G.R. No.

71159 November 15, 1989 of Manila; Evangeline Suva of the City Health Office; Sergio Mallari,
CITY OF MANILA, and EVANGELINE SUVA, petitioners, vs. officer-in-charge of the North Cemetery; and Joseph Helmuth, the latter's
HON. INTERMEDIATE APPELLATE COURT, IRENE STO. DOMINGO predecessor as officer-in-charge of the said burial grounds owned and
and for and in behalf of her minor children, VIVENCIO, JR., IRIS, operated by the City Government of Manila.
VERGEL and IMELDA, all surnamed STO. DOMINGO, respondents.
The City Legal Officer for petitioners. Vivencio Sto. Domingo, Sr. deceased husband of plaintiff Irene Sto.
Jose M. Castillo for respondents. Domingo and father of the litigating minors, died on June 4,1971 and
PARAS, J.: buried on June 6,1971 in Lot No. 159, Block No. 194 of the North
Cemetery which lot was leased by the city to Irene Sto. Domingo for the
This is a petition for review on certiorari seeking to reverse and set aside: period from June 6, 1971 to June 6, 2021 per Official Receipt No. 61307
(a) the Decision of the Intermediate Appellate Court now Court of dated June 6, 1971 (see Exh. A) with an expiry date of June 6, 2021 (see
Appeals 1 promulgated on May 31, 1984 in AC-G.R. CV No. 00613-R Exh. A-1). Full payment of the rental therefor of P50.00 is evidenced by
entitled Irene Sto. Domingo et al., v. City Court of Manila et al., modifying the said receipt which appears to be regular on its face. Apart from the
the decision of the then Court of First Instance of Manila, Branch VIII 2 in aforementioned receipt, no other document was executed to embody
Civil Case No. 121921 ordering the defendants (herein petitioners,) to such lease over the burial lot in question. In fact, the burial record for
give plaintiffs (herein private respondents) the right to use a burial lot in Block No. 194 of Manila North Cemetery (see Exh. 2) in which subject Lot
the North Cemetery corresponding to the unexpired term of the fully paid No. 159 is situated does not reflect the term of duration of the lease
lease sued upon, to search the remains of the late Vivencio Sto. thereover in favor of the Sto. Domingos.
Domingo, Sr. and to bury the same in a substitute lot to be chosen by the
plaintiffs; and (b) the Resolution of the Court of Appeals dated May 28, Believing in good faith that, in accordance with Administrative Order No.
1985 denying petitioner's motion for reconsideration. 5, Series of 1975, dated March 6, 1975, of the City Mayor of Manila (See
Exh. 1) prescribing uniform procedure and guidelines in the processing of
As found by the Court of Appeals and the trial court, the undisputed facts documents pertaining to and for the use and disposition of burial lots and
of the case are as follows: plots within the North Cemetery, etc., subject Lot No. 159 of Block 194 in
which the mortal remains of the late Vivencio Sto. Domingo were laid to
Brought on February 22, 1979 by the widow and children of the late rest, was leased to the bereaved family for five (5) years only, subject lot
Vivencio Sto. Domingo, Sr. was this action for damages against the City was certified on January 25, 1978 as ready for exhumation.

