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G.R. No. 129282 November 29, 2001

DMPI EMPLOYEES CREDIT COOPERATIVE, INC., (DMPI-ECCI),petitioner,

vs.

HON. ALEJANDRO M. VELEZ, as Presiding Judge of the RTC, Misamis Oriental, Br. 20, and ERIBERTA

VILLEGAS,respondents.

PARDO,J.:

The Case

In this special civil action for certiorari, petitioner DMPI Employees Credit Cooperative, Inc. (DMPI-ECCI) seeks the

annulment of the order1of the Regional Trial Court, Misamis Oriental, Branch 20, granting the motion for

reconsideration of respondent Eriberta Villegas, and thus reversing the previous dismissal of Civil Case No. CV-94-

214.

The Facts

On February 18, 1994, the prosecuting attorney filed with the Regional Trial Court, Misamis Oriental, Branch 37, an

information for estafa2against Carmen Mandawe for alleged failure to account to respondent Eriberta Villegas the

amount of P608,532.46. Respondent Villegas entrusted this amount to Carmen Mandawe, an employee of

petitioner DMPI-ECCI, for deposit with the teller of petitioner.

Subsequently, on March 29, 1994, respondent Eriberta Villegas filed with the Regional Trial Court, Misamis

Oriental, Branch 20, a complaint3against Carmen Mandawe and petitioner DMPI-ECCI for a sum of money and

damages with preliminary attachment arising out of the same transaction. In time, petitioner sought the dismissal

of the civil case on the following grounds: (1) that there is a pending criminal case in RTC Branch 37, arising from

the same facts, and (2) that the complaint failed to contain a certification against forum shopping as required by

Supreme Court Circular No. 28-91.4

On December 12, 1996, the trial court issued an order5dismissing Civil Case No. CV-94-214. On January 21, 1997,

respondent filed a motion for reconsideration6of the order.

On February 21, 1997, the trial court issued an order7granting respondent's motion for reconsideration, thereby

recalling the dismissal of the case.

Hence, this petition.8

The Issues

The issues raised are: (1) whether the plaintiff's failure to attach a certification against forum shopping in the

complaint is a ground to dismiss the case;9and, (2) whether the civil case could proceed independently of the

criminal case for estafa without having reserved the filing of the civil action.

The Court's Ruling

On the first issue, Circular No. 28-9110of the Supreme Court requires a certificate of non-forum shopping to be

attached to petitions filed before the Supreme Court and the Court of Appeals. This circular was revised on

February 8, 199411by extending the requirement to all initiatory pleadings filed in all courts and quasi-judicial

agencies other than the Supreme Court and the Court of Appeals.

Respondent Villegas' failure to attach a certificate of non-forum shopping in her complaint did not violate Circular

No. 28-91, because at the time of filing, the requirement applied only to petitions filed with the Supreme Court and

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the Court of Appeals.12Likewise, Administrative Circular No. 04-94 is inapplicable for the reason that the

complaint was filed on March 29, 1994, three days before April 1, 1994, the date of effectivity of the circular.13

On the second issue, as a general rule, an offense causes two (2) classes of injuries. The first is the social injury

produced by the criminal act which is sought to be repaired thru the imposition of the corresponding penalty, and

the second is the personal injury caused to the victim of the crime which injury is sought to be compensated

through indemnity which is civil in nature.14

Thus, "every person criminally liable for a felony is also civilly liable."15This is the law governing the recovery ofcivil liability arising from the commission of an offense. Civil liability includes restitution, reparation for damage

caused, and indemnification of consequential damages.16

The offended party may prove the civil liability of an accused arising from the commission of the offense in the

criminal case since the civil action is either deemed instituted with the criminal action or is separately instituted.

Rule 111, Section 1 of the Revised Rules of Criminal Procedure, which became effective on December 1, 2000,

provides that:

"(a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense

charged shall be deemed instituted with the criminal actionunless the offended party waives the civil action,reserves the right to institute it separately or institutes the civil action prior to the criminal action." [Emphasis

supplied]

Rule 111, Section 2 further provides that

"After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until

final judgment has been entered in the criminal action." [Emphasis supplied]

However, with respect to civil actions for recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil

Code arising from the same act or omission, the rule has been changed.

Under the present rule, only the civil liability arising from the offense charged is deemed instituted with thecriminal action unless the offended party waives the civil action, reserves his right to institute it separately, or

institutes the civil action prior to the criminal action.17

There is no more need for a reservation of the right to file the independent civil actions under Articles 32, 33, 34

and 2176 of the Civil Code of the Philippines. "The reservation and waiver referred to refers only to the civil action

for the recovery of the civil liability arising from the offense charged. This does not include recovery of civil liability

under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission which

may be prosecuted separately even without a reservation."18

Rule 111, Section 3 reads:

"Sec. 3. When civil action may proceed independently.In the cases provided in Articles 32, 33, 34 and 2176 of the

Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed

independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may

the offended party recover damages twice for the same act or omission charged in the criminal action."

The changes in the Revised Rules on Criminal Procedure pertaining to independent civil actions which became

effective on December 1, 2000 are applicable to this case.

Procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage.

There are no vested rights in the rules of procedure.19

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Plaintiff learned that, through the intercession of the Saudi Arabian government, the Indonesian authorities agreed

to deport Thamer and Allah after two weeks of detention. Eventually, they were again put in service by defendant

SAUDI (sic). In September 1990, defendant SAUDIA transferred plaintiff to Manila.

On January 14, 1992, just when plaintiff thought that the Jakarta incident was already behind her, her superiors

requested her to see Mr. Ali Meniewy, Chief Legal Officer of SAUDIA, in Jeddah, Saudi Arabia. When she saw him, he

brought her to the police station where the police took her passport and questioned her about the Jakarta incident.

Miniewy simply stood by as the police put pressure on her to make a statement dropping the case against Thamer

and Allah. Not until she agreed to do so did the police return her passport and allowed her to catch the afternoon

flight out of Jeddah.

One year and a half later or on lune 16, 1993, in Riyadh, Saudi Arabia, a few minutes before the departure of her

flight to Manila, plaintiff was not allowed to board the plane and instead ordered to take a later flight to Jeddah to

see Mr. Miniewy, the Chief Legal Officer of SAUDIA. When she did, a certain Khalid of the SAUDIA office brought her

to a Saudi court where she was asked to sign a document written in Arabic. They told her that this was necessary to

close the case against Thamer and Allah. As it turned out, plaintiff signed a notice to her to appear before the court

on June 27, 1993. Plaintiff then returned to Manila.

Shortly afterwards, defendant SAUDIA summoned plaintiff to report to Jeddah once again and see Miniewy on June

27, 1993 for further investigation. Plaintiff did so after receiving assurance from SAUDIA's Manila manager, Aslam

Saleemi, that the investigation was routinary and that it posed no danger to her.

In Jeddah, a SAUDIA legal officer brought plaintiff to the same Saudi court on June 27, 1993. Nothing happened

then but on June 28, 1993, a Saudi judge interrogated plaintiff through an interpreter about the Jakarta incident.

After one hour of interrogation, they let her go. At the airport, however, just as her plane was about to take off, a

SAUDIA officer told her that the airline had forbidden her to take flight. At the Inflight Service Office where she was

told to go, the secretary of Mr. Yahya Saddick took away her passport and told her to remain in Jeddah, at the crew

quarters, until further orders.

On July 3, 1993 a SAUDIA legal officer again escorted plaintiff to the same court where the judge, to her

astonishment and shock, rendered a decision, translated to her in English, sentencing her to five months

imprisonment and to 286 lashes. Only then did she realize that the Saudi court had tried her, together with Thamer

and Allah, for what happened in Jakarta. The court found plaintiff guilty of (1) adultery; (2) going to a disco,

dancing and listening to the music in violation of Islamic laws; and (3) socializing with the male crew, in

contravention of Islamic tradition. 10

Facing conviction, private respondent sought the help of her employer, petitioner SAUDIA. Unfortunately, she was

denied any assistance. She then asked the Philippine Embassy in Jeddah to help her while her case is on appeal.

