1. U.S. v. Barias 23 Phil 434

Respondent, a motorman, ran over a child crossing on one of the streets in Manila, causing the death of the child. Respondent looked backwards prior to starting his engine and did not notice the child, who was then 3 years old, standing in front of the vehicle.

Held: Negligence is "the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. Negligence is relative or comparative, not an absolute term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances.

Ordinary care, if the danger is great, may rise to the grade of a very exact and unchangeable attention.

If a moments attention and reflection would have shown a person that the act which he was about to perform was liable to have the harmful consequences which it had, such person acted with temerity and may be guilty of imprudencia temeraria.

The diligence with which the law requires the individual at all times to govern his conduct varies with the nature of the situation in which he is placed and with the importance of the act which he is to perform.

Held, that a motorman operating a street car on a public street in a densely populated section of the city of Manila is bound to know and to recognize that any negligence on his part in observing the track over which he is running his car may result in fatal accidents. He has no right, when he starts from a standstill, to assume that the track before his car is clear. It is his duty to satisfy himself of that fact by keeping a sharp lookout and doing everything in his power to avoid the danger which is necessarily incident to the operation of heavy street cars on thoroughfares in populous sections of the city.

By inclining the head and shoulders forward very slightly, and glancing in front of the car, a person in the position of a motorman could not fail to see a child on the track immediately in front of his car; and we hold that it is the manifest duty of a motorman, who is about to start his car on a public thoroughfare in a thickly-settled district, to satisfy himself that the track is clear immediately in front of his car, a person in the position of a motorman could not fail to see a child on the track immediately in front of his car;

In the absence of some regulation of his employers, a motorman who has brought his car to a standstill is not bound to keep his eyes directly to the front while the car is stopped, but before setting it again in motion, it is his duty to satisfy himself that the track is clear, and for that purpose to look and to see the track just in front of his car.

The reasons of public policy which impose upon street car companies and their employees the duty of exercising the utmost degree of diligence in securing the safety of passengers, apply with equal force to the duty of avoiding infliction of injuries upon pedestrians and others upon the public streets and thoroughfares over which such companies are authorized to run their cars.

He who has done everything on his part to prevent his actions from causing damage to another, although he has not succeeded in doing so, notwithstanding his efforts, is the victim of an accident, and cannot be considered responsible for the same.

The evidence shows that the thoroughfare on which the incident occurred was a public street in a densely populated section of the city. The hour was six in the morning, or about the time when the residents of such streets begin to move about. Under such conditions a motorman of an electric street car was clearly charged with a high degree of diligence in the performance of his duties. He was bound to know and to recognize that any negligence on his part in observing the track over which he was running his car might result in fatal accidents. He had no right to assume that the track before his car was clear. It was his duty to satisfy himself of that fact by keeping a sharp lookout, and to do everything in his power to avoid the danger which is necessarily incident to the operation of heavy street cars on public thoroughfares in populous sections of the city.

2. Samson v. Dionisio 11 Phil 538

Spouses Dionisio allegedly constructed a dam which caused overflooding in Petitioner Samsons pond, causing 2000 fish valued at P100 each to escape. The new dike closed the end of the Magos Creek which empties into the Bocaue River, thereby preventing the water to flow through the river. Petitioner sued respondents to reopen for public use the mouth of the Magos Creek and to pay damages. Respondents argued that the said creek was owned privately by them and that no creek exists in sitio Magos.

Held: The court held that the Magos Creek was utilized by the public in general and that through the said creek the waters coming from the adjoining estates during the rainy season flowed into the river until the creek was closed by respondents. The creek was of public ownership. Thus, respondents had no right to construct the dams, closing its entrance into the Bocaue River.

Respondents are under the obligation to indemnify the plaintiff.

No private person has a right to usurp the possession of an estero, a branch of a river, or a lake of public dominion and use, unless it is shown that the body of water is entirely within his own property, otherwise he violates the law which expressly excepts such waters from exclusive private use.

Any person who without due authority constructs a bank or dike, stopping the flow or communication between a creek or a lake and a river, thereby causing loss and damages to a third party who, like the rest of the residents, is entitled to the use and enjoyment of the stream or lake, shall be liable to the payment of an indemnity for loss and damages to the injured party.

3. Uy Piaco v. Osmena 9 Phil 299Uy Piacos store and its contents were garnished by respondent sheriff in satisfaction of a judgment rendered against Uy Chiam-Liong and Dy-Siongco. It appears that the original owners of the merchandise sold the store to Uy Piaco as payment for the debt owed by the former in favor of the latter.

