G.R. Nos. 103442-45 May 21, 1993

NATIONAL POWER CORPORATION, ET AL., petitioners, vs.THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL., respondents.

DAVIDE, JR., J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court urging this Court to set aside the 19 August 1991 consolidated Decision of the Court of Appeals in CA.-G.R. CV Nos. 27290-93  1 which reversed the Decision of Branch 5 of the then Court of First Instance (now Regional Trial Court) of Bulacan, and held petitioners National Power Corporation (NPC) and Benjamin Chavez jointly and severally liable to the private respondents for actual and moral damages, litigation expenses and attorney's fees.

This present controversy traces its beginnings to four (4) separate complaints 2 for damages filed against the NPC and Benjamin Chavez before the trial court. The plaintiffs therein, now private respondents, sought to recover actual and other damages for the loss of lives and the destruction to property caused by the inundation of the town of Norzagaray, Bulacan on 26-27 October 1978. The flooding was purportedly caused by the negligent release by the defendants of water through the spillways of the Angat Dam (Hydroelectric Plant). In said complaints, the plaintiffs alleged, inter alia, that: 1) defendant NPC operated and maintained a multi-purpose hydroelectric plant in the Angat River at Hilltop, Norzagaray, Bulacan; 2) defendant Benjamin Chavez was the plant supervisor at the time of the incident in question; 3) despite the defendants' knowledge, as early as 24 October 1978, of the impending entry of typhoon "Kading," they failed to exercise due diligence in monitoring the water level at the dam; 4) when the said water level went beyond the maximum allowable limit at the height of the typhoon, the defendants suddenly, negligently and recklessly opened three (3) of the dam's spillways, thereby releasing a large amount of water which inundated the banks of the Angat River; and 5) as a consequence, members of the household of the plaintiffs, together with their animals, drowned, and their properties were washed away in the evening of 26 October and the early hours of 27 October 1978. 3

In their Answers, the defendants, now petitioners, alleged that: 1) the NPC exercised due care, diligence and prudence in the operation and maintenance of the hydroelectric plant; 2) the NPC exercised the diligence of a good father in the selection of its employees; 3) written notices were sent to the different municipalities of Bulacan warning the residents therein about the impending release of a large volume of water with the onset of typhoon "Kading" and advise them to take the necessary precautions; 4) the water released during the typhoon was needed to prevent the collapse of the dam and avoid greater damage to people and property; 5) in spite of the precautions undertaken and the diligence exercised, they could still not contain or control the flood that resulted and; 6) the damages incurred by the private respondents were caused by a fortuitous event or force majeure and are in the nature and character of damnum absque injuria. By way of special affirmative defense, the defendants averred that the NPC cannot be sued because it performs a purely governmental function. 4

Upon motion of the defendants, a preliminary hearing on the special defense was conducted. As a result thereof, the trial court dismissed the complaints as against the NPC on the ground that the provision of its charter allowing it to sue and be sued does not contemplate actions based on tort. The parties do not, however, dispute the fact that this Court overruled the trial court and ordered the reinstatement of the complaints as against the NPC. 5

Being closely interrelated, the cases were consolidated and trial thereafter ensued.

The lower court rendered its decision on 30 April 1990 dismissing the complaints "for lack of sufficient and credible evidence." 6 Consequently, the private respondents seasonably appealed therefrom to the respondent Court which then docketed the cases as CA-G.R. CV Nos. 27290-93.

In its joint decision promulgated on 19 August 1991, the Court of Appeals reversed the appealed decision and awarded damages in favor of the private respondents. The dispositive portion of the decision reads:

CONFORMABLY TO THE FOREGOING, the joint decision appealed from is hereby REVERSED and SET ASIDE, and a new one is hereby rendered:

1. In Civil Case No. SM-950, ordering defendants-appellees to pay, jointly and severally, plaintiffs-appellants, with legal interest from the date when this decision shall become final and executory, the following:

A. Actual damages, to wit:

1) Gaudencio C. Rayo, Two Hundred Thirty One Thousand Two Hundred Sixty Pesos (P231,260.00);

2) Bienvenido P. Pascual, Two Hundred Four Thousand Five Hundred Pesos (P204.500.00);

3) Tomas Manuel, One Hundred Fifty Five Thousand Pesos (P155,000.00);

4) Pedro C. Bartolome, One Hundred Forty Seven Thousand Pesos (P147,000.00);.

5) Bernardino Cruz, One Hundred Forty Three Thousand Five Hundred Fifty Two Pesos and Fifty Centavos (P143,552.50);

6) Jose Palad, Fifty Seven Thousand Five Hundred Pesos (P57,500.00);

7) Mariano S. Cruz, Forty Thousand Pesos (P40,000.00);

8) Lucio Fajardo, Twenty nine Thousand Eighty Pesos (P29,080.00); and

B. Litigation expenses of Ten Thousand Pesos (P10,000.00);

2. In Civil case No. SM-951, ordering defendants-appellees to pay jointly and severally, plaintiff-appellant, with legal interest from the date when this decision shall have become final and executory, the following :

A. Actual damages of Five Hundred Twenty Thousand Pesos (P520,000.00);.

B. Moral damages of five hundred Thousand Pesos (P500,000.00); and.

C. Litigation expenses of Ten Thousand Pesos (P10,000.00);.

3. In Civil Case No. SM-953, ordering defendants-appellees to pay, jointly and severally, with legal interest from the date when this decision shall have become final and executory;

A. Plaintiff-appellant Angel C. Torres:

1) Actual damages of One Hundred Ninety Nine Thousand One Hundred Twenty Pesos (P199,120.00);

2) Moral Damages of One Hundred Fifty Thousand Pesos (P150,000.00);

B. Plaintiff-appellant Norberto Torres:

1) Actual damages of Fifty Thousand Pesos (P50,000.00);

2) Moral damages of Fifty Thousand Pesos (P50,000.00);

C. Plaintiff-appellant Rodelio Joaquin:

1) Actual damages of One Hundred Thousand Pesos (P100,000.00);

2) Moral damages of One Hundred Thousand Pesos (P100,000.00); and

D. Plaintifsf-appellants litigation expenses of Ten Thousand Pesos (P10,000.00);

4. In Civil case No. SM-1247, ordering defendants-appellees to pay, jointly and severally, with legal interest from the date when

this decision shall have become final and executory :

A. Plaintiffs-appellants Presentacion Lorenzo and Clodualdo Lorenzo:

1) Actual damages of Two Hundred Fifty Six Thousand Six Hundred Pesos (P256,600.00);

2) Moral damages of Fifty Thousand Pesos (P50,000.00);

B. Plaintiff-appellant Consolacion Guzman :

1) Actual damages of One Hundred forty Thousand Pesos (P140,000.00);

2) Moral damages of Fifty Thousand Pesos (P50,000.00);

C. Plaintiff-appellant Virginia Guzman :

1) Actual damages of Two Hundred Five Hundred Twenty Pesos (205,520.00); and

D. Plaintiffs-appellants litigation expenses of Ten Thousand Pesos (10,000.00).

In addition, in all the four (4) instant cases, ordering defendants-appellees to pay, jointly and severally, plaintiffs-appellants attorney fees in an amount equivalent to 15% of the total amount awarded.