Meanwhile, to pay for her upkeep, she worked on the domestic flight of SAUDIA, while Thamer and Allah continued

to serve in the international

flights.11

Because she was wrongfully convicted, the Prince of Makkah dismissed the case against her and allowed her to

leave Saudi Arabia. Shortly before her return to Manila, 12she was terminated from the service by SAUDIA, without

her being informed of the cause.

On November 23, 1993, Morada filed a Complaint 13for damages against SAUDIA, and Khaled Al-Balawi ("Al-

Balawi"), its country manager.

On January 19, 1994, SAUDIA filed an Omnibus Motion To Dismiss 14which raised the following grounds, to wit: (1)

that the Complaint states no cause of action against Saudia; (2) that defendant Al-Balawi is not a real party in

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interest; (3) that the claim or demand set forth in the Complaint has been waived, abandoned or otherwise

extinguished; and (4) that the trial court has no jurisdiction to try the case.

On February 10, 1994, Morada filed her Opposition (To Motion to Dismiss) 15. Saudia filed a reply 16thereto on

March 3, 1994.

On June 23, 1994, Morada filed an Amended Complaint 17wherein Al-Balawi was dropped as party defendant. On

August 11, 1994, Saudia filed its Manifestation and Motion to Dismiss Amended Complaint 18.

The trial court issued an Order 19dated August 29, 1994 denying the Motion to Dismiss Amended Complaint filed

by Saudia.

From the Order of respondent Judge 20denying the Motion to Dismiss, SAUDIA filed on September 20, 1994, its

Motion for Reconsideration 21of the Order dated August 29, 1994. It alleged that the trial court has no jurisdiction

to hear and try the case on the basis of Article 21 of the Civil Code, since the proper law applicable is the law of the

Kingdom of Saudi Arabia. On October 14, 1994, Morada filed her Opposition 22(To Defendant's Motion for

Reconsideration).

In the Reply 23filed with the trial court on October 24, 1994, SAUDIA alleged that since its Motion for

Reconsideration raised lack of jurisdiction as its cause of action, the Omnibus Motion Rule does not apply, even ifthat ground is raised for the first time on appeal. Additionally, SAUDIA alleged that the Philippines does not have

any substantial interest in the prosecution of the instant case, and hence, without jurisdiction to adjudicate the

same.

Respondent Judge subsequently issued another Order 24dated February 2, 1995, denying SAUDIA's Motion for

Reconsideration. The pertinent portion of the assailed Order reads as follows:

Acting on the Motion for Reconsideration of defendant Saudi Arabian Airlines filed, thru counsel, on September 20,

1994, and the Opposition thereto of the plaintiff filed, thru counsel, on October 14, 1994, as well as the Reply

therewith of defendant Saudi Arabian Airlines filed, thru counsel, on October 24, 1994, considering that a perusal

of the plaintiffs Amended Complaint, which is one for the recovery of actual, moral and exemplary damages plusattorney's fees, upon the basis of the applicable Philippine law, Article 21 of the New Civil Code of the Philippines,

is, clearly, within the jurisdiction of this Court as regards the subject matter, and there being nothing new of

substance which might cause the reversal or modification of the order sought to be reconsidered, the motion for

reconsideration of the defendant, is DENIED.

SO ORDERED. 25

Consequently, on February 20, 1995, SAUDIA filed its Petition forCertiorariand Prohibition with Prayer for

Issuance of Writ of Preliminary Injunction and/or Temporary Restraining Order 26with the Court of Appeals.

Respondent Court of Appeals promulgated a Resolution with Temporary Restraining Order 27dated February 23,

1995, prohibiting the respondent Judge from further conducting any proceeding, unless otherwise directed, in the

interim.

In another Resolution 28promulgated on September 27, 1995, now assailed, the appellate court denied SAUDIA's

Petition for the Issuance of a Writ of Preliminary Injunction dated February 18, 1995, to wit:

The Petition for the Issuance of a Writ of Preliminary Injunction is hereby DENIED, after considering the Answer,

with Prayer to Deny Writ of Preliminary Injunction (Rollo, p. 135) the Reply and Rejoinder, it appearing that herein

petitioner is not clearly entitled thereto (Unciano Paramedical College, et.Al., v. Court of Appeals, et.Al., 100335,

April 7, 1993, Second Division).

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SO ORDERED.

On October 20, 1995, SAUDIA filed with this Honorable Court the instant Petition 29for Review with Prayer for

Temporary Restraining Order dated October 13, 1995.

However, during the pendency of the instant Petition, respondent Court of Appeals rendered the Decision 30dated

April 10, 1996, now also assailed. It ruled that the Philippines is an appropriate forum considering that the

Amended Complaint's basis for recovery of damages is Article 21 of the Civil Code, and thus, clearly within the

jurisdiction of respondent Court. It further held thatcertiorariis not the proper remedy in a denial of a Motion toDismiss, inasmuch as the petitioner should have proceeded to trial, and in case of an adverse ruling, find recourse

in an appeal.

On May 7, 1996, SAUDIA filed its Supplemental Petition for Review with Prayer for Temporary Restraining Order 31

dated April 30, 1996, given due course by this Court. After both parties submitted their Memoranda, 32the instant

case is now deemed submitted for decision.

Petitioner SAUDIA raised the following issues:

I

The trial court has no jurisdiction to hear and try Civil Case No. Q-93-18394 based on Article 21 of the New Civil

Code since the proper law applicable is the law of the Kingdom of Saudi Arabia inasmuch as this case involves what

is known in private international law as a "conflicts problem". Otherwise, the Republic of the Philippines will sit in

judgment of the acts done by another sovereign state which is abhorred.

II

Leave of court before filing a supplemental pleading is not a jurisdictional requirement. Besides, the matter as to

absence of leave of court is now moot and academic when this Honorable Court required the respondents to

comment on petitioner's April 30, 1996 Supplemental Petition For Review With Prayer For A Temporary

Restraining Order Within Ten (10) Days From Notice Thereof. Further, the Revised Rules of Court should be

construed with liberality pursuant to Section 2, Rule 1 thereof.

III

Petitioner received on April 22, 1996 the April 10, 1996 decision in CA-G.R. SP NO. 36533 entitled "Saudi Arabian

Airlines v. Hon. Rodolfo A. Ortiz, et al." and filed its April 30, 1996 Supplemental Petition For Review With Prayer

For A Temporary Restraining Order on May 7, 1996 at 10:29 a.m. or within the 15-day reglementary period as

provided for under Section 1, Rule 45 of the Revised Rules of Court. Therefore, the decision in CA-G.R. SP NO.

36533 has not yet become final and executory and this Honorable Court can take cognizance of this case. 33

From the foregoing factual and procedural antecedents, the following issues emerge for our resolution:

I.

WHETHER RESPONDENT APPELLATE COURT ERRED IN HOLDING THAT THE REGIONAL TRIAL COURT OF

QUEZON CITY HAS JURISDICTION TO HEAR AND TRY CIVIL CASE NO. Q-93-18394 ENTITLED "MILAGROS P.

MORADA V. SAUDI ARABIAN AIRLINES".

II.

WHETHER RESPONDENT APPELLATE COURT ERRED IN RULING THAT IN THIS CASE PHILIPPINE LAW SHOULD

GOVERN.

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Petitioner SAUDIA claims that before us is a conflict of laws that must be settled at the outset. It maintains that

private respondent's claim for alleged abuse of rights occurred in the Kingdom of Saudi Arabia. It alleges that the

existence of a foreign element qualifies the instant case for the application of the law of the Kingdom of Saudi

Arabia, by virtue of thelex loci delicti commissirule. 34

On the other hand, private respondent contends that since her Amended Complaint is based on Articles 19 35and

21 36of the Civil Code, then the instant case is properly a matter of domestic law. 37

Under the factual antecedents obtaining in this case, there is no dispute that the interplay of events occurred in twostates, the Philippines and Saudi Arabia.

