SECOND DIVISION
SECOND DIVISIONPOLO S. PANTALEON,G.R.
No.174269Petitioner,Present:CARPIO MORALES,J.,*Acting
Chairperson,-versus-TINGA,VELASCO,LEONARDO-DE
CASTRO,**andBRION,JJ.AMERICAN EXPRESSINTERNATIONAL,
INC.,Promulgated:Respondent.May 8,
2009x---------------------------------------------------------------------------xD
E C I S I O NTINGA,J.:The petitioner, lawyer Polo Pantaleon, his
wife Julialinda, daughter Anna Regina and son Adrian Roberto,
joined an escorted tour ofWestern Europeorganized by Trafalgar
Tours of Europe, Ltd., in October of 1991. The tour group arrived
inAmsterdamin the afternoon of25 October 1991, the second to the
last day of the tour. As the group had arrived late in the city,
they failed to engage in any sight-seeing. Instead, it was agreed
upon that they would start early the next day to see the entire
city before ending the tour.The following day, the last day of the
tour, the group arrived at the Coster Diamond House
inAmsterdamaround 10 minutes before9:00 a.m.The group had agreed
that the visit to Coster should end by9:30 a.m.to allow enough time
to take in a guided city tour ofAmsterdam. The group was ushered
into Coster shortly before9:00 a.m., and listened to a lecture on
the art of diamond polishing that lasted for around ten
minutes.[1]Afterwards, the group was led to the stores showroom to
allow them to select items for purchase. Mrs. Pantaleon had already
planned to purchase even before the tour began a 2.5 karat diamond
brilliant cut, and she found a diamond close enough in
approximation that she decided to buy.[2]Mrs. Pantaleon also
selected for purchase a pendant and a chain,[3]all of which totaled
U.S. $13,826.00.To pay for these purchases, Pantaleon presented his
American Express credit card together with his passport to the
Coster sales clerk. This occurred at around9:15 a.m., or 15 minutes
before the tour group was slated to depart from the store. The
sales clerk took the cards imprint, and asked Pantaleon to sign the
charge slip. The charge purchase was then referred electronically
to respondentsAmsterdamoffice at9:20 a.m.Ten minutes later, the
store clerk informed Pantaleon that his AmexCard had not yet been
approved. His son, who had already boarded the tour bus, soon
returned to Coster and informed the other members of the Pantaleon
family that the entire tour group was waiting for them. As it was
already9:40 a.m., and he was already worried about further
inconveniencing the tour group, Pantaleon asked the store clerk to
cancel the sale. The store manager though asked plaintiff to wait a
few more minutes. After 15 minutes, the store manager informed
Pantaleon that respondent had demanded bank references. Pantaleon
supplied the names of his depositary banks, then instructed his
daughter to return to the bus and apologize to the tour group for
the delay.At around 10:00 a.m, or around 45 minutes after Pantaleon
had presented his AmexCard, and 30 minutes after the tour group was
supposed to have left the store, Coster decided to release the
items even without respondents approval of the purchase. The
spouses Pantaleon returned to the bus. It is alleged that their
offers of apology were met by their tourmates with stony
silence.[4]The tour groups visible irritation was aggravated when
the tour guide announced that the city tour ofAmsterdamwas to be
canceled due to lack of remaining time, as they had to catch a3:00
p.m.ferry atCalais,BelgiumtoLondon.[5]Mrs. Pantaleon ended up
weeping, while her husband had to take a tranquilizer to calm his
nerves.It later emerged that Pantaleons purchase was first
transmitted for approval to respondents Amsterdam office at 9:20
a.m., Amsterdam time, then referred to respondents Manila office at
9:33 a.m, then finally approved at 10:19 a.m.,Amsterdamtime.[6]The
Approval Code was transmitted to respondents Amsterdam office at
10:38 a.m., several minutes after petitioner had already left
Coster, and 78 minutes from the time the purchases were
electronically transmitted by the jewelry store to respondents
Amsterdam office.After the star-crossed tour had ended, the
Pantaleon family proceeded to theUnited Statesbefore returning
toManilaon12 November 1992. While in theUnited States, Pantaleon
continued to use his AmEx card, several times without hassle or
delay, but with two other incidents similar to
theAmsterdambrouhaha. On30 October 1991, Pantaleon purchased golf
equipment amounting to US $1,475.00 using his AmEx card, but he
cancelled his credit card purchase and borrowed money instead from
a friend, after more than 30 minutes had transpired without the
purchase having been approved. On3 November 1991, Pantaleon used
the card to purchase childrens shoes worth $87.00 at a store
inBoston, and it took 20 minutes before this transaction was
approved by respondent.On4 March 1992, after coming back toManila,
Pantaleon sent a letter[7]through counsel to the respondent,
demanding an apology for the inconvenience, humiliation and
embarrassment he and his family thereby suffered for respondents
refusal to provide credit authorization for the aforementioned
purchases.[8]In response, respondent sent a letter dated24 March
1992,[9]stating among others that the delay in authorizing the
purchase from Coster was attributable to the circumstance that the
charged purchase of US $13,826.00 was out of the usual charge
purchase pattern established.[10]Since respondent refused to accede
to Pantaleons demand for an apology, the aggrieved cardholder
instituted an action for damages with the Regional Trial Court
(RTC) ofMakatiCity, Branch 145.[11]Pantaleon prayed that he be
awardedP2,000,000.00, as moral damages;P500,000.00, as exemplary
damages;P100,000.00, as attorneys fees; andP50,000.00 aslitigation
expenses.[12]On5 August 1996, the Makati City RTC rendered a
decision[13]in favor of Pantaleon, awarding himP500,000.00 as moral
damages,P300,000.00 as exemplary damages,P100,000.00 as attorneys
fees, andP85,233.01 as expenses of litigation. Respondent filed a
Notice of Appeal, while Pantaleon moved for partial
reconsideration, praying that the trial court award the increased
amount of moral and exemplary damages he had prayed for.[14]The RTC
denied Pantaleons motion for partial reconsideration, and
thereafter gave due course to respondents Notice of Appeal.[15]On18
August 2006, the Court of Appeals rendered a decision[16]reversing
the award of damages in favor of Pantaleon, holding that respondent
had not breached its obligations to petitioner. Hence, this
petition.The key question is whether respondent, in connection with
the aforementioned transactions, had committed a breach of its
obligations to Pantaleon. In addition, Pantaleon submits that even
assuming that respondent had not been in breach of its obligations,
it still remained liable for damages under Article 21 of the Civil
Code.The RTC had concluded, based on the testimonial
representations of Pantaleon and respondents credit authorizer,
Edgardo Jaurigue, that the normal approval time for purchases was a
matter of seconds. Based on that standard, respondent had been in
clear delay with respect to the three subject transactions. As it
appears, the Court of Appeals conceded that there had been delay on
the part of respondent in approving the purchases. However, it made
two critical conclusions in favor of respondent. First, the
appellate court ruled that the delay was not attended by bad faith,
malice, or gross negligence. Second, it ruled that respondent had
exercised diligent efforts to effect the approval of the purchases,
which were not in accordance with the charge pattern petitioner had
established for himself, as exemplified by the fact that at Coster,
he was making his very first single charge purchase of US$13,826,
and the record of [petitioner]s past spending with [respondent] at
the time does not favorably support his ability to pay for such
purchase.[17]On the premise that there was an obligation on the
part of respondent to approve or disapprove with dispatch the
charge purchase, petitioner argues that the failure to timely
approve or disapprove the purchase constitutedmora solvendion the
part of respondent in the performance of its obligation. For its
part, respondent characterizes the depiction by petitioner of its
obligation to him as to approve purchases instantaneously or in a
matter of seconds.Petitioner correctly cites that undermora
solvendi, the three requisites for a finding of default are that
the obligation is demandable and liquidated; the debtor delays
performance; and the creditor judicially or extrajudicially
requires the debtors performance.[18]Petitioner asserts that the
Court of Appeals had wrongly applied the principle ofmora
accipiendi, which relates to delay on the part of the obligee in
accepting the performance of the obligation by the obligor. The
requisites ofmora accipiendiare: an offer of performance by the
debtor who has the required capacity; the offer must be to comply
with the prestation as it should be performed; and the creditor
refuses the performance without just cause.[19]The error of the
appellate court, argues petitioner, is in relying on the invocation
by respondent of just cause for the delay, since while just cause
is determinative ofmora accipiendi, it is not so with the case
ofmora solvendi.We can see the possible source of confusion as to
which type ofmorato appreciate. Generally, the relationship between
a credit card provider and its card holders is that of
creditor-debtor,[20]with the card company as the creditor extending
loans and credit to the card holder, who as debtor is obliged to
repay the creditor. This relationship already takes exception to
the general rule that as between a bank and its depositors, the
bank is deemed as the debtor while the depositor is considered as
the creditor.[21]Petitioner is asking us, not baselessly, to again
shift perspectives and again see the credit card company as the
debtor/obligor, insofar as it has the obligation to the customer as
creditor/obligee to act promptly on its purchases on
credit.Ultimately, petitioners perspective appears more sensible
than if we were to still regard respondent as the creditor in the
context of this cause of action. If there was delay on the part of
respondent in its normal role as creditor to the cardholder, such
delay would not have been in the acceptance of the performance of
the debtors obligation (i.e., the repayment of the debt), but it
would be delay in the extension of the credit in the first place.