No pronouncement as to costs. 7

The foregoing judgment is based on the public respondent's conclusion that the petitioners were guilty of:

. . . a patent gross and evident lack of foresight, imprudence and negligence . . . in the management and operation of Angat Dam. The

unholiness of the hour, the extent of the opening of the spillways, And the magnitude of the water released, are all but products of defendants-appellees' headlessness, slovenliness, and carelessness. The resulting flash flood and inundation of even areas (sic) one (1) kilometer away from the Angat River bank would have been avoided had defendants-appellees prepared the Angat Dam by maintaining in the first place, a water elevation which would allow room for the expected torrential rains. 8

This conclusion, in turn, is anchored on its findings of fact, to wit:

As early as October 21, 1978, defendants-appellees knew of the impending onslaught of and imminent danger posed by typhoon "Kading". For as alleged by defendants-appellees themselves, the coming of said super typhoon was bannered by Bulletin Today, a newspaper of national circulation, on October 25, 1978, as "Super Howler to hit R.P." The next day, October 26, 1978, said typhoon once again merited a headline in said newspaper as "Kading's Big Blow expected this afternoon" (Appellee's Brief, p. 6). Apart from the newspapers, defendants-appellees learned of typhoon "Kading' through radio announcements (Civil Case No. SM-950, TSN, Benjamin Chavez, December 4, 1984, pp. 7-9).

Defendants-appellees doubly knew that the Angat Dam can safely hold a normal maximum headwater elevation of 217 meters (Appellee's brief, p. 12; Civil Case No. SM-951, Exhibit "I-6"; Civil Case No. SM-953, Exhibit "J-6"; Civil Case No. SM-1247, Exhibit "G-6").

Yet, despite such knowledge, defendants-appellees maintained a reservoir water elevation even beyond its maximum and safe level, thereby giving no sufficient allowance for the reservoir to contain the rain water that will inevitably be brought by the coming typhoon.

On October 24, 1978, before typhoon "Kading" entered the Philippine area of responsibility, water elevation ranged from 217.61 to 217.53, with very little opening of the spillways, ranging from 1/2 to 1 meter. On October 25, 1978, when typhoon "Kading" entered the Philippine area of responsibility, and public storm signal number one was hoisted over Bulacan at 10:45 a.m., later raised to number two at 4:45 p.m., and then to number three at 10:45 p.m., water elevation ranged from 217.47 to 217.57, with very little opening of the spillways, ranging from 1/2 to 1 meter. On October 26, 1978, when public storm signal number three remained hoisted over Bulacan, the water elevation still remained at its maximum level of 217.00 to 218.00 with very little opening of the spillways ranging from 1/2 to 2 meters, until at or about midnight, the spillways were suddenly opened at 5 meters, then increasing swiftly to 8, 10, 12, 12.5, 13, 13.5, 14, 14.5 in the early morning hours of October 27, 1978, releasing water at the rate of 4,500 cubic meters per second, more or less. On October 27, 1978, water elevation remained at a range of 218.30 to 217.05 (Civil Case No. SM-950, Exhibits "D" and series, "L", "M", "N", and "O" and Exhibits "3" and "4"; Civil Case No. SM-951, Exhibits "H" and "H-1"; Civil Case No. SM-953, Exhibits "I" and "I-1"; Civil Case No. SM 1247, Exhibits "F" and "F-1").

xxx xxx xxx

From the mass of evidence extant in the record, We are convinced, and so hold that the flash flood on October 27, 1978, was caused not by rain waters (sic), but by stored waters (sic) suddenly and simultaneously released from the Angat Dam by defendants-appellees, particularly from midnight of October 26, 1978 up to the morning hours of October 27,1978. 9

The appellate court rejected the petitioners' defense that they had sent "early warning written notices" to the towns of Norzagaray, Angat, Bustos, Plaridel, Baliwag and Calumpit dated 24 October 1978 which read:

TO ALL CONCERN (sic):

Please be informed that at present our reservoir (dam) is full and that we have been releasing water intermittently for the past several days.

With the coming of typhoon "Rita" (Kading) we expect to release greater (sic) volume of water, if it pass (sic) over our place.

In view of this kindly advise people residing along Angat River to keep alert and stay in safe places.

BENJAMIN L. CHAVEZPower Plant Superintendent 10

because:

Said notice was delivered to the "towns of Bulacan" on October 26, 1978 by defendants-appellees driver, Leonardo Nepomuceno (Civil Case No. SM-950, TSN, Benjamin Chavez, December 4, 1984, pp. 7-11 and TSN, Leonardo Nepomuceno, March 7, 1985, pp. 10-12).

Said notice is ineffectual, insufficient and inadequate for purposes of the opening of the spillway gates at midnight of October 26, 1978 and on October 27, 1978. It did not prepare or warn the persons so served, for the volume of water to be released, which turned out to be of such magnitude, that residents near or along the Angat River, even those one (1) kilometer away, should have been advised to evacuate. Said notice, addressed "TO ALL CONCERN (sic)," was delivered to a policeman (Civil Case No. SM-950, pp. 10-12 and Exhibit "2-A") for the municipality of Norzagaray. Said notice was not thus addressed and delivered to the proper and responsible officials who could have disseminated the warning to the residents directly affected. As for the municipality of Sta. Maria, where plaintiffs-appellants in Civil Case No. SM-1246 reside, said notice does not appear to have been served. 11

Relying on Juan F. Nakpil & Sons vs. Court of Appeals, 12 public respondent rejected the petitioners' plea that the incident in question was caused by force majeure and that they are, therefore, not liable to the private respondents for any kind of damage — such damage being in the nature of damnum absque injuria.

The motion for reconsideration filed by the petitioners, as well as the motion to modify judgment filed by the public respondents, 13 were denied by the public respondent in its Resolution of 27 December 1991. 14

Petitioners thus filed the instant petition on 21 February 1992.

After the Comment to the petition was filed by the private respondents and the Reply thereto was filed by the petitioners, We gave due course to the petition on 17 June 1992 and directed the parties to submit their respective Memoranda, 15 which they subsequently complied with.

The petitioners raised the following errors allegedly committed by the respondent Court :

I. THE COURT OF APPEALS ERRED IN APPLYING THE RULING OF NAKPIL & SONS V. COURT OF APPEALS AND HOLDING THAT PETITIONERS WERE GUILTY OF NEGLIGENCE.

II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE WRITTEN NOTICES OF WARNING ISSUED BY PETITIONERS WERE INSUFFICIENT.

III. THE COURT OF APPEALS ERRED IN HOLDING THAT THE DAMAGE SUFFERED BY PRIVATE RESPONDENTS WAS NOT DAMNUM ABSQUE INJURIA.