When the said goods and furniture were attached on the 24th of August, 1906, at the request of another creditor, Martina Rodriguez, it was almost eight months since the articles attached had no longer belonged to Uy Chiam-Liong and Dy-Siongco, but to the plaintiff, Uy Piaoco.

Held: Maintaining the attachment on the property of the said plaintiff, the same not being subject to the liability of the Chinese debtors of Martina Rodriguez, has injured the said plaintiff by depriving him of the possession of his personal property for about seventyfive days, and in consequence thereof is bound to repair the injury caused, in accordance with the provisions of article 1902 of the Civil Code, which treats of obligations arising from fault or negligence.

4. Elcano v. Hill 77 SCRA 98

For the killing of the son, Agapito, of plaintiffs, defendant Reginald Hill was prosecuted criminally. He was acquitted on the ground that his act was not criminal because of lack of intent to kill, coupled with mistake. The present case is a civil action for damages arising from the same incident.

Held: The concept of culpa aquiliana includes acts which are criminal in character, whether voluntary or negligent.

The extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused.

The acquittal of Reginal Hill in the criminal case has not extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant action against him.

Under Article 2180, (T)he obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. In the instant case, it is not controverted that Reginald, although married, was living with his father and getting subsistence from him at the time of the occurrence in question. Factually, therefore, Reginald was still subservient to and dependent on his father.

The clear implication of Article 399, in providing that a minor emancipated by marriage may not, nevertheless, sue or be sued without the assistance of the parents, is that such emancipation does not carry with it freedom to enter into transactions or do any act that can give rise to judicial litigation.

Article 2180 applies to Atty. Hill notwithstanding the emancipation by marriage of Reginald. However, in as much as it is evident that Reginald is now of age, as a matter of equity, the liability of Atty. Hill has become merely subsidiary to that of his son.

5. Tenchavez v. Escano 15 SCRA 355;64 OG 4239

Vicenta Escano clandestinely married Pastor Tenchavez without the knowledge of Escanos parents. Vicentas parents discovered the marriage and took her home. Vicentas parents wanted to have the couple get married in a proper ceremony before the church but later on sought legal separation after the couple became estranged. Vicenta flew to the US, married an American, and sought a decree of divorce to nullify her marriage with Tenchavez. Tenchavez sued Escano and her parents for damages.

Held: A foreign divorce between Filipino citizens,, sought and decreed after the effectivity of the new Civil Code (Republic Act No. 386), is not entitled to recognition as valid in the Philippines; and neither is the marriage contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in this country.

The marriage of the divorced wife and her cohabitation with a person other than the lawful husband entitles the latter to a decree of legal separation conformably to Philippine law.

The desertion and securing of an invalid divorce decree by one consort entitles the other to recover moral damages.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicenta Escao, it is proper to take into account, against his patently unreasonable claim for a million pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized by publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c) that there is evidence that appellant had originally agreed to the annulment of the marriage, although such a promise was legally invalid, being against public policy.

Tenchavez was ordered to pay damages to spouses Escano for falsely charging Vicentas parents with racial or social discrimination and with having exerted efforts and pressured her to seek annulment and divorce, which caused them unrest and anxiety.

6. Bacolod Murcia Milling Co. v. First Farmers 103 SCRA 436

Doing of an act, like extension of credit, which is lawful, does not render one liable for tort simply because the act enables another to accomplish a wrong. Nowhere is it alleged that defendants had notice, information or knowledge of any flaw, much less any illegality, in their co-defendants actuations. There is also no averment of facts to support the allegation that the defendants acts were done in bad faith. PNB and NIDC came into the picture in the ordinary and usual course of its business after the borrowing entity had established itself as capable of being treated as a new milling district because it could already operate and had its array of adhering planters.

Held: To support a judgment for damages, facts which justify the inference of a lack or absence of good faith must be alleged and proven.

NIDC and PNB were sued by FFMC on the ground that the former extended loans to defendant sugar mill to assist in the illegal creation and operation of the mill. FFMC alleges that NIDC and PNB are joint tortfeasor. PNB and NIDC argue that they have no participation whatsoever on the alleged illegal transfers of the planters from plaintiff to defendant mill; that the granting of loans did not violate any rights of the plaintiff as it was in the ordinary and usual course of business.

7. Vazquez v. Borja 74 Phil 560

Francisco de Borja sued Antonio Vasquez and Fernando Buruego for damages on account of non-fulfillment of the palay delivery contract the parties entered into. Vasquez and Buruego allegedly failed to deliver palay and sacks which de Borja contracted to and actually paid for. Vasquez argued that he entered into the contract in his capacity as president and acting manager of Natividad-Vasquez Sabani Development Co., Inc., and thus cannot be held personally liable for the breach of contract.

