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Torts Finals

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G.R. No. L-51832 April 26, 1989 RAFAEL PATRICIO, petitioner vs. Judge OSCAR LEVISTE, CFI CAPIZ, and BIENVENIDO BACALOCOS Nature: Petition for review on certiorari of the Order of the CFI of Capiz, Branch II, on the motion for reconsideration flied by private respondent Bienvenido Bacalocos, dismissing the complaint for damages against the latter. Facts: Petitioner Rafael Patricio, an ordained Catholic priest, and actively engaged in social and civic affairs in Pilar, Capiz, where he is residing, was appointed Director General of the 1976 Religious and Municipal Town Fiesta of Pilar, Capiz. On 16 May 1976 at about 10pm, while a benefit dance was on-going in connection with the celebration of the town fiesta, petitioner together with two (2) policemen were posted near the gate of the public auditorium to check on the assigned watchers of the gate. Private respondent Bienvenido Bacalocos, President of the Association of Barangay Captains of Pilar, Capiz and a member of the Sangguniang Bayan, who was in a state of drunkenness and standing near the same gate together with his companions, struck a bottle of beer on the table causing an injury on his hand which started to bleed. Then, he approached petitioner in a hostile manner and asked the latter if he had seen his wounded hand, and before petitioner could respond, private respondent, without provocation, hit petitioner's face with his bloodied hand . As a consequence, a commotion ensued and private respondent was brought by the policemen to the municipal building. As a result of the incident, a criminal complaint for Slander by Deed was filed by petitioner with the MTC but the same was dismissed. Subsequently, a complaint for damages was filed by petitioner with the court a quo. In a decision, the court ruled in favor of herein petitioner (as complainant), holding private respondent liable to the former for moral damages as a result of the physical suffering, moral shock and social humiliation caused by private respondent's act of hitting petitioner on the face in public. On 3 August 1979, an order 12 of dismissal of the petitioner's complaint was issued by the trial court, thus — O R D E R 1 RWCB
Transcript
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G.R. No. L-51832 April 26, 1989RAFAEL PATRICIO, petitioner vs. Judge OSCAR LEVISTE, CFI CAPIZ,

and BIENVENIDO BACALOCOS

Nature: Petition for review on certiorari of the Order of the CFI of Capiz, Branch II, on the motion for reconsideration flied by private respondent Bienvenido Bacalocos, dismissing the complaint for damages against the latter.

Facts: Petitioner Rafael Patricio, an ordained Catholic priest, and actively engaged in social and civic affairs in Pilar, Capiz, where he is residing, was appointed Director General of the 1976 Religious and Municipal Town Fiesta of Pilar, Capiz.

On 16 May 1976 at about 10pm, while a benefit dance was on-going in connection with the celebration of the town fiesta, petitioner together with two (2) policemen were posted near the gate of the public auditorium to check on the assigned watchers of the gate. Private respondent Bienvenido Bacalocos, President of the Association of Barangay Captains of Pilar, Capiz and a member of the Sangguniang Bayan, who was in a state of drunkenness and standing near the same gate together with his companions, struck a bottle of beer on the table causing an injury on his hand which started to bleed. Then, he approached petitioner in a hostile manner and asked the latter if he had seen his wounded hand, and before petitioner could respond, private respondent, without provocation, hit petitioner's face with his bloodied hand. As a consequence, a commotion ensued and private respondent was brought by the policemen to the municipal building.

As a result of the incident, a criminal complaint for Slander by Deed was filed by petitioner with the MTC but the same was dismissed. Subsequently, a complaint for damages was filed by petitioner with the court a quo. In a decision, the court ruled in favor of herein petitioner (as complainant), holding private respondent liable to the former for moral damages as a result of the physical suffering, moral shock and social humiliation caused by private respondent's act of hitting petitioner on the face in public.

On 3 August 1979, an order 12 of dismissal of the petitioner's complaint was issued by the trial court, thus —

O R D E R

Upon review of the facts of the case, it appears and the Court finds merit in the motion for reconsideration, particularly noting that there is indeed no showing of compensatory damages being proved.

WHEREFORE, tills Court reconsiders its decision to conform to the facts and the law, namely, that moral and exemplary damages, in order to merit, the plaintiff ought to have proven actual or compensatory damages.

Petitioner: filed the petition at bar arguing that respondent's admission that he slapped herein petitioner in public causing him physical suffering and social humiliation, entitles the latter to moral damages. Actual and compensatory damages need not be proven before an award of moral damages can be granted, so petitioner contends.

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Respondent: the award of moral damages to petitioner is without basis for lack of proof of bad faith on the part of private respondent.

SC: As to the petitioner's claim for moral damages, we find the same to be meritorious. There is no question that moral damages may be recovered in cases where a defendant's wrongful act or omission has caused the complainant physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury. An award of moral damages is allowed in cases specified or analogous to those provided in Article 2219 of the Civil Code, to wit:

ART. 2219. Moral damages may be recovered in the following and analogous cases

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts.

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in article 309;

(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

xxx xxx xxx

Private respondent's contention that there was no bad faith on his part in slapping petitioner on the face and that the incident was merely accidental is not tenable. It was established before the court a quo that there was an existing feud between the families of both petitioner and private respondent and that private respondent slapped the petitioner without provocation in the presence of several persons.

The act of private respondent in hitting petitioner on the face is contrary to morals and good customs and caused the petitioner mental anguish, moral shock, wounded feelings and social humiliation. Private respondent has to take full responsibility for his act and his claim that he was unaware of what he had done to petitioner because of drunkenness is definitely no excuse and does not relieve him of his liability to the latter.

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Pursuant to Art. 21 of the Civil Code in relation to par. (10) of Art. 2219 of the same Code, "any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage."

The fact that no actual or compensatory damage was proven before the trial court, does not adversely affect petitioner's right to recover moral damages. Moral damages may be awarded in appropriate cases referred to in the chapter on human relations of the Civil Code (Articles 19 to 36), without need of proof that the wrongful act complained of had caused any physical injury upon the complainant. 17 It is clear from the report of the Code Commission that the reason underlying an award of damages under Art. 21 of the Civil Code is to compensate the injured party for the moral injury caused upon his person, thus —

... . Fully sensible that there are countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury, the Commission has deemed it necessary, in the interest of justice, to incorporate in the proposed Civil Code the following rule:

ART. 23. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

xxx xxx xxx

In addition to the award of moral damages, exemplary or corrective damages may be imposed upon herein private respondent by way of example or correction for the public good. Exemplary damages are required by public policy to suppress the wanton acts of the offender. They are an antidote so that the poison of wickedness may not run through the body politic. The amount of exemplary damages need not be proved where it is shown that plaintiff is entitled to either moral, temperate or compensatory damages, as the case may be, although such award cannot be recovered as a matter of right.

In cases where exemplary damages are awarded to the injured party, attorney's fees are also recoverable.

WHEREFORE, the petition is GRANTED. The order appealed from is REVERSED and the decision of the court a quo is hereby REINSTATED. -------------------------------------------------------------------------------------------------------------

G.R. No. L-48250 December 28, 1979

GRAND UNION SUPERMARKET, INC. and NELIA SANTOS FANDINO, vs.JOSE J. ESPINO JR., and CA

Nature: This is a petition for certiorari by way of appeal from the decision of the Court of Appeals which reversed and set aside the judgment of the RTC. Defendants are ordered to pay plaintiff-jointly and severally, the sum of Seventy-Five Thousand Pesos (P75,000.00) by way of moral damages. Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages, and Five Thousand Pesos (P5,000.00) as attorney's fee, Costs of both instances shall be taxed against the defendant defendants.

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Facts: In the morning of August 22, 1970, plaintiff Jose J. Espino. Jr., a civil engineer and an executive of Procter and Gamble Philippines, Inc., and his wife and their two daughters went to shop at the defendants' South Supermarket in Makati. While his wife was shopping at the groceries section, plaintiff browsed around the other parts of the market. Finding a cylindrical "rat tail" file which he needed in his hobby and had been wanting to buy, Espino picked up that item from one of the shelves. He held it in his hand thinking that it might be lost, because of its tiny size, if he put it in his wife's grocery cart. In the course of their shopping, Espino and his wife saw the maid of plaintiff's aunt. While talking to this maid, he stuck the file into the front breast pocket of his shirt with a good part of the merchandise exposed.

At the check-out counter, the Espino paid for his wife's purchases which amounted to P77.00, but he forgot to pay for the file. As he was leaving by the exit of the supermarket on his way to his car, carrying two bags of groceries and accompanied by his wife and two daughter, plaintiff was approached by a uniformed guard of the supermarket who said: "Excuse me, Mr., I think you have something in your pocket which you have not paid for.", pointing to his left front breast pocket.

Suddenly reminded of the file, Espino apologized thus: "I am sorry," and he turned back toward the cashier to pay for the file. But the guard stopped him and led him instead toward the rear of the supermarket. The plaintiff protested but the guard was firm saying: "No, Mr., please come with me. It is the procedure of the supermarket to bring people that we apprehend to the back of the supermarket". The time was between 9 and 10 o'clock. A crowd of customers on their way into the supermarket saw Espino being stopped and led by a uniformed guard toward the rear of the supermarket. Plaintiff acquiesced and signaled to his wife and daughters to wait.

"Into a cubicle which was immediately adjacent to the area where deliveries to the supermarket were being made, the plaintiff was ushered. The guard directed him to a table and gave the file to the man seated at the desk. Another man stood beside the plaintiff. The man at the desk looked at the plaintiff and the latter immediately explained the circumstances that led to the finding of the file in his possession. The man at the desk pulled out a sheet of paper and began to ask plaintiff's name, age, residence and other personal data. Plaintiff was asked to make a brief statement, and on the sheet of paper or "Incident Report" he wrote down the following: "While talking to my aunt's maid with my wife, I put this item in my shirt pocket. I forgot to check it out with my wife's items". Meanwhile, the plaintiff's wife joined him and asked what had taken him so long.

The guard who had accosted Espino took him back inside the supermarket in the company of his wife. He and his wife were directed across the main entrance to the shopping area, down the line of check-out counters, to a desk beside the first checkout counter. To the woman seated at the desk, who turned out to be defendant Nelia Santos-Fandino, the guard presented the incident report and the file. Defendant Fandino read the report and addressing the guard remarked: "Ano, nakaw na naman ito". Espino explained and narrated the incident that led to the finding of the file in his pocket, telling Fandino that he was going to pay for the file because he needed it. But this defendant replied: "That is all they say, the people whom we cause not paying for the goods say... They all intended to pay for the things that are found to them." Espino objected and said that he was a regular customer of the supermarket.

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Extracting a P5.00 bill from his pocket, Espino told Fandino that he was paying for the file whose cost was P3.85. Fandino reached over and took the P5.00 bill from plaintiff with these words: "We are fining you P5.00. That is your the fine." Plaintiff was shocked. He and his wife objected vigorously that he was not a common criminal, and they wanted to get back the P5.00. But Fandino told them that the money would be given as an incentive to the guards who apprehend pilferers. People were milling around them and staring at the plaintiff. Plaintiff gave up the discussion. He drew a P50.00 bill and took back the file. Fandino directed him to the nearest check-out counter where he had to fall in line. The people who heard the exchange of words between Fandino and plaintiff continued to stare at him. At the trial, plaintiff expressed his embarrassment and humiliation thus: " I felt as though I wanted to disappear into a hole on the ground". After paying for the file, plaintiff and his wife walked as fast as they could out of the supermarket. His first impulse was to go back to the supermarket that night to throw rocks at its glass windows. But reason prevailed over passion and he thought that justice should take its due course.

Plaintiff was certain during the trial that when he signed the incident report, Exhibit A, inside the cubicle at the back of the supermarket only his brief statement of the facts (Exhibit A-2), aside from his name and personal circumstances, was written thereon. He swore that the following were not in the incident report at, the time he signed it:

Exhibit A-I which says opposite the stenciled word SUBJECT "Shoplifting"

Exhibit A-3 which says opposite the stenciled words Action Taken: Released by Mrs. Fandino after paying the item.

Exhibit A-4 which says opposite the stenciled words Remarks Noted: "Grd. Ebreo requested Grd. Paunil to apprehend subject shoplifter.

Espino 's complaint is founded on Article 21 in relation to Article 2219 of the New Civil Code and prays for moral damages, exemplary damages, attorney s fees and 'expenses of litigation, costs of the suit and the return of the P5.00 fine.

CFI Pasig: dismissed the complaintCA: reversed and set aside the appealed judgment, granting and damages as earlier stated

Petitioner: Respondent Court of Appeals erred in awarding moral and exemplary damages to the respondent Espino under Articles 19 and 21 in relation to Article 2219 considering that —

A. Respondent Espino was guilty of theft;

B. Petitioners legitimately exercised their right of defense of property within the context of Article 429 of the Civil Code negating the application of Articles 19 and 21 of the same Code;

C. Petitioners acted upon probable cause in stopping and investigating respondent Espino for shoplifting and as held in various decisions in the United States on shoplifting, a merchant who acts upon probable cause should not be held liable in damages by the suspected shoplifter;

D. Petitioners did not exercise their right maliciously, wilfully or in bad faith; and/or

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E. The proximate cause of respondent Espino's alleged injury or suffering was his own negligence or forgetfulness; petitioners acted in good faith.

II

Assuming arguendo that petitioners are liable for moral and exemplary damages, the award of P75,000.00 for moral damages and P25,000.00 for exemplary damages by the respondent Court of Appeals is not legally justified and/or is grossly excessive in the premises.

The award of P5,000.00 for attorney's fees by the respondent Court of Appeals is unjustified and unwarranted under Article 2199 of the Civil Code.

SC: We agree with the holding of the respondent appellate court that "the evidence sustains the court's finding that the plaintiff had absolutely no intention to steal the file." The totality of the facts and circumstances as found by the Court of Appeals unerringly points to the conclusion that private respondent did not intend to steal the file and that is act of picking up the file from the open shelf was not criminal nor done with malice or criminal intent for on the contrary, he took the item with the intention of buying and paying for it.

This Court needs only to stress the following undisputed facts which strongly and convincingly uphold the conclusion that private respondent was not "shoplifting." Thus, the facts that private respondent after picking the cylindrical "rat-tail" file costing P3.85 had placed it inside his left front breast pocket with a good portion of the item exposed to view and that he did not conceal it in his person or hid it from sight as well as the fact that he paid the purchases of his wife amounting to P77.00 at the checkout counter of the Supermarket, owed that he was not acting suspiciously or furtively. And the circumstance that he was with his family consisting of his wife Mrs. Caridad Jayme Espino, and their two daughters at the time negated any criminal intent on his part to steal. Moreover, when private respondent was approached by the guard of the Supermarket as he was leaving by the exit to his car who told him, "Excuse me, Mr., I think you have something in your pocket which you have not paid for," Espino, immediately apologized and answered, "I am sorry," which indicated his sincere apology or regrets. He turned back towards the cashier to pay for the file which proved his honesty sincerity and good faith in buying the item, and not to shoplift the same. His brief statement on the sheet of paper called the Incident Report where private respondent wrote the following: "While talking to my aunt's maid with my wife, I put this item in in my shirt pocket. I forgot to check it out with my wife's item," was an instant and contemporaneous explanation of the incident.

