Republic of the Philippines plaintiff stuck the file into the front breast pocket of his

SUPREME COURT shirt with a good part of the merchandise exposed.

Manila
"At the check-out counter, the plaintiff paid for his
FIRST DIVISION wife's purchases which amounted to P77.00, but he
forgot to pay for the file. As he was leaving by the exit
G.R. No. L-48250 December 28, 1979 of the supermarket on his way to his car, carrying two
bags of groceries and accompanied by his wife and
two daughter, plaintiff was approached by a
GRAND UNION SUPERMARKET, INC. and NELIA uniformed guard of the supermarket who said:
SANTOS FANDINO, petitioners, "Excuse me, Mr., I think you have something in your
vs. pocket which you have not paid for." (p. 5, tsn, Aug.
JOSE J. ESPINO JR., and THE HONORABLE 13, 1971), pointing to his left front breast pocket.
COURT OF APPEALS, respondents. Suddenly reminded of the file, plaintiff apologized
thus: "I am sorry," and he turned back toward the
cashier to pay for the file. But the guard stopped him
and led him instead toward the rear of the
GUERRERO, J. supermarket. The plaintiff protested but the guard was
firm saying: "No, Mr., please come with me. It is the
procedure of the supermarket to bring people that we
This is a petition tor certiorari by way of appeal from apprehend to the back of the supermarket" (p. 8, Ibid).
the decision of the Court of Appeals 1 dated The time was between 9 and 10 o'clock. A crowd of
September 26, 1977 rendered in CA-G.R. No. 55186- customers on their way into the supermarket saw the
R entitled "Jose J. Espino, Jr., plaintiff-appellant. plaintiff being stopped and led by a uniformed guard
versus Grand Union Supermarket, Inc. and Nelia toward the rear of the supermarket. Plaintiff
Santos-Fandino, defendants-appellees," the acquiesced and signaled to his wife and daughters to
dispositive portion of which states; wait.

WHEREFORE, the appealed "Into a cubicle which was immediately adjacent to the
judgment is hereby reversed and area where deliveries to the supermarket were being
set aside. Defendants are ordered made, the plaintiff was ushered. The guard directed
to pay plaintiff-jointly and severally, him to a table and gave the file to the man seated at
the sum of Seventy-Five Thousand the desk. Another man stood beside the plaintiff. The
Pesos (P75,000.00) by way of man at the desk looked at the plaintiff and the latter
moral damages. Twenty-Five immediately explained the circumstances that led to
Thousand Pesos (P25,000.00) as the finding of the file in his possession. The man at
exemplary damages, and Five the desk pulled out a sheet of paper and began to ask
Thousand Pesos (P5,000.00) as plaintiff's name, age, residence and other personal
attorney's fee, Costs of both data. Plaintiff was asked to make a brief statement,
instances shall be taxed against the and on the sheet of paper or "Incident Report" he
defendant defendants. wrote down the following: "While talking to my aunt's
maid with my wife, I put this item in my shirt pocket. I
The facts of the case are as stated in the decision of forgot to check it out with my wife's items" (Exhibit A).
the respondent court to wit: Meanwhile, the plaintiff's wife joined him and asked
what had taken him so long.
"Upon the evidence, and from the findings of the
lower court, it appears that in the morning of August "The guard who had accosted plaintiff took him back
22, 1970, plaintiff Jose J. Espino. Jr., a civil engineer inside the supermarket in the company of his wife.
and an executive of Procter and Gamble Philippines, Plaintiff and his wife were directed across the main
Inc., and his wife and their two daughters went to entrance to the shopping area, down the line of
shop at the defendants' South Supermarket in Makati. check-out counters, to a desk beside the first
While his wife was shopping at the groceries section, checkout counter. To the woman seated at the desk,
plaintiff browsed around the other parts of the market. who turned out to be defendant Nelia Santos-
Finding a cylindrical "rat tail" file which he needed in Fandino, the guard presented the incident report and
his hobby and had been wanting to buy, plaintiff the file, Exhibit B. Defendant Fandino read the report
picked up that item from one of the shelves. He held it and addressing the guard remarked: "Ano, nakaw na
in his hand thinking that it might be lost, because of its naman ito" (p. 22, Id.). Plaintiff explained and narrated
tiny size, if he put it in his wife's grocery cart. In the the incident that led to the finding of the file in his
course of their shopping, plaintiff and his wife saw the pocket, telling Fandino that he was going to pay for
maid of plaintiff's aunt. While talking to this maid, the file because he needed it. But this defendant
replied: "That is all they say, the people whom we
cause not paying for the goods say... They all latter reversed and set aside the appealed judgment,
intended to pay for the things that are found to them." granting and damages as earlier stated.
(p. 23, Id). Plaintiff objected and said that he was a
regular customer of the supermarket. Not satisfied with the decision of the respondent
court, petitioners instituted the present petition and
"Extracting a P5.00 bill from his pocket, plaintiff told submits the following grounds and/or assignment of
Fandino that he was paying for the file whose cost errors, to wit:
was P3.85. Fandino reached over and took the P5.00
bill from plaintiff with these words: "We are fining you I
P5.00. That is your the fine." Plaintiff was shocked.
He and his wife objected vigorously that he was not a
common criminal, and they wanted to get back the Respondent Court of Appeals erred in
P5.00. But Fandino told them that the money would awarding moral and exemplary damages to
be given as an incentive to the guards who the respondent Espino under Articles 19 and
apprehend pilferers. People were milling around them 21 in relation to Article 2219 of the Civil
and staring at the plaintiff. Plaintiff gave up the Code, considering that —
discussion. He drew a P50.00 bill and took back the
file. Fandino directed him to the nearest check-out A. Respondent Espino was guilty of theft;
counter where he had to fall in line. The people who
heard the exchange of words between Fandino and B. Petitioners legitimately exercised their
plaintiff continued to stare at him. At the trial, plaintiff right of defense of property within the context
expressed his embarrassment and humiliation thus: " of Article 429 of the Civil Code negating the
I felt as though I wanted to disappear into a hole on application of Articles 19 and 21 of the same
the ground" (p. 34, Id.). After paying for the file, Code;
plaintiff and his wife walked as fast as they could out
of the supermarket. His first impulse was to go back
to the supermarket that night to throw rocks at its C. Petitioners acted upon probable cause in
glass windows. But reason prevailed over passion stopping and investigating respondent
and he thought that justice should take its due course. Espino for shoplifting and as held in various
decisions in the United States on shoplifting,
a merchant who acts upon probable cause
"Plaintiff was certain during the trial that when he should not be held liable in damages by the
signed the incident report, Exhibit A, inside the cubicle suspected shoplifter;
at the back of the supermarket only his brief
statement of the facts (Exhibit A-2), aside from his
name and personal circumstances, was written D. Petitioners did not exercise their right
thereon. He swore that the following were not in the maliciously, wilfully or in bad faith; and/or
incident report at, the time he signed it:
E. The proximate cause of respondent
Exhibit A-I which says opposite the Espino's alleged injury or suffering was his
stenciled word SUBJECT own negligence or forgetfulness; petitioners
"Shoplifting" acted in good faith.

