FLORENTINA A. GUILATCO, PETITIONER, VS. CITY OF DAGUPAN, AND THE HONORABLE COURT OF APPEALS, RESPONDENTS.

In a civil action^[1]
for recovery of damages filed by the petitioner Florentina
A. Guilatco, the following judgment was rendered
against the respondent City of Dagupan:

x x x

(1) Ordering
defendant City of Dagupan
to pay plaintiff, actual damages in the amount of P15,924 (namely P8,054.00 as
hospital, medical and other expenses [Exhs. H to
H-60], P7,420.00 as lost income for one (1) year [Exh.
F] and P450.00 as bonus), P150,000.00 as moral damages, P50,000.00 as exemplary damages, and P3,000.00 as attorney’s fees and
litigation expenses, plus costs and to appropriate through its Sangguniang Panglunsod (City
Council) said amounts for said purpose;

(2) Dismissing plaintiff’s com­plaint as against defendant City Engr. Alfredo G. Tangco; and

(3) Dismissing the counterclaims of defendant
City of Dagupan
and defendant City Engr.
Alfredo G. Tangco, for lack of merit.^[2]

The facts as found by the trial court are as follows:^[3]

‘It would appear from the evidences that on July 25, 1978, herein
plaintiff, a Court Interpreter of Branch III, CFI — Dagupan
City, while she was about to board a motorized tricycle at a sidewalk located
at Perez Blvd. (a National Road, under the control and supervision of the City
of Dagupan) accidentally fell into a manhole located on said sidewalk, thereby
causing her right leg to be fractured. 
As a result thereof, she had to be hospitalized, operated on, confined,
at first at the Pangasinan Provincial Hospital, from July 25 to August 3, 1978 (or for a period of 16 days).  She also incurred hospitalization, medication
and other expenses, to the tune of P8,053.65 (Exh. H
to H-60) or a total of P10,000.00 in all, as other receipts were either lost or
misplaced; during the period of her confinement in said two hospitals,
plaintiff suffered severe or excruciating pain not only on her right leg which
was fractured but also on all parts of her body; the pain has persisted even
after her discharge from the Medical City General Hospital on October 9, 1978
to the present.  Despite her discharge
from the Hospital plaintiff is presently still wearing crutches and the Court
has actually observed that she has difficulty in locomotion.  From the time of the mishap on July 25,
1978 up to the
present, plaintiff has not yet reported for duty as court interpreter, as she
has difficulty of locomotion in going up the stairs of her office, located near
the city hall in Dagupan City.  She
earns at least P720.00 a month consisting of her monthly salary and other means
of income, but since July 25, 1978 up to the present she has been deprived of
said income as she has already consumed her accrued leaves in the government
service.  She has lost several pounds as
a result of the accident and she is no longer her former jovial self; she has
been unable to perform her religious, social, and other activities which she
used to do prior to the incident.

Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial
Hospital, as well as Dr. Antonio Sison of the Medical
City General Hospital
in Mandaluyong Rizal (Exh. 1; see also Exhs. F, G, G-1 to G-19) have confirmed beyond shadow of any
doubt the extent of the fracture and injuries sustained by the plaintiff as a
result of the mishap.  On the other hand,
Patrolman Claveria, De Asis
and Cerezo corroborated the testimony of the
plaintiff regarding the mishap and they have confirmed the existence of the
manhole (Exhs. A, B, C and sub-exhibits) on the
sidewalk along Perez Blvd., at the time of the incident on July 25, 1978 which
was partially covered by a concrete flower pot by leaving gaping hole about 2
ft. long by 1 1/2 feet wide or 42 cms. wide by 75 cms. long by 150 cms. deep (see Exhs. D. and D-1).

Defendant Alfredo Tangco, City Engineer
of Dagupan City and admittedly ex-officio Highway
Engineer, City Engineer of the Public Works and Building Official for Dagupan City,
admitted the existence of said manhole along the sidewalk in Perez
Blvd., admittedly a National
Road in front of the Luzon Colleges.  He also admitted that said manhole (there are
at least 11 in all in Perez Blvd.) is owned by the National Government and the
sidewalk on which they are found along Perez Blvd. are also owned by the National Government.  But as City Engineer of Dagupan
City, he supervises the maintenance of said manholes or drainage system and
sees to it that they are properly covered, and the job is specifically done by
his subordinates, Mr. Santiago de Vera (Maintenance Foreman) and Engr. Ernesto Solermo, also a
maintenance Engineer.  In his answer
defendant Tangco expressly admitted in par. 7-1
thereof, that in his capacity as ex-officio Highway Engineer for Dagupan City he exercises supervision and control over
National roads, including the Perez Blvd. where the incident happened.

On appeal by the respondent City of Dagupan,
the appellate court^[4]
reversed the lower court findings on the ground that no evidence was presented
by the plaintiff-appellee to prove that the City of Dagupan had “control or supervision” over Perez
Boulevard.^[5]

The city contends that Perez Boulevard,
where the fatal drainage hole is located, is a national road that is not under
the control or supervision of the City of Dagupan.  Hence, no liability should attach to the
city.  It submits that it is actually the
Ministry of Public Highways that has control or supervision through the Highway
Engineer which, by mere coincidence, is held concurrently by the same person
who is also the City Engineer of Dagupan.