Page 1 of 7
 government and to the other defendants named in the present complaint.
On the basis of such certification, the authorities of the North Cemetery (Decision, Court of Appeals, pp. 2-3; Rollo, pp. 34-55)
then headed by defendant Joseph Helmuth authorized the exhumation
and removal from subject burial lot the remains of the late Vivencio Sto. The trial court, on August 4, 1981, rendered its Decision, the dispositive
Domingo, Sr., placed the bones and skull in a bag or sack and kept the portion of which states:
same in the depository or bodega of the cemetery y Subsequently, the
same lot in question was rented out to another lessee so that when the WHEREFORE, judgment is hereby rendered, ordering the defendants to
plaintiffs herein went to said lot on All Souls Day in their shock, give plaintiffs the right to make use of another single lot within the North
consternation and dismay, that the resting place of their dear departed Cemetery for a period of forty-three (43) years four (4) months and
did not anymore bear the stone marker which they lovingly placed on the eleven (11) days, corresponding to the unexpired term of the fully paid
tomb. Indignant and disgusted over such a sorrowful finding, Irene Sto. lease sued upon; and to search without let up and with the use of all
Domingo lost no time in inquiring from the officer-in-charge of the North means humanly possible, for the remains of the late Vivencio Sto.
Cemetery, defendant Sergio Mallari, and was told that the remains of her Domingo, Sr. and thereafter, to bury the same in the substitute lot to be
late husband had been taken from the burial lot in question which was chosen by the plaintiffs pursuant to this decision.
given to another lessee.
For want of merit, defendant's counterclaim is DISMISSED.
Irene Sto. Domingo was also informed that she can look for the bones of
her deceased husband in the warehouse of the cemetery where the No pronouncement as to costs.
exhumed remains from the different burial lots of the North Cemetery are
being kept until they are retrieved by interested parties. But to the SO ORDERED. (Rollo, p. 31)
bereaved widow, what she was advised to do was simply unacceptable.
According to her, it was just impossible to locate the remains of her late The decision was appealed to the Court of Appeals which on May 31,
husband in a depository containing thousands upon thousands of sacks 1984 rendered a decision (Rollo, pp. 33-40) modifying the decision
of human bones. She did not want to run the risk of claiming for the appealed from, the dispositive portion of which reads:
wrong set of bones. She was even offered another lot but was never
appeased. She was too aggrieved that she came to court for relief even
before she could formally present her claims and demands to the city

Page 2 of 7
WHEREFORE, PREMISES CONSIDERED, the decision appealed from SO ORDERED. (Rollo, p. 40)
is hereby REVERSED (is hereby modified) and another one is hereby
entered: The petitioners' motion for reconsideration was likewise denied.

1. Requiring in full force the defendants to look in earnest for the bones Hence, this instant petition (Rollo, pp. 7-27) filed on July 27, 1985.
and skull of the late Vivencio Sto. Domingo, Sr., and to bury the same in
the substitute lot adjudged in favor of plaintiffs hereunder; The grounds relied upon for this petition are as follows:

2. Ordering defendants to pay plaintiffs-appellants jointly and severally I

P10,000.00 for breach of contract;
THE HONORABLE INTERMEDIATE APPELLATE COURT ERRED IN
3. Ordering defendants to pay plaintiffs-appellants, jointly and severally, AWARDING DAMAGES AGAINST THE PETITIONERS HEREIN,
P20,000.00 for moral damages; NOTWITHSTANDING THEIR GOOD FAITH AND THEIR LACK OF
KNOWLEDGE OR CONSENT TO THE REMOVAL OF THE SKELETAL
4. Ordering defendants to pay plaintiffs-appellants jointly and severally, REMAINS OF THE LATE VIVENCIO STO. DOMINGO, SR. FROM THE
P20,000.00 for exemplary damages; SUBJECT BURIAL LOT.

5. Ordering defendants to pay plaintiffs-appellants, jointly and severally, II

P10,000.00 as and for attorney's fees;
THE HON. INTERMEDIATE APPELLATE COURT ERRED IN HOLDING
6. Ordering defendants, to pay plaintiffs-appellants, jointly and severally, PETITIONERS HEREIN RESPONSIBLE FOR THE ALLEGED TORTS
on the foregoing amounts legal rate of interest computed from filing OF THEIR SUBORDINATE OFFICIALS AND EMPLOYEES, INSPITE OF
hereof until fully paid; and THE PROVISIONS OF SECTION 4 OF THE REPUBLIC ACT NO. 409
(REVISED CHARTER OF MANILA) AND OTHER APPLICABLE
7. Ordering defendants, to pay plaintiffs-appellants, jointly and severally, JURISPRUDENCE ON THE SUBJECT EXEMPTING THE
the cost of suit. PETITIONERS FROM DAMAGES FROM THE MALFEASANCE OR