IV. THE COURT OF APPEALS ERRED IN NOT AWARDING THE COUNTERCLAIM OF PETITIONERS FOR ATTORNEY'S FEES AND EXPENSES OF LITIGATION. 16

These same errors were raised by herein petitioners in G.R. No. 96410, entitled National Power Corporation, et al., vs. Court of Appeals, et al., 17 which this Court decided on 3 July 1992. The said case involved the very same incident subject of the instant petition. In no uncertain terms, We declared therein that the proximate cause of the loss and damage sustained by the plaintiffs therein — who were similarly situated as the private respondents herein — was the negligence of the petitioners, and that the 24 October 1978 "early warning notice" supposedly sent to the affected municipalities, the same notice involved in the case at bar, was insufficient. We thus cannot now rule otherwise not only because such a decision binds this Court with respect to the cause of the inundation of the town of Norzagaray, Bulacan on 26-27 October 1978 which resulted in the loss of lives and the destruction to property in both cases, but also because of the fact that on the basis of its meticulous analysis and evaluation of the evidence adduced by the parties in the cases subject of CA-G.R. CV Nos. 27290-93, public respondent found as conclusively established that indeed, the petitioners were guilty of "patent gross and evident lack of foresight, imprudence and negligence in the management and operation of Angat Dam," and that

"the extent of the opening of the spillways, and the magnitude of the water released, are all but products of defendants-appellees' headlessness, slovenliness, and carelessness." 18 Its findings and conclusions are biding upon Us, there being no showing of the existence of any of the exceptions to the general rule that findings of fact of the Court of Appeals are conclusive upon this Court. 19 Elsewise stated, the challenged decision can stand on its own merits independently of Our decision in G.R. No. 96410. In any event, We reiterate here in Our pronouncement in the latter case that Juan F. Nakpil & Sons vs. Court of Appeals 20 is still good law as far as the concurrent liability of an obligor in the case of force majeure is concerned. In the Nakpil case, We held:

To exempt the obligor from liability under Article 1174 of the Civil Code, for a breach of an obligation due to an "act of God," the following must concur: (a) the cause of the breach of the obligation must be independent of the will of the debtor; (b) the event must be either unforseeable or unavoidable; (c) the event must be such as to render it impossible for the debtor to fulfill his obligation in a moral manner; and (d) the debtor must be free from any participation in, or aggravation of the injury to the creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; Estrada v. Consolacion, 71 SCRA 423; Austria v. Court of Appeals, 39 SCRA 527; Republic of the Phil. v. Luzon Stevedoring Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil. 657).

Thus, if upon the happening of a fortuitous event or an act of God, there concurs a corresponding fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation as provided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor cannot escape liability.

The principle embodied in the act of God doctrine strictly requires that the act must be one occasioned exclusively by the violence of nature

and all human agencies are to be excluded from creating or entering into the cause of the mischief. When the effect, the cause of which is to be considered, is found to be in part the result of the participation of man, whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175).

Thus it has been held that when the negligence of a person concurs with an act of God in producing a loss, such person is not exempt from liability by showing that the immediate cause of the damage was the act of God. To be exempt from liability for loss because of an act of God, he must be free from any previous negligence or misconduct by which that loss or damage may have been occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657). 21

Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to escape liability for the loss or damage sustained by private respondents since they, the petitioners, were guilty of negligence. The event then was not occasioned exclusively by an act of God or force majeure; a human factor — negligence or imprudence — had intervened. The effect then of the force majeure in question may be deemed to have, even if only partly, resulted from the participation of man. Thus, the whole occurrence was thereby humanized, as it were, and removed from the laws applicable to acts of God.

WHEREFORE, for want of merit, the instant petition is hereby DISMISSED and the Consolidated Decision of the Court of Appeals in CA-G.R. CV Nos. 27290-93 is AFFIRMED, with costs against the petitioners.

SO ORDERED.

SOUTHEASTERN COLLEGE, INC., petitioner, vs. COURT OF APPEALS, JUANITA DE JESUS VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO, CONSOLACION DIMAANO and MILAGROS DIMAANO, respondents.

D E C I S I O N

PURISIMA, J.:

Petition for review under Rule 45 of the Rules of Court seeking to set aside the Decision[1] promulgated on July 31, 1996, and Resolution[2] dated September 12, 1996 of the Court of Appeals[3] in CA-G.R. No. 41422, entitled Juanita de Jesus vda. de Dimaano, et al. vs. Southeastern College, Inc., which reduced the moral damages awarded below from P1,000,000.00 to P200,000.00.[4] The Resolution under attack denied petitioners motion for reconsideration.

Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner owns a four-storey school building along the same College Road. On October 11, 1989, at about 6:30 in the morning, a powerful typhoon Saling hit Metro Manila. Buffeted by very strong winds, the roof of petitioners building was partly ripped off and blown away, landing on and destroying portions of the roofing of private respondents house. After the typhoon had passed, an ocular inspection of the destroyed buildings was conducted by a team of engineers headed by the city building official, Engr. Jesus L. Reyna. Pertinent aspects of the latters Report[5] dated October 18, 1989 stated, as follows:

5. One of the factors that may have led to this calamitous event is the formation of the buildings in the area and the general direction of the wind. Situated in the peripheral lot is an almost U-shaped formation of 4-storey building. Thus, with the strong winds having a westerly direction, the general formation of the buildings becomes a big funnel-like structure, the one situated along College Road, receiving the heaviest impact of the strong winds. Hence, there are portions of the roofing, those located on both ends of the building, which remained intact after the storm.

6. Another factor and perhaps the most likely reason for the dislodging of the roofings structural trusses is the improper anchorage of the said trusses to the roof beams. The 1/2 diameter steel bars embedded on the concrete roof beams which serve as truss anchorage

are not bolted nor nailed to the trusses. Still, there are other steel bars which were not even bent to the trusses, thus, those trusses are not anchored at all to the roof beams.

It then recommended that to avoid any further loss and damage to lives, limbs and property of persons living in the vicinity, the fourth floor of subject school building be declared as a structural hazard.

In their Complaint[6] before the Regional Trial Court of Pasay City, Branch 117, for damages based on culpa aquiliana, private respondents alleged that the damage to their house rendered the same uninhabitable, forcing them to stay temporarily in others houses. And so they sought to recover from petitioner P117,116.00, as actual damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary damages and P100,000.00, for and as attorneys fees; plus costs.

In its Answer, petitioner averred that subject school building had withstood several devastating typhoons and other calamities in the past, without its roofing or any portion thereof giving way; that it has not been remiss in its responsibility to see to it that said school building, which houses school children, faculty members, and employees, is in tip-top condition; and furthermore, typhoon Saling was an act of God and therefore beyond human control such that petitioner cannot be answerable for the damages wrought thereby, absent any negligence on its part.

The trial court, giving credence to the ocular inspection report to the effect that subject school building had a defective roofing structure, found that, while typhoon Saling was accompanied by strong winds, the damage to private respondents house could have been avoided if the construction of the roof of [petitioners] building was not faulty. The dispositive portion of the lower courts decision[7] reads thus:

WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in favor of the plaintiff (sic) and against the defendants, (sic) ordering the latter to pay jointly and severally the former as follows:

a) P117,116.00, as actual damages, plus litigation expenses;

b) P1,000,000.00 as moral damages;

c) P100,000.00 as attorneys fees;

d) Costs of the instant suit.

The claim for exemplary damages is denied for the reason that the defendants (sic) did not act in a wanton fraudulent, reckless, oppressive or malevolent manner.

In its appeal to the Court of Appeals, petitioner assigned as errors,[8] that:

I

THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON SALING, AS AN ACT OF GOD, IS NOT THE SOLE AND ABSOLUTE REASON FOR THE RIPPING-OFF OF THE SMALL PORTION OF THE ROOF OF SOUTHEASTERNS FOUR (4) STOREY SCHOOL BUILDING.

II

THE TRIAL COURT ERRED IN HOLDING THAT THE CONSTRUCTION OF THE ROOF OF DEFENDANTS SCHOOL BUILDING WAS FAULTY NOTWITHSTANDING THE ADMISSION THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE AS TYPHOON SALING WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE INCIDENT.