As stated by private respondent in her Amended Complaint 38dated June 23, 1994:

2. Defendant SAUDI ARABIAN AIRLINES or SAUDIA is a foreign airlines corporation doing business in the

Philippines. It may be served with summons and other court processes at Travel Wide Associated Sales (Phils.).

Inc., 3rd Floor, Cougar Building, 114 Valero St., Salcedo Village, Makati, Metro Manila.

xxx xxx xxx

6. Plaintiff learned that, through the intercession of the Saudi Arabian government, the Indonesian authorities

agreed to deport Thamer and Allah after two weeks of detention. Eventually, they were again put in service by

defendant SAUDIA. In September 1990, defendant SAUDIA transferred plaintiff to Manila.

7. On January 14, 1992, just when plaintiff thought that the Jakarta incident was already behind her, her superiors

reauested her to see MR. Ali Meniewy, Chief Legal Officer of SAUDIA in Jeddah, Saudi Arabia. When she saw him, he

brought her to the police station where the police took her passport and questioned her about the Jakarta incident.

Miniewy simply stood by as the police put pressure on her to make a statement dropping the case against Thamer

and Allah. Not until she agreed to do so did the police return her passport and allowed her to catch the afternoon

flight out of Jeddah.

8. One year and a half later or on June 16, 1993, in Riyadh, Saudi Arabia, a few minutes before the departure of her

flight to Manila, plaintiff was not allowed to board the plane and instead ordered to take a later flight to Jeddah to

see Mr. Meniewy, the Chief Legal Officer of SAUDIA. When she did, a certain Khalid of the SAUDIA office brought

her to a Saudi court where she was asked to sigh a document written in Arabic. They told her that this was

necessary to close the case against Thamer and Allah. As it turned out, plaintiff signed a notice to her to appear

before the court on June 27, 1993. Plaintiff then returned to Manila.

9. Shortly afterwards, defendant SAUDIA summoned plaintiff to report to Jeddah once again and see Miniewy on June

27, 1993 for further investigation. Plaintiff did so after receiving assurance from SAUDIA's Manila manger, Aslam

Saleemi, that the investigation was routinary and that it posed no danger to her.

10. In Jeddah, a SAUDIA legal officer brought plaintiff to the same Saudi court on June 27, 1993. Nothing happened

then but on June 28, 1993, a Saudi judge interrogated plaintiff through an interpreter about the Jakarta incident.

After one hour of interrogation, they let her go. At the airport, however, just as her plane was about to take off, a

SAUDIA officer told her that the airline had forbidden her to take that flight. At the Inflight Service Office where she

was told to go, the secretary of Mr. Yahya Saddick took away her passport and told her to remain in Jeddah, at the

crew quarters, until further orders.

11. On July 3, 1993 a SAUDIA legal officer again escorted plaintiff to the same court where the judge, to her

astonishment and shock, rendered a decision, translated to her in English, sentencing her to five months

imprisonment and to 286 lashes. Only then did she realize that the Saudi court had tried her, together with Thamer

and Allah, for what happened in Jakarta. The court found plaintiff guilty of (1) adultery; (2) going to a disco,

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dancing, and listening to the music in violation of Islamic laws; (3) socializing with the male crew, in contravention

of Islamic tradition.

12. Because SAUDIA refused to lend her a hand in the case, plaintiff sought the help of the Philippines Embassy in

Jeddah. The latter helped her pursue an appeal from the decision of the court. To pay for her upkeep, she worked

on the domestic flights of defendant SAUDIA while, ironically, Thamer and Allah freely served the international

flights. 39

Where the factual antecedents satisfactorily establish the existence of a foreign element, we agree with petitionerthat the problem herein could present a "conflicts" case.

A factual situation that cuts across territorial lines and is affected by the diverse laws of two or more states is said

to contain a "foreign element". The presence of a foreign element is inevitable since social and economic affairs of

individuals and associations are rarely confined to the geographic limits of their birth or conception. 40

The forms in which this foreign element may appear are many. 41The foreign element may simply consist in the

fact that one of the parties to a contract is an alien or has a foreign domicile, or that a contract between nationals of

one State involves properties situated in another State. In other cases, the foreign element may assume a complex

form. 42

In the instant case, the foreign element consisted in the fact that private respondent Morada is a resident

Philippine national, and that petitioner SAUDIA is a resident foreign corporation. Also, by virtue of the employment

of Morada with the petitioner Saudia as a flight stewardess, events did transpire during her many occasions of

travel across national borders, particularly from Manila, Philippines to Jeddah, Saudi Arabia, and vice versa, that

caused a "conflicts" situation to arise.

We thus find private respondent's assertion that the case is purely domestic, imprecise. Aconflictsproblem

presents itself here, and the question of jurisdiction 43confronts the courta quo.

After a careful study of the private respondent's Amended Complaint, 44and the Comment thereon, we note that

she aptly predicated her cause of action on Articles 19 and 21 of the New Civil Code.

On one hand, Article 19 of the New Civil Code provides:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice give

everyone his due and observe honesty and good faith.

On the other hand, Article 21 of the New Civil Code provides:

Art. 21. 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 damages.

Thus, in Philippine National Bank (PNB) vs. Court of Appeals,45

this Court held that:

The aforecited provisions on human relations were intended to expand the concept of torts in this jurisdiction by

granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to

specifically provide in the statutes.

Although Article 19 merely declares a principle of law, Article 21 gives flesh to its provisions. Thus, we agree with

private respondent's assertion that violations of Articles 19 and 21 are actionable, with judicially enforceable

remedies in the municipal forum.

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Based on the allegations 46in the Amended Complaint, read in the light of the Rules of Court on jurisdiction 47we

find that the Regional Trial Court (RTC) of Quezon City possesses jurisdiction over the subject matter of the suit. 48

Its authority to try and hear the case is provided for under Section 1 of Republic Act No. 7691, to wit:

Sec. 1. Section 19 of Batas Pambansa Blg. 129, otherwise known as the "Judiciary Reorganization Act of 1980", is

hereby amended to read as follows:

Sec. 19. Jurisdiction in Civil Cases.Regional Trial Courts shall exercise exclusive jurisdiction:

xxx xxx xxx

(8) In all other cases in which demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation

expenses, and cots or the value of the property in controversy exceeds One hundred thousand pesos (P100,000.00)

or, in such other cases in Metro Manila, where the demand, exclusive of the above-mentioned items exceeds Two

hundred Thousand pesos (P200,000.00). (Emphasis ours)

xxx xxx xxx

And following Section 2 (b), Rule 4 of the Revised Rules of Courtthe venue, Quezon City, is appropriate:

Sec. 2 Venue in Courts of First Instance.

[Now Regional Trial Court]

(a) xxx xxx xxx

(b) Personal actions.All other actions may be commenced and tried where the defendant or any of the

defendants resides or may be found, or where the plaintiff or any of the plaintiff resides, at the election of the

plaintiff.

Pragmatic considerations, including the convenience of the parties, also weigh heavily in favor of the RTC Quezon

City assuming jurisdiction. Paramount is the private interest of the litigant. Enforceability of a judgment if one is

obtained is quite obvious. Relative advantages and obstacles to a fair trial are equally important. Plaintiff may not,

by choice of an inconvenient forum, "vex", "harass", or "oppress" the defendant, e.g. by inflicting upon him needlessexpense or disturbance. But unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum

should rarely be disturbed. 49

Weighing the relative claims of the parties, the courta quofound it best to hear the case in the Philippines. Had it

refused to take cognizance of the case, it would be forcing plaintiff (private respondent now) to seek remedial

action elsewhere,i.e.in the Kingdom of Saudi Arabia where she no longer maintains substantial connections. That

would have caused a fundamental unfairness to her.

Moreover, by hearing the case in the Philippines no unnecessary difficulties and inconvenience have been shown

by either of the parties. The choice of forum of the plaintiff (now private respondent) should be upheld.