Held: The fact that the corporation, acting thru Vazquez as its manager, was guilty of negligence in the fulfillment of the contract, did not make Vazquez principally or even subsidiarily liable for such negligence. Since it was the corporations contract, its non-fulfillment, whether due to negligence or fault or to any other cause, made the corporation and not its agent liable.

On the other hand, if independently of the contract, Vazquez by his fault or negligence caused damage to the plaintiff, he would be liable to the latter under article 1902 of the Civil Code. But then the plaintiffs cause of action should be based on culpa aquiliana and not on the contract alleged in his complaint herein; and Vazquez liability would be principal and not merely subsidiary, as the Court of Appeals has erroneously held. No such cause of action was alleged in the complaint or tried by express or implied consent of the parties. Thus, it was error for the CA to remand the case to the trial court to try and decide such issue.

On Vasquezs counterclaim, the court ruled that the fact that the contract was celebrated not in his personal capacity but as acting president and manager of the corporation, does not warrant his contention that the suit against him is malicious and tortuous. There is no sufficient basis for such counterclaim.

8. Air France v. Carrascoso 18 SCRA 155; 64 OG 4524

Air France was ordered to pay moral and exemplary damages and attorneys fees with interest for having defendant transfer from a first class seat to a tourist seat. Defendant purchased a first class ticket for his Manila to Rome flight but was forced to sit on the tourist class at Bangkok and stayed there until the plane reached Rome. On his return trip from Madrid to Manila, defendant instead took a Pan American World Airways plane. Defendant was asked to vacate his seat by the manager, the latter arguing that a (white) man deserves the seat. Defendant sued petitioner for damages. Petitioner argues that defendants action is based on breach of contract; that to authorize an award for moral damages there must be an averment of fraud or bad faith; and that the purchase of a first class ticket does not guarantee a first class seat as such is subject to seat availability and confirmation.

Held: While there is no specific mention of the term bad faith in the complaint, the inference of bad faith is there; it may be drawn from the facts and circumstances set forth therein. The manager not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class compartment just to give way to another passenger whose right thereto has not been established. Certainly, this is bad faith. "Bad faith", as understood in law, contemplates a state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for ulterior purpose.

Neglect or malfeasance of the carriers employees could give ground for an action for damages. Damages here are proper because the stress of respondents action is placed upon his wrongful expulsion, which is a violation of a public duty by petitioner air carrier a case of quasi-delict.

Award of moral damages is proper, despite petitioners argument that respondents action is planted upon breach of contract, where the stress of the action is put on wrongful expulsion, a violation of a public duty by air carrier, the contract having been averred only to establish the relation between the parties.

The responsibility of an employer for the tortuous act of his employees is well settled in law (Article 2130, Civil Code). Petitioner-air carrier must answer for the willful, malevolent act of its manager.

The court has ample power to grant exemplary damages, the only condition being that defendant should have acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. As the manner of ejectment of plaintiff from his first class seat fits into this legal precept, exemplary damages are well awarded, in addition to moral damages.

The grant of exemplary damages justifies a similar judgment for attorneys fees. The court below felt that it is but just and equitable that attorneys fees be given and the Supreme Court does not intend to break faith with the tradition that discretion well-exercised as it is here should not be disturbed.

A contract to transport passengers is quite different in kind and degree from any other contractual relation. And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carriers employees, naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carriers employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So, any rude or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier.

Breach of contract may be a tort. Although the relation of passenger and carrier is contractual both in origin and nature, nevertheless, the act that breaks the contract may also be a tort.

9. Schmitz Transport & Brokerage Corp. v. Transport Venture. Inc. 456 SCRA 557

SYTCO Pte. Ltd shipped 545 hot rolled steel sheets to the Philippines through a ship owned by Black Sea. Little Giant Steel Pipe Corporation (Little Giant) was the consignee and insured the cargo with Industrial Insurance. Little Giant also hired TVI to bring a barge up to the ship to unload the cargo. The Philippine Ports Authority (PPA) assigned the ship to a berth outside the breakwater at the Manila South Harbor. Schmitz was contracted to get all the clearances necessary for the transaction. TVI managed to unload 37 of the 545 of the cargo off the ship before the storm but was unable to transfer it back to the pier. The barge capsized during the storm and the 37 coils were lost in the sea. Little Giant and Industrial tried to recover the coils to no avail.