Such delay would not fall undermora accipiendi, which contemplates
that the obligation of the debtor, such as the actual purchases on
credit, has already been constituted. Herein, the establishment of
the debt itself (purchases on credit of the jewelry) had not yet
been perfected, as it remained pending the approval or consent of
the respondent credit card company.Still, in order for us to
appreciate that respondent was inmora solvendi, we will have to
first recognize that there was indeed an obligation on the part of
respondent to act on petitioners purchases with timely dispatch, or
for the purposes of this case, within a period significantly less
than the one hour it apparently took before the purchase at Coster
was finally approved.The findings of the trial court, to our mind,
amply established that the tardiness on the part of respondent in
acting on petitioners purchase at Coster did constitute culpable
delay on its part in complying with its obligation to act promptly
on its customers purchase request, whether such action be favorable
or unfavorable. We quote the trial court, thus:As to the first
issue, both parties have testified that normal approval time for
purchases was a matter of seconds.
Plaintiff testified that his personal experience with the use of
the card was that except for the three charge purchases subject of
this case, approvals of his charge purchases were always obtained
in a matter of seconds.
Defendants credit authorizer Edgardo Jaurique likewise
testified:
Q. You also testified that on normal occasions, the normal
approval time for charges would be 3 to 4 seconds?
A. Yes, Maam.
Both parties likewise presented evidence that the processing and
approval of plaintiffs charge purchase at the Coster Diamond House
was way beyond the normal approval time of a matter of seconds.
Plaintiff testified that he presented his AmexCard to the sales
clerk at Coster, at9:15 a.m.and by the time he had to leave the
store at 10:05 a.m., no approval had yet been received. In fact,
the Credit Authorization System (CAS) record of defendant at
Phoenix Amex shows that defendants Amsterdam office received the
request to approve plaintiffs charge purchase at 9:20 a.m.,
Amsterdam time or 01:20, Phoenix time, and that the defendant
relayed its approval to Coster at 10:38 a.m., Amsterdam time, or
2:38, Phoenix time, or a total time lapse of one hour and [18]
minutes. And even then, the approval was conditional as it directed
in computerese [sic]Positive Identification of Card holder
necessary further charges require bank information due to high
exposure. By Jack Manila.
The delay in the processing is apparent to be undue as shown
from the frantic successive queries of Amexco Amsterdam which
reads: US$13,826. Cardmember buying jewels. ID seen. Advise how
long will this take? They were sent
at01:33,01:37,01:40,01:45,01:52and02:08, all timesPhoenix. Manila
Amexco could be unaware of the need for speed in resolving the
charge purchase referred to it, yet it sat on its hand,
unconcerned.
xxx
To repeat, the Credit Authorization System (CAS) record on
theAmsterdamtransaction shows how AmexcoNetherlandsviewed the delay
as unusually frustrating. In sequence expressed inPhoenixtime
from01:20when the charge purchased was referred for authorization,
defendants own record shows:
01:22the authorization is referred to Manila Amexco
01:32Netherlandsgives information that the identification of the
cardmember has been presented and he is buying jewelries worth US
$13,826.
01:33Netherlandsasks How long will this take?
02:08Netherlandsis still asking How long will this take?
The Court is convinced that defendants delay constitute[s]
breach of its contractual obligation to act on his use of the card
abroad with special handling.[22](Citations omitted)
xxx
Notwithstanding the popular notion that credit card purchases
are approved within seconds, there really is no strict, legally
determinative point of demarcation on how long must it take for a
credit card company to approve or disapprove a customers purchase,
much less one specifically contracted upon by the parties. Yet this
is one of those instances when youd know it when youd see it, and
one hour appears to be an awfully long, patently unreasonable
length of time to approve or disapprove a credit card purchase. It
is long enough time for the customer to walk to a bank a kilometer
away, withdraw money over the counter, and return to the
store.Notably, petitioner frames the obligation of respondent as to
approve or disapprove the purchase in timely dispatch, and not to
approve the purchase instantaneously or within seconds. Certainly,
had respondent disapproved petitioners purchase within seconds or
within a timely manner, this particular action would have never
seen the light of day. Petitioner and his family would have
returned to the bus without delay internally humiliated perhaps
over the rejection of his card yet spared the shame of being held
accountable by newly-made friends for making them miss the chance
to tour the city ofAmsterdam.We do not wish do dispute that
respondent has the right, if not the obligation, to verify whether
the credit it is extending upon on a particular purchase was indeed
contracted by the cardholder, and that the cardholder is within his
means to make such transaction. The culpable failure of respondent
herein is not the failure to timely approve petitioners purchase,
but the more elemental failure to timely act on the same, whether
favorably or unfavorably. Even assuming that respondents credit
authorizers did not have sufficient basis on hand to make a
judgment, we see no reason why respondent could not have promptly
informed petitioner the reason for the delay, and duly advised him
that resolving the same could take some time. In that way,
petitioner would have had informed basis on whether or not to
pursue the transaction at Coster, given the attending
circumstances. Instead, petitioner was left uncomfortably dangling
in the chilly autumn winds in a foreign land and soon forced to
confront the wrath of foreign folk.Moral damages avail in cases of
breach of contract where the defendant acted fraudulently or in bad
faith, and the court should find that under the circumstances, such
damages are due. The findings of the trial court are ample in
establishing the bad faith and unjustified neglect of respondent,
attributable in particular to the dilly-dallying of
respondentsManilacredit authorizer, Edgardo Jaurique.[23]Wrote the
trial court:While it is true that the Cardmembership Agreement,
which defendant prepared, is silent as to the amount of time it
should take defendant to grant authorization for a charge purchase,
defendant acknowledged that the normal time for approval should
only be three to four seconds. Specially so with cards used abroad
which requires special handling, meaning with priority. Otherwise,
the object of credit or charge cards would be lost; it would be so
inconvenient to use that buyers and consumers would be better off
carrying bundles of currency or travellers checks, which can be
delivered and accepted quickly. Such right was not accorded to
plaintiff in the instances complained off for reasons known only to
defendant at that time. This, to the Courts mind, amounts to a
wanton and deliberate refusal to comply with its contractual
obligations, or at least abuse of its rights, under the
contract.[24]xxx
The delay committed by defendant was clearly attended by
unjustified neglect and bad faith, since it alleges to have
consumed more than one hour to simply go over plaintiffs past
credit history with defendant, his payment record and his credit
and bank references, when all such data are already stored and
readily available from its computer. This Court also takes note of
the fact that there is nothing in plaintiffs billing history that
would warrant the imprudent suspension of action by defendant in
processing the purchase. Defendants witness Jaurique admits:
Q. But did you discover that he did not have any outstanding
account?
A. Nothing in arrears at that time.
Q. You were well aware of this fact on this very date?
A. Yes, sir.
Mr. Jaurique further testified that there were no delinquencies
in plaintiffs account.[25]It should be emphasized that the reason
why petitioner is entitled to damages is not simply because
respondent incurred delay, but because the delay, for which
culpability lies under Article 1170, led to the particular injuries
under Article 2217 of the Civil Code for which moral damages are
remunerative.[26]Moral damages do not avail to soothe the plaints
of the simply impatient, so this decision should not be cause for
relief for those who time the length of their credit card
transactions with a stopwatch. The somewhat unusual attending
circumstances to the purchase at Coster that there was a deadline
for the completion of that purchase by petitioner before any delay
would redound to the injury of his several traveling companions
gave rise to the moral shock, mental anguish, serious anxiety,
wounded feelings and social humiliation sustained by the
petitioner, as concluded by the RTC.[27]Those circumstances are
fairly unusual, and should not give rise to a general entitlement
for damages under a more mundane set of facts.We sustain the amount
of moral damages awarded to petitioner by the RTC.There is no
hard-and-fast rule in determining what would be a fair and
reasonable amount of moral damages, since each case must be
governed by its own peculiar facts, however, it must be
commensurate to the loss or injury suffered.[28]Petitioners
original prayer forP5,000,000.00 for moral damages is excessive
under the circumstances, and the amount awarded by the trial court
ofP500,000.00 in moral damages more seemly.Likewise, we deem
exemplary damages available under the circumstances, and the amount
ofP300,000.00 appropriate. There is similarly no cause though to
disturb the determined award ofP100,000.00 as attorneys fees,
andP85,233.01 as expenses of litigation.WHEREFORE, the petition
isGRANTED. The assailed Decision of the Court of Appeals
isREVERSEDandSET ASIDE. The Decision of the Regional Trial Court of
Makati, Branch 145 inCivil Case No. 92-1665 is hereby REINSTATED.
Costs against respondent.SO ORDERED.Republic of the
PhilippinesSUPREME COURTManila
SECOND DIVISIONG.R. No. 116100 February 9, 1996SPOUSES CRISTINO
and BRIGIDA CUSTODIO and SPOUSES LITO and MARIA CRISTINA
SANTOS,petitioners,vs.COURT OF APPEALS, HEIRS OF PACIFICO C. MABASA
and REGIONAL TRIAL COURT OF PASIG, METRO MANILA, BRANCH
181,respondents.