Similarly, the trial court also possesses jurisdiction over the persons of the parties herein. By filing her Complaint

and Amended Complaint with the trial court, private respondent has voluntary submitted herself to the jurisdiction

of the court.

The records show that petitioner SAUDIA has filed several motions 50praying for the dismissal of Morada's

Amended Complaint. SAUDIA also filed an Answer InEx Abundante Cautelamdated February 20, 1995. What is

very patent and explicit from the motions filed, is that SAUDIA prayed for other reliefs under the premises.

Undeniably, petitioner SAUDIA has effectively submitted to the trial court's jurisdiction by praying for the

dismissal of the Amended Complaint on grounds other than lack of jurisdiction.

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As held by this Court inRepublic vs. Ker and Company, Ltd.: 51

We observe that the motion to dismiss filed on April 14, 1962, aside from disputing the lower court's jurisdiction

over defendant's person, prayed for dismissal of the complaint on the ground that plaintiff's cause of action has

prescribed. By interposing such second ground in its motion to dismiss, Ker and Co., Ltd. availed of an affirmative

defense on the basis of which it prayed the court to resolve controversy in its favor. For the court to validly decide

the said plea of defendant Ker & Co., Ltd., it necessarily had to acquire jurisdiction upon the latter's person, who,

being the proponent of the affirmative defense, should be deemed to have abandoned its special appearance and

voluntarily submitted itself to the jurisdiction of the court.

Similarly, the case ofDe Midgely vs. Ferandos, held that;

When the appearance is by motion for the purpose of objecting to the jurisdiction of the court over the person, it

must be for the sole and separate purpose of objecting to the jurisdiction of the court. If his motion is for any other

purpose than to object to the jurisdiction of the court over his person, he thereby submits himself to the

jurisdiction of the court. A special appearance by motion made for the purpose of objecting to the jurisdiction of

the court over the person will be held to be a general appearance, if the party in said motion should, for example,

ask for a dismissal of the action upon the further ground that the court had no jurisdiction over the subject matter.52

Clearly, petitioner had submitted to the jurisdiction of the Regional Trial Court of Quezon City. Thus, we find that

the trial court has jurisdiction over the case and that its exercise thereof, justified.

As to the choice of applicable law, we note that choice-of-law problems seek to answer two important questions:

(1) What legal system should control a given situation where some of the significant facts occurred in two or more

states; and (2) to what extent should the chosen legal system regulate the situation. 53

Several theories have been propounded in order to identify the legal system that should ultimately control.

Although ideally, all choice-of-law theories should intrinsically advance both notions of justice and predictability,

they do not always do so. The forum is then faced with the problem of deciding which of these two important

values should be stressed. 54

Before a choice can be made, it is necessary for us to determine under what category a certain set of facts or rules

fall. This process is known as "characterization", or the "doctrine of qualification". It is the "process of deciding

whether or not the facts relate to the kind of question specified in a conflicts rule." 55The purpose of

"characterization" is to enable the forum to select the proper law. 56

Our starting point of analysis here is not a legal relation, but a factual situation, event, or operative fact. 57An

essential element of conflict rules is the indication of a "test" or "connecting factor" or "point of contact". Choice-of-

law rules invariably consist of a factual relationship (such as property right, contract claim) and a connecting factor

or point of contact, such as thesitusof theres, the place of celebration, the place of performance, or the place of

wrongdoing. 58

Note that one or more circumstances may be present to serve as the possible test for the determination of the

applicable law. 59These "test factors" or "points of contact" or "connecting factors" could be any of the following:

(1) The nationality of a person, his domicile, his residence, his place of sojourn, or his origin;

(2) the seat of a legal or juridical person, such as a corporation;

(3) the situs of a thing, that is, the place where a thing is, or is deemed to be situated. In particular, thelex situsis

decisive when real rights are involved;

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(4) the place where an act has been done, the locus actus, such as the place where a contract has been made, a

marriage celebrated, a will signed or a tort committed. The lex loci actus is particularly important in contracts and

torts;

(5) the place where an act is intended to come into effect, e.g., the place of performance of contractual duties, or the

place where a power of attorney is to be exercised;

(6) the intention of the contracting parties as to the law that should govern their agreement, thelex loci intentionis;

(7) the place where judicial or administrative proceedings are instituted or done. Thelex forithe law of the

forumis particularly important because, as we have seen earlier, matters of "procedure" not going to the

substance of the claim involved are governed by it; and because thelex foriapplies whenever the content of the

otherwise applicable foreign law is excluded from application in a given case for the reason that it falls under one

of the exceptions to the applications of foreign law; and

(8) the flag of a ship, which in many cases is decisive of practically all legal relationships of the ship and of its

master or owner as such. It also covers contractual relationships particularly contracts of affreightment. 60

(Emphasis ours.)

After a careful study of the pleadings on record, including allegations in the Amended Complaint deemed admittedfor purposes of the motion to dismiss, we are convinced that there is reasonable basis for private respondent's

assertion that although she was already working in Manila, petitioner brought her to Jeddah on the pretense that

she would merely testify in an investigation of the charges she made against the two SAUDIA crew members for the

attack on her person while they were in Jakarta. As it turned out, she was the one made to face trial for very serious

charges, including adultery and violation of Islamic laws and tradition.

There is likewise logical basis on record for the claim that the "handing over" or "turning over" of the person of

private respondent to Jeddah officials, petitioner may have acted beyond its duties as employer. Petitioner's

purported act contributed to and amplified or even proximately caused additional humiliation, misery and

suffering of private respondent. Petitioner thereby allegedly facilitated the arrest, detention and prosecution of

private respondent under the guise of petitioner's authority as employer, taking advantage of the trust, confidenceand faith she reposed upon it. As purportedly found by the Prince of Makkah, the alleged conviction and

imprisonment of private respondent was wrongful. But these capped the injury or harm allegedly inflicted upon

her person and reputation, for which petitioner could be liable as claimed, to provide compensation or redress for

the wrongs done, once duly proven.

Considering that the complaint in the courta quois one involving torts, the "connecting factor" or "point of

contact" could be the place or places where the tortious conduct orlex loci actusoccurred. And applying the torts

principle in a conflicts case, we find that the Philippines could be said as a situs of the tort (the place where the

alleged tortious conduct took place). This is because it is in the Philippines where petitioner allegedly deceived

private respondent, a Filipina residing and working here. According to her, she had honestly believed that

petitioner would, in the exercise of its rights and in the performance of its duties, "act with justice, give her due and

observe honesty and good faith." Instead, petitioner failed to protect her, she claimed. That certain acts or parts of

the injury allegedly occurred in another country is of no moment. For in our view what is important here is the

place where the over-all harm or the totality of the alleged injury to the person, reputation, social standing and

human rights of complainant, had lodged, according to the plaintiff below (herein private respondent). All told, it is

not without basis to identify the Philippines as the situs of the alleged tort.

Moreover, with the widespread criticism of the traditional rule oflex loci delicti commissi, modern theories and

rules on tort liability 61have been advanced to offer fresh judicial approaches to arrive at just results. In keeping

abreast with the modern theories on tort liability, we find here an occasion to apply the "State of the most

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significant relationship" rule, which in our view should be appropriate to apply now, given the factual context of

this case.

In applying said principle to determine the State which has the most significant relationship, the following contacts

are to be taken into account and evaluated according to their relative importance with respect to the particular

issue: (a) the place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the

domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where

the relationship, if any, between the parties is centered. 62

As already discussed, there is basis for the claim that over-all injury occurred and lodged in the Philippines. There

is likewise no question that private respondent is a resident Filipina national, working with petitioner, a resident

foreign corporation engaged here in the business of international air carriage. Thus, the "relationship" between the

parties was centered here, although it should be stressed that this suit is not based on mere labor law violations.

From the record, the claim that the Philippines has the most significant contact with the matter in this dispute, 63

raised by private respondent as plaintiff below against defendant (herein petitioner), in our view, has been

properly established.