Exhibit A-3 which says opposite the II

stenciled words Action Taken:
Released by Mrs. Fandino after Assuming arguendo that petitioners are
paying the item. hable for moral and exemplary damages, the
award of P75,000.00 for moral damages and
Exhibit A-4 which says opposite the P25,000.00 for exemplary damages by the
stenciled words Remarks Noted: respondent Court of Appeals is not legally
"Grd. Ebreo requested Grd. Paunil justified and/or is grossly excessive in the
to apprehend subject shoplifter. premises.

Private respondent's complaint filed on October 8, III

1970 is founded on Article 21 in relation to Article
2219 of the New Civil Code and prays for moral The award of P5,000.00 for attorney's fees
damages, exemplary damages, attorney s fees and by the respondent Court of Appeals is
'expenses of litigation, costs of the suit and the return unjustified and unwarranted under Article
of the P5.00 fine. After trial, the Court of First Instance 2199 of the Civil Code.
of Pasig, Rizal, Branch XIX dismissed the complaint,
Interposing the appeal to the Court of Appeals, the
We agree with the holding of the respondent appellate or hints whatsoever that private respondent has had
court that "the evidence sustains the court's finding any police record of any sort much less suspicion of
that the plaintiff had absolutely no intention to steal stealing or shoplifting.
the file." The totality of the facts and circumstances as
found by the Court of Appeals unerringly points to the We do not lay down here any hard-and-fast rule as to
conclusion that private respondent did not intend to what act or combination of acts constitute the crime of
steal the file and that is act of picking up the file from shoplifting for it must be stressed that each case must
the open shelf was not criminal nor done with malice be considered and adjudged on a case-to-case basis
or criminal intent for on the contrary, he took the item and that in the determination of whether a person
with the intention of buying and paying for it. suspected of shoplifting has in truth and in fact
committed the same, all the attendant facts and
This Court needs only to stress the following circumstances should be considered in their entirety
undisputed facts which strongly and convincingly and not from any single fact or circumstance from
uphold the conclusion that private respondent was not which to impute the stigma of shoplifting on any
"shoplifting." Thus, the facts that private respondent person suspected and apprehended therefor.
after picking the cylindrical "rat-tail" file costing P3.85
had placed it inside his left front breast pocket with a We likewise concur with the Court of Appeals that
good portion of the item exposed to view and that he "(u)pon the facts and under the law, plaintiff has
did not conceal it in his person or hid it from sight as clearly made the cause of action for damages against
well as the fact that he paid the purchases of his wife the defendants. Defendants wilfully caused loss or
amounting to P77.00 at the checkout counter of the injury to plaintiff in a manner that was contrary to
Supermarket, owed that he was not acting morals, good customs or public policy, making them
suspiciously or furtively. And the circumstance that he amenable to damages under Articles 19 and 21 in
was with his family consisting of his wife Mrs. Caridad relation to Article 2219 of the Civil Code." 2
Jayme Espino, and their two daughters at the time
negated any criminal intent on his part to steal.
Moreover, when private respondent was approached That private respondent was falsely accused of
by the guard of the Supermarket as he was leaving by shoplifting is evident. The Incident Report (Exhibit A)
the exit to his car who told him, "Excuse me, Mr., I with the entries thereon under Exhibit A-1 which says
think you have something in your pocket which you opposite the stenciled word SUBJECT: "Shoplifting,"
have not paid for," Espino, immediately apologized Exhibit A-3 which says opposite the stenciled words
and answered, "I am sorry," which indicated his Action Taken: Relesed by Mrs. Fandino after paying
sincere apology or regrets. He turned back towards the item," Exhibit A-4 which says opposite the
the cashier to pay for the file which proved his stenciled words Remarks Noted: Grd. Ebreo
honesty sincerity and good faith in buying the item, requested Grd. Paunil to apprehend subject