Page 3 of 7
MISFEASANCE OF THEIR OFFICIALS AND EMPLOYEES, IF THERE Private respondents on the other hand maintain that the City of Manila
BE ANY IN THIS CASE. (Brief for Petitioners, Rollo, pp. 93-94) entered into a contract of lease which involve the exercise of proprietary
functions with private respondent Irene Sto. Domingo. The city and its
In the resolution dated November 13, 1985 (,Rollo, p. 84), the petition officers therefore can be sued for any-violation of the contract of lease.
was given due course.
Private respondents' contention is well-taken.
The pivotal issue of this case is whether or not the operations and
functions of a public cemetery are a governmental, or a corporate or Under Philippine laws, the City of Manila is a political body corporate and
proprietary function of the City of Manila. The resolution of this issue is as such endowed with the faculties of municipal corporations to be
essential to the determination of the liability for damages of the petitioner exercised by and through its city government in conformity with law, and
city. in its proper corporate name. It may sue and be sued, and contract and
be contracted with. Its powers are twofold in character-public,
Petitioners alleged in their petition that the North Cemetery is exclusively governmental or political on the one hand, and corporate, private and
devoted for public use or purpose as stated in Sec. 316 of the proprietary on the other. Governmental powers are those exercised in
Compilation of the Ordinances of the City of Manila. They conclude that administering the powers of the state and promoting the public welfare
since the City is a political subdivision in the performance of its and they include the legislative, judicial, public and political. Municipal
governmental function, it is immune from tort liability which may be powers on the one hand are exercised for the special benefit and
caused by its public officers and subordinate employees. Further Section advantage of the community and include those which are ministerial,
4, Article I of the Revised Charter of Manila exempts the city from liability private and corporate. In McQuillin on Municipal Corporation, the rule is
for damages or injuries to persons or property arising from the failure of stated thus: "A municipal corporation proper has ... a public character as
the Mayor, the Municipal Board, or any other city officer, to enforce the regards the state at large insofar as it is its agent in government, and
provision of its charter or any other laws, or ordinance, or from private (so called) insofar as it is to promote local necessities and
negligence of said Mayor, Municipal Board or any other officers while conveniences for its own community (Torio v. Fontanilla, 85 SCRA 599
enforcing or attempting to enforce said provisions. They allege that the [1978]). In connection with the powers of a municipal corporation, it may
Revised Charter of Manila being a special law cannot be defeated by the acquire property in its public or governmental capacity, and private or
Human Relations provisions of the Civil Code being a general law. proprietary capacity. The New Civil Code divides such properties into
property for public use and patrimonial properties (Article 423), and

Page 4 of 7
further enumerates the properties for public use as provincial roads, city accordingly, to civil actions for damages when the requisite elements of
streets, municipal streets, the squares, fountains, public waters, liability co-exist. ... (Emphasis supplied)
promenades, and public works for public service paid for by said
provisions, cities or municipalities, all other property is patrimonial without The Court added:
prejudice to the provisions of special laws (Article 424; Province of
Zamboanga del Norte v. City of Zamboanga, et al., 22 SCRA 1334 ... while the following are corporate or proprietary in character, viz:
[1968]). municipal waterworks, slaughter houses, markets, stables, bathing
establishments, wharves, ferries and fisheries. Maintenance of parks, golf
Thus in Torio v. Fontanilla, supra, the Court declared that with respect to courses, cemeteries and airports among others, are also recognized as
proprietary functions the settled rule is that a municipal corporation can municipal or city activities of a proprietary character. (Dept. of Treasury v.
be held liable to third persons ex contractu (Municipality of Moncada v. City of Evansvulle, Sup. Ct. of Indiana, 60 N.E. 2nd 952, 954 cited in
Cajuigan, et al., 21 Phil. 184 (1912) or ex delicto (Mendoza v. de Leon, Torio v. Fontanilla, supra) (Emphasis supplied)
33 Phil. 508 (1916).
Under the foregoing considerations and in the absence of a special law,
The Court further stressed: the North Cemetery is a patrimonial property of the City of Manila which
was created by resolution of the Municipal Board of August 27, 1903 and
Municipal corporations are subject to be sued upon contracts and in January 7, 1904 (Petition, Rollo pp. 20-21 Compilation of the Ordinances
tort.... of the City of Manila). The administration and government of the
cemetery are under the City Health Officer (Ibid., Sec. 3189), the order
xxx xxx xxx and police of the cemetery (Ibid., See. 319), the opening of graves,
niches, or tombs, the exhuming of remains, and the purification of the
The rule of law is a general one, that the superior or employer must same (Ibid., Sec. 327) are under the charge and responsibility of the
answer civilly for the negligence or want of skill of its agent or servant in superintendent of the cemetery. The City of Manila furthermore
the course or line of his employment, by which another who is free from prescribes the procedure and guidelines for the use and dispositions of
contributory fault, is injured. Municipal corporations under the conditions burial lots and plots within the North Cemetery through Administrative
herein stated, fall within tile operation of this rule of law, and are liable Order No. 5, s. 1975 (Rollo, p. 44). With the acts of dominion, there is,
therefore no doubt that the North Cemetery is within the class of property