D E C I S I O NREGALADO,J.:This petition for review
oncertiorariassails the decision of respondent Court of Appeals in
CA-G.R. CV No. 29115, promulgated on November 10, 1993, which
affirmed with modification the decision of the trial court, as well
as its resolution dated July 8, 1994 denying petitioner's motion
for reconsideration.1On August 26, 1982, Civil Case No. 47466 for
the grant of an easement of right of way was filed by Pacifico
Mabasa against Cristino Custodio, Brigida R. Custodio, Rosalina R.
Morato, Lito Santos and Maria Cristina C. Santos before the
Regional Trial Court of Pasig and assigned to Branch 22
thereof.2The generative facts of the case, as synthesized by the
trial court and adopted by the Court of Appeals, are as
follows:
Perusing the record, this Court finds that the original
plaintiff Pacifico Mabasa died during the pendency of this case and
was substituted by Ofelia Mabasa, his surviving spouse [and
children].
The plaintiff owns a parcel of land with a two-door apartment
erected thereon situated at Interior P. Burgos St., Palingon,
Tipas, Tagig, Metro Manila. The plaintiff was able to acquire said
property through a contract of sale with spouses Mamerto Rayos and
Teodora Quintero as vendors last September 1981. Said property may
be described to be surrounded by other immovables pertaining to
defendants herein. Taking P. Burgos Street as the point of
reference, on the left side, going to plaintiff's property, the row
of houses will be as follows: That of defendants Cristino and
Brigido Custodio, then that of Lito and Maria Cristina Santos and
then that of Ofelia Mabasa. On the right side (is) that of
defendant Rosalina Morato and then a Septic Tank (Exhibit "D"). As
an access to P. Burgos Street from plaintiff's property, there are
two possible passageways. The first passageway is approximately one
meter wide and is about 20 meters distan(t) from Mabasa's residence
to P. Burgos Street. Such path is passing in between the previously
mentioned row of houses. The second passageway is about 3 meters in
width and length from plaintiff Mabasa's residence to P. Burgos
Street; it is about 26 meters. In passing thru said passageway, a
less than a meter wide path through the septic tank and with 5-6
meters in length, has to be traversed.
When said property was purchased by Mabasa, there were tenants
occupying the remises and who were acknowledged by plaintiff Mabasa
as tenants.However, sometime in February, 1982, one of said tenants
vacated the apartment and when plaintiff Mabasa went to see the
premises, he saw that there had been built an adobe fence in the
first passageway making it narrower in width. Said adobe fence was
first constructed by defendants Santoses along their property which
is also along the first passageway. Defendant Morato constructed
her adobe fence and even extended said fence in such a way that the
entire passageway was enclosed. (Exhibit "1-Santoses and Custodios,
Exh. "D" for plaintiff, Exhs. "1-C", "1-D" and "1-E")And it was
then that the remaining tenants of said apartment vacated the area.
Defendant Ma. Cristina Santos testified that she constructed said
fence because there was an incident when her daughter was dragged
by a bicycle pedalled by a son of one of the tenants in said
apartment along the first passageway. She also mentioned some other
inconveniences of having (at) the front of her house a pathway such
as when some of the tenants were drunk and would bang their doors
and windows. Some of their footwear were even lost. . . .3(Emphasis
in original text; corrections in parentheses supplied)
On February 27, 1990, a decision was rendered by the trial
court, with this dispositive part:
Accordingly, judgment is hereby rendered as follows:
1) Ordering defendants Custodios and Santoses to give plaintiff
permanent access ingress and egress, to the public street;
2) Ordering the plaintiff to pay defendants Custodios and
Santoses the sum of Eight Thousand Pesos (P8,000) as indemnity for
the permanent use of the passageway.
The parties to shoulder their respective litigation
expenses.4Not satisfied therewith, therein plaintiff represented by
his heirs, herein private respondents, went to the Court of Appeals
raising the sole issue of whether or not the lower court erred in
not awarding damages in their favor. On November 10, 1993, as
earlier stated, the Court of Appeals rendered its decision
affirming the judgment of the trial court with modification, the
decretal portion of which disposes as follows:
WHEREFORE, the appealed decision of the lower court is hereby
AFFIRMED WITH MODIFICATION only insofar as the herein grant of
damages to plaintiffs-appellants. The Court hereby orders
defendants-appellees to pay plaintiffs-appellants the sum of Sixty
Five Thousand (P65,000) Pesos as Actual Damages, Thirty Thousand
(P30,000) Pesos as Moral Damages, and Ten Thousand (P10,000) Pesos
as Exemplary Damages. The rest of the appealed decision is affirmed
to all respects.5On July 8, 1994, the Court of Appeals denied
petitioner's motion for reconsideration.6Petitioners then took the
present recourse to us, raising two issues, namely, whether or not
the grant of right of way to herein private respondents is proper,
and whether or not the award of damages is in order.
With respect to the first issue, herein petitioners are already
barred from raising the same. Petitioners did not appeal from the
decision of the courta quogranting private respondents the right of
way, hence they are presumed to be satisfied with the adjudication
therein. With the finality of the judgment of the trial court as to
petitioners, the issue of propriety of the grant of right of way
has already been laid to rest.
For failure to appeal the decision of the trial court to the
Court of Appeals, petitioners cannot obtain any affirmative relief
other than those granted in the decision of the trial court. That
decision of the court below has become final as against them and
can no longer be reviewed, much less reversed, by this Court. The
rule in this jurisdiction is that whenever an appeal is taken in a
civil case, an appellee who has not himself appealed may not obtain
from the appellate court any affirmative relief other than what was
granted in the decision of the lower court. The appellee can only
advance any argument that he may deem necessary to defeat the
appellant's claim or to uphold the decision that is being disputed,
and he can assign errors in his brief if such is required to
strengthen the views expressed by the courta quo. These assigned
errors, in turn, may be considered by the appellate court solely to
maintain the appealed decision on other grounds, but not for the
purpose of reversing or modifying the judgment in the appellee's
favor and giving him other affirmative reliefs.7However, with
respect to the second issue, we agree with petitioners that the
Court of Appeals erred in awarding damages in favor of private
respondents. The award of damages has no substantial legal basis. A
reading of the decision of the Court of Appeals will show that the
award of damages was based solely on the fact that the original
plaintiff, Pacifico Mabasa, incurred losses in the form of
unrealized rentals when the tenants vacated the leased premises by
reason of the closure of the passageway.
However, the mere fact that the plaintiff suffered losses does
not give rise to a right to recover damages. To warrant the
recovery of damages, there must be both a right of action for a
legal wrong inflicted by the defendant, and damage resulting to the
plaintiff therefrom. Wrong without damage, or damage without wrong,
does not constitute a cause of action, since damages are merely
part of the remedy allowed for the injury caused by a breach or
wrong.8There is a material distinction between damages and injury.
Injury is the illegal invasion of a legal right; damage is the
loss, hurt, or harm which results from the injury; and damages are
the recompense or compensation awarded for the damage suffered.
Thus, there can be damage without injury in those instances in
which the loss or harm was not the result of a violation of a legal
duty. These situations are often calleddamnum absque injuria.9In
order that a plaintiff may maintain an action for the injuries of
which he complains, he must establish that such injuries resulted
from a breach of duty which the defendant owed to the plaintiff a
concurrence of injury to the plaintiff and legal responsibility by
the person causing it.10The underlying basis for the award of tort
damages is the premise that an individual was injured in
contemplation of law. Thus, there must first be the breach of some
duty and the imposition of liability for that breach before damages
may be awarded; it is not sufficient to state that there should be
tort liability merely because the plaintiff suffered some pain and
suffering.11Many accidents occur and many injuries are inflicted by
acts or omissions which cause damage or loss to another but which
violate no legal duty to such other person, and consequently create
no cause of action in his favor. In such cases, the consequences
must be borne by the injured person alone. The law affords no
remedy for damages resulting from an act which does not amount to a
legal injury or wrong.12In other words, in order that the law will
give redress for an act causing damage, that act must be not only
hurtful, but wrongful. There must bedamnum et injuria.13If, as may
happen in many cases, a person sustains actual damage, that is,
harm or loss to his person or property, without sustaining any
legal injury, that is, an act or omission which the law does not
deem an injury, the damage is regarded asdamnum absque injuria.14In
the case at bar, although there was damage, there was no legal
injury. Contrary to the claim of private respondents, petitioners
could not be said to have violated the principle of abuse of right.
In order that the principle of abuse of right provided in Article
21 of the Civil Code can be applied, it is essential that the
following requisites concur: (1) The defendant should have acted in
a manner that is contrary to morals, good customs or public policy;
(2) The acts should be willful; and (3) There was damage or injury
to the plaintiff.15The act of petitioners in constructing a fence
within their lot is a valid exercise of their right as owners,
hence not contrary to morals, good customs or public policy. The
law recognizes in the owner the right to enjoy and dispose of a
thing, without other limitations than those established by law.16It
is within the right of petitioners, as owners, to enclose and fence
their property. Article 430 of the Civil Code provides that
"(e)very owner may enclose or fence his land or tenements by means
of walls, ditches, live or dead hedges, or by any other means
without detriment to servitudes constituted thereon."