Prescinding from this premise that the Philippines is the situs of the tort complained of and the place "having the

most interest in the problem", we find, by way of recapitulation, that the Philippine law on tort liability should have

paramount application to and control in the resolution of the legal issues arising out of this case. Further, we hold

that the respondent Regional Trial Court has jurisdiction over the parties and the subject matter of the complaint;

the appropriate venue is in Quezon City, which could properly apply Philippine law. Moreover, we find untenable

petitioner's insistence that "[s]ince private respondent instituted this suit, she has the burden of pleading and

proving the applicable Saudi law on the matter." 64As aptly said by private respondent, she has "no obligation to

plead and prove the law of the Kingdom of Saudi Arabia since her cause of action is based on Articles 19 and 21" of

the Civil Code of the Philippines. In her Amended Complaint and subsequent pleadings, she never alleged that

Saudi law should govern this case. 65And as correctly held by the respondent appellate court, "considering that it

was the petitioner who was invoking the applicability of the law of Saudi Arabia, then the burden was on it

[petitioner] to plead and to establish what the law of Saudi Arabia is". 66

Lastly, no error could be imputed to the respondent appellate court in upholding the trial court's denial of

defendant's (herein petitioner's) motion to dismiss the case. Not only was jurisdiction in order and venue properly

laid, but appeal after trial was obviously available, and expeditious trial itself indicated by the nature of the case at

hand. Indubitably, the Philippines is the state intimately concerned with the ultimate outcome of the case below,

not just for the benefit of all the litigants, but also for the vindication of the country's system of law and justice in a

transnational setting. With these guidelines in mind, the trial court must proceed to try and adjudge the case in the

light of relevant Philippine law, with due consideration of the foreign element or elements involved. Nothing said

herein, of course, should be construed as prejudging the results of the case in any manner whatsoever.

WHEREFORE, the instant petition forcertiorariis hereby DISMISSED. Civil Case No. Q-93-18394 entitled "Milagros

P. Morada vs. Saudi Arabia Airlines" is hereby REMANDED to Regional Trial Court of Quezon City, Branch 89 forfurther proceedings.

SO ORDERED.

Davide, Jr., Bellosillo, Vitug and Panganiban, JJ., concur.

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G.R. No. L-17396 May 30, 1962

CECILIO PE, ET AL.,plaintiffs-appellants,

vs.

ALFONSO PE,defendant-appellee.

Cecilio L. Pe for and in his own behalf as plaintiff-appellant.

Leodegario L. Mogol for defendant-appellee.

BAUTISTA ANGELO, J.:

Plaintiffs brought this action before the Court of First Instance of Manila to recover moral, compensatory,

exemplary and corrective damages in the amount of P94,000.00 exclusive of attorney's fees and expenses of

litigation.

Defendant, after denying some allegations contained in the complaint, set up as a defense that the facts alleged

therein, even if true, do not constitute a valid cause of action.

After trial, the lower court, after finding that defendant had carried on a love affair with one Lolita Pe, an

unmarried woman, being a married man himself, declared that defendant cannot be held liable for moral damages

it appearing that plaintiffs failed to prove that defendant, being aware of his marital status, deliberately and in bad

faith tried to win Lolita's affection. So it rendered decision dismissing the complaint.1wph1.t

Plaintiffs brought this case on appeal before this Court on the ground that the issues involved are purely of law.

The facts as found by the trial court are: Plaintiffs are the parents, brothers and sisters of one Lolita Pe. At the time

of her disappearance on April 14, 1957, Lolita was 24 years old and unmarried. Defendant is a married man and

works as agent of the La Perla Cigar and Cigarette Factory. He used to stay in the town of Gasan, Marinduque, in

connection with his aforesaid occupation. Lolita was staying with her parents in the same town. Defendant was an

adopted son of a Chinaman named Pe Beco, a collateral relative of Lolita's father. Because of such fact and the

similarity in their family name, defendant became close to the plaintiffs who regarded him as a member of their

family. Sometime in 1952, defendant frequented the house of Lolita on the pretext that he wanted her to teach him

how to pray the rosary. The two eventually fell in love with each other and conducted clandestine trysts not only in

the town of Gasan but also in Boac where Lolita used to teach in a barrio school. They exchanged love notes with

each other the contents of which reveal not only their infatuation for each other but also the extent to which they

had carried their relationship. The rumors about their love affairs reached the ears of Lolita's parents sometime, in

1955, and since then defendant was forbidden from going to their house and from further seeing Lolita. The

plaintiffs even filed deportation proceedings against defendant who is a Chinese national. The affair between

defendant and Lolita continued nonetheless.

Sometime in April, 1957, Lolita was staying with her brothers and sisters at their residence at 54-B Espaa

Extension, Quezon City. On April 14, 1957, Lolita disappeared from said house. After she left, her brothers andsisters checked up her thing and found that Lolita's clothes were gone. However, plaintiffs found a note on a

crumpled piece of paper inside Lolita's aparador. Said note, written on a small slip of paper approximately 4" by 3"

in size, was in a handwriting recognized to be that of defendant's. In English it reads:

Honey, suppose I leave here on Sunday night, and that's 13th of this month and we will have a date on the 14th,

that's Monday morning at 10 a.m.

Reply

Love

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The disappearance of Lolita was reported to the police authorities and the NBI but up to the present there is no

news or trace of her whereabouts.

The present action is based on Article 21 of the New Civil Code which provides:

Any person who wilfully causes loss or injury to another in a manner which is contrary to morals, good customs or

public policy shall compensate the latter for the damage.

There is no doubt that the claim of plaintiffs for damages is based on the fact that defendant, being a married man,carried on a love affair with Lolita Pe thereby causing plaintiffs injury in a manner contrary to morals, good

customs and public policy. But in spite of the fact that plaintiffs have clearly established that in illicit affair was

carried on between defendant and Lolita which caused great damage to the name and reputation of plaintiffs who

are her parents, brothers and sisters, the trial court considered their complaint not actionable for the reason that

they failed to prove that defendant deliberately and in bad faith tried to win Lolita's affection Thus, the trial court

said: "In the absence of proof on this point, the court may not presume that it was the defendant who deliberately

induced such relationship. We cannot be unmindful of the uncertainties and sometimes inexplicable mysteries of

the human emotions. It is a possibility that the defendant and Lolita simply fell in love with each other, not only

without any desire on their part, but also against their better judgment and in full consciousness of what it will

bring to both of them. This is specially so with respect to Lolita, being an unmarried woman, falling in love with

defendant who is a married man."

We disagree with this view. The circumstances under which defendant tried to win Lolita's affection cannot lead, to

any other conclusion than that it was he who, thru an ingenious scheme or trickery, seduced the latter to the extent

of making her fall in love with him. This is shown by the fact that defendant frequented the house of Lolita on the

pretext that he wanted her to teach him how to pray the rosary. Because of the frequency of his visits to the latter's

family who was allowed free access because he was a collateral relative and was considered as a member of her

family, the two eventually fell in love with each other and conducted clandestine love affairs not only in Gasan but

also in Boac where Lolita used to teach in a barrio school. When the rumors about their illicit affairs reached the

knowledge of her parents, defendant was forbidden from going to their house and even from seeing Lolita.

Plaintiffs even filed deportation proceedings against defendant who is a Chinese national. Nevertheless, defendantcontinued his love affairs with Lolita until she disappeared from the parental home. Indeed, no other conclusion

can be drawn from this chain of events than that defendant not only deliberately, but through a clever strategy,

succeeded in winning the affection and love of Lolita to the extent of having illicit relations with her. The wrong he

has caused her and her family is indeed immeasurable considering the fact that he is a married man. Verily, he has

committed an injury to Lolita's family in a manner contrary to morals, good customs and public policy as

contemplated in Article 21 of the new Civil Code.

WHEREFORE, the decision appealed from is reversed. Defendant is hereby sentenced to pay the plaintiffs the sum

of P5,000.00 as damages and P2,000.00 as attorney's fees and expenses of litigations. Costs against appellee.

Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.

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G.R. No. L-51832 April 26, 1989

RAFAEL PATRICIO, petitioner,

vs.

THE HONORABLE OSCAR LEVISTE, JUDGE, CFI CAPIZ, BRANCH II and BIENVENIDO BACALOCOS, respondents.

Stephen C. Arceo for petitioner.

Isagani V. Roblete for private respondent.

PADILLA,J.:

Petition for review on certiorariof the Order 1of the Court of First Instance of Capiz, Branch II, on the motion for

reconsideration flied by private respondent Bienvenido Bacalocos, dismissing the complaint for damages against

the latter, docketed as Civil Case No. V-3937.

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 10:00 o'clock in the evening, 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. 2

As a result of the incident, a criminal complaint for "Slander by Deed was flied by petitioner with the Municipal

Trial Court of Pilar, Capiz, docketed as Criminal Case No. 2228, but the same was dismissed. 3Subsequently, a

complaint for damages was filed by petitioner with the court a quo. In a decision 4dated 18 April 1978, 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. The dispositive part of the decision reads as follows:

WHEREFORE, the Court orders defendant to pay plaintiff the damages as follows:

a) Moral damages of P10,000.00

b) Exemplary damages, P1,000.00 and

c) Attorney's fees, P2,000.00.

SO ORDERED. 5

On 9 June 1978, petitioner filed a motion for execution of judgment, alleging that the 18 April 1978 decision had

become final and executory after the lapse of thirty (30) days from receipt thereof by private respondent, without

any motion for reconsideration or appeal having been filed. 6However, said motion was denied by the court a quo

on the ground that there was a pending motion for reconsideration filed by private respondent. 7Subsequently,

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private respondent filed a supplemental motion for reconsideration 8and the court ordered petitioner to file a

reply (opposition) thereto. 9In compliance, petitioner flied a reply (opposition) to the motion for reconsideration,

alleging that the filing of said motion and supplement thereto was without notice to the adverse party and proof of

service, hence, the decision sought to be reconsidered had already become final and unappealable. 10

Private respondent filed a rejoinder (reply) and a manifestation stating that petitioner was duly served with a copy

of said motion for reconsideration by ordinary mail, attaching thereto the affidavit of Godofredo Almazol who

stated that he mailed the envelope to counsel for herein petitioner. 11The court a quothen scheduled the motion

for oral argument and the parties were allowed to extensively argue their respective causes.

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

O R D E R

This is a motion for reconsideration of the decision of this Court dated April 18, 1978, filed by counsel for

defendant on May 18, 1978.

In view of the recent trend in the Supreme Court to liberally construe the Rules, and in view of Section 2, Rule 1, the

Court resolves to give due course to the motion.

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.

WHEREFORE, this case is ordered dismissed.

SO ORDERED.

Not satisfied with said order, petitioner filed the petition at bar contending that no copy of the Motion for

consideration was served upon petitioner and no proof of service as well as notice of hearing were attached to saidmotion when filed with the court a quo; thus, the motion for reconsideration did not interrupt the running of the

period to appeal. The alleged mailing of a copy of said motion by ordinary mail did not, according to petitioner,

cure the defect. Petitioner further argues 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.

On the other hand, private respondent claims that the order of the court a quo apprising petitioner of the motion

for reconsideration filed by private respondent and requiring the former to file a reply (opposition) thereto, had

cured the defect of lack of proof of service and notice of hearing of said motion for reconsideration; and that the

award of moral damages to petitioner is without basis for lack of proof of bad faith on the part of privaterespondent.

With respect to the alleged lack of service on petitioner of a copy of the motion and notice of hearing and failure to

attach to the motion proof of service thereof, the general rule is that notice of motion is required where a party has

a right to resist the relief sought by the motion and principles of natural justice demand that his rights be not

affected without an opportunity to be heard. 13

In the case at bar, a copy of the motion for reconsideration was served upon petitioner, although service was

effected through ordinary mail and not by registered mail as reqired by the rules. But, petitioner was duly given

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the full opportunity to be heard and to argue his case when the court a quorequired him to file a reply (opposition)

to the motion for reconsideration and subsequently set the motion for oral argument.

What the law really eschews is not the lack of previous notice of hearing but the lack of opportunity to be heard. It

has been held that parties should not rely on mere technicalities which, in the interest of justice, may be relaxed.

14The rifles of procedure should be viewed as mere tools designed to facilitate the attainment of justice. Their

strict and rigid application, which would result in technicalities that tend to frustrate rather than promote

substantial justice, must be avoided. 15Moreover, the case should, as much as possible, be decided on the merits

and not merely on technicalities.

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. 16An 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 quothat 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.

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."

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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. 17It 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 injurycaused 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 18

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. 19Exemplary 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. 20The amount of exemplary damages need not be proved where it is shown thatplaintiff is entitled to either moral, temperate or compensatory damages, as the case may be, 21although such

award cannot be recovered as a matter of right. 22

In cases where exemplary damages are awarded to the injured party, attorney's fees are also recoverable. 23

WHEREFORE, the petition is GRANTED. The order appealed from, dated 3 August 1979, is REVERSED and the

decision of the court a quodated 18 April 1978 is hereby REINSTATED. With costs against private respondent.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Sarmiento and Regalado, JJ., concur.

G.R. No. L-23733 October 31, 1969

HERMINIO L. NOCUM,plaintiff-appellee,

vs.

LAGUNA TAYABAS BUS COMPANY,defendant-appellant.

Fernando M. Mangubat and Felimon H. Mendoza for plaintiff-appellee.

Domingo E. de Lara and Associates for defendant-appellant.

BARREDO,J.:

Appeal of the Laguna Tayabas Bus Co., defendant in the Court below, from a judgment of the said court (Court of

First Instance of Batangas) in its Civil Case No. 834, wherein appellee Herminio L. Nocum was plaintiff, sentencing

appellant to pay appellee the sum of P1,351.00 for actual damages and P500.00 as attorney's fees with legal

interest from the filing of the complaint plus costs. Appellee, who was a passenger in appellant's Bus No. 120 then

making a trip within the barrio of Dita, Municipality of Bay, Laguna, was injured as a consequence of the explosion

of firecrackers, contained in a box, loaded in said bus and declared to its conductor as containing clothes and

miscellaneous items by a co-passenger. The findings of fact of the trial court are not assailed. The appeal is purely

on legal questions.

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Appellee has not filed any brief. All that We have before Us is appellant's brief with the following assignment of

errors:

I

BASED ON THE FACTS THE LOWER COURT FOUND AS ESTABLISHED, IT ERRED AS A MATTER OF LAW IN NOT

ABSOLVING APPELLANT FROM LIABILITY RESULTING FROM THE EXPLOSION OF FIRECRACKERS CONTAINED IN

A PACKAGE, THE CONTENTS OF WHICH WERE MISREPRESENTED BY A PASSENGER.

II

THE LOWER COURT ERRED, AS A MATTER OF LAW, IN AWARDING DAMAGES WITH LEGAL INTEREST IN FAVOR

OF THE APPELLEE.

III

THE LOWER COURT ERRED IN NOT DISMISSING THE COMPLAINT, WITH COSTS AGAINST THE APPELLEE.

Upon consideration of the points raised and discussed by appellant, We find the appeal to be well taken.

The main basis of the trial court's decision is that appellant did not observe the extraordinary or utmost diligenceof a very cautious person required by the following articles of the Civil Code:

ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to

observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by

them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745,

Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles

1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can

provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.

ART 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to

have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733

and 1755.

Analyzing the evidence presented by the parties, His Honor found:

According to Severino Andaya, a witness for the plaintiff, a man with a box went up the baggage compartment of

the bus where he already was and said box was placed under the seat. They left Azcarraga at about 11:30 in the

morning and when the explosion occurred, he was thrown out. PC investigation report states that thirty seven (37)

passengers were injured (Exhibits "O" and "2").

