ppellate ourt and asianoascua, 4t. $l., N1;) SR$ 1B;, $ugust 6/, 1))/, and thecase of 4dna $. Ranera vs. 3reddie ?iceta and AimmOrpillaN6/B SR$ 1/(, $pril (1, 1))).

*. $s an alternative relief, petitioner most respectfull assigns aserror the ?onora!le Trial ourtKs computation as to the loss ofearning capacit of Ra astillon. Such computation is contrarto the formula enunciated ! this ?onora!le ourt in the case of:illa Re Transit, Inc. vs. The ?onora!le ourt of $ppeals N61SR$ 011 51)+/7.

0. The ?onora!le Trial ourtKs a"ard of moral damages iscontrar to the pronunciation of this ?onora!le ourt in the caseof$ce ?aulers orporation vs. The ?onora!le ourt of $ppealsand $!ivaN66; SR$ 0+(, $ugust (6, (///, "herein the a"ardof moral damages "as disallo"ed a!sent an evidence of !adfaith or ill-motive.;

etitioner insists that the negligence of Ra astillon "as the pro&imatecause of his unfortunate death and therefore she is not lia!le for damages.

In petitions for revie" on certiorariunder Rule *0 of the Rules of ourt,onl uestions of la" ma !e put into issue. Fuestions of fact cannot !eentertained. The finding of negligence ! the ourt of $ppeals is auestion of fact "hich "e cannot pass upon as it "ould entail going intofactual matters on "hich the finding of negligence "as !ased. $s a rule,factual findings of the trial court, especiall those affirmed ! the ourt of$ppeals, are conclusive on this ourt "hen supported ! the evidence onrecord.)

Our e&amination of the records sho"s that !oth the trial court and theourt of $ppeals carefull considered the factual !ac%drop of the case. >ocogent reason e&ists for distur!ing the follo"ing findings of the trial court,

"hich the ourt of $ppeals affirmed2

Q To the mind of the court, this is e&actl "hat happened.

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$nent the a"ard of loss of earning capacit, "e agree "ith the petitionerthat the trial court erred in the computation of the net earnings.

In considering the earning capacit of the victim as an element ofdamages, the follo"ing factors are considered in determining thecompensa!le amount of lost earnings2 517 the num!er of ears for "hichthe victim "ould other"ise have lived' and 5(7 the rate of loss sustained !

the heirs of the deceased. Aurisprudence provides that the first factor, i.e.,life e&pectanc, is computed ! appling the formula 5(L6 & N;/ - age atdeath7 adopt