III

THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES AS WELL AS ATTORNEYS FEES AND LITIGATION EXPENSES AND COSTS OF SUIT TO DIMAANOS WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES AT ALL AS DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN INTERVENING EVENT THAT RENDERS THIS CASE MOOT AND ACADEMIC.

IV

THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF EXECUTION INSPITE OF THE PERFECTION OF SOUTHEASTERNS APPEAL WHEN THERE IS NO

COMPELLING REASON FOR THE ISSUANCE THERETO.

As mentioned earlier, respondent Court of Appeals affirmed with modification the trial courts disposition by reducing the award of moral damages from P1,000,000.00 to P200,000.00. Hence, petitioners resort to this Court, raising for resolution the issues of:

1. Whether or not the award of actual damage [sic] to respondent Dimaanos on the basis of speculation or conjecture, without proof or receipts of actual damage, [sic] legally feasible or justified.

2. Whether or not the award of moral damages to respondent Dimaanos, without the latter having suffered, actual damage has legal basis.

3. Whether or not respondent Dimaanos who are no longer the owner of the property, subject matter of the case, during its pendency, has the right to pursue their complaint against petitioner when the case was already rendered moot and academic by the sale of the property to third party.

4. Whether or not the award of attorneys fees when the case was already moot and academic [sic] legally justified.

5. Whether or not petitioner is liable for damage caused to others by typhoon Saling being an act of God.

6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or without hearing, has support in law.

The pivot of inquiry here, determinative of the other issues, is whether the damage on the roof of the building of private respondents resulting from the impact of the falling portions of the school buildings roof ripped off by the strong winds of typhoon Saling, was, within legal contemplation, due to fortuitous event? If so, petitioner cannot be held liable for the damages suffered by the private respondents. This conclusion finds support in Article 1174 of the Civil Code, which provides:

Art 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or

when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable.

The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as an event which takes place by accident and could not have been foreseen.[9] Escriche elaborates it as an unexpected event or act of God which could neither be foreseen nor resisted.[10] Civilist Arturo M. Tolentino adds that [f]ortuitous events may be produced by two general causes: (1) by nature, such as earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act of man, such as an armed invasion, attack by bandits, governmental prohibitions, robbery, etc.[11]

In order that a fortuitous event may exempt a person from liability, it is necessary that he be free from any previous negligence or misconduct by reason of which the loss may have been occasioned.[12] An act of God cannot be invoked for the protection of a person who has been guilty of gross negligence in not trying to forestall its possible adverse consequences. When a persons negligence concurs with an act of God in producing damage or injury to another, such person is not exempt from liability by showing that the immediate or proximate cause of the damage or injury was a fortuitous event. When the effect is found to be partly the result of the participation of man whether it be from active intervention, or neglect, or failure to act the whole occurrence is hereby humanized, and removed from the rules applicable to acts of God.[13]

In the case under consideration, the lower court accorded full credence to the finding of the investigating team that subject school buildings roofing had no sufficient anchorage to hold it in position especially when battered by strong winds.Based on such finding, the trial court imputed negligence to petitioner and adjudged it liable for damages to private respondents.

After a thorough study and evaluation of the evidence on record, this Court believes otherwise, notwithstanding the general rule that factual findings by the trial court, especially when affirmed by the appellate court, are binding and conclusive upon this Court.[14] After a careful scrutiny of the records and the pleadings submitted by the parties, we find exception to this rule and hold that the lower courts misappreciated the evidence proffered.

There is no question that a typhoon or storm is a fortuitous event, a natural occurrence which may be foreseen but is unavoidable despite any amount of foresight, diligence or care.[15] In order to be exempt from liability arising from any adverse consequence engendered thereby, there should have been no human participation amounting to a negligent act.[16] In other words, the person seeking exoneration from liability must not be guilty of negligence. Negligence, as commonly understood, is conduct which naturally or reasonably creates undue risk or harm to others. It may be the failure to observe that degree of care, precaution, and vigilance which the circumstances justly demand,[17] or the omission to do something which a prudent and reasonable man, guided by considerations which ordinarily regulate the conduct of human affairs, would do.[18] From these premises, we proceed to determine whether petitioner was negligent, such that if it were not, the damage caused to private respondents house could have been avoided?

At the outset, it bears emphasizing that a person claiming damages for the negligence of another has the burden of proving the existence of fault or negligence causative of his injury or loss. The facts constitutive of negligence must be affirmatively established by competent evidence,[19] not merely by presumptions and conclusions without basis in fact. Private respondents, in establishing the culpability of petitioner, merely relied on the aforementioned report submitted by a team which made an ocular inspection of petitioners school building after the typhoon. As the term imparts, an ocular inspection is one by means of actual sight or viewing.[20] What is visual to the eye though, is not always reflective of the real cause behind. For instance, one who hears a gunshot and then sees a wounded person, cannot always definitely conclude that a third person shot the victim. It could have been self-inflicted or caused accidentally by a stray bullet. The relationship of cause and effect must be clearly shown.

In the present case, other than the said ocular inspection, no investigation was conducted to determine the real cause of the partial unroofing of petitioners school building. Private respondents did not even show that the plans, specifications and design of said school building were deficient and defective. Neither did they prove any substantial deviation from the approved plans and specifications. Nor did they conclusively establish that the construction of such building was basically flawed.[21]

On the other hand, petitioner elicited from one of the witnesses of private respondents, city building official Jesus Reyna, that the original plans and design of petitioners school building were approved prior to its construction. Engr. Reyna admitted that it was a legal requirement before the construction of any building to obtain a permit from the city building official (city engineer, prior to the passage of the Building Act of 1977). In like manner, after construction of the building, a certification must be secured from the same official attesting to the readiness for occupancy of the edifice. Having obtained both building permit and certificate of occupancy, these are, at the very least, prima facie evidence of the regular and proper construction of subject school building.[22]

Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon Saling, the same city official gave the go-signal for such repairs without any deviation from the original design and subsequently, authorized the use of the entire fourth floor of the same building. These only prove that subject building suffers from no structural defect, contrary to the report that its U-shaped form was structurally defective. Having given his unqualified imprimatur, the city building official is presumed to have properly performed his duties[23] in connection therewith.

In addition, petitioner presented its vice president for finance and administration who testified that an annual maintenance inspection and repair of subject school building were regularly undertaken. Petitioner was even willing to present its maintenance supervisor to attest to the extent of such regular inspection but private respondents agreed to dispense with his testimony and simply stipulated that it would be corroborative of the vice presidents narration.

Moreover, the city building official, who has been in the city government service since 1974, admitted in open court that no complaint regarding any defect on the same structure has ever been lodged before his office prior to the institution of the case at bench. It is a matter of judicial notice that typhoons are common occurrences in this country. If subject school buildings roofing was not firmly anchored to its trusses, obviously, it could not have withstood long years and several typhoons even stronger than Saling.

In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of the appellate court. We thus hold that petitioner has not been shown negligent or at fault regarding the

construction and maintenance of its school building in question and that typhoon Saling was the proximate cause of the damage suffered by private respondents house.

With this disposition on the pivotal issue, private respondents claim for actual and moral damages as well as attorneys fees must fail.[24] Petitioner cannot be made to answer for a purely fortuitous event.[25] More so because no bad faith or willful act to cause damage was alleged and proven to warrant moral damages.