The bus conductor, Sancho Mendoza, testified that the box belonged to a passenger whose name he does not know

and who told him that it contained miscellaneous items and clothes. He helped the owner in loading the baggage

which weighed about twelve (12) kilos and because of company regulation, he charged him for it twenty-five

centavos (P0.25). From its appearance there was no indication at all that the contents were explosives or

firecrackers. Neither did he open the box because he just relied on the word of the owner.

Dispatcher Nicolas Cornista of defendant company corroborrated the testimony of Mendoza and he said, among

other things, that he was present when the box was loaded in the truck and the owner agreed to pay its fare. He

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added that they were not authorized to open the baggages of passengers because instruction from the management

was to call the police if there were packages containing articles which were against regulations.

xxx xxx xxx

There is no question that Bus No. 120 was road worthy when it left its Manila Terminal for Lucena that morning of

December 5, 1960. The injuries suffered by the plaintiff were not due to mechanical defects but to the explosion of

firecrackers inside the bus which was loaded by a co-passenger.

... Turning to the present case, it is quite clear that extraordinary or utmost diligence of a very cautious person was

not observed by the defendant company. The service manual, exhibits "3" and "3-A," prohibits the employees to

allow explosives, such as dynamite and firecrackers to be transported on its buses. To implement this particular

rule for 'the safety of passengers, it was therefore incumbent upon the employees of the company to make the

proper inspection of all the baggages which are carried by the passengers.

But then, can it not be said that the breach of the contract was due to fortuitous event? The Supreme Court in the

case of Lasam vs. Smith, 45 Phil. 657, quoted Escriche's definition of caso fortuito as "an unexpected event or act of

God which could neither be foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning,

compulsions, insurrections, destructions of buildings by unforeseen accidents and other occurrences of a similar

nature." In other words, the cause of the unexpected event must be independent of the will of man or somethingwhich cannot be avoided. This cannot be said of the instant case. If proper and rigid inspection were observed by

the defendant, the contents of the box could have been discovered and the accident avoided. Refusal by the

passenger to have the package opened was no excuse because, as stated by Dispatcher Cornista, employees should

call the police if there were packages containing articles against company regulations. Neither was failure by

employees of defendant company to detect the contents of the packages of passengers because like the rationale in

the Necesito vs. Paras case (supra), a passenger has neither choice nor control in the exercise of their discretion in

determining what are inside the package of co-passengers which may eventually prove fatal.

We cannot agree. No doubt, the views of His Honor do seem to be in line with the reasons that the Code

Commission had for incorporating the above-quoted provisions in its draft of the Civil Code. Indeed, in approving

the said draft, Congress must have concurred with the Commission that by requiring the highest degree of

diligence from common carriers in the safe transport of their passengers and by creating a presumption of

negligence against them, the recklessness of their drivers which is a common sight even in crowded areas and,

particularly, on the highways throughout the country may, somehow, if not in a large measure, be curbed. We are

not convinced, however, that the exacting criterion of said provisions has not been met by appellant in the

circumstances of this particular case.

It is undisputed that before the box containing the firecrackers were allowed to be loaded in the bus by the

conductor, inquiry was made with the passenger carrying the same as to what was in it, since its "opening ... was

folded and tied with abaca." (Decision p. 16, Record on Appeal.) According to His Honor, "if proper and rigid

inspection were observed by the defendant, the contents of the box could have been discovered and the accidentavoided. Refusal by the passenger to have the package opened was no excuse because, as stated by Dispatcher

Cornista, employees should call the police if there were packages containing articles against company regulations."

That may be true, but it is Our considered opinion that the law does not require as much. Article 1733 is not as

unbending as His Honor has held, for it reasonably qualifies the extraordinary diligence required of common

carriers for the safety of the passengers transported by them to be "according to all the circumstances of each

case." In fact, Article 1755 repeats this same qualification: "A common carrier is bound to carry the passengers

safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due

regard for all the circumstances."

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In this particular case before Us, it must be considered that while it is true the passengers of appellant's bus should

not be made to suffer for something over which they had no control, as enunciated in the decision of this Court

cited by His Honor,1fairness demands that in measuring a common carrier's duty towards its passengers,

allowance must be given to the reliance that should be reposed on the sense of responsibility of all the passengers

in regard to their common safety. It is to be presumed that a passenger will not take with him anything dangerous

to the lives and limbs of his co-passengers, not to speak of his own. Not to be lightly considered must be the right to

privacy to which each passenger is entitled. He cannot be subjected to any unusual search, when he protests the

innocuousness of his baggage and nothing appears to indicate the contrary, as in the case at bar. In other words,

inquiry may be verbally made as to the nature of a passenger's baggage when such is not outwardly perceptible,

but beyond this, constitutional boundaries are already in danger of being transgressed. Calling a policeman to his

aid, as suggested by the service manual invoked by the trial judge, in compelling the passenger to submit to more

rigid inspection, after the passenger had already declared that the box contained mere clothes and other

miscellaneous, could not have justified invasion of a constitutionally protected domain. Police officers acting

without judicial authority secured in the manner provided by law are not beyond the pale of constitutional

inhibitions designed to protect individual human rights and liberties. Withal, what must be importantly considered

here is not so much the infringement of the fundamental sacred rights of the particular passenger herein involved,

but the constant threat any contrary ruling would pose on the right of privacy of all passengers of all common

carriers, considering how easily the duty to inspect can be made an excuse for mischief and abuse. Of course, when

there are sufficient indications that the representations of the passenger regarding the nature of his baggage may

not be true, in the interest of the common safety of all, the assistance of the police authorities may be solicited, not

necessarily to force the passenger to open his baggage, but to conduct the needed investigation consistent with the

rules of propriety and, above all, the constitutional rights of the passenger. It is in this sense that the mentioned

service manual issued by appellant to its conductors must be understood.

Decisions in other jurisdictions cited by appellant in its brief, evidently because of the paucity of local precedents

squarely in point, emphasize that there is need, as We hold here, for evidence of circumstances indicating cause or

causes for apprehension that the passenger's baggage is dangerous and that it is failure of the common carrier's

employee to act in the face of such evidence that constitutes the cornerstone of the common carrier's liability in

cases similar to the present one.

The principle that must control the servants of the carrier in a case like the one before us is correctly stated in the

opinion in the case of Clarke v. Louisville & N.R. Co. 20 Ky L. Rep. 839, 49 S.W. 1120. In that case Clarke was a

passenger on the defendant's train. Another passenger took a quantity of gasoline into the same coach in which

Clarke was riding. It ignited and exploded, by reason of which he was severely injured. The trial court peremptorily

instructed the jury to find for the defendant. In the opinion, affirming the judgment, it is said: "It may be stated

briefly, in assuming the liability of a railroad to its passengers for injury done by another passenger, only where the

conduct of this passenger had been such before the injury as to induce a reasonably prudent and vigilant conductor

to believe that there was reasonable ground to apprehend violence and danger to the other passengers, and in that

case asserting it to be the duty of the conductor of the railroad train to use all reasonable means to prevent such

injury, and if he neglects this reasonable duty, and injury is done, that then the company is responsible; thatotherwise the railroad is not responsible."

The opinion quotes with approval from the case of Gulf, C. & S. F. R. Co. vs. Shields, 9 Tex. Civ. App. 652, 29 S. W.

652, in which case the plaintiff was injured by alcohol which had been carried upon the train by another passenger.

In the opinion in that case it is said: "It was but a short period of time after the alcohol was spilt when it was set on

fire and the accident occurred, and it was not shown that appellant's employees knew that the jug contained

alcohol. In fact, it is not shown that the conductor or any other employee knew that Harris had a jug with him until

it fell out of the sack, though the conductor had collected ... (his) fare, and doubtless knew that he had the sack on

the seat with him. ... It cannot be successfully denied that Harris had the right as a passenger to carry baggage on

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the train, and that he had a right to carry it in a sack if he chose to do so. We think it is equally clear that, in the

absence of some intimation or circumstance indicating that the sack contained something dangerous to other

passengers, it was not the duty of appellant's conductor or any other employee to open the sack and examine its

contents." Quinn v. Louisville & N. R. Co. 98 Ky. 231, 32 S. W. 742; Wood v. Louisville & N. R. Co. 101 Ky. 703, 42 S.