Considering further the personal circumstances of the private respondent. his education, position and character showing that he is a graduate Mechanical Engineer from U.P. Class 1950, employed as an executive of Proctor & Gamble Phils., Inc., a corporate manager incharge of motoring and warehousing therein; honorably discharged from the Philippine Army in 1946; a Philippine government pensionado of the United States for six months; member of the Philippine veterans Legion; author of articles published in the Manila Sunday Times and Philippines Free Press; member of the Knights of Columbus, Council No. 3713; son of the late Jose Maria Espino, retired Minister, Department of Foreign Affairs at the Philippine Embassy Washington, We are fully convinced, as the trial and appellate courts were, that private respondent did not intend to steal the article costing P3.85. Nothing in the records intimates or hints whatsoever that private respondent has had any police record of any sort much less suspicion of stealing or shoplifting.

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We do not lay down here any hard-and-fast rule as to what act or combination of acts constitute the crime of shoplifting for it must be stressed that each case must be considered and adjudged on a case-to-case basis and that in the determination of whether a person suspected of shoplifting has in truth and in fact committed the same, all the attendant facts and circumstances should be considered in their entirety and not from any single fact or circumstance from which to impute the stigma of shoplifting on any person suspected and apprehended therefor.

We likewise concur with the Court of Appeals that "(u)pon the facts and under the law, plaintiff has clearly made the cause of action for damages against the defendants. Defendants wilfully caused loss or injury to plaintiff in a manner that was contrary to morals, good customs or public policy, making them amenable to damages under Articles 19 and 21 in relation to Article 2219 of the Civil Code."

That private respondent was falsely accused of shoplifting is evident. The Incident Report (Exhibit A) with the entries thereon under Exhibit A-1 which says opposite the stenciled word SUBJECT: "Shoplifting," Exhibit A-3 which says opposite the stenciled words Action Taken: Relesed by Mrs. Fandino after paying the item," Exhibit A-4 which says opposite the stenciled words Remarks Noted: Grd. Ebreo requested Grd. Paunil to apprehend subject shoplifter," established the opinion, judgment or thinking of the management of petitioner's supermarket upon private respondent's act of picking up the file. ln plain words, private respondent was regarded and pronounced a shoplifter and had committed "shoplifting."

We also affirm the Court of Appeals' finding that petitioner Nelia Santos Fandino, after reading the incident report, remarked the following: "Ano, nakaw na naman ito". Such a remark made in the presence of private respondent and with reference to the incident report with its entries, was offensive to private respondent's dignity and defamatory to his character and honesty. When Espino explained that he was going to pay the file but simply forgot to do so, Fandino doubted the explanation. saying: "That is all what they say, the people whom we caught not paying for the goods say... they all intended to pay for the things that are found to them." Private respondent objected and said that he was a regular customer of the Supermarket.

The admission of Fandino that she required private respondent to pay a fine of P5.00 and did in fact take the P5.00 bill of private respondent tendered by the latter to pay for the file, as a fine which would be given as an incentive to the guards who apprehend pilferers clearly proved that Fandino branded private respondent as a thief which was not right nor justified.

The testimony of the guard that management instructed them to bring the suspected customers to the public area for the people to see those kind of customers in order that they may be embarrassed; that management wanted "the customers to be embarrassed in public so that they will not repeat the stealing again"; that the management asked the guards "to bring these customers to different cashiers in order that they will know that they are pilferers" may indicate the manner or pattern whereby a confirmed or self-confessed shoplifter is treated by the Supermarket management but in the case at bar, there is no showing that such procedure was taken in the case of the private respondent who denied strongly and vehemently the charge of shoplifting.

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Nonetheless, the false accusation charged against the private respondent after detaining and interrogating him by the uniformed guards and the mode and manner in which he was subjected, shouting at him, imposing upon him a fine, threatening to call the police and in the presence and hearing of many people at the Supermarket which brought and caused him humiliation and embarrassment, sufficiently rendered the petitioners liable for damages under Articles 19 and 21 in relation to Article 2219 of the Civil Code. We rule that under the facts of the case at bar, petitioners wilfully caused loss or injury to private respondent in a manner that was contrary to morals, good customs or public policy. It is against morals, good customs and public policy to humiliate, embarrass and degrade the dignity of a person. Everyone must respect the dignity, personality, privacy and peace of mind of his neighbors and other persons (Article 26, Civil Code). And one must act with justice, give everyone his due and observe honesty and good faith (Article 19, Civil Code).

Private respondent is entitled to damages but We hold that the award of P75,000.00 for moral damages and P25,000.00, for exemplary damages is unconscionable and excessive.

While no proof of pecuniary loss is necessary in order that moral, nominal, temperate, liquidated or exemplary damages may be adjudicated, the assessment of such damages, except liquidated ones, is left to the discretion of the court, according to the circumstances of each case (Art. 2216, New Civil Code). In the case at bar, there is no question that the whole incident that befell respondent had arisen in such a manner that was created unwittingly by his own act of forgetting to pay for the file. It was his forgetfulness in checking out the item and paying for it that started the chain of events which led to his embarrassment and humiliation thereby causing him mental anguish, wounded feelings and serious anxiety. Yet, private respondent's act of omission contributed to the occurrence of his injury or loss and such contributory negligence is a factor which may reduce the damages that private respondent may recover (Art. 2214, New Civil Code). Moreover, that many people were present and they saw and heard the ensuing interrogation and altercation appears to be simply a matter of coincidence in a supermarket which is a public place and the crowd of onlookers, hearers or bystanders was not deliberately sought or called by management to witness private respondent's predicament. We do not believe that private respondent was intentionally paraded in order to humiliate or embarrass him because petitioner's business depended for its success and patronage the good will of the buying public which can only be preserved and promoted by good public relations.

As succinctly expressed by Mr. Justice J. B. L. Reyes in his concurring and dissenting opinion in Pangasinan Transportation Company, Inc, vs. Legaspi, 12 SCRA 598, the purpose of moral damages is essentially indemnity or reparation, both punishment or correction. Moral damages are emphatically not intended to enrich a complainant at the expense of a defendant; they are awarded only to enable the injured party to obtain means, diversion or amusements that will serve to alleviate the moral suffering he has undergone, by reason of the defendant's culpable action. In other words, the award of moral damages is aimed at a restoration, within the limits of the possible, of the spiritual status quo ante and, it must be proportionate to the suffering inflicted.

In Our considered estimation and assessment, moral damages in the amount of Five Thousand Pesos (P5,000.00) is reasonable and just to award to private respondent.

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The grant of Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages is unjustified. Exemplary or corrective damages are imposed by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages (Art. 2229, New Civil Code). Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they could be adjudicated (Art. 2223, New Civil Code). Considering that exemplary damages are awarded for wanton acts, that they are penal in character granted not by way of compensation but as a punishment to the offender and as a warning to others as a sort of deterrent, We hold that the facts and circumstances of the case at bar do not warrant the grant of exemplary damages.

In the light of the reduction of the damages, We hereby likewise reduce the original award of P5,000.00 as attorney's fees to (P2,000.00).---------------------------------------------------------------------------------------------------------

G.R. No. L-14986 July 31, 1962

CORNELIO AMARO and JOSE AMARO, vs. AMBROSIO SUMANGUIT

Nature: Appellants filed suit for damages in the CFI of Negros Occidental against the chief of police of the City of Silay. Although not specifically alleged in the complaint, it is admitted by both parties, as shown in their respective briefs, that the action is predicated on Articles 21 and/or 27 of the Civil Code, which provide:

ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

ART. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.

The complaint was dismissed upon appellee's motion in the court below on the ground that it does not state facts sufficient to constitute a cause of action. The only question now before us refers to correctness of the order dismissal.

Facts: Appellant Jose Amaro was assaulted and shot at near the city government building of Silay; that the following day he, together with his father (Cornelio Amaro) and his witnesses, "went to the office of the defendant but instead of obtaining assistance to their complaint they were harassed and terrorized;" that in view thereof they "gave up and renounced their right and interest in the prosecution of the crime . . . .;" that upon advice of the City Mayor given to appellee an investigation (of said crime) was conducted and as a result the city attorney of Silay was about to file or had already filed an information for illegal discharge of firearm against the assailant; and that "having finished the investigation of the crime complained of, the defendant chief of police is now harassing the plaintiffs in their daily work, ordering them thru his police to appear in his office when he is absent, and he is about to order the arrest of the plaintiffs to take their signatures in prepared affidavits exempting the police from any dereliction of duty in their case against the perpetrator of the crime."

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We are of the opinion that the facts set out constitute an actionable dereliction on appellee's part in the light of Article 27 of the Civil Code. That appellants were "harrased and terrorized" may be a conclusion of law and hence improperly pleaded. Their claim for relief, however, is not based on the fact of harassment and terrorization but on appellee's refusal to give them assistance, which it was his duty to do as an officer of the law. The requirement under the aforesaid provision that such refusal must be "without just cause" is implicit in the context of the allegation. The statement of appellee's dereliction is repeated in a subsequent paragraph of the complaint, where it is alleged that "he is about to order the arrest of the plaintiffs" to make them sign affidavits of exculpation in favor of the policemen.

The complaint is, without doubt, imperfectly drafted. It suffers from vagueness and generalization. But all that the Rules require is that there be a showing by a statement of ultimate facts, that the plaintiff his a right and that such right has been violated by the defendant. An action should not be dismissed upon mere ambiguity, indefiniteness or uncertainty, for these are not grounds for a motion to dismiss, under Rule 8, but rather for a bill of particulars according to Rule 16. In two cases decided by this Court, it was observed:

Under the new Rules of Court, an action cannot be dismissed upon the ground that the complaint is vague, ambiguous, or indefinite (see Rule 8, section 1), because the defendant, in such case, may ask for more particulars (Rule 16) or he may compel the plaintiff to disclose more relevant facts under the different methods of discovery provided by the Rules. (Rules 18, 20, 21, 22 and 23.) Professor Sunderland once said "The real test of good pleading under the new rules is whether the information given is sufficient to enable the party to plead and prepare for trial. A legal conclusion may serve the purpose of pleading as well as anything else if it gives the proper information. If the party wants more he may ask for more details in regard to the particular matter that is stated too generally.

At any rate, if respondent's complaint, which was clear enough, had created confusion in petitioner's mind as to the foundation of her cause of action, then it should have moved for a more definite statement of the same before the trial.

The fact, cited by the court below in the order subject to review, that appellants have another recourse (in connection with the crime of illegal discharge of firearm supposedly committed against one of them) as by filing their complaint directly with the city attorney of Silay or by lodging an administrative charge against appellee herein, does not preclude this action for damages under Article 27 of the Civil Code and hence does not justify its dismissal.

THE ORDER APPEALED from is set aside and the case is remanded to the Court of origin for further proceedings. Costs against appellee.--------------------------------------------------------------------------------------------------------------

G.R. No. L-16439 July 20, 1961

ANTONIO GELUZ, vs. CA and OSCAR LAZO

Nature: This petition for certiorari brings up for review question whether the husband of a woman, who voluntarily procured her abortion, could recover damages from physician who caused the same.

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The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a special division of five, sustained the award by a majority vote of three justices as against two, who rendered a separate dissenting opinion.

Facts: Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 — through her aunt Paula Yambot. In 1950 she became pregnant by her present husband before they were legally married. Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the Commission on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the defendant in October 1953. Less than two years later, she again became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he did not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages. Upon application of the defendant Geluz we granted certiorari.

Court of Appeals and the trial court: predicated the award of damages in the sum of P3,000.00 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines.

This we believe to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable of having rights and obligations.

Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no transmission to anyone can take place from on that lacked juridical personality (or juridical capacity as distinguished from capacity to act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil Code, because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive: "provided it be born later with the condition specified in the following article". In the present case, there is no dispute that the child was dead when separated from its mother's womb.

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The prevailing American jurisprudence is to the same effect; and it is generally held that recovery cannot had for the death of an unborn child; and numerous cases collated in the editorial note.

This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to life and physical integrity. Because the parents can not expect either help, support or services from an unborn child, they would normally be limited to moral damages for the illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ. Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case before us, both the trial court and the Court of Appeals have not found any basis for an award of moral damages, evidently because the appellee's indifference to the previous abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and affections. The lower court expressly found, and the majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the third abortion, the appellee does not seem to have taken interest in the administrative and criminal cases against the appellant. His only concern appears to have been directed at obtaining from the doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which his wife has deliberately sought at the hands of a physician would be highminded rather than mercenary; and that his primary concern would be to see to it that the medical profession was purged of an unworthy member rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either the administrative or the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action for damages of which not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an award of damage that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.-----------------------------------------------------------------------------------------------------------

G.R. Nos. L-51171-72June 4, 1990MARIA G. FORD, Substituted by PATRICK G. FORD, vs.

COURT OF APPEALS and SULPICIA FABRIGAR

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Nature: These consolidated petitions seek the review of the decision of CA together with its resolution denying petitioners' MR, which reversed the decision of the trial court and of the then CFI of Capiz, filed by herein private respondent Sulpicia Fabrigar against spouses Vicente and Paciencia Uy and spouses Thomas and Maria Ford.

Facts: Sulpicia Fabrigar (a public school teacher) reported to the precinct (Elementary School of Sta. Cruz, Dumalag, Capiz) to assist the COMELEC in the conduct of the National Referendum. While she was inside Precinct No. 11-a, she saw Elmo Uy, son of the barrio captain of Sta. Cruz, Vicente Uy, got the remark sheet of voter Regalado Firmalino and began to write on said remark sheet. She called the attention of the Referendum Committee, but the Committee did not mind her. So, she advised Elmo Uy not to write anything on the remark sheet of the voter Firmalino. Elmo Uy asked Sulpicia what business of hers (sic) in so doing to which she answered that she was merely advising him. Elmo Uy stood up, pulled out his appointment paper as an observer in the referendum and tore it to pieces saying that it was useless and not respected anyway. Thereafter, Elmo Uy went out of the precinct reported the matter to his father. A few minutes later, Vicente entered the Precinct and shouted at Sulpicia Fabrigar, 'Hijo de puta, why do you interfere with what my son is doing? Why are you pretending to be somebody here in Sta. Cruz? You are a no good headteacher. I do not send my children to this school because of your enviousness.'

While Vicente Uy was leaving the precinct, he further said that he would report Sulpicia Fabrigar to Mrs. Maria Ford. Thirty minutes after Vicente Uy had left the precinct, Maria Ford, owner of the Asturias Sugar Central, arrived very angry, saying, 'Where is Suping, where is Suping?' Sulpicia Fabrigar immediately presented herself, and Maria said, 'Why did you campaign for 'No' according to the barrio captain?' Sulpicia Fabrigar answered, 'I did not campaign for 'No' I even wanted a zero 'No' because you promised to provide electricity in this barrio if nobody votes 'No'. 'Elmo Uy then interrupted their conversation and said that Sulpicia Fabrigar really campaigned for ''No' votes. Maria Ford said, 'It’s true you campaigned for 'No' and why do you still insist on reasoning?’ and then, Maria Ford slapped Sulpicia Fabrigar on the left face. She wanted to retaliate but her sister, Fidelina Frias, held her back and pulled her away. Maria Ford further said “I’ll have you transferred to a far place. You are ungrateful to me. You are always rebelling against me. Get out and go home.” , Sulpicia Fabrigar reported this particular incident to the police authorities of Dumalag, Capiz. She also sent telegrams to the President, to the COMELEC and to the Secretary of National Defense.

Vicente’s version: Benito Facura, upon the request of the chairwoman of the Referendum Committee, Leandra Fagtanac, went to the house of Vicente Uy to inform him that there was trouble in the barrio center. Vicente went to said place and he had a talk with Fagtanac about what happened thereat. Fagtanac informed him that Sulpicia shouted at Elmo Uy; that she requested Sulpicia to keep quiet but the latter continued to shout at Elmo that he should not teach the voters because they were more intelligent than him; that when Elmo showed his appointment papers as referendum observer, Sulpicia Fabrigar tore it to pieces and threw it on the floor; and that as a result of the commotion created by the quarrel, the people scattered away from the precinct.