Private respondents failed to adduce adequate and competent proof of the pecuniary loss they actually incurred.[26] It is not enough that the damage be capable of proof but must be actually proved with a reasonable degree of certainty, pointing out specific facts that afford a basis for measuring whatever compensatory damages are borne.[27] Private respondents merely submitted an estimated amount needed for the repair of the roof of their subject building. What is more, whether the necessary repairs were caused ONLY by petitioners alleged negligence in the maintenance of its school building, or included the ordinary wear and tear of the house itself, is an essential question that remains indeterminable.

The Court deems unnecessary to resolve the other issues posed by petitioner.

As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by the trial court is hereby nullified and set aside. Private respondents are ordered to reimburse any amount or return to petitioner any property which they may have received by virtue of the enforcement of said writ.

WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED. The complaint of private respondents in Civil Case No. 7314 before the trial court a quo is ordered DISMISSED and the writ of execution issued on April 1, 1993 in said case is SET ASIDE. Accordingly, private respondents are ORDERED to return to petitioner any amount or property received by them by virtue of said writ. Costs against the private respondents.

SO ORDERED.

G.R. No. L-83524 October 13, 1989

ERNESTO KRAMER, JR. and MARIA KRAMER, petitioners, vs.HON. COURT OF APPEALS and TRANS-ASIA SHIPPING LINES, INC., respondents.

GANCAYCO, J.:

The principal issue in this Petition for Review is whether or not a Complaint for damages instituted by the petitioners against the private respondent arising from a marine collision is barred by the statute of limitations.

The record of the case discloses that in the early morning of April 8, 1976, the F/B Marjolea, a fishing boat owned by the petitioners Ernesto Kramer, Jr. and Marta Kramer, was navigating its way from Marinduque to Manila. Somewhere near Maricabon Island and Cape Santiago, the boat figured in a collision with an inter-island vessel, the M/V Asia Philippines owned by the private respondent Trans-Asia Shipping Lines, Inc. As a consequence of the collision, the F/B Marjolea sank, taking with it its fish catch.

After the mishap, the captains of both vessels filed their respective marine protests with the Board of Marine Inquiry of the Philippine Coast Guard. The Board conducted an investigation for the purpose of determining the proximate cause of the maritime collision.

On October 19, 1981, the Board concluded that the loss of the F/B Marjolea and its fish catch was attributable to the negligence of the employees of the private respondent who were on board the M/V Asia Philippines during the collision. The findings made by the Board served as the basis of a subsequent Decision of the Commandant of the Philippine Coast Guard dated April 29, 1982 wherein the second mate of the M/V Asia Philippines was suspended from pursuing his profession as a marine officer. 1

On May 30, 1985, the petitioners instituted a Complaint for damages against the private respondent before Branch 117 of the Regional Trial Court in Pasay City. 2 The suit was docketed as Civil Case No. 2907-P.

The private respondent filed a Motion seeking the dismissal of the Complaint on the ground of prescription. He argued that under Article 1146 of the Civil Code, 3 the prescriptive period for instituting a Complaint for damages arising from a quasi-delict like a maritime collision is four years. He maintained that the petitioners should have filed their Complaint within four years from the date when their cause of action accrued, i.e., from April 8, 1976 when the maritime collision took place, and that accordingly, the Complaint filed on May 30, 1985 was instituted beyond the four-year prescriptive period.

For their part, the petitioners contended that maritime collisions have peculiarities and characteristics which only persons with special skill, training and experience like the members of the Board of Marine Inquiry can properly analyze and resolve. The petitioners argued that the running of the prescriptive period was tolled by the filing of the marine protest and that their cause of action accrued only on April 29, 1982, the date when the Decision ascertaining the negligence of the crew of the M/V Asia Philippines had become final, and that the four-year prescriptive period under Article 1146 of the Civil Code should be computed from the said date. The petitioners concluded that inasmuch as the Complaint was filed on May 30, 1985, the same was seasonably filed.

In an Order dated September 25, 1986, 4 the trial court denied the Motion filed by the private respondent. The trial court observed that in ascertaining negligence relating to a maritime collision, there is a need to rely on highly technical aspects attendant to such collision, and that the Board of Marine Inquiry was constituted pursuant to the Philippine Merchant Marine Rules and Regulations, which took effect on January 1, 1975 by virtue of Letter of Instruction No. 208 issued on August 12, 1974 by then President Ferdinand E. Marcos, precisely to answer the need. The trial court went on to say that the four-year prescriptive period provided in Article 1146 of the Civil Code should begin to run only from April 29, 1982, the date when the negligence of the crew of the M/V Asia Philippines had been finally ascertained. The pertinent portions of the Order of the trial court are as follows —

Considering that the action concerns an incident involving a collision at sea of two vehicles and to determine negligence for that incident there is an absolute need to rely on highly

technical aspects attendant to such collisions. It is obviously to answer such a need that the Marine Board of Inquiry (Sic) was constituted pursuant to the Philippine Merchant Marine Rules and Regulations which became effective January 1, 1975 under Letter of Instruction(s) No. 208 dated August 12, 1974. The relevant section of that law (Art. XVI/b/ provided as follow(s):

1. Board of Marine Inquiry (BMI) — Shall have the jurisdiction to investigate marine accidents or casualties relative to the liability of shipowners and officers, exclusive jurisdiction to investigate cases/complaints against the marine officers; and to review all proceedings or investigation conducted by the Special Boards of Marine Inquiry

2. Special Board of Marine Inquiry. — Shall have original jurisdiction to investigate marine casualties and disasters which occur or are committed within the limits of the Coast Guard District concerned or those referred by the Commandant.

The Court finds reason in the argument of the plaintiff that marine incidents have those 'peculiarities which only persons of special skill, training and exposure can rightfully decipher and resolve on the matter of the negligence and liabilities of parties involved and inasmuch as the report of the Board of Inquiry (sic) admittedly came out only on April 29, 1982, the prescriptive period provided x x x under Art. 1146 of the Civil Code should begin to run only from that date. The complaint was filed with this Court on May 10, 1985, hence the statute of limitations can not constitute a bar to the filing of this case. 5

The private respondent elevated the case to the Court of Appeals by way of a special civil action for certiorari and prohibition, alleging therein that the trial court committed a grave abuse of discretion in refusing to dismiss the Complaint filed by the petitioners. The case was assigned to the Second Division of the appellate court and was docketed as Case No. CA-G.R. SP No. 12032. 6

In a Decision dated November 27, 1987, 7 and clarified in a Resolution dated January 12, 1988,  8 the Court of Appeals granted the Petition filed by the private respondent and ordered the trial court to dismiss the Complaint. The pertinent portions of the Decision of the appellate court are as follows —

It is clear that the cause of action of private respondent (the herein petitioners Ernesto Kramer, Jr. and Marta Kramer) accrued from the occurrence of the mishap because that is the precise time when damages were inflicted upon and sustained by the aggrieved party and from which relief from the court is presently sought. Private respondents should have immediately instituted a complaint for damages based on a quasi-delict within four years from the said marine incident because its cause of action had already definitely ripened at the onset of the collision. For this reason, he (sic) could cite the negligence on the part of the personnel of the petitioner to exercise due care and lack of (sic) diligence to prevent the collision that resulted in the total loss of their x x x boat.

