JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO, Petitioners, vs. HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR, Respondents.

G.R. No. 129792. December 21, 1999

FACTS:

When respondent Criselda was signing her credit card slip at payment and verification counter in Syvels Department Store in Makati, she felt a sudden gust of wind a heard a loud sound. She looked behind her and saw her daughter Zhieneth (6 years old) on the floor pinned by the bulk of the stores gift-wrapping counter.

She was rushed to the hospital but died after 14 days.

Private respondents filed a complaint for damages.

Petitioners on the other hand, denied any liability imputing the negligence to Criselda for allowing her daughter to roam freely in the department store. Alleging further, that the deceased committed contributory negligence when she climbed the counter. Also herein petitioners defense is that they have exercised due diligence of a good father of a family in the selection, supervision and control of their employees.

Trial Court favored petitioners, contemplating that Zhieneth’s action is the proximate cause of the accident.

CA favored respondents on it declared that ZHIENETH, who was below seven (7) years old at the time of the incident, was absolutely incapable of negligence or other tort. It reasoned that since a child under nine (9) years could not be held liable even for an intentional wrong, then the six-year old ZHIENETH could not be made to account for a mere mischief or reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of the ordinary in momentarily allowing ZHIENETH to walk while she signed the document at the nearby counter.

ISSUE:

(1) Whether or not Zhieneth was guilty of contributory negligence.

(2) Whether or not the death of ZHIENETH was accidental or attributable to negligence.

HELD:

(1)NO

Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence

In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he has acted with discernment.

(2)NEGLIGENCE.

An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant

negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do.

We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETHs death could only be attributed to negligence.

Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.