Upon getting this information, Vicente asked her where was Sulpicia Fabrigar and he was told that she had just left the room. When Vicente was about to leave the precinct, Sulpicia came in. Vicente then addressed her, 'Mrs. Fabrigar, what happened here? Can you not settle this since this is our affair? Sulpicia answered, 'I told Elmo not to teach the voters because they also know what they're doing and why are you inquiring?' Vicente Uy said: 'Why did you

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humiliate Elmo when we have a chairwoman to refer this matter?' (sic) Sulpicia countered, 'You think you are still a barangay captain inside this precinct. It's the headteacher who is powerful in this building.' Vicente Uy said, 'I'm not trying to be somebody here. If you won't believe me, I'd report this matter at the poblacion.' Sulpicia Fabrigar said, 'I don't care to whom you'd report, I'm not afraid, go ahead. 'So, Vicente Uy left with-his jeep. The people were no longer voting, and on the way to the poblacion Vicente Uy thought of asking Maria Ford to pacify Sulpicia Fabrigar, to stop her from molesting and disturbing the people so they could vote. Vicente Uy then believed that Maria Ford, being the godmother of Sulpicia Fabrigar, could pacify her.

Maria Ford asked Vicente Uy how the voting was going along, and the latter told her that Sulpicia Fabrigar was getting uncontrollable in the precinct, that she tore the appointment as observer of his son Elmo, and that the people were not voting anymore. Vicente asked Maria to stop Sulpicia Fabrigar from molesting and disturbing the people. Thereafter, Vicente Uy left to report the matter to the COMELEC Registrar but he did not meet him because he was out. On his way home, he met the Mayor and the Governor and to whom he narrated this incident. The following day, Vicente Uy reported this incident to the police authorities of Dumalag, Capiz and it was entered in the Police Blotter.

Maria Ford’s account: Some people reported to Maria that Sulpicia was screaming at the polling place, and they asked her to stop Sulpicia as she is her (a)hijada and relative because people were going away and not voting anymore. Then came Vicente, the barrio captain, who also asked Maria to intercede with Sulpicia because she was creating trouble, fighting with his son, and many people were leaving the polling place. Maria went to the polling place to find out the truth of the report and also to make the people vote. Upon her arrival at the polling place, Sulpicia immediately shouted, 'Why did you come here, you're helping the barrio captain’ Maria answered, 'I came here because the people and the barrio captain asked me to make you keep quiet and stop this trouble.' Then Sulpicia screamed, 'I'm the headteacher here!' Then Maria Ford started to inquire from the people around whether or not Sulpicia has some trouble with Elmo Uy and whether or not she tore his appointment paper as referendum observer. Suddenly, Sulpicia screamed again saying that Elmo was insulting her. Maria told Elmo to go home, and when Elmo passed between her and Sulpicia, the latter continued to scream insulting words at Elmo. 'Sulpicia even wanted to beat Elmo, and she was trembling. So, laboring under the belief that Sulpicia had already become hysterical, Maria Ford slapped her on the face to calm her down. After this, Sulpicia quieted down momentarily, and then she said to Maria Ford, 'If you're not only old, I'd beat you!' Maria Ford held out her face to Sulpicia Fabrigar and ordered her to hit it, but she did not.

CFI of Capiz, Mambusao Branch: dismissed Sulpicia's complaint and further ordered her to pay Maria Ford P2,000.00 as moral damages, P2,000.00 as exemplary damages, P1,000.00 for attorney's fees and P5,000.00 for expenses of litigation; and also to pay Vicente Uy P2,000.00 as moral damages, P2,000.00 as exemplary damages, P2,000.00 for attorney's fees and P1,000.00 for expenses of litigation, said amounts to bear interest from the date of judgment.

Ratio: According to Sulpicia, upon entering the precinct, Vicente Uy immediately shouted at her, 'Hijo de puta why do you interfere with what my son is doing here? Why are you pretending to be somebody here in Sta. Cruz? You are a no good headteacher…

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It clearly appears that from among the statements of Vicente, only the statement 'Why are you pretending to be somebody in Sta. Cruz' called for comment or action from Sulpicia which, to the mind of the court, is an innocuous expression or statement merely showing disgust, displeasure of, at its worst, anger, and not to slander. It is of a lesser degree and intensity than the words “putang ina mo” Which the Supreme Court in Reyes v. People, L-21528, March 28, 1969, 27 SCRA 686, has stated to be a common expression in the dialect that is often employed not really to slander but rather to express anger or displeasure.

With respect to the other statements of Vicente Uy which did not call for any comment from Sulpicia Fabrigar, her silence should be deemed to be an admission of their truth and truth cannot hurt or insult. Thus, an act or declaration made in the presence and within the observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, may be given in evidence against him. (Rule 130, ROC)

xxx xxx xxx

Maria Ford admitted that she slapped Sulpicia laboring under the belief that the only way to stop a hysteric is to slap and jolt him. There is speciousness in this assertion. Sulpicia even admitted on the witness stand that Maria Ford slapped her so that she would stop with Elmo Uy, but she failed to positively state that by this one slap she was, dishonored, defamed or shamed. She merely felt a deafening sensation, and nothing more. Sulpicia Fabrigar, by her ravings and rantings against Elmo Uy, was already disturbing the peace of mind of the people and scaring them from participating in the referendum process. There was then an emergency, absent any police officer, and as godmother and second cousin by affinity of Sulpicia Fabrigar, Maria Ford thought it her duty to do what she did which nobody would have dared done. In this setting, this court finds that Maria Ford acted within her legal and moral right and duty, for her own peace of mind, to arrest the shameful act of an (a)hijada and relative. To restore peace and order in the polling place and to prevent Sulpicia Fabrigar from further eroding and invading the right of suffrage of others. In so doing, Maria Ford could not have been actuated with malice aforethought of putting Sulpicia Fabrigar into disrepute, but rather to restore her to normal self and bring back order to the referendum process. . .

CA: rejected said conclusions. It reversed the decision of the CFI.

Ratio: We believe that Vicente was very much offended by the action of Mrs. Fabrigar in admonishing former's son, Elmo, who has been shown to have interfered in the voting in Sta. Cruz, Dumalag, Capiz. Unable to swallow the fact that someone has questioned his 'power' as barrio captain, Vicente Uy immediately rushed to the barrio school and there began insulting the lowly school headteacher, Sulpicia.

We cannot clearly see our way through when in disregarding other slanderous remarks of Vicente Uy, the lower court said that "her silence (to those facts) should be deemed an admission of their truth and truth cannot hurt or insult.' The trial court most certainly is in error in this regard.

xxx xxx xxx

It further observed that-

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. . .Ford in performing the act of slapping the school teacher in front of the people was motivated by personal animosity because she has been misinformed that Sulpicia has been campaigning for 'No' votes which was against the wishes of Maria Ford. And taking into account the position held by the victim and the circumstances surrounding the incidents in question, we believe that Maria Ford has by deed slandered plaintiff Sulpicia Fabrigar which would entitle the latter to damages. There can be no circumstance more humiliating for a headteacher of a barrio school than to be seen by the barrio folks being slapped in her face.

Setting aside the decision of the trial court, respondent court ordered Vicente Uy to pay Sulpicia Fabrigar the sum of P5,000.00 as moral damages, P2,000.00 as exemplary damages, and P2,000.00, as attorney's fees; and also ordered Maria Ford to pay Sulpicia Fabrigar the sum of P10,000.00, as moral damages, P2,000.00 as exemplary damages and P2,000.00 as attorney's fees, with costs against both defendants-appellees.-------------------------------------------------------------------------------------------------------------------------

In her petition at bar,

Petitioner Ford: the act of slapping, standing alone and unexplained, would not speak well of the intent of the actor and that to determine the intent, the surrounding stances, particularly those preceding the slapping, should be taken into consideration. It is submitted that this is so since malice, which is an essential element in this type of an offense, is a state of mind and can only be proven by extrinsic evidence. She declares that her act of slapping Sulpicia Fabrigar was not actuated by malice but engendered by a legitimate motive prompted by her desire to calm down a person who appeared to be hysterical and to stop a goddaughter and relative from further creating a scandal. She also assails as exorbitant the award of moral damages and, for alleged lack of legal basis, the awards of exemplary damages and attorney's fees.

Petitioner Uy: he has not slandered Sulpicia Fabrigar; and that the contents of police blotter of the incident in question, telegram of Fabrigar to the President, to the COMELEC and to the Secretary of National Defense constitute admissions against Fabrigar's interest under Section 22, Rule 130 and also judicial admissions under Section 2, Rule 129 which would have barred respondent court from reversing the lower court's finding that he did not utter the words imputed to him and did not insult Fabrigar.

SC: We find both appeals devoid of merit.

The decision of the trial court proceeds from misapprehensions and patently erroneous conclusions of fact. A slap on the face is an unlawful aggression. The face personifies one's dignity and slapping it is a serious personal affront. It is a physical assault coupled with a willful disregard of the integrity of one's person.

This is especially true if the aggrieved party is a school teacher who, in penal law, is a person in authority. Respect for a teacher is required of all, if we are to uphold and enhance the dignity of the teaching profession. The demeaning act of respondent Ford is virtually inexpiable when done, as in this case, in the presence of the public inside a polling precinct during an electoral exercise.

This certainly is one of the extreme circumstances under which ridicule, discredit and contempt could be cast upon the aggrieved party in the community where she performs her functions as a mentor of their children.

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As discerningly observed by the CA, considering the position of private respondent, nothing but shame, humiliation and dishonor could have been heaped upon her by the indignities she had to suffer at the hands of petitioner Ford. Furthermore, there is ample reason to believe that said petitioner's displeasure over the rumor that private respondent was campaigning for "No" votes was sufficient motive for her to deliberately confront private respondent and maltreat the latter.

The act of petitioner Ford in slapping private respondent on the face in public is contrary to morals and good customs and under the circumstances, could not but have caused the latter mental anguish, moral shock, wounded feelings and social humiliation. Full responsibility attached to said act of the late petitioner Ford and the corresponding sanctions should be imposed. Her excuse that she was prompted by her desire to calm down private respondent and prevent her from becoming hysterical is too lame a subterfuge upon which to premise a plea for exoneration. We are not persuaded by such pretense. Private respondent was in the performance of her duty when the incident took place and she had every right to stay in her post. On the other hand, petitioner Ford had no legitimate business inside the polling precinct. Definitely, she barged into the premises in response to the report and importuning of petitioner Uy.

The award of moral damages is allowed in cases specified or analogous to those provided in Article 2219 of the Civil Code. 14 Under Article 21 of said Code, in relation to Paragraph (10), Article 2219 thereof, any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for moral damages. By way of example or correction for the public good, exemplary damages may also be awarded. Attorney's fees are also recoverable.

With respect to petitioner Uy, the gravity of the defamatory words uttered by him depends not only upon their sense and grammatical meaning, judging them separately, but also upon the special circumstances of the case and the 'antecedents or relationship between the offended party and the offender which might tend to prove the intention of the offender at the time.

Suffice it to say that the imputations uttered by petitioner Uy against private respondent also cast further dishonor, discredit and contempt on the latter. Petitioner Uy was a barrio captain. His proven actuations do not speak well of a, public officer, especially when done in the presence of the public during said referendum.

Issue on Evidence: The entry in the police blotter, even if admitted as an exception to the hearsay rule, is not necessarily entitled to full credit as the, entrant did not have personal knowledge of the facts stated and the police agent who prepared the same did not testify in court. Admissibility of evidence is one thing; the weight thereof is another. The court below also declared that an entry in the police blotter is an entry in an official record made in the performance of duty by a public officer and as such, its trustworthiness arises and its correctness cannot be impugned, there being a presumption of regularity in its execution. This is not entirely correct. Entries in official records are only prima facie evidence of the facts therein stated. They are not conclusive.

We are satisfied with Sulpicia's explanation. Her initiative in promptly instituting her complaint clearly manifests her honest intention to vindicate the wrong committed against her. She explained that shortly after the incident between her and petitioner Uy, petitioner Ford came

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and slapped her. Thus, when the report was made by private respondent to the police authorities of Dumalag Capiz, the immediate hurt and humiliation being felt by her was not only the slander committed by petitioner Uy but, primarily and foremost, the slapping by petitioner Ford. Hence, the police report of private respondent which focused on her being slapped by petitioner Ford, although inadvertently omitting the incident with petitioner Uy in view of her emotional state then, should not be construed to mean that private respondent was not slandered by petitioner Uy.

Like an affidavit, a police blotter is taken ex parte hence, in the same manner, it could be just as incomplete and inaccurate, sometimes from either partial suggestions or for want of suggestion or inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that pertains to the subject. 19 It is understandable that the testimony during the trial would be more lengthy and detailed than the matters stated in the police blotter. Petitioner Uy's disquisition on the omission of his intemperate and slanderous outburst in the entries made in the police blotter, or in the telegrams sent by private respondent, cannot outweigh the evidence on -which respondent court based its factual findings and conclusions that he did commit said act. Further, the testimony thereon of private respondent in open court, in our view, has not been successfully rebutted and we have no reason to doubt the veracity thereof.

WHEREFORE, the instant petitions are hereby DENIED for lack of merit. The decision of respondent court is hereby AFFIRMED in toto.--------------------------------------------------------------------------------------------------------------------

G.R. No. L-47739 June 22, 1983

SINGAPORE AIRLINES LIMITED, vs. ERNANI CRUZ PAÑO as Presiding Judge of CFI Rizal, CARLOS E. CRUZ and B. E. VILLANUEVA

Nature: On the basic issue of lack of jurisdiction, petitioner company has elevated to us for review the two Orders of respondent Judge dismissing petitioner's complaint for damages in the first Order, and denying its Motion for Reconsideration in the second.

Facts: Private respondent Carlos E. Cruz was offered employment on August 21, 1974 by SAL as Engineer Officer with the opportunity to undergo a B-707 I conversion training course. Cruz accepted it on August 30, 1974.

3. BONDING. As you win be provided with conversion training you are required to enter into a bond with SIA for a period of 5 years. For this purpose, please inform me of the names and addresses of your sureties as soon as possible.

Twenty six days thereafter, or on October 26, 1974, Cruz entered into an "Agreement for a Course of Conversion Training at the Expense of Singapore Airlines Limited" wherein it was stipulated among others:

4. The Engineer Officer shall agree to remain in the service of the Company for a period of five years from the date of commencement of such aforesaid conversion training if so required by the Company.

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5. In the event of the Engineer Officer:

1. Leaving the service of the company during the period of five years referred to in Clause 4 above, or

2. Being dismissed or having his services terminated by the company for misconduct,

the Engineer Officer and the Sureties hereby bind themselves jointly and severally to pay to the Company as liquidated damages such sums of money as are set out hereunder:

6. The provisions of Clause 5 above shall not apply in a case where an Engineer Officer has his training terminated by the Company for reasons other than misconduct or where, subsequent to the completion of training, he -

1. loses his license to operate as a Flight Engineer due to medical reasons which can in no way be attributable to any act or omission on his part;

2. is unable to continue in employment with the Company because his employment pass or work permit, as the case may be, has been withdrawn or has not been renewed due to no act or omission on his part;

3. has his services terminated by the Company as a result of being replaced by a national Flight Engineer;

4. has to leave the service of the Company on valid compassionate grounds stated to and accepted by the Company in writing. 1

Cruz signed the Agreement with his co-respondent, B. E. Villanueva, as surety.