We can only extend scant consideration to respondent judge's reasoning that in view of the nature of the marine collision that allegedly involves highly technical aspects, the running of the prescriptive period should only commence from the finality of the investigation conducted by the Marine Board of Inquiry (sic) and the decision of the Commandant, Philippine Coast Guard, who has original jurisdiction over the mishap. For one, while it is true that the findings and recommendation of the Board and the decision of the Commandant may be helpful to the court in ascertaining which of the parties are at fault, still the former (court) is not bound by said findings and decision. Indeed, the same findings and decision could be entirely

or partially admitted, modified, amended, or disregarded by the court according to its lights and judicial discretion. For another, if the accrual of a cause of action will be made to depend on the action to be taken by certain government agencies, then necessarily, the tolling of the prescriptive period would hinge upon the discretion of such agencies. Said alternative it is easy to foresee would be fraught with hazards. Their investigations might be delayed and lag and then witnesses in the meantime might not be available or disappear, or certain documents may no longer be available or might be mislaid. ... 9

The petitioners filed a Motion for the reconsideration of the said Decision but the same was denied by the Court of Appeals in a Resolution dated May 27, 1988. 10

Hence, the instant Petition wherein the arguments raised by the petitioner before the trial court are reiterated. 11In addition thereto, the petitioner contends that the Decision of the Court of Appeals 12 The private respondent filed its Comment on the Petition seeking therein the dismissal of the same. 13 It is also contended by the private respondent that the ruling of the Court in Vasquez is not applicable to the case at bar because the said case involves a maritime collision attributable to a fortuitous event. In a subsequent pleading, the private respondent argues that the Philippine Merchant Marine Rules and Regulations cannot have the effect of repealing the provisions of the Civil Code on prescription of actions.14

On September 19,1988, the Court resolved to give due course to the petition. 15 After the parties filed their respective memoranda, the case was deemed submitted for decision.

The petition is devoid of merit. Under Article 1146 of the Civil Code, an action based upon a quasi-delict must be instituted within four (4) years. The prescriptive period begins from the day the quasi-delict is committed. InPaulan vs. Sarabia, 16 this Court ruled that in an action for damages arising from the collision of two (2) trucks, the action being based on a quasi-delict, the four (4)

year prescriptive period must be counted from the day of the collision.

In Espanol vs. Chairman, Philippine Veterans Administration, 17 this Court held as follows-

The right of action accrues when there exists a cause of action, which consists of 3 elements, namely: a) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; b) an obligation on the part of defendant to respect such right; and c) an act or omission on the part of such defendant violative of the right of the plaintiff ... It is only when the last element occurs or takes place that it can be said in law that a cause of action has arisen ... .

From the foregoing ruling, it is clear that the prescriptive period must be counted when the last element occurs or takes place, that is, the time of the commission of an act or omission violative of the right of the plaintiff, which is the time when the cause of action arises.

It is therefore clear that in this action for damages arising from the collision of two (2) vessels the four (4) year prescriptive period must be counted from the day of the collision. The aggrieved party need not wait for a determination by an administrative body like a Board of Marine Inquiry, that the collision was caused by the fault or negligence of the other party before he can file an action for damages. The ruling in Vasquez does not apply in this case. Immediately after the collision the aggrieved party can seek relief from the courts by alleging such negligence or fault of the owners, agents or personnel of the other vessel.

Thus, the respondent court correctly found that the action of petitioner has prescribed. The collision occurred on April 8, 1976. The complaint for damages was filed iii court only on May 30, 1 985, was beyond the four (4) year prescriptive period.

WHEREFORE, the petition is dismissed. No costs.

SO ORDERED.

G.R. No. 149275             September 27, 2004

VICKY C. TY, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

TINGA, J.:

Petitioner Vicky C. Ty ("Ty") filed the instant Petition for Review under Rule 45, seeking to set aside the Decision1of the Court of Appeals Eighth Division in CA-G.R. CR No. 20995, promulgated on 31 July 2001. The Decisionaffirmed with modification the judgment of the Regional Trial Court (RTC) of Manila, Branch 19, dated 21 April 1997, finding her guilty of seven (7) counts of violation of Batas Pambansa Blg. 222 (B.P. 22), otherwise known as the Bouncing Checks Law.

This case stemmed from the filing of seven (7) Informations for violation of B.P. 22 against Ty before the RTC of Manila. The Informations were docketed as Criminal Cases No. 93-130459 to No. 93-130465. The accusatory portion of the Information in Criminal Case No. 93-130465 reads as follows:

That on or about May 30, 1993, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to Manila Doctors’ Hospital to apply on account or for value to Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable to Manila Doctors Hospital in the amount of P30,000.00, said accused well knowing that at the time of issue she did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment within ninety (90) days from the date hereof, was subsequently dishonored by the drawee bank for "Account Closed" and despite receipt of notice of such dishonor, said accused failed to pay said Manila Doctors Hospital the amount of the check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice.

Contrary to law.3

The other Informations are similarly worded except for the number of the checks and dates of issue. The data are hereunder itemized as follows:

Criminal Case No.

Check No.

Postdated Amount

93-130459 48771030 March 1993

P30,000.00

93-130460 487711 30 April 1993 P30,000.00

93-130461 48770901 March 1993

P30,000.00

93-130462 48770730 December 1992

P30,000.00

93-130463 48770630 November 1992

P30,000.00

93-130464 48770830 January 1993

P30,000.00

93-130465 487712 30 May 1993 P30,000.004

The cases were consolidated and jointly tried. At her arraignment, Ty pleaded not guilty.5

The evidence for the prosecution shows that Ty’s mother Chua Lao So Un was confined at the Manila Doctors’ Hospital (hospital) from 30 October 1990 until 4 June 1992. Being the patient’s daughter, Ty signed the "Acknowledgment of Responsibility for Payment" in the Contract of Admission dated 30 October 1990.6 As of 4 June 1992, the Statement of Account7 shows the total liability of the mother in the amount of P657,182.40. Ty’s sister, Judy Chua, was also confined at the hospital from 13 May 1991 until 2 May 1992, incurring hospital bills in the amount of P418,410.55.8 The total hospital bills of the two patients amounted to P1,075,592.95. On 5 June 1992, Ty executed a promissory note wherein she assumed payment of the obligation in installments.9 To assure payment of the obligation, she drew several postdated checks against Metrobank payable to the hospital. The seven (7) checks, each covering the amount of P30,000.00, were all deposited on their due dates. But they were all dishonored by the drawee bank and returned unpaid to the hospital due to

insufficiency of funds, with the "Account Closed" advice. Soon thereafter, the complainant hospital sent demand letters to Ty by registered mail. As the demand letters were not heeded, complainant filed the seven (7) Informations subject of the instant case.10

For her defense, Ty claimed that she issued the checks because of "an uncontrollable fear of a greater injury." She averred that she was forced to issue the checks to obtain release for her mother whom the hospital inhumanely and harshly treated and would not discharge unless the hospital bills are paid. She alleged that her mother was deprived of room facilities, such as the air-condition unit, refrigerator and television set, and subject to inconveniences such as the cutting off of the telephone line, late delivery of her mother’s food and refusal to change the latter’s gown and bedsheets. She also bewailed the hospital’s suspending medical treatment of her mother. The "debasing treatment," she pointed out, so affected her mother’s mental, psychological and physical health that the latter contemplated suicide if she would not be discharged from the hospital. Fearing the worst for her mother, and to comply with the demands of the hospital, Ty was compelled to sign a promissory note, open an account with Metrobank and issue the checks to effect her mother’s immediate discharge.11

Giving full faith and credence to the evidence offered by the prosecution, the trial court found that Ty issued the checks subject of the case in payment of the hospital bills of her mother and rejected the theory of the defense.12Thus, on 21 April 1997, the trial court rendered a Decision finding Ty guilty of seven (7) counts of violation of B.P. 22 and sentencing her to a prison term. The dispositive part of the Decision reads:

CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7) checks in payment of a valid obligation, which turned unfounded on their respective dates of maturity, is found guilty of seven (7) counts of violations of Batas Pambansa Blg. 22, and is hereby sentenced to suffer the penalty of imprisonment of SIX MONTHS per count or a total of forty-two (42) months.