Little Giant thus filed a complaint against Industrial. Industrial paid Php 5M and a subrogation receipt in favor of Industrial was issued by Little Giant.

Industrial then sued Shcimtz, TVI, and Blacksea. Industrial blamed it on the Storm (Signal No. 1). The RTC held that they were negligent for unloading the cargo outside the breakwater even if there was a storm. They were solidarily liable because each one was essential such that were it not for each others contributory negligence the incident would not have happened. Even if it was a fortuitous event, they could have chosen where or when the unloading should have commenced. CA affirmed.

Schmitz then filed this petition against TVI, Industrial, and Blacksea. It claims that in chartering the barge and tugboat of TVI, it was acting for its principal, Little Giant, hence, the transportation contract was by and between Little Giant and TVI.

Held: The principle embodied in the act of God doctrine strictly requires that the act must be occasioned solely by the violence of naturehuman intervention is to be excluded from creating or entering into the cause of the mischief.

Scmitz and TVI are solidarily liable. But not Black Sea since their liability only extended up to the time the merchandise was delivered, which it was. Schmitz is a common carrier based on the testimony of its officers and the activities it undertook. Even if it was only the broker-agent of Little Giant in securing the release of the cargoes, it was discharging its own personal obligation under a contract of carriage. So its negligence is not the negligence of the principal. While Schimtz sent checkers and a supervisor on board the vessel to counter-check the operations of TVI, it failed to take all available and reasonable precautions to avoid the loss. After noting that TVI failed to arrange for the prompt towage of the barge despite the deteriorating sea conditions, it should have summoned the same or another tugboat to extend help, but it did not.

Under a given set of facts, a customs broker may be regarded as a common carrier. Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air, for compensation, offering their services to the public.

Schmitz, which did not have any barge or tugboat, engaged the services of TVI as handler to provide the barge and the tugboat. In their Service Contract, while Little Giant was named as the consignee, Schmitz did not disclose that it was acting on commission and was chartering the vessel for Little Giant. Little Giant did not thus automatically become a party to the Service Contract and was not, therefore, bound by the terms and conditions therein.

Not being a party to the service contract, Little Giant cannot directly sue TVI based thereon but it can maintain a cause of action for negligence.

While a private carrier, like TVI, is under no duty to observe extraordinary diligence, it is still required to observe ordinary diligence.

TVIs failure to promptly provide a tugboat did not only increase the risk that might have been reasonably anticipated during the shipside operation, but was the proximate cause of the loss. No man of ordinary prudence would leave a heavily loaded barge floating for a considerable number of hours, at such a precarious time, and in the open sea, knowing that the barge does not have any power of its own and is totally defenseless from the ravages of the sea.

When an act which constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability had no contract existed between the parties, the contract can be said to have been breached by tort, thereby allowing the rules on tort to apply. That it was nighttime and, therefore, the members of the crew of a tugboat would be charging overtime pay did not excuse TVI from calling for one such tugboat.

10. Singson v. BPI 23 SCRA 1117

Singsons current account with the Bank of the Philippine Islands was garnished to satisfy a judgment against Singon sentencing him to pay damages in favor of Philippine Milling Co. Two checks were drawn by Singson against his bank account. Both checks were dishonored by the bank, believing that Singson had no more control over the balance of his deposits in the bank and that his account has already been garnished. Singson wrote the bank claiming that his name was not included in the Writ of Execution and Notice of Garnishment, which the bank later on confirmed to be correct. The president of the bank admitted their mistake. Singson sued the bank and its president for damages.

The lower court held that Singsons claim for damages cannot be based upon a tort because his relation with the bank is contractual in nature. Held: The existence of a contract between the parties does not bar the commission of a tort by the one against the other and the consequent recovery of damages therefor. The act that breaches the contract may also be a tort.

In view, however, of the facts obtaining in the case at bar, and considering, particularly, the circumstance that the wrong done to the plaintiffs was remedied as soon as the President of the bank realized the mistake he and his subordinate employee had committed, the Court finds that an award of nominal damagesthe amount of which need not be provenin the sum of P1,000, in addition to attorneys fees in the sum of P500, would suffice to vindicate plaintiffs rights.

11. Araneta v. de Joya 57 SCRA 59

Respondent sent Taylor abroad to take up special studies in television without authority from the BOD. Taylor continued to receive his salary despite being abroad. The salary vouchers were approved by respondent and the checks were likewise signed by him. The company filed a suit against respondent for recovery for the sum disbursed to Taylor. Respondent argued that the trip was ratified by the board and that in any case, under the by-laws, as general manager he had the discretion to authorize the trip which was for the companys benefit.