SAL: filed suit for damages against Cruz and his surety, Villanueva, for violation of the terms and conditions of the aforesaid Agreement. It claimed that Cruz had applied for "leave without pay" and had gone on leave without approval of the application during the second year of the Period of five years. SAL sought the payment of the following sums: liquidated damages of $53,968.00 or its equivalent of P161,904.00 (lst cause of action); $883.91 or about P2,651.73 as overpayment in salary (2nd clause of action); $61.00 or about P183.00 for cost of uniforms and accessories supplied by the company plus $230.00, or roughly P690.00, for the cost of a flight manual (3rd cause of action); and $1,533.71, or approximately P4,601.13 corresponding to the vacation leave he had availed of but to which he was no longer entitled (4th cause Of action); exemplary damages attorney's fees; and costs.

Cruz (in his answer): denied any breach of contract contending that at no time had he been required by petitioner to agree to a straight service of five years under Clause 4 of the Agreement (supra) and that he left the service on "valid compassionate grounds stated to and accepted by the company so that no damages may be awarded against him. And because of petitioner-plaintiff's alleged ungrounded causes of action, Cruz counterclaimed for attorney's fees of P7,000.00.

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The present case therefore involves a money claim arising from an employer-employee relation or at the very least a case arising from employer-employee relations, which under Art. 216 of the Labor Code is vested exclusively with the Labor Arbiters of the National Labor Relations Commission.

Reconsideration thereof having been denied in the Order, SAL availed of the present recourse. We gave due course.

Issue on Labor Law: Whether or not this case is properly cognizable by Courts of justice or by the Labor Arbiters of the National Labor Relations Commission.

SC: Upon the facts and issues involved, jurisdiction over the present controversy must be held to belong to the civil Courts. While seemingly petitioner's claim for damages arises from employer-employee relations, and the latest amendment to Article 217 of the Labor Code under PD No. 1691 and BP Blg. 130 provides that all other claims arising from employer-employee relationship are cognizable by Labor Arbiters, 3 in essence, petitioner's claim for damages is grounded on the "wanton failure and refusal" without just cause of private respondent Cruz to report for duty despite repeated notices served upon him of the disapproval of his application for leave of absence without pay. This, coupled with the further averment that Cruz "maliciously and with bad faith" violated the terms and conditions of the conversion training course agreement to the damage of petitioner removes the present controversy from the coverage of the Labor Code and brings it within the purview of Civil Law.

Clearly, the complaint was anchored not on the abandonment per se by private respondent Cruz of his job as the latter was not required in the Complaint to report back to work but on the manner and consequent effects of such abandonment of work translated in terms of the damages which petitioner had to suffer.

Squarely in point is the ruling enunciated in the case of Quisaba vs. Sta. Ines Melale Veneer & Plywood, Inc.4 the pertinent portion of which reads:

Although the acts complied of seemingly appear to constitute "matter involving employee employer" relations as Quisaba's dismiss was the severance of a pre-existing employee-employer relations, his complaint is grounded not on his dismissal per se, as in fact he does not ask for reinstatement or backwages, but on the manner of his dismiss and the consequent effects of such

Civil law consists of that 'mass of precepts that determine or regulate the relations ... that exist between members of a society for the protection of private interest (1 Sanchez Roman 3).

The "right" of the respondents to dismiss Quisaba should not be confused with the manner in which the right was exercised and the effects flowing therefrom. If the dismiss was done anti-socially or oppressively, as the complaint alleges, then the respondents violated article 1701 of the Civil Code which prohibits acts of oppression by either capital or labor against the other, and article 21, which makers a person liable for damages if he wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy, the sanction for which, by way of moral damages, is provided in article 2219, No. 10 (Cf, Philippine Refining Co. vs. Garcia, L-21962, Sept. 27, 1966, 18 SCRA 107).

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Stated differently, petitioner seeks protection under the civil laws and claims no benefits under the labor Code. The primary relief sought is for liquidated damages for breach of a contractual obligation. The other items demanded are not labor benefits demanded by workers generally taken cognizance of in labor disputes, such as payment of wages, overtime compensation or separation pay. The items claimed are the natural consequences flowing from breach of an obligation, intrinsically a civil dispute.

Additionally, there is a secondary issue involved that is outside the pale of competence of Labor Arbiters. Is the liability of Villanueva one of suretyship or one of guaranty? Unquestionably, this question is beyond the field of specialization of Labor Arbiters.

WHEREFORE, the assailed Orders of respondent Judge are hereby set aside. The records are hereby ordered remanded to the proper Branch of the Regional Trial Court of Quezon City, to which this case belongs, for further proceedings. No costs.-----------------------------------------------------------------------------------------------------------------------

[G.R. No. 120706. January 31, 2000]RODRIGO CONCEPCION, vs. CA and

SPS. NESTOR NICOLAS and ALLEM NICOLAS, respondents.

Nature: Petitioner Rodrigo Concepcion assails in this petition for review on certiorari the Decision of the CA which affirmed the decision of the RTC Pasig ordering him to pay respondent spouses Nestor and Allem Nicolas the sums of P50,000.00 for moral damages, P25,000.00 for exemplary damages and P10,000.00 for attorney’s fees, plus the costs of suit.* Petitioner claims absence of factual and legal basis for the award of damages.

Facts: The courts a quo found that sometime in 1985 the spouses Nestor Nicolas and Allem Nicolas resided at No. 51 M. Concepcion St., San Joaquin, Pasig City, in an apartment leased to them by the owner thereof, Florence "Bing" Concepcion, who also resided in the same compound where the apartment was located. Nestor Nicolas was then engaged in the business of supplying government agencies and private entities with office equipment, appliances and other fixtures on a cash purchase or credit basis. Florence Concepcion joined this venture by contributing capital on condition that after her capital investment was returned to her, any profit earned would be divided equally between her and Nestor.

In the second week of July 1985 Rodrigo Concepcion, brother of the deceased husband of Florence, angrily accosted Nestor at the latter’s apartment and accused him of conducting an adulterous relationship with Florence. He shouted, "Hoy Nestor, kabit ka ni Bing! x x x Binigyan ka pa pala ni Bing Concepcion ng P100,000.00 para umakyat ng Baguio. Pagkaakyat mo at ng asawa mo doon ay bababa ka uli para magkasarilinan kayo ni Bing."

To clarify matters, Nestor went with Rodrigo, upon the latter’s dare, to see some relatives of the Concepcion family who allegedly knew about the relationship. However, those whom they were able to see denied knowledge of the alleged affair. The same accusation was hurled by Rodrigo against Nestor when the two (2) confronted Florence at the terrace of her residence. Florence denied the imputations and Rodrigo backtracked saying that he just heard the rumor from a relative. Thereafter, however, Rodrigo called Florence over the telephone reiterating his accusation and threatening her that should something happen to his sick mother, in case the latter learned about the affair, he would kill Florence.

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As a result of this incident, Nestor Nicolas felt extreme embarrassment and shame to the extent that he could no longer face his neighbors. Florence Concepcion also ceased to do business with him by not contributing capital anymore so much so that the business venture of the Nicolas spouses declined as they could no longer cope with their commitments to their clients and customers. To make matters worse, Allem Nicolas started to doubt Nestor’s fidelity resulting in frequent bickerings and quarrels during which Allem even expressed her desire to leave her husband. Consequently, Nestor was forced to write Rodrigo demanding public apology and payment of damages. Rodrigo pointedly ignored the demand, for which reason the Nicolas spouses filed a civil suit against him for damages.

Rodrigo: denied that he maligned Nestor by accusing him publicly of being Florence's lover. He reasoned out that he only desired to protect the name and reputation of the Concepcion family which was why he sought an appointment with Nestor through Florence's son Roncali to ventilate his feelings about the matter. Initially, he discussed with Nestor certain aspects of the joint venture in a friendly and amiable manner, and then only casually asked the latter about his rumored affair with his sister-in-law.

RTC: ordered him to pay Nestor CA: affirmed the decision

Rodrigo: in awarding damages to private respondents, the Court of Appeals was without legal basis to justify its verdict. The alleged act imputed to him by respondent spouses does not fall under Arts. 26[2] and 2219[3] of the Civil Code since it does not constitute libel, slander, or any other form of defamation. Neither does it involve prying into the privacy of another’s residence or meddling with or disturbing the private life or family relation of another. Petitioner also insists that certain facts and circumstances of the case were manifestly overlooked, misunderstood or glossed over by respondent court which, if considered, would change the verdict. Impugning the credibility of the witnesses for private respondents and the manner by which the testimonial evidence was analyzed and evaluated by the trial court, petitioner criticized the appellate court for not taking into account the fact that the trial judge who penned the decision was in no position to observe first-hand the demeanor of the witnesses of respondent spouses as he was not the original judge who heard the case. Thus, his decision rendered was flawed.

Civ pro: The Court has ruled often enough that its jurisdiction in a petition for review on certiorari under Rule 45 of the Revised Rules of Court is limited to reviewing only errors of law, not of fact, unless the factual findings complained of are devoid of support by the evidence on record or the assailed judgment is based on misapprehension of facts. The reason behind this is that the Supreme Court respects the findings of the trial court on the issue of credibility of witnesses, considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial. Thus it accords the highest respect, even finality, to the evaluation made by the lower court of the testimonies of the witnesses presented before it.

According to petitioner, private respondents’ evidence is inconsistent as to time, place and persons who heard the alleged defamatory statement. We find this to be a gratuitous observation, for the testimonies of all the witnesses for the respondents are unanimous that the defamatory incident happened in the afternoon at the front door of the apartment of the Nicolas spouses in the presence of some friends and neighbors, and later on, with the accusation being repeated in the presence of Florence, at the terrace of her house. That this finding appears to be in conflict with the allegation in the complaint as to the time of the incident bears no

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momentous significance since an allegation in a pleading is not evidence; it is a declaration that has to be proved by evidence. If evidence contrary to the allegation is presented, such evidence controls, not the allegation in the pleading itself, although admittedly it may dent the credibility of the witnesses. But not in the instant case.

It is also argued by petitioner that private respondents failed to present as witnesses the persons they named as eyewitnesses to the incident and that they presented instead one Romeo Villaruel who was not named as a possible witness during the pre-trial proceedings. Charging that Villaruel’s testimony is not credible and should never have been accorded any weight at all, petitioner capitalizes on the fact that a great distance separates Villaruel’s residence and that of private respondents as reflected in their house numbers, the former’s number being No. 223 M. Concepcion St., while that of the Nicolas spouses, No. 51 along the same street. This being so, petitioner concludes, Villaruel could not have witnessed the ugly confrontation between Rodrigo and Nestor. It appears however from Villaruel’s testimony that at the time of the incident complained of, he was staying in an apartment inside the compound adjacent to that of the Nicolas spouses. Whether his apartment was then numbered 223 is not stated. What is definite and clear is his statement that he and Nestor Nicolas were neighbors on 14 July 1985.

There are other inconsistencies pointed out by petitioner in the testimonial evidence of private respondents but these are not of such significance as to alter the finding of facts of the lower court. Minor inconsistencies even guarantee truthfulness and candor, for they erase any suspicion of a rehearsed testimony. Inconsistencies in the testimonies of witnesses with on minor details and collateral matters do not affect the substance of their testimonies.

All told, these factual findings provide enough basis in law for the award of damages by the Court of Appeals in favor of respondents.

SC: We reject petitioner’s posture that no legal provision supports such award, the incident complained of neither falling under Art. 2219 nor Art. 26 of the Civil Code. It does not need further elucidation that the incident charged of petitioner was no less than an invasion on the right of respondent Nestor as a person.

The philosophy behind Art. 26 underscores the necessity for its inclusion in our civil law. The Code Commission stressed in no uncertain terms that the human personality must be exalted. The sacredness of human personality is a concomitant consideration of every plan for human amelioration. The touchstone of every system of law, of the culture and civilization of every country, is how far it dignifies man. If the statutes insufficiently protect a person from being unjustly humiliated, in short, if human personality is not exalted - then the laws are indeed defective. Thus, under this article, the rights of persons are amply protected, and damages are provided for violations of a person’s dignity, personality, privacy and peace of mind.

It is petitioner’s position that the act imputed to him does not constitute any of those enumerated in Arts 26 and 2219. In this respect, the law is clear. The violations mentioned in the codal provisions are not exclusive but are merely examples and do not preclude other similar or analogous acts. Damages therefore are allowable for actions against a person’s dignity, such as profane, insulting, humiliating, scandalous or abusive language. Under Art. 2217 of the Civil Code, moral damages which include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and

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similar injury, although incapable of pecuniary computation, may be recovered if they are the proximate result of the defendant’s wrongful act or omission.

There is no question that private respondent Nestor Nicolas suffered mental anguish, besmirched reputation, wounded feelings and social humiliation as a proximate result of petitioner’s abusive, scandalous and insulting language. Petitioner attempted to exculpate himself by claiming that he made an appointment to see Nestor through a nephew, Roncali, the son of Florence, so he could talk with Nestor to find out the truth about his rumored illicit relationship with Florence. He said that he wanted to protect his nephews and nieces and the name of his late brother (Florence’s husband). How he could be convinced by some way other than a denial by Nestor, and how he would protect his nephews and nieces and his family’s name if the rumor were true, he did not say. Petitioner admitted that he had already talked with Florence herself over the telephone about the issue, with the latter vehemently denying the alleged immoral relationship. Yet, he could not let the matter rest on the strength of the denial of his sister-in-law. He had to go and confront Nestor, even in public, to the latter's humiliation.

Testifying that until that very afternoon of his meeting with Nestor he never knew respondent, had never seen him before, and was unaware of his business partnership with Florence, his subsequent declarations on the witness stand however belie this lack of knowledge about the business venture for in that alleged encounter he asked Nestor how the business was going, what were the collection problems, and how was the money being spent. He even knew that the name of the business, Floral Enterprises, was coined by combining the first syllables of the name Florence and Allem, the name of Nestor’s wife. He said that he casually asked Nestor about the rumor between him and Florence which Nestor denied. Not content with such denial, he dared Nestor to go with him to speak to his relatives who were the source of his information. Nestor went with him and those they were able to talk to denied the rumor.

We cannot help noting this inordinate interest of petitioner to know the truth about the rumor and why he was not satisfied with the separate denials made by Florence and Nestor. He had to confront Nestor face to face, invade the latter’s privacy and hurl defamatory words at him in the presence of his wife and children, neighbors and friends, accusing him - a married man - of having an adulterous relationship with Florence.

This definitely caused private respondent much shame and embarrassment that he could no longer show himself in his neighborhood without feeling distraught and debased. This brought dissension and distrust in his family where before there was none. This is why a few days after the incident, he communicated with petitioner demanding public apology and payment of damages, which petitioner ignored.

If indeed the confrontation as described by private respondents did not actually happen, then there would have been no cause or motive at all for them to consult with their lawyer, immediately demand an apology, and not obtaining a response from petitioner, file an action for damages against the latter. That they decided to go to court to seek redress bespeaks of the validity of their claim. On the other hand, it is interesting to note that while explaining at great length why Florence Concepcion testified against him, petitioner never advanced any reason why the Nicolas spouses, persons he never knew and with whom he had no dealings in the past, would sue him for damages. It also has not escaped our attention that, faced with a lawsuit by private respondents, petitioner sent his lawyer, a certain Atty. Causapin, to talk not to the Nicolas spouses but to Florence, asking her not to be involved in the case, otherwise her name would be messily dragged into it.

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Quite succinctly, Florence told the lawyer that it was not for her to decide and that she could not do anything about it as she was not a party to the court case.