SO ORDERED.13

Ty interposed an appeal from the Decision of the trial court. Before the Court of Appeals, Ty reiterated her defense that she issued the checks "under the impulse of an uncontrollable fear of a greater injury or in avoidance of a greater evil or injury." She also argued that the trial court erred in finding her guilty when evidence showed there was absence of valuable consideration for the issuance of the checks and the payee had knowledge of the insufficiency of funds in the account. She protested that the trial court should not have applied the law mechanically, without due regard to the principles of justice and equity.14

In its Decision dated 31 July 2001, the appellate court affirmed the judgment of the trial court with modification. It set aside the penalty of imprisonment and instead sentenced Ty "to pay a fine of sixty thousand pesos (P60,000.00) equivalent to double the amount of the check, in each case."15

In its assailed Decision, the Court of Appeals rejected Ty’s defenses of involuntariness in the issuance of the checks and the hospital’s knowledge of her checking account’s lack of funds. It held that B.P. 22 makes the mere act of issuing a worthless check punishable as a special offense, it being a malum prohibitum. What the law punishes is the issuance of a bouncing check and not the purpose for which it was issued nor the terms and conditions relating to its issuance.16

Neither was the Court of Appeals convinced that there was no valuable consideration for the issuance of the checks as they were issued in payment of the hospital bills of Ty’s mother.17

In sentencing Ty to pay a fine instead of a prison term, the appellate court applied the case of Vaca v. Court of Appeals18 wherein this Court declared that in determining the penalty imposed for violation of B.P. 22, the philosophy underlying the Indeterminate Sentence Law should be observed, i.e., redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness, with due regard to the protection of the social order.19

Petitioner now comes to this Court basically alleging the same issues raised before the Court of Appeals. More specifically, she ascribed errors to the appellate court based on the following grounds:

A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER WAS FORCED TO OR COMPELLED IN THE OPENING OF THE ACCOUNT AND THE ISSUANCE OF THE SUBJECT CHECKS.

B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR IN AVOIDANCE OF A GREATER EVIL OR INJURY.

C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF VALUABLE CONSIDERATION IN THE ISSUANCE OF THE SUBJECT CHECKS.

D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS WAS FULLY AWARE OF THE LACK OF FUNDS IN THE ACCOUNT.

E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE HONORABLE TRIAL COURT [,] SHOULD NOT HAVE APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT DUE REGARD TO THE PRINCIPLES OF JUSTICE AND EQUITY.

In its Memorandum,20 the Office of the Solicitor General (OSG), citing jurisprudence, contends that a check issued as an evidence of debt, though not intended to be presented for payment, has the same effect as an ordinary check; hence, it falls within the ambit of B.P. 22. And when a check is presented for payment, the drawee bank will generally accept the same, regardless of whether it was issued in payment of an obligation or merely to guarantee said obligation. What the law punishes is the issuance of a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance. The mere act of issuing a worthless check ismalum prohibitum.21

We find the petition to be without merit and accordingly sustain Ty’s conviction.

Well-settled is the rule that the factual findings and conclusions of the trial court and the Court of Appeals are entitled to great weight and respect, and will not be

disturbed on appeal in the absence of any clear showing that the trial court overlooked certain facts or circumstances which would substantially affect the disposition of the case.22 Jurisdiction of this Court over cases elevated from the Court of Appeals is limited to reviewing or revising errors of law ascribed to the Court of Appeals whose factual findings are conclusive, and carry even more weight when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of support in the record or that they are so glaringly erroneous as to constitute serious abuse of discretion.23

In the instant case, the Court discerns no compelling reason to reverse the factual findings arrived at by the trial court and affirmed by the Court of Appeals.

Ty does not deny having issued the seven (7) checks subject of this case. She, however, claims that the issuance of the checks was under the impulse of an uncontrollable fear of a greater injury or in avoidance of a greater evil or injury. She would also have the Court believe that there was no valuable consideration in the issuance of the checks.

However, except for the defense’s claim of uncontrollable fear of a greater injury or avoidance of a greater evil or injury, all the grounds raised involve factual issues which are best determined by the trial court. And, as previously intimated, the trial court had in fact discarded the theory of the defense and rendered judgment accordingly.

Moreover, these arguments are a mere rehash of arguments unsuccessfully raised before the trial court and the Court of Appeals. They likewise put to issue factual questions already passed upon twice below, rather than questions of law appropriate for review under a Rule 45 petition.

The only question of law raised--whether the defense of uncontrollable fear is tenable to warrant her exemption from criminal liability--has to be resolved in the negative. For this exempting circumstance to be invoked successfully, the following requisites must concur: (1) existence of an uncontrollable fear; (2) the fear must be real and imminent; and (3) the fear of an injury is greater than or at least equal to that committed.24

It must appear that the threat that caused the uncontrollable fear is of such gravity and imminence that the ordinary man would have succumbed to it.25 It should be based on a real, imminent or reasonable fear for one’s life or limb.26 A mere threat of a future injury is not enough. It should not be speculative, fanciful, or remote.27 A person invoking uncontrollable fear must show therefore that the compulsion was such that it reduced him to a mere instrument acting not only without will but against his will as well.28 It must be of such character as to leave no opportunity to the accused for escape.29

In this case, far from it, the fear, if any, harbored by Ty was not real and imminent. Ty claims that she was compelled to issue the checks--a condition the hospital allegedly demanded of her before her mother could be discharged--for fear that her mother’s health might deteriorate further due to the inhumane treatment of the hospital or worse, her mother might commit suicide. This is speculative fear; it is not the uncontrollable fear contemplated by law.

To begin with, there was no showing that the mother’s illness was so life-threatening such that her continued stay in the hospital suffering all its alleged unethical treatment would induce a well-grounded apprehension of her death. Secondly, it is not the law’s intent to say that any fear exempts one from criminal liability much less petitioner’s flimsy fear that her mother might commit suicide. In other words, the fear she invokes was not impending or insuperable as to deprive her of all volition and to make her a mere instrument without will, moved exclusively by the hospital’s threats or demands.

Ty has also failed to convince the Court that she was left with no choice but to commit a crime. She did not take advantage of the many opportunities available to her to avoid committing one. By her very own words, she admitted that the collateral or security the hospital required prior to the discharge of her mother may be in the form of postdated checks or jewelry.30 And if indeed she was coerced to open an account with the bank and issue the checks, she had all the opportunity to leave the scene to avoid involvement.