At the time of the construction of the fence, the lot was not
subject to any servitudes. There was no easement of way existing in
favor of private respondents, either by law or by contract. The
fact that private respondents had no existing right over the said
passageway is confirmed by the very decision of the trial court
granting a compulsory right of way in their favor after payment of
just compensation. It was only that decision which gave private
respondents the right to use the said passageway after payment of
the compensation and imposed a corresponding duty on petitioners
not to interfere in the exercise of said right.
Hence, prior to said decision, petitioners had an absolute right
over their property and their act of fencing and enclosing the same
was an act which they may lawfully perform in the employment and
exercise of said right. To repeat, whatever injury or damage may
have been sustained by private respondents by reason of the
rightful use of the said land by petitioners isdamnum absque
injuria.17A person has a right to the natural use and enjoyment of
his own property, according to his pleasure, for all the purposes
to which such property is usually applied. As a general rule,
therefore, there is no cause of action for acts done by one person
upon his own property in a lawful and proper manner, although such
acts incidentally cause damage or an unavoidable loss to another,
as such damage or loss isdamnum absque injuria.18When the owner of
property makes use thereof in the general and ordinary manner in
which the property is used, such as fencing or enclosing the same
as in this case, nobody can complain of having been injured,
because the incovenience arising from said use can be considered as
a mere consequence of community life.19The proper exercise of a
lawful right cannot constitute a legal wrong for which an action
will lie,20although the act may result in damage to another, for no
legal right has been invaded.21One may use any lawful means to
accomplish a lawful purpose and though the means adopted may cause
damage to another, no cause of action arises in the latter's favor.
An injury or damage occasioned thereby isdamnum absque injuria. The
courts can give no redress for hardship to an individual resulting
from action reasonably calculated to achieve a lawful
means.22WHEREFORE, under the compulsion of the foregoing premises,
the appealed decision of respondent Court of Appeals is hereby
REVERSED and SET ASIDE and the judgment of the trial court is
correspondingly REINSTATED.
Romero and Puno, JJ.,concur.Mendoza, J.,took no part.
Republic of the PhilippinesSUPREME COURTManila
EN BANC
G.R. No. L-12191 October 14, 1918JOSE
CANGCO,plaintiff-appellant,vs.MANILA RAILROAD
CO.,defendant-appellee.
Ramon Sotelo for appellant.Kincaid & Hartigan for
appellee.
FISHER,J.:At the time of the occurrence which gave rise to this
litigation the plaintiff, Jose Cangco, was in the employment of
Manila Railroad Company in the capacity of clerk, with a monthly
wage of P25. He lived in the pueblo of San Mateo, in the province
of Rizal, which is located upon the line of the defendant railroad
company; and in coming daily by train to the company's office in
the city of Manila where he worked, he used a pass, supplied by the
company, which entitled him to ride upon the company's trains free
of charge. Upon the occasion in question, January 20, 1915, the
plaintiff arose from his seat in the second class-car where he was
riding and, making, his exit through the door, took his position
upon the steps of the coach, seizing the upright guardrail with his
right hand for support.
On the side of the train where passengers alight at the San
Mateo station there is a cement platform which begins to rise with
a moderate gradient some distance away from the company's office
and extends along in front of said office for a distance sufficient
to cover the length of several coaches. As the train slowed down
another passenger, named Emilio Zuiga, also an employee of the
railroad company, got off the same car, alighting safely at the
point where the platform begins to rise from the level of the
ground. When the train had proceeded a little farther the plaintiff
Jose Cangco stepped off also, but one or both of his feet came in
contact with a sack of watermelons with the result that his feet
slipped from under him and he fell violently on the platform. His
body at once rolled from the platform and was drawn under the
moving car, where his right arm was badly crushed and lacerated. It
appears that after the plaintiff alighted from the train the car
moved forward possibly six meters before it came to a full
stop.
The accident occurred between 7 and 8 o'clock on a dark night,
and as the railroad station was lighted dimly by a single light
located some distance away, objects on the platform where the
accident occurred were difficult to discern especially to a person
emerging from a lighted car.
The explanation of the presence of a sack of melons on the
platform where the plaintiff alighted is found in the fact that it
was the customary season for harvesting these melons and a large
lot had been brought to the station for the shipment to the market.
They were contained in numerous sacks which has been piled on the
platform in a row one upon another. The testimony shows that this
row of sacks was so placed of melons and the edge of platform; and
it is clear that the fall of the plaintiff was due to the fact that
his foot alighted upon one of these melons at the moment he stepped
upon the platform. His statement that he failed to see these
objects in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious
condition, and it appeared that the injuries which he had received
were very serious. He was therefore brought at once to a certain
hospital in the city of Manila where an examination was made and
his arm was amputated. The result of this operation was
unsatisfactory, and the plaintiff was then carried to another
hospital where a second operation was performed and the member was
again amputated higher up near the shoulder. It appears in evidence
that the plaintiff expended the sum of P790.25 in the form of
medical and surgical fees and for other expenses in connection with
the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court
of First Instance of the city of Manila to recover damages of the
defendant company, founding his action upon the negligence of the
servants and employees of the defendant in placing the sacks of
melons upon the platform and leaving them so placed as to be a
menace to the security of passenger alighting from the company's
trains. At the hearing in the Court of First Instance, his Honor,
the trial judge, found the facts substantially as above stated, and
drew therefrom his conclusion to the effect that, although
negligence was attributable to the defendant by reason of the fact
that the sacks of melons were so placed as to obstruct passengers
passing to and from the cars, nevertheless, the plaintiff himself
had failed to use due caution in alighting from the coach and was
therefore precluded form recovering. Judgment was accordingly
entered in favor of the defendant company, and the plaintiff
appealed.
It can not be doubted that the employees of the railroad company
were guilty of negligence in piling these sacks on the platform in
the manner above stated; that their presence caused the plaintiff
to fall as he alighted from the train; and that they therefore
constituted an effective legal cause of the injuries sustained by
the plaintiff. It necessarily follows that the defendant company is
liable for the damage thereby occasioned unless recovery is barred
by the plaintiff's own contributory negligence. In resolving this
problem it is necessary that each of these conceptions of
liability, to-wit, the primary responsibility of the defendant
company and the contributory negligence of the plaintiff should be
separately examined.
It is important to note that the foundation of the legal
liability of the defendant is the contract of carriage, and that
the obligation to respond for the damage which plaintiff has
suffered arises, if at all, from the breach of that contract by
reason of the failure of defendant to exercise due care in its
performance. That is to say, its liability is direct and immediate,
differing essentially, in legal viewpoint from that presumptive
responsibility for the negligence of its servants, imposed by
article 1903 of the Civil Code, which can be rebutted by proof of
the exercise of due care in their selection and supervision.
Article 1903 of the Civil Code is not applicable to obligations
arising ex contractu, but only to extra-contractual obligations or
to use the technical form of expression, that article relates only
toculpaaquiliana and not toculpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103
and 1104 of the Civil Code, clearly points out this distinction,
which was also recognized by this Court in its decision in the case
of Rakesvs.Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In
commenting upon article 1093 Manresa clearly points out the
difference between "culpa, substantive and independent, which of
itself constitutes the source of an obligation between persons not
formerly connected by any legal tie" andculpaconsidered as an
accident in the performance of an obligation already existing . . .
."
In the Rakes case (supra) the decision of this court was made to
rest squarely upon the proposition that article 1903 of the Civil
Code is not applicable to acts of negligence which constitute the
breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil
Code] are applicable are understood to be those not growing out of
pre-existing duties of the parties to one another. But where
relations already formed give rise to duties, whether springing
from contract or quasi-contract, then breaches of those duties are
subject to article 1101, 1103, and 1104 of the same code.
(Rakesvs.Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at
365.)
This distinction is of the utmost importance. The liability,
which, under the Spanish law, is, in certain cases imposed upon
employers with respect to damages occasioned by the negligence of
their employees to persons to whom they are not bound by contract,
is not based, as in the English Common Law, upon the principle
ofrespondeat superior if it were, the master would be liable in
every case and unconditionally but upon the principle announced in
article 1902 of the Civil Code, which imposes upon all persons who
by their fault or negligence, do injury to another, the obligation
of making good the damage caused. One who places a powerful
automobile in the hands of a servant whom he knows to be ignorant
of the method of managing such a vehicle, is himself guilty of an
act of negligence which makes him liable for all the consequences
of his imprudence. The obligation to make good the damage arises at
the very instant that the unskillful servant, while acting within
the scope of his employment causes the injury. The liability of the
master is personal and direct. But, if the master has not been
guilty of any negligence whatever in the selection and direction of
the servant, he is not liable for the acts of the latter, whatever
done within the scope of his employment or not, if the damage done
by the servant does not amount to a breach of the contract between
the master and the person injured.