WHEREFORE, in light of the foregoing premises, the assailed Decision of the Court of Appeals affirming the judgment of the Regional Trial Court of Pasig City, Br. 167, holding Rodrigo Concepcion liable to the spouses Nestor Nicolas and Allem Nicolas for P50,000.00 as moral damages, P25,000.00 for exemplary damages, P10,000.00 for attorney's fees, plus costs of suit, is AFFIRMED. ----------------------------------------------------------------------------------------------------------------------------

[G.R. No. 116100. February 9, 1996]SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and MARIA CRISTINA

SANTOS, vs. CA, HEIRS OF PACIFICO MABASA and RTC PASIG

Nature: This petition for review on certiorari assails the decision of respondent Court of Appeals in CA-G.R. CV No. 29115, which affirmed with modification the decision of the trial court, as well as its resolution denying petitioner’s MR.

Facts: Pacifico Mabasa filed Civil Case No. 47466 for the grant of an easement of right of way against Cristino Custodio, Brigida R. Custodio, Rosalina R. Morato, Lito Santos and Maria Cristina C. Santos before the RTC Pasig.

The original plaintiff Pacifico Mabasa died during the pendency of this case and was substituted by Ofelia Mabasa, his surviving spouse [and children].

Pacifico owns a parcel of land with a two-door apartment erected thereon situated at Interior P. Burgos St., Palingon, Tipas, Taguig, Metro Manila. He 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. As an access to P. Burgos Street from plaintiffs 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 premises 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. 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

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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. x x x

RTC: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.

Pacifico: (represented by his heirs, herein private respondents) appealedCA: affirmed the judgment of the trial court with modification

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 P65,000 as Actual Damages, P30,000 as Moral Damages, and P10,000 as Exemplary Damages. The rest of the appealed decision is affirmed to all respects.

SC:1. Appeal - With respect to the first issue, herein petitioners are already barred from raising

the same. Petitioners did not appeal from the decision of the court a quo granting 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.

2. Damages - 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.

There 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.

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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 called damnum absque injuria.

In 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. The 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. Many 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.

In 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 be damnum et injuria. If, 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 as damnum absque injuria.

In 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 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.

The 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. It 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.

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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 is damnum absque injuria.

A 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 is damnum absque injuria. When 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 inconvenience arising from said use can be considered as a mere consequence of community life.

The proper exercise of a lawful right cannot constitute a legal wrong for which an action will lie, although the act may result in damage to another, for no legal right has been invaded. One 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. Any injury or damage occasioned thereby is damnum absque injuria. The courts can give no redress for hardship to an individual resulting from action reasonably calculated to achieve a lawful end by lawful means.

WHEREFORE, 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.---------------------------------------------------------------------------------------------------------------

HEIRS OF SIMEON BORLADO, vs. CA, and SALVACION VDA. DE BULAN, BIENVENIDO BULAN, JR., NORMA B. CLARITO and THE PROVINCIAL SHERIFF OF CAPIZ

Nature: The case is an appeal via certiorari from a decision of the CA affirming the decision of the trial court which dismissed plaintiffs’ complaint for lack of cause of action and ordering as vacated the restraining order and writ of preliminary injunction issued in this case; and

“1. Plaintiffs to be jointly and solidarily liable to defendants the quantity of one hundred (100) cavans of palay every year from 1972 until plaintiffs vacate the premises of the land in question;

“2. Declaring defendants as owner of the land and entitled to possession;

“3. Ordering plaintiffs to pay defendants the sum of P5,000.00 as attorney’s fees and the sum of P5,000.00 as litigation expenses; and “4. To pay the costs of the suit.

Facts: Petitioners are the heirs of Simeon Borlado whose parents were Serapio Borlado and Balbina Bulan. The original owner of the lot in question, Lot No. 2097 of the Pontevedra Cadastre, Maayon, Capiz, was Serapio Borlado, grandfather of petitioners. Serapio sold the lot to Francisco Bacero for P300.00. After the death of Francsico, his widow Amparo Dionisio Vda. de Bacero, in her capacity as legal guardian of her minor children, sold it (the lot) to the Spouses Bienvenido Bulan and Salvacion Borbon, through a Deed of Absolute Sale.

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Upon the execution of the Deed of Sale and even prior thereto, actual possession of Lot No. 2057 was with the vendees-spouses Bulans in view of a loan obtained by Francisco Bacero from them in December 1947. Exercising their right of ownership under the Deed of Sale, Salvacion Borbon Vda. de Bulan declared the lot in her name in 1900 for taxation purposes under Tax Declaration No. 2232. She paid the corresponding taxes. Salvacion and her co-defendants-appellees’ possession of the lot was continuous, peaceful, uninterrupted, adverse and exclusive until November 4, 1972, when petitioners forcibly entered and wrested physical possession thereof from them.

Respondents: (on Nov. 23) filed with the Municipal Court of Maayon, Capiz a complaint for ejectment docketed against petitioners.

MTC: decided in favor of the respondents whereby the petitioners, their agents, tenants, privies and members of their families were ordered to vacate Lot No. 2079 and deliver possession to the respondents together with all improvements and standing crops; to pay said respondents One Hundred (100) cavans of palay annually from 1972 to the present or in the total amount of 1,100 cavans of palay; and to pay the sum of P5,000.00 as reimbursement for the amount respondents had paid their lawyer to protect their rights; and, the costs of suit.

Instead of appealing the adverse decision to the CFI, petitioners filed the present case with the Regional Trial Court. This case was dismissed for lack of cause of action.

CA: affirmed in toto the appealed decision.

Issue: The issue raised is whether the Court of Appeals erred in ruling that respondents were the owners of the lot in question.

SC: We deny the petition. The issue is factual. In an appeal via certiorari, we may not review the findings of fact of the Court of Appeals. When supported by substantial evidence, the findings of fact of the Court of Appeals are conclusive and binding on the parties and are not reviewable by this Court, unless the case falls under any of the exceptions to the rule.

Petitioner failed to prove that the case falls within the exceptions. The Supreme Court is not a trier of facts. It is not our function to review, examine and evaluate or weigh the probative value of the evidence presented. A question of fact would arise in such event. Questions of fact cannot be raised in an appeal via certiorari before the Supreme Court and are not proper for its consideration.

Nevertheless, as a matter of law, the trial court and the Court of Appeals erred in holding petitioners liable to pay respondents one hundred (100) cavans of palay every year from 1972 until they vacate the premises of the land in question.

The one hundred cavans of palay was awarded as a form of damages. We cannot sustain the award. “Palay” is not legal tender currency in the Philippines.

WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Court of Appeals in CA-G. R. CV No. 18980 with modification that petitioners’ liability to pay respondents one hundred (100) cavans of palay every year from 1972 until petitioners vacate the land in question is deleted, for lack of basis.----------------------------------------------------------------------------------------------------------------

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G.R. No. L-8385 March 24, 1914LUCIO ALGARRA, vs. SIXTO SANDEJAS

Nature: This is a civil action for personal injuries received from a collision (on July 9, 1912) with the Sandejas' automobile due to the negligence of Sandejas, who was driving the car. The negligence of Sandejas is not questioned and this case involves only the amount of damages which should be allowed.

Facts: As a result of the injuries received, Algarra was obliged to spend ten days in the hospital. After being discharged from the hospital, he received medical attention from a private practitioner for several days. On the trial the he testified that he had done no work since the accident, and that he was not yet entirely recovered. It is not clear at what time plaintiff became entirely well again, but as to the doctor to whom he described himself as being well, stated that this was about the last of July, and the trial took place September 19, two months' pay would seem sufficient for the actual time lost from his work. Plaintiff further testified that he paid the doctor P8 and expended P2 for medicines. This expenses, amounting in all to P110 should also be allowed.

Plaintiff sold the products of a distillery on a 10 per cent commission and made an average of P50 per month. He had about twenty regular customers who, it seems, purchased in small quantities, necessitating regular and frequent deliveries. Since the accident, his wife had done something in a small way to keep up this business but the total orders taken by her would not net them over P15. He lost all his regular customers. It took him about four years to build up the business he had at the time of the accident, and he could not say how long it would take him to get back the business he had lost.

lower court: (while recognizing the justness of the claim) refused to allow him anything for injury to his business due to his enforced absence therefrom, on the ground that the doctrine of Marcelo vs. Velasco (11 Phil., Rep., 277) is opposed to such allowance.

Ratio: ". . . with regard to the offense of lesiones, for example, the civil liability is almost always limited to indemnity for damage to the party aggrieved for the time during which he was incapacitated for work; . . ."

This statement, however, derives its force, not from any provision of the law applicable to lesiones, but is a mere deduction from the operation of the law upon the cases arising under it. That the interpretation placed upon this statement of Viada by the lower court is either not correct, or that it does not apply to actions for personal injuries under article 1902 of the Civil Code, is apparent from the decisions of the supreme court of Spain, to which a more extended reference will be made further on in this opinion. There is nothing said in the decision in question prohibiting the allowance of compensatory damages, nor does there seem to be anything contained therein opposed to the allowance of such damages occurring subsequent to the institution of the action. In fact, it appears from the following quotation that the court would have been disposed to consider favorably the plaintiff's claim for injury to her business had the evidence presented it.

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No evidence was then offered by the plaintiff to show that this slight lameness in any way interfered with the conduct of her business or that she could make any less amount therein than she could make if she did not suffer from this direct. The court, therefore, did not err in allowing her no further damages on this account, because there was no evidence that she had suffered any.

The alleged damages which the court refused to entertain in that case and under the discussion of which appears the above quotation from Viada, were for pain and suffering the plaintiff may have experienced. The court said: "For the profits which the plaintiff failed to obtain, spoken of in the latter part of this article, the plaintiff was allowed to recover, and the question is, whether the value of the loss which she suffered can be extended to pain which she experienced by reason of the accident."

Actions for damages such as the case at bar are based upon article 1902 of the Civil Code, which reads as follows: "A person who, by act or omission, causes damage to another where there is fault or negligence shall be obliged to repair the damage so done."

Of this article, the supreme court of Spain, in its decision of February 7, 1900, in considering the indemnity imposed by it, said: "It is undisputed that said reparation, to be efficacious and substantial, must rationally include the generic idea of complete indemnity, such as is defined and explained in article 1106 of the said (Civil) Code.

Articles 1106 and 1107 of the Civil Code read as follows:

1106. Indemnity for losses and damages includes not only the amount of the loss which may have been suffered, but also that of the profit which the creditor may have failed to realize, reserving the provisions contained in the following articles.

1107. The losses and damages for which a debtor in good faith is liable, are those foreseen or which may have been foreseen, at the time of constituting the obligation, and which may be a necessary consequence of its nonfulfillment.

In case of fraud, the debtor shall be liable for all those which clearly may originate from the nonfulfillment of the obligation.

Fraud is not an element of the present case, and we are not therefore concerned with it. The liability of the present defendant includes only those damages which were "foreseen or may have been foreseen" at the time of the accident, and which are the necessary and immediate consequences of his fault. In discussing the question of damages under the civil law, Gutierrez (vol. 4, pp. 64, 65) says:

In the impossibility of laying down a surer rule, the Code understands known damages to be those which in the prudent discernment of the judge merit such a qualification, although their consequences may not be direct, immediate inevitable.

If it is a question of losses occasioned through other causes, except fraud, and the contracting parties have not covenanted any indemnity for the case of nonfulfillment, then the reparation of the losses or damages shall only comprise those that fault. This rule may not be very clear, but is the only one possible in a matter more of the domain of prudence than of law.

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This doctrine is also affirmed in the more recent decision of March 18, 1909, in the following words: "For the calculation of the damages claimed, it is necessary, pursuant to the provisions of article 924 of the Law of Civil Procedure, to give due regard to the nature of the obligation that was unfulfilled and to the reasonable consequences of its nonfulfillment, because the conviction sought can be imposed only when there exists a natural and true relation between such nonfulfillment and damages, whatever, reason there may be to demand them on another account."

In the case of Garcia Gamo vs. Compania Madrilena de Alumbrado, etc., it appeared that an employee of the defendant company whose duty it was to clean and light the street lamps left as stepladder leaning against a tree which stood in a public promenade. The seven-year old son of the plaintiff climbed the tree by means of the ladder, and while endeavoring to cut some branches fell to the ground, sustaining severe injuries which eventually caused his death. The plaintiff lost in the lower courts and on appeal to the supreme court the decision of those lower courts was affirmed with the following statement;

The court here simply held that the injury to the child could not be considered as the probable consequence of an injury which could have been foreseen from the act of the company's employee in leaving the ladder leaning against the tree.

These authorities are sufficient to show that liability for acts ex delicto under the Civil Code is precisely that embraced within the "proximate cause" of the Anglo-Saxon law of torts.

The general rule, as frequently stated, is that in order that an act omission may be the proximate cause of an injury, the injury must be the natural and probable consequence of the act or omission and such as might have been foreseen by an ordinarily responsible and prudent man, in the light of the attendant circumstances, as likely to result therefrom . . .

According to the latter authorities, foreseeableness, as an element of proximate cause, does not depend upon whether an ordinarily reasonable and prudent man would or ought in advance to have anticipated the result which happened, but whether, if such result and the chain of events connecting it with the act complained of had occurred to his mind, the same would have seemed natural and probable and according to the ordinary course of nature.

Thus, as said in one case, "A person guilty of negligence, or an unlawful act, should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, would at the time of the negligent or unlawful act have thought reasonable to follow, if they had occurred to his mind."

The view which I shall endeavor to justify is that, for the purpose of civil liability, those consequences, and those only, are deemed "immediate," "proximate," or, to anticipate a little, "natural and probable," which a person of average competence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was "immediate" or not does not matter. That which a man actually foresees is to him, at all events, natural and probable.

There is another line of definitions which have for their basis "the natural and probable consequences" or "the direct and immediate consequences" of the defendant's act.

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SC: The rules for the measure of damages, once that liability is determined, are, however, somewhat different. The Civil Code requires that the defendant repair the damage caused by his fault or negligence. No distinction is made therein between damage caused maliciously and intentionally and damages caused through mere negligence in so far as the civil liability of the wrongdoer in concerned. Nor is the defendant required to do more than repair the damage done, or, in other words, to put the plaintiff in the same position, so far as pecuniary compensation can do so, that he would have been in had the damage not been inflicted. In this respect there is a notable difference between the two systems. Under the Anglo-SAxon law, when malicious or willful intention to cause the damage is an element of the defendant's act, it is quite generally regarded as an aggravating circumstance for which the plaintiff is entitled to more than mere compensation for the injury inflicted. These are called exemplary or punitive damages, and no provision is made for them in article 1902 of the Civil Code.

Again it is quite common under the English system to award what is called nominal damages where there is only a technical violation of the plaintiff's rights resulting in no substantial injury to him. This branch of damages is also unknown under the Civil Code. If no damages have actually occurred there can be none to repair and the doctrine of nominal damages is not applicable. Thus it has been often held by the supreme court of Spain that a mere noncompliance with the obligations of a contract is not sufficient to sustain a judgment for damages. It must be shown that damages actually existed. Again, in its decision of January 9, 1897, that high tribunal said that as a logical consequence of the requirements of articles 1101, 1718, and 1902 that he who causes damages must repair them, their existence must be proved.

In at least one case decided by this court we held in effect that nominal damages could not be allowed.

The purpose of the law in awarding actual damages is to repair the wrong that has been done, to compensate for the injury inflicted, and not to impose a penalty. Actual damages are not dependent on nor graded by the intent with which the wrongful act is done."

"The words "actual damages" shall be construed to include all damages that the plaintiff may he has suffered in respect to his property, business, trade, profession, or occupation, and no other damages whatever."