and not to shoplift the same. His brief statement on shoplifter," established the opinion, judgment or
the sheet of paper called the Incident Report where thinking of the management of petitioner's
private respondent wrote the following: "While talking supermarket upon private respondent's act of picking
to my aunt's maid with my wife, I put this item in in my up the file. ln plain words, private respondent was
shirt pocket. I forgot to check it out with my wife's regarded and pronounced a shoplifter and had
item," was an instant and contemporaneous committed "shoplifting."
explanation of the incident.
We also affirm the Court of Appeals' finding that
Considering further the personal circumstances of the petitioner Nelia Santos Fandino, after reading the
private respondent. his education, position and incident report, remarked the following: "Ano, nakaw
character showing that he is a graduate Mechanical na naman ito". Such a remark made in the presence
Engineer from U.P. Class 1950, employed as an of private respondent and with reference to the
executive of Proctor & Gamble Phils., Inc., a incident report with its entries, was offensive to private
corporate manager incharge of motoring and respondent's dignity and defamatory to his character
warehousing therein; honorably discharged from the and honesty. When Espino explained that he was
Philippine Army in 1946; a Philippine government going to pay the file but simply forgot to do so,
pensionado of the United States for six months; Fandino doubted the explanation. saying: "That is all
member of the Philippine veterans Legion; author of what they say, the people whom we caught not
articles published in the Manila Sunday Times and paying for the goods say... they all intended to pay for
Philippines Free Press; member of the Knights of the things that are found to them." Private respondent
Columbus, Council No. 3713; son of the late Jose objected and said that he was a regular customer of
Maria Espino, retired Minister, Department of Foreign the Supermarket.
Affairs at the Philippine Embassy Washington, We are
fully convinced, as the trial and appellate courts were, The admission of Fandino that she required private
that private respondent did not intend to steal the respondent to pay a fine of P5.00 and did in fact take
article costing P3.85. Nothing in the records intimates the P5.00 bill of private respondent tendered by the
latter to pay for the file, as a fine which would be forgetfullness in checking out the item and paying for
given as an incentive to the guards who apprehend it that started the chain of events which led to his
pilferers clearly proved that Fandino branded private embarassment and humiliation thereby causing him
respondent as a thief which was not right nor justified. mental anguish, wounded feelings and serious
anxiety. Yet, private respondent's act of omission
The testimony of the guard that management contributed to the occurrence of his injury or loss and
instructed them to bring the suspected customers to such contributory negligence is a factor which may
the public area for the people to see those kind of reduce the damages that private respondent may
customers in order that they may be embarassed (p. recover (Art. 2214, New Civil Code). Moreover, that
26, tsn, Sept. 30, 1971); that management wanted many people were present and they saw and heard
"the customers to be embarrassed in public so that the ensuing interrogation and altercation appears to
they will not repeat the stealing again" (p. 2, tsn, Dec. be simply a matter of coincidence in a supermarket
10, 1971); that the management asked the guards "to which is a public place and the crowd of onlookers,
bring these customers to different cashiers in order hearers or bystanders was not deliberately sought or
that they will know that they are pilferers" (p. 2, Ibid.) called by management to witness private
may indicate the manner or pattern whereby a respondent's predicament. We do not believe that
confirmed or self-confessed shoplifter is treated by private respondent was intentionally paraded in order
the Supermarket management but in the case at bar, to humiliate or embarrass him because petitioner's
there is no showing that such procedure was taken in business depended for its success and patronage the
the case of the private respondent who denied good will of the buying public which can only be
strongly and vehemently the charge of shoplifting. preserved and promoted by good public relations.