Page 5 of 7
which the City of Manila owns in its proprietary or private character. deceased must have felt when on All Saints Day of 1978, they found a
Furthermore, there is no dispute that the burial lot was leased in favor of new marker on the grave they were to visit, only to be told to locate their
the private respondents. Hence, obligations arising from contracts have beloved dead among thousands of skeletal remains which to them was
the force of law between the contracting parties. Thus a lease contract desecration and an impossible task. Even the lower court recognized this
executed by the lessor and lessee remains as the law between them. when it stated in its decision thus:
(Henson v. Intermediate Appellate Court, 148 SCRA 11 [1 987]).
Therefore, a breach of contractual provision entitles the other party to All things considered, even as the Court commiserates with plaintiffs for
damages even if no penalty for such breach is prescribed in the contract. the unfortunate happening complained of and untimely desecration of the
(Boysaw v. Interphil Promotions, Inc., 148 SCRA 635 [1987]). resting place and remains of their deceased dearly beloved, it finds the
reliefs prayed for by them lacking in legal and factual basis. Under the
Noteworthy are the findings of the Court of Appeals as to the harrowing aforementioned facts and circumstances, the most that plaintiffs ran ask
experience of private respondents and their wounded feelings upon for is the replacement of subject lot with another lot of equal size and
discovery that the remains of their loved one were exhumed without their similar location in the North Cemetery which substitute lot plaintiffs can
knowledge and consent, as said Court declared: make use of without paying any rental to the city government for a period
of forty-three (43) years, four (4) months and eleven (11) days
It has been fully established that the appellants, in spite or perhaps corresponding to the unexpired portion of the term of the lease sued upon
because, of their lowly station in life have found great consolation in their as of January 25, 1978 when the remains of the late Vivencio Sto.
bereavement from the loss of their family head, by visiting his grave on Domingo, Sr. were prematurely removed from the disputed lot; and to
special or even ordinary occasions, but particularly on All Saints Day, in require the defendants to look in earnest for the bones and skull of the
keeping with the deep, beautiful and Catholic Filipino tradition of revering late Vivencio Sto. Domingo Sr. and to bury the same in the substitute lot
the memory of their dead. It would have been but fair and equitable that adjudged in favor of plaintiffs hereunder. (Decision, Intermediate
they were notified of the intention of the city government to transfer the Appellate Court, p. 7, Rollo, p. 39)
skeletal remains of the late Vivencio Sto. Domingo to give them an
opportunity to demand the faithful fulfillment of their contract, or at least to As regards the issue of the validity of the contract of lease of grave lot
prepare and make provisions for said transfer in order that they would not No. 159, Block No. 195 of the North Cemetery for 50 years beginning
lose track of the remains of their beloved dead, as what has actually from June 6, 1971 to June 6, 2021 as clearly stated in the receipt duly
happened on this case. We understand fully what the family of the signed by the deputy treasurer of the City of Manila and sealed by the city

Page 6 of 7
government, there is nothing in the record that justifies the reversal of the
conclusion of both the trial court and the Intermediate Appellate Court to
the effect that the receipt is in itself a contract of lease. (Decision,
Intermediate Appellate Court, p. 3, Rollo, pp. 5-6).

Under the doctrine of respondent superior, (Torio v. Fontanilla, supra),

petitioner City of Manila is liable for the tortious act committed by its
agents who failed to verify and check the duration of the contract of
lease. The contention of the petitioner-city that the lease is covered by
Administrative Order No. 5, series of 1975 dated March 6, 1975 of the
City of Manila for five (5) years only beginning from June 6, 1971 is not
meritorious for the said administrative order covers new leases. When
subject lot was certified on January 25, 1978 as ready for exhumation,
the lease contract for fifty (50) years was still in full force and effect.

PREMISES CONSIDERED, the Decision of the Intermediate Appellate

Court is hereby AFFIRMED.

SO ORDERED.

Page 7 of 7