Compensatory damage' as indicated by the word employed to characterize them, simply make good or replace the loss caused by the wrong. They proceed from a sense of natural justice, and are designed to repair that of which one has been deprived by the wrong of another." "Compensatory damages' are such as awarded to compensate the injured party for caused by the wrong, and must be only such as make just and fair compensation, and are due when the wrong is established, whether it was committed maliciously — that is, with evil intention — or not.

Finally, this court has itself held that actual damages are the extent of the recovery allowed to the plaintiff. In Marker vs. Garcia (5 Phil., Rep., 557), which was an action for damages for breach of contract, this court said: "Except in those cases where the law authorizes the imposition of punitive or exemplary damages, the party claiming damages must establish by competent evidence the amount of such damages, and courts cannot give judgment for a greater amount than those actually proven."

We are of the opinion that the requirements of article 1902, that the defendant repair the damage done can only mean what is set forth in the above definitions,

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Anything short of that would not repair the damages and anything beyond that would be excessive. Actual compensatory damages are those allowed for tortious wrongs under the Civil Code; nothing more, nothing less.

According to the text of article 1106 of the Civil Code, which, according to the decision of February 7, 1990 (referred to above), is the generic conception of what article 1902 embraces, actual damages include not only loss already suffered, but loss of profits which may not have been realized. The allowance of loss of prospective profits could hardly be more explicitly provided for. But it may not be amiss to refer to the decisions of the supreme court of Spain for its interpretation of this article. The decisions are numerous upon this point. The decisions are as epitomized by Sanchez Roman, interprets article 1106 as follows:

Pursuant to articles 1106 and 1107 of the same Code, which govern in general the matter of indemnity due for the nonfulfillment of obligations, the indemnity comprises, not only the value of loss suffered, but also that of the prospective profit that was not realized, and the obligation of the debtor in good faith is limited to such losses and damages as were foreseen or might have been foreseen at the time the obligation was incurred and which are a necessary consequence of his failure of fulfillment. Losses and damages under such limitations and frustrated profits must, therefore, be proved directly by means of the evidence the law authorizes.

In this respect the law of damages under article 1902, as laid down by the decisions of the supreme court of Spain, has been indirectly modified by the present Code of Civil Procedure so that the finding of the lower court as to the amount of damages is not conclusive on appeal.

Actual damages, under the American system, include pecuniary recompense for pain and suffering, injured feelings, and the like. Article 1902, as interpreted by this court in Marcelo vs. Velasco (11 Phil., Rep., 287), does not extend to such incidents. Aside from this exception, actual damages, in this jurisdiction, in the sense that they mean just compensation for the loss suffered, are practically synonymous with actual damages under the American system.

The measure of damages is an ultimate fact, to be determined from the evidence submitted to the court. The question is sometimes a nice one to determine, whether the offered evidence in such as sought to be considered by the court in fixing the quantum of damages; and while the complexity of human affairs is such that two cases are seldom exactly alike, a thorough discussion of each case may permit of their more or less definite classification, and develop leading principles which will be of great assistance to a court in determining the question, not only of damages, but of the prior one of negligence. We are of the opinion that as the Code is so indefinite (even though from necessity) on the subject of damages arising from fault or negligence, the bench and bar should have access to and avail themselves of those great, underlying principles which have been gradually and conservatively developed and thoroughly tested in Anglo-Saxon courts. A careful and intelligent application of these principles should have a tendency to prevent mistakes in the rulings of the court on the evidence offered, and should assist in determining damages, generally, with some degree of uniformity.

The case at bar involves actual incapacity of the plaintiff for two months, and loss of the greater portion of his business. As to the damages resulting from the actual incapacity of the plaintiff to attend to his business there is no question. They are, of course, to be allowed on the basis of his earning capacity, which in this case, is P50 per month. the difficult question in the present case is to determine the damage which has results to his business through his enforced

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absence. In Sanz vs. Lavin Bros. (6 Phil. Rep., 299), this court, citing numerous decisions of the supreme court of Spain, held that evidence of damages "must rest upon satisfactory proof of the existence in reality of the damages alleged to have been suffered." But, while certainty is an essential element of an award of damages, it need not be a mathematical certainty. That this is true is adduced not only from the personal injury cases from the supreme court of Spain which we have discussed above, but by many cases decided by this court, reference to which has already been made. As stated in Joyce on Damages, section 75, "But to deny the injured party the right to recover any actual damages in cases of torts because they are of such a nature a cannot be thus certainly measured, would be to enable parties to profit by and speculate upon their own wrongs; such is not the law."

As to the elements to be considered in estimating the damage done to plaintiff's business by reason of his accident, this same author, citing numerous authorities, has the following to say: It is proper to consider the business the plaintiff is engaged in, the nature and extent of such business, the importance of his personal oversight and superintendence in conducting it, and the consequent loss arising from his inability to prosecure it.

The business of the present plaintiff required his immediate supervision. All the profits derived therefrom were wholly due to his own exertions. Nor are his damages confined to the actual time during which he was physically incapacitated for work, as is the case of a person working for a stipulated daily or monthly or yearly salary. As to persons whose labor is thus compensated and who completely recover from their injuries, the rule may be said to be that their damages are confined to the duration of their enforced absence from their occupation. But the present plaintiff could not resume his work at the same profit he was making when the accident occurred. He had built up an establishing business which included some twenty regular customers. These customers represented to him a regular income. In addition to this he made sales to other people who were not so regular in their purchases. But he could figure on making at least some sales each month to others besides his regular customers. Taken as a whole his average monthly income from his business was about P50. As a result of the accident, he lost all but four of his regular customers and his receipts dwindled down to practically nothing. Other agents had invaded his territory, and upon becoming physically able to attend to his business, he found that would be necessary to start with practically no regular trade, and either win back his old customers from his competitors or else secure others. During this process of reestablishing his patronage his income would necessarily be less than he was making at the time of the accident and would continue to be so for some time. Of course, if it could be mathematically determined how much less he will earn during this rebuilding process than he would have earned if the accident had not occurred, that would be the amount he would be entitled to in this action. But manifestly this ideal compensation cannot be ascertained. The question therefore resolves itself into whether this damage to his business can be so nearly ascertained as to justify a court in awarding any amount whatever.

When it is shown that a plaintiff's business is a going concern with a fairly steady average profit on the investment, it may be assumed that had the interruption to the business through defendant's wrongful act not occurred, it would have continued producing this average income "so long as is usual with things of that nature." When in addition to the previous average income of the business it is further shown what the reduced receipts of the business are immediately after the cause of the interruption has been removed, there can be no manner of doubt that a loss of profits has resulted from the wrongful act of the defendant. In the present case, we not only have the value of plaintiff's business to him just prior to the accident, but we also have its value to him after the accident.

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At the trial, he testified that his wife had earned about fifteen pesos during the two months that he was disabled. That this almost total destruction of his business was directly chargeable to defendant's wrongful act, there can be no manner of doubt; and the mere fact that the loss cannot be ascertained with absolute accuracy, is no reason for denying plaintiff's claim altogether. As stated in one case, it would be a reproach to the law if he could not recover damages at all.

Profits are not excluded from recovery because they are profits; but when excluded, it is on the ground that there are no criteria by which to estimate the amount with the certainty on which the adjudications of courts, and the findings of juries, should be based.

We have now outlined the principles which should govern the measure of damages in this case. We are of the opinion that the lower court had before it sufficient evidence of the damage to plaintiff's business in the way of prospective loss of profits to justify it in calculating his damages as to his item. That evidence has been properly elevated to this court of review. Under section 496 of the Code of Civil Procedure, we are authorized to enter final judgment or direct a new trial, as may best subserve the ends of justice. We are of the opinion that the evidence presented as to the damage done to plaintiff's business is credible and that it is sufficient and clear enough upon which to base a judgment for damages. Plaintiff having had four years' experience in selling goods on commission, it must be presumed that he will be able to rebuild his business to its former proportions; so that at some time in the future his commissions will equal those he was receiving when the accident occurred. Aided by his experience, he should be able to rebuild this business to its former proportions in much less time than it took to establish it as it stood just prior to the accident. One year should be sufficient time in which to do this. The profits which plaintiff will receive from the business in the course of its reconstruction will gradually increase. The injury to plaintiff's business begins where these profits leave off, and, as a corollary, there is where defendant's liability begins. Upon this basis, we fix the damages to plaintiff's business at P250.

The judgment of the lower court is set aside, and the plaintiff is awarded the following damages; ten pesos for medical expenses; one hundred pesos for the two months of his enforced absence from his business; and two hundred and fifty pesos for the damage done to his business in the way of loss of profits, or a total of three hundred and sixty pesos. No costs will be allowed in this instance.-------------------------------------------------------------------------------------------------------------------------

G.R. No. 107518 October 8, 1998PNOC SHIPPING AND TRANSPORT CORPORATION, vs.

COURT OF APPEALS and MARIA EFIGENIA FISHING CORPORATION,

A party is entitled to adequate compensation only for such pecuniary loss actually suffered and duly proved. Indeed, basic is the rule that to recover actual damages, the amount of loss must not only be capable of proof but must actually be proven with a reasonable degree of certainty, premised upon competent proof or best evidence obtainable of the actual amount thereof. The claimant is duty-bound to point out specific facts that afford a basis for measuring whatever compensatory damages are borne. A court cannot merely rely on speculations, conjectures, or guesswork as to the fact and amount of damages as well as hearsay or uncorroborated testimony whose truth is suspect. Such are the jurisprudential precepts that the Court now applies in resolving the instant petition.

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Facts: M/V Maria Efigenia XV, owned by private respondent Maria Efigenia Fishing Corporation (MAFC), was navigating the waters near Fortune Island in Nasugbu, Batangas on its way to Navotas, when it collided with the vessel Petroparcel which at the time was owned by the Luzon Stevedoring Corporation.

After investigation was conducted by the Board of Marine Inquiry, Philippine Coast Guard Commandant Simeon Alejandro rendered a decision finding the Petroparcel at fault. Based on this finding by the Board and after unsuccessful demands on petitioner, MAFC sued the LSC and the Petroparcel captain, Edgardo Doruelo, before the CFI of Caloocan.

In particular, MAFC prayed for an award of P692,680.00, allegedly representing the value of the fishing nets, boat equipment and cargoes of M/V Maria Efigenia XV, with interest at the legal rate plus 25% thereof as attorney's fees. Meanwhile, during the pendency of the case, petitioner PNOC Shipping and Transport Corporation sought to be substituted in place of LSC as it had already acquired ownership of the Petroparcel.

MAFC later sought the amendment of its complaint on the ground that the original complaint failed to plead for the recovery of the lost value of the hull of M/V Maria Efigenia XV. 10 Accordingly, in the amended complaint, private respondent averred that M/V Maria Efigenia XV had an actual value of P800,000.00 and that, after deducting the insurance payment of P200,000.00, the amount of P600,000.00 should likewise be claimed. The amended complaint also alleged that inflation resulting from the devaluation of the Philippine peso had affected the replacement value of the hull of the vessel, its equipment and its lost cargoes, such that there should be a reasonable determination thereof. Furthermore, on account of the sinking of the vessel, private respondent supposedly incurred unrealized profits and lost business opportunities that would thereafter be proven.

Subsequently, the complaint was further amended to include petitioner as a defendant which the lower court granted. After petitioner had filed its answer to the second amended complaint, the lower court issued a pre-trial order 14 containing, among other things, a stipulation of facts, to wit:

1. On 21 September 1977, while the fishing boat "M/V MARIA EFIGENIA" owned by plaintiff was navigating in the vicinity of Fortune Island in Nasugbu, Batangas, on its way to Navotas, Metro Manila, said fishing boat was hit by the LSCO tanker "Petroparcel" causing the former to sink.

2. The Board of Marine Inquiry conducted an investigation of this marine accident and on 21 November 1978, the Commandant of the Philippine Coast Guard, the Honorable Simeon N. Alejandro, rendered a decision finding the cause of the accident to be the reckless and imprudent manner in which Edgardo Doruelo navigated the LSCO "Petroparcel" and declared the latter vessel at fault.

3. On 2 April 1978, defendant Luzon Stevedoring Corporation (LUSTEVECO), executed in favor of PNOC Shipping and Transport Corporation a Deed of Transfer involving several tankers, tugboats, barges and pumping stations, among which was the LSCO Petroparcel.

4. On the same date on 2 April 1979 (sic), defendant PNOC STC again entered into an Agreement of Transfer with co-defendant Lusteveco whereby all the business properties and

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other assets appertaining to the tanker and bulk oil departments including the motor tanker LSCO Petroparcel of defendant Lusteveco were sold to PNOC STC.

5. The aforesaid agreement stipulates, among others, that PNOC-STC assumes, without qualifications, all obligations arising from and by virtue of all rights it obtained over the LSCO "Petroparcel".

6. On 6 July 1979, another agreement between defendant LUSTEVECO and PNOC-STC was executed wherein Board of Marine Inquiry Case No. 332 (involving the sea accident of 21 September 1977) was specifically identified and assumed by the latter.

7. On 23 June 1979, the decision of Board of Marine Inquiry was affirmed by the Ministry of National Defense, in its decision dismissing the appeal of Capt. Edgardo Doruelo and Chief mate Anthony Estenzo of LSCO "Petroparcel".

8. LSCO "Petroparcel" is presently owned and operated by PNOC-STC and likewise Capt. Edgardo Doruelo is still in their employ.

9. As a result of the sinking of M/V Maria Efigenia caused by the reckless and imprudent manner in which LSCO Petroparcel was navigated by defendant Doruelo, plaintiff suffered actual damages by the loss of its fishing nets, boat equipments (sic) and cargoes, which went down with the ship when it sank the replacement value of which should be left to the sound discretion of this Honorable Court.

lower court: judgment is hereby rendered in favor of the MAFC and against PNOC

a. The sum of P6,438,048.00 representing the value of the fishing boat with interest from the date of the filing of the complaint at the rate of 6% per annum;

b. The sum of P50,000.00 as and for attorney's fees; and

Ratio: In arriving at the above disposition, the lower court cited the evidence presented by private respondent consisting of the testimony of its general manager and sole witness, Edilberto del Rosario. Private respondent's witness testified that M/V Maria Efigenia XV was owned by private respondent per Exhibit A, a certificate of ownership issued by the Philippine Coast Guard showing that M/V Maria Efigenia XV was a wooden motor boat constructed in 1965 with 128.23 gross tonnage. According to him, at the time the vessel sank, it was then carrying 1,060 tubs (bañeras) of assorted fish the value of which was never recovered. Also lost with the vessel were two cummins engines (250 horsepower), radar, pathometer and compass. He further added that with the loss of his flagship vessel in his fishing fleet of fourteen (14) vessels, he was constrained to hire the services of counsel whom he paid P10,000 to handle the case at the Board of Marine Inquiry and P50,000.00 for commencing suit for damages in the lower court.