Nonetheless, the false accusation charged against As succinctly expressed by Mr. Justice J. B. L. Reyes
the private respondent after detaining and in his concurring and dissenting opinion in
interrogating him by the uniformed guards and the Pangasinan Transportation Company, Inc, vs.
mode and manner in which he was subjected, Legaspi, 12 SCRA 598, the purpose of moral
shouting at him, imposing upon him a fine, damages is essentially indemnity or reparation, both
threatening to call the police and in the presence and punishment or correction. Moral damages are
hearing of many people at the Supermarket which emphatically not intended to enrich a complainant at
brought and caused him humiliation and the expense of a defendant; they are awarded only to
embarrassment, sufficiently rendered the petitioners enable the injured party to obtain means, diversion or
liable for damages under Articles 19 and 21 in relation amusements that will serve to alleviate the moral
to Article 2219 of the Civil Code. We rule that under suffering he has undergone, by reason of the
the facts of the case at bar, petitioners wilfully caused defendant's culpable action. In other words, the award
loss or injury to private respondent in a manner that of moral damages is aimed at a restoration, within the
was contrary to morals, good customs or public limits of the possible, of the spiritual status quo
policy. It is against morals, good customs and public ante and, it must be proportionate to the suffering
policy to humiliate, embarrass and degrade the dignity inflicted.
of a person. Everyone must respect the dignity,
personality, privacy and peace of mind of his In Our considered estimation and assessment, moral
neighbors and other persons (Article 26, Civil Code). damages in the amount of Five Thousand Pesos
And one must act with justice, give everyone his due (P5,000.00) is reasonable and just to award to private
and observe honesty and good faith (Article 19, Civil respondent.
Code).
The grant of Twenty-Five Thousand Pesos
Private respondent is entitled to damages but We (P25,000.00) as exemplary damages is unjustified.
hold that the award of Seventy-Five Thousand Pesos Exemplary or corrective damages are imposed by
(P75,000.00) for moral damages and Twenty-Five way of example or correction for the public good, in
Thousand Pesos (P25,000.00, for exemplary addition to the moral, temperate, liquidated or
damages is unconscionable and excessive. compensatory damages (Art. 2229, New Civil Code).
Exemplary damages cannot be recovered as a matter
While no proof of pecuniary loss is necessary in order of right; the court will decide whether or not they could
that moral, nominal, temperate, liquidated or be adjudicated (Art. 2223, New Civil Code).
exemplary damages may be adjudicated, the Considering that exemplary damages are awarded for
assessment of such damages, except liquidated wanton acts, that they are penal in character granted
ones, is left to the discretion of the court, according to not by way of compensation but as a punishment to
the circumstances of each case (Art. 2216, New Civil the offender and as a warning to others as a sort of
Code). In the case at bar, there is no question that the deterrent, We hold that the facts and circumstances of
whole incident that befell respondent had arisen in the case at bar do not warrant the grant of exemplary
such a manner that was created unwittingly by his damages.
own act of forgetting to pay for the file. It was his
Petitioners acted in good faith in trying to protect and
recover their property, a right which the law accords
to them. Under Article 429, New Civil Code, the owner
or lawful possessor of a thing has a right to exclude
any person from the enjoyment and disposal thereof
and for this purpose, he may use such force as may
be reasonably necessary to repel or prevent an actual
or threatened unlawful physical invasion or usurpation
of his property. And since a person who acts in the
fulfillment of a duty or in the lawful exercise of a right
or office exempts him from civil or criminal liability,
petitioner may not be punished by imposing
exemplary damages against him. We agree that
petitioners acted upon probable cause in stopping
and investigating private respondent for taking the file
without paying for it, hence, the imposition of
exemplary damages as a warning to others by way of
a deterrent is without legal basis. We, therefore,
eliminate the grant of exemplary damages to the
private respondent.

In the light of the reduction of the damages, We

hereby likewise reduce the original award of Five
Thousand Pesos (P5,000.00) as attorney's fees to
Two Thousand Pesos (P2,000.00).

WHEREFORE, IN VIEW OF THE FOREGOING, the

judgment of the Court of Appeals is hereby modified.
Petitioners are hereby ordered to pay, jointly and
severally, to private respondent moral damages in the
sum of Five Thousand Pesos (P5,000.00) and the
amount of Two Thousand Pesos (P2,000.00) as and
for attorney's fees; and further, to return the P5.00
fine to private respondent. No costs.

SO ORDERED.