It is not accurate to say that proof of diligence and care in
the selection and control of the servant relieves the master from
liability for the latter's acts on the contrary, that proof shows
that the responsibility has never existed. As Manresa says (vol. 8,
p. 68) the liability arising from extra-contractualculpais always
based upon a voluntary act or omission which, without willful
intent, but by mere negligence or inattention, has caused damage to
another. A master who exercises all possible care in the selection
of his servant, taking into consideration the qualifications they
should possess for the discharge of the duties which it is his
purpose to confide to them, and directs them with equal diligence,
thereby performs his duty to third persons to whom he is bound by
no contractual ties, and he incurs no liability whatever if, by
reason of the negligence of his servants, even within the scope of
their employment, such third person suffer damage. True it is that
under article 1903 of the Civil Code the law creates
apresumptionthat he has been negligent in the selection or
direction of his servant, but the presumption is rebuttable and
yield to proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical
provisions, as found in the Porto Rico Code, has held that these
articles are applicable to cases of
extra-contractualculpaexclusively. (Carmonavs.Cuesta, 20 Porto Rico
Reports, 215.)
This distinction was again made patent by this Court in its
decision in the case of Bahiavs.Litonjua and Leynes, (30 Phil.
rep., 624), which was an action brought upon the theory of the
extra-contractual liability of the defendant to respond for the
damage caused by the carelessness of his employee while acting
within the scope of his employment. The Court, after citing the
last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an
injury is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on
the part of the master or employer either in selection of the
servant or employee, or in supervision over him after the
selection, or both; and (2) that that presumption isjuris tantumand
notjuris et de jure, and consequently, may be rebutted. It follows
necessarily that if the employer shows to the satisfaction of the
court that in selection and supervision he has exercised the care
and diligence of a good father of a family, the presumption is
overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on
hisownnegligence and not on that of his servant. This is the
notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in
relations with strangers, the negligence of the servant in
conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in
case of extra-contractualculpabased upon negligence, it is
necessary that there shall have been some fault attributable to the
defendant personally, and that the last paragraph of article 1903
merely establishes a rebuttable presumption, is in complete accord
with the authoritative opinion of Manresa, who says (vol. 12, p.
611) that the liability created by article 1903 is imposed by
reason of the breach of the duties inherent in the special
relations of authority or superiority existing between the person
called upon to repair the damage and the one who, by his act or
omission, was the cause of it.
On the other hand, the liability of masters and employers for
the negligent acts or omissions of their servants or agents, when
such acts or omissions cause damages which amount to the breach of
a contact, is not based upon a mere presumption of the master's
negligence in their selection or control, and proof of exercise of
the utmost diligence and care in this regard does not relieve the
master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or
contractual. Extra-contractual obligation has its source in the
breach or omission of those mutual duties which civilized society
imposes upon it members, or which arise from these relations, other
than contractual, of certain members of society to others,
generally embraced in the concept ofstatus. The legal rights of
each member of society constitute the measure of the corresponding
legal duties, mainly negative in character, which the existence of
those rights imposes upon all other members of society. The breach
of these general duties whether due to willful intent or to mere
inattention, if productive of injury, give rise to an obligation to
indemnify the injured party. The fundamental distinction between
obligations of this character and those which arise from contract,
rests upon the fact that in cases of non-contractual obligation it
is the wrongful or negligent act or omission itself which creates
thevinculum juris, whereas in contractual relations
thevinculumexists independently of the breach of the voluntary duty
assumed by the parties when entering into the contractual
relation.
With respect to extra-contractual obligation arising from
negligence, whether of act or omission, it is competent for the
legislature to elect and our Legislature has so elected whom such
an obligation is imposed is morally culpable, or, on the contrary,
for reasons of public policy, to extend that liability, without
regard to the lack of moral culpability, so as to include
responsibility for the negligence of those person who acts or
mission are imputable, by a legal fiction, to others who are in a
position to exercise an absolute or limited control over them. The
legislature which adopted our Civil Code has elected to limit
extra-contractual liability with certain well-defined exceptions to
cases in which moral culpability can be directly imputed to the
persons to be charged. This moral responsibility may consist in
having failed to exercise due care in the selection and control of
one's agents or servants, or in the control of persons who, by
reason of their status, occupy a position of dependency with
respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken
by contract to render service to another, is wholly different from
that to which article 1903 relates. When the sources of the
obligation upon which plaintiff's cause of action depends is a
negligent act or omission, the burden of proof rests upon plaintiff
to prove the negligence if he does not his action fails. But when
the facts averred show a contractual undertaking by defendant for
the benefit of plaintiff, and it is alleged that plaintiff has
failed or refused to perform the contract, it is not necessary for
plaintiff to specify in his pleadings whether the breach of the
contract is due to willful fault or to negligence on the part of
the defendant, or of his servants or agents. Proof of the contract
and of its nonperformance is sufficientprima facieto warrant a
recovery.
As a general rule . . . it is logical that in case of
extra-contractual culpa, a suing creditor should assume the burden
of proof of its existence, as the only fact upon which his action
is based; while on the contrary, in a case of negligence which
presupposes the existence of a contractual obligation, if the
creditor shows that it exists and that it has been broken, it is
not necessary for him to prove negligence. (Manresa, vol. 8, p. 71
[1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the
breach of a contract to show that the breach was due to the
negligent conduct of defendant or of his servants, even though such
be in fact the actual cause of the breach, it is obvious that proof
on the part of defendant that the negligence or omission of his
servants or agents caused the breach of the contract would not
constitute a defense to the action. If the negligence of servants
or agents could be invoked as a means of discharging the liability
arising from contract, the anomalous result would be that person
acting through the medium of agents or servants in the performance
of their contracts, would be in a better position than those acting
in person. If one delivers a valuable watch to watchmaker who
contract to repair it, and the bailee, by a personal negligent act
causes its destruction, he is unquestionably liable. Would it be
logical to free him from his liability for the breach of his
contract, which involves the duty to exercise due care in the
preservation of the watch, if he shows that it was his servant
whose negligence caused the injury? If such a theory could be
accepted, juridical persons would enjoy practically complete
immunity from damages arising from the breach of their contracts if
caused by negligent acts as such juridical persons can of necessity
only act through agents or servants, and it would no doubt be true
in most instances that reasonable care had been taken in selection
and direction of such servants. If one delivers securities to a
banking corporation as collateral, and they are lost by reason of
the negligence of some clerk employed by the bank, would it be just
and reasonable to permit the bank to relieve itself of liability
for the breach of its contract to return the collateral upon the
payment of the debt by proving that due care had been exercised in
the selection and direction of the clerk?
This distinction betweenculpa aquiliana, as thesourceof an
obligation, andculpa contractualas a mere incident to the
performance of a contract has frequently been recognized by the
supreme court of Spain. (Sentenciasof June 27, 1894; November 20,
1896; and December 13, 1896.) In the decisions of November 20,
1896, it appeared that plaintiff's action aroseex contractu, but
that defendant sought to avail himself of the provisions of article
1902 of the Civil Code as a defense. The Spanish Supreme Court
rejected defendant's contention, saying:
These are not cases of injury caused,without any pre-existing
obligation, by fault or negligence, such as thoseto which article
1902 of the Civil Code relates, but of damages caused by the
defendant's failure to carry out the undertakings imposed by the
contracts . . . .
A brief review of the earlier decision of this court involving
the liability of employers for damage done by the negligent acts of
their servants will show that in no case has the court ever decided
that the negligence of the defendant's servants has been held to
constitute a defense to an action for damages for breach of
contract.
In the case of Johnsonvs.David (5 Phil. Rep., 663), the court
held that the owner of a carriage was not liable for the damages
caused by the negligence of his driver. In that case the court
commented on the fact that no evidence had been adduced in the
trial court that the defendant had been negligent in the employment
of the driver, or that he had any knowledge of his lack of skill or
carefulness.
In the case of Baer Senior & Co's Successorsvs.Compania
Maritima (6 Phil. Rep., 215), the plaintiff sued the defendant for
damages caused by the loss of a barge belonging to plaintiff which
was allowed to get adrift by the negligence of defendant's servants
in the course of the performance of a contract of towage. The court
held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation
of the defendant grew out of a contract made between it and the
plaintiff . . . we do not think that the provisions of articles
1902 and 1903 are applicable to the case."
In the case of Chapmanvs.Underwood (27 Phil. Rep., 374),
plaintiff sued the defendant to recover damages for the personal
injuries caused by the negligence of defendant's chauffeur while
driving defendant's automobile in which defendant was riding at the
time. The court found that the damages were caused by the
negligence of the driver of the automobile, but held that the
master was not liable, although he was present at the time,
saying:
. . . unless the negligent acts of the driver are continued for
a length of time as to give the owner a reasonable opportunity to
observe them and to direct the driver to desist therefrom. . . .
The act complained of must be continued in the presence of the
owner for such length of time that the owner by his acquiescence,
makes the driver's acts his own.