As to the award of P6,438,048.00 in actual damages, the lower court took into account the following pieces of documentary evidence that private respondent proffered during trial:

(a) Exhibit A — certified xerox copy of the certificate of ownership of M/V Maria Efigenia XV;

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(b) Exhibit B — a document titled "Marine Protest" executed by Delfin Villarosa, Jr. on September 22, 1977 stating that as a result of the collision, the M/V Maria Efigenia XV sustained a hole at its left side that caused it to sink with its cargo of 1,050 bañeras valued at P170,000.00;

(c) Exhibit C — a quotation for the construction of a 95-footer trawler issued by Isidoro A. Magalong of I. A. Magalong Engineering and Construction on January 26, 1987 to Del Rosario showing that construction of such trawler would cost P2,250,000.00;

(d) Exhibit D — pro forma invoice No. PSPI-05/87-NAV issued by E.D. Daclan of Power Systems, Incorporated on January 20, 1987 to Del Rosario showing that two (2) units of CUMMINS Marine Engine model N855-M, 195 bhp. at 1800 rpm. would cost P1,160,000.00;

(e) Exhibit E — quotation of prices issued by Scan Marine Inc. on January 20, 1987 to Del Rosario showing that a unit of Furuno Compact Daylight Radar, Model FR-604D, would cost P100,000.00 while a unit of Furuno Color Video Sounder, Model FCV-501 would cost P45,000.00 so that the two units would cost P145,000.00;

(f) Exhibit F — quotation of prices issued by Seafgear Sales, Inc. on January 21, 1987 to Del Rosario showing that two (2) rolls of nylon rope (5" cir. X 300fl.) would cost P140,000.00; two (2) rolls of nylon rope (3" cir. X 240fl.), P42,750.00; one (1) binocular (7 x 50), P1,400.00, one (1) compass (6"), P4,000.00 and 50 pcs. of floats, P9,000.00 or a total of P197,150.00;

(g) Exhibit G — retainer agreement between Del Rosario and F. Sumulong Associates Law Offices stipulating an acceptance fee of P5,000.00, per appearance fee of P400.00, monthly retainer of P500.00, contingent fee of 20% of the total amount recovered and that attorney's fee to be awarded by the court should be given to Del Rosario; and

(h) Exhibit H — price quotation issued by Seafgear Sales, Inc. dated April 10, 1987 to Del Rosario showing the cost of poly nettings as: 50 rolls of 400/18 3kts. 100md x 100mtrs., P70,000.00; 50 rolls of 400/18 5kts. 100md x 100mtrs., P81,500.00; 50 rolls of 400/18 8kts. 100md x 100mtrs., P116,000.00, and 50 rolls of 400/18 10kts. 100md x 100mtrs., P146,500 and bañera (tub) at P65.00 per piece or a total of P414,065.00.

The lower court held that the prevailing replacement value of P6,438,048.00 of the fishing boat and all its equipment would regularly increase at 30% every year from the date the quotations were given.

On the other hand, the lower court noted that PNOC only presented Lorenzo Lazaro, senior estimator at PNOC Dockyard & Engineering Corporation, as sole witness and it did not bother at all to offer any documentary evidence to support its position. Lazaro testified that the price quotations submitted by private respondent were "excessive" and that as an expert witness, he used the quotations of his suppliers in making his estimates. However, he failed to present such quotations of prices from his suppliers, saying that he could not produce a breakdown of the costs of his estimates as it was "a sort of secret scheme." For this reason, the lower court concluded:

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Evidently, the quotation of prices submitted by the plaintiff relative to the replacement value of the fishing boat and its equipments in the tune of P6,438,048.00 which were lost due to the recklessness and imprudence of the herein defendants were not rebutted by the latter with sufficient evidence. The defendants through their sole witness Lorenzo Lazaro relied heavily on said witness' bare claim that the amount afore-said is excessive or bloated, but they did not bother at all to present any documentary evidence to substantiate such claim. Evidence to be believed must not only proceed from the mouth of the credible witness, but it must be credible in itself.

PNOC: filed MR

Contention: assuming that plaintiff was entitled to damages, the lower court erred in awarding an amount greater than that prayed for in the second amended complaint.

CA: affirmed the lower court’s decision

On petitioner's assertion that the award of P6,438,048.00 was not convincingly proved by competent and admissible evidence, the Court of Appeals ruled that it was not necessary to qualify Del Rosario as an expert witness because as the owner of the lost vessel, "it was well within his knowledge and competency to identify and determine the equipment installed and the cargoes loaded" on the vessel. Considering the documentary evidence presented as in the nature of market reports or quotations, trade journals, trade circulars and price lists, the Court of Appeals held:

Consequently, until such time as the Supreme Court categorically rules on the admissibility or inadmissibility of this class of evidence, the reception of these documentary exhibits (price quotations) as evidence rests on the sound discretion of the trial court. In fact, where the lower court is confronted with evidence which appears to be of doubtful admissibility, the judge should declare in favor of admissibility rather than of non-admissibility (The Collector of Palakadhari, 124 [1899], p. 13, cited in Francisco, Evidence).

Stressing that the alleged inadmissible documentary exhibits were never satisfactorily rebutted by appellant's own sole witness in the person of Lorenzo Lazaro, the appellate court found that petitioner ironically situated itself in an "inconsistent posture by the fact that its own witness, admittedly an expert one, heavily relies on the very same pieces of evidence (price quotations) appellant has so vigorously objected to as inadmissible evidence." Hence, it concluded:

. . . The amount of P6,438,048.00 was duly established at the trial on the basis of appellee's documentary exhibits (price quotations) which stood uncontroverted, and which already included the amount by way of adjustment as prayed for in the amended complaint. There was therefore no need for appellee to amend the second amended complaint in so far as to the claim for damages is concerned to conform with the evidence presented at the trial. The amount of P6,438,048.00 awarded is clearly within the relief prayed for in appellee's second amended complaint.

Issues:In assailing the Court of Appeals' decision, petitioner posits the view that the award of

P6,438,048 as actual damages should have been in light of these considerations, namely: (1)

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the trial court did not base such award on the actual value of the vessel and its equipment at the time of loss in 1977; (2) there was no evidence on extraordinary inflation that would warrant an adjustment of the replacement cost of the lost vessel, equipment and cargo; (3) the value of the lost cargo and the prices quoted in respondent's documentary evidence only amount to P4,336,215.00; (4) private respondent's failure to adduce evidence to support its claim for unrealized profit and business opportunities; and (5) private respondent's failure to prove the extent and actual value of damages sustained as a result of the 1977 collision of the vessels.

SC: Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in satisfaction of, or in recompense for, loss or injury sustained. They proceed from a sense of natural justice and are designed to repair the wrong that has been done, to compensate for the injury inflicted and not to impose a penalty.

In actions based on torts or quasi-delicts, actual damages include all the natural and probable consequences of the act or omission complained of. There are two kinds of actual or compensatory damages: one is the loss of what a person already possesses (daño emergente), and the other is the failure to receive as a benefit that which would have pertained to him (lucro cesante). Thus:

Where goods are destroyed by the wrongful act of the defendant the plaintiff is entitled to their value at the time of destruction, that is, normally, the sum of money which he would have to pay in the market for identical or essentially similar goods, plus in a proper case damages for the loss of use during the period before replacement. In other words, in the case of profit-earning chattels, what has to be assessed is the value of the chattel to its owner as a going concern at the time and place of the loss, and this means, at least in the case of ships, that regard must be had to existing and pending engagements, . . .

. . . . If the market value of the ship reflects the fact that it is in any case virtually certain of profitable employment, then nothing can be added to that value in respect of charters actually lost, for to do so would be pro tanto to compensate the plaintiff twice over. On the other hand, if the ship is valued without reference to its actual future engagements and only in the light of its profit-earning potentiality, then it may be necessary to add to the value thus assessed the anticipated profit on a charter or other engagement which it was unable to fulfill. What the court has to ascertain in each case is the "capitalised value of the vessel as a profit-earning machine not in the abstract but in view of the actual circumstances," without, of course, taking into account considerations which were too remote at the time of the loss.

As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is required to prove the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence available. The burden of proof is on the party who would be defeated if no evidence would be presented on either side. He must establish his case by a preponderance of evidence which means that the evidence, as a whole, adduced by one side is superior to that of the other. In other words, damages cannot be presumed and courts, in making an award must point out specific facts that could afford a basis for measuring whatever compensatory or actual damages are borne.

In this case, actual damages were proven through the sole testimony of private respondent's general manager and certain pieces of documentary evidence. Except for Exhibit B where the value of the 1,050 bañeras of fish were pegged at their September 1977 value when the collision happened, the pieces of documentary evidence proffered by private

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respondent with respect to items and equipment lost show similar items and equipment with corresponding prices in early 1987 or approximately ten (10) years after the collision. Noticeably, petitioner did not object to the exhibits in terms of the time index for valuation of the lost goods and equipment. In objecting to the same pieces of evidence, petitioner commented that these were not duly authenticated and that the witness (Del Rosario) did not have personal knowledge on the contents of the writings and neither was he an expert on the subjects thereof. Clearly ignoring petitioner's objections to the exhibits, the lower court admitted these pieces of evidence and gave them due weight to arrive at the award of P6,438,048.00 as actual damages.

The exhibits were presented ostensibly in the course of Del Rosario's testimony. Private respondent did not present any other witnesses especially those whose signatures appear in the price quotations that became the bases of the award. We hold, however, that the price quotations are ordinary private writings which under the Revised Rules of Court should have been proffered along with the testimony of the authors thereof. Del Rosario could not have testified on the veracity of the contents of the writings even though he was the seasoned owner of a fishing fleet because he was not the one who issued the price quotations. Section 36, Rule 130 of the Revised Rules of Court provides that a witness can testify only to those facts that he knows of his personal knowledge.

For this reason, Del Rosario's claim that private respondent incurred losses in the total amount of P6,438,048.00 should be admitted with extreme caution considering that, because it was a bare assertion, it should be supported by independent evidence. Moreover, because he was the owner of private respondent corporation whatever testimony he would give with regard to the value of the lost vessel, its equipment and cargoes should be viewed in the light of his self-interest therein. We agree with the Court of Appeals that his testimony as to the equipment installed and the cargoes loaded on the vessel should be given credence considering his familiarity thereto. However, we do not subscribe to the conclusion that his valuation of such equipment, cargo and the vessel itself should be accepted as gospel truth. We must, therefore, examine the documentary evidence presented to support Del Rosario's claim as regards the amount of losses.

The price quotations presented as exhibits partake of the nature of hearsay evidence considering that the persons who issued them were not presented as witnesses. Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of another person who is not on the witness stand. Hearsay evidence, whether objected to or not, has no probative value unless the proponent can show that the evidence falls within the exceptions to the hearsay evidence rule. On this point, we believe that the exhibits do not fall under any of the exceptions provided under Sections 37 to 47 of Rule 130.

It is true that one of the exceptions to the hearsay rule pertains to "commercial lists and the like" under Section 45, Rule 130 of the Revised Rules on Evidence. In this respect, the Court of Appeals considered private respondent's exhibits as "commercial lists." It added, however, that these exhibits should be admitted in evidence "until such time as the Supreme Court categorically rules on the admissibility or inadmissibility of this class of evidence" because "the reception of these documentary exhibits (price quotations) as evidence rests on the sound discretion of the trial court." Reference to Section 45, Rule 130, however, would show that the conclusion of the Court of Appeals on the matter was arbitrarily arrived at. This rule states:

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Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1) it is a statement of matters of interest to persons engaged in an occupation; (2) such statement is contained in a list, register, periodical or other published compilation; (3) said compilation is published for the use of persons engaged in that occupation, and (4) it is generally used and relied upon by persons in the same occupation.

Based on the above requisites, it is our considered view that Exhibits B, C, D, E, F and H are not "commercial lists" for these do not belong to the category of "other published compilations" under Section 45 aforequoted. Under the principle of ejusdem generis, "(w)here general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned." The exhibits mentioned are mere price quotations issued personally to Del Rosario who requested for them from dealers of equipment similar to the ones lost at the collision of the two vessels. These are not published in any list, register, periodical or other compilation on the relevant subject matter. Neither are these "market reports or quotations" within the purview of "commercial lists" as these are not "standard handbooks or periodicals, containing data of everyday professional need and relied upon in the work of the occupation." These are simply letters responding to the queries of Del Rosario.

But even on the theory that the Court of Appeals correctly ruled on the admissibility of those letters or communications when it held that unless "plainly irrelevant, immaterial or incompetent," evidence should better be admitted rather than rejected on "doubtful or technical grounds," the same pieces of evidence, however, should not have been given probative weight. This is a distinction we wish to point out. Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to considered at all.

In the absence of competent proof on the actual damage suffered, private respondent is "entitled to nominal damages which, as the law says, is adjudicated in order that a right of the plaintiff, which has been violated or invaded by defendant, may be vindicated and recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered."

Nominal damages are awarded in every obligation arising from law, contracts, quasi-contracts, acts or omissions punished by law, and quasi-delicts, or in every case where property right has been invaded. 50 Under Article 2223 of the Civil Code, "(t)he adjudication of nominal damages shall preclude further contest upon the right involved and all accessory questions, as between the parties to the suit, or their respective heirs and assigns."

Actually, nominal damages are damages in name only and not in fact. Where these are allowed, they are not treated as an equivalent of a wrong inflicted but simply in recognition of the existence of a technical injury. However, the amount to be awarded as nominal damages shall be equal or at least commensurate to the injury sustained by private respondent considering the concept and purpose of such damages. The amount of nominal damages to be awarded may also depend on certain special reasons extant in the case.

Applying now such principles to the instant case, we have on record the fact that petitioner's vessel Petroparcel was at fault as well as private respondent's complaint claiming the amount of P692,680.00 representing the fishing nets, boat equipment and cargoes that sunk with the M/V Maria Efigenia XV. In its amended complaint, private respondent alleged that the vessel had an actual value of P800,000.00 but it had been paid insurance in the amount of

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P200,000.00 and, therefore, it claimed only the amount of P600,000.00. Ordinarily, the receipt of insurance payments should diminish the total value of the vessel quoted by private respondent in his complaint considering that such payment is causally related to the loss for which it claimed compensation. This Court believes that such allegations in the original and amended complaints can be the basis for determination of a fair amount of nominal damages inasmuch as a complaint alleges the ultimate facts constituting the plaintiffs cause of action. Private respondent should be bound by its allegations on the amount of its claims.

With respect to petitioner's contention that the lower court did not acquire jurisdiction over the amended complaint increasing the amount of damages claimed to P600,000.00, we agree with the Court of Appeals that the lower court acquired jurisdiction over the case when private respondent paid the docket fee corresponding to its claim in its original complaint. Its failure to pay the docket fee corresponding to its increased claim for damages under the amended complaint should not be considered as having curtailed the lower court's jurisdiction. Pursuant to the ruling in Sun Insurance Office, Ltd. (SIOL) v. Asuncion, the unpaid docket fee should be considered as a lien on the judgment even though private respondent specified the amount of P600,000.00 as its claim for damages in its amended complaint.

Moreover, we note that petitioner did not question at all the jurisdiction of the lower court on the ground of insufficient docket fees in its answers to both the amended complaint and the second amended complaint. It did so only in its motion for reconsideration of the decision of the lower court after it had received an adverse decision. As this Court held in Pantranco North Express, Inc. v. Court of Appeals, participation in all stages of the case before the trial court, that included invoking its authority in asking for affirmative relief, effectively barred petitioner by estoppel from challenging the court's jurisdiction. Notably, from the time it filed its answer to the second amended complaint on April 16, 1985, petitioner did not question the lower court's jurisdiction. It was only on December 29, 1989 when it filed its motion for reconsideration of the lower court's decision that petitioner raised the question of the lower court's lack of jurisdiction. Petitioner thus foreclosed its right to raise the issue of jurisdiction by its own inaction.