Held: Company vice-president who signed payroll checks thrice for the salary of employee whose travel abroad is unauthorized is guilty of a quasi-delict and liable for the expenses incurred by the company for such trip. In spite of his being a vice-president and director of the Ace Advertising, the petitioner remained passive, throughout the period of Taylor's stay abroad, concerning the unauthorized disbursements of corporate funds for the latter.

An unauthorized disbursement of corporate funds is tantamount to a simple quasi-delict committed upon the corporation. Araneta knew about the disbursements and approved the expenditure of corporate funds. Good faith was not an acceptable defense, as this was not substantiated.

Contractual employee may be guilty of tort against the company. Further, notwithstanding his contractual position in Ace Advertising, he could still be held liable for tort. The existence of a contract between the parties constitutes no bar to the commission of a tort by one against the other and the consequent recovery of damages.

12. Makati Shangrila Hotel & resort, Inc. v.Harper

Christian Harper, a Norwegian national, was on a business trip in Manila and stayed at the Shangri-La Hotel. On the day he was supposed to check out, he was murdered inside his hotel room by unidentified malefactors. Harpers death was discovered after his relatives in Norway tried to contact him, prompted by a verification call from his credit card company. The credit card company called for verification because a man posing to be Harper attempted to purchase a Cartier ladys watch at a jewelry store in Glorietta. The purchase did not push through because the man failed to answer the credit card company after the purchase was phoned in by the cashier and left the store. Petitioner argues that respondents failed to prove its negligence; that Harpers own negligence in allowing the killers into his hotel room was the proximate cause of his death; and that hotels were not insurers of the safety of their guests.

Held: The hotel owner is liable for civil damages to the surviving heirs of its hotel guest whom strangers murder inside his hotel room. The conclusion of negligence is grounded mainly on the plaintiffs inadequate hotel security, particularly on the failure to deploy sufficient security personnel or roving guards. The male culprit who entered Harpers room was never checked by any of the guards when he came inside the hotel. It was only through the monitor that the hotel became aware of his entry. The man even looked at the CCTV before entering Harpers room. Such act showing wariness and his entry to the hotel at an unholy hour should have aroused suspicion on the part of the roving guard in the floor, had there been any. However, there was none at that time.

Liability on the part of the defendant is based upon the fact that he was in a better situation than the injured person to foresee and prevent the happening of the injurious occurrence.There is no dispute that even prior to the untimely demise of Mr. Harper, defendant was duly forewarned of the security lapses in the hotel. Col. De Guzman was particularly concerned with the security of the private areas where the guest rooms are. He wanted not just one roving guard in every three or four floors. He insisted there must be at least one in each floor considering that the hotel is L-shaped and there are blind spots in the hallways.

In applying the premises liability rule in the instant case as it is applied in some jurisdiction (in the United States, it is enough that guests are injured while inside the hotel premises to make the hotelkeeper liable. With great caution should the liability of the hotelkeeper be enforced when a guest died inside the hotel premises.

Also, there were prior incidents (loss of items) which should have forewarned the hotel management of the security lapses in the hotel.

Makati Shangri-La Hotel, to stress, is a five-star hotel. The reasonable care that it must exercise for the safety and comfort of its guests should be commensurate with the grade and quality of the accommodation it offers.

Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

Defendant-appellants contention that it was Christian Harpers own negligence in allowing the malefactors to his room that was the proximate cause of his death, is untenable. Petitioner is engaged in a business imbued with public interest, ergo, it is bound to provide adequate security to its guests. Its negligence is the proximate cause of the chain of events. Had there been reasonable security precautions, the same could have saved Christian Harper from death.

The hotel business is imbued with public interest. Catering to the public, hotelkeepers are bound to provide not only lodging for their guests but also security to the persons and belongings of their guests.

Negligence is the omission to do something which a reasonable man, guided by considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. The test is: Did defendant, in doing the alleged negligent act, use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, the person is guilty of negligence.

The test of negligence is objective. We measure the act or omission of the tortfeasor with a perspective as that of an ordinary reasonable person who is similarly situated.

13. Far East Bank v. Court of Appeals 241 SCRA 671

Luis Luna and Clarita Luna were holders of a Fareastcard issued by FEBTC. Clarita Luna lost the supplemental card and so, in accordance with the banks security policy, the supplemental card and the principal card were considered hot card or cancelled card. Without being informed of the policy, Luis used the card to pay for a despendida lunch at Hotel Intercontinental Manila. The use of the card was denied after a phone call from FEBTCs Credit Card department. Feeling aggrieved, Luis Luna sued FEBTC for moral and exemplary damages and attorneys fees. The RTC and CA ruled in favor of Luna.