After examination of the findings and conclusions of the trial
court and those of the appellate court, as well as the arguments presented by
the parties, we agree with those of the trial court and of the petitioner.  Hence, we grant the petition.

In this review on certiorari, we have simplified the
errors assigned by the petitioner to a single issue: whether or not control or
supervision over a national road by the City of Dagupan exists, in effect binding
the city to answer for damages in accordance with article 2189 of the Civil
Code.

The liability of public corporations for damages arising from
injuries suffered by pedestrians from the defective condition of roads is
expressed in the Civil Code as follows:

Article 2189. Provinces, cities and municipalities shall be liable
for damages for the death of, or injuries suffered by, any person by reason of
the defective condition of roads,
streets, bridges, public buildings, and other public works under their control
or supervision.

It is not even necessary for the defective road or street to
belong to the province, city, or municipality for liability to attach.  The article only requires that either control
or supervision is exercised over the defective road or street.^[6]

In the case at bar, this control or supervision is provided for
in the charter of Dagupan and is exercised through
the City Engineer who has the following duties:

Sec. 22. The City Engineer — His powers, duties and compensation
— There shall be a city engineer, who shall be in charge of the department of
Engineering and Public Works.  He shall receive a salary of not exceeding
three thousand pesos per annum.  He shall
have the following duties:

x x x

(j) He shall have the care and custody of the public system of
water­works and sewers, and all sources of water supply, and shall control,
maintain and regulate the use of the same, in accordance with the ordinance
relating thereto; shall inspect and regulate the use of all private systems for supplying water to the city and its
inhabitants, and all private sewers, and their connection with the public sewer
system.

x x x

The same charter of Dagupan also
provides that the laying out, construction and improvement of streets, avenues
and alleys and sidewalks, and regulation of the use thereof, may be legislated
by the Municipal Board.^[7]
Thus the charter clearly indicates that the city indeed has supervision and
control over the sidewalk where the open drainage hole is located.

The express provision in the charter holding the city not liable
for damages or injuries sustained by persons or property due to the failure of
any city officer to enforce the provisions of the charter, can not be used to
exempt the city, as in the case at bar.^[8]

The charter only lays down general rules regulating the liability
of the city.  On the other hand article
2189 applies in particular to the liability arising from “defective
streets, public buildings and other public works.”^[9]

The City Engineer, Mr. Alfredo G. Tangco,
admits that he exercises control or supervision over the said road.  But the city can not be excused from
liability by the argument that the duty of the City Engineer to supervise or
control the said provincial road belongs more to his functions as an ex-officio
Highway Engineer of the Ministry of Public Highway
than as a city officer.  This is because
while he is entitled to an honorarium from the Ministry of Public Highways, his
salary from the city government substantially exceeds the honorarium.

We do not agree.

Alfredo G. Tangco “(i)n his official capacity as City Engineer of Dagupan, as Ex-Officio Highway Engineer, as Ex-Officio City
Engineer of the Bureau of Public Works, and, last but not the least, as
Building Official for Dagupan City, receives the
following monthly compensation: P1,810.66 from Dagupan
City; P200.00 from the Ministry of Public Highways; P100.00 from the Bureau of
Public Works and P500.00 by virtue of P.D. 1096, respectively.”^[10]
This function of supervision over streets, public buildings, and other public
works pertaining to the City Engineer is coursed through a Maintenance Foreman
and a Maintenance Engineer.^[11]
Although these last two officials are employees of the National Government,
they are detailed with the City of Dagupan
and hence receive instruction and supervision from the city through the City
Engineer.

There is, therefore, no doubt that the City Engineer exercises
control or supervision over the public works in question.  Hence, the liability of the city to the
petitioner under article 2189 of the Civil Code is clear.

Be all that as it may, the actual damages awarded to the
petitioner in the amount of P10,000.00 should be reduced to the proven expenses
of P8,053.65 only.  The trial court
should not have rounded off the amount. 
In determining actual damages, the court can not rely on
“speculation, conjecture or guess work” as to the amount.  Without the actual proof of loss, the award
of actual damages becomes erroneous.^[12]

On the other hand, moral damages may be awarded even without
proof of pecuniary loss, inasmuch as the determination of the amount is discretionary
on the court.^[13]
Though incapable of pecuniary estimation, moral damages are in the nature of an
award to compensate the claimant for actual injury suffered but which for some
reason can not be proven.  However, in
awarding moral damages, the following should be taken into consideration:

(1)  
First, the proximate cause of the
injury must be the claimee’s acts.^[14]

(2) Second, there must be compensatory or actual damages as
satisfactory proof of the factual basis for damages.^[15]

(3) Third, the award of moral damages must be predicated on any of
the cases enumerated in the Civil Code.^[16]

In the case at bar, the physical suffering and mental anguish
suffered by the petitioner were proven. 
Witnesses from the petitioner’s place of work testified to the
degeneration in her disposition — from being jovial to depressed.  She refrained from attending social and civic
activities.^[17]

Nevertheless the award of moral damages at P150,000.00 is
excessive.  Her handicap was not
permanent and disabled her only during her treatment which lasted for one
year.  Though evidence of moral loss and
anguish existed to warrant the award of damages,^[18]
the moderating hand of the law is called for. 
The Court has time and again called attention to the reprehensible
propensity of trial judge to award damages without basis,^[19]
resulting exherbitant amounts.^[20]

Although the assessment of the amount is better left to the
discretion of the trial court,^[21]
under preceding jurisprudence, the amount of moral damages should be reduced to
P20,000.00.