In the case of Yamadavs.Manila Railroad Co. and Bachrach Garage
& Taxicab Co. (33 Phil. Rep., 8), it is true that the court
rested its conclusion as to the liability of the defendant upon
article 1903, although the facts disclosed that the injury
complaint of by plaintiff constituted a breach of the duty to him
arising out of the contract of transportation. The express ground
of the decision in this case was that article 1903, in dealing with
the liability of a master for the negligent acts of his servants
"makes the distinction between private individuals and public
enterprise;" that as to the latter the law creates a rebuttable
presumption of negligence in the selection or direction of
servants; and that in the particular case the presumption of
negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the
court treated plaintiff's action as though founded in tort rather
than as based upon the breach of the contract of carriage, and an
examination of the pleadings and of the briefs shows that the
questions of law were in fact discussed upon this theory. Viewed
from the standpoint of the defendant the practical result must have
been the same in any event. The proof disclosed beyond doubt that
the defendant's servant was grossly negligent and that his
negligence was the proximate cause of plaintiff's injury. It also
affirmatively appeared that defendant had been guilty of negligence
in its failure to exercise proper discretion in the direction of
the servant. Defendant was, therefore, liable for the injury
suffered by plaintiff, whether the breach of the duty were to be
regarded as constitutingculpa aquilianaorculpa contractual. As
Manresa points out (vol. 8, pp. 29 and 69) whether negligence
occurs an incident in the course of the performance of a
contractual undertaking or its itself the source of an
extra-contractual undertaking obligation, its essential
characteristics are identical. There is always an act or omission
productive of damage due to carelessness or inattention on the part
of the defendant. Consequently, when the court holds that a
defendant is liable in damages for having failed to exercise due
care, either directly, or in failing to exercise proper care in the
selection and direction of his servants, the practical result is
identical in either case. Therefore, it follows that it is not to
be inferred, because the court held in the Yamada case that
defendant was liable for the damages negligently caused by its
servants to a person to whom it was bound by contract, and made
reference to the fact that the defendant was negligent in the
selection and control of its servants, that in such a case the
court would have held that it would have been a good defense to the
action, if presented squarely upon the theory of the breach of the
contract, for defendant to have proved that it did in fact exercise
care in the selection and control of the servant.
The true explanation of such cases is to be found by directing
the attention to the relative spheres of contractual and
extra-contractual obligations. The field of non- contractual
obligation is much more broader than that of contractual
obligations, comprising, as it does, the whole extent of juridical
human relations. These two fields, figuratively speaking,
concentric; that is to say, the mere fact that a person is bound to
another by contract does not relieve him from extra-contractual
liability to such person. When such a contractual relation exists
the obligor may break the contract under such conditions that the
same act which constitutes the source of an extra-contractual
obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with
it, by implication, the duty to carry him in safety and to provide
safe means of entering and leaving its trains (civil code, article
1258). That duty, being contractual, was direct and immediate, and
its non-performance could not be excused by proof that the fault
was morally imputable to defendant's servants.
The railroad company's defense involves the assumption that even
granting that the negligent conduct of its servants in placing an
obstruction upon the platform was a breach of its contractual
obligation to maintain safe means of approaching and leaving its
trains, the direct and proximate cause of the injury suffered by
plaintiff was his own contributory negligence in failing to wait
until the train had come to a complete stop before alighting. Under
the doctrine of comparative negligence announced in the Rakes case
(supra), if the accident was caused by plaintiff's own negligence,
no liability is imposed upon defendant's negligence and plaintiff's
negligence merely contributed to his injury, the damages should be
apportioned. It is, therefore, important to ascertain if defendant
was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had
come to a full stop before alighting, the particular injury
suffered by him could not have occurred. Defendant contends, and
cites many authorities in support of the contention, that it is
negligenceper sefor a passenger to alight from a moving train. We
are not disposed to subscribe to this doctrine in its absolute
form. We are of the opinion that this proposition is too badly
stated and is at variance with the experience of every-day life. In
this particular instance, that the train was barely moving when
plaintiff alighted is shown conclusively by the fact that it came
to stop within six meters from the place where he stepped from it.
Thousands of person alight from trains under these conditions every
day of the year, and sustain no injury where the company has kept
its platform free from dangerous obstructions. There is no reason
to believe that plaintiff would have suffered any injury whatever
in alighting as he did had it not been for defendant's negligent
failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this
subject is that expressed in Thompson's work on Negligence (vol. 3,
sec. 3010) as follows:
The test by which to determine whether the passenger has been
guilty of negligence in attempting to alight from a moving railway
train, is that of ordinary or reasonable care. It is to be
considered whether an ordinarily prudent person, of the age, sex
and condition of the passenger, would have acted as the passenger
acted under the circumstances disclosed by the evidence. This care
has been defined to be, not the care which may or should be used by
the prudent man generally, but the care which a man of ordinary
prudence would use under similar circumstances, to avoid injury."
(Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this
court in Picartvs.Smith (37 Phil. rep., 809), we may say that the
test is this; Was there anything in the circumstances surrounding
the plaintiff at the time he alighted from the train which would
have admonished a person of average prudence that to get off the
train under the conditions then existing was dangerous? If so, the
plaintiff should have desisted from alighting; and his failure so
to desist was contributory negligence.1awph!l.netAs the case now
before us presents itself, the only fact from which a conclusion
can be drawn to the effect that plaintiff was guilty of
contributory negligence is that he stepped off the car without
being able to discern clearly the condition of the platform and
while the train was yet slowly moving. In considering the situation
thus presented, it should not be overlooked that the plaintiff was,
as we find, ignorant of the fact that the obstruction which was
caused by the sacks of melons piled on the platform existed; and as
the defendant was bound by reason of its duty as a public carrier
to afford to its passengers facilities for safe egress from its
trains, the plaintiff had a right to assume, in the absence of some
circumstance to warn him to the contrary, that the platform was
clear. The place, as we have already stated, was dark, or dimly
lighted, and this also is proof of a failure upon the part of the
defendant in the performance of a duty owing by it to the
plaintiff; for if it were by any possibility concede that it had
right to pile these sacks in the path of alighting passengers, the
placing of them adequately so that their presence would be
revealed.
As pertinent to the question of contributory negligence on the
part of the plaintiff in this case the following circumstances are
to be noted: The company's platform was constructed upon a level
higher than that of the roadbed and the surrounding ground. The
distance from the steps of the car to the spot where the alighting
passenger would place his feet on the platform was thus reduced,
thereby decreasing the risk incident to stepping off. The nature of
the platform, constructed as it was of cement material, also
assured to the passenger a stable and even surface on which to
alight. Furthermore, the plaintiff was possessed of the vigor and
agility of young manhood, and it was by no means so risky for him
to get off while the train was yet moving as the same act would
have been in an aged or feeble person. In determining the question
of contributory negligence in performing such act that is to say,
whether the passenger acted prudently or recklessly the age, sex,
and physical condition of the passenger are circumstances
necessarily affecting the safety of the passenger, and should be
considered. Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such conditions, as
the nature of their wearing apparel obstructs the free movement of
the limbs. Again, it may be noted that the place was perfectly
familiar to the plaintiff as it was his daily custom to get on and
of the train at this station. There could, therefore, be no
uncertainty in his mind with regard either to the length of the
step which he was required to take or the character of the platform
where he was alighting. Our conclusion is that the conduct of the
plaintiff in undertaking to alight while the train was yet slightly
under way was not characterized by imprudence and that therefore he
was not guilty of contributory negligence.
The evidence shows that the plaintiff, at the time of the
accident, was earning P25 a month as a copyist clerk, and that the
injuries he has suffered have permanently disabled him from
continuing that employment. Defendant has not shown that any other
gainful occupation is open to plaintiff. His expectancy of life,
according to the standard mortality tables, is approximately
thirty-three years. We are of the opinion that a fair compensation
for the damage suffered by him for his permanent disability is the
sum of P2,500, and that he is also entitled to recover of defendant
the additional sum of P790.25 for medical attention, hospital
services, and other incidental expenditures connected with the
treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby
rendered plaintiff for the sum of P3,290.25, and for the costs of
both instances. So ordered.
Arellano, C.J., Torres, Street and Avancea, JJ., concur.
Separate Opinions
MALCOLM,J.,dissenting:
With one sentence in the majority decision, we are of full
accord, namely, "It may be admitted that had plaintiff waited until
the train had come to a full stop before alighting, the particular
injury suffered by him could not have occurred." With the general
rule relative to a passenger's contributory negligence, we are
likewise in full accord, namely, "An attempt to alight from a
moving train is negligenceper se." Adding these two points
together, should be absolved from the complaint, and judgment
affirmed.
Johnson, J., concur.Republic of the PhilippinesSUPREME
COURTManila
SECOND DIVISION
G.R. No. 84698 February 4, 1992
PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM,
BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS, COL. PEDRO SACRO and LT.
M. SORIANO,petitioners,vs.COURT OF APPEALS, HON. REGINA
ORDOEZ-BENITEZ, in her capacity as Presiding Judge of Branch 47,
Regional Trial Court, Manila, SEGUNDA R. BAUTISTA and ARSENIA D.
BAUTISTA,respondents.
Balgos and Perez for petitioners.
Collantes, Ramirez & Associates for private respondents.