Held: In culpa contractual, moral damages may be recovered where the defendant is shown to have acted in bad faith or with malice in the breach of the contract. Bad faith, in this context, includes gross, but not simple, negligence. Exceptionally, in a contract of carriage, moral damages are also allowed in case of death of a passenger attributable to the fault (which is presumed) of the common carrier.

Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind affirmatively operating with furtive design or ill will.

Application of Article 21 of the Code can be warranted only when the defendant's disregard of his contractual obligation is so deliberate as to appropriate a degree of misconduct certainly no less worse than fraud or bad faith.

Article 21 is a mere declaration of a general principle in human relations that clearly must, in any case, give way to the specific provision of Article 2220 of the Civil Code authorizing the grant of moral damages in culpa contractual solely when the breach is due to fraud or bad faith.

A quasi-delict can be the cause for breaching a contract that might thereby permit the application of applicable principles on tort even where there is a pre-existing contract between the plaintiff and the defendant. This doctrine only applies where the act or omission complained of would constitute an actionable tort independently of the contract. The test (whether a quasi-delict can be deemed to underlie the breach of a contract) can be stated thusly: Where, without a preexisting contract between two parties, an act or omission can nonetheless amount to an actionable tort by itself, the fact that the parties are contractually bound is no bar to the application of quasi-delict provisions to the case.

The bank was remiss in indeed neglecting to personally inform Luis of his own card's cancellation. Nothing in the findings of the trial court and the appellate court, however, can sufficiently indicate any deliberate intent on the part of FEBTC to cause harm to private respondents. Neither could FEBTC's negligence in failing to give personal notice to Luis be considered so gross as to amount to malice or bad faith. Thus spouses Luna are entitle only to nominal damages but not moral and exemplary damages.

Nominal damages were awarded because of the simple fact that the bank failed to notify Mr. Luna, thus entitle him to recover a measure of damages sanctioned under Article 2221 of the Civil Code providing thusly: Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.

14. Cangco v. Manila Railroad 38 Phil 768

Jose Cangco was working as a clerk for the Manila Railroad Company. He rides the train to work everyday and for which he uses a pass issued by the company which entitled him to free transportation. One night, Jose Cangco stepped off the train but landed on a sack of watermelons, his feet slipping from under him, and fell violently on the platform. His body rolled and was drawn under the moving car, where his right arm was badly crushed and lacerated. The car moved forward possibly six meters before it came to a full stop. Cangco sued defendant company to recover damages on the ground of negligence of the servants and employees of the defendant in placing the sacks of watermelons upon the platform.

Held: Manila Railroad is liable for damages for breach of contract of carriage. Failure to perform a contract cannot be excused upon the ground that the breach was due to the negligence of a servant of the obligor, and that the latter exercised due diligence in the selection and control of the servant.

Defendant company is liable for the damage unless recovery is barred by the plaintiff's own contributory negligence. The legal liability of the defendant is based on a breach of the contract of carriage. Its liability is direct and immediate, different from the presumptive responsibility for the negligence of its servants (which can be rebutted by proof of the exercise of due care in their selection and supervision). Article 1903 of the Civil Code is not applicable to obligations arising ex contractu, but only to extra-contractual obligationsthat article relates only to culpa aquiliana and not to culpa contractual.

The obligation to make good the damage arises at the very instant that the unskillful servant, while acting within the scope of his employment, causes the injury. The liability of the master is personal and direct. But, if the master has not been guilty of any negligence whatever in the selection and direction of the servant, he is not liable for the acts of the latter, whether done within the scope of his employment or not, if the damage done by the servant does not amount to a breach of the contract between the master and the person injured.

The liability of masters and employers for the negligent acts or omissions of their servants or agents, when such acts or omissions cause damages which amount to the breach of a contract, is not based upon a mere presumption of the master's negligence in their selection or control, and proof of exercise of the utmost diligence and care in this regard does not relieve the master of his liability for the breach of his contract.

The legislature which adopted our Civil Code has elected to limit extracontractual liabilitywith certain well-defined exceptionsto cases in which moral culpability can be directly imputed to the persons to be charged. This moral responsibility may consist in having failed to exercise due care in one's own acts, or in having failed to exercise due care in the selection and control of one's agents or servants, or in the control of persons who, by reason of their status, occupy a position of dependency with respect to the person made liable for their conduct.