W. 349; Louisville & N. R. Co. v. Vincent, 29 Ky. L. Rep. 1049, 96 S. W. 898; Louisville & N. R. Co. v. Renfro, 142 Ky.

590, 33 L. R. A. (N. S.) 133, 135 S. W. 266.2(Emphasis supplied)

Explosive or Dangerous Contents.A carrier is ordinarily not liable for injuries to passengers from fires or

explosions caused by articles brought into its conveyances by other passengers, in the absence of any evidence that

the carrier, through its employees, was aware of the nature of the article or had any reason to anticipate danger

therefrom. (Bogard v. Illinois C. R Co. 144 Ky. 649, 139 S. W. 855, 36 L. R. A.[N. S.] 337; Clarke v. Louisville & N. R.

Co. 101 Ky. 34, 39 S. W. 840, 36 L. R. A. 123 [explosion of can of gasoline]; East Indian R. Co. v. Mukerjee [1901] A. C

[Eng.] 396, 3 B. R. C. 420P. C. [explosion of fireworks]; Annotation: 37 L. R. A. [N. S.] 725.)3

Appellant further invokes Article 1174 of the Civil Code which relieves all obligors, including, of course, common

carriers like appellant, from the consequence of fortuitous events. The court a quo held that "the breach of contract

(in this case) was not due to fortuitous event and that, therefore, the defendant is liable in damages." Since We hold

that appellant has succeeded in rebutting the presumption of negligence by showing that it has exercised

extraordinary diligence for the safety of its passengers, "according to the circumstances of the (each) case", Wedeem it unnecessary to rule whether or not there was any fortuitous event in this case.

ACCORDINGLY, the appealed judgment of the trial court is reversed and the case is dismissed, without costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Fernando, JJ.,concur.

Castro, J.,concurs in the result.

Teehankee, J.,reserves his vote.

G.R. No. L-51183 December 21, 1983

CARMEN L. MADEJA, petitioner,

vs.

HON. FELIX T. CARO and EVA ARELLANO-JAPZON, respondents.

Ernesto P. Miel for petitioner.

Gorgonio T. Alvarez for respondents.

ABAD SANTOS,J.:

In Criminal Case No. 75-88 of the defunct Court of First Instance of Eastern Samar, DR. EVA A. JAPZON is accused of

homicide through reckless imprudence for the death of Cleto Madeja after an appendectomy. The complaining

witness is the widow of the deceased, Carmen L. Madeja. The information states that: "The offended party Carmen

L. Madeja reserving her right to file a separate civil action for damages." (Rollo, p. 36.)

The criminal case still pending, Carmen L. Madeja sued Dr. Eva A. Japzon for damages in Civil Case No. 141 of the

same court. She alleged that her husband died because of the gross negligence of Dr. Japzon. The respondent judge

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granted the defendant's motion to dismiss which motion invoked Section 3(a) of Rule 111 of the Rules of Court

which reads:

Sec. 3. Other civil actions arising from offenses.In all cases not included in the preceding section the following

rules shall be observed:

(a) Criminal and civil actions arising from the same offense may be instituted separately, but after the criminal

action has been commenced the civil action can not be instituted until final judgment has been rendered in the

criminal action. ...

According to the respondent judge, "under the foregoing Sec. 3 (a), Rule 111, New Rules of Court, the instant civil

action may be instituted only after final judgment has been rendered in the criminal action." (Rollo, p. 33.)

The instant petition which seeks to set aside the order of the respondent judge granting the defendant's motion to

dismiss Civil Case No. 141 is highly impressed with merit.

Section 2, Rule 111 of the Rules of Court in relation to Article 33 of the Civil Code is the applicable provision. The

two enactments are quoted hereinbelow:

Sec. 2. Independent civil action.In the cases provided for in Articles 31,32, 33, 34 and 2177 of the Civil Code of

the Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought

by the injured party during the pendency of the criminal case, provided the right is reserved as required in the

preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall require only

a preponderance of evidence." (Rule 111, Rules of Court.)

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct

from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the

criminal prosecution, and shall require only a preponderance of evidence. (Civil Code,)

There are at least two things about Art. 33 of the Civil Code which are worth noting, namely:

1. The civil action for damages which it allows to be instituted is ex-delicto. This is manifest from the provisionwhich uses the expressions "criminal action" and "criminal prosecution." This conclusion is supported by the

comment of the Code Commission, thus:

The underlying purpose of the principle under consideration is to allow the citizen to enforce his rights in a private

action brought by him, regardless of the action of the State attorney. It is not conducive to civic spirit and to

individual self-reliance and initiative to habituate the citizens to depend upon the government for the vindication

of their own private rights. It is true that in many of the cases referred to in the provision cited, a criminal

prosecution is proper, but it should be remembered that while the State is the complainant in the criminal case, the

injured individual is the one most concerned because it is he who has suffered directly. He should be permitted to

demand reparation for the wrong which peculiarly affects him. (Report, p. 46.)

And Tolentino says:

The general rule is that when a criminal action is instituted, the civil action for recovery of civil liability arising

from the offense charged is impliedly instituted with the criminal action, unless the offended party reserves his

right to institute it separately; and after a criminal action has been commenced, no civil action arising from the

same offense can be prosecuted. The present articles creates an exception to this rule when the offense is

defamation, fraud, or physical injuries, In these cases, a civil action may be filed independently of the criminal

action, even if there has been no reservation made by the injured party; the law itself in this article makes such

reservation; but the claimant is not given the right to determine whether the civil action should be scheduled or

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suspended until the criminal action has been terminated. The result of the civil action is thus independent of the

result of the civil action." (I Civil Code, p. 144 [1974.])

2. The term "physical injuries" is used in a generic sense. It is not the crime of physical injuries defined in the

Revised Penal Code. It includes not only physical injuries but consummated, frustrated and attempted homicide.

The Article in question uses the words 'defamation', 'fraud' and 'physical injuries.' Defamation and fraud are used

in their ordinary sense because there are no specific provisions in the Revised Penal Code using these terms as

means of offenses defined therein, so that these two terms defamation and fraud must have been used not toimpart to them any technical meaning in the laws of the Philippines, but in their generic sense. With this apparent

circumstance in mind, it is evident that the terms 'physical injuries' could not have been used in its specific sense as

a crime defined in the Revised Penal Code, for it is difficult to believe that the Code Commission would have used

terms in the same article-some in their general and another in its technical sense. In other words, the term

'physical injuries' should be understood to mean bodily injury, not the crime of physical injuries, bacause the terms

used with the latter are general terms. In any case the Code Commission recommended that the civil action for

physical injuries be similar to the civil action for assault and battery in American Law, and this recommendation

must hove been accepted by the Legislature when it approved the article intact as recommended. If the intent has

been to establish a civil action for the bodily harm received by the complainant similar to the civil action for assault

and battery, as the Code Commission states, the civil action should lie whether the offense committed is that ofphysical injuries, or frustrated homicide, or attempted homicide, or even death," (Carandang vs. Santiago, 97 Phil.

94, 96-97 [1955].)

Corpus vs. Paje, L-26737, July 31, 1969, 28 SCRA 1062, which states that reckless imprudence or criminal

negligence is not included in Article 33 of the Civil Code is not authoritative. Of eleven justices only nine took part

in the decision and four of them merely concurred in the result.

In the light of the foregoing, it is apparent that the civil action against Dr. Japzon may proceed independently of the

criminal action against her.

WHEREFORE, the petition is hereby granted; the order dismissing Civil Case No. 141 is hereby set aside; no special

pronouncement as to costs.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, De Castro and Escolin, JJ., concur.