As for the award of exemplary damages, the trial court correctly
pointed out the basis:

To serve as an example for the public good, it is high time that
the Court, through this case, should serve warning to the city or cities
concerned to do more conscious of their
duty and responsibility to their constituents, especially when they are engaged
in construction work or when there are manholes on their sidewalks or streets
which are uncovered, to immediately cover the same, in order to minimize or
prevent accidents to the poor pedestrians.^[22]

Too often in the zeal to put up “public impact”
projects such as beautification drives, the end is more important than the
manner in which the work is carried out. 
Because of this obsession for showing off, such trivial details as misplaced
flower pots betray the careless execution of the projects, causing public
inconvenience and inviting accidents.

Pending appeal by the respondent City of Dagupan
from the trial court to the appellate court, the petitioner was able to secure
an order for garnishment of the funds of the City deposited with the Philippine
National Bank, from the then presiding judge, Hon. Willelmo
Fortun.  This
order for garnishment was revoked subsequently by the succeeding presiding
judge, Hon. Romeo D. Magat, and became the basis for
the petitioner’s motion for reconsideration which was also denied.^[23]

We rule that the execution of the judgment of the trial court
pending appeal was premature.  We do not
find any good reason to justify the issuance of an order of execution even
before the expiration of the time to appeal.^[24]

WHEREFORE, the petition is GRANTED.  The assailed decision and resolution of the
respondent Court of Appeals are hereby REVERSED and SET ASIDE and the decision
of the trial court, dated March 12, 1979 and amended on March 13, 1979, is
hereby REINSTATED with the indicated modifications as regards the amounts
awarded:

(1) Ordering the
defendant City of Dagupan to pay the plaintiff actual
damages in the amount of P15,924 (namely P8,054.00 as hospital, medical and
other expenses; P7,420.00 as lost income
for one (1) year and P450.00 as bonus); P20,000.00 as moral damages and
P10,000.00 as exemplary damages.

The attorney’s fees of P3,000.00 remain the same.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Padilla, and Regalado, JJ., concur.

^[1] Florentina A. Guilatco v.
City of Dagupan and Alfredo G. Tangco,
RTC (Lingayen, Pangasinan),
Civil Case No. 15463, March 12, 1979.

^[2] Rollo, 25 (Record on Appeal, 57).

^[3] Id.
(Record on Appeal, 47-49).

^[4] Florentina A. Guilatco v.
City of Dagupan, CA-G.R. No. 65470-R, May 31, 1982; De la Fuente, B.S.
J., ponente; German, Milagros A. and Cuevas, Serafin R., JJ., concurring.

^[5] Rollo, 29.

^[6] City of Manila v. Teotico, No. L-23052, January
29, 1968, 22 SCRA
267.

^[7] R.A. 170, sec. 15(y).

^[8] R.A. 170, sec. 5.

^[9] Jimenez v. City of Manila, No. 71049, May 29, 1987, 150 SCRA 510.

^[10] Rollo, 25 (Record on Appeal, 25).

^[11] Rollo, 25 (Record on Appeal, 61.)

^[12] Medelo v. Gorospe,
G.R. 41970, March 25,1988.

^[13] Civil Code, Article 2216.

^[14] Ledesma v. Court of Appeals, No. 54598, April
15, 1988.

^[15]
San Miguel Brewery, Inc. v. Magno, No.
L-21879, September 29, 1967,
21 SCRA 300.

^[16] Bagumbayan Corp. v. Intermediate Appellate
Court, No. 66274, September 30, 1984, 132 SCRA 444.

^[17] Record on Appeal, 55.

^[18] Guita v. Court of Appeals, No. 60409, November
11, 1985, 139 SCRA
576.

^[19] Felisilda v. Villanueva, No. 60372, October
29, 1985, 139 SCRA
431.

^[20] R & B Surety and Insurance Co., Inc. v.
Intermediate Appellate Court, No. 64515, June 22, 1984, 129 SCRA 736.

^[21] Pleno v. Court of Appeals, G.R. 56505, May 9,
1988.

^[22] Rollo, 25. Record on Appeal, pp. 55-56, See also De Leon and
Gonzales-De leon v. Hon. Court of Appeals, G.R. No. L-31931, August
31, 1988.

^[23] Rollo, 29.

^[24]
Rules of Court, Rule 39, sec. 2.