When the source of the obligation upon which plaintiff's cause of action depends is a negligent act or omission, the burden of proof rests upon plaintiff to prove the negligence if he does not his action fails. But when the facts averred show a contractual undertaking by defendant for the benefit of plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on the part of the defendant, or of his servants or agents. Proof of the contract and of its nonperformance is sufficient prima facie to warrant a recovery.

The test by which to determine whether the passenger has been guilty of negligence in attempting to alight from a moving railway train, is that of ordinary or reasonable care. It is to be considered whether an ordinarily prudent person, of the age, sex and condition of the passenger, would have acted as the passenger acted under the circumstances disclosed by the evidence. This care has been defined to be, not the care which may or should be used by the prudent man generally, but the care which a man of ordinary prudence would use under similar circumstances, to avoid injury.

In cases of non-contractual obligation it is the wrongful or negligent act or omission itself which creates the vinculum juris, whereas in contractual relations the vinculum exists independently of the breach of the voluntary duty assumed by the parties when entering into the contractual relation.

The conduct of the plaintiff in undertaking to alight while the train was yet slightly under way was not characterized by imprudence and that therefore he was not guilty of contributory negligence. Under the doctrine of comparative negligence announced in the Rakes case, if the accident was caused by plaintiff's own negligence, no liability is imposed upon defendant, whereas if the accident was caused by defendant's negligence and plaintiff's negligence merely contributed to his injury, the damages should be apportioned. It is, therefore, important to ascertain if defendant was in fact guilty of negligence.

15. Rodrigueza v. Manila Railroad 42 Phil 351

Manila Railroad operates a line through the district of Daraga in the municipality of Albay. On January 29, 1918, as one of its trains passed over said line, a great quantity of sparks were emitted from the smokestack of the locomotive, and fire was thereby communicated to four houses nearby belonging to the four plaintiffs, and the houses were entirely consumed. All of the houses were of light construction, except Rodriguezas house which was of strong materials, though the roof was covered with nipa and cogon. A strong wind was blowing at the time the fire occurred. It was alleged that the railroad company was negligent in relation to the origin of said fire: first, in failing to exercise proper supervision over the employees in charge of the locomotive; secondly, in allowing the locomotive which emitted these sparks to be operated without having the smokestack protected by some device for arresting sparks; thirdly, in using in its locomotive upon this occasion Bataan coal, a fuel of known inferior quality which, upon combustion, produces sparks in great quantity.

The sole ground upon which the defense is rested is that the house of Remigio Rodrigueza stood partly within the limits of the land owned by the defendant company, though exactly how far away from the companys track does not appear. It further appears that, after the railroad track was laid, the company notified Rodrigueza to get his house off the land of the company and to remove it from its exposed position. Rodrigueza did not comply with this suggestion, though he promised to put an iron roof on his house, which he never did. Instead, he changed the materials of the main roof to nipa, leaving the kitchen and media-aguas covered with cogon. Upon this fact it is contended for the defense that there was contributory negligence on the part of Remigio Rodrigueza in having his house partly on the premises of the Railroad Company, and that for this reason the company is not liable.

Domingo Gonzaga, Cristina Luna, and Perfecta Losantas are therefore entitled to recover upon the admitted fact that this fire originated in the negligent acts of the defendant; and the circumstance that the fire may have been communicated to their houses through the house of Remigio Rodrigueza (against whom the defense of contributory negligence was alleged), instead of having been directly communicated from the locomotive, is immaterial.

A railroad company, admittedly guilty of negligence in allowing sparks to escape from a locomotive engine, by means whereof fire destroys houses near its track, is liable for the damage; and the owner of a house thus consumed cannot be said to be guilty of contributory negligence, in relation to such fire, merely because his house is built partly on the land of the railroad company especially where the house was on the same spot prior to the laying of the railroad track. There is no proof that plaintiff unlawfully intruded upon the railroads property in the act of building his house. What really occurred undoubtedly is that the company, upon making this extension, had acquired the land only, leaving the owner of the house free to remove it. Hence he cannot be considered to have been a trespasser in the beginning. Rather, he was there at the sufferance of the defendant company, and so long as his house remained in this exposed position, he undoubtedly assumed the risk of any loss that might have resulted from fires occasioned by the defendants locomotives if operated and managed with ordinary care. But he cannot be held to have assumed the risk of any damage that might result from the unlawful negligent acts of the defendant. Nobody is bound to anticipate and defend himself against the possible negligence of another. Rather he has a right to assume that the other will use the care of the ordinarily prudent man.