WHEREFORE, the challenged decision of the Court of Appeals dated October 14, 1992 in CA-G.R. CV No. 26680 affirming that of the Regional Trial Court of Caloocan City, Branch 121, is hereby MODIFIED insofar as it awarded actual damages to private respondent Maria Efigenia Fishing Corporation in the amount of P6,438,048.00 for lack of evidentiary bases therefor. Considering the fact, however, that: (1) technically petitioner sustained injury but which, unfortunately, was not adequately and properly proved, and (2) this case has dragged on for almost two decades, we believe that an award of Two Million (P2,000,000.00) in favor of private respondent as and for nominal damages is in order.------------------------------------------------------------------------------------------------------------------

[G.R. No. 118342. January 5, 1998]DEVELOPMENT BANK OF THE PHILIPPINES, vs. CA and LYDIA CUBA

Nature: These two consolidated cases stemmed from a complaint filed against the Development Bank of the Philippines (hereafter DBP) and Agripina Caperal filed by Lydia Cuba (hereafter CUBA) on 21 May 1985 with the RTC of Pangasinan. The said complaint sought (1) the declaration of nullity of DBP’s appropriation of CUBA’s rights, title, and interests over a 44-hectare fishpond located in Bolinao, Pangasinan, for being violative of Article 2088; (2) the annulment of the Deed of Conditional Sale executed in her favor by DBP; (3) the annulment of DBP’s sale of the subject fishpond to Caperal; (4) the restoration of her rights, title, and interests over the fishpond; and (5) the recovery of damages, attorney’s fees, and expenses of litigation.

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After the joinder of issues following the filing by the parties of their respective pleadings, the trial court conducted a pre-trial where CUBA and DBP agreed on the following facts, which were embodied in the pre-trial order:

1. Plaintiff Lydia P. Cuba is a grantee of a Fishpond Lease Agreement No. 2083 (new) dated May 13, 1974 from the Government;

2. Plaintiff Lydia P. Cuba obtained loans from the Development Bank of the Philippines in the amounts of P109,000.00; P109,000.00; and P98,700.00 under the terms stated in the Promissory Notes dated September 6, 1974; August 11, 1975; and April 4, 1977;

3. As security for said loans, plaintiff Lydia P. Cuba executed two Deeds of Assignment of her Leasehold Rights;

4. Plaintiff failed to pay her loan on the scheduled dates thereof in accordance with the terms of the Promissory Notes;

5. Without foreclosure proceedings, whether judicial or extra-judicial, defendant DBP appropriated the Leasehold Rights of plaintiff Lydia Cuba over the fishpond in question;

6. After defendant DBP has appropriated the Leasehold Rights of plaintiff Lydia Cuba over the fishpond in question, defendant DBP, in turn, executed a Deed of Conditional Sale of the Leasehold Rights in favor of plaintiff Lydia Cuba over the same fishpond in question;

7. In the negotiation for repurchase, plaintiff Lydia Cuba addressed two letters to the Manager DBP, Dagupan City dated November 6, 1979 and December 20, 1979. DBP thereafter accepted the offer to repurchase in a letter addressed to plaintiff dated February 1, 1982;

8. After the Deed of Conditional Sale was executed in favor of plaintiff Lydia Cuba, a new Fishpond Lease Agreement No. 2083-A dated March 24, 1980 was issued by the Ministry of Agriculture and Food in favor of plaintiff Lydia Cuba only, excluding her husband;

9. Plaintiff Lydia Cuba failed to pay the amortizations stipulated in the Deed of Conditional Sale;

10. After plaintiff Lydia Cuba failed to pay the amortization as stated in Deed of Conditional Sale, she entered with the DBP a temporary arrangement whereby in consideration for the deferment of the Notarial Rescission of Deed of Conditional Sale, plaintiff Lydia Cuba promised to make certain payments as stated in temporary Arrangement dated February 23, 1982;

11. Defendant DBP thereafter sent a Notice of Rescission thru Notarial Act dated March 13, 1984, and which was received by plaintiff Lydia Cuba;

12. After the Notice of Rescission, defendant DBP took possession of the Leasehold Rights of the fishpond in question;

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13. That after defendant DBP took possession of the Leasehold Rights over the fishpond in question, DBP advertised in the SUNDAY PUNCH the public bidding dated June 24, 1984, to dispose of the property;

14. That the DBP thereafter executed a Deed of Conditional Sale in favor of defendant Agripina Caperal on August 16, 1984;

15. Thereafter, defendant Caperal was awarded Fishpond Lease Agreement No. 2083-A on December 28, 1984 by the Ministry of Agriculture and Food.

Defendant Caperal admitted only the facts stated in paragraphs 14 and 15 of the pre-trial order. Trial was thereafter had on other matters.

The principal issue presented was whether the act of DBP in appropriating to itself CUBA’s leasehold rights over the fishpond in question without foreclosure proceedings was contrary to Article 2088 invalid. CUBA insisted on an affirmative resolution. DBP stressed that it merely exercised its contractual right under the Assignments of Leasehold Rights, which was not a contract of mortgage. Defendant Caperal sided with DBP.

trial court resolved the issue in favor of CUBA by declaring that DBP’s taking possession and ownership of the property without foreclosure was plainly violative of Article 2088 of the Civil Code which provides as follows:

ART. 2088. The creditor cannot appropriate the things given by way of pledge or mortgage, or dispose of them. Any stipulation to the contrary is null and void.

It disagreed with DBP’s stand that the Assignments of Leasehold Rights were not contracts of mortgage because (1) they were given as security for loans, (2) although the “fishpond land” in question is still a public land, CUBA’s leasehold rights and interest thereon are alienable rights which can be the proper subject of a mortgage; and (3) the intention of the contracting parties to treat the Assignment of Leasehold Rights as a mortgage was obvious and unmistakable; hence, upon CUBA’s default, DBP’s only right was to foreclose the Assignment in accordance with law.

The trial court also declared invalid condition no. 12 of the Assignment of Leasehold Rights for being a clear case of pactum commissorium expressly prohibited and declared null and void by Article 2088 of the Civil Code. It then concluded that since DBP never acquired lawful ownership of CUBA’s leasehold rights, all acts of ownership and possession by the said bank were void. Accordingly, the Deed of Conditional Sale in favor of CUBA, the notarial rescission of such sale, and the Deed of Conditional Sale in favor of defendant Caperal, as well as the Assignment of Leasehold Rights executed by Caperal in favor of DBP, were also void and ineffective.

As to damages, the trial court found “ample evidence on record” that in 1984 the representatives of DBP ejected CUBA and her caretakers not only from the fishpond area but also from the adjoining big house; and that when CUBA’s son and caretaker went there on 15 September 1985, they found the said house unoccupied and destroyed and CUBA’s personal belongings, machineries, equipment, tools, and other articles used in fishpond operation which were kept in the house were missing. The missing items were valued at about P550,000. It further found that when CUBA and her men were ejected by DBP for the first time in 1979,

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CUBA had stocked the fishpond with 250,000 pieces of bangus fish (milkfish), all of which died because the DBP representatives prevented CUBA’s men from feeding the fish. At the conservative price of P3.00 per fish, the gross value would have been P690,000, and after deducting 25% of said value as reasonable allowance for the cost of feeds, CUBA suffered a loss of P517,500. It then set the aggregate of the actual damages sustained by CUBA at P1,067,500.

The trial court further found that DBP was guilty of gross bad faith in falsely representing to the Bureau of Fisheries that it had foreclosed its mortgage on CUBA’s leasehold rights. Such representation induced the said Bureau to terminate CUBA’s leasehold rights and to approve the Deed of Conditional Sale in favor of CUBA. And considering that by reason of her unlawful ejectment by DBP, CUBA “suffered moral shock, degradation, social humiliation, and serious anxieties for which she became sick and had to be hospitalized” the trial court found her entitled to moral and exemplary damages. The trial court also held that CUBA was entitled to P100,000 attorney’s fees in view of the considerable expenses she incurred for lawyers’ fees and in view of the finding that she was entitled to exemplary damages.

In its decision of 31 January 1990, [4] the trial court disposed as follows:

WHEREFORE, judgment is hereby rendered in favor of plaintiff:

1. DECLARING null and void and without any legal effect the act of defendant Development Bank of the Philippines in appropriating for its own interest, without any judicial or extra-judicial foreclosure, plaintiff’s leasehold rights and interest over the fishpond land in question under her Fishpond Lease Agreement No. 2083 (new);

2. DECLARING the Deed of Conditional Sale dated February 21, 1980 by and between the defendant Development Bank of the Philippines and plaintiff (Exh. E and Exh. 1) and the acts of notarial rescission of the Development Bank of the Philippines relative to said sale (Exhs. 16 and 26) as void and ineffective;

3. DECLARING the Deed of Conditional Sale dated August 16, 1984 by and between the Development Bank of the Philippines and defendant Agripina Caperal (Exh. F and Exh. 21), the Fishpond Lease Agreement No. 2083-A dated December 28, 1984 of defendant Agripina Caperal (Exh. 23) and the Assignment of Leasehold Rights dated February 12, 1985 executed by defendant Agripina Caperal in favor of the defendant Development Bank of the Philippines (Exh. 24) as void ab initio;

4. ORDERING defendant Development Bank of the Philippines and defendant Agripina Caperal, jointly and severally, to restore to plaintiff the latter’s leasehold rights and interests and right of possession over the fishpond land in question, without prejudice to the right of defendant Development Bank of the Philippines to foreclose the securities given by plaintiff;

5. ORDERING defendant Development Bank of the Philippines to pay to plaintiff the following amounts:

a) The sum of ONE MILLION SIXTY-SEVEN THOUSAND FIVE HUNDRED PESOS (P1,067,500.00), as and for actual damages;

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b) The sum of ONE HUNDRED THOUSAND (P100,000.00) PESOS as moral damages;

c) The sum of FIFTY THOUSAND (P50,000.00) PESOS, as and for exemplary damages;

d) And the sum of ONE HUNDRED THOUSAND (P100,000.00) PESOS, as and for attorney’s fees;

6. And ORDERING defendant Development Bank of the Philippines to reimburse and pay to defendant Agripina Caperal the sum of ONE MILLION FIVE HUNDRED THIRTY-TWO THOUSAND SIX HUNDRED TEN PESOS AND SEVENTY-FIVE CENTAVOS (P1,532,610.75) representing the amounts paid by defendant Agripina Caperal to defendant Development Bank of the Philippines under their Deed of Conditional Sale.

CUBA and DBP interposed separate appeals from the decision to the Court of Appeals. The former sought an increase in the amount of damages, while the latter questioned the findings of fact and law of the lower court.

CA: ruled that CUBA was not entitled to loss of profits for lack of evidence, but agreed with the trial court as to the actual damages of P1,067,500. It, however, deleted the amount of exemplary damages and reduced the award of moral damages from P100,000 to P50,000 and attorney’s fees, from P100,000 to P50,000.

It declared as valid the following: (1) the act of DBP in appropriating Cuba’s leasehold rights and interest under Fishpond Lease Agreement No. 2083; (2) the deeds of assignment executed by Cuba in favor of DBP; (3) the deed of conditional sale between CUBA and DBP; and (4) the deed of conditional sale between DBP and Caperal, the Fishpond Lease Agreement in favor of Caperal, and the assignment of leasehold rights executed by Caperal in favor of DBP. It then ordered DBP to turn over possession of the property to Caperal as lawful holder of the leasehold rights and to pay CUBA the following amounts: (a) P1,067,500 as actual damages; P50,000 as moral damages; and P50,000 as attorney’s fees.

Since their MRs were denied, DBP and CUBA filed separate petitions for review.

DBP: assails the award of actual and moral damages and attorney’s fees in favor of CUBA.

CUBA: contends that the Court of Appeals erred (1) in not holding that the questioned deed of assignment was a pactum commissorium contrary to Article 2088 of the Civil Code; (b) in holding that the deed of assignment effected a novation of the promissory notes; (c) in holding that CUBA was estopped from questioning the validity of the deed of assignment when she agreed to repurchase her leasehold rights under a deed of conditional sale; and (d) in reducing the amounts of moral damages and attorney’s fees, in deleting the award of exemplary damages, and in not increasing the amount of damages.

SC: We shall now take up the issue of damages.

Article 2199 provides:

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Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.

Actual or compensatory damages cannot be presumed, but must be proved with reasonable degree of certainty. A court cannot rely on speculations, conjectures, or guesswork as to the fact and amount of damages, but must depend upon competent proof that they have been suffered by the injured party and on the best obtainable evidence of the actual amount thereof. It must point out specific facts which could afford a basis for measuring whatever compensatory or actual damages are borne.

In the present case, the trial court awarded in favor of CUBA P1,067,500 as actual damages consisting of P550,000 which represented the value of the alleged lost articles of CUBA and P517,500 which represented the value of the 230,000 pieces of bangus allegedly stocked in 1979 when DBP first ejected CUBA from the fishpond and the adjoining house. This award was affirmed by the Court of Appeals.

We find that the alleged loss of personal belongings and equipment was not proved by clear evidence. Other than the testimony of CUBA and her caretaker, there was no proof as to the existence of those items before DBP took over the fishpond in question. As pointed out by DBP, there was not “inventory of the alleged lost items before the loss which is normal in a project which sometimes, if not most often, is left to the care of other persons.” Neither was a single receipt or record of acquisition presented.

Curiously, in her complaint dated 17 May 1985, CUBA included “losses of property” as among the damages resulting from DBP’s take-over of the fishpond. Yet, it was only in September 1985 when her son and a caretaker went to the fishpond and the adjoining house that she came to know of the alleged loss of several articles. Such claim for “losses of property,” having been made before knowledge of the alleged actual loss, was therefore speculative. The alleged loss could have been a mere afterthought or subterfuge to justify her claim for actual damages.

With regard to the award of P517,000 representing the value of the alleged 230,000 pieces of bangus which died when DBP took possession of the fishpond in March 1979, the same was not called for. Such loss was not duly proved; besides, the claim therefor was delayed unreasonably. From 1979 until after the filing of her complaint in court in May 1985, CUBA did not bring to the attention of DBP the alleged loss. In fact, in her letter dated 24 October 1979, she declared:

1. That from February to May 1978, I was then seriously ill in Manila and within the same period I neglected the management and supervision of the cultivation and harvest of the produce of the aforesaid fishpond thereby resulting to the irreparable loss in the produce of the same in the amount of about P500,000.00 to my great damage and prejudice due to fraudulent acts of some of my fishpond workers.

Nowhere in the said letter, which was written seven months after DBP took possession of the fishpond, did CUBA intimate that upon DBP’s take-over there was a total of 230,000 pieces of bangus, but all of which died because of DBP’s representatives prevented her men from feeding the fish.

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The award of actual damages should, therefore, be struck down for lack of sufficient basis.

In view, however, of DBP’s act of appropriating CUBA’s leasehold rights which was contrary to law and public policy, as well as its false representation to the then Ministry of Agriculture and Natural Resources that it had “foreclosed the mortgage,” an award of moral damages in the amount of P50,000 is in order conformably with Article 2219(10), in relation to Article 21, of the Civil Code. Exemplary or corrective damages in the amount of P25,000 should likewise be awarded by way of example or correction for the public good.[20] There being an award of exemplary damages, attorney’s fees are also recoverable.

WHEREFORE, the 25 May 1994 Decision of the CA is hereby REVERSED, except as to the award of P50,000 as moral damages, which is hereby sustained. The 31 January 1990 Decision of the RTC Pangasinan, Branch 54, in Civil Case No. A-1574 is MODIFIED setting aside the finding that condition no. 12 of the deed of assignment constituted pactum commissorium and the award of actual damages; and by reducing the amounts of moral damages from P100,000 to P50,000; the exemplary damages, from P50,000 to P25,000; and the attorney’s fees, from P100,000 to P20,000. The DBP is hereby ordered to render an accounting of the income derived from the operation of the fishpond in question.

Let this case be REMANDED to the trial court for the reception of the income statement of DBP, as well as the statement of the account of Lydia P. Cuba, and for the determination of each party’s financial obligation to one another.----------------------------------------------------------------------------------

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