Moreover, petitioner had sufficient knowledge that the issuance of checks without funds may result in a violation of B.P. 22. She even testified that her counsel

advised her not to open a current account nor issue postdated checks "because the moment I will not have funds it will be a big problem."31 Besides, apart from petitioner’s bare assertion, the record is bereft of any evidence to corroborate and bolster her claim that she was compelled or coerced to cooperate with and give in to the hospital’s demands.

Ty likewise suggests in the prefatory statement of her Petition and Memorandum that the justifying circumstance of state of necessity under par. 4, Art. 11 of the Revised Penal Code may find application in this case.

We do not agree. The law prescribes the presence of three requisites to exempt the actor from liability under this paragraph: (1) that the evil sought to be avoided actually exists; (2) that the injury feared be greater than the one done to avoid it; (3) that there be no other practical and less harmful means of preventing it.32

In the instant case, the evil sought to be avoided is merely expected or anticipated. If the evil sought to be avoided is merely expected or anticipated or may happen in the future, this defense is not applicable.33 Ty could have taken advantage of an available option to avoid committing a crime. By her own admission, she had the choice to give jewelry or other forms of security instead of postdated checks to secure her obligation.

Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor.34 In this case, the issuance of the bounced checks was brought about by Ty’s own failure to pay her mother’s hospital bills.

The Court also thinks it rather odd that Ty has chosen the exempting circumstance of uncontrollable fear and the justifying circumstance of state of necessity to absolve her of liability. It would not have been half as bizarre had Ty been able to prove that the issuance of the bounced checks was done without her full volition. Under the circumstances, however, it is quite clear that neither uncontrollable fear nor avoidance of a greater evil or injury prompted the issuance of the bounced checks.

Parenthetically, the findings of fact in the Decision of the trial court in the Civil Case35 for damages filed by Ty’s

mother against the hospital is wholly irrelevant for purposes of disposing the case at bench. While the findings therein may establish a claim for damages which, we may add, need only be supported by a preponderance of evidence, it does not necessarily engender reasonable doubt as to free Ty from liability.

As to the issue of consideration, it is presumed, upon issuance of the checks, in the absence of evidence to the contrary, that the same was issued for valuable consideration.36 Section 2437 of the Negotiable Instruments Law creates a presumption that every party to an instrument acquired the same for a consideration38 or for value.39 In alleging otherwise, Ty has the onus to prove that the checks were issued without consideration. She must present convincing evidence to overthrow the presumption.

A scrutiny of the records reveals that petitioner failed to discharge her burden of proof. "Valuable consideration may in general terms, be said to consist either in some right, interest, profit, or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other aide. Simply defined, valuable consideration means an obligation to give, to do, or not to do in favor of the party who makes the contract, such as the maker or indorser."40

In this case, Ty’s mother and sister availed of the services and the facilities of the hospital. For the care given to her kin, Ty had a legitimate obligation to pay the hospital by virtue of her relationship with them and by force of her signature on her mother’s Contract of Admission acknowledging responsibility for payment, and on the promissory note she executed in favor of the hospital.

Anent Ty’s claim that the obligation to pay the hospital bills was not her personal obligation because she was not the patient, and therefore there was no consideration for the checks, the case of Bridges v. Vann, et al.41 tells us that "it is no defense to an action on a promissory note for the maker to say that there was no consideration which was beneficial to him personally; it is sufficient if the consideration was a benefit conferred upon a third person, or a detriment suffered by the promisee, at the instance of the promissor. It is enough if the obligee foregoes some right or privilege or suffers some detriment and the

release and extinguishment of the original obligation of George Vann, Sr., for that of appellants meets the requirement. Appellee accepted one debtor in place of another and gave up a valid, subsisting obligation for the note executed by the appellants. This, of itself, is sufficient consideration for the new notes."

At any rate, the law punishes the mere act of issuing a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance.42 B.P. 22 does not make any distinction as to whether the checks within its contemplation are issued in payment of an obligation or to merely guarantee the obligation.43The thrust of the law is to prohibit the making of worthless checks and putting them into circulation.44 As this Court held in Lim v. People of the Philippines,45 "what is primordial is that such issued checks were worthless and the fact of its worthlessness is known to the appellant at the time of their issuance, a required element under B.P. Blg. 22."

The law itself creates a prima facie presumption of knowledge of insufficiency of funds. Section 2 of B.P. 22 provides:

Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.

Such knowledge is legally presumed from the dishonor of the checks for insufficiency of funds.46 If not rebutted, it suffices to sustain a conviction.47

Petitioner likewise opines that the payee was aware of the fact that she did not have sufficient funds with the drawee bank and such knowledge necessarily exonerates her liability.

The knowledge of the payee of the insufficiency or lack of funds of the drawer with the drawee bank is

immaterial as deceit is not an essential element of an offense penalized by B.P. 22. The gravamen of the offense is the issuance of a bad check, hence, malice and intent in the issuance thereof is inconsequential.48

In addition, Ty invokes our ruling in Magno v. Court of Appeals49 wherein this Court inquired into the true nature of transaction between the drawer and the payee and finally acquitted the accused, to persuade the Court that the circumstances surrounding her case deserve special attention and do not warrant a strict and mechanical application of the law.

Petitioner’s reliance on the case is misplaced. The material operative facts therein obtaining are different from those established in the instant petition. In the 1992 case, the bounced checks were issued to cover a "warranty deposit" in a lease contract, where the lessor-supplier was also the financier of the deposit. It was a modus operandi whereby the supplier was able to sell or lease the goods while privately financing those in desperate need so they may be accommodated. The maker of the check thus became an unwilling victim of a lease agreement under the guise of a lease-purchase agreement. The maker did not benefit at all from the deposit, since the checks were used as collateral for an accommodation and not to cover the receipt of an actual account or credit for value.

In the case at bar, the checks were issued to cover the receipt of an actual "account or for value." Substantial evidence, as found by the trial court and Court of Appeals, has established that the checks were issued in payment of the hospital bills of Ty’s mother.

Finally, we agree with the Court of Appeals in deleting the penalty of imprisonment, absent any proof that petitioner was not a first-time offender nor that she acted in bad faith. Administrative Circular 12-2000,50 adopting the rulings in Vaca v. Court of Appeals51 and Lim v. People,52 authorizes the non-imposition of the penalty of imprisonment in B.P. 22 cases subject to certain conditions. However, the Court resolves to modify the penalty in view of Administrative Circular 13-200153 which clarified Administrative 12-2000. It is stated therein:

The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of

preference in the application of the penalties provided for in B.P. Blg. 22.

Thus, Administrative Circular 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance.

It is therefore understood that: (1) Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. 22; (2) the judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; (3) should only a fine be imposed and the accused unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment.54

WHEREFORE, the instant Petition is DENIED and the assailed Decision of the Court of Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty GUILTY of violating Batas Pambansa Bilang 22 is AFFIRMED withMODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a FINE equivalent to double the amount of each dishonored check subject of the seven cases at bar with subsidiary imprisonment in case of insolvency in accordance with Article 39 of the Revised Penal Code. She is also ordered to pay private complainant, Manila Doctors’ Hospital, the amount of Two Hundred Ten Thousand Pesos (P210,000.00) representing the total amount of the dishonored checks. Costs against the petitioner. SO ORDERED.