PADILLA,J.:A stabbing incident on 30 August 1985 which caused
the death of Carlitos Bautista while on the second-floor premises
of the Philippine School of Business Administration (PSBA) prompted
the parents of the deceased to file suit in the Regional Trial
Court of Manila (Branch 47) presided over by Judge (now Court of
Appeals justice) Regina Ordoez-Benitez, for damages against the
said PSBA and its corporate officers. At the time of his death,
Carlitos was enrolled in the third year commerce course at the
PSBA. It was established that his assailants were not members of
the school's academic community but were elements from outside the
school.
Specifically, the suit impleaded the PSBA and the following
school authorities: Juan D. Lim (President), Benjamin P. Paulino
(Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col.
Pedro Sacro (Chief of Security) and a Lt. M. Soriano (Assistant
Chief of Security). Substantially, the plaintiffs (now private
respondents) sought to adjudge them liable for the victim's
untimely demise due to their alleged negligence, recklessness and
lack of security precautions, means and methods before, during and
after the attack on the victim. During the proceedingsa quo, Lt. M.
Soriano terminated his relationship with the other petitioners by
resigning from his position in the school.
Defendantsa quo(now petitioners) sought to have the suit
dismissed, alleging that since they are presumably sued under
Article 2180 of the Civil Code, the complaint states no cause of
action against them, as jurisprudence on the subject is to the
effect thatacademic institutions, such as the PSBA, are beyond the
ambit of the rule in the afore-stated article.
The respondent trial court, however, overruled petitioners'
contention and thru an order dated 8 December 1987, denied their
motion to dismiss. A subsequent motion for reconsideration was
similarly dealt with by an order dated 25 January 1988. Petitioners
then assailed the trial court's disposition before the respondent
appellate court which, in a decision*promulgated on 10 June 1988,
affirmed the trial court's orders. On 22 August 1988, the
respondent appellate court resolved to deny the petitioners' motion
for reconsideration. Hence, this petition.
At the outset, it is to be observed that the respondent
appellate court primarily anchored its decision on the law
ofquasi-delicts, as enunciated in Articles 2176 and 2180 of the
Civil Code.1Pertinent portions of the appellate court's now
assailed ruling state:Article 2180 (formerly Article 1903) of the
Civil Code is an adoption from the old Spanish Civil Code. The
comments of Manresa and learned authorities on its meaning should
give way to present day changes. The law is not fixed and flexible
(sic); it must be dynamic. In fact, the greatest value and
significance of law as a rule of conduct in (sic) its flexibility
to adopt to changing social conditions and its capacity to meet the
new challenges of progress.
Construed in the light of modern day educational system, Article
2180 cannot be construed in its narrow concept as held in the old
case ofExconde vs.Capuno2andMercado vs.Court of Appeals;3hence, the
ruling in thePalisoc4case that it should apply to all kinds of
educational institutions, academic or vocational.At any rate, the
law holds the teachers and heads of the school staff liable unless
they relieve themselves of such liability pursuant to the last
paragraph of Article 2180 by "proving that they observed all the
diligence to prevent damage." This can only be done at a trial on
the merits of the case.5While we agree with the respondent
appellate court that the motion to dismiss the complaint was
correctly denied and the complaint should be tried on the merits,
we do not however agree with the premises of the appellate court's
ruling.
Article 2180, in conjunction with Article 2176 of the Civil
Code, establishes the rule ofinloco parentis. This Court discussed
this doctrine in the afore-cited cases ofExconde, Mendoza,
Palisocand, more recently, inAmadora vs.Court of Appeals.6In all
such cases, it had been stressed that the law (Article 2180)
plainly provides that the damage should have been caused or
inflicted bypupils or studentsof he educational institution sought
to be held liable for the acts of its pupils or students while in
its custody. However, this material situation does not exist in the
present case for, as earlier indicated, the assailants of
Carlitoswere not students of the PSBA,for whose acts the school
could be made liable.However, does the appellate court's failure to
consider such material facts mean the exculpation of the
petitioners from liability? It does not necessarily follow.
When an academic institution accepts students for enrollment,
there is established acontractbetween them, resulting in bilateral
obligations which both parties are bound to comply with.7For its
part, the school undertakes to provide the student with an
education that would presumably suffice to equip him with the
necessary tools and skills to pursue higher education or a
profession. On the other hand, the student covenants to abide by
the school's academic requirements and observe its rules and
regulations.Institutions of learning must also meet the implicit or
"built-in" obligation of providing their students with an
atmosphere that promotes or assists in attaining its primary
undertaking of imparting knowledge. Certainly, no student can
absorb the intricacies of physics or higher mathematics or explore
the realm of the arts and other sciences when bullets are flying or
grenades exploding in the air or where there looms around the
school premises a constant threat to life and limb. Necessarily,
the school must ensure that adequate steps are taken to maintain
peace and order within the campus premises and to prevent the
breakdown thereof.
Because the circumstances of the present case evince a
contractual relation between the PSBA and Carlitos Bautista, the
rules on quasi-delict do not really govern.8A perusal of Article
2176 shows that obligations arising from quasi-delicts or tort,
also known as extra-contractual obligations, arise only between
parties not otherwise bound by contract, whether express or
implied. However, this impression has not prevented this Court from
determining the existence of a tort even when there obtains a
contract. InAir France vs.Carrascoso(124 Phil. 722), the private
respondent was awarded damages for his unwarranted expulsion from a
first-class seat aboard the petitioner airline. It is noted,
however, that the Court referred to the petitioner-airline's
liability as one arising from tort, not one arising from a contract
of carriage. In effect,Air Franceis authority for the view that
liability from tort may exist even if there is a contract, for the
act that breaks the contract may be also a tort. (Austro-America
S.S. Co. vs. Thomas, 248 Fed. 231).This view was not all that
revolutionary, for even as early as 1918, this Court was already of
a similar mind. InCangco vs.Manila Railroad(38 Phil. 780), Mr.
Justice Fisher elucidated thus:
The field of non-contractual obligation is much broader than
that of contractual obligation, comprising, as it does, the whole
extent of juridical human relations. These two fields, figuratively
speaking, concentric; that is to say, the mere fact that a person
is bound to another by contract does not relieve him from
extra-contractual liability to such person. When such a contractual
relation exists the obligor may break the contract under such
conditions thatthe same act which constitutes a breach of the
contract would have constituted the source of an extra-contractual
obligation had no contract existed between the parties.
Immediately what comes to mind is the chapter of the Civil Code
on Human Relations, particularly Article 21, which provides:
Any person whowilfullycauses loss or injury to another in a
mannerthat is contrary to morals, good custom or public policyshall
compensate the latter for the damage. (emphasis supplied).
Air Francepenalized the racist policy of the airline which
emboldened the petitioner's employee to forcibly oust the private
respondent to cater to the comfort of a white man who allegedly
"had a better right to the seat." InAustro-American,supra, the
public embarrassment caused to the passenger was the justification
for the Circuit Court of Appeals, (Second Circuit), to award
damages to the latter. From the foregoing, it can be concluded that
should the act which breaches a contract be done in bad faith and
be violative of Article 21, then there is a cause to view the act
as constituting a quasi-delict.
In the circumstances obtaining in the case at bar, however,
there is, as yet, no finding that the contract between the school
and Bautista had been breached thru the former's negligence in
providing proper security measures. This would be for the trial
court to determine. And, even if there be a finding of negligence,
the same could give rise generally to a breach of contractual
obligation only. Using the test ofCangco,supra, the negligence of
the school would not be relevant absent a contract. In fact, that
negligence becomes material only because of the contractual
relation between PSBA and Bautista. In other words, a contractual
relation is a conditionsine qua nonto the school's liability. The
negligence of the school cannot exist independently of the
contract, unless the negligence occurs under the circumstances set
out in Article 21 of the Civil Code.
This Court is not unmindful of the attendant difficulties posed
by the obligation of schools, above-mentioned, for conceptually a
school, like a common carrier, cannot be an insurer of its students
againstallrisks. This is specially true in the populous student
communities of the so-called "university belt" in Manila where
there have been reported several incidents ranging from gang wars
to other forms of hooliganism. It would not be equitable to expect
of schools to anticipatealltypes of violent trespass upon their
premises, for notwithstanding the security measures installed, the
same may still fail against an individual or group determined to
carry out a nefarious deed inside school premises and environs.
Should this be the case, the school may still avoid liability by
proving that the breach of its contractual obligation to the
students was not due to its negligence, here statutorily defined to
be the omission of that degree of diligence which is required by
the nature of the obligation and corresponding to the circumstances
of persons, time and place.9As the proceedingsa quohave yet to
commence on the substance of the private respondents' complaint,
the record is bereft of all the material facts. Obviously, at this
stage, only the trial court can make such a determination from the
evidence still to unfold.
WHEREFORE, the foregoing premises considered, the petition is
DENIED. The court of origin (RTC, Manila, Br. 47) is hereby ordered
to continue proceedings consistent with this ruling of the Court.
Costs against the petitioners.
SO ORDERED.