In this case, the proximate and only cause of the damage that occurred was the negligent act of the defendant in causing this fire. The fact that Rodriguezas house was partly on the property of the railroad company and therefore in dangerous proximity to passing locomotives was an antecedent condition that may in fact have made the disaster possible, but that circumstance cannot be imputed to him as contributory negligence because: (1) the condition was not created by himself; (2) his house remained on this ground by the toleration, and therefore with the consent of the railroad company; and (3) even supposing the house to be improperly there, this fact would not justify the defendant in negligently destroying it.

The circumstance that the company, upon planting its line near Rodriguezas house, had requested or directed him to remove it, did not convert his occupancy into a trespass, or impose upon him any additional responsibility over and above what the law imposes in such situation. The company could have removed said house in the exercise of the power of eminent domain, but it elected not to do so. The case for the plaintiff is stronger where the company constructs its line in proximity to a house already built and fails to condemn it and remove it from its right of way.

16. Custodio v. Court of Appeals 573 SCRA 486

The lower court granted a right of way in favor of private respondent Mabasa, owner of a property in P. Burgos, Taguig adjacent to the lots owned by petitioners whose walkway petitioners blocked with adobe walls. The supreme court held that with respect to the issue of granting the right of way, petitioners are barred from raising the same as petitioners did not appeal from the decision of the court granting private respondents the right of way. Petitioners cannot obtain any affirmative relief other than those granted in the decision of the trial court. With respect to the award of damages, the court ruled that the award of damages has no substantial legal basis.

Held: 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 (1) a right of action for a legal wrong inflicted by the defendant, and (2) 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. 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.

There is a distinction between damages and injury.Injury the illegal invasion of a legal right;Damage the loss, hurt, or harm which results from the injury;Damages the recompense or compensation awarded for the damages suffered.Thus, there can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. These situations are often called damnum absque injuria.

To maintain an action for injuries, plaintiff 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 the legal responsibility by the person causing it. 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.

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 of the Civil Code can be applied, it is essential that the following requisites concur: (1) The defendant should have acted in a manner that is contrary to morals, good customs or public policy; (2) The acts should be willful; and (3) There was damage or injury to the plaintiff.

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, as provided in Article 430 of the Civil Code. There was no easement of way existing in favor of respondents, either by law or by contract. It was only the decision of the lower court which gave private respondents the right to use the said passageway. Prior to such decision, petitioners had an absolute right over the property and their act of fencing and enclosing the same was an act which they may lawfully perform in the employment and exercise of such right.

17. Philam Insurance Co. Inc. v. Court of Appeals 666 SCRA 438

Citibank ordered four generator sets (gensets) from the US. One of the gensets were delivered at Citibanks office in Makati which was being constructed by the building contractor DMCI. Citibank wanted to place one of the gensets at the top floor but its broker-forwarder declined as the latter had no power cranes. Thus, DMCI accepted the task. When the genset was lifted using DMCIs crane, both the cranes boom and the genset fell and got damaged.

Citibank demanded from DMCI the full value of the damaged genset. DMCI refused to pay, asserting that the damage was caused by an accident. Philam paid DMCIs insurance claim. Philam then sued DMCI for the value of the insured genset. The RTC ruled that DMCI is liable but the CA reversed.

For DMCI to be liable for damages:1. Negligence on its part must be established;2. That finding must be the proximate cause of the damage to the genset.

Philam failed to establish DMCIs negligence.

Negligence is the want of care required by the circumstances. It is a conduct that involves an unreasonably great risk of causing damage; or, more fully, a conduct that falls below the standard established by law for the protection of others against unreasonably great risk of harm.

Not all omissions can be considered as negligent. The test of negligence is as follows: Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist.

Reasonable men govern their conduct by the circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care only when there is something before them to suggest or warn of danger.

In this case, res ipsa loquitur is not applicable, since there is direct evidence on the issue of diligence or lack thereof pertaining to the lifting of the genset. The doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. In any event, res ipsa loquitur merely provides a rebuttable presumption ofnegligence.

The acts of the crane operator were rational and justified. The boom of the crane had to be raised three degrees to put the genset exactly in the proper designation. DMCI exercised the necessary care and precaution in lifting the genset.

Firstly, a whole team was involved in transferring the genset. Secondly, Del Pilar exercised reasonable care and caution when he tested the crane four times right before the actual operations to make sure that it could lift the genset. Thirdly, Del Pilar stopped turning the controls and it was only when the swinging stopped that he performed the next maneuver.