Melencio-Herrera, Paras, Regalado and Nocon, JJ.,
concur.Republic of the PhilippinesSUPREME COURTManila
THIRD DIVISION
G.R. No. 112576 October 26, 1994
(CA-GR CV No. 26571)
METROPOLITAN BANK AND TRUST COMPANY,petitioner,vs.THE HON. COURT
OF APPEALS, RURAL BANK OF PADRE GARCIA, INC. and ISABEL R.
KATIGBAK,respondents.
Makalintal, Barot, Torres & Ibarra for petitioner.
Fornier, Lava & Fornier for private respondents.
ROMERO,J.:This petition forcertiorariseeks to annul the decision
of respondent Court of Appeals dated October 29, 1992 in CA GR CV
No. 26571 affirming the decision of the Regional Trial Court of
Lipa, Batangas Branch XIII for damages, and the Resolution dated
November 11, 1993 denying petitioner's motion for reconsideration
of the aforesaid decision.
The case emanated from a dispute between the Rural Bank of Padre
Garcia, Inc. (RBPG) and Metropolitan Bank and Trust Company (MBTC)
relative to a credit memorandum dated April 5, 1982 from the
Central Bank in the amount of P304,000.00 in favor of RBPG.
The records show that Isabel Katigbak is the president and
director of RBPG, owning 65% of the shares thereof. Metropolitan
Bank and Trust Company (MBTC) is the rural bank's depository bank,
where Katigbak maintains current accounts with MBTC's main office
in Makati as well as its Lipa City branch.
On April 6, 1982, MBTC received from the Central Bank a credit
memo dated April 5, 1982 that its demand deposit account was
credited with P304,000.00 for the account of RBPG, representing
loans granted by the Central Bank to RBPG. On the basis of said
credit memo, Isabel Katigbak issued several checks against its
account with MBTC in the total amount of P300,000.00, two (2) of
which (Metrobank Check Nos. 0069 and 0070) were payable to Dr.
Felipe C. Roque and Mrs. Eliza Roque for P25,000.00 each. Said
checks issued to Dr. and Mrs. Roque were deposited by the Roques
with the Philippine Banking Corporation, Novaliches Branch in
Quezon City. When these checks were forwarded to MBTC on April 12,
1982 for payment (six (6) days from receipt of the Credit Memo),
the checks were returned by MBTC with the annotations "DAIF TNC"
(Drawn Against Insufficient Funds Try Next Clearing) so they were
redeposited on April 14, 1982. Thesewere however again dishonored
and returned unpaid for the following reason: "DAIF TNC NO ADVICE
FROM CB."
After the second dishonor of the two (2) checks, Dr. Felipe
Roque, a member of the Board of Directors of Philippine Banking
Corporation, allegedly went to the Office of Antonio Katigbak, an
officer of RBPG, chiding him for the bouncing checks. In order to
appease the doctor, RBPG paid Dr. Roque P50,000.00 in cash to
replace the aforesaid checks.
On April 13, 1982, Isabel Katigbak who was in Hongkong on
abusiness-vacation trip together with her sons Alfredo and Antonio,
both of whom were also officers of RBPG, received overseas phone
calls from Mrs. Maris Katigbak-San Juan at her residence in San
Lorenzo Village, Makati, informing Isabel Katigbak that a certain
Mr. Rizal Dungo, Assistant Cashier of MBTC insisted on talking to
her (Mrs. San Juan), berating her about the checks which bounced,
saying "Nag-issue kayo ng tseke,wala namang pondo," even if it was
explained to Mr. Dungo that Mrs. San Juan was not in any way
connected with RBPG.
Mrs. Katigbak testified that she informed Mrs. San Juan to
request defendant MBTC to check and verify the records regarding
the aforementioned Central Bank credit memo for P304,000.00 in
favor of RBPG as she was certain that the checks were sufficiently
covered by the CB credit memo as early as April 6, 1994, but the
following day, Mrs. San Juan received another insulting call from
Mr. Dungo ("Bakit kayo nag-issue ng tseke na wala namang
pondo,Three Hundred Thousand na.")1When Mrs. San Juan explained to
him the need to verify the records regarding the Central Bank memo,
he merely brushed it aside, telling her sarcastically that he was
very sure that no such credit memo existed. Mrs. San Juan was
constrained to place another long distance call to Mrs. Katigbak in
Hongkong that evening. Tense and angered, the Katigbaks had to cut
short their Hongkong stay with their respective families and flew
back to Manila, catching the first available flight on April 15,
1982.Immediately upon arrival, Mrs. Katigbak called up MBTC,
through aMr. Cochico, for a re-examination of the records of MBTC
regarding the Central Bank credit memo dated April 5, 1982 for
P304,000.00. Mr. Dungo, to whom Cochico handed over the phone,
allegedly arrogantly said: "Bakit kayo magagalit,wala naman kayong
pondo?" These remarks allegedly so shocked Mrs. Katigbak that her
blood pressure rose to a dangerous level and she had to undergo
medical treatment at the Makati Medical Center for two (2)
days.
Metrobank not only dishonored the checks issued by RBPG, the
latter was issued four (4) debit memos representing service and
penalty charges for the returned checks.
RBPG and Isabel Katigbak filed Civil Case No. V-329 in the RTC
of Lipa, Batangas Branch XIII against the Metropolitan Bank and
Trust Company for damages on April 26, 1983.
The ultimate facts as alleged by the defendant MBTC in its
answer are as follows: that on April 6, 1982, its messenger, Elizer
Gonzales, received from the Central Bank several credit advices on
rural bank accounts, which included that of plaintiff RBPG in the
amount of P304,000.00; that due to the inadvertence of said
messenger, the credit advice issued in favor of plaintiff RBPG was
not delivered to the department in charge of processing the same;
consequently, when MBTC received from the clearing department the
checks in question, the stated balance in RBPG's account was only
P5,498.58 which excluded the unprocessed credit advice of
P304,000.00 resulting in the dishonor of the aforementioned checks;
that as regards the P304,000.00 which wasa re-discounting loan from
the Central Bank, the same was credited only on April 15, 1982
after the Central Bank finally confirmed that a credit advice was
indeed issued in favor of RBPG; that after the confirmation, MBTC
credited the amount of the credit advice to plaintiff RBPG's
account and thru its officers, allegedly conveyed personally on two
occasions its apologies to plaintiffs to show that the bank and its
officers acted with no deliberate intent on their part to cause
injury or damage to plaintiffs, explaining the circumstances that
gave rise to the bouncing checks situation. Metrobank's negligence
arising from their messenger's misrouting of the credit advice
resulting in the return of the checks in question, despite daily
reporting of credit memos and a corresponding daily radio message
confirmation, (as shown by Exhibit "I," the Investigation Report of
the bank's Mr. Valentino Elevado) and Mr. Dungo's improper handling
of clients led to the messenger's dismissal from service and Mr.
Dungo's transfer from Metro Manila to Mindoro.
The threshold issue was whether or not, under the facts and
circumstances of the case, plaintiff may be allowed to recover
actual, moral and exemplary damages, including attorney's fees,
litigation expenses and the costs of the suit. On August 25, 1989,
the RTC of Lipa City rendered a decision2in favor of plaintiffs and
against the defendant MBTC, ordering the latter to:1. pay plaintiff
Isabel Katigbak P50,000.00 as temperate damages;
2. pay P500,000.00 as moral damages, considering that RBPG's
credit standing and business reputation were damaged by the
wrongful acts of defendant's employees, coupled with the rude
treatment received by Isabel Katigbak at the hands of Mr. Dungo,
all of which impelled her to seek medical treatment;
3. pay P100,000.00 as attorney's fees and litigation expenses;
and.
4. pay the costs of suit.
The lower court did not award actual damages in the amount of
P50,000.00 representing the amount of the two (2) checks payable to
Dr. Felipe C. Roque and Mrs. Elisa Roque for P25,000 each, as it
found no showing that Mr. Antonio Katigbak who allegedly paid the
amount was actually reimbursed by plaintiff RBPG. Moreover, the
court held that no actual damages could have been suffered by
plaintiff RBPG because on April 15, 1982, the Central Bank credit
advice in the amount of P304,000 which included the two (2) checks
issued to the Roque spouses in the sum of P50,000.00 were already
credited to the account of RBPG and the service, as well as penalty
charges, were all reversed.
MBTC appealed from the decision to the Court of Appeals in CA GR
CV No. 26571, alleging that the trial court erred in awarding
temperate and moral damages, as well as attorney's fees, plus costs
and expenses of litigation without factual or legal basis
therefor.
On October 29, 1992, the Court of Appeals rendered a
decision3affirming that of the trial court, except for the deletion
of the award of temperate damages, the reduction of moral damages
from P500,000.00 to P50,000.00 in favor of RBPG and P100,000.00 for
Isabel Katigbak and P50,000.00, as attorney's fees.
Plaintiffs-appellees filed a motion for reconsideration of the
decision, questioning the deletion of the award of temperate
damages and the reduction of the award of moral damages and
attorney's fees. The motion was denied.MBTC filed this petition,
presenting the following issues for resolution:
1. whether or not private respondents RBPG and Isabel Rodriguez
are legally entitled to moral damages and